QJnritpll ICam i>rI|noI ^library Cornell University Library KFN5995.H75 Practice in the Supreme Court of the st? 3 1924 022 786 028 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022786028 PRACTICE IN THE SUPREME COURT OF THE STATE OF NEAV YORK, IN WITH, UPWARDS OF TWO^HUNDRED PRACTICAL FORMS; THE RULES AS REVISED, 1858; AND AN Appendix containing the Amendments to tlie Code, 1859. By HOLMES & DISBROW, OOFNSBLLORS AT LAW. NEW YORK; GEORGE S. DIOSSY, LAW BOOKSELLER AND PUBLISHER, No. 109 Nassau Steeet. 1859. Enteebd, according to Act of Congress, in tlie year one tlionsand eight hundred and fifty- nine, by GEOEGE S. DIOSST, in tlie Olerlc's Office of the District Court of the United States, for the Southern District of New Tort Wykkoop, Hallenbbck & Thomas, Pkintess, 113 Fulton street, New York. TESTIMONIAL. The following flattering testimonial, as to the great merits of this work, has been kindly furnished to the Publisher by the eminent jurists whose names are hereto annexed : We have seen the first number of HOLMES & DISBROW'S Practice and Forma in the Supreme Court of this State, and are well acquainted with the professional standing of Judge Holmes, one of the authors ; and we have no hesitation in saying that such a work, prepared by him, will be of great value to the profession, and eminently useful to every practitioner. HENET E. DAVIS, T. W. CLEEKE, D. P. INGEAHAM, J. W. EDMONDS, 0. A. PEABODT, MUEEAY HOFEMAN, EDWARD P. COWLES, EDWARDS PIEEEEPONT, E. D. CULTEE, CHAS. P. DAIT, WM. OUETIS NOTES, JA8. T. BEADY, IIENET B. COWLES, II. Z. HATNEE. PUBLISHED BY GEORGE S. DIOSSY. UNITED STATES DIGEST of Decisions in Criminal Cases, contained in the Eeports of tlie Courts of tlie United States and the several State Courts: to which is appended a table oi the cases cited. By John L. Hakes, Counsellor at Law — New York, Geoege S Diosst, Law Bookseller and Publisher, 109 Nassau Street. Price, $5.60. This is a large octavo volume of 768 pages, printed on fair paper and bound in regular law form. It is arranged in alphabetical order, and embraces nearly, if not quite, all legal questions. One hundred and seventy-five reports are referred to throughout the work, embracing those of the United States, and of each State of the Union. The great advantage of this work is, that it embraces only Criminal Cases, while the Digests heretofore compiled have embraced, in the same work, both Civil and Criminal matter, thus subjecting the profession to an examination of a series of Digests in order to arrive at a knowledge of the decisions in Criminal Cases. In cases where the same principle has been decided in different States, all the decisions have been grouped into one section, retaining only the title of the case, the reference to the report, and the number of the page — thus avoiding unnecessary repetition of the same matter. This work has received the wiitten approval and commendation of James T. Bkady, James M. Smith, Jr., W. R. Beebe, A. Oakey Hall, and others ; and should find a place in the library of every lawyer throughout our country. THE LAW OF EEAL PEOPEETY IN THE STATE OF NEW YOEK. By T. M. Laloe. 1 vol., pp. 387. $2.50. Geo. S.,Dioss1', 109 Nassau Street. A convenient Digest of the New York Law of Eeal Property. It is constructed somewhat upon the system of Voohhies' Code. It presents the various provi- sions of the Revised Statutes on the subject, each illustrated by the remarks of the commissioners who prepared them, and by all reported cases thereon ad- judged in our State at the present time. This book will form a very convenient assistant to all those who are concerned to know our laws upon this subject. The system of our law in respect of this branch is so much followed in other States, particularly some of the Western States, that the usefulness of this Digest will not be limited to New York alone. HOWAED'S GASES IN THE OOUET OF APPEALS. Oases in the Court of Appeals of the State of New York, containg a statement of each case argued in the Court, the Briefs and Points of Counsel thereon, the Decisions of the Court, and the Notes of tlie Judges. By Nathan How akd, Jr., Counsellor at Law. Price, $6.00. DYETT'S LANDLORD AND TENANT. The Law and Practice relative to Summary Proceed- ings in the State of New York. Price, $1.00. PENSION AND BOUNTY LAND LAWS of the United States. Price, 75 Cents. KINNE'S BLACKSTONE: new and revised edition : by John C. DEVEEKrx. The most ma- terial parts of Blackstone's Commentaries, reduced to questions and answers. Price, $3.50. The above, and also a complete collection of Law Books, on hand and for sale at the lowest prices. Address, G^EO. S. DIOSSY, Law Bookseller and Publisher, 109 Nassau St., N. Y, INTRODUCTION. The Supreme Court of this State is now, by the Constitution, divided into eight judicial districts, the city and county of New York forming one district ; the other districts to be fixed by the Legislature, each district being as compact as may be, and being so formed as in no case to divide a county ; the bounda- ries of each district being, in all instances, county lines, and each district having four justices of the said court ; and the Legislature is authorized, from time to time, to increase the number of justices in the district composed of the city of New York; the whole number of justices in said district, however, not at any time, to exceed such number in proportion to its population, as shall be in con- formity with the population and number of justices of the other districts. — Constitution, Art. 6, § 4. Under this provision, one justice has been added to the number in the city of New York, so that the court is now composed of thirty-three justices, with equal powers, the power of each being co-extensive with every other, in any county of the State, wherever he may happen to be ; and, although as a whole, being but one court, called the Supreme Court of the State, yet each of the eight judicial districts has a distinct and independent court. General Terms of said court are to be held in each district, at least four in each year, and as many more as the justices of such district shall appoint. — Code, § 18. And the justices of the respective districts are required, at least one month before the thirty -first day of December, in every second year, to appoint the times and places for holding the general and special terms and circuit courts, in their said districts, and designate the justices who are to hold the same for the two years next following the said thirty-first day of December. — Code, §22. And at least one of the justices, appointed for the purpose of holding any gen- eral term, must be present and form one of the court who holds such term, which court must be held by at least three of the justices of the Supreme Court of the State. — Constitution, Art. 6, § 6. At least two circuit courts are required to be held in every year, in each county of the State, and as many more as the justices of each of the several districts shall deem necessary ; and at least one special term yearly, is required to be held in each county of the State. — Code, § 20. This court, thus constituted, is the only court in the State (with the excep- tion of the Superior Courts in the cities of New York and Buffalo, and a few other local courts), possessing general common law jurisdiction, and, aside from the courts above excepted, and courts of the justices of the peace, the only court having any original jurisdiction, and it possesses all the powers formerly exercised by the Supreme Court and Court of Chancery ; but of those powers particularly, it is unnecessary here to speak, or to allude at all to the former powers of courts of equity, as the object of this volume is simply to treat of the practice of this court in common law actions, and of the course of its juris- diction in such actions, and of its appellate jurisdiction from county and other inferior courts, and of the practice in the Court of Appeals, upon appeal from this court. It is sufficient to say, that the court has general jurisdiction of all actions founded upon contract, express or implied. — R. S., Part III, Chap. 1, Title 3. The design of the authors being to present to the profession a treatise on actions upon contracts, in four parts ; Part 1, of actions and proceedings therein prior to the joining of issue; Part 3, of the joining of issue and pro- ceedings prior to notice of trial ; Part 3, of noticing actions for trial, and the trial and its incidents, including judgment; Part 4, proceedings subsequent to judgment, as well as special proceedings founded upon as appeals from it, and also appeals from inferior courts ; confining ourselves strictly to proceedings in common law actions founded upon contract, and leaving it to bo determined by the patronage the profession shall be pleased to give this volume, whether we shall proceed further in our plan of presenting to them a complete treatise, in three volumes, on the practice of this court in law and equity. PART I. CHAPTER I. OP ACTIONS. An action is defined by the Code to be " an ordinary proceed- ing in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence." Code, § 2. The remedy by which private rights are enforced, or wrongs redressed, is called a civil action. And the proceeding designed for the trial, conviction, and punishment of persons guilty of any crime or misdemeanor, is conducted in the name of the people of the state, and is called a criminal action. Code, § § 5 and 6. All criminal actions are founded upon public wrongs, although the injury is usually to private property or private rights. In- stance, larceny : John steals the horse of James ; this is an imme- diate private wrong, or injury to James ; but it is a public wrong, as the people are in this country the guardians of the public morals and integrity ; and all offences against them are prosecuted in the name of the people, as they are under monarchies in the nam© of the king or queen. CHAPTER II. OP CIVIL ACTIONS. Civil actions, notwithstanding the sweeping away by the Code of the various names under Avhich redress for different injuries, and the enforcement of different rights, were heretofore known. 8 OP CIVIL ACTIONS. are still necessarily divided into different classes, which are en- tirely distinct from each other in many features. The first divis- ion of civil actions is into actions founded upon contract, and actions for wrongs, and these are again sub-divided. Actions upon contract being upon contracts relating to real estate, and those relating to personal property, including money obligations. It is also necessary for the convenience, not merely of the pro- fession, but of the courts, that these should be again divided into actions at law and actions in equity, notwithstanding the Code has abolished the distinction- which heretofore existed in this respect. Code, § 69. Although many advantages are certain!}' derived from this change, by giving one court general jurisdic- tion both at law and in equity, and thus saving parties from their liability to be deprived of their just rights, after months of liti- gation and the expense perhaps of all their means, in consequence of their action being prosecuted in a court which had no power to give them the necessary relief ; yet we cannot but regard it as a great mistake of the framers of the Code, in supposing that there was not an important distinction necessary to be recognized in the practice of our courts, between actions for the enforce- ment of a strictly legal right and an action for the purpose of obtaining relief which is purely equitable. This distinction is evident, from the fact that the Code itself has found it necessary to speak of, and provide for, the trial by the court, unless other- wise ordered, of issues of fact, when the action is not for the. recovery of money only, or of specific real or personal property, or for a divorce on the ground of adulter)'. Code, § § 253 and 254. It is very clear that every other action, except the ones enumerated in § 253 of the Code, must of necessity be an equit- able action, although the framera of those two sections carefully avoided speaking of them as such by name. Take, for instance, an action for a limited divorce. This is a proceeding purely equitable, and it is uttei-jy impossible for any person to deter- mine, by simply knowing that it is an action for divorce, what kind of relief is sought for, or its extent, nor yet form any idea of the issues which it will be necessary to try in said action ; and the final determination of the action is not a judgment for the recover)' oi' any demand or specific property, but, if decided in favor of the wife, bringing her action for a separate support, it is a decree settling definitely certain rights, and requiring the OP ATTORNEYS ANJ"» COUNSELLORS. 9 performance of certain duties, founded upon tiie equities arising in the particular case in which it is made; which equities or- dinarily depend upon the finding of a jury upon issues of fact submitted to them, framed and settled under the direction of the court. This not only shows that such cases are equity cases, but also that the proceedings in determining the same must neces- sarily in some respects, at least, differ widely from the proceed- ings in other actions, and the court has provided by rule for the settlement of issues in such cases. Rule 69. But sufficient has been said upon this subject for our present purpose, as the object of this volume is to speak ' only of actions for the enforcement of strictly legal rights, founded upon con- tract. This also shows why it is not necessary to speak here of the manner in which actions for private wrongs are further divided. CHAPTER 111. OP ATTORNEYS AND COUNSELLORS. The distinction \vhich heretofore existed between Attorneys and Counsellors, is a thing which ceased to have a being when the Constitution of 1846 was adopted in this State. All persons who were Solicitors in Chancery, or Attorneys of the Supreme Court at the time said Constitution went into effect, are entitled to practice as Attorneys and Counsellors in all the Courts of this State. 1 R. S., 4 ed., p. 108. Constitution, art. 6, § 8. No clerk- ship is now required to entitle a person to be admitted to practice as an attorney. The Statute makes it necessary that he should be of good moral character, twenty-one years of age, and possess the " requisite learning and ability," but gives no definition of what " requisite learning and ability" means, and indeed it would be very difficult to fix even a general rule on that subject. The Supreme Court rules, in addition to the requirements of the Statute, make it necessary that the applicant should be a resident of the judicial district in which he makes his application for admission, and a citizen of the United States. 1 R. S., 4 ed., p. 320, Rule 2. The application for examination to be admitted as an attorney, must be made at a general term of the court, and 2 10 OP ATTORNEYS AND COUNSELLOES. the examination must be in open court. Rule 1. — The proceed- ing is usually in the manaer following. The applicant, on the first day of the Term, presents to the clerk of the court, an affidavit, in the following form : STATE OP NEW-YORK, ( County. A. B. being duly sworn deposes and says, he is a citizen of the United States, is twenty-one years of age, and resides in the Town (or City) of in the County of in the iudicial district of this State. A. B. Sworn this day of? before me. ^ C. D., Commissioner, &c. This should be accompanied by a certificate of some respect- able counsellor of the court, or some other person well known to the court, in the following form : I hereby certify that I am well acquainted with A. B., of the Town (or City) of (about to make application to be admitted as an Attorney of the Supreme Court,) and have been acquainted with him for years last past, and know him to be of good moral character. Dated E. F. To the Justices of the Supreme Court of the judicial district of the State of New York. The clerk on receiving these papers makes a list in alphabetical order, of the names of the applicants, and presents the same, together with the certificates, to the court, and the court makes an order for the examination of all the candidates whose papers are in due form, and of whose moral character they approve. The court then appoint three counsellors, who are in attendance, as examiners, and they, under the advice of the court, fix the hour for the examination, which should always take place in the presence of at least one of the justices holding the court. This examination is not now confined to questions relating to practice merely, as was formerly the case when an attorney had to prac- tice, as such, for three years before he could be permitted to act as a counsellor. It is now necessary, as we understand the rule, that a person should not only have a Imowledge of the practice, but he must be sufficiently learned in the law to satisfy the OF PARTIES TO ACTIONS. 11 examiners and the court that he is qualified to act as an attor- ney and counsellor, before he can be admitted to practice. If the examiners are so satisfied, they sign a certificate to that effect. If any are not found qualified, the certificate so states. This is delivered to the court, who direct the clerk to file the same and enter an order for the admission of those who have been reported qualified. The persons so admitted attend the court at an appointed hour, sign the roll of attornej's, take the oath of office, and usually obtain a license under the seal of the court, with the signature of tho chief justice. This is' not now absolutely necessary. Attorneys may be removed by the court for cause, but they are entitled to have a copy of the charges against them served upon them, and to be heard in their defence. 1 R. S., p. 109. CHAPTER IV. OF PARTIES TO ACTIONS. The questions who must be and who may be made parties to an action are often among the most difBcult which can be pre- sented for the consideration of the practitioner, and the discus- sion of which would require a volume. It cannot therefore be expected in a single chapter in a work upon the practice, that more will be accomplished than to lay down the leading princi- ples which have been settled by the Code, or judicial decisions under it, together with such remarks as may be deemed appro- priate thereon. By § § 117, 118 and 119 of the Code, it seems clearly to be the intention of the Legislature, that all persons having any interest in the relief sought, or Avho may in any manner be affected by the judgment or decree which may be entered in the action, should be made parties, either plaintiff or defendant. Those who are interested in the relief sought, can alone be joined as plaintiffs, and those having an interest adverse to them should be made defendants, and all persons who have a unity of interest must sue or be sued together. Code, § 119. One or more of several necessary parties to an action, who have an interest in the relief and therefore should be made plaintiffs, may be made 12 OF PARTIES TO ACTIONS. defendants in the action, if they refuse to join in bringing the same, by stating the fact of such refusal in the complaint as a reason for joining them as defendants. Code, § 119. The 114th section of the Code has been the subject of not a little conflict in judicial decisions made under it, but the amend- ment of 1857 of that section has removed much of the difficulty that heretofore existed, by providing that a married woman need not in any case prosecute or defend by guardian or next friend. That section also provides that a married woman may sue alone where the action concerns her separate property, and when the suit is between her husband and herself, she may also be sued alone. But this amendment, great as is the relief it has afforded, has still left one of the most troublesome questions upon that subject wholly undecided. By the Code, as well as the common law, the husband is and was a necessary party to every action where the wife was a party, either plaintiS" or defendant, as a general rule. Prior to the Code, an action to recover monies due to the wife before marriage must have been brought in the name of husband and wife. 13 Wend. 271; Clancy's Rights of Married Women, 4; Bing. on Gov., 246; Reeve's Dom. Rel., 126. And so of debts contracted by the wife before marriage. The husband must have been joined as a party, and this is not changed by the Code. Code, §114; 9 Wend., 238. On a note or bond given to her during coverture, the wife might have been joined or the husband sued alone. Bing. on Cov., 251 ; Clancy, etc., 4, 5; Reeve's Dom. Rel., 131; 9 Paige, 288; 1 Barb. Ch. R., 624; 2 M. & Sel., 393. And now, since the Code, if the note or bond be given to her on account of her separate estate, slie may sue alone. So that as the law now stands, the wife mav sue alone, or the husband and wife may join ; and we are not a^vare that the question whether the husband, since the provisions of § 114 of the Code have gone into effect, can in such case sue alone or not, has been decided. But wc doubt very much whether the spirit of the several acts authorizing the wife to hold estate, both real and personal, separate from and independ- ent of her husband, together Avith the authority conferred upon her by the 114th section of the Code, to sue alone with respect to such property, does not take away the right which the hus- band had at common law to sue alone upon an obligation given to the wife during coverture. Sess. L. (.■ had to an action in equity against his representatives, in OP PARTIES TO ACTIONS. 21 which the surviving partner might be made a party, because he was interested to keep down the amount of debts, but no decree could be had against him, because the remedy against him was at law. " This circuity of action and multiplication of remedies grew up gradually and of necessity, to remedy defects in the adminis- tration of justice in the courts (.)f law arising from their rules of practice, but there was no good reason for npholding it a mcnnent longer than such necessity existed. " The first step towards removing that necessity w^as in the union of the law and equity jin-isdiction in the same court by the Constitution, and the next Avas in the remodeling c)f the practice by the Code. " Section 118 of the Code allows any person to be ]uade a de- fendant Avho has or claims an interest in the controversy adverse to the plaintiff,' or who is a necessary party to a complete deter- mination or settlement of the questions involved therein ; and under it, when ;i misjoinder of j^arties is olijected, the enquiry must necessarily be, has the party- an interest in the controvers}' adverse to the plaintiff? or does he claim such an interest '.' or is he a necessary party to the complete determination of the ques- tions, whatever they are, Avhich are involved in the controversy '! If either of these questions are ansAvered in the affirmative, the person is properly made a part3^ And the question raised by this demurrer must be tested in this manner, and being so tested, it becomes at once evident that there is no misjoinder of parties. " If the action is brought to reach the partnership property, the surviving partner is a necessary party, because he is inter- ested to keep down the partnershija debts, and the representa- tives of the deceased partner are properly made parties, liecausi; they have an interest in the controversy. " If it is brought to reach the individual liability of the de- ceased partner, the surviving partner is a proper jjart^r, because he is interested to keep doAvn the debts, and might be liable td contribute to the estate of his former partner his share of the debt. " If it is brought to enforce the liability both of the partner- ship property and of the partners individually, then the survi- ving partner, and the representatives of the deceased, arc- necessary parties, and under § 122 of the Code it Avould seem 22 OP PARTIES TO ACTIONS. that the respective rights and liabilities of all the parties may be determined in this action. " Be that, however, as it ma}', I see no objection to the joinder of all these parties in tliis suit; and I see no difficulty in the way of the courts rendering therein the same judgment that would have been rendei-ed in the two suits, one at law and the other in equity, which were necessary in the old iirw:t\rf. " It may perhai)s be necessary foi' the plaintiff to amend the prayer of his complaint, so as tn specify more particularly whiit is the relief which he socks against each paj-l}' ; as tu the survi- ving jjartner, , whether he aims at reaching the partnership property through him as survivor, or merely makes him a party in his effort at reaching the individual liability of the deceased partner ; and as to the representatives of that jDartner, whether the object is to enforce his individual liability, by and through his estate in their hands, or whetlier they are merely made par- ties in the effort to reach the partnership property. "In these respects it may be necessary to juake the prayer foi relief more definite, as at present it is very general, and might involve a jiersonal liability of the representatives. " Yet even if in this rcsjject the complaint is imperfect, that js not an error that is available on this demurrer. The proper remedy is liy motion to make the complaint more definite. " The ground taken by the demurrer is the misjcinder of the surviving partner with, the representatives of ,the deceased yjartner, and I have already said that iw mjt well taken. "The demurrer must Ijc overruled witJ], costs." Although we liave staled above that the weight of authority was against the rule which wo liavo adopted, and which is fulh sustained by the opinion of Judge Edmonds above cited, it is proper to remark that w (^ have done so only upon tlie ground that Voorhis agt. Baxter was decided at general (erm, and is since the decision of Ricart agt. Townsend, and ors. ; and while' we thus concede as to the weight of aiithority we consider the weight of argument, and the principles upon which that argu- ment is founded are decidedly in favor oi' the rule tliat the rep- resentatives of a deceased partner must be made ]jarties to an action in Avhich the partnershi}) is interesied. Under this liead it may be proper to remark that there an^ cer- tain cases in which persons cannot be jaade parties plaintiff to OP PARTIES TO ACTIONS, 23 any action in theii- own right; nu<[ tlioso cases uio of poisons inijirisoned under conviction foi' a felony, — 2 R. S.,701, §§19 and 20; and alien enemies during the time of war hetwcen tlieir Cduntry and our own. 13 Johns. B., 1. There are also some cases whore it has been held that several parties may join or not, at their election, deriving thei r authority so to join from the peculiar language of § 117 of the Code, whicl) is as follows : " All persons haviaig an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." It is very evident that the word may in this section does not mean must, as, if that word should be subslitnted in place of may, tlie (entire legal effect of the section wouhl be covered by Hie clear and explicit language of § 119 of the Code, and thus § 117 would he rendered wholly useless by judicial decision, should the court give this definition to may' as used in that section ; and this they are not at liberty to do. Statutes must be so construed as to give effect to all their pirovisions, and for the courts to rule iu such a manner as to strike § 117 out of existence, or in othei- words to decide that may means Tnust and not may, Avould be say- ing that the legislature were not eaj^able of understanding the (?ffect and meaning of their own words. The intention of the legislature in this section, as we understand it, was to avoid an unnecessary multiplicity of actions in cases like the following : A. B. and C. have each of them separate judgments against D., no two of them having a joint interest in any one of the judg- ments. D. has fraudulently, as tliey suppose, disjjosed of liis property, say by a fraudulent assignment. Niiw these three judgment creditors have each an equal interest in setting aside tliis assignment, and come precisely within the language of § 117 which authorizes them to join in an action for that purpose, and yet it is very clear that though they may join, eithe)- one of them may bring an action for the same purpose alone. This is perhaps a sufScient illustration of the rule, although it is but one of a number of classes of cases in which parties may join as plaintiffs upon the same principle, and upon the authority of the same section. This view is sustained by the following authorities — 3 Sand. Supr. C. R., 126 ; 12 Barb. 's. C. R., 27. 24 OP THE COMMENCEMENT OF ACTIONS. Oil AFTER V. OF THE COMMENCEMENT OF ACTIONS. An action can only bo commenced by the issuing anrl soivice of a summons. Code, § 127. But in cases where it is necessary to save the action from being barred by the Statute of Limita- tions, the delivery of the summons to the Sherifl' is deemed the commencement of the action for that purpose. Code, § 99. The summons must be served, except in cases when the defen- dant is a corporation, by delivering a copy to the defendant, personally. Code, § 134. Or if the defendant cannot be found after diligent enquiry ^\ithin the State, by publication. Code, § 135. Or if he be a concealed resident of this State, by copy. See Session Laws of 1853, p. 974. The form of the summons is difi'erent in the following cases ; first, where it is served without a complaint in an action arising on contract for the recovery of money only, when it should be in the following form substantially : SUPREME COURT— Rensselaer County : A. B. ) ag't V C. D. ) To the above named C. D. You are hereby summoned and lequired to answer the com- plaint in this action,* (which will bo filed in the office of the Clerk of the county of Rensselaer,) and to serve a copy of your answer to the said complaint on the subscriber, at his office, at the corner of First and Congress streets, in the city of Ti'oy, within twenty days after the service of this summons on }ou, exclusive of the day of such service; and if you Ihil to answer the said complaint, within the time aforesaid, the |ihiintitFin this action will* [take judgment against you for the sum of one hun- dred dollars, with interest from the first day of January, 1857, besides costs.] R. A. PARMENTER, Fllfs Atty. Dated, &c. If the complaint is soi-ved with the summons, then insluad of the words in brackets after the first asterisk in the above form, insert the following words, [with a copy of which your arc here- with served.] Code, §§128, 129 and 130. And in all cases whore the defendant cannot be found to be served with the process, the summons which is published should omit the said words in brack- ets, and insert in their place the following : [which was filed in OP THE COMMENCEMENT OP ACTIONS. 25 the office of the Clerk of the county of Rensselaer, on the tenth day May, 1857.] Code, § 135. In all actions which are not founded on contract or for the re- covery of money only, the words in brackets after the second asterisk in the above form should be omitted, and in place thereof the following should be inserted : [the plaintiff will apply to the court for the relief demanded in the complaint.] Code, § 129. The summons may be served by the sheriff or any person other than a party to the action. Code, § 133. When it is served by the sheriff, his certificate is all the evidence required of such service, to authorize subsequent proceedings in the action foun- ded thereon. Code, § 138. If served by any person other than the sheriff, no proceeding can be taken, founded thereon, without an affidavit of the service made by the person serving it. Code, § 138. The sheriff's certificate must be in substance as follows : I hereby certify, that on the first day of June, 1857, 1 served the within summons on the within named defendant, by deliver- ing to and leaving with him personally, a copy of the same, at the city of Troy. WILLIAM WELLS, Sheriff of the County of Rensselaer. Dated June 2, 1857. If served by another person, the proof of service should be in substance as follows : SUPREME COURT— Rensselaer County: A. B. ) agt. > C. D. ) Renssblaee County, ss. — E. P. being duly sworn, says that he served the within summons on C. D., the within named defend- ant, by delivering to and leaving with him, personally, a copy of the same, at the city of Troy, on the 3d day of June, 1857, and that^he knows the person so served to be the one mentioned and 'described in said summons as defendant therein. E. F. Sworn before me, this 4th ? day of June, 1857. ^i T. S. BANKER, Com'r Deeds, Troy, N. Y. The last clause of this affidavit is required by Rule 84. If the action be against a corporation, it may be served on the presiding officer, secretary, treasurer, cashier, a director, or any managing agent thereof. But a foreign corporation cannot*be 4 26 OF THE (;OMMI0X(JKMBi\T OF ACTIONS. «ued in this state, unless it has ])roporty within this state, or the cause of actioi arose therein. Code, § 134. When' the service is by publication, the proceeding is substaji- tially as follows : The publication must always be in pursuance of an order of the court, or a judge thereof, or the judge of the county where the place of trial, or venue, is laid in the sum- mons. The order for publication must designate two newspapers in which the summons shall be published; these should be two papers which, in the opinion of the court or officer granting the same, will be most likely to give notice to the defendant of the proceeding. It should also state the time that said publication is to be continued, which must ahvays be once in each week, during the whole time, which must not be less than six entire weeks ; this meaning forty two full days, computed by counting the first and excluding the last, or the clay upon which you are authorized to act upon such publication, calling it a service of the process. Code, § § 135, 407 and 425. Said order must also direct a copy of the summons and complaint to be forthwith deposited in the Post Office, directed to the person, to be served at his place of residence, if the same can be ascertained. The definition of the term forthwith is not given by the Code. We are therefore left to the light which lexicographers give us on the subject, and judging from this, we have arrived at the con- clusion that it is very nearly, if not quite synonomous with immediately or instanter, to which the Supreme Court of this state have given a legal definition, viz : twenty four hours. 7 Cowen, 421. It would be most prudent that the deposit in the Post Office should be made within twenty-four hours from the granting of the order, or as soon as practicable thereafter. The deposit in the Post Office need not be made where the sum- mons and complaint are served personally upon the defendant out of the state. Code, § 135. "When the place of residence of the defendant cannot be ascertained, the clause in the order directing the copy of the summons and complaint to be deposited in the Post Office, should be omitted. Code, § 135. The order for publication can only be made in one of the five following cases : 1. — Where the defendant is a foreign corporation, and has property within this state, or the cause of action arose therein. 2. — ^Where the defendant being a resident of this state has de- parted therefrom, with intent to defraud his creditors, or to OP THE COMMENCEMENT OP ACTIONS. 27 avoid the service of the summons, or keeps himself concealed therein with the like intent. 3. — Where he is not a resident of this state, but has property therein, and the action arises on contract and the court has juris- diction of the subject of the action. 4. — Where the subject of the action is real or personal prop- erty in this state, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partljr in excluding the defendant from any interest or lien therein. 5. — Where the action is for divorce, in the cases prescribed " by law." The application for an order for publication is founded upon an afiidavit, which must state that the plaintiff has a cause of action against the defendant, showing what it is, or that he is a proper party to an action relating to real property in this state. It must also show that the case belongs to one of the five classes specified in § 135 of the Code, as above set forth, and that a summons has been issued to the place where the defendant last resided, if within this state, and that after diligent enquiry and an honest effort to serve the summons he cannot be found within the state. This affidavit, in the cases where it is necessary to show that the defendant has property within this state, must be positive, and an allegation founded upon information and belief is not sufficient. 5 Pr. E.. 45. Showing the defendant to be permanently out of the state would probably excuse the effort to serve the summons. As to what is required in the affidavit, see Rawdon v. Corsin, 3 Pr. R. 416 ; Vernam v. Holbrook, 5. Pr. R. 3 ; 1 Barb. Ch. Pr. 96 ; Code, § 135. The afiidavit should be substantially in the following form : SUPREME COURT: A. B. ) agt. J- CD.) Rensselaer County, ss. — A. B., the above-named plaintiff, (or as the case ma}^ be,) being duly sworn says, that he has a cause of action against C. D., the above-named defendant, upon a promissory note, given by the said defendant to the said plaintiff for a good and sufficient consideration, on which there is now due the sum of one hundred dollars ; that said defendant (is not a resident of this state but resides at Detroit in the state of 28 OP THE COMMENCRMENT OP ACTIONS. Michigan, and has property in this state, or) resides at the city of Albany in the county of Albany, in this state, and that a summons has been issued against said defendant, in this action, and delivered to the sheriff of said county of Albany, by whose affidavit hereunto attached it appears, that after diligent enquiry the said sheriff has been wholly unable to serve the said process, or to find the said defendant. And deponent further says that he has himself enquired and caused enquiry to be made, and has been wholly unable to ascertain where the said defendant is to be found. A. B. Sworn before me this 7th ( daj' of June, 1857. ^ MOSES WARREN, Justice of the Peace. The sheriff's certificate is not sufficient evidence of an attempt to serve the summons. It must be his affidavit, or the affidavit of some other person who knows the fact. Code, § 135. The order should be in the following form : SUPREME COURT: A. B. ) agt. V CD. ) It having been made to appear to my satisfaction, by the affi- davit of the aboVe-named plaintiff, and of the sheriff of the county of Albany, that the above-named defendant cannot, after due diligence, be found within this state, and that a cause of action exists against the said defendant in favor of said plaintifi', arising on contract, and that a summons has in good faith been issued and delivered to the sheriff of the county where the de- fendant resides, and that said sheriff has been unable to serve said summons. On motion of L. Smith, Attorney for plaintiff: Ordered, that the annexed summons be published, at least once in each week, for six successive weeks, in the newspaper printed in the city of Albany called the Albany Argus, and in the newspaper printed in the city of Troy called the Troy Whig ; and that a copy of said summons, together with a copy of the complaint in this action, be forthwith deposited in the post office, directed to the defendant at the city of Albany. Dated, &c. GEO. GOULD. The summons and complaint should be deposited in the post office, at the place where the plaintiff or his attorney resides, properly ^folded or placed in an envelope and the postage paid thereon.' Code, §§410 and 411; 4 Pr. R., 246; 5 Pr. R., 208. OP THE COMMENCEMENT OF ACTIONS. 29 And in this case the service of the summons is deemed complete at the expiration of the time prescribed by the order for publi- 'cation. Code, § 137. A copy of the summons to be published should always be attached to or recited at full length in the order. 3 Pr. B,., 416 ; 5 Pr. R., 3. The order should be filed with the clerk of the court, and forms a necessary part of the judgment record. When the attorney has obtained the order for publication he should deliver a copy of the summons to the editor of each of the papers in which the same is ordered to be published, notify- ing them of the time of publication required by the order, and when the same has been published as required, should obtain an affidavit from some one in the office of each of the papers show- ing publication of the summons therein. This affidavit may be in the following form : SUPREME COURT: A. B. ) agt. > CD. ) Rensselaer County, ss. — E. F. being duly sworn says that the summons, a copy of which is hereunto attached, has been publish- ed in the newspaper called the Troy Whig, printed in the city of Troy, once in each week for six successive weeks, commencing on the first day of April, 1857. Sworn, &c. E. P. A copy of the printed publication should be attached to this, and a similar affidavit obtained of publication in the other paper named in the order ; but if the defendant do not appear, the plaintiff must Avait twenty days from the time when the publica- tion pursuant to the order is completed, before he can enter the default of the defendant. These affidavits should be filed, and are a necessary part of the judgment roll. By a recent statute, the service of process by publication upon a defendant residing within this state, and who avoids the ser- vice of process, has been rendered unnecessary, and a more easy and speedy method provided. Whenever it shall be made to appear to the satisfaction of the court, or a justice thereof, or county judge, by the return or affidavit of any sheriff, deputy sheriff, or constable authorized to serve the same, that process 30 OP THE COMMENCEMENT OP ACTIONS. cannot be personally served upon the defendant named in such process after proper and diligent efi'ort for that purpose, that said defendant resides in this state and cannot be found, or if found, that he avoids such service— such court or judge may make an order directing such service to be made by leaving a copy thereof at the residence of such defendant, with a person of suitable age, or if admittance cannot be obtained, or a proper person found to whom to deliver said copy, Ijy posting the same on the outer door of said residence, and depositing a copy thereof addressed to said defendant at his place of residence, in the post office in the town or city where said defendant resides, and pay- ing the postage thereon. Session Laws of 1853, p. 974. The affidavit upon, which the order for the service of process, in pursuaiice of the provisions of the above mentioned act is founded, should be drawn with great care to make a full compli- ance with the provisions of the act, and should be sxibstantiall}^ in the foi-m following : Title of cause. Rensselaee County, ss. — William Wells being duly s-\vom say?^, that he is the sheriff of said county, and that as such sheriff, the summons, a copj'' of which is hereunto attached, was delivered to him to be served ; that the defendant in said summons named is a resident of the to^vn of Grafton in said countj^, and that deponent has in good faith made proper and diligent elfort to find the said defendant for the purpose of serving the same, and deponent can- not ascertain, by enquiry at the residence of said defendant, or (if those residing in his neighborhood, where the said defendant is to be found, or when he will be home. And that deponent after such effort as aforesaid has been, and is, wholly unable to make a personal service of said summons. Sworn, &c. WILLIAM WELLS. Li case the sheriff can find Avhere the defendant is, and is still unable to serve the process personally, he should state that fact, and that the defendant avoids or evades the service of said sum- mons, stating the manner particularlj' in which such service is prevented. A certificate of the sheriff containing the same facts as set forth in the above affidavit, will serve the same purpose. This affidavit or certificate should be presented to the court or judge who will thereupon grant the following order : OP THE COMMENCEMENT OP ACTIONS. 31 SUPREME COURT : A. B. ) agt. > CD.) It having been made to appear to iny satisfaction by an affida- vit of the Sheriff of the county of Rensselaer, that the summons in this action, a copy of which is hereunto attached, has been delivered to said Sheriff, to be served, and that the defendant named iu said summons is a resident of the town of Grafton, in said county ; tha,t said sheriff has made proper and diligent eflbrt to find the said defendant and serve the same personally upon him, and that after such efforts personal service of said summons cannot be made upon the defendant, on motion of A. A. Lee, Att'y for the plaintiff, ordered that the service of the said summons be made by leaving a copy thereof at tlie residence of said defend- ant in the aforesaid town of Grafton, with some person of proper age ; or if admittance cannot be obtained to said residence, or such person found therein, then that the said service be made by posting such copy on the outer door of the residence of the defendant^ and by depositing in the Post Office, in said town of Grafton, another copy of said summons, properly folded or en- closed in an envelope, and directed to the said defendant, at his place of residence, and paying the postage thereon. Dated, &c. GEO. GOULD. It may be well to remark here, that in this, and all other cases where the order may be granted by the court, or by a justice thereof, or by a county judge ; if, instead of obtaining the order from a justice or county judge, according to the general practice, except in the city of New-York, the application is made to the court, the commencement of the order should be : At a Special Term of the Supreme Court, held at the Court House, in the city of Troy, in the county of Rensselaer, on the first day of May, 1857. Present — Hon. George Gould, Justice. A. B. ) ag't I C. D. ) And, instead of commencing as in the above order by a single judge, say : On reading and filing the affidavit of William Wells, whereby it appears that he is the sheriff of the county of Rens- selaer, — tiien proceed as in the foregoing order, except instead of 32 OP THE COMMENCEMENT OP ACTIONS. being signed by the judge, it is entered by the clerk by the di- rection of the court, and if the attorney wishes to use said order, he obtains a certified copy from the clerk. If the order is ob- tained out of court it should be filed ■\Vith the clerk, and forms a necessary part of the judgment roll. After the copies of the summons have been served at the resi- dence of the defendant, as required by said order, the person who serves said copy and deposits such copy in the post office, should make an affidavit as follows ; Title of cause. Rensselabe County, t^s. — Percy Hart, of said county, being duly sworn says, that a copy of the annexed summons was by deponent delivered to and left with E. F., [or with a person un- known to him, as the case may be,] at the residence of the de- fendant in the town of Grafton, [or was posted by deponent on the outer door of the residence of the defendant, deponent being unable to obtain admittance into said residence,] and another copy of said summons was by deponent on the same day, viz, the 3d day of May, 1857, enclosed in an envelope and directed to the defendant at his place of residence, and deposited in the post office in the said town of Grafton, nearest to the residence of the said defendant, and the postage paid thereon. Sworn, &c. PERCY HART. On filing this affidavit in the office of the clerk of the county where the place of trial or venue is laid in said summons, the service thereof becomes perfect the same as if it had been per- sonal upon the defendant for the purpose of perfecting judgment and of all proceedings founded thereon. Session Laws of 1853, p. 974. If the defendant be a minor under the age of iourteen year,-<, the service of the summons must be by delivering tn and leaving with him a copy thereof; also by delivering to and leaving with the father, mother, or guardian of said minor, another copy of the same, or if there be none within the state, then to the person who has the care -and control of said minor, or with whom he resides. Code, § 134. If the defendant be a person of unsound mind, or an habitual drunkard, and a committee has been appointed by the court to take charge of his person or estate, then one copy of the sum- mons must be delivered to and left with such defendant, and an- other with the committee. Code, § 134. OP ATTACHMENTS. 33 In cases whore the name of the defendant is not known and cannot be ascertained, or when the surname alone can be learned, the person of the defendant may be described in the summons, and his business and also his whereabouts, together with his sur- name, if known, stating the fact that his name cannot be learned for the purpose of commencing the action, and this will be suf- ficient not only to commence the action but to arrest the defend ant if necessary. Pindar v. Black, 95. CHATTER VI. OF ATTACHMENTS. At the time of is.suing the summons, or at any time thereafter, a warrant of attachment may be issued, directed to the sheriff of any county where the defendant has property at the time, re- quiring such sheriff to attach and safely keep the property of the said defendant in his county, or so much thereof as shall be sufScient to satisfy the demand of the plaintiff in the action, to- gether with the costs of the action. Code, § § 227, 229 and 231. The warrant of attachment may be issued by a justice of this court, or a county judge. Code, § 228. This warrant is clearly not original process, and the service of it does not constitute the commencement of the action. 13 Pr. R., 358 ; 13 Barb., 412. It is said in the notes on this subject in Voorhies' Code, that this warrant can in no case issue until after the commencement of the action. This is clearly a mistake and is directly contrary to the ex- press provisions of the Code, § 227, that it may issue at the time of the issuing of the summons; and unless it could be issued before the commencement of the action, the object of obtaining it would often be wholly defeated, especially in a case when the summons could only be served by publication, where an abund- ance of time would be afforded for removing the property of the debtor beyond the limits of the state. The application for the warrant must be founded on an affi- davit which must show that the plaintiff has a cause of action against the defendant arising upon contract, and what the said cause of action is and the amount ho claims to recover against the defendant, in the action founded upon said claim, which he 5 34 (!!■' ATTACH MKN'TS. must show ho is Jihout to (•oiiniiciicc, it' tlio saiiio lias not alrcadv hcL'ii ciiuinicnciMh Tho CiO(]c. (hies mil. in cxpi'i'ss Icrms n'(|iiii-o llie anionnl wliii-h I ho ].)laiiitil1' chiiiiis (,o rocovor In ho stalod in the airuhivil, lull- il ihics ro(|iiiro the shovillF lo allach sullicii'iil properly of iho (loloudiiiit lo satisfy the anKiiint moiitioued in llio wai'i'anl, and tiiat aiiioiinl aroordin};' lo tho '2'ils(, sootiou ol' tho Code iiiiist 1)0 tlio auiouni doui.'iiidod in tho coniplainl. Wlioro tlio warrant is t.o issue jioloreliino is lakon loiiiakoont llio oomphunt, which I.iy tlio provisions of tho ('odo aJ)ovo cilod, may ho, and it is ottcn noc(>ssary slionld lu'. tlio case, (as takinp; time to draw tho com])UTint might somotinios i-ondor tho warrant useless,) it is \'orv clear that the adidavit should sol I'oi-lh Iho a.moTint of tho plaintill's claim, and Iho complaint when drawn must 1)0 made to conform to il. Till' afKdavit should ulso show (lithor lliaf tho defendanl is a foreign coi-jioration, or nol, a, resident ol" this slali', or has do- ))arted therefrom with intent lo defraud his creditors, or l(ia\'oid Iho service of a summons, or keeps himself couceak'd I herein with (he like intent; or that such corporation or person has re- moved or is a,bout to remove any of his oi- its jirojiorty I'rom lliis state with intent to defraud his oi- its creditors, or has assigned, di8[)osod of, or seoroicd, or is about to assign, dis]ioso of, or se- crete any of his or its propi^rty with the like inlenl. Code, §'J-2I). Tliis affidavit should he siihslanlially in Iho following form : SUPREME COURT: A. B. ) agt. [■ CD. > Rensselaer County, ss. — A. I>. heing duly swiu'ii, says he is the above-named plaintiff, that ho has a, cause of acliiui againsi the dofomhiuf for goods, Avai'os, and merchandise sold and de- livered to tho said defeudajit at Iho cily of Troy; lliat there is now justly duo to tho saJd plaintilV from tho said dofendant for the same, tho smn of five hundred dollars ; that tho said iilainlilf is about to commoiico an action aga,inst tho said defendant for tho recovery of said claim, in this court; that the summons therein ha,s boon issued, (or that an action has boon commeneed, as tlio case may bo ;) anil that the said dofoudaiit is not a, resi- dent of this state, but resides at T(n-onto in Canada, (or Iho necessary words to bring tho case within some of iho eases mentioned in §229 of tho Code, as above set forth.) Sworn, &c. A. 15. Code, §229; 12 Tr. R., 401. OP ATTACHMENTS. 35 The affidavit should show positively, and not upon information and Lelief, the facts required to be stated therein, except in the case of the defendant being about to assign or dispose of his property, or to remove it from the state with intent to defraud his creditors. This intention must necessarily be a matter of belief, but the facts upon whicli that belief is founded should be shown by affidavit, and must bo such as the court shall adjudge to be of sufficient fo^u■ldation for such belief. See on this subject, 20 Wend., 145; 21 Wend., 673; 13 Wend., 404 ; 5 Hill., 264 ; 20 Wend., 77 ; 10 Wend., 420 ; 13 Pr. 11., 348 ; 3 Sand., 703. The warrant oi' attachment issued under the sections of the Code now under consideration, has frequently been issued in the name of the people, as if it were a [)rocess of the court. This is certainly an cjTor. It cannot in any sense be considered pro- cess. It is the mere order of a, judge at chambers, and is no more process than is tlie order to hold to bail. 7 Pr. K., 360; Code, § 228 ; 12 Barb., 265. The following is an appropriate form for this warrant : SUPREME COURT: A. B. } agt. V CD. ) To the sheriff of the county of Rensselaer : it having been made to appear to me Ijy the affidavit of the plaintiff in the above entitled action, that he has a cause of action against C. I)., the above-named defendant, arising upon contract, for goods, wares, and merchandise sold and delivered to the said defendant at the city of Troy ; and that there is now justly due to the' said plaintiff from the said defendant for the same, the sum of five hundred dollars ; that the said plaintifi' is about to commence an action against the said defendant for the recovery of said claim, in this court; that the summons therein has been issued, (or that an action has been commenced, as the case may be ;) and that the said defendant is not a resident of this state, but resides in Toronto in Canada, (or the necessary words to bring the case within some of the cases mentioned in §229 of the Code, as above set fortli ;) and the plaihtiff having given the undertaking required by § 230 of the Code : I do therefore here- by require yoii to attach and safely keep the property of said defendant within the said county of Rensselaer, or so much thereof as will be sufficient to satisfy the aforesaid demand of the above-named .plaintiff, together with the costs and expenses in the action aforesaid. Given under my hand, at the city of Troy, this first day of June, 1857. GEO. GOULD. 36 OP ATTACHMENTS. I The undertaking should be in the following form : Title of cause. Whereas, the above-named plaintiff has this day made applica- tion for a warrant of attachment against the property of the above-named defendant to the Hon. Geo. Gould, one of the jus- tices of this court, in pursuance of the proviisions § § 227, 228 and 229 of the Code of Procedure : Now thererefore, in consid- eration of the issuing of such warrant by the said justice, we, E. P. and P. G. of the city of Troy, merchants, hereby undertake that if the above-named defendant recover judgment against the said plaintiff in the above entitled action, the said plaintiff will pay to the said defendant all costs that may be awarded to the defendant in said action, and all damages which he may sustain by reason of the attachment, not exceeding two hundred and fifty dollars. B. P. Dated June 1, 1857. P. G. This undertaking should be acknowledged nud the acknowl- edgment endorsed thereon as follows : STATE OP NEW YORK, 1 ^ , Rensselaer County. \ ^^' 1 hereby certify that E. P. and P. G., to me well known to be the persons named in, and who executed the above undertaking, personally appeared before me and acknowledged that they had executed the same for the purposes therein mentioned. T. S. BANKER, Commissioner of Deeds. The sureties should also justify, and the justification should be endorsed upon the bond as follows : STATE OP NEW YORK, S ., Rensselaer County. \ ^^' E. P. and P. G., being severally duly sworn, each for himself says that he is one of the sureties in the within imdertaking, and that he is worth the sum of five hundred dollars over and above all just debts and liabilities. E. P. Sworn, &c. P. G. Sup. Rules, 72. The undertaking should be approved by the officer granting the warrant. The sheriff to whom the warrant is directed must immediately on the receipt of the same, attach all the propeily of the defend- ant in his county, as well real as personal, including money and OP ATTACHMENTS. 37 bank notes, except articles exempt from execution, and take into custody all books of account, vouchers and papers relating to the property, debts, credits and effects of such defendant, to- gether with all evidences of his title to real estate ; and with the assistance of t^vo disinterested freeholders of the county, make a true inventory of all the property seized, and of the books, vouchers, and papers taken into his custody, stating therein the Estimated value of all the articles of personal property, and enu- merating such of them as are perishable ; and the inventorj^ so made must be signed by the sheriff and the said freeholders, and within ten days returned to the officer who issued the warrant. Code, § 232 ; R. S., 766. If any of the property so seized, other than vessels, be perish- able, the sheriff must sell the same at public auction, under an order of the court or officer issueing the warrant, and retain in his hands the proceeds of such sale, after deducting his expenses, to be allowed by such court or ofScer. Code, §233; IE. S., 766. The order of the ofScer who issued such warrant directing the sheriff to sell perishable property, is founded upon the return of the sheriff and the appraisers, showing that the property or some part thereof is perishable. No affidavit is required, the return of the officer to the warrant being under his oath of office. Tlais order is substantially as follows : SUPREME COURT; A. B. ) agt. > C. D. ) It appearing to me by the return to the warrant of attachment issued by me in this action, that a portion of the property seized by the sheriff of the county of Rensselaer, under said warrant, is perishable. I hereby order and direct, that, that portion of the property attached, which is specified in the return of the sheriff and appraisers as perishable, be sold by said sheriff at public auction, six days (or such other time as to the judge shall seem reasonable under the circumstances,) previous notice of the time and place such sale being given in writing, posted in three or more public places in the city of Troy, (or in the town or city where such sale is to take place,) and signed by said sheriff. Given this first day of June 1857. CEORCB GOULD. 1 R. S., 766, §9. 38 Oi? ATTACHMENTS. If any of the property seized by the sheriff under said warrant of attachment shall be claimed as the property of any other per- son, the sheriff shall summon a jury, to try the validity of such claim, in the same manner and with the like effect, as in case of seizure under execution. 1 R. S., 767, § 10. In case the property shall Iju found in the claimant, the sherilf shall deliver the same to him, unless the attaching creditor shall, by bond, with suiScient sureties, indemnify the sheriff for detain- ing the same. 1 R. S., 767, §11. The costs of the inquisition, if found for the claimant, are to be paid out of the property of the defendant, in the hands of the sheriff, or if there be none, by the plaintiff in the action ; and if he succeeds in recovering judgment, the same will be al- lowed to him in the adjustment of his costs. If, on the other hand, the property claimed shall be found to be the property of the defendant, then such costs shall be paid by the claimant, the the amount thereof to be fixed by the court, or the officer issuing the warrant. Code, § 233 ; 1 R. S., 767, § 12. The above is carrying out the provisions of the sections of the Code, and of the Statute above cited, as near as can be done. When a vessel, or any share or interest in any vessel, belong- ing to any port or place in the United States, shall be seized by the sheriff under such warrant, if application shall be made by any person, or the agent of any person claiming, the vessel or share, or interest therein, so seized, the officer issuing such -war- rant shall ajDpoint three disinterested persons to appraise the vessel, share or interest so seized, and A\'ithin two days after such appraisement, the claimant, or his agent, may execute a bond with sureties, to he approved by such officer, to the people of this state, in a penalty double the amount of such appraised value, conditioned that in an action to be brought upon such bond, the claimant will establisli that lie was the oAviier of such vessel, share, or inierest, at the time of the seizure, or will pay to the plaintiff in the action, in wliieh such warrant of attachment is sued, or if ho shall not succeed in said action, to the del'endant, or to whoever may be legally entitled thereto, the amount of the appraised value of such vessel, share, or interest, together with interest thereof, from the date of such bond ; and upon such bond being executed a:id delivered t(.i such officer, he will, by girder, direct such vessel, share, or interest, to be released from such OF ATTACHMENTS. 39 attachment, and the sheriff must accordingly discharge the same. The commencement of an action upon the bond, it is presumed must be by leave of the court, and probably the plaintiff in the action in a proper case would be allowed to prosecute the same, but there is some little embarrassment in pointing out the prac- tice so far as relates to the duty of the sheriff, or the rights of the parties relative to vessels attached, in pursuance of the pro- visions of the Code now under consideration, as the Code requires Ihe same proceedings to be had in all respects, as are provided by law, upon attachments against absent debtors. Code, § 233. And many of the provisions which it is necessary should have some constru.ction given to them, in order to give effect to the requirements of the Code, are ^vholly inapplicable to such a case as the Code is providing for, and must necessarily be left to the direction of the court in which the action is pending. We have suggested that course of practice which avo deem the nearest ]DOssible to a literal compliance with the provisions of the Code, and the sections of the Revised Statutes adopted by the Code. If the vessel be a foreign vessel, the same proceedings may be had as above prescribed relative to vessels owned in the United States, except that the claim of the applicant shall be established by affidavit, and such notice as the officer issuing the warrant may require of such application, must be given to the plaintiff' in the action. 1 E. S., 768, § 18 ; Code, § 233. Within three days from the time of the appraisement oi' such foreign vessel, the plaintiff in the action, in which such warrant was issued, must give a bond^ with sufficient sureties, to be ap- proved by the officer, to the claimant of such vessel, share, or interest, in double the amount of such valuation, conditioned to prosecute to effect, the action in which such warrant of attach- ment issued, and to pay all such damages as may be recovered in an action to be brought on such' bond, witliin three months from the date thereof, if it shall appear that the claimant, at the time of such attachment, owned the vessel, share, or interest so attached, and unless such bond be given, the officer who issued such warrant will give an order discharging such vessel, share, or interest, from such attachment, and the same must be so dis- charged. If no claim to such vessel, whether foreign or domestic, shall be interposed within thirty days from the time of the seizure 40 OP ATTACHMENTS, thereof, the officer iKsuing tlie warrant may by order direct the sheriff to sell the same whenever he sliall deem it necessary so to do. Such order should also direct the sheriff' as to what notice should be given of the time and place of such sale. 1 R. iS., 769. Code, § 233. Whenever any perishable property, or vessel, is by order of the judge sold by the sheriff, the avails thereof, after deducting the expenses to bo allowed by the officer issuing the warrant, shall be kept by the sheriff, in the same manner that the attached property would have been, had it not been sold. It is also provided by the Revised Statutes that whenever the officer shall order the sale of any vessel, share, or interest there- in, or any perishable property, which has lioen seized under such warrant, he shall prescribe the time and place of such sale, and the manner in which notice thereof shall be published. 1 R. S., 769. We have gone through with all the sections of the Statute which are included within the reference made to the same by the 233d section of the Code, and we believe have carefully extrac- ted therefrom everything which is applicable to this proceeding. The rights or shares which the defendant in any action may own in the stock of any association or corporation, may be seized upon a warrant of attachment, issued in such action, together with the interest and profits thereon. Code, § 234. Such attachment may be executed by the sheriff, upon the stock of any corporation, or any other property incapable of manual delivery, by his delivering and leaving with the president or other head of the association, or the secretary, cashier, or managing agent thereof, or with the debtor, oi j ji-.-on holding- such property, a certified copy of the warrant of attachment, together with a notice specifying the property levied on. Code, §235. The sheriff having an attachment against the propert)- of a defendant in an action, may call upon and require any of the officers above named, of an}- corporation or association in which the defendant has any stock or interest, or the defendant oi- any individual who has possession of any property of such defend- ant, not capable of manual delivery, to furnish liim with a certificate, under his hand, designating the number of rights or shares of such defendant in said corporation or association, to- OP ATTACHMENTIS. 4 J gether with all dividends and incumbrances thereon, and the amount and description of all property which may be held by any such association, corporation or individual, and if such certificate is refused, the sheriff may apply to the officer issuing said war- rant, or to the court, for an order requiring the person so refusing to attend before the court, or officer, and be examined on oath concerning the same, and obedience to the said order may be en- forced by attachment. Code, § 236. If the plaintiff recover judgment in any action in which an attachment has been issued, all monies which may be in the hands of the sheriff, which have come into his hands by virtue of such attachment, shall be first applied towards the satisfaction of such judgment, and if such judgment is not thereby satisfied, the sheriff must prosecute to effect, under the direction of the court, or officer, issuing the warrant, any available notes or other evidences of debt, seized by him on such attachment, or any bond taken by him in the course of such proceedings, and appl}^ the avails thereof, after paying the expense of collecting the same, towards the balance remaining due upon such judgment, and if any balance shall still remain unsatisfied thereon, the plain- tiff may require the sheriff to proceed to sell, under an execution, issued upon said judgment, any other property which may have been seized by him upon such attachment, or so mucli thereof as may be necessary to satisfy the balance remaining due upon said judgment. The Code also provides that in case of the sale of any shares of stock in any corporation or association, the sheriff shall execute to the purchaser a certificate of such sale, who shall thereby acquire and have all the rights to the same, which before such sale belonged to the defendant. The sheriff is also authorized to pursue and retake any property which had been seized by him upon such attachment, and removed from liis possession without having been sold by him, and for that purpose shall have all the right which he had to make his first seizure. Code, § 237. The actions authorized to be brought by the sherifl' in pursu- ance of the proceedings under the attachment, may be brought by the plaintiff, or prosecuted under his direction, on his indem- nifying the sheriff by an undertaking, -with two sufficient sureties, to pay all damages and costs on account of such prosecution, and indemnify the sheriff against the same, not exceeding two hun- 6 42 OP ATTACHMENTS. dred and fifty dollars, in any one action. Tlie sureties must justify by an affidavit, that they are householders, and each are worth, according to the language of the Code, " double the " amount of the penalty of the bond, over and above all demands " and liabilities." Code, § 238. This is evidently a mistake in the fraraer of the section, or some other person, as the instrument required to be given by the section under consideration, is not a bond, but an undertaking. We presume the intention is that the sureties should justify in double the amount for which the un- dertaking is required to be given, which should always be the largest sum for which the sureties are to be held accountable, and in this case would be two hundred and fifty dollars. If the defendant recover judgment against the plaintiff in an action in which an attachment has been issued, all the property seized by the sheriff under such attachment, together with the avails of all such as may have been sold by him, and all bonds and evidences of debt, (except such as have been taken by the sheriff to indemnify him against damages and costs, in actions prosecuted by or under the direction of the plaintiff,) must be delivered by the sheriff to the defendant, and the warrant dis- charged, and the property released therefrom. The sheriff undoubtedly is entitled to require the certificate of the clerk of the court, or some other authentic evidence, that the judgment in the action was in favor of the defendant, before the delivery to him of the property attached can be enforced. Code, ^ 239. The defendant in any action in which an attachment shall have been issued, may at any time make a motion to set aside the said attachment and vacate the same, on the ground of a fatal error, or irregularity in the issuing of the same, but if the objection does not go to the jurisdiction of the court or officer granting the warrant, we presume that any other defect may by leave of the court, be cured by amendment. Code, § 241. And as to amend- ment, § 173. Wilson v. Allen, 3 Pr. E., 369. When the defendant has appeared in the action, he may exe- cute an undertaking, with two sureties, to be approved of )jy the court or officer issuing the attachment, that the sureties will, on demand, pay the plaintiff the amount which shall be recovered by him in said action, not exceeding the sum specified in the undertaking, which shall be at least double the amount mentioned in the complaint, unless it shall appear by affidavit, that the OF ATTACHMENTS. 43 Avhole property attached is less in value than the amount claimed in the complaint, in which case the court or officer issuing the attachment, may order a re-appraisal of said property, and the amount of the undertaking may then be reduced to double the amount so appraised. The court or officer may then, on the application of the de- fendant, make an order discharging such attachment, whereupon the property attached shall be delivered to the defendant. Code, ^ § 240 and 241. When the attachment has been fully executed or discharged, the sheriff must return it, together with his proceedings thereon to the office of the clerk of the county in which the place of trial in the action is laid. Code, § 242. The sheriff's fees on such attachment is fifty cents for the service, and such additional compensation for his trouble and expenses in taking possession of, and preserving the property attached, as the Court in which the action is pending, or if the warrant be issued by an officer out of court, the officer issu- ing the same, ^shall certify to be reasonable, and where any property so attached is sold, he is entitled, in addition to the amount above mentioned, to poundage on the sum collected the same as if the sale had been made on execution. Code, § 243. 2 R. S., 537 and 538. We have omitted many of the forms which proceedings under the attachment required to be given, believing it would be more convenient to give them in a body at the end of the chapter. Many of them are by the requirements of § 233 of the Code, di- rected to be according to the Revised Statutes, upon proceedings against absent debtors, and that makes it necessary, that the security to be given, in several instances, should be by a penal bond, as will be seen by reference to 1 R. S., 766 to 769. The following are all the additional forms we deem necessary to give in this chapter : Inventory of property attached under warrant of attachment, to be made by the sheriff and two appraisers. Code, § 232. 1 R. S., 766. Title of cause. I, William Wells, sheriff of the county of Rensselaer, and James Green and John Brown, two disinterested freeholders of said county, hereby certify that the following is a true inventory 44 OP ATTACHMENTS. of the property seized by me, the said sheriff, on a warrant of. attachment issued, in the above entitled action, (by the order of the Supreme Court, or) by George Gould, a justice of the Su- preme Court, directed and delivered to me, the said sheriff, together with a statement of the books, vouchers and papers taken into the custody of said sheriff, on said warrant, and the value of each article of personal property, and also a true state- ment of such articles thereof as are perishable, as the same has been appraised by us. One span Bay Horses, - $ 500 00 One House and Lot, No. 11 Ist-st., Troy, N. Y., 5000 00 Ten shares Stock, Com'l Bank, Troy, N. Y., 1000 00 Ten barrels of Oysters, - - 50 00 And we further certify that the last item mentioned in the above inventory is perishable property, WILLIAM WELLS. JAMES GEEEN. JOHN BROWN. Troy, June 22, 1857. If any books, notes, or other papers are attached, they should be particularly stated in the inventory. Form of bond to be given by claimant of vessel, taken under attachment, within two days after the appraisal of the vessel : Know all men by these presents that we, John Dunn of King- ston, in the county of Ulster, and James Fox and Philip T. Hart of the city of Troy, in the county of Rensselaer, are held and firmly bound to the people of the state of New-York in the penal sum of dollars, (double the appraised value of the ves- sel, or interest attached,) for the which payment, well and truly to be made, we bind ourselves and each of our heirs, executors and administrators, jointly and severally, firmly, by these presents. Dated the first day of June, one thousand eight hundred and fifty-seven. Whereas A. B., heretofore on the day of procured from this court (or from Geo. Gould, a jiistice thereof,) a war- rant of attachment against the property of C. D., against whom the said A. B. had commenced (or had issued a summons for the purpose of • commencing,) an action. [Here state briefly the ground on which the attachment issued^ — § 229 of the Code.] And whereas, the sheriff of the county of Rensselaer, to whom such attachment was directed and delivered, has seized, upon said attachment, the steamboat Lobster, belonging to Kingston, Ulster County, New-York, as the property of the said C. D. And whereas, the above bounden, John Dunn, has put in a claim to said vessel, in pursuance of the statute in such case made and provided ; and whereas the said vessel has been duly appraised OP ATTACHMENTS. 45 by three persons appointed for that purpose by the court (or officer,) issuing such warrant ; and whereas, ten days have not elapsed since such appraisal — Now, therefore, the condition of this obligation is such that if the said John Dunn shall, in an action to be brought upon this obligation, establish that he was the owner of said steamboat Lobster, at the time she was seized under said attachment ; or shall pay to the said A. B., or if the said A. B. shall not succeed in such action, to the said defendant, or to'such person as shall be legally entitled to the same, the amount of , (the ap- praised value of such vessef,) with interest thereon, from the date hereof, then this obliga,tion to be void, otherwise to remain in full force and effect. In witness whereof we have hereunto subscribed our names and aflSxed our seals, the day and year first above written. JOHN DUNN, [l. s. JAMES FOX, [l. s.' P. T. HART, [l. s.; Signed, sealed and delivered ? in presence of, ) JOSEPH HILLMAN. Order to discharge vessel from attachment, according to 1 R, S., 767, § 14 : SUPREME COURT: A. B. ) agt. V CD. ) Whereas, John Dunn of Kingston, county of Ulster, has made application to me claiming to be the owner of the steamboat Lobster, which has been seized by the sheriff of the county of Rensselaer, on an attachment issued by me under § 229 of the Code ; and whereas said vessel has been duly appraised by ap- praisers appointed by me for that purpose, and the said claimant has executed a bond with two sureties approved by me, as re- quired by the statute : Therefore, I hereby order and direct the said sheriff to release said steamboat Lobster from said attach- ment. Given under my hand this day of , etc. Signed, ' GEO. GOULD. Bond to be given by the plaintiff in the action to claimant of foreign vessels : Know all men by these presents that we, A. B., L. M., and 0. S., all of the city of Troy, are held and firmly bound unto R. W., (the claimant,) in the penal sum of dollars, (double the 46 OP ATTACHMENTS. amount of the appraisal,) I'or the which payment well and truly to be made, we hind ourselves and each of our heirs, executoi's and administratoi-s, jointly and severally, firmly by these presents. Dated June, &c. Whereas, the above bounden, A. B., has commenced an action against one C. D., in which action an attachment lias been issued by Geo. Gould, justice of the Supreme Court, in pursuance of § 229 of the Code ; and whereas, the sheriff of the county of Rensselaer, to whom said attachment was directed and delivered, has seized by virtue of the same, a certain vessel called the Gull, being a foreign vessel, belonging to Liverpool ; and whereas, the above-named R. W. has in due form of law, interposed a claim to said vessel, as owner ; and whereas, said vessel has been ap- praised by persons duly appointed for that purpose, and whereas three days have not elapsed since such appraisal : Now, there- fore, the condition of this obligation is such, that if the said A. B. shall prosecute to effect the action which said warrant was issued, and shall pay all such damages as may be. recovered in an action to be Drought upon this obligation, -^vithin three months from the date hereof, in case it shall appear that the above-named R. W. owned the said vessel at the time she ^^'as so attached, then this obligation to be void, otherwise to be made of full force and effect. In witness, above we have hereunto set our hands and seals, the day first above written. Signed, &c. Order for sale of attached vessel : SUPREME COURT: A. B. ) agt. V CD. ) Whereas, it has been made to appear to me that a vessel called the Rover, (or some share or interest in such vessel,) has been seized by the sheriff of the county of Rensselaer, xmder an at- tachment issued by me in the above entitled action ; and whereas, more than thirty days have elapsed since said vessel was so seized, and no claim has been interposed to said vessel : There- fore, I do hereby order that the sheriff of the county of Rensse- laer sell said vessel at public auction, giving at least ten days public notice of the same by posting up, in three or more con- spicuous places in the city or town in which said vessel is to be sold, a written or printed notice of said sale. Given under my hand,&c. GEO. GOULD. OP ATTACHMENTS. 47 Bond by plaintiff to indemnify against costs of an action to be brouglit upon a demand seized by sheriff on attachment : Title of cause. Whereas, Wm. Wells, sheriff of the county of Rensselaer, on an attachment issued in this action by Geo. Gould, one of the justices of this court, has taken into his possession a promissory note made by Peter Simple for the sum of five hundred dollars, payable to the said defendant : Now, therefore, in consideration that the said Wm. Wells, sheriff as aforesaid, has authorized and empowered A. B., the above-named plaintiff, to take the control and direction of an action on said note, (now pending, or here- after to be continued, as the case may be,) against the said Peter Simple, we, E. F. and G. H., hereby undertake that A. B. will pay all damages and costs on account of such prosecution, and indemnify and save the said sheriff harmless against the same, not exceeding two hundred and fifty dollars in any one action. Signed, E. F. Troy, June 20, 1857. G. H. Undertaking by defendant to obtain discharge of attachment : Title of cause. Whereas, an attachment has been issued by the Hon. Geo. Gould, one of the justices of this court, in the above entitled action, against the property of the defendant therein, which has been directed and delivered to the sheriff of the county of Rens- selaer ; and whereas, the defendant has appeared in said action and made application to said officer for the discharge of said at- tachment : Now, therefore, we the undersigned, E. P. and G. H., hereby undertake that if the said attachment shall be discharged on such application, we will on demand pay to A. B., the said plaintiff, the amount which shall be recovered by him in such action, not exceeding the sum of dollars, [being double the amount claimed in the complaint.] Signed, E. F. Dated June 20, 1857. G. H. The amount to be named in the above undertaking may be re- duced by showing the whole amount of property attached to be less in value than the amount claimed in the complaint, and in that case a new appraisal is made under § 241 of the Code. For forms of acknowledgments and justification, see ante p. 36. 48 OF THE PLACE OP TRIAL. CHAPTER VII OF THE PLACE OF TRIAL. Formerly the venue in actions was divided into two classes, local and transitory. Local actions were such as were by law required to be tried in a particular county. But in such actions the court always had power, (if a fair and impartial trial could not be had in the county where, by the rules of law, the venue was required to be laid,) to change the venue to such other county as the circumstances of the case, and the rights and con- venience of the parties should indicate, as a proper count}' for the trial of the cause. Transitory actions were those where the party Avas at liberty to lay his venue in any count}- which he might choose to select for that purpose ; subject, however, to the power of the court on motion, to change the venue ; and this change was always made with reference to the convenience of parties and their witnesses ; and the rules adopted under our for- mer practice, vnih. reference to changing venue, and the decisions on that subject are, many of them, applicable to the jjresent practice, relative to the place of trial. By the Code of Proceedure, the place of trial in all actions, is fixed subject to the jDower of the court to change the same, ex- cept in actions where none of the parties reside within the state, and where the action is not brought for the recovery of real property, or for injuries to, or determining the title to real estate; or for partition of, or the foreclosing a mortgage on real estate ; or for the i-ecovery of personal property distrained ; or for a penalty of forfeiture ; or against a public officer for an act done by virtue of his office ; or any person aiding such officer in the performance of his duty. Code, § § 123, 124, 125. Thus the class of actions in which the venue may be laid in the first instance, in any county where the plaintiff ma}- choose to lay the same, is very small, and confined absolutely to actions in which all the parties are non-residents, and where there is no other rule which requires the place of trial to be laid in a par- ticular county. By the one hundred and twenty-third section of the Code, all actions "for the recovery of real property ^ or of an estate or interest therein ; or for the determination of such right or interest; or for injuries to real property; or for the partition of real property ; or foreclosure of a mortgage of real OP THE PLACE OP TRIAL. 49 property ;" must be tried in the county where the property, or some part thereof is situated. And by the same section, actions for personal property, which has been distrained, must be tried in the county where the same was so distrained. This, however, in all of the above cases, is subject to the power of the court to change the place of trial, on motion for that purpose. Code, §126. Section one hundred and twenty-four of the Code, requires all actions against public officers, or persons aiding public officers, or those acting in the place of public officers by special appoint- ment for any act done by virtue of their office ; and all actions for penalties or forfeitures, to be tried in the county where the cause of action, or some part thereof arose, " except where the penalty or forfeiture is imposed for an offence committed ,on a lake, river or other stream of water, situated in two or more counties, the place of trial may be laid in any county bordering on such lake, river or stream, and opposite to the place Avhere the oifence was committed." In all other cases the place of trial must be laid in the county where the parties, or some of them, reside. Code, § 125, The provisions of the Code above referred to, allude to the place of ti-ial, to be designated in the summons by which the action is commenced, and as we have seen, no action is strictly transitory inider the Code, except those above mentioned, where the parties are all non-residents, and to which none of the rules above mentioned, fixing the place of trial, apply, and yet where the wrong county is laid in the summons, as the place of trial, it does not vitiate or render the proceeding void, and if no defence is interposed, judgment may be perfected, and will be, when perfected, in all respects as valid, as if the place of trial was laid, and the proceedings had iir accordance with the requirements of the Code. Code, § 126. And in all cases, the place of trial may be changed, on motion, a sufficient cause being shown for that purpose, as provided by the one hundred and twenty-sixth section of the Code. As to the practice in changing the place of trial, see post, Part 2. The summons must always contain some venue or place of trial, unless the complaint is served with it, and then it should contain a venue ; but if it do not, the defect is cured by the venue contained in the complaint. The provisions of sections 123, 124, 125 and 126, of the Code, as now amended, are so framed as to embody the former provis- ions of the statutes, together with the construction given to them 7 50 OP THE PLACE OP TRIAL. by judicial decisions, relative to the place of trial ; and the in- tention of the Legislature is so perfectly plain from the reading of the sections, as scarcely to require comment. There is one provision, however, which seems not to have been noticed by the framer of these sections of the Code. By the laws of 1843, chap. 201, p. 257, it is provided that " actions brought by the county or town officers of one county, in their official capacity, against the county or town officers of another county, in their official capacity, shall be laid in some county adjoining the county of the defendants, except the county of the plaintiffs." It is very manifest, that where an action is in effect in favor of one county against another, the place of trial should not be in either of such counties, and yet the Code, ^vhile it has repealed the above provision of the laws of 1843, has not in any manner di- rected where the venue shall be laid in such an action. We presume, that should the place of trial be laid in any county ad- joining either of the [counties whose officers are the parties to the action, the court would not change the same, except upon showing a reason for such change, coming within some of the provisions of section 126 of the Code. This, however, is a ques- tion upon which we are not aware of any judicial decision to direct us. Where an action is founded upon the breach of a contract, made at one place and to be performed at another, the cause of action arises at the place where the contract was to be performed, and when that is within this state, the place of trial should be laid there ; but if the place for the performance of the contract is not within this state, and the contract do not relate to real estate, situate within this state, then the place of trial should be laid in the county where one or more of the parties reside, un- less they are all non-residents of the state, in which case, the place of trial may be laid in any county which suits the conve- nience of the plaintiff, subject always to the power of the court to change. Buckle v. Bckhart, 3 Cow. 132 ; and § § 123, 124, 125 and 126 of the Code. It will be seen we have treated briefly of the place of trial in all actions, as we found it quite as cc^ivenient to do so, as to speak separately of this subject as confined to actions upon contracts. OP THE APPOINTMENT OP GUARDIANS. 51 CHAPTER VIII. OP THE APPOMTMBNT OF GUARDIANS. All persons under the age of twenty-one years, are, in the lan- g'uage of the law, infants, and are incapable of appearing in court, either .in person, or by attorney. They must prosecute or defend every action where their rights or interests are involved, by a guardian. Formerly, an infant plaintiff, prosecuted by next friend, while an infant defendant, defended by guardian. This difference in name, has been dropped by the Code, and the gene- ral term guardian used with reference to both plaintiff and defendant. Code, § 115. The guardian for the purpose of prosecuting or defending an action, is appointed for that particular purpose, and is usually denominated guardian ad litem,, to distinguish him from the gen- eral or other guardian of an infant ; and no person can act as the guardian of an infant in an action, in any court, without having been so appointed. Code, § 115; S. C. R. 52 and 53. In the notes to Voorhies' Code, it is said to have been decided, that where an adult husband and an infant wife join in bringing an action, no guardian need be appointed for the wife. In this we think the learned annotator is mistaken. In the case which he cites, Hulbert v. Newell, 4 How. ; Pr. R. 93, the husband was appointed next friend of the wife ; and in all the proceedings in the action, the wife is stated to sue by her next friend, so that no such question could arise in that case ; and in all cases where an infant wife sues or is siied jointly with her husband, the hus- band, should be appointed her guardian. The one hundred and fourteenth section of the Code, which provides that a married woman need not, in any case, prosecute or defend by guardian, is not intended to apply to the case of a married woman who is an infant, so as to enable her to sue without a guardian, and the necessity of appointing the guardian, (as above stated,) is not obviated by the husband being joined as a party. The contrary of this was, however, held by Hand, Justice, in Cook, et. al., vs. Rawdon, 6 Pr. R. 233. He thinks that by § 114 of the Code, a married woman, though an infant, might join with her husband in suing, without having the husband or any other person appointed her next friend or guardian. And this would be true,|if the said section in providing that a married woman 52 OP THE APPOINTMENT OP GUABDIANS. might sue alone, did not allude solely to the disabilities caused by marriage, but for one well settled rule of law which the learn- ed judge seems to Iiavo overlooked. The 115th section of the Code says : " when an infant is a party, he must appear by guardian." Now if the learned Judge is right in his understanding of the 114th section, then those provisions are directly in conflict and the rule is, in such cases, that the last section must prevail. And there is yet another rule in construing statutes, which is that they must be so construed as not to conflict where they will admit of such construction, and we think the true understanding of the section does not raise any conflict whatever. To prosecute an action to judgment in the name of, or against an infant Avithoiit a guardian ad litem, would be irregular, and the judgment would be set aside on motion ; but an infant party cannot act by attorney in making such motion. Shepherd vs. Hibbard, 19 Wend. 96. xind if an infant defendant should appear by attorney instead of guardian, and demand a copy of the com- plaint and obtain judgment against the plaintiff, on account of the complaint not being served, such judgment would be set aside on the ground that an infant cannot appear by attorney. Com- stock V. Carr, 6 Wend. 526. But the guardian of an infant may act by attorney either in the prosecution or defence of an action. The People v. New York, Com. Pleas, 11 Wend. 164. The Guardian may be appointed, either by the courts in which the action is pending, a justice thereof, or a county judge. Code, § 115. The guardian for an infant plaintiff should be appointed before the action is commenced, although, if not so appointed the irregularity may be cured by appointing one at any time before a motion is made to set aside the proceeding and paying the costs of the motion, if noticed. Fitch vs. Fitch, 18 Wend. 513. A contrary doctrine to the above was held by Willard, Justice, in case of Hill by her guardian agst. Thacter 3, Pr. E. 407. This decision of Willard is founded upon the case of Wilder vs. Ember, 12 Wend, 191. That was a motion to set aside a writ de homine replegriendo, sued out by an infant without the appointment of a next friend, and none had been appointed at the time the motion was made. This decision was clearly right, but it by no means in our opinion, sustains the decision of Justice Wil- lard in Hill vs. Thacter. In that case, a guardian ad litem OP THE APPOINTMENT OP GUARDIANS. 53 had been appointed before the motion to set aside the pro- ceedings was made, and the learned Justice, (for whose opin- ions we have the most profound respect,) very clearly did not have his attention called to the case of Filch vs. Fitch. This was doubtless tlie fault of counsel, and the question whether the irregularity was not cured by the appointment of a guardian prior to the motion, does not seem to have been suggested by counsel in that case. We think the learned Justice clearly right in his holding that the provision of the 2d Revised Statutes, 446, requiring the appointment of a responsible next friend, before the issuing of process in favor of an infant defendant, is still in force, but the case of Pitch v. Pitch, was decided under that very provi- sion of the Revised Statutes, and we think there can be no doubt that the provisions of the 173d section of the Code, are broad enough to allow the defect to be cured since the Code, by the ap- pointment before the motion, or even at the time the motion is made upon such terms as should be equitable even if it had not held that the court possessed that power under the Revised Statutes. It is, perhaps, not improper to remark here, that the section of the Revised Statutes, which contains the provisions above referred to, in 2d Rev. S. 446, is entirely omitted in the 4th Ed. said statutes, and the compiler of that edition says "the pro- ceedings in this title are superceded by the code of proceedure. This is an entire mistake, and the provisions of the Code, § § 115 and 116, are in no way inconsistent with, and therefore do not repeal the provision of the R. S. above referred to. See Hill v. Thacter, above cited. The appMcation for the appointment of a guardian for an infant plaintiff, is founded upon a petition verified by the oath of the in- fant or some one in his behalf, which must show the age of the infant and his place of residence, and that he has a cause of action against the defendant for which he proposes to commence an ac- tion. It should also show who the general or testamentary guar- dian of the infant is, if he has any, and if he has none, with whom the infant resides, or who is charged with his care or custody. These statements in relation to who is the guardian, &c., of the infant, are unnecessary in the petition, Avhen the infant is not under the age of fourteen years. As when the infant is fourteen years of age or upwards, he should make tire application himself, when under that age, it should be made by the guardian, or some 54 OP THE APPOINTMENT OP GUARDIANS. relative or friend of the infant. If the application be not made by the guardian, then notice thereof must be given to the guar- dian, or if he has none, to the person with whom he resides. This provision is intended to guard against improper and illy advised litigation in the name of infants under the age of fourteen years, Code, § 116. The guardian of an infant plaintiff must be a re- sponsible person, and is liable for the costs of the action, and the collection thereof may be enforced by attachment. Code, § 310. 2 R. S. 444, §2 ; Cook et al vs. Rawdon, 6 Pr. R. 233; Hill vs. Thaoter 3 Pr. R. 407. Any suitable person may in the discretion of the court or officer be appointed guardian aU litem of an infant plaintiff. Rule 56, (53 of former rules) does not apply to infant plaintiffs. See Cook et al vs. Rawdon above cited. The petition for the appointment of guardian for an infant plaintiff being four- teen years of age or over, may be in the following form : To the Hon. George Gould, one of the Justices of the Supreme Court : The petition of John Sweet respectfully shows, that he resides in the city of Troy, county of Rensselaer, and is an infant under the age of twenty-one years, to wit : of the age of sixteen years, and that he has a claim against John Spicer of said city, to the amount of one hundred dollars for work and labor performed by your petitioner (or for, whatever was the consideration of the claim,) for which the said Spicer is justly indebted to your peti- tioner, in the sum aforesaid and against whom your peti- tioner proposes to commence an action for th© same ; and j'our petitioner further shows that Thomas Sweet of said city and county, is the brother of your petitioner and is worth as your petitioner is informed and believes at least the sum of five hun- dred dollars, over and above all just debts and liabilities, and is willing to become the guardian of your petitioner in an action to be brought against said Spicer, to recover the claim aforesaid. Your petitioner therefore asks that said Thomas Sweet be ap- pointed guardian of your petitioner for the purpose of bringing said action, and your petitioner as in duty bound will over pray. Dated June 1st, 1857. JOHN SWEET. STATE OF NEW YORK, S „, Rensselaer County. \ *" John Sweet, the above-named petitioner being duly sworn says, ho has road the above petition and knows the contents thereof, and that the same is true. JOHN SWEET. Sworn, &c. OP THE APPOINTMENT OP GDAEDIANS. 55 I hereby consent to accept the appointment of guardian of the above-named John Sweet, in an action in the Supreme Court against John Spicer, for the cause mentioned in the above peti- tion. THOMAS SWEET. Dated June 1st, 1857. It would be well in addition to the above, to have an affidavit of some person other than the infant, as to the responsibility of the' proposed guardian, although this is not necessary. Anything that satisfies the Court or officer to Avhom the petition is ad- dressed, is sufficient. The order for the appointment of a guardian may be in the fol- lowing form : Whereas, It has been made to appear to me by the petition of John Sweet, duly verified, that he, is an infant under the age of twenty-one, and over the age of fourteen years, and that he re- sides in the city of Troy, in the county of Rensselaer, and has a cause of action against John Spicer, of the same place, for more than fifty dollars in amount, and that he is desirous of commen- cing an action against said Spicer, for the recovery of the same, and that Thomas Sweet is his brother and resides in the county of Rensselaer, and is worth the sum of five hundred dollars, over and above his just debts and liabilities. And whereas the said petition is accompanied by the written consent of the said Thomas Sweet to accept the appointment of gniardian of the said John Sweet, for the purpose of bringing an action against said Spicer for the cause aforesaid. I do therefore hereby appoint the said Thomas Sweet guardian of the said John Sweet, for the purpose of bringing and prosecuting the aforesaid action to judgment. GEORGE GOULD. Dated June 3, 1857. The petition for the appointment of a guardian ad litem, for an infant plaintiff, under the age of fourteen years, may be in the following form : To the Honorable George Gould, one of the Justices of the Su- preme Court : The petition of James Shaw, respectfully shows, that he is the uncle of Peter Shaw who resides in the town of Berlin, in the county of Rensselaer, with Martha Shaw, Avho is his mother, and that John Scott of Berlin aforesaid is the general guardian of the said Peter Shaw, who is an infant, under the age of fourteen years, to wit of the age of five years, and that said Peter Shaw has a cause of action against Thomas Jones, for carelessly and negligently driving over the said Peter Shaw with a span of horses and wagon, and breaking both the legs of said Peter, and 56 OP THE APPOINTMENT OP GUARDIANS. SO injuring him, tliat he will probably be a cripple during life, and the said Peter has been thereby injured and damaged in the opinion of your petitioner, to the amount of at least five thousand dollars, and your petitioner desires to have an action commenced in favor of the said Peter Shaw, against said Jones, for the cause aforesaid. And your petitioner further shows, that John Scott, the guardian of said Peter, has been duly notified of the intention of your petitioner to present this petition to your Honor, and that the same would be so presented on the fourth day of June, 1857, at 10 o'clock in the forenoon, at your office in the city of Troy, and the said guardian approves of the commencement of said action. And your petitioner further shows that Martha Shaw, the mother of said infant, is worth the sum of one thousand dollars over and above all just debts and liabilities and that she is a suitable person to be appointed, and has consented to accept of the appointment of guardian of said Peter, for the purpose of bringing said action. Your petitioner therefore asks that the said Martha Shaw be appointed guardian of the said Peter Shaw for the purpose aforesaid. And your petitioner as in duty bound will ever pray. JAMES SHAW. Dated June 3, 1857. STATE OP NEW YORK, { Rensselaer County. \ ' ' James Shaw, of Berlin, in said county, being duly sworn, say^i, that he has read the foregoing petition, and knows the contents thereof, and that the same is true. JAMBS SHAW. Sworn, &c. The consent of the guardian, and the order making the appoint- ment, are in the same form as above given in the case of an infant over the age of fourteen years, changing the recitals in the order, so as to correspond with the facts stated in the petition in case of an infant under the age of fourteen. The notice to he served on the guardian of, or person with whom said infant resides, in cases where notice is required as above stated, may be in the following form : To John Scott, general guardian of Peter Shaw, an infant under the age of fourteen years. Take notice : That as a relative and friend of said Peter Shaw, 1 intend to apply on the 4th day of June next, at 10 o'clock in the forenoon of that day, to the Honorable George Gould, one of the Justices of the Supreme Court, at his office in the city of Troy, for an order appointing Martha Shaw, the mother of said Peter, his guardian, for the purpose of commencing an action against Thomas Jones, for injuries done to said Peter, by driving over him. Yours, Ac, JAMES SHAW. May 25th, 1857. OP THE APPOINTMENT OP GUARDIANS. 57 Where an action is commenced against an infant defendant, we have seen in a former chapter that if the infant is under fourteen years of age the process is served upon the infant, and also upon the guardian or person having custody of the infant ; if the in- fant is over fourteen years of age he must apply, and if under fourteen, application must be made by a friend who has no adverse interest, in behalf of the infant, for the appointment of a guardian for the purpose of defending the action, within twenty days from the time of the serving of the process by which the action is commenced, or the plaintiff will be at liberty to apply to have a guardian appointed for such defendant. By rule 52, it is made the duty of every attorney of the Court, when appointed for that purpose, to act as the guardian of an infant defendant in any ac- tion or proceeding against him, and by rule 53, unless the gene- ral guardian of an infant defendant is appointed his guardian ad litem, the Court is required to appoint an attorney who has no interest adverse to the infant in the action, and is not connected in business with the attorney or counsel of the plaintiff in the ac- tion. The rule also requires that the person appointed guardian should be of sufiicient ability to answer to the infant for any damage which may be sustained by the negligence or misconduct of such guardian in the defence of the action. The petition for the appointment of a guardian Ibr an infant defendant, should show that an action has been commenced, and the alleged cause of action, the claim made against the infant therein, and the infant's residence, and if he is under the age of fourteen years, should show whether he has a general guardian, and who is the gniardian or person having the custody of the in- fant, and that the proposed guardian is of sufficient abilitj^ to an- swer for any damage the infant may sustain by his neglect or mismanagement. Rules 52 and 53. The petition may be in the following form : SUPREME COURT: John Dob, ) agt. [■ Richard Roe. ) To the Hon. George Gould, one of the Justices of the Supreme Court : The petition of Richard Roe, respectfully shows : That he is an infant under twenty-one and over fourteen years of age, viz : of the age of sixteen years ; that he resides in the city of Troy, in 8 58 OP THE APPOINTMENT OP GUARDIANS. the county of Rensselaer, and is the defendant in the above enti- tled action ; that said action was commenced by the service of a summons and complaint on your petitioner, on the 1st day of June instant, and the complaint claims to recover the sum of one hundred dollars against your petitioner, for goods sold and deliv- ered by the plaintiff to your petitioner. Your petitioner therefore prays that Timothy S. Banker, an attorney and counsellor of the Supreme Court, residing in the city of Troy, may be appointed the guardian of your petitioner for the purpose of defending said action. And your petitioner as in duty bound will ever pray. Dated June 15th, 1857. RICHARD ROE. SUPREME COURT: John Doe, ) agt. j- Richard Roe. ) Rensselaer County, ss : Richard Roe, being duly sworn, says, that he is the defendant in the above entitled action, and has read the foregoing petition, and knows the contents thereof, and that the same is true. RICHARD ROE. Sworn, &c. SUPREME COURT : John Dob, ^ agt. > Order. Richard Roe. ) Whereas, It has been made to appear to me, by the petition of Richard Roe, that he is an infant under the age of twenty-one, and over the age of fourteen years, and that an action has been commenced against him to recover one hundred dollars, for goods alleged to have been sold and delivered to him by the plaintiff in the above entitled action, and that said infant defendant resides in the city of Troy, in the county of Rensselaer. Now therefore, I do hereby appoint Timothy S. Banker, an attorney of the Su- preme Court, residing in^Jie said city of Troy, the guardian of the said Richard Roe, for the purpose of defending the said action. Dated June 18th, 1857. GEORGE GOULD. This order, together with the petition, should be filed in the office of the clerk of the county where the place of trial in said action is laid, and notice thereof should be served on the attorney of the plaintiff, and the defence of the said action must thereafter be conducted in the name of the said Richard Roe, by Timothy S. Banker, his guardian, &c. OP THE APPOINTMENT OP GUARDIANS. 59 The notice may be endorsed on the back of a copy of the order, as follows : Take notice that the within is a copy of an order this day made by the Honorable George Gould, in the within action. Dated, &c. T. S. BANKER, Guard, ad lit. To, &c. , When the infant defendant is under the age of fourteen years, the petition should be substantially in the following form : SUPREME COURT: John Doe, ) agt. V Richard Roe. ) To the Honorable George Gould, one of the Justices of the Su- preme Court : The petition of Jane Roe, respectfully shows, that she is the mother and general guardian of the above-named defendant, Rich- ard Roe ; that said Richard resides with her in the city of Troy, in the county of Rensselaer ; that said Richard is an infant under the age of fourteen, and is six years of age ; that an action was commenced against the said infant in favor of the above-named plaintiff, on the 1st day of June instant, by the service of a sum- mons and complaint on the said infant and on your petitioner as his general guardian ; that said complaint claims to recover from and against the said infant, certain real estate situate in the city of Troy aforesaid. And your petitioner further shows, that Job Pierson of the city of Troy, is an attorney and counsellor of the Supreme Court, has no interest adverse to that of the infant in said action, and is in no way connected in business with the at- torney of the plaintiff in said action, and is of sufficient ability to answer to said infant for any damage which said infant may sus- tain by reason of his neglect or mismanagement. Your petitioner therefore asks that said Job Pierson be appointed the guardian of said infant for the purpose of defending the said action. And your petitioner as in dufy bound will ever pray. Dated June 16th, 1857. JANE ROE. This petition must be sworn to in the same manner as the pre- ceding one, and the order adpointing a guardian, should be in the same form as when the infant defendant is over fourteen years of age, the recitals being changed so as to correspond with the alle- gations in the petition, the order should be filed and notice there- of given in the same manner as directed in the case of an infant over fourteen years of age. 60 OF THE APPOINTMENT OP GUAEDIANB. If the infant or any one in his behalf do not apply within twenty days from the service of the summons or summons and complaint, for the appointment of a guardian, then the plain- tiff in the action may apply for the appointment of a guardian, and the petition for that purpose should contain in addition to the facts set forth in the forms above given, a statement that more than twenty days have elapsed since the service of the summons or summons and complaint and showing particularly the manner of service, and that no guardian has been appointed for said de- fendant in said action, and no step taken for the purpose of hav- ing a guardian appointed therein, by or on behalf of the said de- fendant, and in addition to the petition being verified by the oath of the plaintiff or his attorney, an affidavit must also be present- ed with the petition showing that a notice had been duly served upon the infant if over the age of fourteen years, and if under that age, upon the guardian or person having the legal custody of the infant, informing such infant or guardian that the plaintiff intended to present a petition for the appointment of a guardian of said infant to defend said action, stating the time and place, when and where, and the officer or court to whom such applica- tion would be made. Code, § 116. This notice should be eight days unless the court or officer make an order to show cause, and direct a shorter notice. Code, § 402. The court will then make an order appointing a guardian, for the purpose of defending the action, substantially in the same form as the orders above set forth, and in such case, an attorney of the court is always ap- pointed the guardian of the infant, and the attorney of the plain- tiff should immediately cause a notice to be given to such guardian of his appointment and furnish him with a certified copy of the order appointing him such guardian, although this is not required that we are aware of, either by the code or any judicial decision. The proceedings in the action after the appointment of guardian will be treated of hereafter. ARREST AND BAIL. 61 CHAPTER IX. ARREST AND BAIL. No arrest can now now be made in any civil action, except in pursuance of the provisions of the Code of Procedure, or the act to abolish imprisonment for debt, and punish fraudulent debt- ors, passed April 26, 1831, and the acts amending the same. Code, § 178.i By the section of the Codp above cited, it is expressly enacted that no person shall be arrested in a civil action, except as pre- scribed by this act, and it is nowhere provided by the Code. that any person may, under any circumstances whatever, be ar- rested because he is going to leave the state, no matter what may be the cause of complaint against him ; and yet it has been held that the writ of ne exeat is not, by this broad language abol- ished It seems to us that this is equivalent to deciding that the writ of ne exeat cannot be abolished by any enactment short of using the direct words : JYo writ of exeat shall hereafter be issued in this slate. We cannot thus understand or limit the effect of section 178. We concede that the opinion of Justice Barculo, is entitled to great considteration, but two things are to be remem- bered in reviewing his opinion, in Bushnell v. Bushnell, 7 Pr. R. 389. First, that Justice Barculo had very little respect for any portion of the Code, and secondly, he had under consideration a case where to have ruled that, that writ was abolished, would have been to have aided a brutal and unfeeling husband in esca- ping from answering the just claims of an abused and suffering wife ; and good probably resulted from the human conclusion at which Judge Barculo arrived. Yet we cannot deem it safe to allow our courts the power of legislation even to meet the ex- igencies of hard cases ; and it seems to us that the decision above cited in Bushnell v. Bushnell, and the opinion of Justice Edmonds to the same effect in Forrest v. Forrest, 5 Pr. R., 125, must be considered as repealing the 178th section of the Code. We do not believe those decisions will be sustained or followed. The construction which we have given to the 178th section of the Code, is fully sustained by the decision of the Superior Court of the city of New York in Fuller vs. Emerie and others, 2 Sand. Sup. C. R., 626, in which Judge Sandford in a very clear opinion holds that the writ of ne exeat is abolished by the Code. 62 ARREST AND BAIL. No female can be arrested in any action arisipg upon contract. Code, § 179, Sub., 5: 2 Sand. S. C. R., 729. The defendant in an action founded upon contract, may now be arrested and held to bail in the following cases : In all actions for breach of promise of marriage ; or for money received, or fraudulently misapplied by a public oflacer, or an attorney, solici- tor, or counsellor, or any officer, or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, or other person in a fiduciary capacity. And in actions for any misconduct or neglect in any professional employment ; or where the defendant has been guilty of a fraud in contracting the debt, or incurring the liability for which the action is brought, or where the defendant has removed, or dis- posed of, or is about to remove or dispose of any of his property with intent to defraud his creditors. Code, § 179, Subs. 2, 4 and 5. The cases in which arrests may be made, or at least in which it is desirable to make arrests under the act to abolish imprison- ment for debt, passed in 1831, are ordinarily cases where the ap- plication for the arrest is not made until after judgment in the action,- although such application may be made at any time after the action is commenced. "We shall however consider arrests under that act in another part of this chapter. By the language of the 2d Subdivision of § 179 of the Code, in an action against an attorney for money received, the defendant may be arrested and held to bail. This undoubtedly means money received by an attorney in his official capacity, as such, and applies to any attorney, no matter Avhere he resides, and as this is only a regulation affecting the remedy by which the right is enforced, the defendant cannot set up to shield him from arrest, the law of the State where he resided and where the business was transacted. Should that differ from the law of this State in this respect because the lex loci contractus affects only the right and not the remedy by which that right is enforced. And in Yates V. Blodget, 8 Pr. R. 278, it was held that an attorney of Wiscon- sin who had collected money for the plaintiff in that State and appropriated it to his own use was liable to be arrested and held to bail here in an action for that cause. It has also been held under this subdivision that a director of a corporation might bo held to bail in an action at the suit of a stockholder, for fraudu- ARREST AND BAlt. 63 lently disposing of the corporate property. Cook v. Jewett and others, 8 Pr. R. 19. In Burhad v. Casey, 4 Sand. S. C. R. 707, it is held that one who receives money to deliver to a third person and does not deliver it, may be arrested and held to bail in an ac- tion for the same, on the ground that he is the agent of him from whom he receives the money. An agent is not, in an action against him, liable to be arrested barely because his liability in the action arises from his agency, but he must be an agent of a corporation or banking association ; and the action must be against him for monies received or property embezzled or fraudu- lently misapplied in the course of his employment as such, or it must be for money received by him in a fiduciary capacity. StoU v. King, 8 Pr. R. 298. That portion of section 179 which relates to actions upon contract is in itself so clear and distinct as not to require further remark, except in reference to the ex- pression fiduciary capacity, and the meaning of fiduciary, as used in this section of the Code, we now regard as settled by well con- sidered judicial opinions, the result of which is shortly this. Money to be held by any one in a fiduciary capacity must be held for another without any right to use the same in any manner for his own purposes. It implies a special confidence diifering en- tirely from ordinary business transactions, or rather differing from the ordinary business credit or trust. Stoll v. King, 8 Pr. R. 298. Burhans v. Casey, 4 Sand. S. C. R. 707. Where the object of the arrest is to hold the defendant to bail in the action, the order for the arrest can only be made by a judge of the court in which the action is pending or a county judge. Code, § 180. The term county judge must be understood in this and every other case where it is used in a similar manner, to in- clude within its meaning any local officer elected to perform the duties of county judge, or county judge and surrogate, in any of the counties of this State. Sess. L. of 1851, chap. 108, § 1. Sey- mour V. Mercer, 13 Pr. R. 564. The order must be founded upon an affidavit showing that the plaintiff has a cause of action against the defendant, and what it is for, and that the case comes within the provisions of subs. 2, 4 or 5 of § 179 of the Code, those being the subdivisions in pursuance of which arrests may be made in actions upon contract. In Pindar v. Black, 4 Pr. R. 95, it was held that the affidavit on which to procure an order to hold to bail, need not state either 64 AREEST AND BAIL. that an action had been, or was about to be commenced. And it is with great reluctance and with, we think, very careful exami- nation, that we have ventured to differ with the learned judge who decided that case. Without requiring this statement in an affidavit the sheriff can have no means of ascertaining whether a suit has been commenced or not, and therefore cannot determine whether he is at liberty to arrest the person against whom the order is granted, without having a summons to serve on him at the same time. It appears to us very clear that no judge would understand- ingly grant an order to arrest a person, unless the applicant had commenced or was about to commence an action against him ; and it can be no hardship to require him to state that he intends to do that which it is absohitely necessary he should intend to do. before there can be any substantial reason for his obtaining such an order. He who obtains an order which will authorize the sheriff to arrest a person, without having commenced or intend- ing to commence an action against him is certainly actuated by a weak and silly motive, or by one deserving a worse name, and should not be countenanced whatever may he his design ; and the only way in which a judge can know what is the intention of the applicant, is to require the affidavit to show that the action has or is about to be commenced. We think the legislature in- tended to guard against the allowance of improvident orders of arrest. Why does the Code require the affidavit to show facts sufficient to enable the court to determine that there is a cause of action which comes within the provisions of the 179th section ? Clearly to prevent a plaintiff' who had commenced an action from wrongfully and oppressively procuring the defendants ar- rest when there is really no cause of action, and it would surely be quite as inconvenient to be arrested, although the person pro- curing the defendants arrest might have a cause of action, if he had not commenced, and did not intend to commence one ; and it is no satisfaction to a man thus arrested to be told that seci^ritv has been given to pay him the damage caused by the arrest. If the application is made before the service of this summons the affidavit should not be entitled and should be in the following form. Code, § § 179, 181. ARREST AND BAIL. 65 STATE OP NEW YORK, S Rensselaer County. I ^^' John Stone being duly sworn, says, that he resides in the city of Troy, in the county of Rensselaer, and that he has a cause of action against James Smith for five hundred dollars, for money received by said Smith as the agent of deponent in the business of selling sheep and cattle, for and on account of this deponent, which money said Smith had no authority to use in any manner, or to do anything with, other than to receive and pay it to deponent, and this deponent has called on said Smith and demanded a set- tlement on account of the monies so received by him as such agent, and the payment thereof to this deponent ; that he admits that he has received the said sum of five hundred dollars, as such agent, but has hitherto neglected to pay the same or any part thereof to deponent, and deponent is about to commence an ac- tion for the cause aforesaid against said Smith, in the Supreme Court. JOHN STONE. Sworn, &c. This affidavit will of course be varied according to the circum- stances of each particular case. If the action has been commenced the affidavit will state that fact, and that it is still pending, and in each case the affidavit should be entitled in the action. The facts to bring the case within the provisions of the 179th section must be stated posi- tively, except as to those provisions where the fact can only be established upon information and belief. For instance, a man's intention to leave the state, or remove his property therefrom, with intent to defraud his creditors. This intention can only be proved, upon information, and in such case the affidavit will of course be upon information and belief ; and this information and belief of the person making the affidavit is not sufficient alone. The affidavit should also show from whom the information is re- ceived, and what it is, that the court may judge whether it fur- nishes sufficient evidence to warrant the belief of the fact ; and if it does furnish any evidence for the judge to pass upon, his de- cision is like the finding of a jury upon a question of fact, con- clusive. Coulter V. McNamara, 9 Pr. R., 225. Whitlockv. Roth, 5 id. 143. Before the judge makes an order for the arrest of a defendant, a written undertaking must be made by the plain- tiff, with or without sureties, as the judge shall direct, to the effect that if the defendant recover judgment in the action, he will pay all costs that may be awarded to such defendant in said action, and all damage which the defendant may sustain in con- 9 66 ARREST AND BAIL. sequence of the arrest, not exceeding the sum mentioned in the undertaking, which must be at least one hundred dollars ; and we should think from the language of the section, the judge ma^, in his discretion, require the undertaking to be in a greater sum than one hundred dollars. If the plaintiff alone make the under- taking, he must attach to it an affidavit that he is worth over and above all just debts and liabilities, a sum at least double the amount mentioned in the undertaking. Code, § 182. If sureties are required, they must justify, and the bond or undertaking must be acknowledged. Rule 72. The Code requires this undertaking in all cases, to be executed by the plaintiff. There are however two cases where the plain- tiff cannot enter into an undertaking. First, when the plaintiff is an infant, and secondly where a feme covert sues in relation to her sole estate. Richardson v. Craig, 1 Duer 666. In the case above cited Judge Duer inclines to the opinion that the guar- dian, (then "next friend,") of an infant plaintiff, may sign the un- dertaking instead of the infant, he being the person by whom the infant sues, and he applies the same rule to a married woman. But since the amendments of 1857 to the Code, a married woman need not sue by guardian or next friend, in any case. Code, § 114. How then is a plaintiff, feme covert, to hold a defendant to bail ? She may join her husband as plaintiff. But suppose a case where for any reason it is improper, or inexpedient to have him joined. This certainly presents a case for which the Code has made no provision, and it does not appear to us that the court has power in such cases to make an order of arrest. In the notes to § 182, in Voorhies' Code it is said that if this undertaking is irregular the irregularity cannot be cured by sub- stituting a new one, because the undertaking is required to be given before the order is granted. We incline to doubt the soundness of this proposition. In Fitch v. Fitch, 18 Wend. 513, it was held that a next friend for an infant plaintiff might be ap- pointed after the commencement of the suit, although by statute it "as expressly required that the appointment should be made before the capias was issued. This would seem to be directly in point, for allowing a bond to be given after the order to hold bail was made, and we can see no reason why a defect in the under- taking required by § 182 of the Code, should not be cured by making a new one after the order to hold to bail has been made. See ante chap. 8th. ARREST AND BAIL. 67 The undertaking should be in the following form : Whereas, John Stone has this day made application to the Hon- orable George Gould, one of the Justices of the Supreme Court, for an order to arrest James Smith, in an action about to be com- menced by said Stone against said Smith, in the Supreme Co^irt. Now therefore in consideration that the said Justice shall grant the said order, I, the said John Stone, do hereby undertake that if the said James Smith shall recover judgment in said action, I will pay all costs that may be awarded to the said defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum of one hundred dollars. Dated July 2, 1857. JOHN STONE. The affidavit attached to this undertaking should be in the fol- lowing form : STATE OF NEW YORK, ( Rensselaer County. ^ ^^' . John Stone being duly sworn, says, that he is the person who executed the undertaking hereunto attached, and that he is worth the sum of two hundred dollars, over and above all just debts and liabilities, and that he resides in the city of Troy, in the county of Rensselaer, and is a householder in said city. Sworn, &c. JOHN STONE. The order should be in the following form : To the Sheriff' of the County of Rensselaer : You are hereby required forthwith to arrest James Smith, de- fendant, and hold him to bail in the sum of one thousand dollars, in an action in favor of John Stone against him, and that you re- turn this order with your doings thereon, to the office of John B. Kellogg, attorney for the plaintiff, No. 229 River Street, in the city of Troy, within five days from the arrest of the said defendant by you. ■ GEORGE GOULD. Dated July 2, 1857. This order may be made to accompany the Summons, or at any time aftei'wards, before judgment. Code, § 183. It must be de- livered to the sheriff, together with the affidavits iipon which it is founded, and the sheriff, on arresting the defendant, must de- liver to him a copy thereof. Code, § 184. By § 183, of the Code, the order must contain a command to the sheriff that he return it to the plaintiff or his attorney, at a time to be therein specified and by rule 87 of the Supreme Court, he is required to file the affidavit with the clerk within ten days after the arrest. This undoubtedly means the clerk of the county in which the arrest is 68 ARREST AND BAIL. made, aild if this happens to be any other than that where the place of trial is laid in the action, the plaintiff must have it transferred, if necessary, to the ofiSce of the clerk of the proper county by an order of the court. We conclude the sheriff should file it in the county where the arrest is made, from the fact that in most cases where the order of arrest is made after the com- mencement of the action, the sheriff will not have in his hands any thing by which he can ascertain in what county the place of trial is laid. The order is executed by the arrest, by the sheriff, of the de- fendant, and keeping him in custody until legally discharged ; and for this purpose the sheriff may call to his aid, the power of the county, as in the service of process. Code, § 185. Until legally discharged, as used in this section, means until the order of arrest shall be vacated, or the defendant shall have given bail in obedience to its requirements, or shall have deposited with the sheriff the amount mentioned in the order of arrest. Code, § § 186, 197, 204. The manner in which bail is given and perfected in actions upon contract is as follows : The defendant procures an under- taking to be made " to the effect that the defendant shall, at all times during the pendency of the action, render himself amena- ble to the process of the court, and to such as may be issued to enforce the judgment therein." Code, § § 187, 194. This under- taking must be signed by two suf&cient bail, each of whom must be householders or freeholders of the state worth at least the sum mentioned in the order of arrest. lb. This undertaking may be in the following form : Title of cause. Whereas, C. D., the above named defendant, has been arrest- ed by the sheriff of the county of Rensselaer, on an order of arrest in the above entitled action: now, therefore, in order to have the said C. D. released from said arrest, and in con- sideration thereof, we, the undersigned, E. F. and G-. H., both of the city of Troy, in said county, merchants, hereby undertake that the said defendant C. D. shall, at all times render himself amenable to the process of the Court, during the pendency of said action, and to such as may be issued to enforce the judgment therein. Dated, &c. (Signed,) E. F. Code, § 187. G. H. AREBST AND BAIL. 69 This undertaking must be acknowledged and delivered to the sheriiF. For form of acknowledgment see ante p. 36. It is not necessary for bail to the sheriff on the arrest, to jus- tify, unless excepted to. The sheriff at the time he returns the order of arrest to the plaintiff, or his attorney, must also return a certified copy of the undertaking of the bail, and his return must be endorsed on the order. If the plaintiff do not, within ten days thereafter, serve a notice on the sheriff that he does not accept the bail, he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability. Code, § 192. This notice may be in the following form : Title of cause. To William Wells, sheriff of the county of Rensselaer : You will please take notice that the plaintiff does not accept of the bail taken by you, on the arrest of the defendant in this action. Yours, Case. CD.) Eensselaeb County, ss :— Whereas the above-named A. B. and C. D. disagree as to their rights in relation to the sum of one thousand dollars, upon the facts stated in the following case, namely : 162 OF SUBMISSIONS WITHOUT ACTION-. Heretofore and iu May, 1856, the above-named plaintiff, A. B., consigned to one E. ¥., of the city of Troy, a large quantity of corn to be sold by the said B. P., on account of the said A. B., on commis- sion, and without authority to sell on credit. About the first of June, 1856, B. F. sold the said corn for a price which amounted to one thousand dollars, over and above the commissions and charges of the said E. P. ; at the same time of this sale, E. P. also sold to G. H. other grain which belonged to the said B. P., to the amount of two thousand dollars, and took a note of the said Gr. H., payable on the first day of September, 1856, for the whole amount of the sales made to G. H., on the said first day of June, being three thousand dollars ; on the first day of July, 1856, B. P., being insolvent and unable to pay his debts, made an assign- ment to the said C. D., for the benefit of his creditors, giving pre- ferences, and the said note given by the said G. H., for three thou- sand dollars, came into the possession of the said C. D., by virtue of said assignment. On the first day of August, 1856, A. B. gave notice to the said C. D. and Gr. H., of the above facts, and gave notice to the said G. H., that he should claim that one thousand dollars of the said note was due to him for the corn sold, and that the said Gr. H. was liable to him for that amount, and could not discharge such liability by paying the said one thousand dollars to the said C. D., upon said note. At the maturity of the said note for three thousand dollars, Gr. H. paid two thousand dollars thereon to the said 0. D., and the said Gr. H. is ready to pay the remaining one thousand dollars to whoever is entitled to receive the same. The said A. B. claims that he is entitled to the said note and to receive the pay thereon, and the said C. D. claims that he is entitled to the same. Now, therefore, in order to settle the said controversy, it is here- by agreed, between the said A. B. and C. D., to submit, upon the above facts, the question, whether the said A. B. or the said C. D. is entitled to the said sum of one thousand dollars, to the Su- preme Court for decision, according to the provisions of § 372 of the Code of procedure ; and if the Court shall decide that A. B. is entitled to receive the said sum of one thousand dollars, then the Court shall give judgment that the said C. D. deliver the said noto to the said A. B., and that the said A. B. be authorized to collect and receive the amount due thereon ; otherwise that the said 0. D. retain and collect the said note. A. B., C. D. Dated, September 1st, 1856. The affidavit of good faith, required by § 372 of the Code should be filed with the papers ; and the most convenient prac- tice is, to draw it upon the case and submission, in which case it should be in the following form : OF SUBMISSIONS WITHOUT ACTION. 163 STATE OF NEW YOEK, PATE OF NEW YOEK, ) Kensselaer County. j A. B., being duly sworn, says, that he is one of the parties named in the within submission, and that the controversy therein men- tioned is real, and the proceeding in good faith to determine the rights of the" parties. A. B. Sworn, &c. ■'J The entitling of the case and submission is in accordance with the practice adopted in Van Sickle v. Van Sickle, 8 Pr. E., 265, and in Beach v. Forsyth, 14 Barb., 499 ; and although the Code says it is a proceeding without action, it certainly is a proceed- ing in the nature of an action and may well be entitled, and there should be something to indicate the county in which papers should be filed. The case thus prepared must be brought to argument at a Gen- eral Term, for which purpose any party to the proceeding may notice the same and place it upon the calendar, the date of the issue being the date of the submission, and, upon the argument, the papers must be furnished by the party named as plaintiff in the entitling of the case and submission, and he ought always to be the party holding the af&rmative of the principal issue made by the case and submission. These papers should be a printed copy of the case, the submis- sion and the afiidavit of good faith. This affidavit should be made a part of the papers, to show that the Court have the case regularly before them, in accordance with the provisions of the Code. Three copies of such printed papers must be delivered to the attorney of the adverse party, at or before the time of noticing the case for argument. At the commencement of the argument, he must furnish to each of the judges a printed copy of said pa- pers, together with a printed copy of the points upon which he intends to rely, with a reference to the authorities which he in- tends to cite. At the commencement of the argument, each party must also serve upon his adversary a printed copy of his points, citing the authorities on which he intends to rely. We borrow the above from the practice in cases of appeal to the General Term as regulated by Eule 29, by the last clause of which Eule it is made the duty of the plaintiff to furnish the necessary papers for the argument in this proceeding. Should a case occur when the party, whose duty it would be, by 164 OP SUBMISSIONS Without action, the practice above suggested, to furnisli the papers for the argu- ment, fails to do so, we should recommend that the opposite party apply to the Court for instruction as to the manner in which he should get the case before them, as the Court, by § 372 of the Code, are not authorized to render judgment until after hearing the case. The language of the Code in this respect is : " The Court shall thereupon hear and determine the case, at a General Term, and render judgment thereon, as if an action were depend- ing." The authority to render judgment is clearly after hearing. This hearing may undoubtedly be ex parte, when either side shall neglect to appear at a time when the case can properly be brought to -argument ; but we think the judgment must be upon the de- cision of the Court of the question of law involved in the case, after an examination of the facts upon which such question is raised. Perhaps the Court would allow the defendant, in such case, to hand up a written copy of the case and submission, to- gether with printed copies of his points with the authorities cited thereon, and decide the question and render judgment upon an ex parte hearing, without the furnishing of any other papers. The judgment entered in such case is enforced and may be appealed from in the same manner as a judgment rendered in an action. Code, § 374. "When the Court have made their decision upon the question submitted, the attorney of the party in whose favor it is decided draws up the judgment, in form, which, when approved by the Court, is filed with the clerk and forms a part of the judgment roll. Code, § 373. This may be in the following form : At a General Term of the Supreme Court, held at the City Hall, in the city of Albany, on the first Monday of September, 1857. Present — Harris, Gould and W. B. Wright, Justices. A. B.l agt. \ C. D.) This case having been brought to argument upon the case and submission made therein, according to the provisions of section 372 of the Code, and due deliberation having been thereupon had. In pursiiance of the power and authority conferred by the OF JUDGMENTS BY CONFESSION. 165 statute, in sucli case made and provided, judgment is hereby ren- dered against the defendant, C D., that he deliver to the said A. B., the plaintiff herein, the promissory note made by G: H., on the first day of June, 1856, for the sum of three thousand dollars, and delivered by him to E. F., and by the said E. E. assigned and delivered to the said 0. D. ; and the said A. B. is hereby authorized to collect and receive the sum of one thousand dollars now due upon said note. And it is further adjudged that the said A. B. recover against the said C. D. the interest upon the sum of one thousand dollars, from the first day of September, 1856, until the time of the entering of this judgment, together with the costs of this proceeding, to be adjusted by the clerk according to the practice in actions in this Court : such interest and costs to be paid out of the avails of the property in the pos- session of the said 0. D., as assignee of E. E. The costs in such case we presume will be the same as the costs upon an appeal from the judgment of a single judge to the Gen- eral Term. This should, however, be the costs from the time of notice of argument, including the printing of the papers. CHAPTER XXII. OF JUDGMENTS BY CONFESSION. A judgment by confession may be entered, without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by chapter 3 of the Code. A statement in writing must be made, signed by the defendant, and verified by his oath, to the following effecft : 1. It must state the amount for which judgment may be en- tered, and authorize the entry of judgment therefor. 2. If it be for money due or to become due, it must state con- cisely the facts out of which it arose, and must show that the sum for which the same is confessed is justly due or to become due. 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show that the sum for which the confes- sion is made does not exceed the same. 5 166 OF JUDGMENTS BY CONFESSION. The statement may be filed with a County Clerk, or with the Clerk of the Superior Court of the city of New York, who shall endorse upon it, and enter in the judgment book, a judgment of the Supreme or said Superior Court, for the amount confessed, with five dollars costs, together with disbursements. The state- ment and affidavit, with the judgment endorsed, shall thenceforth become the judgment roll. Code, § § 382, 388, 384. The intention of the Legislature, in requiring a concise state- ment of the facts out of which the demand, for which a judgment is to be confessed, arose, undoubtedly was, to prevent fraud by having such a statement of facts given as would enable any party, interested in the question, easily and fully to examine the facts relating to any claim for which a judgment should be confessed. It has been held, under section 883 of the Code, that a state- ment, that the consideration of the debt for which a judgment was confessed was a promissory note, was not a concise statement of the facts as required by that section. Chapel v. Chapel, 2 Kernan, 216. Gardiner, Chief Justice, in that case, remarks that " the creditors are entitled to the facts out of which the indebtedness arose. The judgment debtor has simply stated a note. This, at best, even between the parties to the instrument, is but presumptive evi- dence of a debt. The maker did not become indebted by the mere execution of a written promise to pay money. His obliga- tion arose out of facts dehors the instrument, and antecedent to or accompanying its execution. A promissory note, without con- sideration, binds no one. In this case we are informed, by the affidavits read in opposition to the motion, that' there was a loan of money. The loan, if the fact is so, created the obligation ; and the note was given as presumptive evidence of the debt, and as a means of enforcing its payment. The statute, however, looks not to evidence of the demand, but to the facts in which it origin- ated; in other words, to the consideration which sustains the promise. The law requires this to be concisely set forth in the statement which is to form a part of the record ; find in this way only does the provision furnish any additional security to cred- itors against a fraudulent combination of the parties to the judg- ment The statute demands this construction, to save it from the imputation of making a capricious change in the existing law without any reason or object whatever ; for, if the provision under OF JUDGMENTS BY CONFESSION. 167 consideration can be satisfied by a reference to an instrument, which is but evidence of a debt, it is not only nugatory, but absurd, inasmuch as the judgment itself, without any statement, would furnish conclusive evidence of the same fact." And Dean, Justice, in the same case says : " By a reference to the statement in the case, it will be found to be that the debt arose out of two promissory notes, without any allegation even that the defendant is the maker or the plaintiff the holder, except the inference that may be drawn from the statement that a certain amount is due on the notes from the defendant to the plaintiff. But does any one know from this out of what the debt arose ? Were the notes given for work and labor, for goods, wares and merchandise, for money loaned, or were they made by the defend- ant and given to the plaintiff without any consideration ? No one can determine, from anything contained in this statement of facts, for what the notes were given ; nor could the defendant be con- victed of perjury if he had made the notes, and as a voluntary gift handed them to the plaintiff, and then made this statement. The Legislature, when it adopted this section, requiring a sworn statement of the facts out of which the debt arose, surely did not intend to adopt language which could be so easily evaded as to permit a statement, which conveys no information to a person reading it, to be the foundation of a judgment by confession. Gn the contrary, the intention of this requirement was, to compel the person confessing a judgment to disclose under oath, which oath was to become a part of the public records, what was the real consideration of the judgment confessed, and to show to all in- terested the transaction out of which the debt originated. Thia is the only conclusion I can draw from the language employed, and seems to me to be its fair and legitimate interpretation. I do not, therefore, deem it necessary to quote the report of the com- missioners of the Code to show what they intended by presenting this section. But even if the language of this section is ambigu- ous, it is the duty of the Courts so to construe it as to remedy rather than perpetuate an evil, to accomplish rather than frustrate the end for which it was adopted. I am of opinion, therefore, that the language and obvious intent of the statute, as well as public policy, require us to hold this judgment void." This case must be regarded as settling the law so far aa the statement in that case goes, which was, that the indebtedness arose 168 OF JUDGMENTS BY CONFESSION. upon a promissory note, and the decision holds, that when the judgment confessed is for a promissory note, the consideration of the note must be particularly set forth. And we think the result of the decisions under this section of the Code is, to establish the following rule : that whether the judgment is for a debt, due or to become due, the statement must show when' the debt was con- tracted or liability incurred, and for what, and whether any por- tion of it had been paid or satisfied, and, when ; and, if for goods sold and delivered, by whom and to whom the same were sold, 30 as to show how the party confessing the judgment became lia- ble therefor to the person to whom the confession was made : and if for a liability, for what and to whom the liability was incurred, so that any person interested therein may be enabled to discover the probability of the good faith of the transaction. Bonnell agt. Henry and others, 13 Pr. R, 142. Gandal v. Finn, lb., 418, in which Justices Harris and Eosekrans careftiUy examine and consider the legal effect and meaning of § 383 of the Code. See also Hoppock v. Donaldson, 12 Pr. E., 142, where Justice Bacon carefully reviews all the previous cases on this subject. The statement required by § 383 of the Code should be sub- stantially as follows : SUPEEME COUET. A. B. ) agt. > Statement required by tlie Code on confession. CD.) Eensselaek County, ss: C. D. To A. B., Dr. To one promissory note, dated May 1, 1855, payable ) ^onn nn six months from date, for \ ^'^^^ ^^ The above note was given for a horse sold by the said A. B. to the said C. D. for the sum of two hundred dollars, on the day of the date of said note. To balance due on account for goods sold by the said ) c-nn nn A. B. to the said C. D ( ^^^ 00 Said goods were sold as above-mentioned by the said A. B. to the said C. D., at the store of the said A. B., in the city of Troy, and consisted of liquors which were received by the said C. D. at the several times they were purchased, and used by him in his hotel, in said city, and the same were all delivered at dif- ferent times, between the first of September, 1855, OF JUDGMENTS BY CONTESSION. 169 and the first of September, 1856, during which time the amount of liquors so sold by the said A. B. to the said C. D. was $1,250 00. And between the first of January and the first of September, 1856, the said C. D. paid to the said A. B., on the above account, af different times, sums of money in small amounts, amounting in all to $750 00. And the said A. B. claims interest on the said bal- ) ance of account from the first of November, 1856, [ 17 50 which is six months And interest on said note from the time it be- came due ' 1 21 00 $738 50 The above sum of seven hundred and thirty-eight dollars and fifty cents is actually due from me to the said A. B., for the con- sideration above stated, and I hereby authorize the said A. B. to have a judgment entered therefor against me, in pursuance of § § 382, 388 and 884 of the Code. Dated May 1, 1857. C. D. STATE OF NEW YORK, ) ,„ Rensselaek County, ]" C. D., being duly sworn, says, he is the person who signed the above statement of account and that he is justly indebted to the said A. B. in the sum of ^ seven hundred and thirty-eight dollars and fifty cents therein mentioned, and that the said statement and every part thereof is in every respect just and true. Sworn, &c. C. D. The foregoing statement and affidavit should be filed with the Clerk of the County named in the entitling of the papers, who will make an endorsement thereon, in substance as' follows : SUPREME COURT. Rensselaer County, ss :-0n filing the within statement and affi- davit, I, John P. Ball, Clerk of the county of Rensselaer, pursuant to the power and authority conferred on me by § 884 of the Code of Procedure, do hereby endorse hereon the judgment of the Court as follows : It is hereby adjudged that the said A. B. recover, against the said C. D., the sum of seven hundred and thirty-eight dollars and fifty cents, with five dollars costs and one dollar and 170 OF LIQUIDATING DAMAGES. fifty cents disbuTsements, amotinting in the whole to seven hun- dred and forty-five dollars. JOHN P. BALL, Clerk. The usual affidavit of disbursements must be made and filed, and the Clerk dockets the judgment; the statement, affidavit and endorsement thereon, constituting the judgment roU, and execu- tion is issaed thereon, and enforced in the same manner as upon any other judgment of such Court. When the judgment is for a debt payable by installments and the installments are not all due, execution may be issued for them respectively, as they become due. Code, § 384. CHAPTER XXIII. OF LIQUIDATING DAMAGES. Section 386 of the Code is in the following words : " In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that, if he fail in his defense, the damages be assessed at a certain specified sum ; and if the plaintiff specify his acceptance thereof in writing, with or be- fore the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly." The above section must undoubtedly be understood as, applying to cases where the defense interposed by the answer is an entire defense to every cause of action containedin the complaint. And where the cause or causes contained in the complaint are of a nature requiring an application to the Court, before the relief sought by the complaint can be obtained ; in other words, where the damages are unliquidated. It is true, the language of the sec- tion is broad enough to cover all actions arising upon contract ,' but we think, in actual practice, it will be of but little use, except jn cases coming within the limit above prescribed. In all other cases, the offer to compromise, under § 385 of the Code, will, as a general rule, afford the defendant all the relief he needs by way of offer to his adversary; and under § 386, without waiving the right to his defense, where such defense as above suggested is entire, he may by an offer to liquidate the damages, in case his defense fail OF LIQUIDATING DAMAGES. 171 compel the plaintiff to elect to accept, in case he recover at all, the damages thus offered, or to pay the defendant, if he recover a less sum, the expenses of preparing to reduce the damages at the trial, as provided by § 387 of the Code. If the plaintiff elects to accept the offer and recovers at the trial, he is entitled to a ver- dict for the amount of damages offered by the defendant. Code, § 386. From this it appears that, when the offer is accepted, the plaintiff is relieved from giving evidence upon the subject of dam- ages, the amount being fixed by the offer and acceptance, and it would seem that the only question for the jury, in such case, would be, whether the proof in the action sustained the defense set up in the answer ; for it is hardly to be supposed that a defend- ant would serve a stipulation upon the plaintiff, that he might re- cover a certain amount in damages in case the defense was not sustained, in an action where, by his answer, he required the plain- tiff to prove his cause of action. Indeed, the offer, if made in pursuance of the Code, will not admit of a construction which would require the plaintiff, accepting the offer, to give any evi- dence whatever upon the trial, except rebutting evidence given to meet and overcome the proof made by the defendant in support of his defense ; for the Code requires the offer to be, that the plaintiff may recover a certain amount of damages, if the defend- ant fail in his defense. The offer is not, it will be observed, if the plaintiff prove a cause of action and the defendant fail to defend against it, but it is, if the defendant fail to defend, clearly showing that the intention of the Legislature was, that the effect of the offer and answer (where the offer was accepted) was, to admit the cause of action set up in the complaint and the damages sustained thereby, to the amount specified in the offer. This would seem to throw the onus prohandi upon the defendant at the trial and to give him the affirm- ative of the issue ; and, as the Code and the present rules have not changed the practice in this respect, the former practice must be followed. Code, § 469. And by the former practice, where the de- fendant held the affirmative, he- not only opened the case, but made the closing argument in submitting the cause to the jury. In this case, therefore, the defendant would be entitled to open and close in the same manner as the plaintiff ordinarily does upon a trial, whether before a court or jury. Gra. Pr., 250, 8 Car. & Payne, 474, 505. The offer, on the part of the defendant, to liquidate the dam- 172 OF LIQUIDATING DAMAGES. ages, can only be made at the time of answering, and must be served with the answer. This offer may be in the following form : SUPEEME COUET. A. B.l agt. [ C. D.j Take notice, that the above-named defendant hereby offers that if he, the defendant, upon the trial of this action, fail in his de- fense, the plaintiff may have the damages assessed at the sum of one hundred dollars. Dated, &c., Yours, &o., J. D. WHITE, Att'y for Deft. To G. EoBERTSON, Jr., Esq., Att'y for Pl'ff. If the plaintiff accept, he is required to signify such acceptance with, or before, notice of trial. In any other place but the Code of Procedure this would probably have been written, must serve notice of acceptance on the defendant with, or before, notice of trial. This notice may be in the following form ; SUPEEME COUET. A. B. agt. C. D.. Take notice, that the above-named plaintiff hereby accepts the offer of the defendant, if he fails in his defense on the trial of this action, to liquidate the damages of the plaintiff therein, to be as- sessed at the sum of one hundred dollars. Dated, &c., Yours, &c., G. EGBEETSON, Jr., Att'y for Pl'ff To J. D. White, Esq., Att'y for Deft. CHAPTEE XXIY. OP PEOCEEDINGS AGAINST THE HEIRS AND THE TENANTS OP A DECEASED JUDGMENT DEBTOR, AND AGAINST ONE OR MORE JOINT DEBTORS, NOT SERVED WITH PROCESS. Where a judgment has been entered against several joint debtors, process having been served upon only a part of them, in OF LIQUIDATING DAMAGES. 173 pursuance of tlie first subdivision of § 136 of the Code, those who were not served with process may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned. Code, § § 136 and 875! In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or the ten- ants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary or of administration upon the estate of the testator, or intestate, be summoned to show cause why the judg- ment should not be enforced against the estate of the judgment debtor in their hands respectively, and the personal representatives of a deceased judgment debtor may be so summoned, at any time within one year after their appointment. The summons provided for in the cases above-mentioned must be subscribed by the party or his attorney ; must describe the judgment and require the person summoned to show cause within twenty days after service, and must be served in the same man- ner as the original summons in an action. Code, § § 376, 377. This summons against joint debtors may be in the following form: SUPREME COURT. • Rensselaer County, ss : To the above-named C. D. : Whereas, judgment was recovered in favor of the above-named A. B., against the above-named C. D. and one B. F., as joint debtors, the said B. F. only having been served with process, in the Supreme Court, for the sum of one thousand dollars damages and fifty dollars costs, which was docketed in the office of the Clerk of the county of Rensselaer, on the first day of May, 1857. You are therefore hereby required, within twenty days after service of this summons upon you, to show cause by answer, to be served upon the subscriber, at his ofiice, at the corner of Second and Congress streets, in the city of Troy, why you should not be bound by the above-mentioned judgment, in the same manner as if you had been originally served with process in the action in which said judgment was recovered. Dated, &c. J. ROMBYlSr, Att'y for Prfif. 174 OF LIQUIDATING DAMAGES. The above form of summons is only applicable to the case of bringing in one or more joint judgment debtors, not served with process in the original action. Where the defendant in the sum- mons is the heir, devisee, or legatee of a deceased judgment debtor, the summons should be substantially as follows : SUPEEME COURT. A. B. ) agt. V Rensselaer County, ss : G. H. ) To the above-named G. H. Whereas, judgment was recovered in favor of the above-named A. B., for the sum of one thousand dollars damages, and one hundred dollars costs, in the Supreme Court, against one C. D., in his lifetime, since deceased, which was docketed in the ofiSce of the Clerk of the county of Rensselaer, on the tenth day of May, 1854, and more than three years have elapsed since the issuing of letters of administration upon the estate of the said C. D., deceased. You are, therefore, hereby required, within twenty days after the service of this summons upon you, to show cause by answer, to to be served upon the subscriber, at his of&ce, in the city of Troy, why the above described judgment should not be enforced against the estate of the said 0. D., deceased, in your hands, as heir-at- law (or as the case may be) of the said C. D., deceased. Dated, &c. G. STOW, Pl'ff's Att>. If the proceeding is against executors or administrators, it must be borne in mind that it must be commenced within one year from the time of their appointment, and the above form will be sufficient to direct the practitioner in instituting the above pro- ceeding against the personal representatives of a deceased debtor. The summons in the above cases must be accompanied by an affidavit that the judgment has not been satisfied, to the know- ledge or information and belief of the person making the same, specifying the amount due thereon, and this affidavit must be made by the person subscribing the summons, who will usually be the attorney of the plaintiff, as summonses are ordinarily signed by the attorney and not the party. Code, § 378. This affidavit must be served upon the person to whom the summons is addressed, at the time of the service of the summons. The affidavit is served by delivering to and leaving with the per- son, upon whom service is to be made, a copy of the said affidavit, OF LIQUIDATING DAMAGES, 175 whicli may be in the following form, and should be attached to the summons : STATE OF NEW YOEK, ) Eensselaeb County. j ' Gardiner Stow, being duly sworn, says, that he is the attorney for the plaintiff in the annexed summons named, and the person •who subscribed said summons, and that the said judgment has not been satisfied, to his knowledge, or information and belief) and that the amount now due thereon is one thousand one hun- dred dollars, besides interest from the tenth day of May, 1854. Sworn, &c. G. STOW. When the party summoned is an heir, devisee, legatee, or per- sonal representative of a deceased debtor, he may by his answer deny the judgment, and may also set up any defense which arose subsequent to the recovery of the judgment ; and where he is a joint debtor, not served with process in the original action, he may also set up any defense which he might have made in the orig- inal action, had he been served with process or appeared and defended, except the statute of limitations. Code, § 379. After the answer, the same proceedings may be had, down to issue, trial and judgment, as are had in an action. Code, § 380. The judgment may be enforced by execution, or the application of the property charged to the payment of the judgment may be compelled by attachment. Code, § 380. The pleadings must be verified in the same manner as in an action. Code, § 381. The attachment by which the application of property to the satisfaction of the judgment is compelled, is against the person of the party, and should be made returnable upon the first day of a Eegular Term of the Court, unless issued during the sitting of the Court, when it may be made returnable at a subsequent day of the Term. If made returnable at a General Term, the return should be upon one of the days appointed for hearing motions, viz. : Monday or Thursday of the first week, or Friday of the second week of such Term. The application for an attachment in such case should be founded upon an affidavit, showing that the party sought to be attached has property of the deceased judgment debtor, which is liable to be, and of right should be, applied towards the satisfac- tion of the judgment mentioned in the proceeding, and which can- 176 OF LIQUIDATING DAMAGES. not be reached by execution, stating the reason why. If a copy of the affidavit together with a notice of the motion is served upon the party, according to the regular practice of the Court, the at- tachment would probably, as a general rule, be granted in the first instance ; but if the motion be ex parte, the Court will grant an alternative order, that the defendant in the motion apply the property, specified in the affidavit, towards the satisfaction of the judgment, or show cause, at the next Special Term of the Court, why an attachment should not issue against him. The affiditvit, on which to found this application, should be in the following form : SUPEEME COUET. Rensselaer County, ss : — A. B., being duly sworn, says, he is the plaintiff above-named, and that he recovered a judgment against C. D., in his lifetime, since deceased, for one thousand one hundred dollars, damages and costs, which was docketed in the office of the Clerk of the county of Eensselaer, May 10, 1854, and after the decease of the said C. D., and more than three years after letters of administration were issued upon his estate, proceed- ings were instituted by deponent against the above-named G. H., in pursuance of the provisions of § 376 of the Code of Procedure, and such proceedings were thereupon had, that this deponent re- covered a judgment of this Court against the said Gr. H., that the judgment so recovered against the said C. D., as aforesaid, be en- forced against the estate of the said C. D., deceased, in the hands of the said Gr. H., as heir-at-law of the said C. D., deceased. And de- ponent further says, that the said G. H., as heir of the said C. D., as aforesaid, received the avails of a farm, situate in the town of Brunswick, in the county of Eensselaer, which was part and par- cel of the estate of the said C. D., in his lifetime, said farm having been sold by the foreclosure of a mortgage, executed by the said C. D., in his lifetime, and the surplus moneys arising from said sale, after satisfying the said mortgage and the costs and expenses of foreclosure, were paid to the said G. H., as heir of the said C. D., to the amount of three thousand dollars, which the said G. H. refuses to apply in satisfaction of the said judgment, and which cannot be reached by execution thereon. A. B. Sworn, &c. Upon this affidavit the Court will grant an alternative order, which may be in the following form : OF LIQUIDATING DAMAGES. 177 At a Special Term of the Supreme Court, held at the City Hall, in the City of Albany, on the 29th day of September, 1857, Present — D. Wright, Justice. On reading the affidavit of A. B. above-named, whereby it ap- pears that the said A. B. recovered a judgment against C. D., in his lifetime, for the sum of one thousand one hundred dollars, and that C. D. is deceased, and that letters of administration were issued upon his estate, more than three years before proceedings were commenced against the above-named Gr. H., as heir of the said C. D., pursuant to the provisions of § 376 of the Code, and that such proceedings have been instituted and judgment of this Court obtained, directing the said judgment against the said C. D. to be enforced against the estate of the said C. D., in the hands of the said Gr. H., and that the said estate cannot be reached by execu- tion upon the said last-mentioned judgment. On motion of Gr. Stow, attorney for the plaintiff: Ordered, that the said Gr. H. sat- isfy the said judgment, out of the estate of the said C. D., in his hands, or show cause at the next Special Term of this Court, to be held at the Capitol, in the city of Albany, on the last Tuesday in October, 1857, at ten o'clock in the forenoon of that day, why an attachment should not issue against him, for contempt in refusing so to apply the said estate. The application for this order may probably be made to, and the order be granted by, a judge at chambers, where the application is not made on notice. Upon the return of the alternative order, if no cause be shown to the contrary, the Court will order an attachment to issue against Gr. H. for contempt, in not applying the estate of the said C. D., in his hands, in payment of said judgment. This order will be in the same form as the alternative order, except that it will be an absolute order that an attachment issue. This order will be entered in the same manner as other orders granted by the Court. The attachment should be substantially in the following form : The People of the State of New York to the Sheriff of the Coun- ty of Eensselaer, greeting : We command you that you attach Gr. H., so that you may have him before the Supreme Court at a special term of said Court, to 178 OF LIQUIDATINQ DAMAGES. be held at the City Hall, in the City of Albany, on the last Tues- day of October, 1857, to answer for a certain contempt by him done and committed, in a certain proceeding by A. B. against him in said Court, pursuant to the provisions of § 376 of the Code of Procedure ; and have you then and there this writ. Witness, Geo. Gould, Justice, at the Court-house in the City of Troy, this nineteenth day of October, one thousand eight hundred and fifty-seven. By the Court. J. P. BALL, Clerk. G. Stow, Att'y for Pl'ff. A copy of the order, that the attachment issue, should be served upon the defendant in the attachment at the time the attachment is served. At the time and place at which the attachment is returna- ble, the attorney for the plaintiff attends with interrogatories pre- pared, to be answered by the party attached. The plaintiff 's attor- ney usually announces to the Court the presence of the defendant, in custody upon the attachment, and that he has interrogatories pre- pared for him to answer, and the usual practice is, that a copy of the interrogatories be then delivered to the defendant, and the Court direct him to make his answers to them, and serve a copy thereof upon the plaintiff's attorney at some time, within a day or two, to be named by the Court, and another day is also fixed for the hearing of the matter by the Court. By the former practice, the interrogatories must be filed within four days, or the defend- ant, if he be in cjistody, would be discharged, or, if he had given bail, the bail would be discharged. When the interrogatories are served, as they usually are, at the time of the first appearance of the defendant, he remains in custody, or gives bail, or the Court take his own recognizance to attend from day to day, until the matter is finally disposed of And this is probably the present practice. Gra. Pr., 560, 661. The interrogatories should be in the following form : In the Supreme Court. — ^Interrogatories to be administered to G. H., touching a contempt alleged against him, in not apply- ing the estate of one C. D., decesased, in the hands of the said G. H., to the satisfaction of a judgment recovered against the said C. D., in his lifetime, in favor of A. B., in pursuance of the judgment of this Court in proceedings in favor of A. B., ao^ainst G. H., as heir of the said C. D., under § 376 of the Code. First Interrogatory. — Did you, as heir-at-law of C. D., deceased, receive any, and, if any, what estate of the said 0. D., after his death ? Declare fully. OF LIQUIDATING DAMAGES. 179 Second Interrogatory. — ^Did A. B. recover a judgment against the said C. D. in his lifetime for eleven hundred dollars ? If yea, does the said judgment still remain unsatisfied, and, if anything has been paid thereon, how much, when, and by whom? Declare. Third Interrogatory. — Did you, on the day of , have a Emmons served on you, requiring you to show cause, at a time and place in said summons mentioned, before the Supreme Court, why the said judgment against the said 0. D., deceased, should not be enforced against his estate in your hands ? Declare. Fourth Interrogatory. — Were such proceedings had before the said Court, in pursuance of said summons, that afterwards, and on the day of , the judgment of the said Court was rendered against you, requiring you to apply the estate of the said 0. D., in your hands, in satisfaction of the judgment against the said C. D. ? Declare. Fifth Interrogatory. — Has the estate of the said C. D., in your hands, or any part thereof, been applied in satisfaction of said judgment against him ? If nay, have you refused so to apply the same ? Declare. Sixth Interrogatory. — Was an order of said Court served upon you, on or about the day of , requiring you to show cause, at a Special Term, to be held on the day of ■ •, at the City Hall, in the city of Albany, why an attachment should not issue against you, for contempt in not applying said estate in satisfaction of said judgment? If yea, what proceedings, if any, were had in the said Court upon the return of said order, and was a copy of an order, entered by the Court upon such return, served upon you? If yea, when, and what were the contents of such order ? Declare. Dated, &c. Gr. STOW, Att'y for A. B. A copy of these interrogatories having been served upon the defendant, he may demur to any one or more of them ; that is, he may object and insist that he cannot legally be required to answer any particular interrogatory, and the question will then be sub- mitted to the Court, for their decision, whether he is bound to answer the same. To each of the interrogatories not demurred to, he must put in a full answer, or the Court will commit him until such answer is made, and if the Court decide that he is bound to answer the interrogatories objected to, they must be answered in the same manner. If the objection is sustained, the interrogatory may be amended by explaining any ambiguity or any matter which has been imperfectly stated, but not for the purpose of introducing any new matter. Gra. Pr., 561. 1 Johns Cas., 81. In addition to the answer, the defendant may sustain any de- fense he may have to the contempt, and the plaintiff may also 180 OF THE SEEYIOE OF PAPERS. introduce affidavits to sustain any of the allegations made upon his part, and the Court will decide the matter upon the interrogatories, answers and affidavits. Grra. Pr., 562. If the Court adjudge the defendant guilty, they will impose a fine upon him sufficient to satisfy the judgment, and also to pay all reasonable costs and expenses of the proceedings, which fine will, by order, be directed to be paid to the plaintiff in the judg- ment and proceedings. Gra. Pr., 562, 2 E. S., 4 ed., 771, § 20. If the heir, before the commencement of proceedings against him under § 376 of the Code, has expended all the property of the ancestor which came to his hands, and has no means of his own, beyond what would be exempt from execution upon a judgment against him, this would undoubtedly be an answer to the application for an attachment, and it might also be set up as an answer to the contempt, upon the return of the attachment, and he would be entitled to be discharged, unless it should appear that the said estate of the ancestor had been disposed of fraudu- lently, for the purpose of avoiding the enforcing the judgment against it. If the defendant have given bail to the sheriff for his appearance on the return of the attachment and fail to appear, the Court will order another attachment, or that the bond given for his appear- ance be prosecuted, or both. And the plaintiff, in whose favor the order is entered, may prosecute the bond, the order operating as an assignment or transfer of the bond to him. 2 R. S., 4 ed., 772, § § 27 and 28. And the measure of damages, to be assessed in such action, is the extent of the loss or injury sustained by the plaintiff, by reason of the misconduct for which the attachment was issued, and his costs and expenses in prosecuting such attach- ment. CHAPTER XXV. OF THE SERVICE OF PAPERS. The service of papers may be by delivery to the party or attorney upon whom service is to be made, which is called per- sonal service, or it may be on an attorney, by delivery to any person in his office having charge thereof; or by leaving it in a OF THE SERVICE OF PAPERS. 181 conspicuous place therein, between the hours of six in the morn- ing and nine in the evening, if the office is open and no person in charge tliereof, but service cannot be made in any other man- ner than upon the attorney personally, except in his absence ; or, if the attorney is absent and his office not open, service may be made by leaving the paper with some person of suitable age at his resi- dence. Service cnn never be made upon a party in an action in which an attorney has been employed and given notice of hia retainer, or served a paper upon which his name has appeared as attorney. Code, § 417. • "Where service is to be made upon a party, no attorney having appeared, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. Code, § 409. Where there is a regular communication by mail, between tho places where the person serving and the person to be served reside, service may be made by enclosing the paper in an envelope, ad- dressing it to the person on whom it is to be served, at his place of residence, and depositing it in the post-office, at the place where the person serving it resides, and paying the postage ; this is called service by mail, and the service is complete when the paper is deposited in the post-office as above directed. Code, § § 410, 411, Schenck v. McKie, 4 Pr. E., 246. All papers may be served in the manner above directed, unless otherwise directed by statute. Code, § 408. "Where two or more attorneys are doing business as partners and the name of one only of the firm is used, as attorney, as prosecuting and defending actions, service upon any one of them, made out of the office, will have the same effect as if made upon the one who-e name is used as attorney in the action. Lansing v. McKillup, 7 Cow., 416. Service of a paper on Sunday is void. Field v. Park, 20 John. R., 140. The affidavit of service of a paper upon a clerk must show that the clerk was in the office of the attorney at the time the service was made. Jackson v. Giles, 3 Cai. R., 88. Paddock v. Beebe, 2 Johns Gas., 117. The service of a paper by mail is in time, although deposited in the office at a late hour of the day, and when it could not leave the ofRce where it was deposited until after the time would 6 182 OF THE SERVICE OF PAPEES. have elapsed within which the paper must be served, the party is entitled to the full number of days in which to serve his paper, without regard to the day or hour when the mail leaves for the place to which the paper is directed. Noble v. Trotter, 4 Pr. E., 822. The affidavit of merits, to prevent an inquest at the circuit, should be served on or before the first day of the circuit ; but, if made at any time before an inquest is in fact taken, it is sufficient, and an inquest taken afterwards will be set aside for irregularity ; but where the service is not made until the second day of the circuit, it must be personal, or an inquest taken after the service will be regular, and will not be set aside except upon terms, if the attorney did not know of the service of tlie affidavit at the time the inquest was taken. And we think that an affidavit of merits, to prevent an inquest, should be served at the circuit, if not made before its commencement ; and service by mail on the first day of the circuit or any other service, except upon the attorney personally, if made on that or any subsequent day, would probably be held insufficient to prevent an inquest, if the attorney had no know- ledge of the service of the affidavit at the time the inquest was taken. Brainard v. Hanford, 6 Hill, 368. An irregular service of a paper is cured by the party keeping the paper served and acting upon it, or retaining it a number of days without returning it, and giving the party notice of the irreg- ularity. Wright V. Forbes, 1 Pr. E., 240. New York Central Insurance Co. v. Kelsby, 13 Pr. E., 535. By Eule 41, all papers, exceeding two folios in length, must be folioed and the number of each folio marked in the margin, and every copy must be numbered so as to correspond with the original; and the service of a paper, without having it so folioed, is irregular, and may be returned to the party serving it, for that reason, but the return of the paper is the only way in which the party upon whom it is served can take the advantage of the irregularity. By Eule 5 of the Supreme Court Eules, the attorney or the party who conducts the proceedings in his own action, whether he be an attorney or not, shall not only endorse his name upon the process, or other papers to be served in an action, but shall also add his place of residence. The only penalty, however, of this omission is, that papers may be served upon him by mail, directing according to the best information the party can get. OF EXTENDING TIME TO PLEAD, ETC. 183 .OHAPTEE XXYI. OF EXTENDING TIME TO PLEAD, ETC. The time witliin wliicli any act is to be done is to be computed by excluding the day from which you commence to count time, or what is called the first day and including the last day. For instance, a motion to be made on the ninth day of the month, which requires eight days' notice, cannot be served after the first day of the month, so also, where a complaint is served on the first day of the month, the answer must be served on or before the twenty-first. Code, §407. The time within which any act is required to be done (except the time within which an appeal is by statute required to be made) may be extended by a Judge of the Court, or a County Judge, but the order extending the time must be founded upon an affidavit, showing a sufficient reason therefor, and a copy of the affidavit must be served with the order. Code, §405. A Judge at chambers cannot extend time for more than twenty days, except upon previous notice to the adverse party. Code, §401. But the more general manner of extending time is by stipula- tion between the attorneys, and, in order to avoid all misunder- standings, such stipulations should always be in writing, and they cannot be enforced as binding stipulations, unless reduced to writing and signed by the attorneys or parties making them. Kule 37, Supreme Court Eules. CHAPTER XXVII. JUDGMENT FOK WANT OF ANSWER. By the former practice, where no plea was served within the time required, the plaintiff might enter the defendant's default, in a book kept in the office of the clerk of the court, called the com- mon rule book, and, after the entry of such default, the plaintiff's attorney could not be required to accept a plea, but was at lib-; erty to perfect judgment in accordance with the then practice of 184 JUDGMENT FOR WANT OF ANSWER. the Court. Now, however, no default is entered ; but as soon as the time to answer has expired, if such time has not been ex- tended by stipulation, or order, the plaintiff is at liberty to pro- ceed to perfect his judgment. And if an answer or demurrer is served after that time, it may be returned within a reasonable time, stating to the attorney serving it the reason for such return, and the plaintiff may then proceed to perfect his judgment as if such answer had not been served. Laimbeer v. Allen, 2 Sand. S. C. R, 648. Wilkin v. Gilman, 13 Pr. E., 225. What is a reasonable time must always depend upon the cir- cumstances of each particular case. The general rule is, that the paper must be returned immediately, with a statement of the ground upon which it is returned. Silhman v. Clark, 2 Pr. E., 160. Laimbeer v. Allen, above cited. The term immediately, as above used, is borrowed from the language of the Court in Silliman v. Clark, above cited, and means within twenty -four hours. Ante, p. 26, 7 Cowen, 421. This rule, requiring an immediate return, will be departed from in cases where, to enforce it, would be in effect to deprive a party of the right to return a defective paper, or one in any manner irregularly served ; for instance, suppose the attorney was not at home at the time of the service, or from any other cause did not have an opportunity of examining the paper for several days after the time of service, a return of it, stating the objection and the reason wiiy the paper was not sooner returned, would un- doubtedly be held in season, provided the return was made im- mediately after the attorney had an opportunity to examine the paper. In this respect each case must depend upon its own cir- cumstances, and the practitioner must judge for himself as to whether the facts of his case will excuse him from complying with the terms of the general rule above laid down. In a case where there ■were two defendants who were joint debtors, and a default for want of an answer had accrued against one of them, and afterwards, and before the time to answer had expired as to the other defendant, a joint answer was served for both defendants, duly verified, and the same was returned on the ground that a default had accrued against one of them, and no other answer having been served, when the time expired for the other defendant to answer, the plaintiff's attorney perfected his judgment for want of an answer and the Court held the practice JUDGMENT FOR WANT OF ANSWER. 185 on the part of the plaintitF regular. Jacques v. Greenwood, 1 Abbott, Pr. R., 230. And the plaintiff in an action cannot take judgment against one of several joint debtors, who have been served with process in the action, until he is entitled to judgment against all of them. And in such case, although some make default and others answer, and the judgment is entered without any affidavit that no answer has been received from those who make default, still the execution goes against the individ- ual property of all the defendants ; and, in this respect alone, the judgment differs from the case when a part, only, of the joint debtors are served with process. Catlin v. Billings, 13 Pr. R., 511. 19 Wend., 613. 3 Hill, 476. Id., 35, 563. By^the former practice, in actions against joint debtors, where any one or more of those served with process did not plead and others plead to issue, the issue could not be tried until the default of those who did not plead was entered, and then a venire tarn qiiam was supposed to be issued and the jury were sworn, as well to try the issue joined between the parties who had plead and the plaintiff, as to assess the damages against the other defendants, and this is the meanino- of the sentence of which the words iam quavi are an abbreviation. In actual practice, the jury were al- ways sworn as above mentioned ; but the venire was seldom, if ever, issued unless it became necessary in consequence of some subse- quent proceeding in the action, and then it was filed nunc pro tunc. Since the Code, no default is entered ; and when one of several joint debtors, served with process, does not answer, and the others do, the cause is brought to trial and judgment perfected in the same manner as if issue had been joined by all the defendants, the verdict is taken against all, and the jury are sworn to try the action against all, and an affidavit that no answer was put in by the defendant, making default, is unnecessary. Cutliu v. Billings, 13 Pr. R., 511. And if, at the trial, a cause of action is not proved against the defendant who did not answer, as well as against the others, the plaintiff will be non-suited. When, by § 136 of the Code, the plaintiff may take separate judgments against any one or more of several defendants, he may take judgment against any such defendant who shall neglect to answer or demur, for want of an answer, and proceed in the action against the other defendants in the same manner as if they, alone, had been sued. Code, § 246. 186 JUDGMENT FOE WANT OF ANSWER. When the defendants have not answered or demurred, the damages, which the plaintiff is entitled to recover in common law actions founded upon contract, are ascertained in one of the seven following methods, according to the provisions of § 246 of the Code. First. — When the action arises on contract and is for the recov- ery of money only, the plaintiff may file with the clerk proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons, according to the provisions of § 130, and that no answer has been received. The clerk shall, thereupon, if the complaint is duly verified, enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in § 136. Code, § 246, Sub. 1. The words " arising on contract for the recovery of money only," as above used, are to be understood as meaning actions arising upon con- tract where a specific sum is demanded in the summons and com- plaint, and no other relief is sought in the action. Croden v. Drew, 1 Duer, 652. Second. — Where the complaint is not sworn to and the action is upon a written instrument for the payment of money only, the clerk, on presentment of the writing, is required to assess the amount due thereon, and this sum, so assessed, is the plaintiff's damages in the action, and this is an assessment for which, if the defendant has appeared in the action, he is entitled to notice, and the clerk is also required to enter judgment for such amount. Code, § 246, Sub. 1. Third. — In all other cases, where the action is upon contract for the payment of money only and the process has been personally served, and the complaint is not verified, the clerk is required to ascertain the damages by the examination, on oath, of the plain- tiff, or by other proof, and enter judgment for the amount so ascertained. lb. Fourth.- — -The plaintiff cannot enter judgment in other actions, except upon application to the Court, on the same proof as above required, for the relief demanded in the complaint. Wliere the stating of an account or the proof of a fact is necessary, the Court may take the proof and assess the amount for which the plaintiff is entitled to judgment, or. Fifth. — The Court may appoint a referee to take the proof, JUDGMENT FOR WANT OF ANSWER. 187 state tlie account and report the amount due to the plaintiff, to- gether with the facts proved before him on such reference, and this may be done in all cases which require the examination of a long account. Code, § 246, Sub. 2. SixtJi. — In every other case, except when the service has been by publication, the plaintiff must apply for and obtain an order that tlie damages be assessed by a jury, as there is no other method provided by the Code for assessing the damages. Code, § 246, Sub. 2. Hewit v. Howell, 8 Pr. R, 346. Seventh. — The third subdivision of § 246 of the Code is in the following words: "In actions where the service of the complaint was by publication, the plaintiff may in like manner apply for judgment, and the Court must thereupon require proof to be made of the demand mentioned in the complaint, and if the de- fendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff, or to any one to his vase, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment, the Court may, in its discretion, require the plaintiff to cause to be filed satisfactory security, to abide the order of the Court, touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judg- ment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such de- fense." AYhen judgment is entered on personal service, and the com- plaint is sworn to, as in the case first above mentioned, the de- fendant is not entitled to notice, although he may have appeared in the action, because there is no assessment, and it is onlv in cases where the clerk assesses, or ascertains the amount due to the plaintiff, that the defendant is entitled to any notice, the notice required to be given to him being of the assessment of damages. Dix v. Palmer, 5 Pr. R., 233. Southworth v. Curtis, 6 lb., 271. In all other cases of assessment by the clerk, on failure of the defendant to answer, if he has given notice of appearance, he is entitled to five days' notice of the assessment. Code, § 246. This notice may be in the following form : 188 JUDGMENT FOR WANT OF ANSWER. SUPREME COUET. Take notice that the amount of the plaintiff's claim in this action, for which he is entitled to recover, will be assessed by the Clerk of the county of Rensselaer, at his office, in the city of 'rro}', on the first daj^ of October, 1857, at ten o'clock in the forenoon. Dated, September 26, 1857. Yours, &c., J. D. WHITE, Att'y for Pl'ff. To M. Ball, Esq., Att'y for Deft. In all other cases when the defendant has given notice of ap- pearance, the plaintiff must serve notice of assessment, eight days before the time when such assessment is to be made. Code, § 246, Sub. 2. When the defendant has demurred to the complaint, and the demurrer is overruled, and the defendant does not withdraw his demurrer and put in an answer, the plaintifi' takes his judgment by default, in the same manner as if no demurrer had beeu inter- posed, except that the serving of the demurrer is a notice of ap- pearance, and entitles the defendant to notice of the assessment of damages and of the adjustment of costs. King v. Stafi'ord, 5 Pr. E., 30. It seems a singular provision of the Code, to require proof of the service of the summons, when the defendant has given notice of appearance, and especially when, by demurring, an issue of law is joined which has been brought to trial, and the plaintiff had judgment thereon, yet this is the plain reading of section 269 of the Code, and the Court have not felt at liberty to depart from the rule of 23ractice thus laid down. Paige, J., in King v. Staf- ford, 5 Pr. R., 32, 33. The Court in one case intimated quite strongly that, when dam- ages were assessed by the clerk, a statement or certificate of his assessment and the manner in which he computed the amount should be made and filed by him, and should form a part of the record of the judgment, that the defendant might have some means of correcting any error into which the clerk might fiill, in ascertaining the amount of the plaintiff's damages in the action. And there is certainly great force in that view of the case, espe- cially where the damages are to be ascertained by an examination JUDGMENT FOR WANT OF ANSWER. 189 of witnesses ; and we think that in all cases, except where it is a mere computation of the amount due upon a note, or other writ- ten obligation for the payment of money, there should be a certificate or report of the clerk, containing a statement of the facts proved before him, the names of the witnesses examined, and the consideration of the several items which make up the sum of the damages assessed by him : not that he should, by any means, be required to give a bill of items of an account, but that he should state generally the different sums allowed and their con- sideration. See, upon this subject. Squire v. Ellsworth, 4 Pr. E., 77. The practice of having the clerk make a certificate, or report, as above suggested, has never been adopted, that wc are aware of, in any county in the State, and the Code does not require it, and yet it would seem there should be something on the record to show how the damages were assessed. By the second subdivision of § 246 of the Code, where a mo- tion is made to the Cour.t for the relief demanded in the com- plaint, the Court may, where the taking of an account or the proof of a fact is necessary, take the account and hear the proofs and ascertain the amount the plaintiff is entitled to recover. This is not only the plain letter of the Code, but it is also sus- tained by g,uthority. Eyan v. McCannel, 1 Sand. S. C. E , 709. But, by Eule 85, these motions may be made, not only in the county where' the place of trial is laid, but at a special term in any county in the same district, or in an adjoining county, though it should be in another judicial district. We consider this equiva- lent to saying that the Court will not assess the damages upon the hearing of a motion for the relief demanded in the complaint, as a general rule, and that they will not, in any case, where the defendant has given notice of appearance ; because it is not to be pre.sumed that they would require the defendant to travel to a remote part of the district, or to any place out of the county where the place of trial is laid, with his witnesses, for the purpose of mitigating, or reducing the amount of the plaintiff's claim in the action. The Court then will, in all cases, order either a reference, or a writ of inquiry, to ascertain the plaintif[''s damages, and, in either case, the assessment must be made in the county in which the place of trial is laid. Eule 85. Whenever a writ of inquiry or reference is ordered in such case, we have seen that the defend- 190 JUDGMENT FOR WANT OF ANSWER. ant, if he has given notice of appearance, is entitled to eight days' notice of the hearing before the referee, or of the executing of the writ of inquiry. Where a writ of inquiry is ordered, the plaintiff must proceed to have the same executed within a reasonable time after the order is entered, and should he neglect so to do, we presume the Court, on motion, would order him to proceed to the execution of such writ, within a time to be specified ia such order, or that the complaint be dismissed, and the defendant have judgment in the action. This would be in accordance with the former prac- tice, as near as we can well approach to the same, in proceedings under the Code. What the Court will hold a reasonable time, in this respect, has not, that we are aware of, been settled by the Court, either by rule or decision, since our present system of practice was adopted ; but, by the former practice, where inter- locutory judgment Wcis entered for want of a plea, and the plain- tiff suffered a year to elapse without executing his writ of inquiry, the Court granted an order, on motion of the defendant, that the plaintiff should have his writ of inquiry executed within thirty days, or that judgment of non pros be entered against him. Kent v. McDonald, 15 J. E., 400. A similar practice to the above would, undoubtedly, be adopted, if the plaintiff should neglect to have his damages assessed by the referee, Avhere a reference had been ordered. In cases where the action is for the recovery of money only and does not require the examination of a long account, and where application is made to the Court for the relief demanded in the complaint, the damages must be assessed by jury on a writ of inquiry. Hewett v. Howell, 8 How., Pr. E., 3i6. In executing a writ of inquiry, the proceedings are the same as they were before the Code (Salters v. Kip, 12 Pr. E., 842), and are conducted in the same manner as a trial at the circuit, the Sheriff acting as the presiding judge, and the cxcution of the writ may be adjourned if necessary, after it is entered upon. Crra. Pr., 643. Str., 1,259. Mersereau v. Norton, 15 J. E., 179. All the question which is to be tried is, the amount which the plaintiff is to recover, as the plaintiff's right to recover and everything ma- terial to the i^sue is admitted by the defendant, by his default. The only question open for litigation is, the amount of damages, and upon this question both parties are at liberty to call and JUDGMENT FOR WANT OF ANSWEE. 191 examine witnesses ; the defendant being at liberty to give, in evidence, all such facts as are competent, the tendency of which would be to reduce the amount of damages. Salters v. Kip, 12 Pr. E., 342. If the plaintiff give notice of the execution of a writ of inquiry, and the defendant attends with his witnesses, and the phuntiff docs not appear, so that the writ has to be subse- quently executed upon a new notice, the Court, on motion, will compel the plaintiff to pay the defendant his costs for attending, in pursuance of such notice, when the plaintiff did not appear. Butler agt. Kelsey, 14 J. E., 342. It is proper to remark, that the verdict of the jury, on the execution of a writ of inquiry, can- not be received on Sunday, and, should it be so received, it will be set aside for irregularity. The reason for this is, that the execution of a writ of inquiry, after the testimony upon both sides is closed, and while the jury are considering what verdict they shall render, may be adjourned over from Saturday till Monday. Whereas, at the circuit, the jury cannot be permitted to sepai'ate until they have agreed, and the verdict is therefore received, as of necessity, on Sunday. Mersereau v. Norton, 15 J. E., 179. There has been some slight difference of opinion in the profes- sion, as to the form of the order under the above subdivision ; where the damages are required to be assessed by a jury, some are of the opinion that the order should barely direct that the dam- ages be assessed by a jury, and that, on the delivery of a certi- fied copy of that order to the sheriff, he should summon a jury and assess the damages, without any writ being issued for that purpose. We think this practice, to say the least of it, would make a very informal and, it seems to us, imperfect record ; we have therefore adopted the practice as laid down by C. L. Allen, Justice, in the case of Stewart v. The Saratoga & Whitehall E. E. Co. In that case, the learned Justice above-named, at the Washing- ton Special Term,in March, 1856, made the following order, " that the plaintiff's damages be assessed by a jury ; and that a writ of inquiry issue." See statement of facts in the above entitled action, on a motion for a stay of proceedings. 12 Pr. E., 435. And we understand that some, and we do not know but all, of the Justices of the third district approve of this practice. We are not aware that any case has found its way into the books, where a contrary practice has been adopted. Pursuing this rule, the order in such 192 JUDGMENT FOE "WANT OF ANSWER. case, to bo made on the motion for the relief demanded in the com- plaint, should be substantially in the following form : At a Special Term of the Supreme Court, held at the City Hall, in the City of Albany, on the twen- ty-ninth day of September, 1857. Present — Ira Harris, Justice. A.B.) agt. y CD.) Upon due proof of the personal service of the summons [or of th.e summons and complaint] in this action, and that more than twenty days have elapsed since such service, and that no answer or demurrer has been received by the attorney for the plaintiff, and on reading the complaint in this action, whereby it appears that the action is for the recovery of money only, aud that the ex- amination of a long account is not involved in the action, on motion of N, Forsyth : Ordered,' that the damages in said action be assessed by a jury, and that a writ of inquiry be for that purpose issued, directed and delivered to the Sheriff of the County of Rens- selaer (the County where the place of trial in said action is laid). This order should be duly entered in the ofBce of the Clerk of the County where the venue is laid. In cases where application must bs made to the Court for the relief demanded in the com- plaint, and a reference is ordered, to ascertain the damages, the practitioner will readily change the language of the above order, so as to appoint a referee, instead of ordering a writ of inquiry. The writ of inquiry should be substantially in the following form : The people of the State of New York to the Sheriff of the county of Rensselaer, greeting : Whereas A. B., lately in our Supreme Court, commenced an action by summons, against C. D., and such proceedings were had in said action, upon the personal service of the summons therein, that the said A. B., according to the provisions of section 246 of the Code of Procedure, obtained an order of the said Court, direct- ing the plaintiff's damages in the said action to be assessed by a jury, a copy of the complaint in said action being hereunto an- nexed ; therefore, we command you, that, by the oath of twelve good and lawful men of your bailiwick, you diligently inquire what damages the said A. B. hath sustained for and on account JUDGMENT FOE WANT OF ANSWER, 193 of the premises in the said complaint contained; and that you, with all convenient speed, return to the office of the Clerk of the County of Eensselaer the inquisition taken by you, by virtue of this writ, under your seal, and the seals of those by whose oaihs you shall take that inquisition, together with this writ. Witness, George Gouldj Justice, at the Court-House, in the city of Troy, in the county of Rensselaer, this first day of October, one thousand eight hundred and fifty-seveu. By the Court, JOHN P. BALL, Clerk. N. Forsyth, Att'y. This writ should be delivered to the Sheriff, who will summon a jury, and assess the damages, conducting the proceedings sub- stantially in the manner of a trial at the circuit. The return to this writ should be endorsed upon it, and is in the following form : The execution of the within writ appears by the inquisition hereunto annexed. W. WELLS, Sheriff of Eensselaer Co. The inquisition should be in the following form : STATE OF NEW YORK, County of Rensselaer. > ss. An inquisition, taken at the Court-House, in the city of Troy, in the County of Eensselaer, en the fifth dav of October, one thou- sand eight hundred and fifty-seven, helbre William Wells, sheriff of the county aforesaid, by virtue of a writ of the People of the State of New York, to him directed and delivered, and to this inquisition annexed, to inquire of certain matters in the said writ specified, by the oath of E. F., &c., (naming all the jurors,) good and lawful men of the said county, who, upon their oath aforesaid, say that A. B., in the said writ named, has sustained damages, by reason of the promises in the said writ mentioned, to the sum and amount of five hundred dollars. In witness whereof, as well I, the said sheriff, as the said jurors, have set our seals to this inquisition the day and year above written. [Signed and sealed by sheriff and jurors.] This writ and inquisition, with the return indorsed upon the writ, are usually delivered to the attorney for the plaintiff, who returns the same to the ofiice of the Clerk of the county where the writ is executed, which must always be that in which the 194: JUDGMENT FOR "WANT OF ANSWER. venue is laid, at the time of the adjustment of costs aod the per- fecting of the judgment in the action. The third subdivision applies only to actions in which the process is served by publication. And that subdivision expresses very clearly, in its own words, what it requires, and points out, as clearly as we could do by further remark, what the practice must be under it. The assessment under this subdivision must, in all cases, be made by the Court, and the orders to be made and the security to be given will depend upon the circumstances of each particular case, and it would hardly be profitable to undertake to make forms, where it is so uncertain what the instrument will be in its details, which may be required by the Court. Chapman v. Lemon, 11 Pr. R., 235. To entitle a defendant to require service of notice of assessment of damages, by the clerk or before a referee, or of the execution of a writ of inquiry in pursuance of the practice above prescribed under section 246 of the Code, he must serve his notice of appear- ance before default for want of an answer has accrued. Before proceeding to perfect judgment, the plaintiff must serve, when the defendant has given notice of appearance, a copy of his bill of costs, stating the items of disbursements, and a notice of the time when the costs will be adjusted by the clerk of the county in which the place of trial is laid. This bill of costs is regulated as to its amount by sections 307 to 311 of the Code. The notice of taxation of costs is a notice of five days, unless the attorneys reside in the same city, village, or tOwn, and in such case two days' notice is sufficient. Code, § 311. The bill of costs, in cases of judgment by default, aside from disbursements, is, when judgment may be had without application to the Court, ten dollars ; and when an application to the Court is necessary, fifteen dollars. Code, § 307. In addition to the above allowance, in common law actions arising upon contract, (and in some other actions, of which we do not treat in this work,) under certain circumstances, an additional allowance is made in cases where judgment is by default, as well as otherwise. In the actions of which we treat, however, this allowance is limited to actions in which a warrant of attachment has been issued. Code, § 308. And in such an action, in addition to the costs given by § 307, the plaintiff is entitled to have allowed him by the clerk, in the adj ustment of costs, the sum of ten per cent, on the recovery JUDGMENT FOR WANT OF ANSWER. 195 for any amount not exceeding two hundred dollars, and five per cent, on any additional amount not exceeding four hundred dol- lars ; and two per cent, on any additional amount not exceeding one thousand dollars. The notice of adjustment should be endorsed upon the bill of costs in substantially the following form : Take notice, that the bill of costs, of which the within is a copy, will be adjusted by the clerk of the County of Eensselaer, at his ollice, in the city of Troy, on the tenth day of Ociober instant, at ten o'clock in the forenoon. Yours, &o. Dated, October 3, 1857. P. E. BAEEMAN, Pl'ff's Att'y. To E. W. Free, Esq., Def't's Att'y. The bill of costs will be in the following form : SUPEEME COUET. A. B. ) agt. >• Casts. Judgment on failure to answer. CD.) Costs before notice of trial, $10 00 Additional allowance on $200 00, 20 00 Disbursements: Sheriff's fees, serving summons, 3 00 " " returning execution, 69 Clerk, entering judgment, 50 Three transcripts and filing, 36 Postage, 12 Af&davit of disbursements, 12 $34 79 At the time of adjustment, there must be presented to and filed with the clerk an affidavit of disbursements, which is usually at the bottom of the bill of costs, and in the following form : SUPREME COUET. A. B. ^ agt. > Eensselaer County, ss : CD.) Philip H. Baerman, being duly sworn, says, he is the Attorney for the plaintiff in this action, and that the several items charged for disbursements in the above bill of costs have been, or will be, necessarily incurred in this action. Sworn,'&c. P. H. BAEEMAN. 196 JUDGMENT FOB "WANT OF ANSWER. The above bill of costs will necessarily be changed to meet the circumstances of the case in which judgment is to be perfected, and the bill of costs as adjusted must be filed with the clerk ; but it is not a proper part of the record and should not be inserted therein, and when it is will be struck out on motion. Schenectady & Saratoga R E. Co. v. Thatcher, 6 Pr. R, 226. When the plaintiff has taken all the steps necessary to entitle him to judgment, under any of the subdivisions of § 246 of the Code, the attorney usually prepares a judgment record, and, at the time of having his costs adjusted by the clerk, the amount of the costs is inserted in the record, and judgment signed, filed, and docketed. If the attorney neglect to furnish a judgment-roll, and, on hav- ing his judgment signed and costs adjusted, present only his bill of costs and the judgment which is to be signed by the clerk, the roll is made up by the clerk in the following manner : The clerk attaches together the summons and complaint, or copies thereof, proof of service, and that no answer has been received, and, if it is a case where a referee has been appointed, his report, or, if the damages have been ascertained by the Court, the statement of the amount found, certified by the Court, or, if a writ of inquiry has been executed, the writ, return, and inquisition, and a copy of the judgment ; and these papers so attached constitute the judgment- roll. Code, § 281. But the better way is for the attorney to prepare the roll in all cases. The part of the record called the judgment is a simple state- ment that the plaintiff recovers the sum to which it has been ascertained he is entitled, together with the amount of costs as allowed by the Code, which are to be adjusted by the clerk and inserted in the judgment, which is then signed by the clerk. It has been an almost universal practice, so far as our knowl- edge on the subject extends, to commence that portion of what constitutes the roll, which is called the judgment, by a recital of all the steps that it was necessary to take to entitle the plaintiff to judgment. This is, to say the least, unnecessary, as the evidence upon which this recital is founded is already in the record, The form of the judgment should be substantially as follows : COSTS OK DISCONTINTTANCE, ETC. 197 Therefore it is considered that the said A. B. do recover, against the said C. D., the sum of one thousand dollars, [being the amount demanded in the complaint with the interest therein de- manded,] and twelve dollars and sixty-nine cents, costs and dis- bursements, amounting in the whole to one thousand and twelve dollars and sixty-nine cents. Judgment signed, this first day of September, 1857. J. P. BALL, Clerk. The above is the form in which the judgment was signed under the former practice, which was always done by the of&cer who taxed the costs. This form, it will be perceived, is only proper in cases when no assessment is required. In case the damages had been assessed by executing a writ of inquiry, the words included in brackets in the form of judgment above given should be omitted, and the following inserted in lieu thereof, to wit : being the sum assessed by the jury on the execution of the writ of inquiry in this action issued. The practitioner will readily change this form to meet the circumstances necessary in drawing the form of a judgment under any of the provisions of § 246 of the Code. CHAPTEE XXVIII. COSTS ON DISCONTIlSnjANOE BY PLAINTIFF OE PAYMENT BY DEFENDANT BEFOEE ISSUE. When a suit has been once commenced, the plaintiff cannot dis- continue without paying to the defendant his costs to the time of discontinuance, nor is a cause discontinued until an order for that purpose has been entered. Schenck v. Fancher, 14 Pr. E., 95 ; Cuyler v. Coates, 10 Id., 141; Eees v. Paten, 13 Id., 268; "Weigan V. Held, 3 Abb., Pr. E., 462. There seems to be a difference of opinion, upon the bench as weU as at the bar, upon the question, whether a plaiatiff can discontinue before notice of appearance on the part of the defendant without payment of costs, and also upon the question whether an order discontinuing an action can be entered without leave of the Court, or the written consent of the defendant, or, in other words, whether any order can be entered without leave of the Court, unless on a stipulation between the parties. Upon the question of discontinuance without the payment of costs, it has been held that a notice of discontinuance without such payment was a nullity, 8 Abb., Pr. E., 462, above cited. In 1 198 COSTS ON DISCONTINUANCE, ETC. Averill v. Patterson, 10 Pr. E., 85, Mason, J., sitting as Judge of the Court of Appeals, in delivering the prevailing opinion of that Court, says : "It was held by the Court of dernier resort, in this State, in the case of Smith agt. "White, (7 HiU's E., 521,) that the rule of discontinuance was effective to discontinue the suit without the payment of costs, if entered before the defendant had appeared in the suit," thus intimating an opinion ( although the question was not decided in that case,) that the same rule should prevail under the Code. And the same idea was adopted by the Supreme Court, in the Fourth District, in the case of Schenck v. Fancher, above-cited, but in neither of these cases was it necessa- ry to decide that question, as no rule for discontinuance had been entered, without which an action is never held to be discontinued, so that it Was unnecessary in either case to decide that question, and, of course, the remarks upon the subject in those cases, by the Court, amount to nothing more than an intimation of the opinion of two learned and eminent jurists upon a subject not before them for judicial decision. It is very certain that there is an important difference between the rights of parties, before and since the Code, upon the subject. Before the Code, if a party defended in person, unless he was an attorney of the Court, he was not entitled to re- cover or demand costs at all, as the only costs to be recovered were the fees given by statute to the attorney, and the disburse- ments which were usually paid by him. Ten Broeck v. DeWitt, 10 Wen., 617; Stewart v. N, Y. C. P., 10 Wend., 557, 2 E. S., 622 et seq. By the Code the costs are given to the party, and there is no such thing as attorney's fees which are fixed or al- lowed by law. Code, § 303. Hence, before notice of appearance in an action, before the Code there was no such thing as costs as be- tween the plaintiff and the defendant, and of course there could be nothing to pay by the plaintiff on discontinuing the action ; but since the Code, in actual practice, no notice of appearance, as such, is served in any case where the party defends in person, the service of an answer, demurrer, or an order extending the time to answer, or a notice, signed by the party, of any proceeding in the action, is a suflBcient notice of appearance and is usually the only one given even where an attorney is employed. King v. Stafford, 5 Pr. E., SO. By the former practice, where an attorney had given notice of appearance, if the plaintiff discontinued his action, the attorney COSTS ON DISCONTmUANOE, ETC. 199 was entitled to his fees for eyery service actually rendered, and, •where lie had drawn his pleas in good faith before notice of dis- continuance, he was entitled to his fees for preparing such plead- ings, although they had not been in fact served. Thus it appears that the whole amount of the decision in Smith v. White, 7 Hill, 521, ( which is the foundation of the idea that a plaintiff can discontinue before notice of appearance without costs,) under the the Code is simply this, that under the former practice, at any time before an attorney was employed, ( the only legal evidence of employment being notice of retainer,) the plaintiff might dis- continue without costs, because under the fee bill which was then in force no costs had accrued to anybody. This is not the case since the Code. Now, the moment an action is commenced, the party becomes entitled to the costs given by the Code prior to issue, in the same manner as the attorney under the old practice became entitled to his retaining fee, although the notice of dis- contimiance was given before any step had been taken other than giving notice of retainer. Suppose a defendant under the present practice has prepared his answer and the copies thereof, intending to serve them before the time to answer expires, and before that time has passed the plaintiff discontinues. Would not the de- fendant be as much entitled to costs as the plaintiff would be should the defendant settle the claim ? Are not their situations precisely the same, so far as the equity or the law in this respect is concerned 1 And, if they are, why should not the same even- handed justice be dealt out to both ? We think the decision of the Court of dernier resort, under the former system of practice in this respect, has no application since the Code. The other question above alluded to is, can a plaintiff, undet the Code, enter a rule for discontinuance without either a stipu- lation between the parties, or their attorneys, or leave of the Court, or a Judge at Chambers, first obtained for that purpose ? We think not, and we find no difficulty, in the shape of judicial decision, in our way in arriving at this conclusion. The only two cases which we have been able to find, which will bear such a construction, are Averill v. Patterson, 10 Pr. E., 85, and Schenck ,v. Fancher, 14 Pr. E., 95, and in these cases no order had been entered, and it was held that a cause could not be discontinued without the actual entry of an order ; consequently, the question, whether an order could be entered by the attorney as a matter 200 COSTS ON DISCONTINtTANCE, ETC. of course, was not before the Court, and was not passed upon. It is true Judge Mason, in Averill v. Patterson, remarks, " the long-settled practice of entering the rule of discontinuance is cer- tainly consistent with the practice under the Code, and the con- tinuance of the practice is, it seems to me, preserved in the most explicit terms by the 469th section of the Code and the 90th Eule of the Supreme Court, and such is the construction put upon this section of the Code and this rule of Court by the Supreme Court, in Bedell agt. Powell (13 Barb., 183. See pp. 185, 186)." We do not so understand the opinion of the Court in that case. It seems to us the learned Judge carefully avoids expressing an opinion upon that subject, and remarks that whether the old practice is continued, or a change is effected by the Code, so that a mere notice of discontinuance is sufficient without an order, the effect is the same in the case he had under consideration, as there was no offer to pay costs. Nor do we understand Judge Mason, in Averill v. Patterson, or Justice Paige, in Schenck v. Fancher, as intending to express the opinion that an order to discontinue, or any other order, in an action under the Code, can be entered by the attorney as a matter of course. There is now no such thing as a rule eo nomine to be entered in an action, it must be called an order. There is now no such thing as a-common rule book, or an order book in which the attorney enters orders as a matter of course, without leave of the Court or consent of his adversary, Eule 4 of the Court requires the Clerk to keep a book in which are to be entered, among other things, orders. And § 400 of the Code defines what is an order : it is any direc- tion of a Court or Judge made in writing, and not included in a judgment. This of course must be understood as meaning a direction in an action or proceeding in Court, or some of the special proceedings authorized by the Code. Eule 37 shows that the practice of having orders entered with the clerk, by written consent of the parties, which we believe has always prevailed, is still approved by the Court ; but we think the whole tenor of the Code and the rules forbid the idea that any order in. an action is to be entered by an attorney, as a matter of course; or, in other words, that, under the Code, an attorney can make his own order, and, have his adversary to move to set it aside if he deems it wrong. "We think such a practice would throw upon the Court an ajnoTjnt of business for the special terms which would be very inconvenient to both Court and bar ; and we do not understand COSTS ON DISCONTINUANCE, ETC. 201 the cases we have been considering as intimating anything more than that an order must be entered to effect a discontinuance of an action. Where the defendant settles an action by paying to the plaintiff the amount claimed, the only authority given by the Code to the plaintiff to demand costs, is that which is taken by implication from § 322 of the Code, which is in the following words : " Upon the settlement, before judgment, of any action mentioned in § 304, no greater sum shall be demanded from the defendant, as costs, than at the rates prescribed by that section." The language of this section shows that the Legislature understood the practice of the Court to be, not to require the plaintiff to accept the amount claimed in his complaint as a satisfaction of his action, without the payment of costs ; and the practice in this respect is, as we understand it, if the plaintiff upon such a settlement demands more costs than the amount to which the defendant thinks him entitled, to require the plaintiff to go before a Judge of the Court and have the costs taxed, stipulating to pay the amount fixed by the Judge upon such taxation ; and upon the defendant's making this requisition and offer, and tendering the amount claimed in the complaint, the Court will stay the proceedings on the part of the plaintiff until the costs shall be so taxed. The amount ot costs to which the plaintiff is entitled, as fixed by § 307 of the Code, when the action is settled before issue, is, where judgment may be had without application to the Court, upon failure to answer, ten dollars ; and when judgment can only be taken on application to the Court, fifteen dollars ; and two dollars for each de- fendant, more than one upon whom process shall have been served ; besides necessary disbursements. Section 308 provides that, in actions where an attachment shall have been issued, an additional allowance shall be made of ten per cent, on the recovery, to an amount not exceeding two hundred dollars ; and five per cent, on any additional amount not exceeding four hundred dollars ; and two per cent, on any amount in addition to the two hundred and four hundred dollars above mentioned not exceeding one thousand dollars ; limiting the whole amount of the additional allowance, to which a party can be entitled, to the sum of sixty dollars. But the plaintiff is in no case entitled to any part of this allowance on a settlement before trial. Code, § 322. END OF PART I, PA.I^T II. CHAPTER I. OF DEMUEEING TO COMPLAINT. In Part First we have endeavored to give our views of the practice, together with the reasons for our opinion upon all the questions which can arise for the consideration of the practitioner, prior to the joining of issue. Issues are of two kinds; first, issues of law; and, secondly,, issues of fact. "When an issue of law is joined bythe first pleading on the part of the defendant, it is by demurrer to the complaint, which must be served upon the plaintiff or his attorney, if he has ap- peared by one, within twenty days after service of a copy of the complaint. Code, § 143. The causes for which a demurrer to the complaint may be in- terposed are particularly specified in § IM of the Code, which is in the words following : " The defendant may demur to the complaint when it shall appear upon the face thereof, either — "1. That the Court has no jurisdiction of the^ person of the defendant, or the subject of the action ; or, " 2. That the plaintiff has not legal capacity to sue ; or, "3. That there is another action pending between the same parties, for the same cause ; or, "4. That there is a defect of parties, plaintiff or defendant ; or, " 5. That several causes of action' have been improperly united ; or, "6. That the complaint does not state facts sufficient to consti- tute a cause of action." Care should be taken in drawing a demurrer, that it does not cover any count or cause of action, which, if proved, would entitle the plaintiff to a verdict, because if a demurrer is put in to the whole complaint, it cannot be sustained, unless the whole is bad ; if there is one good and sufficient cause of action, the demurrer will be overruled; or," if the demurrer be not to the whole, if it over one good count, it is not well taken. Peabody v. Washing- OF DEMUBBINO TO COMPLAINT. 203 ton Co. Mutual Insurance Co., 20 Barb., 342 ; Butler x. "Wood, 10 Pr. E., 222. The demurrer should point out specifically the count or counts in the complaint to which it is intended to apply, and should specify clearly the cause of demurrer, Code, § 145 ; and the Court will not allow the argument to be upon any other ground than that specified in the demurrer served ; nor will the Court, in any instance, hold that a demurrer is well taken, however defective the complaint may be, unless the particular defect is clearly with- in the meaning of some cause of demurrer assigned. Eldridge v. Bell, 12 Pr. E., 547. Bank of Lowville v. Edwards, 11 Pr. E., 216. A demurrer cannot be interposed to a complaint for any cause other than some one or more of the causes specified in § 144 of the Code, but as many distinct causes of demurrer may be assign- ed as the attorney believes there are fatal defects in the complaint, always keeping within the causes specified in the above section of the Code. Harrison v. Hogg, 2 Yes., jun., 323 ; Jones v. Frost, 3 Mod., 1 ; Hain v. Baker, 1 Seld., 363 ; Simpson v. Loft, 8 Pr. E., 235 ; Beale v. Hayes, 6 Sand., 640. Separate demurrers may also be put in to separate and distinct counts, or causes of action in the complaint, and in such case each demurrer will stand upon its own merits, and some of them may be held well taken, while others are overruled. 1 Barb., Ch. Pr., 107 ; 1 Mitf , Eq. PI., 174; North v. Earl of Stafibrd, 3 P. Wms., 148; Eoberdean v. Eous, 1 Atkins, 544. A demurrer will not lie under the Code for duplicity, or for any mere formal defect, or inartificial statement of facts in a complaint, or any defect in the demand of judgment. Gooding V. McAllister, 9 Pr. E., 123 ; Wells v. Webster, Id., 123 ; Beale V. Hayes, 5 Sand., 640 ; Andrews v. Shaffer, 12 Pr. E., 443. It has been held in a number of cases that in assigning causes of demurrer to a complaint under § 144 of the Code, in pursuance of the first and sixth causes specified in said section, it is sufici- ent to use the words of the section, and it is a sufficient assign- ment for either of those two causes. But this practice will not answer when applied to any other specification in the section. The demurrer must be more specific in pointing out the defect than the language of any one of those specifications in the section would make it. Durkee v. Saratoga E. E. Co., 4 Pr. E., 226 204 OF DEMUEEING TO COMPLAINT. Hyde v. Oonrad, 5 Id., 112 ; Annabal v. Hunter, 6 Id., 255 ; Hinds V. Tweddel, 7 Id., 278 ; Getty v. H. E. E. Co., 8 Id., 177. "We have been somewhat embarrassed in attempting to define the meaning of the Legislature by the language used in the first cause of demurrer prescribed by § 144 of the Code. It is very clear that the first clause of this cause of demurrer, referring to the person of the defendant, means a person over whom the Court cannot acquire jurisdiction under the existing circumstances ; for instance, a case where the defendant is a min- ister from a foreign government, or where the jurisdiction of the Court is limited to parties residing within a particular town or city, like the Mayor's Court of the city of Troy. The remaining words of this cause of demurrer, referring to the subject of the action, by which we understand the Legislature to mean the cause of action, must be understood to apply to cases where the jurisdiction of the Court is limited by statute, or where the statute does not confer it upon a Court whose jurisdiction is limited, for instance, where the complaint in a justice's court is for slander or the like. The second cause of demurrer, specified in § 144 of the Code, should be assigned by the pleader in the, language of the specifi- cation, or in equivalent words, and then it must proceed to point out particularly the reason why the plaintiff has not capacity to sue. For instance, that it appears upon the face of the complaint that the plaintiff is a married woman, and that the action does not appear by the complaint to be for a cause of action relating in any manner to her separate property ; or, that it appears upon the face of the complaint that the plaintiff claims to recover as a foreign banking association or corporation ; for instance, that the plaintiff is described in the complaint as the People' s Bank of Paterson, N". J., and that the complaint does not show that the said Bank has ever been incorporated, or set out the facts neces- sary to give such corporation a legal existence. The third specification under this section also requires that the cause of demurrer should be assigned substantially in the manner above prescribed, as the practice under the second specification. The proceeding, in order to be a bar to an action subsequently commenced for the same cause, need not be an action, nor is it necessary that it should have been commenced by the plaintiff in the action to which it is set up as a defense, but it must be for OF DEMURRING TO COMPLAINT. 205 the same cause, so that the judgment, or decree, on final determi- nation of the proceeding first commenced, will afibrd all the re- lief which is sought by the second action ; for instance, where a trustee presented a petition to the Court, praying that he might be permitted to render an account of his acts and doings as trus- tee, and have the same passed upon and settled, and that he might be discharged and another person be appointed trustee in his place, whereupon an order was made directing the trustee to ren- der before a referee an account of all his acts and doings as trustee, and of his receipts and disbursements, and (jlirecting notice of the reference to be given to the adult cestui que trust, and appointing a guardian ad litem for the infants. This proceeding would be a bar to an action commenced by the cestui que trust against the trustee, in which the relief sought was that the trustee might be removed, and another person appointed ; and that he might account for and pay over the trust fund, and render compensation in damages for any breaches of the trust. Groshon v. Lyon, 16 Barb., 461. If the letter of the third cause of demurrer specified by this section is to be followed, although the above facts constitute a de- fense, a defendant could not avail himself of it by demurrer, in case where they appeared upon the face of the complaint ; be- cause the language would limit the defendant's right to demur to the case where his bar is a former action pending, yet this pro- ceeding is in the nature of an action, a regular trial or accounting is had before a referee, and we think is clearly within the spirit of the Code and that the Court would hold a demurrer well taken for this cause. But, in demurring, the pleader must not only use the language of the said third specification, but must also state particularly the facts showing what the former action is, how it appears by the complaint to be pending, and that it is for the same cause. 'This particularity in pointing out the facts appearing on the face of the complaint, which constitute the pleader's objection to it, must be carefully observed in drawing every demurrer un- der the third subdivision of the section under consideration. It has also been held by the New York Superior Court, that a proceeding under the mechanics' lien law, pending in the New York Common Pleas, was an action and constituted a bar to an action in the Superior Court, founded upon the same claim, and that the former action need not be in the same Court where the 206 OF DEMURRING TO COMPLAINT. action to which it is set up as a defense is pending. Ogden v. Bodle, 2 Duer, 611. Although the actions need not be pending in the same Court to have the first action a, bar to the other, yet the first action must be pending in one of the Courts of our own State, or it cannot be pleaded as a bar to another action for the same cause, (Cook v. Litchfield, 5 Sand. S. C. R, 330 ; Burrows v. Miller, 5 Pr. E., 51 ; Brown v. Jay, 9 J. E., 221; Walsh v. Durkin, 12 Id., 99 ; Mitch- ell V. Burch, 2 Paige, 620,) unless property of the defendant has been actually seized under an attachment in an action in another State, and this fact should appear in the pleading ; (Embree v. Hanna, 5 J. E., 101 ; Wheeler v. Eaymond, 8 Cow., 311 ; Burrows V. Miller, 5 Pr. E., 51 ;) or unless a judgment has been recovered and that judgment satisfied ; in this last case,' however, the de- fense would lose its character, as that of a former action pending. The fourth cause of demurrer is when it appears upon the face of the complaint that there is a defect of parties ; that is, that there are persons who are not parties to the action, who must be made either plaintiffs or defendants, before the Court can make a final determination of the action in such manner as to do justice to and settle the rights of all the parties in interest in the subject of the action. Wallan v. Eaton, 5 Pr. E., 99. The pleader must bear in mind, that this cause of demurrer is for a defect, and not a misjoinder of parties. When too many persons are made parties, the remedy is by motion to strike out, or by taking the objection at the trial. Under this specification it is also necessary that the demurrer should point out who the party is who has not been joined in the action, and show particularly the portion of the com- plaint by which it appears that he is a necessary party. The fifth specification under this section is for the misjoinder of causes of action, or, in other words, the uniting in the same complaint of two or more causes of action, which do not come within any of the seven subdivisions of section 167 of the Code. It has been the subject of some conflict in judicial decisions, whether the joining in one count several distinct causes of action, which might, according to section 167, stand together in the same complaint, if stated in separate counts, might be demurred to, as coming within this specification ; but this question, we believe, is regarded as settled, and the rule, as now established, is that a de- murrer will not lie for such cause, and the error can only be cor- OF DEMUBBING TO COMPLAINT. 207 rected by motion for that purpose. Peckham v. Smith, 9 Pr. E., 436, and Eobinson v. Judd, Id., 378, where Marvin, J., reviews most of the decisions upon this subject; and in Peckham v. Smith, Bacon, J., after speaking with great respect of the justices who deliver the opinions in what may be regarded as the two lead- ing cases holding the reverse of this rule, concludes his opinion by dissenting from them and adopting the rule we have above laid down, and these cases, we believe, are now generally, perhaps imiversally, followed. See also Dorman v. Kellam, 14 Pr. E., 184. It follows that this specification applies only to cases where two causes of action are joined in the same complaint, which are not in the same class, according to the provision of § 167. And each separate cause of action necessary to be stated, in order to show the misjoinder, must be distinctly pointed out by the demurrer. Cook T. Chase, 8 Duer, 643. The sixth specification may be stated in the demurrer in the words of the specification, without specifying what particular fact, necessary to constitute a cause of action, has been omitted by the plaintiff in his complaint. There has been much conflict of au- thority upon the question whether, in demurring because the com- plaint does not state facts enough to constitute a cause of action, the pleader in his demurrer should be required to be any more specific, in assigning his cause of demurrer, than to use the lan- guage of the sixth specification of the causes for which a com- plaint may be demurred to, by the provisions of the section under consideration. It now, however, seems to be settled, that the words of the specification are in all cases sufficiently definite. We believe the opinion of "Willard, J., in Durkee v. Saratoga E. E. Co., 4 Pr. E., 226, approved by Harris, J., in Getty v. H. E. E. Co., 8 Pr. E., 177, is now universally approved and followed. When the Court hold the demurrer well taken, the plaintiff is allowed to amend on payment of costs, and the order is that the defendant have judgment upon the demurrer, unless the plaintiff pay the costs of the demurrer and trial of the issue of law, and serve an amended complaint in twenty days. If, on the other hand, the demurrer is overruled, the defendant, upon terms similar to those imposed upon the plaintiff, is allowed to withdraw his demurrer and answer the complaint, unless judgment is given for the plaintiff on account of the frivolousness of the demurrer, and even in that case the defendant will be let in to answer upon the 208 OF THE ANSWER. usual affidavit of mei'its, and that the demurrer was put in in good faith, and a copy of the proposed answer duly verified, if such answer sets up a defense which the Court are satisfied is offered in good faith. Fales v. Hicks, 12 Pr. E., 155 ; Mafquise V. Brigham, 12 Id., 400. OHAPTBE II. OF THE ANSWER. We have seen, in the last chapter, to what particular defects a demurrer to a complaint has been limited by the Code. It re- mains to consic^er in what cases an answer (that being the only way in which the defendant can set up a defense where a demur- rer is not allowed,) is appropriate and what it must contain. The answer may be to a part .or the whole of the complaint, and the defendant may leave one or more counts of the complaint entirely unanswered, and in such case, or in case the claim in such counts is admitted, the Court, on motion, may order the de- fendant to satisfy the amount of the claim so unanswered, and may enforce the order in the same manner as a judgment or pro- visional remedy is enforced, and then the suit will proceed in the same manner as if the unanswered part of the complaint was stricken out. Code, § 244. When the answer, however, does not leave any count of the complaint Mdthout denying some material allegation which the plaintiff would be required to prove to entitle him to recover upon the count, issue is said to be taken upon the whole complaint, as it is not necessary to deny every allegation in- order to form an issue upon a cause of action, but the defendant may select, if his defense be a simple denial, the allegation upon the denial of which he will rely for his defense, and by denying that put the whole complaint in issue, if it contain but a single cause of action. The defense by answer is of three kinds. First, a. denial. Second, the setting up of new matter, which, admitting all the allegations of the complaint or count to be true, would still defeat the plaintiff's right to recover. This is what, \mder the former practice, was called confessing and avoiding. And third, a coun- ter-claim. The denial, according to the Code, is of two kinds, a general denial and a specific denial. A general denial of the entire complaint or count, and a specific or special denial of some OF THE ANSWER. 209 particular fact, upon which the defendant relies for his defense, so far as the same is covered by a bare denial. Every allegation, however, which is not denied by the answer, is regarded as admitted for the purposes of the trial of the action. Code, § 168. The entire complaint may be put in issue by this simple answer : The defendant, answering the complaint of the plaintiff, denies each and every allegation in said complaint contained, and prays judgment against the said plaintifif. Kellog v. Church, 4 Pr. E., 339. Code, § 149. If there are any allegations in the complaint which the defend- ant cannot deny, or does not wish to controvert, his denial may be limited by adopting the form following : The defendant, answering the complaint of the plaintiff, denies each and every allegation in said complaint contained, except such as are hereinafter expressly admitted. The defendant will then proceed to admit the parts of the com- plaint which he cannot deny, or which he is not disposed to con- trovert, and conclude as above-mentioned. Care must be taken, in drawing this general denial, that it is clear and positive, and that it contain no words of limitation, as for instance, a general denial in the form following, which we have sometimes seen used, to wit: "denies each and every material allegation in the complaint contained." This word, " material " limits the denial and there is nothing to enable either Court or counsel to determine the extent of the limitation. The denial is simply of what the defendant's attorney understands to be mate- rial, and perhaps the Court wdijild not feel at liberty to point to any particular allegation and say, this is denied. Possibly, how- ' ever, it might be deemed a sufficient denial to put the plaintiff upon proof (we do not, however, think it sufficient even for this purpose), but it certainly is not enough to enable the defendant to select any proposition from the complaint, and give evidence to disprove it. What constitutes a specific denial ? When the first subdivision under § 149 is carefully read, it seems to us difficult to misunder- stand it; the words are, "a general or specific denial of each material allegation of the complaint." This shows that a single allegation may be denied by a general denial. A specific denial requires not only a specification of the thing denied, but the 210 OF THE ANSWER. denial itself must be specific ; that is, it must state the facts spe- cifically which are inconsistent with the truth of the allegation denied. Thus the complaint alleges that A., the plaintiff, sold B,, the defendant, on the first day of June, 1857, for the sum of one hundred and fifty dollars, a horse, known as the "Fox horse." The defendant in his answer denies that A., on the first day of June, or at any other time, sold him the horse in the complaint mentioned, for one hundred and fifty dollars, or any other sum. This is a general denial of what is in fact a single allegation in the complaint. But the defendant may add to his answer : and on the contrary thereof, the said A., on the said first day of June, delivered the said horse, in the complaint mentioned, to the defend- ant to sell for him, for the price of one hundred and fifty dollars. And the said defendant has had the said horse in his possession, for the purpose of selling him under the above arrangement, ever since the said first day of June, and for no other or different purpose. And this is the only contract ever made between the plaintiff and defendant in relation to said horse. The setting up of this different contract makes the denial spe- cial ; and it cannot be objected that the setting up of this contract is pleading evidence. It by no means follows that because a given fact has the effect to prove, or disprove, another fact, that it is necessa,rily obnoxious to the rule that you cannot plead evi- dence. For instance, there is nothing more conmion than to set up a promissory note, and yet this is nothing more than evidence of a debt. And so in a great variety of instances facts are stated in pleading, which are, after all, of no practical use in the particu- lar action, except as they prove or disprove some other fact. The understanding of this word, however, either one way or the other, can make but little, if any, difference with the practice under this section. This section not only authorizes a general or specific denial of the allegations, but it also provides that it shall be a sufficient answer for the defendant to deny any knowledge or information thereof sufficient to form a belief. And in this denial upon infor- mation and belief, the words "knowledge" and "information" must both be used ; denying either of them alone will not make an answer. Edwards v. Lent, 8 Pr. R, 28. When an answer is put in, denying knowledge or information, sufficient to form^ a belief, where facts and circumstances exist, as OF THE ANSWER. 211 appears from tlie complaint and answer, showing that the defend- ant must know whether the allegations so denied are true or false, the Court will strike out the answer as sham. Eichardson V. Wilton, 4 Sand., 708 ; Edwards v. Lent, 8 Pr. E., 28. And if a defendaut denies knowledge or information sufficient to form a belief of facts, the truth or falsity of which he has the means of ascertaining at any time, by inquiry or by reference to books, or papers to which he has access, and this appears up- on the face of the pleadings, the Court will give judgment for the plaintiff, on account of the frivolousness of the answer, under § 247 of the Code ; or he may move to strike out the an- swer, under § 152, as sham. Eichardson v. "Wilton, and Edwards v. Lent, above cited ; Chapman v. Palmer, 12 Pr. E., 37 ; Fales v. Hicks, 12 Pr. E., 153 ; Ketchum v, Zerega ; 1 E. D. Smith, E. 557 ,- Lewis V. Acker, 3 Abb. Pr. E., 166; Wesson v. Judd, 1 Abb. Pr. E., 254; Palmer v. Yates, 3 Sand., 139. K, however, a party, who would be presumed to have knowl- edge, is really igaorant, and circumstances have occurred which have prevented, and still prevent, him from having a knowledge of the facts, the truth of which he is required to admit or deny, either by answering, or by omitting to answer, he should state in his answer the facts which have caused his ignorance upon the sub- ject, which facts will, of course, rebut the presumption of knowl- edge. Fales V. Hicks, above cited. The second kind of defense, which may be set up by answer, is the alleging new and independent facts which constitute a defense. These defenses are always of a character which makes it necessary to admit, either in direct words in the answer, or by legal effect from not denying the material allegations of the complaint; thus : A. complains of B., and shows by his complaint, that on a certain day he sold to B. a quantity of wheat (stating the number of bushels), for the price of two dollars a bushel, amounting to the sum of one thousand dollars ; that the said B. received the said wheat, whereby he became indebted to the said A, in the sum of one thousand dollars, with interest from the time of such sale. B., by his answer, admits the sale and delivery of the wheat as stated in the complaint, and that he is indebted to the said A. in the sum of one thousand dollars for the same ; but for answer to the said action says, that the contract by which he purchased the said wheat from the said A. was as follows: that the said A. 212 OF THE ANSWEE. agreed to sell and deliver the said wheat to the said B., and wait sii months from the time of the sale and delivery, without inter- est, for pay for the same ; and that the said purchase and sale of the said wheat was with the express understanding and condi- tion that it should be upon a credit of six months without inter- est, and that the six months had not yet expired. • These plead- ings must, of course, show the day of the sale. Here every mate- rial allegation contained in the complaint is admitted, and yet the recovery of the plaintiff is defeated by the answer, if true. Take another case to illustrate the practice in this respect, A alleges, in his complaint, that B. agreed with him by contract to purchase, and did purchase, one thousand barrels of flour, for eight dollars a barrel, on the first day of January, 1857 ; and that said B. was to receive the said flour, and pay the said A. eight thousand dollars therefor, on the first day of August, 1857 ; and that on the said first day of August the said B. refused to accept or receive the said flour or pay for the same, and has nev- er received or paid for the same, and that flour was not, on the first day of August, and has not been since, worth more than six dollars a barrel, for which price he was obliged to sell the same ; and claims that he has sustained damage to the amount of two thousand dollars, which he claims to recover. B. answers, admitting the purchase as stated in the complaint, and that the plaintifi" promised to deliver, and he to receive and pay for, the flour, as in the complaint mentioned, but for answer to the complaint says, the said contract, or any memorandum thereof, was not at any time reduced to writing and signed by either of the parties to be charged thereby ; nor was any part of said flour delivered, or any payment whatever made on account thereof. And the defendant insists that the said contract was, and is, void by the statute. This is sufficient to give a general idea of the second kind of answer, which the defendant may interpose under § 149 of the Code. Answers belonging to this class are much more common in actions of tort than in actions arising upon contract. The third kind of defense, authorized by § 149, is the setting up by the defendant in his answer of a counter-claim. By section 150 of the Code, a counter-claim is defined to be a claim existing in favor of a defendant, and against a plaintiff, be- OF THE ANSWER. 213 tween whom a several judgment might be had in the action, and arising out of one of the following causes of action : — 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. A counter-claim thus defined, in actions arising upon contract, embraces every matter of recoupment. Lemon v. Trull, 13 Pr. E,., 248. Yassear v. Livingston, 3 Ker., 252. A defendant may of course set up any number of counter- claims, no matter whether they are legal or equitable, and, in drawing his answer in this respect, the same rule must be observ- ed in answering as is required in complaining ; as each count or cause of action must be distinctly and separately stated, so must each counter-claim and each defense also be distinctly and sep- arately stated. This Eule as to counter-claims is required by the Code, § 150. By Rule 86, all defenses are to be numbered as well as separately stated, and Rule 41 requires all papers more than two folios in length to be folioed, and the folios marked upon the margin. The defendant may demur to some of the causes of action stated in the complaint, and answer to others'; but he cannot so frame his answer as in legal effect to be a demurrer, and answer to the same count, nor can he in any instance answer to the same count to which he has demurred, unless the demurrer be withdrawn. Howard v. Michigan Southern R. R. Co., 5 Pr. R., 206. Slocum V. Wheeler, 4 Pr. R., 373. Spellman v. Welder, 5 Pr. R., 5. The practice in respect to pleading is now like the former practice in one respect. A defendant under the old system was at liberty to plead as many different pleas as he chose, so he may now set up any number of defenses he may have, but here the similarity ceases ; although under the former system the general rule was that the defendant could not plead inconsistent pleas, yet he might plead the general issue, which denied the whole declaration, and at the same time set up any number of other pleas, each of which confessed the allegations in the declaration and avoided them. For instance, in an action in assumpsit, he might say he did not undertake and promise as in the declaration alleged, and in the 214 OF THE ANSWER. next plea admit that he did so undertake and promise, and aver that he had paid the money as promised. Under the Code this cannot be done when the answer is required to be verified. A party cannot in the same answer deny the allegations in a com- plaint, and admit their truth and defend against the liability they create. Take an action upon a promissory note : the defendant cannot in the same answer, on oath, deny the making of the note and then admit the making, and say that he had paid it. In short, each part of the answer must be consistent with every other. By putting in an answer, every objection to the complaint which might have been taken by motion, or by demurrer, is waived, unless it is raised by the answer, except that the Court has no jurisdic- tion or that the conplaint does not show a cause of action. Code, § § 147, 148, 160. Eule 40. , Every material allegation in the complaint which is not denied by a positive general, or specific, denial, or a denial of knowledge or information sufficient to form a belief, is for the purposes of the action admitted. Code, § 168. By the Code as now amended, an answer which contains no new matter cannot be demurred to. Code, § 153. Smith v. Green- ing, 2 Sand., 702. Ketcham v. Zerega, 1 E. D. Smith, E., 557. Thomas v. Harrap, 7 Pr. R., 57. People v. Barbour, 8 Id., 261. Riley v. Thomas, 11 Id., 266. If, however, new matter is intro- duced which doeg not amount to a defense or counter-claim, the plaintiff may demur to such new matter, and this is the only case iu which a demurrer to an answer is allowed. Code, § 153. And, if the answer contain other new matter not covered by the de- murrer and which constitutes a valid counter-claim, the plaintiff may reply to such new matter as is not covered by the demurrer and which constitutes such counter-claim. And he must so reply, or the counter-claim will be admitted by the omission. Code, §168. Wherever the complaint is verified the answer must be verified also. Code, § 156. It is prudent for the pleader, in framing his answer, in order to avoid omitting to answer any material allegation, to take up the complaint paragraph by paragraph, and answer the same in the order of arrangement adopted by the plaintiff in drawing it. An answer confessing and avoiding any cause of action in the complaint, so far as it sets up new matter, and all the allegations OF STRIKING OUT SHAM ANSWERS. 215 relating to the counter-claims set up by the defendant, may, like the allegations of a complaint, be stated upon information and be- lief. Radway v. Mather, 5 Sand., 654. The Code does not authorize, nor does it prohibit the statement of allegations in the complaint, or of new matter in the answer, upon information and belief. The practice, therefore, remains on this subject as it was before the Code, and the practice prior to the Code, in the Court of Chancery, was well established, that allegations might be made in this manner, and the verification prescribed by the Code, for all pleadings which are verified, is substantially borrowed from the verification of complaints and answers in the old Court of Chancery; and the form of verification, thus prescribed by the Code, shows clearly that the Legislature understood that by § 469 of the Code the former practice in this respect was to be continued. Code, §157. New matter, constituting a defense or counter-claim, is required by the Code to be stated in ordinary and concise language, with- out repetition. 2d Subdivision of § 149. The above will be sufficient as a general guide to the pleader in framing his answer, and it is not to be expected that in a mere book of practice we should point out the different defenses which may be set up to any given class of actions ; this belongs to a work upon pleading. We wUl, therefore, content ourselves with re- ferring the practitioner to Van Santvoord's treatise upon pleading, as a safe guide. CHAPTER III. OF STRIKING OUT SHAM ANSWERS. When an answer, fair upon its face, will be stricken out as sham, is said to be a vexed question, in considering which we think we may gain some light by ascertaining how the law upon this subject stood at the time the Code was adopted. And it should be remembered that in our present practice there is no distinction, in one respect, at least, between law and equity, and that is this : you may set up in an answer any matter which would constitute a defense or counter-claim, no matter whether it is a legal or equitable claim or defense : it should also be borne in mind that, under the Code, the practice, while it is a very wide departure from the former practice in the courts of law, bears a 216 OF STRIKING OUT SHAM ANSWERS. strong analogy to the former Chancery practice in many respects, and particularly in striking out redundant, immaterial, irrele- vant, and impertinent matter ; and as, under the present system, the plaintiff, by swearing to his complaint, may require the defend- ant to verify his answer, so, under the former practice, the com- plainant might waive the oath of the defendant, and thus avoid making it evidence against him, and, unless so waived, the defend- ant was required to answer upon oath, and until 1830 the answer of a defendant was always upon oath in the Court of Chancery, and a motion to strike out an answer as false was a thing un- known in Chancery practice. The reason for that we understand to be founded upon the fact, that answers in that Court were sworn to- And the law which authorized the complainant to waive the oath of the defendant was undoubtedly founded upon the idea that cases might well arise where courts of equity alone would have jurisdiction, and where it would be a great hardship to make the oath of his adversary evidence against him. And the reason why motions to strike out, as false, answers in Chancery in this State, where the oath was waived, we think is this : that a complainant would not be allowed to waive the oath- of the defendant, and thus avoid the effect of the answer as evidence against him, and, at the same time, by motion to strike out the answer as sham, to compel the defendant to swear to it, or in some other way prove .its truth, or lose the benefit of it altogether by having it stricken out. From the above, we think it is plain that the reason why motions, to strike out answers as false, were never made in the Court of Chancery, was founded upon the fact that the answer was sworn to. This idea is very much strengthened , wten we take into consideration that for many years the Supreme Court were in the habit, from term to term, of striking out pleas as false, and had a standing rule upon that subject. See Eules of Supreme Court of 1845, Eule 87, which was in the following words: " False and frivolous pleas will be struck out on motion, with costs." The practice upon this subject, at the time the Code was adopted, was tolerably well settled, certain rules having been established by judicial decision, which were never departed from, which lim- ited the cases in which motions to strike out would be entertain- ed. It was well established that the general issue would not be ' stricken out as false. Wood v. Sutton, 12 Wend., 235, and 6 Cow., 34. Brewster v. Hall, in which Savage, C. J., reviews all the OF STRIKING OUT SHAM ANSWERS. 217 authorities on the subject, and remarks as follows : " Thus it will be seea that the English cases do not entirely agree as to the kind o pleas which the Court will strike out. They all agree that the plea must be without pretense in point of fact ; but when we come to its legal nature we find precedents for setting aside both those which are plainly good and others of doubtful validity. Some- times the criterion is delay and expense, and sometimes ingenuity and delusion. In truth, perhaps, no general rule can be laid down on the subject. Courts have never yet set aside the general issue ; but beyond that it seems to me the matter must, in a great mea- sure, rest in sound discretion. The power to set aside sham pleas is now well established. The great object is to prevent delay and expense to the plaintiff, and consuming the time of the Court in passing upon pleas which are a mere fiction, an unseemly and ex- pensive incumbrance upon the record, and a fraud upon the rule which requires double pleading." This decision of Chief Justice Savage refers entirely to pleas which were not verified, as at the time he was writing there was no oath required to the truth of any plea in bar. But, in 1840, and subsequent to .that time the old Supreme Court, by their general rules, required special pleas, put in under certain circumstances and as to certain defenses, to be accompanied by an affidavit of their truth, or they might be disregarded. See Supreme Court Rules, 1845, Rules 23, 93, and 99. In 1841, and after the adoption of those rules, Bronson, J., in Maury v. Van Arnum, use's the following language : "When pleas have been duly verified, pursuant to the first rule of May term, 1840, there can be no use in a motion to strike them out on the ground o? falsity." " "We do not try this matter upon affidavits, and it is enough that the defendant has once sworn to the truth of the pleas." From the above, we arrive at the conclusion that prior to the Code the following principles, or rules of practice, were well estab- lished upon this subject : 1. That motions to strike out false answers were never enter- tained in the Court of Chancery, because answers in that Court were sworn to in the first instance. 2. That in the Supreme Court, before the Code, false special pleas, as a general rule, would be stricken out on motion. 3. That an exception to this rule was, that where the plea was 218 OF STRIKING OUT SHAM ANSWERS. sworn to, in accordance with the practice of the Court, before serv- ice, a motion to strike it out would not be entertained, because the Court would not try the question, raised by the plea, upon affidavits, 1 Hill, 370 ; and this case was never overruled or questioned before the Code. 4. That the general issue was never stricken out as false, be- cause to do so would be to try the cause upon affidavits, or to give the plaintiff judgment upon his swearing that his declaration was true if the defendant would not swear it was untrue. 5. That on a motion to strike out a special plea as false, if the defendant met it by an affidavit that the allegations, constituting a defense, which were contained in the plea, were each and every one of them true, the motion would be denied. The question then arises, has the Code changed the law upon this subject^ The provisions of the Code, as to striking out pleadings or parts of pleadings, are : 1. Irrelevant or redundant matter will be stricken out, on motion. Code, § 160. 2. "Where a demurrer or answer is frivolous, the plaintiff may move for and obtain judgment, because it is frivolous. Code. §147. 3. Where an entire defense is sham or irrelevant, it may be stricken out, on motion. Code, § 152. Eedundancy is that whieh is wholly unnecessary to the mean- ing, and which, when stricken out, will leave the sense of the pleading unimpaired. Irrelevancy is that which does not relate to the subject under consideration ; in an answer, that which does not relate to the subject matter of the complaint, or count, which the party is an- swering, or to any counter-claim the defendant is setting up. Sham, as used by the Code, and also prior to the adopting of our present system, when applied to pleadings, means false ; the words are regarded as convertible terms and are used indiscrimi- nately by the Courts in judicial decisions. Prior to the Code, and subsequent to 1840, by general rule of the Supreme Court, false special pleas might be stricken out, on motion, and during that time special pleas were some times put in without oath, and some times sworn to, and when sworn to the oath was required by general rule of the Court. OF STRIKING OUT SHAM ANSWERS. 219 By the Code, sham answers may be stricken out, and by the Code, also, some answers are put in on oath and some without. But an answer is not required by the Code to be verified, unless the plaintiff desires it, and that desire is manifested by verifying his complaint. Code, § 156. It seems to us that there can be no greater reason now for allowing a motion to strike out an answer as sham, which has been verified, than there was before the Code to strike out a plea, which was put in on oath, as false. Indeed, we think there is a very strong reason why a change should not be made in favor of the motion to strike out, in cases where the complaint has been sworn to. If the plaintiff did not wish the defendant to swear to his answer, he should not have sworn to his complaint ; by doing so he compels the defendant to answer on oath, or not at all. But the perfect answer to striking out a sworn pleading is, that it necessarily tries the issue tendered by it, and this issue the party has a right to have tried in the manner provided by law for the trial of issues of fact. And, without reviewing upon paper the numerous conflicting decisions upon this subject, we, after a care- ful examination, have arrived at the conclusion: First, that the conflict is more in the language used in making the several de- cisions than in the decisions themselves. By decision here we ' mean the point necessary to be decided in the case ; and by strict attention to the point decided in the case, claimed to be in favor of striking out sworn answers, we think it will be found that the question was not necessarily involved in them, in the majority of instances. Second, some of the cases, it must be conceded, are direct adjudications upon the point, and some of them go so as far to hold that a general denial, put in under oath to the entire com- plaint, will be stricken out as sham, and the question whether it is true or false be decided upon affidavit. We do not cite these cases, for the reason that we cannot bring ourselves to believe that the doctrine contained in them ever was, or ever will become, the law upon this subject; and having thus passed over the class of cases above mentioned, we lay down the following rules as the result of the weight of authority, as well as in accordance with sound principles, upon this subject : First. That no answer which is verified, as a general rule, will be stricken out as sham. Miln v. Vose, 4 Sand., 660. Mix v. Cartedge, 8 Barb., 75. 220 OF STRIKING OUT SHAM ANSWERS. Second. That a motion to strike out, as sHam, any answer or any part of an answer other than that which sets up new matter, either as a bar or a counter-claim, will not be entertained in any case, whether the answer is sworn to or not. Livingston v. Finkl'e, 8 Pr. R., 485 ; White v. Bennett, 7 Id., 59 ; Winne v. Sickles, 9 Id., 217; Grant v. Power, 12 Id., 500. Third. That there is a class of cases forming an exception to the rule that a sworn answer will not be stricken out as false, that is, when the pleadings on their face show that the defendant must have known whether an allegation in a complaint was true or false, of which allegation he says, in his answer, he has no knowl- edge or information, sufficient to enable him to form a belief. Eichardson v. "Wilton, 4 Sand., 708. Fourth. There is another class of cases (or, perhaps, an enlarge- ment of the same class) which fornis an exception to the rule that a sworn answer will not be stricken out as sham; and that is where, from the face of the pleadings, it appears that the defend- ant, if he did not know, or was not informed upon the subject, was willfully ignorant ; or, in other words, if the allegation was of facts immediately within a business with which the defendant was connected, and where he could inform himself as to the truth or falsity of the allegations in the complaint, whenever he chose to be so informed. Edwards v. Lent, 8 Pr. R., 28; Chapman v. Palmer, 12 Pr. R., 37 ; Pales v. Hicks, Id., 153 ; Ketchum v. Zerega, 1 B. D. Smith's R., 555. Fifth. We think there is also further exception to the above rule, which should be made, which, although it is contrary to one or two reported cases, will have the effect to reconcile several others, and tend to promote the ends of justice ; and that is, when new matter is set up in an answer, upon information and belief, and the answer is sworn to ; on a motion by the plaintiff to strike the same out as sham, upon affidavits showing it to be false, the defendant should be called upon to show by affidavit what his in- formation was, and how it was obtained, or have the new matter struck out. Among the cases which are in conflict with the decisions from which the above rules are extracted, we have selected the two last decisions, one from the class where the decision made was wholly unnecessary in the case, viz. : Walker v. Hewitt, 11 Pr. R., 395; and the other, the Manufacturers' Bank of Rochester v. OF STRIKING OUT SHAM ANSWERS. 221 Hitclicock, 14 Pr. E., 406 ; where the learned Justice remarks, without any call for it in the case, that a general denial, whether sworn to or not, may be set aside as sham; and then meets, fully and fairly presented, the question whether a sworn answer, setting up new matter, will be stricken out on motion as sham, and de- cides to strike it out. In Walker v. Hewitt, the answer on its face was clearly frivolous, and one upon which, had the motion been for that purpose, judgment would have been given for the plaintiff; but we think it ma}^ also have been called sham, and stricken out as such, within the rules above laid down. The fact that the note was an accommodation note, and that the blank was filled up with one hundred and twenty days, instead of sixty, and that the person to whom the note was first transferred took it with knowledge of those facts, amounts to nothing, if disconnected from what follows in the answ^er. And if what follows amounts to anything, as we understand it, it is this : the defendant denies any knowledge or information as to how, or when, the bank recived the note, and then praj^s leave to deny the same. Thus far, all that is said does not amount to a defense. He then adds this affirmative allegation, that the bank took the note with full knowledge of all the parts. If this is intended by the pleader to be understood as a positive allegation, and we see no reason why it should not be so understood, then it is false ; for he has said above, substantially, that he had no knowledge how, or when, the bank received the note. One of these two propositions must be untrue, and then the answer should have been stricken out as sham, within the case of Richardson v. Wilton, above cited, and accord- ing to third rule above laid down. And if the allegation that it was received with knowledge of the facts, as alleged, is not a posi- tive allegation, but barely that the pleader prays the Court to understand him as so believing, then the answer is perhaps worse than false. It is a gross attempt to impose upon the Court and the party, by a long array of useless and unmeaning allegations, ingeniously arranged in order to deceive, and should have been stricken out as sham for that reason. We think the learned Jus- tice W3i? clearly right in striking out the answer in this case, as sham, and all his remarks upon the subject of striking out a sworn answer as snam upon affidavit, in cases where the want of good faith did not appear upon the face of the pleadings, were wholly uncalled for by the case, and arc therefore not to be regarded as 222 OF STRIKING OUT SHAM AKSWEES. authority. In the case of the Manufacturers' Bank of Eochester V. Hitchcock, the decision, that a sworn answer setting up new matter would be stricken out as sham upon afi&davit, was upon that question fairly and necessarily raised in the case, and is in this respect in conflict with the rules we have above laid down ; but the remarks of the learned Justice, that a general denial, whether sworn to or not, would be stricken out as false upon affidavits showing it to be untrue, were wholly uncalled for in the case, and are not to be regarded as authority. It has been remarked by a learned and able jurist, in speaking upon this subject, that we cannot reason by analogy from the prac- tice under the former system. We differ with him in opinion. Under the former practice, sometimes special pleas were required to be sworn to, and sometimes they were not, and by general rule false pleas would be stricken out on motion. Supreme Court Eules, 1845, Rule 87. Under that general rule a sworn special plea would not be stricken out, nor would the Court in any case strike out the general issue, although that was never sworn to. By the Code, sham answers will be stricken out on motion, and this we have seen means false answers. Under the present sys* tem, too, some answers are sworn to, and some are not. It is true the general issue, eo nomine, has been abolished, but a general denial is substituted in its place, and the only difference between the general rule under the old system, and the provisions of the Code, under the new, is, that the plaintiff may require the general denial to be sworn to, whereas, the general issue was never veri- fied. The two systems, in this respect, seem to be almost in exact accordance with each other, and it is never safe to depart from an old and well-established rule, unless it is quite manifest that some evil is to be avoided or benefit derived from the change. In addition to this, a motion to strike out a general denial cannot be founded upon affidavits that the general denial is false, but the affidavits must go to show that the allegations in the complaint are true, and hence that the general denial, being inconsistent with those allegations, must be false. This we understand to be a direct trial of the whole cause upon affidavits. This was the reason why the general issue was not stricken out as false under the former system, and it is undoubtedly a good and sufficient reason why a general denial should not be so stricken out. We do not believe the Legislature had the most remote idea that they OF STRIKING OUT SHAM ANSWERS. 223 were abolishing trials of issues of fact by jury, and substituting this summary method of settling the rights of parties, without affording any opportunity to one party to cross-examine the wit- nesses of the other, and thus to elicit truth and arrive at justice. The notice of motion to strike out an answer as sham may be in the following form : SUPREME COURT. Take notice, that upon the complaint and answer in this action, and the affidavits, with copies of which you are herewith served, a motion will be made at the next Special Term of this Court, to be held at the City Hall, in the City of Albany, on the last Tues- day of September instant, at ten o'clock of the forenoon of that day, or as soon thereafter as counsel can be heard, for an order striking out the answer of the defendant in this action as sham and irrelevant, or for such other order as to the Court shall seem meet in the premises, with costs. Dated, &c. Yours, &c., 0. W. ROOT, Pl'ff's Att'y. To D. Gardner, Esq., Def't's Att'y. When the motion is founded upon the pleadings alone, the notice will be formed accordingly. The order may be in the following form : At a Special Term of the Supreme Court, held at the City Hall, in the City of Albany, on the twen- ty-ninth day of September, 1857. Present: Ira Harris, Justice. On reading the pleadings in this action, and affidavits and no- tice of motion, on motion of C. W. Root, for plaintiff, after hear- ing counsel opposed : Ordered, that the answer of the defendant in this action be stricken out as sham, with ten dollars, costs of this motion, to be paid by the defendant to the plaintiff. The Court rarely, when an answer is stricken out as false, give the defendant leave to put in a new answer, as a false answer can- not well be supposed to be put in in good faith, 224 OF STRIKING OUT, ETC. CHAPTER IV. OF STRIKING OUT REDUNDANT OE IRRELEVANT MATTER FROM AN ANSWER. The general rules, as to what will be stricken out as redundant or irrelevant, will be found in Chapter 13 of Part 1st, ante, page 100 and sequel, where the practice upon this subject together with the necessary practical forms will also be found. The object of this chapter is simply to notice the very few rules upon this subject, which are applicable to answers only, and to cite some cases illustrating the same. The general rules, in ascertaining whether matter is redundant or irrelevant, are : 1. To inquire whether an allegation is a mere repetition of what has been said before. 2. Whether it is an allegation of new matter forming a neces- sary part of a defense set up in the answer. 8. Whether it is a necessary allegation in setting up a counter- claim in the answer. 4. Whether it is responsive as a denial, or as forming a neces- sary part a of denial of an allegation contained in the complaint. If the matter proposed to be stricken out is a repetition .of what has been before stated, it will be stricken out as redundant, unless it is a short sentence, in which case the Court may deny the motion, although the matter is conceded to be redundant. Whenever the answer to either of the other three inquiries (suggested by the above rules) is in the affirmative, the matter will be stricken out as irrelevant. Any allegation contained in an answer which is responsive to the complaint, or is a denial or a necessary part of a denial of any- thing in the complaint contained, will not be stricken out as re- dundant or irrelevant, although the issue formed thereby would be wholly immaterial. King v. Utica Insurance Co., 6 Pr. R., 485. IngersoU v. Ingersoll, 1 Code Rep., 102. A defense will not be stricken out upon the ground that the facts which it sets up might have been given in evidence under a general denial. Hollenbeck v. Clow, 9 Pr. R., 292. Any allegation in an answer which does not put in issue any portion of the complaint, and which would not be admitted in OF MOVING FOR JUDGMENT, ETC. 225 evidence at tTie trial, is irrelevant. Brown v. Orviz, 6 Pr. E., 376. Any matter whicli by the rules laid down in Chapter 13, of Part 1st, above referred to, would be stricken from a complaint, would, as a general rule, be stricken from an answer as redundant or irrelevant. CHAPTBE V. OF MOVING FOR JUDGMENT ON THE GROUND OP THE FRIVOLOUS- NESS OP A DEMURRER. By the former practice, a demurrer which was interposed merely for the purpose of delay, and which had no real founda- tion or color for its support, would be stricken out on motion and judgment given in favor of the party to whose pleading the demur- red was interposed, on the ground of its frivolonsness. Graham's Practice, 608. But a motion for judgment, on the ground of the frivolonsness of a demurred, woiild be denied, unless the frivolonsness was ap- parent upon the mere statement of the case ; if it required an argument to show that it was not well founded, the Court held it not to be frivolous and they would not listen to an argument to show that it was so. On the other hand, they would listen to any suggestion by coun- sel, to show that the demurrer was well taken and pointed to a real defect in the pleading demurred to. And this doctrine is applied to the practice under the Code, relative to striking out frivolous demurrers. Code, § 247. By the practice under this section of the Code, the motion may be made at any time, for judgment on account of the frivolonsness of a demurrer, before the issue of law formed by it has been, by the party whose pleading is demurred to, placed upon the calendar for trial at the circuit, and perhaps at any time before an actual argument before the Court. Darrow v. Miller, 3 Code Eep., 241. Currie v. Baldwin, 7 Sand., 690. This motion may be made either to the Court or before one of the Justices of the Court at chambers, on a notice of five days. Code, § 247. The notice should be substantially in the following form : 26 OF MOVING FOB JUDGMENT, ETC. SUPEEME COUET. A.B. I agt. i CD.) Take notice, that a motion will be made at the next Special Term of the Supreme Court, to be held at the Capitol in the city of Albany, on the last Tuesday of October instant, at ten o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, (or before the Hon. George Gould, one of the Justices of this Court, at his office in the city of Troy, on the 20th day of October instant, at ten o'clock in the forenoon), for judgment in favor of the plaintiff in this action, on account of the frivolousness of the demurrer, by the defendant, to the complaint of the plain- tiff. Yours, &c., Dated, October 15th, 1857. JOHN McCONIHE, To A. A. Lee, Esq., Pl'ff 's Att'y. Att'y for Deft. "When a notice of motion for judgment, on account of the friv- olousness of a demurrer, is given before the twenty days have elapsed after the service of the demurrer, within which the de- fendant might amend or withdraw his demurrer and answer, if the demurrer is amended or withdrawn, and an answer served within the twenty days, the motion will be denied without costs to either party. Currie v. Baldwin, 4 Sand., 690. The Court will not pronounce a demurrer frivolous unless the grounds of it are so clearly untenable and without foundation as to make it perfectly apparent that it was interposed merely for the purpose of delay ; and this must appear from the mere reading of the pleadings without argument. Sixpenny Savings Bank v. Sloan, 12 Pr. E., 544. Same case, 2 Abb., Pr. E., 414. Eae v. Washington Mutual Ins. Co., 6 Pr. E., 21. Although it is a matter of course to allow a party, whose de- murrer is held insufficient, to answer on payment of costs, yet it by no means follows that a defendant will be allowed to answer when his demurrer has been held frivolous, on a motion for judg- ment on account of its frivolousness. 1 Johns. Cas., 135 ; 7 Cow., 101. And the practice is not, where a motion for judgment on account of the frivolousness of a demurrer is granted, to make the order for judgment in any manner conditional. But if the defendant has put in his demurrer in good faith, and has a defense which he wishes to set up, he should make a motion upon notice for that purpose, and should also serve, with his notice of motion. ETC. 227 a copy of the answer he desires to put in, and also an affidavit of merits, and that the demurrer was put in in good faith. This was the former practice, and we can see no reasoa why it should not still be followed. See 7 Cow., 101. Marquesu v. Brigham, 14 Pr. E., 400. "When judgment is given for the plaintiff, on the ground of the frivolousness of a demurrer, the demurrer forms a necessary part of the record, as the defendant has a right to appeal from the decision overruling it. The defendant is in such case entitled to notice of the assess- ment of damages, the demurrer being an appearance in the action. King V. Stafford, 5 Pr. R, 30. And the judgment is perfected in all respects in the same manner as judgment for want of an answer. For the practice in perfecting judgment, see ante, part I., chap. 27. CHAPTEE VI. OF MOVING FOE JUDGMENT ON FRIVOLOUS ANSWER. Whenever the answer does not set up a defense, and the defect is so obvious as not to admit of any doubt upon the subject, the defendant may move for judgment on account of the frivolous- ness of the answer, at a Special Term of the Court, or before a Judge at Chambers, on five days' notice. Code, § 247. Temple V. Murray, 6 Pr. E., 331. The practice in motions for judgment, on account of the frivo- lousness of an answer, differs in one respect, at least, from that of motions on account of the frivoloasness of a demurrer. On the motion for judgment, when a frivolous answer is put in, the practice is to hear an argument, and listen to all the views and authorities which counsel may express or cite upon the subject, and then the motion is decided, sustaining the answer, if the question whether it sets up a defense is one of fair and reason- able doubt in the mind of the Court. Temple v. Murray, above cited. McMurray v. Gifford, 5 Pr. E., 14. The motion for judgment on account of the frivolousness of an answer is decided upon the face of the pleadings alone, and the meaning of the term frivolous answer, as now settled by judicial 228 OF MOVING FOE JUDGMENT, ETC. decision, is as follows: "a frivolous answer denies no material averment in the complaint, and sets up no defense." Brown v. Jennison, 3 Sand., 782 ; Hull v. Smith, 8 Pr. E., 150. The motion for judgment, because the answer is frivolous, may be made at any time before the trial of the action. Hull v. Smith, above cited. The following cases, which have already been adjudged, may aid the practitioner in determining when a motion for judgment, on account of the frivolousness of an answer, would be proper. In an action on a promissory note, an answer was put in setting up two defenses. The first denied that the defendant was indebted to the plaintiff as alleged in the complaint, but did not deny the making of the note, or the ownership of it by the plaintiff. The second stated the defense conditionally, that if the plaintiff owns the note, then it was procured from the defendant by fraud, but it did not allege that the plaintiff had any knowledge of the fraud, or that the plaintiff did not become the owner of the note before it became due, and in the ordinary course of business. Both these defenses were held frivolous, and judgment was given for the plaintiff, on motion. McMurray v. Gifford, 5 Pr. E., 14. So an answer to a count, claiming to recover for a balance due on an ac- count for goods sold, stating that the defendant has no recollection suf&cient to form a belief whether the amount claimed in the count was due from him to the plaintiff, was held frivolous, and judgment given for the plaintiff on the count. Nichols v. Jones, 6 Pr. E., 355. So also in an action upon a promissory note, an answer admitting the making of the note, and denying any indebt- edness to the plaintiff upon the same, denying also the allegation in the complaint of non-payment, or that there was anything justly due upon the note, was held to be frivolous, and judgment given for the plaintiff on motion, for that reason, upon the ground that the note, which was admitted, was evidence of the indebted- ness sufficient to entitle the plaintiff to recover,*and the onus pro- bandi would be thrown upon the defendant in the first instance at the trial : and as the mere denials contained in the answer would not authorize the defendant to give evidence of payment or of any other fact tending to a defense, the answer was clearly frivol- ous, and did not form any issue which could be sustained by evi- dence. Edson V. Dillaye, 8 Pr. E., 274. ETC. 229 See also the same principle contained in the above proposition, in the opinion of Duer, J. in Catlin v. Gunter, 1 Duer, E., 265. By § 153 of the Code as amended, an answer cannot be demur- red to unless it sets up new matter, and this motion for judgment on account of the frivolousness of the answer, we think was de- signed to be used as a substitute for the demurrer to an answer which was defective in substance, or which did not by its denial put in issue an allegation which the plaintiff would be required to prove to entitle him to judgment. On this subject see Hull v. Smith, 8 Pr. R, 150, where Judge Oakley remarks, " Such a mo- tion is a substitute for a demurrer, and raises substantially the same question." This decision was concurred in by Duer, Bosworth, Emmett and Campbell, J. J. It makes no difference whether the answer is sworn to or not, although a sworn answer will not be stricken out as sham, yet the verification will make no difference, and has never been held in answer to a motion for judgment on account of the frivolousness of a pleading. Thorn v. Maynard, 10 Pr. R, 25 ; Reed v. Latson, 15 Bart., 17. When a motion for judgment on account of the frivolousness of an answer is granted, there is a difference of opinion upon the Bench whether the Judge, or Court, at the time of the decision of the motion have power to make the order conditional : that is to say, that the plaintiff have judgment, &c., unless the defendant, within a given number of days, pay the costs and serve an amend- ed answer. In. Shearman v. New York Central Mills, 1 Abb. Pr. E., 190, Pratt, J. remarks, that a Judge has no power, upon this motion, to allow an amendment ; but if the answer is frivolous, judgment must be given for the plaintiff, which he may proceed immediately to enter. On the contrary Harris, J. in Pales v. Hicks, 12 Pr. E., 155, holds that a conditional order may be en- tered in such case ; and that a Judge at Chambers, for this purpose, has the same power that he has when acting as a Court in Term. We have no doubt of the soundness of this construction of § 247 of the Code. The. language of that section is, that a party " may apply for judgment," and that "judgment may be given according- ly." "We can see nothing in this language which takes away or in any manner limits the usual discretionary power possessed by the Court. In a case, however, where there was reason to doubt the good 1 230 OF MOVING FOE JUDGMENT, ETC. faith of the defendant, or to believe that a better answer could not be put in truly, the judge before whom the motion was made would undoubtedly leave the defendant to his motion, upon notice for leave to serve an amended answer, and perhaps he might be required in such case to serve, with his notice of motion, a copy of the proposed amended answer. See on this subject Marquisee V. Brigham, 12 Pr. E., 400. Wherever leave to amend is given, in such case, it is on the pay- ment of all the costs to which the opposite party has been subjected in consequence of the putting in of the frivolous answer, including costs of opposing the motion for leave to amend, in cases where such motion is made. The notice of motion may be in the following form: SUPKEME COURT. Take notice, that a motion will be made at the next Special Term of the Supreme Court, to be held at the City Hall in the city of Albany, on the last Tuesday of October, instant, at ten o'clock in the forenoon of that day, or as soon thereafter as coun- sel can be heard (or before the Hon. Ira Harris, one of the Justices of this Court, at his of&ce iu the city of Albany, on the 20th day of October instant, at ten o'clock in the forenoon of that day), for judgment in favor of the plaintiff in *bis action, on account of the frivolousness of the answer of the defendant. Dated, October 15th, 1857. Yours, &c., J. FOESYTH, Prff-s Att'y. To J. J. ViLLE, Esq., I Def t's Att'y. [ If the motion is granted and is made before a Judge at Chambers, the order should be in the following form : SUPREME COURT. A. B.| agt. y C. D.) On reading notice of motion, complaint and answer in this ac- tion, and after hearing counsel for the respective parties, on motion of j'. Forsyth for plaintiff : Ordered that plaintiff recover judgment OF MOVING FOR JUDGMENT, ETC. 231 in this action on account of the frivolousness of the answer of de- fendant, and that said judgment be perfected as if no answer had been served in this action. Dated, &c., IRA HAREIS. If the motion be made in Court, the order will be in the same form, except the caption will be as follows : At a Special Term of the Supreme Court, held at the City Hall, in the city of Albany, on the twenty- ninth day of October, 1857. Present — Ira Harris, Justice. Then entitle the cause, and proceed in the same manner as in the above form, except that when the order is made by the Court it should be entered in the oifice of the Clerk of the County where the venue is laid, instead of being signed by the Judge. For the proceedings in perfecting judgment, and the necessary forms for that purpose, see ante, Part 1, Chap. 27. It yet remains to consider one state of facts under which a motion for judgment, on account of the frivolousness of an answer, will be denied, although the answer is confessedly frivolous and worthless, and that is : First, where it appears upon the face of the complaint that the Court has not jurisdiction of the action; or, Secondly, where the complaint does not state facts enough to constitute a cause of action. We have stated above, that this m.otion is, in some respects, to be regarded as a substitute for a demurrer to an answer, and in this case judgment is given in the same manner as it would be upon a demurrer ; that is, against the party who has committed the first fault in pleading. This is the rule upon a demurrer now, and was before the Code. The People V. Banker, 8 Pr. R., 262 ; Schwabt v. Furniss, 4 Sand., 704. Gould's PL, c. 9, § § 36 to 40. But by the Code, the application of this rule is now limited to cases of want of jurisdiction in the Court, and where the com- plaint does not state facts enough to constitute a cause of action. Code, § 148. And in cases when the complaint is defective for either of these reasons, if the plaintiff moves for judgment on ac- count of the frivolousness of the answer, the Court or judge upon the argument of the motion, may dismiss the complaint, and order judgment in favor of the defendant, notwithstanding the answer 232 OF MOVING FOB JUDGMENT, ETC. is frivolous, on the ground that the plaintiff has committed the first fault in pleading. And the same rule applies when a motion is made by the defendant for judgment on account of the frivol- ousness of a reply ; although the reply is bad, yet if the answer is also frivolous, judgment will be given for the plaintiff upon the motion, in the same manner as if it had been a motion for judg- ment, on account of the frivolousness of the answer made by the plaintiff. Eayner v. Clark, 7 Barb., ,581. In case where a motion is made by the plaintiff for judgment on account of the frivolousness of the answer, and judgment is given for the defendant, on the ground that the complaint does not state facts enough to constitute a cause of action, the order should be in the following form : At si Special Term of the Supreme Court, held at the City Hall, in the city of Albany, on the 29th day of October, 1857, Present — W. B. Wright, Justice^ On reading complaint, answer, and notice of motion for judg- ment for the frivolousness of the answer, and on its appearing, by inspection of the complaint, that it does not contain facts suffi- cient to constitute a cause of action, and after hearing counsel for the respective parties, on motion of J. D. White for defendant: Ordered, that the complaint in this action be, and the same is hereby dismissed, and that the defendant recover judgment for his costs. Where the motion is made before a Judge at Chambers, the form of the above order will of course be changed, omitting the caption at a Special Term, &o., and having the order signed by a Judge, instead of entering it in the office of the Clerk. The same rule in giving judgment against the party who makes the first fault in pleading, as above laid down in motions for judg- ment on a frivolous answer, will apply also to motions for judg- ment on a frivolous demurrer : and the form above given will- be a sufficient guide in drawing the order, where the motion is on account of the frivolousness of the demurrer. 0? THE REPLf. 233 CHAPTEE VII. OF THE EEPLT. Where the answer contains new matter constituting a defense, whether it be by admitting and avoiding the allegations in the complaint, the new matter being such as shows that they create no liability on the part of the defendant to the plaintiff, or sets up a claim or demand in favor of the defendant against the plaintiff, further action on the part of the plaintiff may be required ; and in case of a new demand — which is called a counter-claim — will be absolutely necessary, in order to protect his interests in the action. If a counter-claim is not contained in the answer, then, the new;' matter set up as an avoidance of the claim made by thp. complaint can only be met by a demurrer, as a reply is not authorized by the Code where the answer does not set up, g, counter-claim. Code, § 153. In case a counter-claim is set up in, thg answer, the plaintiff must reply, in order to put the cause, at issue ;, the consequence of omitting to reply will be considered in a subsequent chapter. The reply may be : First, either ^ general or special denial of the allegations constituting the co,un,ter-clajm, or of any knowledge or information thereof, sufficient to form a belief; or, Secondly,, may set up any other defense to such counter-claim, not inconsist- ent with the coniplaint. Code, § 153- The manner of framing the, denial to the allegations which con- stitute a counter-claim, and what will be a sufficient, denial to take an issue upon the claim set up, in the answer are fully considered before in Part 2, Chapter- 2, and it is sufficient to refer the reader to that chapter for the practice upon this subject, as the denial of a counter-claim in an answer and the denial of a claim-Set up in the complaint, are in all respects precisely the same, and subject. to the same rules, and are governed by the same principles, in testing their sufficiency. Where the reply sets up new matter, in addition to the rules which apply to. the setting up of new matter in an answer, the plaintiff is limited to matter not inconsistent with the allegations in the complaint ; and as we understand the Code, anything which is not inconsistent with the complaint may be set up, provided it 234 OF THE EEPLY. constitutes an answer to the counter-claim. It has, however, been doubted whether a new indebtedness or counter-claim can be set up in the reply against a counter-claim in an answer. We con- fess we see no reason for raising this doubt. There are certainly some cases where the only defense against the defendant's counter- claim would be a statement of facts on the part of the plaintiff which the Code has defined to be a counter-claim. Anything which would constitute a recoupment or mitigation of or from the amount of a demand, is held to be a counter-claim. Code, § 150; Pattison v. Eichards, 22 ; Barb., 146. Suppose the counter- claim set up in the answer is a promissory note against the plain- tiff, held by the defendant, for the sum of two hundred dollars, and suppose that note to have been given for the purchase-money of a horse, warranted by the defendant to the plaintiff to be sound and free from fault, and in consequence of a breach of that war- ranty the plaintiff has sustained damage to the amount of one hundred and seventy -five dollars ; can there be any doubt that the plaintiff could set that up as a defense against that amount of the note which constituted the defendant's counter-claim ? And yet this would be setting up a counter-claim in the reply. This is sufficient illustration to show that in some instances, at least, a counter-claim may be set up in answer to a counter-claim. And why not in all cases ? We cannot perceive that any evil, or even inconvenience could result from it, and certainly the language of the Code authorizes it, and the ends of justice seem to require it. Our view of this qustion is sustained by Miller v. Losee, 9 Pr. E., 356. A plaintiff would not be allowed to divide an entire account and sue for a portion of it, and then bring in the residue of the same account in his reply to the counter-claim of the de- fendant, any more than he would be allowed to recover a judg- ment for a part of the account and then maintain another action for the balance. But when the action is brought upon a promis- sory note, or other independent contract, and the defendant sets up a counter-claim consisting of matters of book account or other- wise, why should not the plaintiff be allowed by his reply to extinguish so much of the defendant's counter-claim as any ; account he might have against the defendant should amount to ? The only other question relative to the reply which is not fully covered by chapter 2, above referred to, and the remarks herein ■ contained, is whether the matter contained in a reply is inconsist- OF DEMUEBEE TO ANSWEE. 235 ent -witli the complamt, and if it is, when that inconsistency will be cured. The enquiry what is inconsistent, requires no com- ment. Where the complaint and reply are inconsistent upon their face, and where the complaint would have been bad upon demurrer, if the answer supplies the defects in the complaint and makes allegations of fact which explain the apparent inconsist- ency, the whole will be cured ; and on a demurrer to the reply, the plaintiff would have judgment, because the answer had sup- plied the defects in the complaint and cured the inconsistency be- tween it and the reply. White v. Joy, 3 Kernan, 83. CHAPTEE yill. OF DEMUEBEE TO ANSWEE. When the answer contains new matter, each separate defense should be separately stated and numbered, and if it is not so done, the plaintiff may frequently be embarrassed in determining wheth- er one or more defenses is intended to be set up in the answer, as the plaintiff cannot demur to one part of an entire defense and reply to another, nor can he select such parts as he may deem to have been intended as an entire defense and demur thereto, without the risk of a mistake, and the covering of too much or too little by his demurrer, and having it overruled for that reason. The only safe way, where the defenses are not stated separately and numbered, is for the plaintiff to move to half the answer, made more certain and definite under section 160 of the Code; or to return the answer to the defendant, on the ground that the defenses are not numbered, and when the defenses are numbered, the plaintiff may demur to any one or more, and reply to the residue, as the circumstances of the case may require. Code, § 153. A demurrer can in no case be interposed to a mere denial nor to anything in an answer other than new matter interposed as a de- fense. But wherever the new matter introduced does not amount to a defense, or counter-claim, a demurrer is the appropriate re- medy. The plaintiff should always take care, in demurring, that his complaint is unobjectionable ; for if the complaint show on its face a want of jurisdiction in the Court, or does not state facts enough to constitute a cause of action, judgment will be rendered 236 .OF DEMUBEBR TO ANSWER. in favor of the defendant, notwithstanding his answer may be clearly bad upon demurrer ; and so if the defendant demur to a reply and his answer does not constitute a defense, or rather does not contain facts sufficient to show a valid counter-claim, in the Court to which the reply is interposed, judgment will be given in favor of the plaintiff, notwithstanding the reply may have been frivolous. The People v. Banker, 8 Pr. R., 261 ; Schwab v. Fur- niss, 4 Sand., 701 ; Stoddard v. Onondaga Ann. Conf , 12 Barb., 575. This rule is borrowed from the practice before the Code, and the reason of it is thus explained by Judge Gould in his work on Pleading : " A demurrer, in Avhatever stage of the pleading it is taken, reaches back, in its effect, through the whole record, and in gen- eral, attaches ultimately upon the first substantial defect in the pleadings, on whichever side it may have occurred — defects hi sub- stance not being aided by tlie adverse party's mere pleading over, as formal defects are." "Thus if the declaration is ill, in substance — the plea in bar frivolous — and demurrer joined, on the plea, judgment must be for the defendant: for though the issue in law is joined, imme- diately and in terms, on the plea only, and though that is worth- less, yet a bad plea is sufficient for a bad declaration." " Upon the same principle, if the declaration is good — the plea and replication both ill in substance— ^and demurrer joined on the replication, judgment must, regularly, be for the plaintiff: for the first substantial fault is on the defendant's part, and a bad re- plication is sufficient for a bad plea." Gould's Pleading, Chap. 9, §§36,37,38. This running back to the first fault in pleading is, however, con- fined to pleadings in the same line. Thus, the defendant sets up in his answer, a defense to the third count in the complaint — the defense consisting of new matter, avoiding the allegations in that particular count. If the answer is bad and is demurred to by the plaintiff, the defendant cannot attack the complaint on account of a defect in any other count than the one to which the de- fence demurred to was designed as an answer. If that count is bad, he will have judgment on the count, but not upon the whole complaint : but if that count is not bad, the plaintiff will have judgment on the demurrer against the bad plea, should every other count in the complaint be fatally defective : and so as to a reply. The plaintiff, in the third count of his complaint, alleges an indebtedness for goods sold — the defendant, in his answer to this OF DEMURRER TO ANSWER. 237 count, sets up a counter-claim arising upon a breach of a contract of warrranty in the sale of the goods mentioned in the count. A reply to the counter-claim set up in this defense is demurred to. In this case the plaintiff may go back and attack the defense to which the reply is interposed, and the defendant in turn, may at- tack the count in the complaint, and judgment will be given against the party making the first fault in pleading ; because the pleadings in this instance are all in the same line. See Gould's Pleadings above cited, also the People v. Banker, 8 Pr. E., 261 ; Schwab V. Furniss, 4 Sand., 704 ; Stoddard v. Onondaga Ann. Conf, 12 Barb. 575. By the amendment of 1857 to § 153 of the Code, the practice which we have above laid down, of demurring to any answer setting up new matter, as well where the intention is to confess and avoid the allegations in the complaint, as where an attempt is made to set up a counter-claim, is very clearly authorized, and this renders it unnecessary to consider the conflicting decisions under the Code of 1852 upon the question. Whether a demurrer was authorized by the Code to an answer in an}^ case where it did not set up a counter-claim. We consider the language of the Code, now, so plain as to avoid the possibility of doubt. When the answer contains new matter constituting a counter-claim, the plaintiff must reply, and whenever it contains new matter designed as a counter-claim or defense of any kind, the plaintiff may demur, if the defense or counter-claim attempted to be set up, is substan- tially defective. Prior to the amendment of 1857, we think the weight of authority was, that an answer which did not set up a counter-claim could not be demurred to ; that is, that a demurrer, in such case, was unauthorized by the Code. The Legislature evidently understood the section otherwise, and, by the amend- ment of 1857, they have corrected what they deemed a judicial misconstruction or misunderstanding of § 153 of the Code of 1852. 238 OF MOTION FOR JUDGMENT ON ANSWER, ETC. OHAP.TER IX. OF MOTION FOR JUDGMENT ON ANSWER FOR WANT OF REPLY OR DEMURRER. It is yery difficult to perceive exactly what is intended by § 154 of the Code. In terms, it authorizes the defendant to move for judgment, if the plaintiff do not reply or demur to any new matter set up in the answer, constituting a defense. Now, by § 153, as at present amended, the plaintiff cannot reply to any new matter in an answer, unless it sets up a counter-claim ; and by the same sec- tion, he is only authorized to demur when the new matter set up does not amount to a defense or counter-claim. Now, take the language of the section, " If the answer contain a statement of new matter constituting a defense, and the plaintiff fail to reply or demur thereto," the defendant may move for judgment, &c. Now, it has been expressly adjudicated that, unless the new matter set up in the answer comes fully up to the letter of section 154, and constitutes a defense, a motion cannot be made for judg- ment for want of a reply, for the reason that the matter set up does not amount to a defense ; in other words, that it would be bad on demurrer. Brown v. Spear, 5 Pr. E., 47. And by section 153 of the Code, we have seen he cannot reply if a counter-claim is not set up : and carrying out the principle of the above decision, he cannot demur, and it is very clear he would not desire to do so, because the new matter constitutes a defense, and hejs only authorized to demur by section 153, where it falls short of this. In other words, under this section, if new matter is set up in an answer, which constitutes a defense to the action, the defendant can move for and obtain judgment against the plaintiff, while his hands are effectually tied ; he cannot by reply set up an answer to the defense contained in the new matter, al- though he may have a perfect one, because the defense is not a counter-claim ; and if he could demur he must fail in the demur- rer, because the new matter constitutes a defense. Then the de- fendant is necessarily left in a position where he must move for judgment, or at least may do so ; and then the question arises, can the plaintiff meet this motion by affidavits showing that he has a perfect answer to the defense set up by the new matter ? OF DEMURRER TO REPLY. 239 But the Code does not allow of any reply in such case. Probably for the purposes of such a motion, should one be made, the Court would decide upon the affidavits, on the part of the plaintiff, to deny the motion, and at the trial allow the plaintiff, by evidence, to make any defense he could to the new matter so set up in the answer, provided the defendant should, in the first instance, be enabled to sustain such new matter, by proof upon his side. This seems to us the only way of arriving at the just determination of an action under such circumstances. It was undoubtedly an oversight in the Legislature, in not striking this section entirely from the Code. It is very clear there is no legitimate office for it to perform. If the new matter set up in the answer constitute a counter- claim, which doubtless would be covered by the word defense, this difficulty, it is true, would in that particular instance be avoided : bnt we can see no necessity for the section in that case. If, however, the Legislature desired to retain the section, for the purpose of continuing the same numbering of the sections of the Code, which is certainly very desirable, it might very easily have been done, and the incongruity above suggested entirely avoided, by using the word counter-claim instead of defense in the section. CHAPTER X. OF DEMURRER TO REPLT. If the reply does not contain facts sufficient to constitute a defense to the counter-claim contained in the answer, the defend- ant may demur, and in such case he must state particularly the ground of his demurrer. Should he fail to do so, the plaintiff might probably move to strike it out as not being authorized. Code, § 155. Or, should the causes of demurrer be defectively stated, he might, perhaps, move that they be made more certain and definite. See opinion of Marvin J., in White v. Joy, 3 Kern., 89. This opinion, however, was not necessary in the decision of that case, and is not, therefore, to be regarded as binding author- ity. Still, it is entitled to high consideration, when we consider the source from whence it emanates. 240 OP JUDGMENT ON DEMURRER. The practice on a demurrer to a reply as to amending, if the demurrer be sustained, is the same as on demurrer to an answer or complaint. If the judgment be given for the plaintiff, it is only as to the particular portion of the answer which sets up the counter-claim to which the reply is made ; and if that be the only defense con- tained in the answer, then the plaintiff will be entitled to judgment upon the whole record, because by overruling the demurrer the Court decide that the reply is a defense to the counter-claim to which it is interposed ; and by demurring, the defendant admits the truth of every material allegation contained in the reply. The Court, however, allow the demurrer to a reply to be withdrawn, upon terms, if desired by the defendant, and then the cause goes to trial upon the issue formed by the reply. The last remarks in relation to the effect of a judgment overruling a demurrer are equally applic;able to demurrers to complaints and answers. For forms of judgments upon demurrer see next chapter. CHAPTER XI. OP JUGDMENT ON DEMURRER. It is provided by the Code, ,§ 269, that ''on a' judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the two first subdivisions of section two hundred and forty-six, upon the failure of the defendant to answer, where the summons was personally served." This must be understood as applying only to cases where the judgment for the plaintiff on demurrer would be a judgment upon the entire record ; that is, where the decision upon the demurrer covered the entire answer, leaving no issue of fact to be tried : con- sequently the word may, in this part of § 269, is not to be under- stood as requiring the defendant, in all cases, to ascertain his damages in the manner presciibed by either of the subdivisions of § 246. On the contrary, we understand the practice to be, in cases where there are issues of law and issues of fact upon the same record, and the issue or issues, of law are found in favor of the plaintiff, for the damages or amount which the plaintiff is OF JUDGMENT ON DEMURRER. 241 entitled to recover upon tlie count on which the issue of law was joined, to be assessed by the jury upon the trial of the issue of fact' and that a general verdict be rendered by the jury upon the trial of those issues, if the plaintiff recover upon the entire record : And in actions upon contract (of which alone we treat) we can see no reason why, if there should be a balance found in favor of the defendant, upon the trial of the issue of fact, it should not be deducted from the amount to which the plaintiff should be entitled upon the count covered by the issue of law which was decided in his favor ; or should the amount found due the defendant, upon the issue of fact, be greater than the amount to which the plaintiff was entitled on the count covered by the issue of law, then that the deduction should be the other way, and but one judgment be entered in either case. Any other practice, it seems to us, would be inconvenient and might tend to produce injustice. Suppose two counts in a complaint, one upon a special contract, the other upon an account for goods sold, the defendant demurs to the count founded upon the breach of contract, and to the other count sets up a counter-claim larger than the amount claimed by the plaintiff in his second count: the issue of law is found in favor of the plaintiff, and the issue of fact being tried, a verdict is found in favor of the defendant for the balance of his account over the amount claimed by the plaintiff in his count for goods sold ; and this issue of fact, formed by the setting up of a counter- claim on the part of the defendant, cannot extend to the whole complaint, because a defendant cannot demur to, and answer the same count. Then, if the plaintiff perfect his judgment upon the issue of law, according to the provisions of § 21B, the defendant must, of course,' be at liberty to perfect his judgment upon the verdict, and thus there would be two judgments upon the same record, for damages and costs, one in favor of one party, and the other in favor of the other. This was, probably, not intended by the Legislature. The former practice was to try an issue of law first, and if that was decided in favor of the plaintiff, the next pro- ceeding in the action was to tiy the issue of fact, and the jury assessed the damages upon the count upon which the issue of law had been joined, as well as upon the others, and a general verdict was rendered, and the party who recovered judgment upon the whole record, alone entered up his judgment, and he alone recov- ered costs. We think, in this respect, the practice should be the 242 OP JUDGMENT ON DEMUEREB. same substantially trader tlie Code. After the trial of the issue of law, and that found in favor of the plaintiff, then when the issue of fact was tried, the damages should be assessed upon the count where the issue of law was joined, and a general verdict be returned upon the whole complaint. If this general verdict is found against the party who succeeded upon the issue at law (that is against the plaintiff), the Court might, in a proper case, order the plaintiff 's costs of the trial of the issue of law, to be de- ducted from the judgment recovered by the defendant in the action; and if the verdict was in favor of the plaintiff, the costs upon the trial of the issue of law, as well as that of fact, would all be adjusted by the clerk, as one bill, at the time of perfecting the judgment. Section two hundred and sixty-nine of the Code also provides that if, on the trial of an issue of law, judgment be in favor of the defendant, and the taking of an account or the proof of any fact is necessary to enable the Court to complete the judgment, a refer ence or assessment by jury may be ordered, as provided in § 246. This also should be understood as meaning cases where the de- cision upon the demurrer covers the entire record ; and where it does not, the damages may be assessed by the jury, and a general verdict rendered, as in a case where the decision of the issue of law was in favor of the plaintiff. When the demurrer covers the entire record, no matter to what particular pleading it is interposed, if the judgment be in favor of the plaintiff, it should be in the following form : SUPEBMB COURT. This action having been brought to trial, upon the issue of law joined therein, and the same decided in favor of the plaintiff, and the decision of the Court duly filed in the office of the Clerk of the County of Rensselaer (the county where the venue is laid), and the plaintiff having filed in the office of said Clerk due proof of the personal service of the summons on the defendant, and that no answer had been received since the decision of said demurrer ; or if the demurrer, by which the issue of law was formed, was to the complaint, then say, and that no answer has been received. Therefore it is considered that the plaintiff recover against the defendant, the sum of dollars and cents (the amount OF JUDGMENT OK DEMURRER. 243 mentioned in said summons with interest thereon), together with dollars and cents, costs and disbursements, amounting in all to dollars and cents. Judgment signed this day of , 1857, J. P. BALL, Clerk. If the case is not one coming within the first subdivision of § 246 of the Code, then, if the Court have ordered a reference to ascer- tain the damages, state that fact immediately before the words " therefore it is considered," in the above form, and also state the filing the report of the referee in the office of the clerk and the amount thereof, and then insert the same after the words " against the defendant, the sum of," instead of the amount mentioned in the summons, changing the recital according to the circumstances of the case, as directed in Chapter 27 of Part 1. If the judgment is in favor of the defendant, and proof of an ac- count or of any fact is not necessary to enable the Court to com- plete the judgment, then it may be entered in the following form: SUPREME COURT. A. B.) agt. I C. D.) This action having been brought to trial, upon the issue of law joined therein, and the same having been decided in favor of the defendant, and the decision duly filed in the of&ce of the Clerk of (the county where the venue is laid) : Therefore it is considered that the defendant recover against the plaintiff the sum of dollars and cents for his costs and disbursements in this action. Judgment signed this day of , 1857, J. P. BALL, Clerk. But if the taking of an account, or the proof of any fact is neces- sary — that is to say, if by the decision the defendant is entitled to judgment for a balance in his favor, but something remains to be done to ascertain the amount of such balance, then the judgment should be in the following form : SUPREME COURT. A. B.) agt. } C. D.S This action having* been brought to trial, upon the issue of law joined therein, and the same having been decided in favor of the 244 MOVING FOE SATISFACTIOIT OF CLAIM, ETC. defendant, and the decision duly filed in tlie office of the Clerk of ; (the county where the venue is laid), and the Court having appointed a referee to ascertain the balance of the counter-claim of the defendant over and above the note mentioned in the complaint, which is admitted by the answer ; and the said referee having re- ported that the said balance amounted to the sum of dollars and cents, and the said report having been duly filed in the office of the Clerk of the County aforesaid — Therefore it is considered that the defendant recover against the said plaintiff the sum of dollars and cents dam- ages, and dollars and cents for his costs and disburse- ments, in this action, which said damages, costs and disbursements amount to the sum of dollars and cents. Judgment signed this day of 1857. J. P. BALL, Clerk. CHAPTER XII. OF MOVING THAT DEFENDANT SATISFY A PAET OF PLAINTIFF'S CLAIM, ADMITTED OR NOT DENIED BY ANSWER. There remains one other proceeding, authorized by the Code, to be had on the part of the plaintiff: where the defendant admits directly a portion of the claim for which the plaintiff seeks judg- ment, or where such part of the plaintiff's claim is impliedly ad- mitted by the defendant, in not denying or setting up any defense to the same in his answer. Code, § 244, last clause of subdivi- sion 5. The only questions, which can arise upon this sufedivision, are : 1. To what causes of action, as a general rule, it applies ; 2. To notice an exception to that rule ; and, 8. As to the manner of enforcing the order, and when it may be enforced by attachment. First, from the manner in which the Legislature have expressed themselves, in the paragraph under consideration, it would seem that they intended to make the proceeding applicable to every action that could arise under our present system of practice. But, from the connection in which it is found, and the general subject of the section into which it is incorporated, we very much doubt whether they, in fact, intended to give the 'provision this exten- sive effect. liOYING FOR SATISFACTION OF CLAIM, KTO. 245 We sball, however, take the Code as it reads, as we do not feel at liberty to say that the Legislature did not intend what they have so clearly stated in the paragraph under consideration. 1. We, therefore, think the paragraph, as a general rule, applies to all actions, as well those founded upon money demands as those brought for specific real or personal property, or any other cause. Myers v. Trimble, 1 Abbott's R, 220 ; Quintard v. Secor, ib,, 393. 2. An exception to this rule is where it appears upon the face of the pleadings, or pleadings, and other papers which constitute the issue in the action, that the action is for the recovery of money only, and that the defendant has offered to allow the plaintiff to take judgment for the amount admitted to be due. Smith v; Olssen, 4 Sand. S. C. E., 711. 3. The order of the Court, for the satisfaction of that part of a claim which is admitted by the answer, may be enforced by exe- cution or attachment. We think, however, that the remedy by attachment, as a general rule, should not be allowed, or rather the Court should not grant an order that an attachment issue where the order to be enforced is for the payment of a balance of money which is admitted by the answer to be due. We do not believe the Legislfiture ever intended to provide in this manner for the imprisonment of a defendant for the purpose of enforcing such an order, in cases where imprisonment would not be allowed for the purpose of enforcing a judgment for the same cause. Lane v. Losee, 11 Pr. R, 360 ; St. John v. Thome, 2 Abbott, 166. Where, however, the fun(J which is in litigation has been brought into Court, and a portion of it is admitted to belong to the plaintiff by the pleadings, an order will be made for the pay- ment of the amount so admitted. Merritt v. Thompson, lO Pr. R, 428. But we do not perceive how the aid of this clause of section 244 is required. In such case, the Court had power to grant such an order without this provision, and they certainly did not require the aid of process to compel the payment of money already in the hands of their own clerk. We have made these remarks, and cited Merritt v. Thompson, because the order for the payment of money in that case is re- ferred to by Mr. Townshend, in his Notes to the Code, as a pro- ceeding authorized by the paragraph under consideration. Where the action is for specific real or personal property, the 2 246 MOVING FOR SATISFACTION OF CLAIM, ETC. order would, of course, be properly enforced by attachment, and we think that this method of enforcing the order should be con- fined to cases which would come within the principle of the rule which would allow the attachment in such cases only. It has been held, however, that an attachment should issue in cases where the claim admitted was a simple balance due upon a money demand. Myers v. Trimball, 1 Abbott's E., 899 and 221. Notwithstanding we have great respect for the opinions of Judges Ingraham, Woodruff, and Daly, who constituted the Bench of the New York Common Pleas at the time of the above decisions, we cannot bring ourselves to believe that there is any necessity or any authority, from a fair construction of the Code, for the arrest of a defendant in a case like the one last above cited. If he has money which he refuses to apply in satisfaction of an execution, the proceeding supplementary to execution pro- vided by the Code affords an adequate remedy, and the provi- sions of the act abolishing imprisonment for debt are thus left undisturbed. The language of the Code, as amended in 1857, was clearly intended to have this effect. The words "judgment or," which were inserted in this section, constitute one amendment, and have the same effect as if the reading had been as follows : Where the action is for the recovery of money upon an express or implied contract, the order may be enforced by execution, and, on its return unsatisfied, by proceedings supplementary thereto. In all other cases it may be enforced by attachment. The order for the satisfaction of a claim, admitted in pursuance of section 244 of the Code, may be in the following form: At a Special Term of the Supreme Court, held at the City Hall, in the city of Albany, on the 29th day of October, 1857, Present — D. Wright, Justice. C. D. Upon notice of motion on the part of the plaintiff, and upon the pleadings and papers constituting the iss.ue of fact joined therein, whereby it appears that the sum of one hundred dollars is due to the plaintiff from the defendant, upon the claim for which this action is brought, which is expressly admitted (or which is not OF THE VEEIFICATION OF THE ANSWER, ETC. 247 denied) by the answers ; on motion of M. Ball, attorney for plaintiff, after hearing counsel opposed, Ordered, That the defend- ant pay and satisfy the said sum of one hundred dollars, so ad- mitted to be due to the said plaintiff, and that the plaintiff be at liberty to enforce such satisfaction, by execution, as upon a judg- ment for the like amount. This order should be entered in the office of the Olerk of the County where the place of trial is laid. Where the action is for the recovery of specific real or per- sonal property, the order will of course be changed in such manner as properly to recite the claim admitted ; and in such case the order, in the first instance, might require the delivery of the property in satisfaction of the claim, within a certain number of days after per- sonal service of a copy of the order, or that an attachment issue, for contempt for disobedience of such order, against the defendant. Where the order is in this form, after the expiration of twenty days from the service of it, on an affidavit of such service, and that twenty full days have since elapsed, the Court, on an ex parte application, will grant an order that an attachment issue. CHAPTER XIII. OF THE VERIFICATION OF THE ANSWER AND REPLY. We have noticed in a previous chapter (see ante, Part 1, Chap. 16), the form of the verification of complaint, and under what circumstances the same might be verified by a person other than the party whose pleading it was, and upon that subject the same rules apply as well to an answer or reply as to a complaint. Whenever a pleading is verified, every subsequent pleading in the action must also be verified. Code, § 156. The word subsequent, in this section, means subsequent in the order of pleading, and not of time : thus, if the complaint be verified, the answer must be, and if the complaint is not verified and the answer is, then the reply must be verified; but if a com- plaint is first served and afterwards a new copy, duly verified, ia served as an amended complaint, the defendant need not verify hia answer, because a verification of a pleading is not an amendment, within the meaning of the Code, upon that subject, as the verifi- 24& OF CHANGING THE PLACE OF TRIAL. cation forms no part of the pleading. Hempstead v. Hempstead, ■7 Pr. E., 8 ; White v. Bennett, ib. 59. Where a complaint is duly verified, if the defendant serve an answer without verification the plaintiff must return the same to the defendant, stating the reason for so returning it; otherwise the 'service will be good, as by keeping the answer the plaintiff will be deemed to have waived the verification. White v. Gummings, 1 Code Sep., K. S., 107. The answer should be returned within twenty-four hours after service, unless the plaintiff's attorney can excuse the delay by showing a reason, which will be approved by the Court, for not returning it sooner, such as that he was absent, or from some other cause had not an opportunity of examining the answer, so as to discover the defect : and where the defendant puts in an answer without verification, to a complaint duly sworn to, and the verifi- cation of the answer is waived, by retainingthe same without ob- jection, we presume the defendant could not require the reply to be verified. But the putting in an unverified answer by the de- fendant, and the receiving the same by the plaintiff, so as to waive the oath, is a waiver which extends to the verification. A demurrer is never verified. Code, § 156. We remark here that the same proceedings, for striking irrele- vant and redundant matter from a reply, are proper and author- ized by the Code, as are applied for the same purpose to a complaint or answer ; and the like remark may be extended to motions to make a reply more definite and certain. Code, § 160; ante, Part 1, Chap. 13; Part 2, Chap. 4. The above remarks have been inserted here, as we did not deem it in good taste to devote an entire chapter to the few lines required upon the subject. CHAPTEE XIV. OF CHANGING THE PLACE OF TEIAL. The proper place of trial in actions arising upon contract, as a general rule, is in the county where the partieis, or some of them, reside. Code, § 125. The Court, however, have power to change OF CHA1JG1N& THE PLACE OF TRlAt.. 249; tte venue, and will, upon application, order the place of trial to be changed to that -county which shall be most conducive to the interest of the parties and the convenience of witnesses. Formerly, the general rule was to allow the change of venue to be governed entirely by the question in which county the greatest number of - necessary witnesses resided : if in the county to which the venue was sought to be changed, the motion would be graated; if in that in which the venue was originally laid, the motion would be denied : and, in applying this rule, the Courts were governed arbitrarily by county lines, and the convenience or inconvenience of a witness who did not reside within the county where the venue was laid, or to which it was sought to be removed, was wholly^ disregarded ; and the number and the materiality of the witnesses- was determined by the affidavit of the party, in which he was required to state the place of residence of each witness and his- name, and after stating severally the names and places of resi- dence of the several witnesses whose convenience he proposes tO; consult, by having the place of trial changed, he was required to state that each and every of said v/itnesses were material and necessary for him, upon the trial of the cause, as he was advised by his counsel (giving the name and place of residence of such counsel), , after having stated fully and fairly, to said counsel,, the case in said action and what he expected to prove by said witnesses, as he verily believed ; and that he could not safely proceed to the trial of said action without the testimony of each and every of said witnesses, as he was also advised by his said counsel, and believed. These rules,- however, have been, in some respects, changed en- tirely, and, in other respects, very much relaxed. Now, if the venue is not laid in the proper county,, as required by section 125 of the Code, the defendant may demand, in writing, to be served upon the plaintiff's attorney before the time to answer shall have expired, that the trial be had in the proper county : and if the parties, after such demand, do not by stipulation change the place of trial, the defendant may, after issue is joined in the action (taking care to act without any unnecessary delay), move to have the place of trial changed to the proper county, upon the sole ground that the place of trial has not been laid as required by the section above cited : and if the plaintiff has unreasonably re- fused or neglected to consent to such change, after such demand, • the motion will be graated with costs. Hubbard v. Nat. Prot. 250 OF CHANGING THE PLACE OP TRIAL. Ins. Co., 11 Pr. E., 149. But if tlie defendant neglect to make such demand within the tim.e required, he lcs3s nothing but his costs of the motion, as he may move without having served the demand, but he is not then entitled to costs, on the ground that the plaintiff has not complied with the demand, although he may be on the ground that the motion has been unreasonably or im- properly resisted. Code, § 126 ; Park v. Carnley, 7 Pr. E., 356. This motion to change the venue, because not laid in the proper county, may be made and granted, and still a motion be after- wards made, in the same action, to change the place of trial for the convenience of witnesses, or to promote the ends of justice, or because a fair and impartial trial cannot be had in the county where the venue is laid ; and a motion to change the place of trial, upon this ground, cannot be opposed on the ground that the change would tend to the inconvenience of witnesses ; that is a question upon which both parties have a right to show who their witnesses are, where they reside, and what place of trial would best accom- modate them ; and if the plaintiff was allowed to use this as an answer to the motion made, on the ground that the venue was laid in an improper county, the defendant would have no opportunity of showing what his rights were upon that subject. Park v. Carn- ley, 7 Pr. E., 356. The plaintiff may, however, after a motion has been noticed to change the place of trial to the proper county, give notice of a motion, to be made at the same time and place, to change the venue to a different county or to have it retained in the county where it is laid, upon the ground of the convenience of witnesses, or probably upon the ground that a fair trial could n ot be had in what would be the proper county under section 125 of the Code ; and in such case both motions would be heard at the same time, and the whole matter be disposed of by a single order. Mason v. Brown, 6 Pr. E., 481. It is the duty of the plaintiff, when he has laid the venue in the wrong county, on demand, to change it to the proper county, and this may be done, either by serving an amended complaint, laying the place of trial in the proper county, or by an applica- tion to the Court for an order making the necessary change. Hubbard v. Nat. Prot. Ins. Co., 11 Pr. E., 149. The motion to change the place of trial may be made before issue joined. The defendant should, however, wait until the plaintiff has had an opportunity of complying with his demand, OF CHANGING THE PLACE OF TRIAL. 251 before lie makes sucli motion. Hubbard v. Nat. Prot. Ins. Co., above cited. But the motion to change for the accommodation of witnesses, to promote the ends of justice, or because a fair and impartial trial cannot be had in the county where the venue is laid, cannot be made until after issue is joined in the action. Mason v. Brown, 6 Pr. E., 481. Merrill v. Grinnell, 10 id., 31. But such motion should be made without any unnecessary de- lay after the action is at issue, and, as a general rule, the motion to change the venue for the convenience of witnesses will not be granted, when the plaintiff will thereby lose a circuit, if that loss is caused by the defendant's neglect to move at his earliest oppor- tunity. Lynch v. Mosher, 4 Pr. E., 86. Where the defendant is a corporation, and the plaintiff a non- resident of the State, the place of trial must be the county where the corporate business is transacted. The place of business of a corporation is in law the residence of such corporation, for the purpose of the venue in an action in which such corporation is a party. Limerick and "Waterford E. E. Co. v. Eraser, 4 Bing., 394 ; Kilkenny E. E. Co. v. Fielding, 2 Bag. Law and Eq. E., 388 ; Bank of U. S. v. McKenzie, 2 Brockenbrough, 395 ; Louis- ville and E. Co. v. Letson, 2 How. U. S. E., 497 ; Cromwell v. Charleston Ins. Co., 2 Eichardson, 512 ; Glazie v. S. C. E. Co., 1 Strobhart, 70 ; Couro v. The Nat. Prot. Ins. Co., 10 Pr. E., 403. In motions to change the venue on account of the convenience of witnesses, the rule that the party having the most necessary and material witnesses residing within the county will have the motion decided in his favor, unless some'other circumstances are shown sufficient to overcome this preponderance in numbers King V. Yanderbilt, 7 Pr. E., 385 ; and although a motion to change the venue may be made on account of the convenience of witnesses, upon the same papers formerly required, and if opposed, upon papers of the same character, the decision will be governed by the same rules which formerly prevailed ; still it is not prudent to found such a motion upon an affidavit in the old form. Code, § 126, Eule 45. The affidavit should now be as follows : 252; OF CHANGING THE PLACE QF TEML. SUPREME COURT. Rensselaer County, ss. — C. D., being duly swora, says he is the defendant in this action, and has a good and substantial de- fense upon the merits therein, as he is advised by A. B. Olin, Esq., of the city of Troy, his counsel therein, after fully and fairly stating the case in said action to his said counsel, and as he verily believes : and he is also advised by his said counsel, after fully and fairly stating to him what he expects to prove by each and every of the witnesses hereinafter named, that each and every of said witnesses are necessary and material witnesses for depo- nent on the trial of this action, and that deponent cannot safely proceed to the trial of said action without the testimony of each and every one of said witnesses ; and deponent verily believes the same, and every part thereof , And deponent further says, that the names, places of resi- dence, and the several facts he expects to prove upon said trial by said witnesses, respectively, are as follows, to wit : By John Jones, of the city of Troy, in the county of Rensselaer, defendant expects to prove that the note, upon which this action is brought, "vras given for the purchase-money of one thousand bushels of corn, which the plaintiff then and there undertook and promised to deliver for the said defendant, in consideration of the giving of said note to Silliman & Mathews, of Troy, aforesaid, of a good qdality and in good condition ; and by Robert D. Silliman and James M. Mathews, of the city of Troy, that the said corn was never accepted or received by deponent ; that a quantity of corn, equal to that which the said plaintiff was to deliver to Silliman & Mathews, for deponent, was shipped to said Silliman & Mathews, consigned to deponent, but that the same was of an inferior quality, and damaged by being heated from neglect, so much as to be of little or no value ; and that this was the only corn delivered to said Silliman & Mathews, for deponent. And defendant expects to prove, by Robert Thompson, of the village of West Troy, in the county of Albany, that, at the request of Silliman & Mathews, he gave the said plaintiff notice, within a few days after said corn was received by them, as aforesaid, that deponent refused to accept the same, because it was not such corn as by the contract the plaintiff was bound to deliver. And deponent further says, that the said Robert Thompson can easily travel from his house in said village, to the Court House in the county of Rensselaer, in ten minutes' time. And this deponent resides in the city of Troy, aforesaid, and the plaintiff resides in the town of Waterford, in the county of Saratoga, where the place of trial in said action is laid by the OP CHANGING THE PLACE OF TRIAL. 253. cotnplaint. And deponent further says, that the place of residence of said plaintiff is about nine miles from the citj of Troy, where the Circuit Courts in the county of Rensselaer are held, and where the Court House in said county is situated ; and the Court House in the county of Saratoga is at the village of Ballston Spa, a dis- tance of between twenty and thirty miles from the city of Troy, and further from the residence of the plaintiff than the distance from his said residence to the Court House in the county of Rensse- laer, And deponent further says, that the complaint in this action is upon the promissory note herein before, mentioned, and that the facts which deponent has stated above, that he expects to prove by the above-named witnesses, are set up in the answer of deponent as his defense in said action. And deponent further says, that issue was joined in this cause on the day of last past, and that there has not since been any Cir- cuit Court held either in the county of Rensselaer or Saratoga, nor has there been any earlier opportunity of moving to change the venue since issue was so joined, C. D. Sworn, &c. The above affidavit will give you a general idea of such facts as may properly be stated in an affidavit, upon which a motion to change the place of trial is to be founded, or opposed, and we believe the different parts of it are all necessary. Although the omission of the title of the cause in the affidavit will not vitiate it, yet it is always advisable to entitle every paper in the action. Code, § 406. The affidavit of merits, and of the materiality of witnesses, was always necessary under the old practice, and is still required. 3 Wend., 425 ; 3 Cow., 14; 6 Cow., 83, 389 : 4 Johns. 492; 5 Johns. 361 ; 16 Johns., 3. Rule 45 of present Rules provides for stating certain things in addition to what was formerly required ; this shows that the Court consider the rule in this respect not changed. The affidavit of merits, and of the materiality of witnesses, must be stated to be on the advice of counsel, naming the counsel and his place of residence. Rule S6 ; 9 Wend., 431 ; 1 Hill, 668. The allegation of what the defendant expects to prove by each witness is necessary, to enable the Court to judge for themselves as to the materiality of witnesses ; and this, together with the distance from the residence of the witnesses to the Court House, as well in the county where the venue is laid as in that to which it is proposed to be changed, may be material in many cases- where the witness does not reside within the county to which the venue is sought to be changed. It is clearly within the principle of Rule 45, and is, given effect to by Justice Harris, in Mason v. Brown, 6 Pr. R., 481, 254 OF CHANGING THE PLACE OF TRIAL. It is also necessary to state the issue, at least so far as to show the materiality of the testimony of the witnesses. Eule 45. It should also show there has been no unnecessary delay in making the motion, or, if it has not been made at the earliest opportunity, that the plaintiff has not lost, and will not lose, a circuit by the change. And in some cases it may also be important to show when the cause of action or defense arose. Moreland v. Sandford, 1 Denio, 660. Eule 45. It should also be remembered that this affidavit should be made by the defendant ; he is ordinarily the person best able to state the facts of his case, and the materiality of his wit- nesses. But the affidavit may be made by the attorney, or any person knowing the facts, showing upon the face of the affidavit the reason why it is not made by the defendant ; and when the affidavit of the defendant cannot be obtained on account of his sickness or absence, the attorney may swear to the affidavit, found- ing his belief of the facts upon information derived from the defendant, 2 Johns. C, 116. The notice of motion may be in the following form : SUPEEME COUET. Take notice, that at the next Special Term of the Supreme Court, appointed to be held at the City Hall, in the city of Albany, on the last Tuesday of November, 1857, at the opening of the Court on that day, or as soon thereafter as counsel can be heard, upon the affidavit, with a copy of which you are herewith served, a motion will be made to change the place of trial in this action from the county of Saratoga to the county of Eensselaer. Dated, &c., Yours, &c., K DAVENPOET, Def't's Att'y. To B. H. Hall, PFfPs Att'y. Motions to change the place of trial are rarely made, in civil actions, on the ground that a fair and impartial trial cannot be had in the county where the venue is laid, and such motion will not be granted unless facts and circumstances are stated which show that a fair and impartial trial cannot be had in the county where the venue is laid. It is not enough for persons to state their belief that a fair and impartial trial cannot be had in the county. This would be allowing the witnesses to judge and taking their opin- OF CHANGING THE PLACE OF TRIAL. 255 ion as the foundation of the decision of the Court. This will not do. The facts must be stated, and circumstances may be given showing the influence which those facts have had in that community upon the public mind ; and it must clearly appear that a fair and impartial jury cannot be obtained in the county where the venue is laid, or the motion will not be granted. Bowman v, Ely, 2 Wend., 250 ; Messenger v. Holmes, 12 Wend., 203 ; People Y. Bodine, 7 Hill, 181 ; People v. Wright, 5 Pr. E., 23. When the ground of the motion to change the venue is the con- Tenience of witnesses and parties, or on any other ground except that a fair trial cannot be had in the county where the venue is laid, the facts upon which the motion is opposed are necessarily of the same general nature and character as those upon which the motion is made ; and the same care should be observed in stating the same in the affidavit on which the motion is to be opposed, as is required in the affidavit upon which it is founded. The form of the order changing the venue is as follows : At a Special Term of the Supreme Court, held at the City Hall, in the city of Albany, on the 24th day of November, 1857. Present — Geo. Gould, Justice. On affidavit and notice of motion to change the place of trial in this action, and after hearing counsel for the respective parties, on motion of N. Davenport, for defendant: Ordered, that the place of trial in this action be and the same is hereby changed from the county of Saratoga to the county of Rensselaer, with ten dollars costs to abide the event of the action. This order must be entered with the Clerk of the county where the venue is laid in the complaint, and when so entered is the foundation of the authority of the Clerk for certifying the said order to the office of the Clerk of the county to which the place of trial has been changed, and for transferring the papers in said action to the office of such clerk. Rule 3. Perhaps the clerk, before he transfers the papers as above-men- tioned, should require an affidavit, or some evidence satisfactory to him, that a certified copy of the order had been served upon the 256 OF CHAifGING THE PLACE OF TEUt. plaintiff's attorney, in cases where the motion is made on the part of the defendant, for the reason that an order changing the place of trial is wholly inoperative, and the party against whom the motion is made may proceed in the action in the same manner as if no such motion had been made, until he is served with a certified copy of the order changing the place of trial, that being the only evidence of the entering of such an order which the party is bound to regard. Eoot v. Taylor, 18 Johns., 335; Keep v. Tyler, 4 Cow., 5il ; Smith v. Sharp, 13 Johns., 466. The papers in the action should be filed in the office of the Clerk of the county in which the place of trial is laid in the com- plaint, unless the venue has been changed, and, by the authorities above cited, it appears clear that the venue is not changed until a certified copy has been served ; and the term clerk, as used in the Code, with reference to proceedings in this Court, means the Clerk of the county where the place of trial is laid, until the proceedings to effect a change of the place of trial have been perfected. Code, § 466. And where a judgment or any other paper is filed or entered with the Clerk of any other county, the proceeding is irregular, and will be set aside, with costs. Andrews v. Durant, 6 Pr. E., 191. Eule 44 is in the following words: "No order to stay pro^ ceedings, for the purpose of moving to change the place of trial, shall be granted, unless it shall appear, from the papers, that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined. Such order shall not stay the plaintifi' from taking any step except giving notice and subpcEnaing witnesses for the trial, without a special clause to that effect. On presenting to and filing with the officer granting the order, an affidavit showing such facts as will entitle the plain- tiff, according to the settled practice of the Court, to retain the place of trial, the officer shall revoke the order to stay proceedings ; and the plaintiff shall give immediate notice of such revocation to the defendant's attorney'. " This rule was intended as an additional guard against the abuse of orders to stay proceedings, so far as such orders are made with reference to motions to change the place of trial. By the Code, it is provided that no order to stay proceedings for more than twenty days shall be granted, except upon notice of the application to. ' OF CHANGING THE PLACE OF TRIAL. 25? ■the adverse party. This, of course, means notice according to the practice of the Court. Code, § 401, Sub. 6. ' This rule not only provides that no order, staying proceedings for the purpose of enabling a party to move to change the place of trial, shall bo made without proof of due diligence in preparing to •make said motion at the earliest day practicable after the joining of issue, but it also provides for the' vacating of said order upon certain terms. This provision is undoubtedly made in order to prevent a plaintiff from being improperly thrown over a circuit by an order staying proceedings, which might often be done by a stay of twenty days only. The af&davit to be presented to and filed with the ofiBcer mak- ing the order (under this rule), for the purpose of having the same revoked, must be governed as to the facts required to be stated in it, in some respects by the ground upon which the motion to change the place of trial is made. For instance, if the motion is because the place of trial in the complaint is not in the proper county, the afi&davit should show that some one or more of the parties, plaintiff or defendant, in fact reside in the county where the place of trial is laid ; and in case the motion is for a change for the convenience of witnesses, &c., then the affidavit should be in form and substance like the af&davit hereinbefore given as the foundation of a motion for such change, and should show clearly that he overcomes the case of the moving party, and shows a strong balance of equities in favor of retaining the place of trial where it was originally laid, and the order revoking the stay or notice thereof must be immediately (which means, as we have seen -before, within twenty-four hours) served upon the defendant's at- torney, otherwise the order will be ineffectaal. This order may be in the following form : A. B. ) agt. \ C. D.) On reading and filing an af&davit showing the necessary facts to entitle the plaintiff to retain the place of trial in the county where it is laid in the complaint, on motion of B. H, Hall, for plaintiff: Ordered, that the order staying proceedings in this action, to enable the defendant to move to change the place of trial therein, heretofore made by me, be, and the same is hereby revoked. Dated, &c. G. GOULD. 258 OF NON-ENUMERATED MOTIONS AND OEDEKS. This order or notice thereof must, as we have seen, be immedi- ately served upon the attorney for the defendant. But the revo- cation of the order to stay proceedings does not take away the right of the defendant to make his motion to change the place of trial ; it only enables the plaintiff to prepare for the trial without being embarrassed by the stay, and he takes the risk of the motion being granted and his preparation for trial thereby lost. Where a motion to change the venue has been granted and the defendant neglects to enter the order and serve a certified copy thereof, as required, to give effect to the same according to the practice of the Court, if circumstances should arise making it desirable to have such order entered and served, the Court on motion would compel the defendant to enter and serve such order, or allow the plaintiff so to do ; otherwise, the plaintiff might in some cases, by means of an order which was granted, but never entered and served, lose a trial, not only in the county where the venue was originally laid, but also in that to which it would have been changed had the order granted by the Court been entered and served, so as to give it effect as an order. CHAPTEE XV. OF NON-ENUMERATED MOTIONS AND ORDERS. A motion is an application for an order, to be made in or out of Court, whether the application be made without notice, or on an order to show cause before a single judge, or on notice at a gen- eral or special term. Code, § 401. And every decision or direc- tion in writing, of a Court or a judge, which does not form a necessary part of the judgment to be entered, is an order. Code, §400. The meaning of the term order, as it is used in section 400 of the Code, is well defined by the Court in Bentley v. Jones, 4 Pr. E., 335, as follows: "An order is the decision of a motion; a judgment is the decision upon a trial." Motions are of three kinds: First, ex parte, or motions which are made either before the Court or a judge thereof, without notice to the adverse party: Second, Motions made upon orders to show cause before the Court or a judge thereof, at a time and place OF KON-ENUMEEATED MOTIONS AND ORDERS. 259 specified, why a particular order should not be granted, or ■why- some specified act should not be done, or why some proceeding should not be had in some action or special proceeding speci- fied in the order: Third, Motions in Court upon notice of at least eight days, to the opposite party. Ex parte motions are made either before the Court, or any judge thereof, and in case the motion is not for a stay of proceedings after verdict, by any County Judge, remembering always that a County Judge's power to act in this respect is only while he is within the limits defined by the county lines of his own county, and that must also be the county in which the action is triable. Code, § § 401, 403. In other words, the County Judge of the county where the place of trial is laid can, while within the county, make any order in an action ex parte, or on an order to show cause, which a Justice of the Supreme Court at Chambers could make out of Court, except to stay proceedings after trial. Code, § 403. The order to show cause is usually granted upon an ex parte application, although the Court sometimes, in deciding a motion made upon notice, make an order granting the motion, unless the adverse party show cause against it at the next Special Term, and in such cases the Court will sometimes direct that the affidavits to be used in opposition to the motion be served upon the attorney of the moving party, and that he also be at liberty to serve additional affidavits in support of the motion, such affi- davits on both sides to be served on or before a time specified in the order. Service of additional papers, in support of the motion, ordinarily is required to be at least eight days before cause is to be shown : and when the intention is to give the moving party an opportunity to answer some particular point, to which the affi- davits of the opposite party are expected to relate, such affidavits will be required to be served on a day early enough to give an opportunity to prepare and serve supplemental affidavits in sup- port of the motion, after such service upon him, and before his time for serving such supplemental affidavits has expired. Orders of this kind, however, always rest in the sound discretion of the Court, and are made with a design of promoting the ends of jus- tice. See further on the subject of ex parte motions, ante. Part 1, Chap. 19, and authorities there cited. Motions which are founded on orders to show cause may be made upon a less notice than eight days, but in such case the 260 OF NON-ENUMERATED MOTIONS AND ORDERS. order to show cause must be made returnable before the Court or officer making it, and a justice out of Court can not make an order to show cause returnable before the Court on a shorter time, between the service and return of the order, then eight days. Code, § 402. Merritt v. Slocum, 6 Pr. E., 350 : but a justice out of Court may make an order returnable before the Court, provided the service of the order is eight days before the day on which it is made returnable. Motions upon notice may be made at a general or special term, but they must be noticed for the first day of the term, unless an excuse is shown upon the papers for noticing it for a later day. For instance, that the facts upon which the motion is founded did not transpire, or were not known to the party, in time to give notice of the motion for the first day of the term. Rule 32, and see ante, Part 1, Chap. 19. • By section 404 of the Code, provision is made for transferring the hearing of a motion, noticed before one judge, to another be- fore whom the motion might have been noticed in the first instance, if the judge before whom the same was noticed is absent or unable to hear it on the day when it was to have been heard before him, and the same disposition may be made, under similar circumstances, of an order to show cause before a judge out of Court. There is but one case in which a motion can be noticed before a judge out of Court, and that is a motion for judgment on account of the frivolousness of an answer or demurrer. Non-enumerated motions are as numerous in kind, and as ex- tensive in application, as are the different cases of legal or equit- able relief to which a party may be entitled in the progress of an action, and which, in their nature, are interlocutory. Of course it cannot be expected either in a book on practice, or any other work, that the various motions which may be required in the pro- gress of a cause can be specified and pointed out ; it is enough to eay, that wherever a party is legally or equitably entitled to an interlocutory order, giving him relief from any embarrassment aris- ing in the progress of an action, he may obtain it by a non-enum- erated motion. Under the definition above given of what is an order (although it seems clear and explicit in its terms), several questions have arisen as to what was an order and what a judgment, and there has sometimes been some conflict in judicial decisions upon the sub- OF NON-ENUMERATED MOTIONS AND ORDERS. 261 ject. There was for some time a doubt as to whether the decision of a motion for judgment on account of the frivolousness of a de- murrer or answer should be appealed from as a judgment, or as an order, but it is now well settled that such decision is an order only. Kortwright t. W. E. R. Co., 10 Pr. R., 457 ; Gould v. Carpenter, 7 id. 98. If the motion is denied, it very clearly is not a judg- ment in the action ; if granted, it is barely a decision that there is no answer or demurrer, as the case may be, in the action ; and the proceeding to obtain judgment is precisely the same as the prac- tice in perfecting judgment for want of an answer. Indeed, it is perfecting judgment for want of an answer. The decision is, that, the demurrer or answer is frivolous, but the Court does not render judgment, and in many cases they could not do so, as the execution of a writ of inquiry of damages must be resorted to before the party can ascertain for what amount judgment is to be entered, and a writ of inquiry can only be issued in pursuance of an oi'der of the Court, and the application for such order should be made on notice. We do not know of any better rule in determining whether a decision is to be regarded as a judgment, than the one laid down in Bentley v. Jones, above cited. Every decision which is interlocutory, that is, which leaves something else to be done before judgment is perfected, is a mere order, and cannot be called a judgment. Darrow v. Miller, 5 Pr. R., 2i7. Within the above rule, is a decision overruling a demurrer, no matter whether the party be permitted to withdraw the demurrer and answer or reply, or not. The decision is not final ; something else remains to be done before judgment can beperfected. See Code, § 269. But it is held that when judgment is perfected, the decision loses its character as an order and becomes a judgment. It then comes within the letter of § 400 of the Code ; it is included in a judg- ment, and therefore is not an order. The decisions affecting this question are somewhat numerous, and there is not a little appa- rent conflict, and perhaps the best way of understanding them is to classify them. We think they may be arranged under four general classes: First — It has been held as a general proposition, that the deci- sion of a demurrer is a judgment, and that an appeal cannot be brought upon it until the judgment is perfected. Bentley v. Jones 4 Pr. E., 335 ; King v. Stafford, 5 id. 30 ; Lewis v. Acker, 8 id! 262 OF NON-ENUMEEATED MOTIONS AND OEDERS. 414 ; Brail v. Pinckney, 8 id. 397 ; Wood v. Lambert, 3 Sand. , S. C. R, 724. It is proper to state here, that the cases of Bently v. Jones and Wood V. Lambert, above cited, were decided before the amend- ment to section 849, which was made in 1851, by which an appeal may be had from an order when it sustains or overrales a de- murrer. From the above section, as amended, it is clear the Legislature intended that the overruling or sustaining a demurrer, where time is given for the failing party to amend should be treated as an order only until judgment is perfected thereon. But we think it clear that the order loses its character, as such, when it becomes a part of a judgment. Code, § 400. And these re- marks cover our third and fourth classes of cases, which will be noticed below. Second. — Where the demurrer covers only part of the complaint or answer, it is an order only, and not a judgment. Druinmond V. Husson, 8 Pr. E. 246 ; Cook v. Pomeroy, 10 id. 221. Third. — When leave is given to amend, it is an order only, and not a judgment. Eeyuolds v. Preeman, 4 Sand., 702 ; Cook v. Pomeroy, 10 Pr., E. 221. The reason of this rule is, as given by the cases, that judgment cannot be perfected until the decision upon all the issues in the action. Fourth. — For the purpose of an appeal, it has been held to be an order until judgment is entered, and after the entry of judgment that the appeal upon it m.ust be as a judgment. Eeynolds v. Freeman, 4 Sand., 702 ; Nolton v. W. E. E. Co., 10 Pr. E., 97 ; Ives V. Miller, 19 Barb., 197; Ford v. David, 13 Pr. E., 193. By thus classifying the cases, it appears that all of the cases above cited as belonging to the three last classes are directly in conflict with those cited as belonging to the first class : and, we think, upon principle, as well as weight of authority, they overrule effectually the cases cited in the first class : and the other three classes we do not understand as being at all in conflict with each other; and we regard the law as now settled that when the decision is upon a demurrer to a part only of any pleading, it is an order. No judgment can be entered upon it, as we have seen? till all the other issues in the action are tried. And where, upon the decision of a demurrer, time is given to plead over or amend, it is an order only, and so continues until judgment is perfected, and then the order is swallowed up in the judgment. OF STAYING PROCEEDINGS AND ENLARGING TIME. 263 CHAPTER XVI. OF STAYING PROCEEDINGS AND ENLARGING TIME. Orders to stay proceedings are always for the purpose of enab- ling a party to make an application for some relief, equitable or strictly legal, in the action in which the order is granted, or to await the decision of some other cause involving the same prin- ciple ; and ordinarily the action in which the stay is ordered must be between the same parties as those in the action, until the de- cision of which the stay is made, or their privies. A stay of proceedings may be granted by a Judge at Chambers, when it is not for more than twenty days. Where it is for more, the order must be made by the Court, and on notice. A motion for an order to stay, or any other order, except for judgment on a frivolous answer or demurrer, cannot be made on notice before a Judge at Chambers, although a motion may be made before a Judge at Chambers on an order to show cause. But an order to stay proceedings, made by a Judge at Chambers, cannot be treated as a nullity, unless it appears on its face to be an order to stay for more than twenty days, or that it is a case where, for some other reason, the judge had no jurisdiction to grant the order, but the same must be set aside on motion. Harris v. Clark, 10 Pr. R., 416 ; Hempstead v. Hempstead, 7 id., 8. An order staying proceedings, made by a Judge at Chambers, for more than twenty days, is a nullity. Bangs v. Selden, 13 Pr. R., 374. Sales v. Woodin, 8 Pr. R., 349. An order staying proceedings, that is not accompanied by a notice of motion, is in all cases void when granted by a Judge at Chambers. Sales v. Woodin, 8 Pr. R., 349 ; Roosevelt v. Fulton, 5 Cowen, 438 ; Graham's Pr., 680 ; Schenck v. McKie, 4 Pr. R., 246; The Steam Navigation Co. v. Weed, 8 Pr. R., 49. The provision of § 401 of the Code, which says that no order to stay proceedings in an action shall be granted by a Judge out of Court for more than twenty days, means that a Judge out of Court, except upon an order to show cause, shall not extend the time for more than twenty days; and it makes no difference whether the stay is by one order for sixty days, or three orders ,264 OF STAYING PEOCEEDINGS AND ENLARGING TIME. for twenty days each. Anon., 5 Sand., 656; Sales v. Woodin, 8 Pr. E., 349. If the stay of proceedings is for the purpose of having a com- naission to examine a witness executed, the motion must be made at the earliest opportunity, as the Court will not allow a party to be thrown over a circuit, simply because his adversary did not move for a commission. But see on this subject, post, chap. 22. Rule 11 makes an order to discover books, papers, &c., a stay of proceedings, until the order is complied with or vacated; un- less, by the order itself, such stay is qualified or limited. See on this subject, post, chap. 20. The time limited for the taking of any proceeding in an action, except an appeal, may be enlarged by a Judge out of Court, upon an affidavit showing the necessity for such enlargement. The affidavit upon which the order is granted must be served with, the order, or the same may be disregarded. Code, § 405. And by Rule 20, where the order is to enlarge the time to answer or demur, in addition to the affidavit showing the necessity for such enlarge- ment, it must also be founded upon an affidavit that the defendant has a good and substantial defense, upon the merits in the action, made by the party, or an affidavit made by the attorney or coun- sel employed to defend the action, that from the statement of the case in the action, made to him by the defendant, he believes he has a good and substantial defense upon the merits to the cause of action, or some part thereof. These orders to enlarge time are of course as various in their application to, or effect upon the proceedings in an action, as are the different acts or proceedings which may be required to be had in the course of the prosecution or defense. And they are usu- ally granted by a justice of the Court, at Chambers, or the County Judge of the county in which the place of trial is laid. Orders to enlarge the time for making a case or bill of excep- tion, are sometimes made and entered in Court, at the close of the trial, or on the receiving of the verdict if the cause be tried by jury. And the order being thus entered by the judge by or be- fore whom the cause was tried, and while the parties were both present in Court, no affidavit is necessary, and a copy of the order, enlarging the time, is all which would be required to be served to make the order effectual. Usually, however, the enlarging the time to make a case or bill AMENDMENTS OP COUKSE TO ANSWER OR REPLY. 265 of exceptions (in actual practice,) is arranged by stipulatioa be- tween the attorneys, and no order, in point of fact, is entered. And after the tinae within which an act is required to be done, the Court, on motion, upon such terms as they shall deem just, may authorize the doing of the same with the same effect, as if done within the time required by the Code, and they may also enlarge the time for doing any such act. Code, § 174. CHAPTEE XVII. AMENDMENTS OF COURSE TO ANSWER OR REPLY. The Courts have always been extremely liberal in allowing amendments to pleadings, and by the Code any pleading may be once amended as a matter of course before the time to answer it expires ; or, if an answering pleading is served, within twentj' days after such service, without prejudice to the proceedings already had in the action. Code, § ] 72. Under this section it has been held that adding a verification to a pleading is not an amendment. Changing the language of a pleading, without any change in the substance, is not an amendment, and such a pleading may be set aside on motion. Snyder v. White, 6 Pr. R., 321. An answer, which sets up no counter-claim or other new matter, cannot be amended of course, because there is no time to answer or demur in such case. Such a pleading does not admit of an answer or demurrer, consequently the Code does not authorize an amendment without leave of the Court. Code, § 172 ; Farrand V. Herberson, 3 Duer, 655 ; Plumb v. Whipple, 7 Pr. E., 411. A reply may be amended, of course, because it may be demur- red to. Code, § § 155. 172. A demurrer to a reply is clearly with in the meaning of the word answer, as used in § 172. Amendments of course are always without costs. Code, § 172. But this liberality, in allowing amendments of course, is carefully guarded by the Court, to prevent a fraudulent abuse of the privi- lege ; for instance, where an amended answer is evidently put in for the mere purpose of delay and in order to throw the plaintiff over a circuit, the Court will strike the answer out on motion, and, if necessary, will allow an inquest to be taken, and the motion to 266 OP SUPPLEMENTAL PLEADINGS. strike out to be made afterwards. Allen v. Compton, 8 Pr. E., 251. The amendment of course must always be made in such manner and at such time that it will be without prejudice to the proceedings already had in the action, fairly and in the ordinary practice of the Court. Code, § 172. There has been some conflict of authority as to whether an amendment of course could be used forthe purpose of introducing an entire new defense. We can see no reason why it should not be done where the new matter introduced is not merely for the pur- pose of delay, and where the plaintiff will not be thrown over a circuit by the amendment. But it would seem, from section 177 of the Code, that the Legis- lature did not intend that a new defense, not in any manner con- tained in the original answer, should be introduced as an amend- ment, otherwise there would be no necessity in any case for a supplemental answer to introduce facts which existed, but were not known to the defendant at the time the first answer was put in. See further on this subject, post. Chap. 18. The section of the Code, authorizing a party to amend once and without costs, is confined to the first amendment ; and where a party has once amended by leave of the Court, he cannot after- wards amend of course, on the ground that he is entitled so to amend once. Jeroliman v. Cohen, 1 Duer, 631. CHAPTEE XVIII. OF SUPPLEMENTAL PLEADINGS. A supplemental pleading should never be allowed where the new matter sought to be introduced might be brought in by an amendment of the pleading. McMahon v. Allen, 12 Pr. E., 39 ; 3 Abb. Pr. E., 89. But by the Code a supplemental pleading may be served by leave of the Court, to introduce any new matter arising after the pleading has been put in, to which the supplement is proposed to be made, or which was not known to the party at the time of making and serving the complaint or other pleading. Code, §177. OF SUPPLEMENTAL PLEADINGS. 267 A supplemental complaint, in addition to the facts wliicli were contained in the original complaint, and the new matter to be in- troduced by way of supplement, must contain a statement of the time when the action was brought, and a concise history of the proceedings therein, down to the time when leave to serve the supplemental complaint is obtained. For a detailed statement of the different parts of a supplemental complaint, see ante, p. 126. And any fact, which arose after the commencement of the action, cannot be introduced into a complaint as an amendment. Horn- fager v. Hornfager, 6 Pr. E., 13. And a fact, accruing after an answer had been put in, cannot be introduced into the answer by amendment, and the same rule applies to a reply. There is one difference between a complaint and answer, as to. the facts which they may respectively contain. No fact, which arose after the issuing and service of the summons and before the service of the complaint, can be alleged therein. Nor can it be intro- duced either as an amendment, or as the foundation for leave to- serve a supplemental complaint, for the reason, that a party must recover upon facts which existed at the time the action was com- menced ; and a material fact which arose after the service of the summons, being known to the plaintiff at the time the complaint, was served, cannot be introduced into a supplemental complaint. On the contrary, any fact which constitutes a defense, or a materiar part of a defense, arising at any time before the answer is served, may be alleged in the answer. Under the former practice, in set- ting up an affirmative defense which arose before the commence- ment of the action, the plea commenced as follows : " And for a further plea in this behalf the defendant says, That the said plain- tiff ought not to have or maintain his aforesaid action against him, because," &c. If the defense arose after the commencement of the action, the plea commenced: " The defendant says, the plain- tiff ought not further to have," &c. ; instead of saying " ought not, to have," as in the first instance. But now this distinction has. no existence, and the defendant alleges the facts which constitute- his defense, without regard to whether the said defense occurred before or after the commencement of the action. There was no such thing as a supplemental answer, eo nomine known to the former practice in the Court of Chancery. A fur- ther answer was put in when, upon exceptions, the answer was held insufficient ; and when facts, material to the equitable rights 268 OF SUPPLEMENTAL PLEADINGS. of the defendant in the action, arose after the answer had been put in, or were unknown to the defendant at the time of answer- ing, he might obtain leave, on motion, to introduce such facts by amending his answer. And in an action at law, any defense, aris- ing after issue, might be interposed by what was called a flea puis darrein continuance. This plea, as a general rule, waived all former pleas in the suit, and the defendant relied solely upon the new defense it set up. Gra. Pr., 253 ; Culver v. Barney, li Wend. 161 ; Kimball v. Huntington, 10 Wend., 675. The supplemental answer, which the Court, by section 177 of the Code, may allow, covers, not only the setting up of matter which arose after the answer was put in, but also any matter constitut- ing a defense, which existed before the answer, and was not dis- covered by or known to the defendant till after answer. It is very clear, from the provisions of section 177, that the Legislature did not intend that a new defense should be introduced into an answer, by way of amendment, either where the amend- ment was of course, or allowed on motion : because, if that is the proper office of an amendment, then there is no such thing as a .■supplemental answer, except for the purpose of introducing new matter arising after answer, as there would be nothing to be intro- duced by such supplemental pleading, for we have already seen rthat a supplemental pleading will not be allowed'when the matter ■can be introduced by amendment. See AIcMahon v. Allen, above •cited. The only thing that we are aware of which would tend to show what the supplemental answer should contain, or its effect, (so far as judicial decisions are concerned), is the proposition laid d6wn by Gridley J., in Drought v. Curtis, 8 Pr. E., 56, that such an answer, setting up new matter, takes the place of a plea puis darrien con- tinuance, under the former practice. If that be the case, the sup- plemental answer should contain nothing but what is necessary, understandingly to introduce the new matter which forms the rea- son for the supplemental pleading ; because all the former defenses, whether denials or affirmative answers, are waived by the service of tne supplemental answer. 1 L. Raym., 693; 1 Salk., 178 ; Gra. Pr., 258 ; Culver v. Barney, 14 Wend., 161 ; Kimball v. Hunting- ton, 10 Wend., 675. The answer in the case of Drought v. Curtis, above cited, as far as we can judge from the report of the case, contained nothing but the allegation of the new matter, which was OF SUPPLEMENTAL PLEADINGS. 269 in effect a settlement of the cause of action for which the suit -was brought, and it is very clear that the Court and the defendant, un- derstood that, by the supplemental answer, the defendant was bound to rely solely upon the new matter set \\p in the supple- mental answer for his defense ; in other words, that every other defense was thereby waived. This is certainly high authority for saying that a supplemental answer should contain nothing but the new matter, together with such other facts as are necessary to be averred, in order to show to what, and how, the new defense is intended to be applied. These remarks, of course, only apply to a supplemental answer setting up a defense which arose after answer in the action. And this still leaves a question in relation to which we find no light to guide us, so far as direct authority is concerned, and that is in an action where the complaint sets up several dis- tinct counts, containing as many independent causes of action, no one of which would be in any manner affected by the decision of any other. After answer, and before the trial of the action, new facts occur, constituting a valid defense to one of the counts ; this new matter is introduced by supplemental answer. What effect has this new answer upon the former one ? We take it for granted, from the practice which the equities of the case would seem to indicate as necessary, as well as from analogy to the practice upon demurrer, where the party who has committed the first fault in pleading fails, that you go back in the same line of pleading, and only so mach of the former answer is waived as related to the count to which the new defense is interposed. A supplemental answer, setting up new matter, may be inter- posed at any time before the trial of the action, and perhaps at any time before verdict. Broome v. Beardsley, 3 Cai. R., 172. And in the case of Drought v- Curtis, above cited, issue was joined in October, 1851, and referred, noticed for trial before the referee twice, the second notice being for a day in January, 1853, when the pro- ceedings were stayed, to enable the party to move for leave to serve a supplemental answer ; it is true the objection was not taken in that case that the motion was too late, as appears by the report, but we have no hesitation in saying it would have been unavailing had it been taken. And when a valid legal and equitable defense arises after an- swer, should it not be discovered by the defendant in time to make his application at an earlier day, we think the Court at any 270 OF SUPPLEMENTAL PLEADINGS. time before verdict, would stay proceedings in the action to enable the defendant to move for leave to serve a supplemental answer. Otherwise a party might suffer great injustice withott being guilty of any laches. The motion for leave to file a supplemental pleading should in all cases be founded upon the new pleading proposed to be intro- duced, together with an affidavit of its truth. When the new matter, which forms the subject of a supplement- al answer, is a defense which existed at the time of making the first ancwer, but was wholly unknown to the defendant, the sup- plemental answer should be in the same form as in the case when the new matter arose after answer, but the effect is not the same. Nothing is waived by it, it adds a new defense to the original answer, and all stand together. The application for leave to serve a supplemental answer, in any case, should be at the earliest opportunity after the defendant has knowledge of the facts, or the delay in moving should be ex- cused upon the face of the moving papers. The remarks already made upon this subject, relative to the answer, are applicable to an application for leave to serve a supplemental reply, so far as the practice is concerned. We do not readily perceive how any further discussion upon this subject can be required, as no sup- plemental reply can ever require a different practice from that already pointed out in relation to supplemental answers. Indeed, the reply bears precisely the same relation to the counter-claims set up in an answer, that the answer does to a claim set up in a count of the complaint. The affidavit, upon which the motion for leave to serve a sup- plemental pleading is founded, should be attached to the proposed supplemental pleading, and should be substantially in the follow- ing form : SUPREME COURT. Rensselaer County, ss.— A. B., being duly sworn, says he is the plaintiff, (or defendant, as the case may be,) and that the fol- lowing allegations, to wit : (here state concisely the new matter introduced,) contained in the foregoing complaint, (or answer, or OF SUPPLEMENTAL PLEADINGS. 271 reply, as tbe case may be,) are each and every one of them true in substance. (Or, if not within the knowledge of the party making the affidavit, add, as he is informed and believes.) [And if the new matter alleged arose before the pleading, to which the supplement is proposed to be made, was put in, then add to the affidavit the following: And deponent farther says, he had no knowledge of the said facts alleged in the proposed supplemental complaint, (or as the case may be,) at the time the original com- plaint was served, nor had he any information thereof] Sworn, &c. A. B. Where the new matter arose after the original pleading was served, this will sufficiently appear by the statement of facts con tained in the affidavit, and also in the supplemental pleading But where the new matter arose before the original pleading, the want of knowledge of such facts, at the time the pleading was served, can only appear by a special statement in the affidavit. The notice of motion, for leave to file a supplemental pleading, should be in the following form : SUPEEME COUET. Take notice, that at the next Special Term of this Court, to be held at the Capitol, in the city of Albany, on the last Tuesday of November, 1857, at the opening of the Court on that day, or as soon thereafter as counsel can be heard, a motion will be made for leave to serve the supplemental answer, herewith served on you, in this action, which motion will be founded upon said supple- mental answer, and upon the affidavit, a copy of which is also herewith served on you. Dated, &c. Yours, &c., N. DAYBNPORT, Def t's Att'y. To J. J, ViELE, Esq., Pl'ff's Att'y. The order, on granting the motion, should be in the following form : At a Special Term of the Supreme Court, held at the Capitol, in the City of Albany, on the 27th day of November, 1857. Present — Hon. W. B. Wright, Justice. Upon the proposed supplemental answer, and an affidavit of 272 OF CONSOLIDATING ACTIONS. the truth of the allegations therein contained, and after hearing counsel for the respective parties, on motion of N. Davenport, for defendant : Ordered, that the defendant have leave to file and serve the proposed supplemental answer in this action, setting up, [here state concisely the defense set up in the answer]. This order should be entered with the Clerk, and served upon the attorney of the adverse party. CHAPTER XIX. OF CONSOLIDATING ACTIONS. The Common Law Courts have always exercised the power of consolidating actions, for the purpose of preventing an abuse of the practice by bringing several suits by the same plaintiff against the same defendant, or in favor of the same plaintiff against several defendants upon a joint and several obligation, where one action might have embraced them all, making several separate bills of costs, when, in fact, but one should have been made ; and in 1830 this power was expressly given, not merely where the causes were pending in the same Court, but where they were in separate Courts, thus enlarging the power of this Court upon that subject, so as to prevent an oppressive multiplicity of suits, bringing them in different Courts, for the purpose of preventing consolidation : as, for instance, an attorney, residing in the city of New York, having four notes, all in favor of the same man, and all against the same man, for the purpose of making several bills of cost, might com- mence an action upon one in the Marine Court, upon another in the Common Pleas, another in the Supreme Court, and another in the Superior Court, and now by statute the Supreme Court may con- solidate all those actions, so as to have but one judgment entered in the four. The sections of the Revised Statutes on this subject are in the following words : " Whenever several suits shall be pending in the same Court, by the same plaintiff against the same defendant, for causes of action which may be joined, the Court in which the same shall be prosecuted may, in its discretion, if it shall appear expedient, order the several suits to be consolidated into one action." " If one or more of such suits be pending in the Supreme Court, and others be pending in any other Court, the. Supreme Court OF CONSOLIDATING ACTIONS. 273 may order the suits in the other Courts to be consolidated with that in the Supreme Court." " When several suits shall be commenced against joint and several debtors, in the same Court, the plaintiff may, in any stage of the proceedings, consolidate them into one action." 2E. S., 4Ed., 632,§§38, 39, 40. These provisions of the statute and the practice of the Court upon this subject continue the same as before the Code. There is no provision of the Code relating to the consolidation of actions, and the power of consolidating is always exercised in a manner as far as possible to have justice administered under the law, without unnecessarily multiplying costs. The following general rules may perhaps be useful in determin- ing when to move to consolidate. First. The questions to be tried must be substantially the same in all the actions. Dunn v. Mason, 7 Hill, 154. Second. The causes of action in the several cases must be such as may be properly joined in the same complaint. Brewster v- Stewart, 8 Wend., 441 ; Wilkinson v. Johnson, 4 Hill, 46. Third. If the actions are defended, or are to be defended, it should appear that the defenses are substantially the same in the several actions. Wilkinson v. Johnson, 4 Hill, 46. Fourth. Or it must be made to appear that no defense will be made, and that the motion to consolidate is to save the expense of several judgments where one only is all that is necessary. lb. In 'all cases where the actions come within the above rules, con- solidation will be ordered. The provisions of the Revised Statutes above recited cover all cases iu which consolidation will be ordered, and authorize a much broader exercise of that power than would come within the rules we have above prescribed. The authority to consolidate covers all actions pending between the same parties, in which the causes of action may all be joined in one complaint. This, of course, must now be understood as all causes of action which may be joined, according to § 167 of the Code. See ante, p. 90. But the statute does not require that all such actions shall, on motion, be consolidated ; it leaves it to the Court, in all cases com- ing within this broad rule, to order consolidation, or not, as they shall deem expedient. The Court, however, have not, as yet, made any general rule 274 OF CONSOLIDATING ACTIONS. upon this subject. It is very clear that, by this provision of the statute, the consolidation rule, which prior to 1830 was the same in this State as in Bogland, is rendered wholly unnecessary, if it is not actually abolished by the Eevised Statutes. The second rule above specified by us, " The causes of action in the several cases must be such as may be properly joined in the same complaint," is clearly within the provision of the Eevised Statutes, and we think abolishes the former practice upon this sub- ject, and whenever a consolidation is ordered the actions consolid- ated aU become one action, and by the present practice all the pleadings are put together for the purpose of forming one roll or judgment record. In considering the inconveniences of the present practice upon this subject, we must bear in mind that by the Revised Statutes, in addition to the broad provision just remarked upon, it is pro- vided that separate actions brought by the same plaintiff against several defendants upon a contract, where the said defendants would be severally liable, they may be consolidated ; and if ac- tions which might be joined in the same complaint are pending in different Courts, any one of them being in the Supreme Court, that Court may order them consolidated into one action in the Supreme Court. This was the law in relation to consolidation, as regulated by statute in 1830, and it has so remained ever since. No system of practice under the Revised Statutes has ever been established, judicially or otherwise. There have been many instances in which actions have been consolidated, and, as far as we know, the attorneys have regulated the practice among themselves, and have followed the practice in this State previous to 1830, which was the same as that in the Court of Queen's Bench in England, namely : One cause was tried involving the question in dispute in all the actions, and the verdict decided them all ; if in favor of the defendant, it decided all the actions in his favor, and if in favor of the plaintiff, 'the defendant had eight days allowed him to pay the amount due upon the several writings or instruments upon which the other actions were brought, together with the costs, up to the time of the consolidation ; and if the money was not so paid, then the plaintiff perfected judgment in each of the cases, and recovered in each action the costs of all the proceedings had therein. But this could not be done except where the actions were founded upon OF CONSOLIDATINa ACTIONS. 275 some written instrument or contract, so that the amount to be recovered, if a recovery was had by the plaintiff, would be certain, or at least could be ascertained by a simple computation of interest. And what course has been adopted in other cases we do not know, except in a single instance. In the case of Davis v. Smith, three or four separate actions were consolidated by stipulation be- tween the parties. There was in each case a running account between the parties. In each of the actions on the part of the plaintiff, the claim in each case was for professional services which were rendered for the defendant, by Davis alone, Davis and Mather, and Davis, Woodcock & Davis. Davis had become the owner of the interest of his partners in the partnership accounts against Smith, and was thus the only party in interest, as plaintiff in the actions. After the stipulation to consolidate, the causes were all tried before a referee, at the same time, but were treated upon the trial as if they were separate actions, and a report made in favor of the plaintiff, except in one action, in which there was a balance due the defendant. The Court in bank, upon appeal, from an order of Justic Gould, affirmed his order, and decided that in such case but one judgment should be entered, which should be for the balance due, as the re- sult of all the claims, on both sides, in all the actions ; and that all the pleadings in all the actions must be attached together, for the purpose of making the judgment roll. This case is not, and perhaps will not be, reported; and should it be, it would afford but little light, as it only determines the practice as to the manner in which. the trial should be had, and judgment perfected, in consolidated actions under the statute. That is, that there should be, after consolidation, but one trial, and that should be of all the actions, and but one judgment rendered for a general balance of the claims in all the actions. And we believe, that the Court also came to the conclusion that there never had been any practice or rule laid down or estab- lished, judicially or otherwise, to aid the practitioner in deter, mining when a motion to consolidate would be proper, or showing in any manner in what cases the Court, in the exercise of the discretion conferred upon them by statute, would order actions to be consolidated. This is certainly one instance in which the Code has done no harm, (not intending to say that it has not in many cases made a 276 OF CONSOLIDATING ACTIONS. great improvement in the practice). But here is a subject -which seems to have been overlooked by the Commissioners of the Code and legislative bodies, before and since the adoption of the first Code, and, for that matter, by the Courts themselves. The consolidation rule, as it was called under the old practice, and with it the entire practice upon that subject, having been effectually abolished by the Eevised Statutes, as we have seen, it is unnecessary to enquire particularly what that practice was. One form of the old consolidation rule may be seen in the appendix to Burrill's Practice Form, No. 912, or in Yates' Plea, page 46, Eule 3. From the above remarks, it appears we are all in the dark upon the question of how the Court will exercise the discretion which the statute requires them to use in determining in what cases con- solidation will be ordered. Of course, what we may saj upon that subject is speculation, founded upon the former practice and the light we can borrow from the disposition made by the Court of the case of Davis v. Smith, above mentioned. We presume the Court, in determining the question, when they will order consolidation (except in actions against persons severally liable upon a contract), will be governed by the rules that prevailed under the former practice, extending them, in their operation, to cases where the several actions are in different courts, provided one, at least, of them is in the Supreme Court ; that is to say, as a general rule, the Court would require, that the question to be tried should be substantially the same in all the actions, that the causes of action should be such as might be united in the same complaint, and, of course, that the defenses are to be substantially the same, or that none of the actions were to be defended. It should also appear what court or courts the actions are pending in, and that the parties are the same in all the actions, except in actions where two or more persons are severally liable upon a contract or note ; and, in such cases, the plaintiff must be the same in all the actions. We think, also, the motion to consolidate should be made be- fore answer, and that the putting in an answer should be a waiver of the right to consolidate, except in cases where a party com- mences one action, and, after that is at issue, commences another against the same defendant, the causes in both of which might be joined in the same complaint. OP CONSOLIDATINU ACTIONS. 277 And, in all cnsfjs of consolidation, we think it would be advisa- ble to ask, and the Court would generally direct (and, in some in- stances, on their own motion), that the plaintiff serve an amended complaint, f^inbraoiiig all of the several causes of action in all the complaints in one, so that but one answer would be interposed. This course was sometimes adopted under the former practice (of course, we mean before the Kevised Statutes). See People v. McDonald, 1 Cow., 189, where two several actions were brought 'iipf)n an administrator's bond, the Court ordered the actions to be consolidated; but, in the same rule, gave the plaintiff leave to amend his declaration, embracing both the causes of action there- in. And such a practice will be found much more convenient and necoffsfiry, since the; Legislature has required that the actions be all consolidated into one. The Court will not order a consolidation in a case where the actions are very numerous, unless it would comi; within a class of eases, where, after the consolidation, the action would, of course, be referred, or, where the relief sought was eqni table, as that the trial would be had before the Court, as it would bi; improper to impose upon a jury the duty of disposing of a great multiplicity of issues upon the same trial. Take, for instance, the case of Clark v. The Metropolitan Bank, 5 Sand., 665. There sixty-four actions were brought for as many penalties, uruler the aet concerning foreign bank notes. After the causes were at issue, a iriotion was made to consolidate, which was denied by the Court, and very properly, as no Court should cast upon a jury the burthen of disposing of such a number of issues in a single trial. A course, very similar to that which was suggested by the Court in the case of Clark v. The Metropolitan Bank, above cited, wo think might be adopted in all cases belonging to that class, and thus save the necessity of consolidation ; that is, if the defense is the same in all the actions, that one action be tried and that procecsdinge be stayed in all the otiiers until the final determina- tion of that action ; and, if the facts were such that different questions would be presented in diflferent cases, then, that the sevcirul actions be classified, and one action in each class tried and proc',('(Hliiigs stayed in all the others, and, perhaps, the defendant tnigtit bo required, as a condition upon which the stay should be granted, to stipulate that all the other causes, in each class, abide the event of one in the same class. This would be making some 278 OP CONSOLIDATING ACTIONS. approach toward the old consolidation rule, before 1830. Bj this arrangement the defendant would not save quite as much costs as he would have done under the old consolidation rule. Where the motion is to consolidate several actions, brought against joint and several debtors, the provision of the statute is, that the plaintiff may consolidate. This would seem to require the Court to grant the order on the plaintiff's motion, as it is not to be supposed that the effect of this provision is, to authorize the plaintiff to consolidate without an order of the Court for that purpose, and the Court would, very certainly, have power to incor- porate in the order a clause, requiring the plaintiff to amend, so as to put the names of all the defendants into one complaint, and, if the defendants succeed in the action, they should be allowed to put into the judgments, if they had defended by separate attorneys, in good faith, several bills of costs down to the time of the amend- ments of the complaint, reducing the number of actions to one. This question of costs, however, will depend upon the circum- stances of each case, and must rest in the discretion of the Court. This motion by the plaintiff may be after answer. If made at any time before answer, it is very clear the plaintiff should be required to amend, as suggested, the only alteration being the inserting the names of all the defendants in one complaint, and, where the defendants were numerous, it would greatly disencum- ber the record. It will be observed that motions to consolidate cannot be made by a defendant, except in cases where several actions are com- menced by the same plaintiff against the same defendant. If this provision is to be regarded as a limitation, then the defendant cannot move for a consolidation, in case of several actions against several defendants upon a joint and several obligation ; and, if it is not to be regarded as a limitation, the defendants could not make such a motion, unless they are all united in it. We incline, however, to the opinion, that the Legislature did not intend to authorize the defendants to move for a consolidation in such case. In all cases, however, where the Court does not order the plain- tiff to amend, and the several actions are consolidated into one at the trial, all the actions must, of course, be tried as one. But, if the consolidation is made before answer, as we think it should be, the defendant may, undoubtedly, make one general answer in the same manner as if there had been but one complaint. There is OF CONSOLIDATING ACTIONS. 279 no rule of the Court, however, requiring the motion to consolidate to be made before answer, and the language of the statute does not prohibit the motion being made after answer, in cases where either party may move. Indeed, it would seem very clear that the Legislature intended to give the plaintiff leave to make a motion in all cases where a consolidation is proper at all, while in one class of cases the right is denied to the defendant, and yet motions to consolidate are usually made by and for the benefit of the defendant, and to prevent, among other things, an oppress- ive accumulation of costs, by bringing several actions when but •one was necessary; and it was for this reason that, when a consolidation was ordered, the defendant usually recovered costs of the motion. United States Bank v. Strong, 9 Wend., 451. We cannot, however, conceive of a case where a plaintiff, making such a motion, would be equitably entitled to costs. This motion should be founded upon an af&davit, showing that there are several actions pending between the same parties, or, {if upon a joint and several obligation) in favor of the same plaintiff against several defendants, in what court, or courts, the same are so pending, and that at least one of them is in the Supreme Court ; whether they are at issue or not, and, if at issue, whether the questions arising in the several actions will be substantially the same upon the trial, and that the causes of action are such as might, under the Code, have been united in one complaint. At least, so much should be contained in the af&davit, to enable the Court understandly to exercise the discretion conferred upon them by the statute, in deciding these motions. The affidavit may be in the following form : SUPREME COURT. -NEW YORK SUPERIOR COURT. 280 OF CONSOLIDATING ACTIONS. NEW YORK COMMON PLEAS. Same ) agt. [ S ame. ] City and County of New York, ss. : C. D., being duly sworn, says, he is the defendant in the above entitled actions, which were commenced against him by the plaintiff upon three promissory notes, in the three courts in which said actions are above entitled, and that said actions are now all pending, none of them being at issue, and that deponent intends to put in the same defense to each of said notes, viz. : want of consideration, and that the said defense, in each every one of said actions, will depend upon the ^sarne facts and questions of law. Sworn, &c., C. D. The notice of motion should be in the following form : SUPREME COURT. A. B. I agt. I C. D.j NEW YORK SUPERIOR COURT. Same agt. Same. NEW YORK COMMON PLEAS. Same agt. Same. Take notice that a motion will be made at a Special Term of the Supreme Court, to be held at the City Hall, in the city of New York, founded upon the affidavit with a copy of whici you are herewith served, on the first Monday of November next, at ten o'clock in the forenoon of that day, or as soon thereafter as coun- sel can be heard, for an order consolidating the three above enti- tled actions into one action in the Supreme Court, with costs of this motion. Dated, &c., Yours, &c., CHEISTIE & FAIRBANKS, Def't's Att'ys. To J. P. Wells, Esq., Pl'ff's Att'y. This motion, as we have seen, is expressly authorized by the Eevised Statutes, and yet the Legislature have made no provision OF CONSOLIDATING ACTIONS. 281 for transferring the papers which have been filed in the office of the Clerk of the Superior Court, or in that of the Clerk of the Court of Common Pleas, to that of the Supreme Court. We presume, however, on production of a certified copy of the order of consolidation, the respective Courts would make the necessary orders, directing their clerks to make the required transfers ; and, should either of them, for any cause, refuse, the Supreme Court would, perhaps, have power, by mandamus, to compel them so to do ; although, as a general rule, a mandamus does not lie against a Court, as such. The order, on granting the motion, should be in the following form : At a Special Term of the Supreme Court, held at the City Hall, in the city of New York, on the day of , 1857. Present— Hon. T. W. Cleeke, Justice. sup:reme court. A. B. ) agt. [ C. D.) NEW YORK SUPERIOR COURT. Same ) agt. V Same. ) NEW YORK COMMON PLEAS. Same ) agt. V Same. ) On reading the affidavit of the defendant in the above entitled actions, by which it appears that said actions are all pending in the Courts in which they are respectively above entitled, and that each of said actions is upon a promissory note, executed by said defendant, payable to said plaintiff, or order, and that the defense will be the same in each of said actions, namely : that said notes were given without consideration, and that the facts, relied upon to establish such defense, are the same in all of said actions, and,. 282 OF THE ISSUE. on reading motion to consolidate, and after hearing counsel for the respective parties, on motion of E. Christie, Jr., for defendant, Ordered, that the several actions above entitled, be, and they are hereby, consolidated into one action in the Supreme Court [and it is further ordered, that the plaintiff serve an amended complaint, in the Supreme Court, embracing all the causes of action in the said three several actions] ; and that the defendant recover, against the said plaintiff, ten dollars costs of this motion. The above forms will be a sufiScient guide to the practitioner, as they will be easily adapted to all the cases in which the Court, under the present practice, or, rather, under the existing want of any settled practice, will be likely to order consolidation. At least, we do not deem it quite prudent further to speculate upon the subject until the Court shall, by rule, or otherwise, give some direction. We believe the rules which we have above laid down may be safely followed at present, and will avoid the evil arising from an unnecessary multiplication of actions. The words in brackets, in the above order, will, of course, be inserted or omit- ted, as the Court may direct, in each particular case. CHAPTEE XX. OF THE ISSUE. A cause is said to be at issue wherever there is an affirmative allegation on the one side, and a denial on the other ; that is, where a complaint is upon a promissory note, and the answer denies the making of the note, or that the plaintiff is the owner of the note. This forms an issue of fact, and the action is said to be at issue upon complaint and answer, there having been no reply or demurrer interposed, and a reply under the Code cannot be made in such a case. But, by the Code, the class of cases in which actions are at issue, upon complaint and answer, on an issue of fact, is much more comprehensive than the issues formed by a simple denial would make it. In all cases where new matter is set up in the answer, which does not constitute a counter-claim, but which amounts to a defense to the action, the cause is at issue (as no reply can be made to such an answer), unless the plaintiff demur to such new matter ; and the issue thus formed is an issue of fact upon complaint and answer. There may be several issues OF THE DISCOVERY OF BOOKS AND PAPERS* 283 of fact, upon complaint and answer, in tlie same action ; and we have seen that, whenever no answer is made to a cause of action set up in the complaint, the same is admitted, and, so far, the action remains undefended. But there is a large class of cases where the issue of fact is formed by the answer and reply. This occurs where the answer sets up any defense which amounts to a counter-claim, and the reply either denies the counter-claim, or sets up new matter which constitutes a defense to it. This forms all the issues of fact which can be raised upon the pleadings under the Code. Issues of law are formed by a demurrer to the complaint, or to some count thereof; or to any new matter in the answer, whether set up as a counter-claim or other defense ; or to a reply. There may be several issues of law and of fact in the same action. Code, § § 248, 249, 250. "Whenever an action is thus at issue, the issues of law, when issues of law and fact both arise in the same action, are first tried; and in any case, no further proceeding is necessary to be had, preparatory to noticing such issues for trial. But where issues of fact are joined, there are not unfrequently a great variety of other steps necessary to be taken before the parties are prepared for the trial. CHAPTEE XXI. OF THE DISCOVERY OF BOOKS AND PAPERS. The proceeding for the discovery of books and papers, under the old practice, as authorized by the Eevised Statutes, may still be resorted to ; and the object to be attained by it is not in any manner supplied by any provision of the Code. Davis v. Dun- leavy, 13 Pr. E., 427 ; Gould v. McArthur, 1 Kernan, 575. And it is evident that the commissioners who framed the original Code did not intend to change this practice, but rather to supply what they considered an omission in the Statute, by § 388 of the Code, which provides for the admission or inspection of writings. And as the practice is somewhat different, in proceedings under the Eevised Statutes, for the discovery of books and papers, from 284 OF THE DISCOVERY OF BOOKS ASfD PAPEKS. that under § 388 of the Code, for the admission or inspection of writings, we shall treat of them in separate chapters. The provisions of the Eeyised Statutes, upon the discovery of books and papers, are to be found in the second volume, at page 199, §21 to § 27, inclusive ; and by § 22 it is provided that the Supreme Court may, by general rules, prescribe the cases in which such discovery may be had, and the proceedings for that purpose, where the same are not provided by the statute. Rules 8 to 11, inclusive, contain the regulations of the Court as to the proceed- ings upon this subject- Formerly the courts of common law would compel a party to furnish his adversary with copies of papers, or documents of any kind, which were mentioned or referred to in his pleadings, when the same might be necessary to enable his adversary to plead, reply, or rejoin, as the case might be ; and it is said to have been remarked by Lord Mansfield, that the common law courts would compel discovery in any case where a court of equity would. But the practice of filing bills of discovery had almost entirely superseded the making of applica- tions to the common law courts therefor,, until it was revived under the provisions of the Revised Statutes, above referred to, which went into effect in 1830. See Gra. Pr., 445. And since,, by the Constitution of 1846, the Court of Chancery has been abol- ished, and by the Code bills of discovery are also abolished, there is an absolute necessity for the Court, in many cases, to give a very liberal construction to the provisions of the Revised Statutes,- for the purpose of enabling parties to obtain copies, or a knowl- edge in some other manner, of books and papers in the possession^ or under the control, of their opponents, necessary for them, either in pleading or in preparing for the trial of the action. But a party cannot now, either in proceeding pursuant to the Revised Statutes, as avithorized by the sections above cited, or under § 388 of the Code, examine a defendant on oath as to whether papers or docu- ments are in his possession, or what papers or documents are in his possession. Hoyt v. The American Exchange Bank, 8 Pr. R., 89 ; 1 Duer, 652. A party can only be examined by his adversary under the pro- visions of § § 390 and 391 of the Code, any other examination being expressly prohibited by § 389. The method of obtaining a discovery of books and papers, under the Revised Statutes, is by petition addressed and presented GP TflE fcJSCOVfiRY Of fiOOgg AND PaPEES. 28B to tHe Court, or any justice thereof out of Court (see E. S., 199^ § 23), or to the county judge of the county where the place of trial is laid. Code, g 401. By Eule 9, it is required that such petition shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers and documents, whereof discovery is sought, are not in the possession nor under the control of the party applying therefor, and that the party making such affidavit is advised by his counsel, and verily believes, that the discovery of the books, papers, or docu- ments mentioned in such petition, is necessary to enable him to draw his complaint, answer, demurrer, or reply, or to prepare for trial, as the case may be. The cases in which a discovery of books and papers may be compelled are not very clearly defined, either by the provisions of the statute, or the general rules of the Court, made pursuant to the provisions of such statute. It is provided by the statute, that the Supreme Court shall have power, in such cases as shall be deemed proper, to compel any party to a suit, pending therein, to produce and discover books, papers, and documents in his possession or power, relating to the merits of any such suit, or of any defense therein, 2 R. S., 199, § 21. This provision is very broad, and confers upon the Courts power, in their discretion, to order a discovery, in all cases, of books and papers in the possession or under the control of a party to an action. This makes it necessary to consider whether that power is limited by the eighth general rule of the Court, made in pursuance of § 22 of the page and volume of the Eevised Sta- tutes above cited. The first clause of § 22 is as follows : " The Court shall, by general rules, prescribe the cases in which such discovery may be compelled." And Eule 8 of the Supreme Court is as follows ; " Application may be made, in the manner provided by law, to compel the production and discovery of books, papers, and docu- ments relating to the merits of any civil action pending in this Court, or of any defense in such action, in the following cases : " 1. By the plaintiff, to compel the discovery of books, papers, or documents, in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to fnime his complaint, or to answer any pleading of the defendant. "2. The plaintiff may be compelled to make the like discovery of books, papers, or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff." 286 OF THE UISCOVEEY OF BOOKS AND PAPERS. By the language of this rule, a discovery preparatory to the trial of the action, after the same is at issue, is in no way provided for ; yet it is very evident that the Court did not thereby iotend to deny to either party the right to such discovery, from the con- cluding clause of Kule 9, above cited, which is in these words : " That the discovery of. the books, papers, or documents, men- tioned in such petition, is necessary to enable him to draw his complaint, answer, demurrer, or reply, or to prepare for trial. In addition to this, by the provisions of the Code, § 469, the rules of the old Supreme Court were continued in force where not inconsistent with the Code, subject to the power of the Court to change them. Eule 8, above cited, is substantially a transcript of Eule 28 of the old Supreme Court, so far as to include the first and second subdivisions of that rule, but omitting the third and fourth sub divisions thereof. "We do not believe the Court intended to repeal either of these subdivisions, although that would, perhaps, with- in the general rule, be the legal effect of adopting a new rule upon the same subject ; but, in this case, Eule 9 of the present rules seems to forbid that construction. The third and fourth subdivisions of Eule 28, above referred tc, are in the words following : " 3. The plaintiff may be compelled, after declaring, and the defendant, after pleading, to produce and discover all papers or documents on which the action or defense is founded. " 4. After issue joined in any action, either party may be com- pelled to produce and discover all such books, papers, and docu- ments as may be necessary to enable the party applying for such discovery to prepare for the trial of the cause." Prior to the Constitution of 1846, and the Code of Procedure, by which bills of discovery were abolished, it was a matter rest- ing in the discretion of the Court (in cases where a discovery was in fact necessary) whether it would be granted by the Court in which the action was pending, or the party left to seek his dis- covery in a court of equity. Bi'owne v. Cribb, 20 Wend., 682. And a discovery would not be ordered, unless the party apply- ing brought himself strictly within the rules of the Court upon that subject. Moore v. Mcintosh, 18 Wend., 529. By the present practice, the examination of a party, as a wit- ness, and the discoveries which are authorized by the Code and OP THE DISCOVERT OP BOOKS AND PAPEES, 287 fhe Revised Statutes, the office of a bill of discoyery is intended to be fully supplied, and, in order to effect this, it is necessary that the Court should, and they undoubtedly will, exercise a very liberal discretion in compelling discoveries, as well under § 388 of the Code as under the Revised Statutes, and we can see no reason why the former rule should not be adopted, of ordering a discovery in any case where a court of equity would have required it. Wallis V. Murray, 4 Cow., 399 ; Townsend v. Lawrence, 9 Wend., 458. In any case where a party would be greatly crippled or embar- rassed in taking any of the ordinary steps in an action, whether it be in pleading, furnishing a bill of particulars, or preparing for trial, without such relief the Court will order the opposite party to make a discovery of any books or documents under his control, either by requiring a sworn copy to be furnished, or, that a deposit of them be made in the office of the Clerk of the County, or some other fit place, specifying the time that the same shall be continued, to give an opportunity of actual examination and copying, so far as the same is deemed necessary. But the Court will not require a party to exhibit his whole books of account for the purpose of allowing an examination to be made, which is only necessary so far as the books relate to a single transaction, or to a series of acts between the parties to a single action. Proceedings will be stayed, where equity requires it, to enable a party to apply for a discovery. Young y. De Mott, 1 Barb., 30. Where a party is entitled to a copy of a paper in the possession of his adversary, if such copy, or an opportunity to take one, is denied, and a reasonable time has been allowed, after demand, for furnishing the paper, the Court will make an order for a discovery, with costs of the motion. Townsend v. Lawrence, 9 Wend., 458. An order for discovery will not be granted for the purpose of the trial, where the facts, sought to be established by the discov- ery, can be otherwise proved by competent evidence, or where the books or papers are in the hands of a witness who can be compelled to produce them by suhpcena duces tecum, and if they are in the possession of a party, he may be compelled, by the like subpoena, to produce the papers and give testimony in relation to them ; and the party will be obliged to rely upon the testimony of the opposite party (it seems), and upon the papers thus pro- 288 01* THE DISCOVERY OlT BOOKS AND PAPERS. duced at the trial, unless he show, by his petition, a special reason for not using the party as a witness. The Commercial Bank of Albany v. Dunham, 13 Pr. E., 541, in which Harris, Justice, npproves the case of Staulkes v. Grant, 12 Leg. Obs., 132. We presume, however, it would be a sufficient reason for the party to say that he should have no confidence in the testimony of his adversary, and was not willing to make him his own wit- ness at the trial, without giving any more specific reason. This is certainly all that a party should be required to say relative to the testimonjr of his adversary. We do not believe that the proceed- ings in actions should ever be such as unnecessarily to create per- sonal animosity. ISTor do we believe that the Court will exercise their discretionary power in such manner as to compel a party to call his adversary as a witness, or lose a substantial right, when the necessary evidence might be obtained by a discovery of books and papers under the conirol of the opposite party. It is not a matter of course to compel a discovery at any time during the progress of an action (although the application for that purpose may be made at any time) ; but where the party, from whom the discovery is sought, will be delayed in the prosecution of his action, so as to lose a trial, or where there is reason to suspect that the application is made for the purpose of delay, the order will be refused. Hooker v. Mathews, 3 Pr. E., 329. AVhere a corporation is a party (for instance, a Bank), as a gene- ral rule^ the only way in which the opposite party can obtain evidence of the contents of their books and papers, or of any books or papers under the control of the corporation, is, by dis- covery, either under the Code, § 388, or under the section of the Eevised Statutes above cited. Such papers cannot be reached by a auhpce.na duces tecwn, as there is no officer of the bank who, as such, has control of the books and papers, or who would have the right, upon his ov/n authority, for any purpose, to remove them from the bank. The Bank of Utica V. Hillard, 5 Cow., 158 ; La Farge v. The La Farge Fire Ins. Co., 14 Pr. E., 26. An administrator, although he sues upon a promise made to himself as administrator, may have a discovery of books and papers relating to facts which transpired in the lifetime of his decedent. Mathis v. Vauderbilt, 2 Abb. Pr. E., 387. When the complaint professes to give a copy of an instrument, and the defendant has reason to doubt its correctness, he may OF THE DISCOVERY OF BOOKS AN"D PAPERS. 289 have an order for an inspection of the papers, before answer. Wesson v. Judd, 1 Abb. Pr. E., 254. Without any further citing of cases, we think the practitioner will be enabled, from the above remarks, to determine in what cases it will be proper to present a petition, under the Eevised Statutes, for a discovery of books and papers. We have seen that the petition, in every case, should contain facts enough to show clearly the necessity of the discovery sought. The petition should be substantially in the following form : To the Honorable GrEORGE Gould, one of the Justices of the Su- preme Court: The petition of A. B. respectfully shows, that an action is now pending and at issue, wherein the said A. B. is plaintiff, and 0. D. is defendant, in the Supreme Court, in which your petitioner, in and by the complaint in said action, claims to recover against the said defendant the sum of fifteen hundred dollars, for commissions due to him from the said defendant, for selling for the said defendant a great number of cattle and sheep, in the city of ISTew York, for which your petitioner was to receive ten per cent, upon the amount of such sales ; your petitioner guaranteeing the collection of the bills for such sales. And your petitioner further shows that the defendant has put in an answer, denying that there is any sum or amount whatever due your petitioner on account of such sales, and also claiming that your petitioner is largety indebted to him, the defendant, for bills for cattle and sheep sold for the said defendant, by your petitioner, the payment of which bills was guaranteed by your petitioner, and which remain wholly unpaid, and which are uncollectable and worthless. And your petitioner further shows, that he has put in a reply, denying the counter- claim of the said defendant, and every part thereof. And your petitioner further shows, that issue was joined in said action on the tenth day of ISTovember instant, by the service of said reply. And your petitioner further shows, that at the time of the making of the sales of cattle and sheep mentioned, in the complaint, your petitioner and the said defendant kept a book, in which they entered all the sales of cattle and sheep made by your petitioner, stating the number of cattle and sheep sold, the person to whom sold, when the sale was made, and the sum to which the same amounted; and when the bill for any such sale was collected, or the money received thereon, the same, together with the time when received, was also entered in said book. And your peti- tioner further shows, that the said book is in the possession and under the control of the said defendant, and that he refuses to let your petitioner see or examine the same. And your petitioner further shows, that he cannot safely proceed to, or understanding. 290 OF THE DISOOVEKY OF BOOKS AND PAPERS. ly prepare for, the trial of said action, without a previous exam- ination of said book, or a copy of the entries therein contained, so far as the same relate to the said sales. Your petitioner, therefore, prays that your Honor will grant an order, commanding and requiring the said defendant to deliver to your petitioner a sworn copy of all the entries in said book, relating in any manner to the sales of cattle or sheep by your petitioner, or the receipt of any moneys on account of such sales, and the names of all persons to whom any such sale has been made, on or before a day to be specified in said order, or that the said book be deposited in the office of the Clerk of the County of Rensselaer, on or before the first day of December, 1857, and that the same remain in the office of the said clerk until the fifteenth day of December afore- said, for the purpose of enabling your petitioner to examine the same, and take copies of so much and such parts of the entries therein, in any manner relating to the sale of cattle and sheep, or either, by your petitioner for the said defendant, as he may desire. And your petitioner, as in duty bound, will ever pray. Dated, &;c. A. B. The affidavit by which this petition is verified is required, by Eule 9, to state that the books, papers, and documents, whereof discovery is sought, are not in the possession nor under the con- trol of the party applying therefor, and that the party making such affidavit is advised by his counsel, and verily believes, that the discovery of the books, papers, or documents, mentioned in such petition, is necessary to enable him to draw his complaint, answer, demurrer, or reply, or to prepare for trial, as the case may be. This affidavit should be in the following form : State of Few York, Rensselaer Co., ss. — A. B., being duly sworn, says he is the petitioner named in the foregoing petition, and that he knows the contents thereof, and that the same is true of his own knowledge, except as to those matters therein stated upon information and belief, and as to those matters he believes it to be true ; and that the book, in said petition mentioned, is not in the possession or under the control of this deponent ; and that he is advised by Joseph D. White, Esq., his counsel, and verily believes, that he cannot safely proceed to the trial of the action, in said petition mentioned, without a copy, or a previous examina- tion, of said book, as in said petition stated. A. B. Sworn, &c. On presenting this petition, verified as above mentioned, to the Judge, he will grant an order, which should be in the follow- ing form — see Rule 10 : OF THE DISCOVERY OF BOOKS AND PAPEES. 291 SUPREME COURT. It is hereby Ordered, that the defendant in this action deliver to the plaintiff sworn copies of all the entries relating to the sales of cattle and sheep, or either, or the payments received for the same, contained in the book in the petition mentioned, within ten days after service of a copy of this order ; or that he deposit the said book, within the said ten days, in the office of the clerk of the county of Rensselaer, to enable the plaintiff to examine and take copies of said entries ; and that written notice be served upon the attorney of the plaintiff, of such deposit (when the same is made), and that the said book so remain in the oE&ce of said clerk during twenty days from the service of such notice. Geo. Gould. Dated, &c. This order, together with the petition and affidavit, must be served upon the defendant's attorney. If the defendant can 'show a good reason why he should not comply with the requirements of such order, he should set forth the facts on which such reason is founded, and move, upon notice to the plaintiff, to vacate said order. This motion should be made before the Court, although it may be, upon an order to show cause, before the judge who granted the first order. If no motion to vacate is made, or if made and denied, and the order to make discovery is not complied with (in a case like the one in which the above forms are given), the defendant will not be allowed to give any evidence of his counter-claim, and, where the equities of the case require it, the entire answer will be strick- en out. In analogy to the practice suggested by Justice Harris, in Kel- log V. Paine, 8 Pr. R., 329, we think an order should be obtained, on notice of motion for that purpose, striking out the answer, or that the defendant be precluded from giving evidence of his coun- ter-claim (as the case may be) before the trial (see ante, pp. Ill and 114) ; but, if there is not time to make such motion, it should be noticed for a day in the circuit at which the cause is noticed for trial, showing upon the moving papers the reason why the motion was not noticed for an earlier day ; and if the cause is 292 OF THE DISCOVERY OP BOOKS AND PAPERS, reached and called upoui the calendar before the time for making such motion, the Court will hear the motion on the cause being so called, or, if the plaintiff will not be prejudiced thereby, reserve the case until the motion is made. This motion must be founded upon the petition, affidavit of verification, and order for discovery, and an affidavit showing that such petition, affidavit and order have been duly served, and that the order has not been vacated, or the required discovery in any manner made. This affidavit is in the following form ; SUPREME COUET. A. B.) agt. I 0. D.j Eensselaer County, ss.— A. B., being duly sworn, says he is the plaintiff in the above entitled action, and that copies of the petition, affidavit and order, hereunto annexed, were served upon the attorney of the defendant on the eleventh day of November, 1857, and that more than ten days have elapsed since such service, and that no copy of any entry in the book, in said petition men- tioned, has been served upon, or famished to, deponent, and the said book has not been deposited in the office of the Clerk of the County of Eensselaer, as required by said order, as deponent is informed by J. D. "White, his attorney in this action, and verily believes, • A. B. Sworn, &c., The notice of this motion is in the ordinary form, and is, of course, an eight-day notice. If granted, the order is in the fol- lowing form : At a Special Term of the Supreme Court, held at the City Hall, in the city of Albany, on the day of November, 1857, Present — Hon. Ira Harris, Justice. On reading petition, affidavits, order, and notice of motion, and after hearing counsel for the respective parties, on motion of J. J). White, for plaintiff, Ordered, that the answer of the defendant OI* THE DISCOVERY OP BOOKS AND PAPERS. 293 in this action be, afid tlie same is; hereby strieken out, and that the plaintiff have judgment as if no answer had been served. Thisi order is entered with the Clerk of the County where' the place of trial, is laid, to which place the papers are certified by the clerk, at Albany, and the plaintiff may then proceed to perfect his judgment. If the petition for discovery is presented to the Court, instead of a Judge at ChamberSj the order should be in the following form: At a Special Term of {he Supreme Court, held at the City Hall, fn the city of Albany, on the day of , 1857. : Piesent--.Hon. Iba Harris, Justice. On reading petition and aifidavit of verification, on motion Of J. D. White, for plaintiff, Ordered, that the defendant in this action deliver to the plaintiff sworn copies of all the entries relating to the sales of cattle and sheep, or either, or the payments received for the same, contained in the book in the petition men- tioned, within tea days after service of a copy of this order ; or that he deposit the said book, within the said ten days, in the office of the Clerk of the County of Eensselaer, to enable the plaintiff to examine and take copies of said entries, and that written notice be served upon the attorney of the plaintiff, of suoh deposit (when the same is made), and that the said book so remain in the office of said clerk during twenty days from the service of such notice ; or show cause, at the next Special Term, to be held on, &c., at, &c., why such copy should not be furnished, or why the plaintiff should not, have discovery of the said entries in said book. This order is entered with the clerk, and a copy thereof, toge- ther with a copy of the petition and affidavits, served upon the attorney of the defendant ; and if the discovery is not made as required by the order, and no cause be shown to the contrary, the Court will grant an order striking out the answer of the defend- ant, in the same manner and form as the order for that purpose on motion, where the order for discovery is made by a Judge at Chambers. 294 OF ADM'ISSIOiN OF WKITTBIT INSTBUMENTS, ETC. » If, at the return of the alternative order, the party deny, upon affidavit, that the books or papers, of -which discovery is sought, are in his possession, the motion for discovery will be denied with costs. Bradstreet v. Bailey, 4 Abb. Pr. E,, 233 ; Ahoyke v. "Wol- cott, 4 ib., 41 ; Hoy t v. Am. Ex. Bank, 8 Pr. R, 89. But the denial of the possession must be positive, or facts must ,be shown which are equivalent to a positive denial. Southart v. 1) wight, 2 Sand., 672. The order for discovery, unless otherwise directed by its terms, is a stay of proceedings, until the same is vacated or complied with, and the party has the same time to answer or reply, &c., after the order is vacated or complied with, as he had at the time the same was served. Rule 11. Where a party, ordered to make discovery, neglects or refuses Sib to do, the power of the . Court is limited to the express provi- sions of the statute ; that is, they may strike out the answer, as above stated, or may debar him from giving any evidence in sup- port of the defense in relation to which such discovery was sought. But they have no power to grant an attachment on account of dis- obedience to such order. Birdsall v. Pixley, 4 Wend., 196. Or, if the party refusing discovery is a plaintiff, he may be non- suited. Where books or papers are produced in answer to an order for discovery, they may be read in evidence without proof, according to ihe practice of the Court, in the same manner as if produced upon notice for that purpose. 2 R. S., 199, § 27 ; 1 Burr. Pr., 451. CHAPTER XXII. OF ADMISSION OF WRITTEN INSTRUMENTS, AND OBTAINING EXAMINATION AND COPIES OF BOOKS, ETC. The provision contained in the first clause of § 388 is entirely new. The precise practice, in order to obtain the benefit of this pro- vision, has not, that we are aware of, been pointed out judicially or otherwise, any further than the language of the section pre- scribes it. The party, desiring an admission of a written instru- ment, necessary to be used by him upon the trial of an action, OF ADMISSION OF WEITTEN INSTRUMENTS, ETC. 29'5 ehould draw a written admission, for the purposes of the trial, of the genuineness of the instrument (that is, that the same was duly executed), and present the same, together with the instru- ment, to the party from whom the admission is sought, or to his attorney in the action, and request him to sign the admis- sion. The admission should be in the following form, substantially : SUPKEME COURT. A. B.) agt. \ C. D. j For the purposes of the trial of this action, the due execution by the above-named defendant, and the genuineness of the annexed promissory note, are hereby admitted ; and the same may be read in evidence upon the trial of said action, without further proof. E. F., Att'y for Pl'ff. Dated, &c. It is very evident, from the language of the section under con- sideration, that this admission is to be confined, in its eflfeots, to an action then pending : first, because the attorney is authorized to make it — this evidently means the attorney in a pending action — as, beyond this, no person would be presumed to have an attor- ney who could bind him by such an admission : second, where the admission is refused, the penalty for such refusal is the expense incurred in proving the same at the trial : and, third, this expense (in case the paper is proved or admitted) is to be ascertained at the trial. The admission, therefore, should always be entitled in the action; and, when made by an attorney, it would be useless, unless made in the action, as the papers should show the authority iof the attorney to admit. No provision is made as to the manner in which the amount of this expense is to be ascertained, or its payment enforced. In case it should be necessary to bring a witness from abroad, or to obtain his testimony by commission, to prove the instru- ment, the party re&sing the admission must pay the actual and necessary expense, which must be ascertained, at the trial, by affidavit, or by such other means as shall be satisfactory to the Court. 296 OF ia)MissioN of writteji instbuments, etc. "Where the plaintiff seeks the adtnissiop, if he recover at the trial, this expense would, 'probably, be directed to be taxed, or allowed on the adjustment of costs, and would thus form a part of the judgment, and be thus collected. But where the party, desiring the admission, ip entitled, accord- ing to this section, to recover against his adversary the expense of proving an instrument, the admission of which has been refused, the Court will grant an order for the payment of such expense, which may, be enforced by execution, or will direct the amount thereof to be deducted from the verdict, and that judgment be entered for the balance only. The payment of this expense will not be ordered, notwithstand- ing the instrument, of which the admission is sought, is proved upon the trial, if a reason shall be shown, by affidavit or other- wise, to the satisfaction of th^ Court, justifying the refusal of such admission. For instance, if the instrument could only be proved by a subscribing witness, and the subscribing witness was the only person by whom the party, from whom the admission was sought, could prove a substantial defense against the cause of action, or claim to be established by such instrument, or some part thereof or any other circumstance, which the Court, in the exercise of a sound discretion, should deem sufficient to authorize the party to refuse the admission. The obtaining an examination and copies 6f bocfks, papers, and documents, under the last clause of § 388, of the Code, is confined to the discovery of evidence for the purpose of the trial, and cannot, as we understand the language, be made concurrent remedy with the discovery authorized by the Eevised Statutes. The one will compel a discovery, for the purpose of drawing a complaint, answer, or reply, and the order for it is obtained by petition, and upon an ex parte application to the Court, or a Judge at Chambers. The other is a motion which may be made before the Court, or a Judge at Chambers, upon due notice, and, as above remarked, Teaches only a discovery of evidence for the trial. Due notice means a notice of eight days, that being the notice in all cases required for motions before the Court ; and motions which can only be made on notice cannot be heard before a judge at chambers, except upon an order to show cause, unless where they are expressly authorized by the statute, as in the instance now under consideration, and in the case of motions for. judg- OF ADMISSION' OF WEITTEN INSTBUMENTS, ETC. 297 mentj on account of ihe frivolousness of a demurrer or answer. In the latter case, five days' notice only is required. But in seek* ing discovery under § 388 of the Code, the words " due notice" are applied alike to motions before the Court, and before a judge, and the same length of notice was doubtless intended to be required, whether the motion be made in or out of Court. The Court, or a judge, undoubtedly, have power under this sec- tion (for the purpose of enabling a party to prepare for trial,) to compel the deposit of books or papers in the office of the Clerk of the County where the venue in the action is laid, for the purpose of examination, and of taking copies, if required. But discovery under this section of the Code will not be ordered where the books or papers can be brought before the Court (or a referee, as the case may be) by subpcena duces tecum, attd thus the evidence obtained without discovery. The Commercial Bank of Albany v. Dunham, Pr. R. 13, 541 ; and opinion of Hoffman, Stalker v. Gaunt, 12 Leg. Ob., 132. The exercise of this power, under § 388 of the Code, is by the language of the section left entirely in the discretion of the Court, and the order will be granted, or refused, in accordance with the equities of each particular application. And the question of costs . rests also wholly within the discretion of the Court. Where the party has improperly refused to his adversary an examination^ and, if desired, the privilege of taking a copy of books and. papers, the Court will require him to pay the costs of a motion to compel the discovery, in analogy to the practice in proceedings for discovery, under the Eevised Statutes. Townsend v. Law- rence, 9 "Wend., 458. And wherever the possession and control of the books or papers is denied by affidavit, at the hearing of the motion, the same will be denied with costs. Hoyt v. Amer. Ex.'Bank, 8 Pr. R., 89, 1 Duer, 652. Obediehce to an order, requiring a party to allow his adversary to examine and take copies of books and papers, may be enforced by attachment and the. party punished for contempt, in disobey- ing the order, or the Court may (according to the language of the Code) exclude the paper from being given in evidence. This howevei*, would be of but little benefit to a party whose object in obtainiug an examination and copy of the paper, was that he might be aible himself to give the same in evidence^ without call- 298 OF ADMISSION OF WEITTEK INSTBUMENTS, ETC. ing hifl adversary as a witness, having a good reason for not call- ing him. An attachment can only be obtained on motion to the CJourt, founded upon the original order and on affidavit of the service of the same, and that the time, within which it was to be complied with, had expired, and that the requirements of the order had not been complied with. The notice of motion for examination, &c., of books and papers should be in the following form : SUPREME COURT. B. ^ r A. agt. G. ~ Take notice that a motion will be made at the next Special Term of this Court, appointed to be held at the City Hall, in the City of Albany, on the last Tuesday of November instant, at ten o'clock in the forenoon of that day, or as soon thereafter as count sel can be heard, for an order requiring the defendant to deposi- his book, or books of account, containing entries relating to moneys collected and received by him for the plaintiff, in the office of the Clerk of the County ^of Eensselaer, on or before the fifth day of December next, and that the same remain in the office of said clerk until the fifteenth day of said December, that the plaintiff may inspect said book, or books, and take copies of such entries, or for such other order as to the Court shall seem meet, which motion will be founded upon the affidavit, with a co|y of which you are herewith served. Dated, &c. Yours, &c., A, C. GEEB, Pl'ff's Att'y. To G. EoBEETSOX, Jr., Esq., Def f s Att'y. The affidavit should show generally what the entries are which render an inspection of the books necessary, and that such entrira are material evidence, relating to the merits of the action, and the reason why such inspection is necessary, and that such books or papers are in the pos-session and under the control of the party against whom the motion is made, and that the party making the motion is advised by his counsel, and verUy believes, that an inspection of the books, papers, &C., and copies thereof or of entries contained therein, are necessary to enable him to prepare for the trial of said action, and that the said books, &c., are not in His possession or under his control. We haye made the affidavit OF ADMISSION Of WRITTEN INSTRUMENTS, ETC. 299 thus full in order to cover what is required to be contained in the petition and affidavit, when the proceeding is under the Eevised Statutes. The affidavit should be in the following form : SUPREME COURT. Eensselaeb County, ss. — A. B., being duly sworn, says, that he is the plaintiff in the above entitled action, and that the defendant, as his agent, collected for him a large sum of money upon small accounts against a great number of different individ- uals ; and deponent is informed, and believes, that the said defend- ant kept a book or books, which he still has in his possession and under his control, in which he made, from time to time, entries of the amount of money received by him for deponent, and from whom the same was so received; that said accounts were copied, from deponent's book, upon slips of paper, by the defendant, and deponent does not know how many accounts were so taken, or what particular accounts ; and deponent has no means of knowing, without an inspection of said book or boolcs, what amount of., money has been so received by the defendant, or from whom ; and deponent further says he is advised by A. C. Geer, his coun- sel in this action, who resides in the city of Troy, and verily believes that he cannot safely prepare for the trial of this aqtioa, without an inspection of said book or books, and a copy of the entries therein, relating to the moneys so received by the defend- ant, as aforesaid ; and that said books are not in the possession or . under the control Qf deponent ; and that this action is brought for the recovery .of the moneys so received by said defendant. Sworn, &c. A. B. If the motion is granted, the order will be in the following words : ■ At a Special Term of the Supreme Court, held at the City Hall in the city of Albany, on the 29th dsiy of November, 1857. ' ' Present— Hon. Ira Harris, Justice. On reading affidavit and notice of motion, and after heariiw counsel for the respective parties in the above entitled action^ 300 OP ADMISSION OF WRITTEN INSTRUMENTS, ETC. Ordered' that the defendant therein deposit,, in. the. office of: the CJerk of the County of Eensselaer, all books and papers in his pos- session, or under his control, containing entries relating to moneys received by him, for, or on account of, the plaintiff, on or before the fifth day of December, 1867, and that they so remain in the ofiBce of said clerk until the fifteenth day of December aforesaid, to enable the plaintiff to inspect and take, copies from the same. This order should be entered in the office of the Clerk of the County where the venue is laid, and as it may be necessary to pro- ceed against the defendant, as for a contempt for refusing to obey the order, a certified copy should be served, personally, upon the de|end'ant. J[f the party does not comply with the requirements of the order, a ^niotion may be made that an attachment be issued against him fosT contempt. This motion must be founded upon the order diso- beyed, and an affidavit, showing that the sarne was duly served, and has not been in any manner complied with, This motion should be upon notice, which may be in the following form : StJPREME COURT. Take notice, that a motion will be made, at the next Special Term of this Court, to be held at the City Hall in the city of Albany^ on the last Tuesday of December, 1857, at ten o'elock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an attachment against the defendant, for a contempt in not obeying the order of this Court, made in this action, on the 29th day of November, 1857, which motion will be founded upon said order and an affidavit, with a copy of which you are here- vritb se]?ved. Dated, &e. Yours, &c., A. O.GEEB, Pl'ff'sAtt'y. To G. EoBEHTSON, Jr., Esq., Def't's Att'y. OF ADMISSION OF WRITTEN INSTRUMENTS, ETC. 301 If the motion is granted, the order will be in the following form : At a Special Term of the Supreme Court, held at the City Hall, in the city of Albany, on the 29th day of December, 1857. Present— Hon. "W. B. Wright, Justice. On reading the order of this Court, made on the 29th day of November last, whereby the defendant in this action was required, on or before the fifth day of December, 1857, to deposit, in the office of the Clerk of the County of Eensselaer, all books, in his possession or under his control, containing entries relative to moneys received by him for or on account of the plaintiff, and that ■ said books remain in the said office until the 15th day of Decem- ber, 1857, and on reading an affidavit showing that a certified copy of said order was served upon the defendant, personally, on the first day of said December, and that the requirements of said order have not been in any manner complied with, on motion of A. C. Geer, attorney for plaintiflf, Ordered, that an attachment issue against the said defendant for contempt, in disobeying the afore- said 6rder of this Court. This order should be entered in the office of the Clerk of the County where the venue is laid, and a copy of it should be served upon the defendant, at or before the time of the service of the attachment. The attachpient should be in the following form : The people of the State of New York to the Sheriff of the County of Eensselaer, greeting: We command you that you attach C. D., so that you [l. Si] may have him before the Supreme Court, at a Special Term of said Court, to be held at the City Hall, in the city of Albany, on the last Tuesday of January, 1858, to answer for a certain contempt by him done and committed, in disobeying an order of said Court, granted on the 29th day of November, 1857, in a proceeding to obtain inspection and copies of certain books, .pursuant to the provisions of § 388 of the Code of Proced- ure : and have you then and theresthis writ. 302' OF ADMISSION OF WBITTEN INSTRUMENTS, ETO. Witness, Geo. Gould, Justice, at the Court House, in the eity of Troy, this 29th day of December, 1857. By the Court, J, P, BALL, Clerk. A. C. Geer, Att'y for Pl'ff. The attachment should be sealed, and so must all process be which cannot issue without the special order of the Court. When the defendant is brought into Court upon the attach- ment, on the return day thereof, he may give bail for his appear^ ance from day to day, or the Court may take his own recog- nizance for that purpose, or he may remain in actual custody until the matter of the contempt is finally disposed of. The plaintiff should have interrogatories prepared to serve upon the defendant, and the Court will allow him time to answer the same. The answer is by affidavit; and if all the interrogatories are answered in such manner as to excuse the contempt, or free the party from it, the proceeding will be dismissed. If not, the defendant will be fined, in the discretion of the Court, according to the circumstances of each particular case. The fine is intended to indemnify the plaintiff for the costs and expenses of the attach- ment proceeding, and for any damage he may have sustained by reason of the contempt. The interrogatories are in the following form : In the Supreme Court. — Interrogatories to be administered to C. D., touching a contempt alleged against him, in disobey- , ing an order of said Court, granted on the 29th day of No-, vember, 1857, requiring him to deposit, in the office of the Clerk of the County of Rensselaer, certain books, contain- ing material evidence, in an action pending in the Supreme Court, in favor of A. B., against the said C. D., in order that the said plaintiff might inspect, and take copies of certain entries, in said books, relating to moneys received by the said C. D., for and on account of A. B., the said plaintiff. First Interrogatory, — Had you, on and before the 29th day of November, 1857, in your possession, any books or papers,, con- taining entries, relating to moneys received by you, for or on account of A. B., the plaintiff in an action then pending against you in this Court ? Declare. Second Interrogator^/.^-Wasan order of this Court made on the said 29th day of November, requiring you to deposit any such books in the office of the Clerk of the County of Eensselaer ? and. if such order was served upon you, what did it require you to doj : OF ADMISSION OF WBITTEK INSTRUMENTS, ETC. 303 witli or in relation to any such books ? And did you, or did you not, comply witli the requirements of said order, or any part thereof? Declare fully. Third Inler rogatory. — What amount of moneys do the entries in said book show that you had received, for or on account of the said plaintiff, if any ? Declare fully. lourth Interrogatory. — Was a notice served on you, on or about the day of , of a motion to be mad^ at a Special Term of said Court, to be held on the last Tuesday of December, 1857, for an order that an attachment issue against you for contempt, in disobeying the said order, made on the said 29th day of Novem- ber ? If yea, what proceedings, if any, were had in said Court, upon said motion ? and was a copy of an order, made by the Court upon said motion,- served upon you ? If yea, when was it served, and what were the contents of such order ? Declare. Dated, &c. A. C. GBBR, Att'y for Pl'ff. A copy of these interrogatories having been served upon the defendant, he may demur to any one or more of them ; that is, he may object and insist tbat he cannot legally be required to answer any particular interrogatory, and the question will then be submitted to the Court, for their decision, whether he is bound to answer the same. To each of the interrogatories not demurred to, he must put in a full answer, or the Court will commit him' until such answer is made ; and if the Court decide that he is bound to answer the interrogatories objected to, they must be answered in the same raanner. If the objection is sustained, the interrogatory may be amended, by explaining any ambiguity, or any matter which has been imperfectly stated, but not for the pur- pose of introducing any tiew matter. Gra. Pr., 561 ; 1 Johns. Cas., 31. ■ In addition to the answer, the defendant may sustain, by affida-' vit, any defense he may have to the contempt, and the plaintiff may also introduce af&davits, to sustain any of the allegations made iipon his part, and the Court' will decide the matter uptrn' the interrogatories, auswer.s, and affidavits. Gra. Pr., 562. If the defendant is convicted of the contempt, the plaintiff is entitled to an order that the amount of the fine, when collected, be paid to him, first to satisfy the costs and expenses of the attach- ment proceedings, and the balance, or residue, to be applied towards the' Satisfaction" of the claim of the plaintiff against the S04 OF ADMISSION OF WEITTEN INSTBUMENTS, ETC. defendant for which the action is brought. 2 E. S., 4 ed., 771, §§20 and 21. If the defendant have given bail to the sheriff for his appear- ance, on the return of the attachment, and fail to appear, the Court will order another attachment, or, that the bond given for his appearance be prosecuted, or both. And the plaintiff, in whose favor the order is entered, may prosecute the bond, the order operating as an assignment, or transfer of the bond, to him. 2 E. ,S., 4 ed., 772, § § 27 and 28. And the measure of damages, to be assessed in such action, is the extent of the loss or injury sustained by the plaintiff, by reason of the misconduct for which the attachment was issued, and his costs and expenses in prose- cuting such attachment. The case which we have selected, in giving the forms necessary in compelling obedience to an order granted in proceedings to obtain inspection and copies of books and papers, under section 388 of the Code, gives a good illustration of the necessity for the precise provision which that section contains, in addition to the discovery provided by the Eevised Statutes, By section 389 of the Code, actions for discovery are abolished, and by the Eevised Statutes the only penalty to which a party could be subjected, for refusing discovery in obedience to an order obtained for that purpose, pursuant to the provisions contained in sections 21 to 28, inclusive, of page 1992, E. S., was, if the party diso- beying the order was plaintiff, that he might be non-suited; or, if he be a defendant, any pleading of his might be stricken out, or he might not be allowed, upon the trial, to give evidence relative to any matter to which the discovery sought related, and here the power of the Court ceased. It is, then, very obvious, that some additional power should be conferred upon the Court, to enable a party to discover evidence necessary to entitle him to recover, in cases where the whole evidence, upon which he must rely to prove his claim, is in the possession of the defendant in the action, and contained in books which the defendant has a right to con- trol. We can easily conceive of cases where it would not be right to compel a party to call his adversary as a witness, and then he must lose his claim, unless he can obtain an inspection of books, etc., in the possession of the defendant. And this section, 388, of the Code, has given the Court power to compel a discovery, or, by the attachment, to impose such a fine upon the party, disobeying BXA.MINATION OF WITNESSES DE BENE ESSE. 305 an order made for that purpose, as sball be not only a sufficient punishment to the defendant, but a satisfaction to the plaintiff, for any damage which he may have sustained, in consequence of such disobedience. And this provision of the Code, as we have seen, is limited to the discovery of evidence, and, of course, must have reference to preparing for the trial of the action, or for the assess- ment of damages therein. CHAPTEE XXIII. EXAMINATION OF WITNESSES DE BENE ESSE. It has_ been the practice of the courts of common law, from a very early day in the history of judicial proceedings, to allow wit- nesses to be examined upon interrogatories who are about to leave the country, 1 Arohb. Pr., 174. And this practice, which prevailed in the English cburts, has been folbSveefin our own, and witnesses who were about to leave the jurisdiction,of the Court, were often examined conditionally, and their testimony read in evidence upon the trial, on proof that at the time of the trial, they were not within the jurisdiction of the Court, so that their attendance could be compelled by subpoena, long previous to any statutory provis- ion on the subject. As to the practice and forms prior to the Eevised Statutes, see Jackson v. Hooker, 1 Cow., 586 ; Wait v. Whitney, 7 Cow., 69, n. (a.) ; Packard v. Hill, 7 Cow., 489; Jack- son V. Kent, 7 Cow., 59 ; Conclin v. Hart, 1 J. C, 103 ; Mum- ford v. Church, 1 J. C;, 147. But in 1830 the practice in this respect was regulated by stat- ute (2 E. S., 391, § 1 and sequel), and the provisions of the Eevised Statutes on this subject still remain in force, not having been in any manner changed by the Code, except so far as to authorize the taking the testimony conditionally of a party, as well as that of any other witness. Code, § 390. Whenever an action is pending in the Supreme Court, or any other court of record, which has been commenced by the actual service of process, or where the defendant has appeared in the action, either party may have the testimony of a witness or a party taken conditionally in certain cases, which are provided for by statute, 2 Ji.S.,:391. And testindony cannot be taken condition- 306 EXAMINATION OF WITNESSES DE BENE ESSE. ally in any case which does not come within the provisions of the statute. The application for this examination may be made to any justice of the court, or to the County Judge of the County in which the venue in the action is laid, 2 R. S., 391, § 2, Code, § 401 ; and it may be made at any time after the commencement of the action by the actual service of process, or where the defend- ant has appeared therein, 1 Burr. Pr., 212, 2 B. S., 391. This application is founded upon an affidavit, which must state, 1. The nature of the action and the plaintiff's demand ; 2. If the application be made by the defendant, the nature of his defense ; 3. The name and residence of the witness ; 4. That the testimony of such witness is material, and neces- sary for the party making such application, in the prosecution or defense of such suit, as the case may be ; and, 5. That such witness is about to depart from this State, or that he is so sick or infirm as to afford reasonable grounds for apprehen- sion that he will not be able to attend the trial of such suit. 2 E. S., 391, § 2. The affidavit is ordinarily made by the party, but may be by any person having knowledge of the facts, and should be in the form following : SUPKEME COUKT. Rensselaer Coitntt, ss: — 0. D., being duly sworn, deposes and says he is the defendant in the above-entitled action, that said action is at issue upon complaint and answer, and is now pending and undetermined in this Court ; that the complaint is upon a promissory note made by defendant for the sum of one thousand dollars, payable to the order of E. F., ninety days after date, at the Bank of Troy ; that the defense set up by deponent in his answer is, that the said note was paid by the defendant, to the said E. F., after the said note became due, and while the said E. F. was the owner of said note, and that the said note was transferred by the said E. F. to the plaintiff in this action, after the same became due and payable, and after it had been paid by deponent as aforesaid, and that the place of trial is laid in the county of Rensselaer. And deponent further says, he is advised by A. C. Gear, of Troy, a counsellor of this Court, and deponent's counsel in this action, and EXAMINATION OF WITNESSES DE BENE ESSE. 807 verily believes, that the said E. F. is a material witness for depo- nent, upon the trial of this action, and that without the benefit of his testimony deponent cannot safely proceed to said trial, which advice was given after deponent had fully and fairly stated the case in this action to his said counsel. And deponent further says, that the said E. F. resides at Cincin- nati, in the State of Ohio, and is now at Troy, in the county of Eensselaer, on a visit, and expects, within five or six days from this first day of December, 1857, to leave Troy, for the purpose of returning to his aforesaid residence. And deponent further shows, that the plaintiff and his attorney in this action both reside in the city of Troy, Sworn, &c. 0. D. This affidavit must be presented by the attorney to one of the justices of this Court, or the county judge of the county where the venue is laid, who will grant an order for the examination of the witness, which order should be in the form following: SUPEEMB COUET. A.B.) agt. )■ 0. D.j It having been made to appear to my satisfaction, by the affi- davit of the above-named defendant, that the circumstances in this action require the examination of E. F. as a witness therein, in order to attain justice between the parties, I do therefore hereby order and reqxiire A. B., the plaintiff in this action, to appear before me, the undersigned, county judge of the county of Eensse- laer, at my office in the city of Troy, on the fourth day of Decem- ber instant, at ten o'clock in the forenoon of that day, and attend the examination of E. F., as a witness in the above-entitled action. And I hereby direct this order to be served, by delivering a copy thereof to the attorney for the plaintiff, or leaving such copy at his office, with some person in charge thereof, or at his residence, with some person of suitable age, informing such person that it is for such attorney, on or before the second day of December inst. Dated this Jst day of December, 1857. AECHIBALD BULL. The party so ordered to appear and attend such examination may, at the time and place appointed, prove that the witness is not about to depart from this State, or that he is not sick or infirin or that the application for his examination is made collusively to ■avoid his being examined on the trial of the cause ; and thereupon B.| 808 EXAMINATION OF WITNESSES DE BENE ESSE. the order for examination will be dismissed. See 2 R. S., 4 ed., 637, §4, ' :. Instead of issuing th^ order for the examination of the witness, before the judge granting tte order, as in the above form, it may be for the examination of such witness before a referee... 2 E. S., 4ed., 637, §3. And in such case, the order should be in the following form : SUPREME COURT. A. ^gt. 9 " It having been made to apgear to my satisfaction, by the affida- vit of the above-named defendant,' thajfc the circupj^tantjes in this -action require the examination of E. F. as a witness therein, in order to attain justice between the parties, I do therefore herdSjr order that, unless the above-named plaintiff show cause against the same, before me, at my office in the city of Troy, on the fourth day of December, 1857, instant, at ten o'clock in the forenoon of^tlmt day, a referee be appointed in this action, to examine and take the testimony of the witness aforesaid, according to the provisions of Article 1 of Title 3 of Chapter 7 of Part 3 of the Revised Statutes, and the acts amending the same. And I hereby direct that this order be served, by delivering a copy thereof to the attorney for the plaintiff, or leaving such copy at his office, with some person in charge thereoj^ or at his residence, with some person of suitable age, informing such person that it is for such attorney, on orbefpre the second of December instant. Dated this 1st day of December, 1857. ARCHIBALD BULL, ; Rens. County Judge. '\ Upon the return of this order, if no cause be shown against it, upon due proof of the service of the order, as required, the judge will make an order appointing a referee to take the examination of the witness. Which order should be in the following form : SUPREME COURT. A. B.| agt. j. C. D. ) Upon proof of due service of the annexed (or foregoing) order, as therein directed by me, I hereby order that John H. Colby bo EXAMIlSrATION OF -WITNESSES DE BENE ESSE. 309 and h.e is Hereby appointed referee to take the testimony of E. F. in the above-entitled action. Dated this 4:th day of December, 1857. ARCHIBALD BULL, Eens. County Judge. If the party obtaining the order has any reason to suspect that the witness will not attend upon request, he should apply to the judge for a summons to compel his attendance. This summons should be in the following form : To E. P. — You are hereby summoned and required personally to be and appear before me, (or before J. C, a referee appointed by me, as the case may be), at, &c., on, &o., at ten o'clock in the forenoon of that day, to be examined and give testimony pursuant to Article 1 of Title 3 of Chapter 7 of Part 8 of the Eevised Sta- tutes, and the acts amending the same, in an action wherein A. B. is plaintiff and C. D. is defendant ; or, in failure thereof, you will be liable to pay to the party aggrieved all damage he may sustain thereby, and in addition thereto forfeit the sum of fifty dollars. Given under my hand, this 1st ) day of December, 1857. J AEOHIBALD BULL, Eens. County Judge. At the time and place appointed for the examination, if the wit- ness do not appear on proof of service of the summons upon him, the judge willissiie a warrant directed to the sheriff, commanding him to arrest and bring such defaulting witness before him. See 2 E. S., 393, § 10. This warrant should be in the following form : To the Sheriff of the County of Eensselaer. "Whereas, proceedings were regularly instituted before me, in pursuance of the provisions of Article 1 of Title 3 of Chaper 7 of Part 3 of the Eevised Statutes, and the acts amending the same, for the purpose of examining E. P., a material witness in an action pending in the Supreme Court, between A. B., plaintiff, and C. D., defendant : And whereas a summons was duly issued by me in such proceedings, requiring the said E. P. to appear before me, at my of&ce, in the city of Troy, on the fourth day of December instant, at 10 o'clock in the forenoon, to be examined and give testimony in the action aforesaid : And whereas it has been made to appear to my satisfaction that the said summons was regularly served upon the said E. P., and his fees for attending as such wit- 6 310 EXAMINATION OF WITNESSES DE BENE ESSE. ness duly paid : And whereas the said E. F. failed to attend in obedience to said summons, you are, therefore, in the name of the People of the State of New York, hereby commanded to arrest the said E. P., and him safely keep, so that you may have him before me on the sixth day of December instant, at ten o'clock in the forenoon of that day, at my office in the city of Troy, to be examined and give evidence in the aforesaid action, and to be fur- ther dealt with according to the provisions of Article 4 of the Title, Chapter, and Part aforesaid, of the Revised Statutes. Given under my hand, this 4th day of December, 1857. ARCHIBALD BULL, Rens. County Judge. The time appointed by the order for the examination of a wit- ness must not be more than twenty days from the making of the order, and may be as much less than twenty days as the judge, in the exercise of his discretion, under the circumstances of the case, shall think expedient. In some cases, the examination might be, perhaps, on the same day that the order is granted. 2 R. S., 892. The summons for the attendance of a witness should be served by showing him the original summons, and delivering to him a copy thereof, at the same time paying him his fee as a witness ; that is to say, four cents a mile for his travel, in going to and returning from the place where the examination is to be had, and fifty cents for his attendance, and if the examination is continued for more than one day, he would be entitled to receive a further sum of fifty cents for each additional day. But the amount necessary to be paid, to make the service good, is the travel fee, and one day's attendance only. 2 R. S., 401, § 44. If the witness appear at the time specified in the order, or is afterwards brought in by the sheriff, upon a warrant issued for that purpose, on proof of due service of the order and afiidavit, no cause being shown against it, the ofiicer will proceed to take the examination of the witness by question and answer. The testimony must be written down by the officer, and, at the close of the examination, must be carefully read over to the witness, and any correction which he may desire to make must be taken down by the officer, as a correction made at the request of the witness, and, after being so read and corrected, must be signed by the witness and certified by the officer taking the same, and withia ten days thereafter filed in the office of the clerk of the county where the venue in the action is laid. 2 R. S., 392. It EXAMINATION OP WITNESSES DE BENE ESSE. 311 is the duty of the officer to file the deposition in the office of the clerk, but in practice, if no objection is made, it is usually deliv- ered to the attorney of the party procuring the examination, and he sees that the same is duly filed, and the deposition so filed may be read in evidence by either party upon the assessment of dam- ages, the execution of a writ of inquiry, or upon the trial of the action. 2 R. S., 392. The examination of the witness is conducted in the same man- ner as the examination of a witness upon the trial of an action, except that instead of the officer taking the testimony being at liberty to receive or exclude evidence, in accordance with his view of the legal rights of the parties, (as to the receiving of such evidence), he is bound to take down every answer given by the witness, if required by either party ; he may, however, in his discretion, state in connection with the testimony that it was taken down under the objection of one party, and upon the requirement of the other, and this should in all such cases be so stated, if either of the parties desire it to appear upon the depo- sition. The caption to this deposition should be in the following form, which we have adopted as more concise, and therefore much more convenient, than the form given in the reporter's note to Jackson ex dem. Green, Clark and others v. Kent and Kent, 7 Cow., 60 : SUPREME COUET. Be it remembered, that on this fourth day of December, 1857, E. F. appeared before me, in pursuance of an order for that pur- pose, heretofore made by me, under and by virtue of Article 1 of Title 3 of Chapter 7 of Part 3 of the Revised Statutes, on the application of C. D., defendant in the above-entitled action, and proof having been made of the due service of the said order, and the affidavit upon which the same was granted, in accordance with the requirement of said order, I hereby certify that the said E. F. was duly examined by me, in pursuance of said order, and that the following deposition, subscribed by said E. F., is a full and true statement of the testimony of the said E. F., upon such examination, and every part thereof, and, that after the same 312 BXAMINATION OF "WITNESSES DE BENE ESSE. was read over to the said witness, tlie same was sworn to and subscribed by hird. Given under my hand, this 4th day of December, 1857. AECHIBALD BULL, Kens. County Judge. The deposition should follow this caption, commencing as follows : SUPKEME COUET. A. B. agt. C. D. Eensselaee County, ss. — E. F., being duly sworn and exam- ined by counsel for the respective parties in this action, deposes and says : [here state the entire examination of the witness as taken, together with any corrections which may have been made at the request of the witness]. Let the witness sign and swear to the same, then add the jurat as in ah ordinary affidavit, and the deposition is then in the proper form to be filed as above directed. But the deposition cannot be read in evidence without proving the absence of the witness from the State, or his inability to attend Court, from sickness or insanity, or that he is not living. 2 R. S.^ 392, § 7 ; Jackson v. Eice, 3 Wend., 180. If it appears that a witness cannot attend Court without danger of injury to his health, in consequence of extreme old age, and the infirmities consequent thereon, his deposition may be read. Conck- lin V. Hart, 1 J. C, 103. So, showing that a female witness is in an advanced state of pregnancy has been held sufficient to entitle a party to read the deposition. Clark v. Dibble, 16 Wend., 601. And it is no objection to the conditional examination of a wit- ness, or to the reading of his deposition ^upon the trial, that he resides in a foreign State, and is at home, where he might at any time be examined, or that he came here for the purpose of having his testimony taken conditionally, or that a commission has been issued for the purpose of taking his testimony in the action. Wait V. Whitney, 7 Cow., 69. If the witness, upon the examination, refuse to answer any proper question, or to sign the deposition, the officer granting the order may commit him to the jail of the county in which he resides, EXAMINATION OF WITNESSES DE BENE ESSE. 31& there to remain until he submits to answer the question, or sub- scribe the deposition, as the case may be. 2 E. S., 401. "Where a witness refuses to obey a summons issued in proceed- ings to take testimony conditionally, the party aggrieved thereby may recover, in an action against him for that purpose, all damages which he may sustain in consequence of such non-attendance, and also a penalty of fifty dollars, and such damages and penalty may both be recovered in the same action. 2 E. S., 401, § 45. The party against whom a witness is examined conditionally, may take any objection to the reading of the testimony upon the trial, which he could have taken had the witness been present and examined in Court, either to the admissibility of the witness, or the competency of the evidence, but he cannot make any objec- tion to the sufficiency of the notice, if he attended the exammation of the witness and did not make the same before the officer. 2 E, S., 393, § 8 ; 7 Cow., 59. Where the examination of the witness is before a referee, under § 3 of the Title under consideration, as amended in 1851, the pro- ceedings upon the examination are the same in all respects as if before the officer granting the order, and the certificate of the referee is certified and filed in the same manner, always remem- bering that the referee has no power to commit the witness for refusing to answer, or the like, but in such case he must make a report of the facts to the officer who made the order, and he will, by -warrant, commit the witness to jail, in the same manner as if the examination were being conducted before him, instead of before the referee. The words "the county where he resides," in section 47 (2 E. S., p. 401), mean the county in which the officer before whom the examination is had resides, as is evident from the language of sec- tion 49, on the same page, which provides that the warrant shall be directed to the sheriff of the county where the witness " may be," and besides, to understand it otherwise would frequently ren- der it impossible to imprison the witness at all, which would always be the case where his residence was in some other State or country. And thus the object of the -statute would be defeated, where the witness chose not to answer. 314 OF PKOCEEUIKGS TO PERPETUATE TESTIMONY. CHAPTER XXIV. OF PROCEEDINGS TO PERPETUATE TESTIMONT. Prior to 1813, wlienever there was reason to fear that evidence necessary to support facts, which at a future period might become the subject of controversy, would be lost by the death or absence from the State of a witness, a bill in Chancery was filed to per- petuate such evidence, by any person having an interest in the subject, sufiBcient to entitle him to the aid of the Court. This bill was required to set forth such interest of the plaintiff, and also an interest in the defendant to contest the title of the plaintiff in the subject of the proposed testimony. Bart. 53, 4. It would lie before action brought. 1 Har. Ch., 113, Moodalay v. The East India Co., Brown Chan. E., 469, Trin. Term, 1785. It was also required to state that the facts, concerning which an examination of the witness was desired, could not immediately be investigated in a court of law, or that before such an examination could be had, other evidence of a material witness was likely to be lost, by his death or departure from the State. 1 Mad., 153. These bUls were looked upon unfavorably by the English courts. Id., 152. The practice, as to perpetuating testimony, in the English Courts of Chancery was followed in this State until the year 1813, when an act was passed upon which the provisions of the Eevised Sta- tutes are based. In the second volume of the Eevised Statutes, p. 398, § 33, it is provided that any party to a suit pending in any court of this State, or any person who expects to be a party to a suit about to be commenced, may cause the testimony of any witness, material to him in the prosecution or defense of such suit, to be taken con- ditionally, and to be perpetuated. This proceeding must be founded upon proof by affidavit, 1st, that the applicant is a party to a suit actually pending in some court of record in this State, or that such applicant has good reason to expect to be made a party to a suit in such court of record ; and 2d, that the testimony of any witness in this State is material and necessary to the prosecution or defense of such suit; and 3d, if such suit be not actually commenced, that the party OF PROCEEDINGS TO PERPETUATE TESTIMONY. 315 expected to be adverse to the applicant resides within this State, and is of full age. 2 E. S., 398, § 34. This affidavit may be in the following form : STATE OF NEW YORK, ) Eensselaee County. j " A. B., being duly sworn, says that he has good reason to expect to be made a party to an action in the Supreme Court, between him and one C. D. (stating what the reason is, and showing the interest of the parties in the subject of the anticipated action), and that the said 0. D. resides at the city of Troy, within this State, and is above the age of twenty-one years ; and that James Smith, who resides at said city, is a witness for this deponent, and that the testimony of said James Smith is material and necessary for this deponent on the trial of the said action, and without the benefit thereof this deponent cannot, as he is advised by Miles Beach, his counsel in this action, who resides in the city of Troy, and verily believes, safely proceed to the trial of this action ; that the said James Smith is so sick and infirm as to afibrd reasonable grounds for apprehension that he will be unable to attend such trial. Sworn, &c. A. B. Upon the production of this affidavit to any justice of the Supreme Court, or the county judge of the county where the witness resides, he will make an order appointing a place within the county where such witness resides, and at a time not less than fourteen days from the date of such order, for the examination of such witness. Id., § 34. This order may be in the following form : By the Hon. Geo. Gould, one of the Justices of the Supreme Court of the State of New York : It appearing to my satisfaction, by the affidavit of A. B., that he has good reason to expect to be made a party to an action in the Supreme Court, between himself and one C. D., that said 0. D. resides at Troy, in this State, that the testimony of James Smith, who resides in Troy, is material and necessary for the said A. B. on the trial of such action, and that the said James Smith is so sick and infirm as to afford reasonable grounds for apprehension that he will be unable to attend such trial ; I do therefore order and require that the said C. D. do appear before me and attend the examination of the said James Smith, at my office, in the city of Troy, on the fifth day of December, 1857, at ten o'clock in the forenoon of that day. Dated November 15th, 1857. GEO. GOULD. 816 OF PROCEEDINGS TO PERPETUATE TESTIMONY. In case there is an action pending, the affidavit and order should be entitled, and should recite the fact, instead of stating that the applicant has reason to expect to be made a party to an action. The judge will also issue a summons to the witness designated in the affidavit, requiring him to appear and testify at the time and place appointed in the order. This summons may be in the following form, 2 E. S., 899, § 35 : To James Smith: You are hereby summoned and required personally to be and appear before me, at, &c., on, &c._, at ten o'clock in the forenoon of that day, to be examined and give testimony, pursuant to Arti- cle 5 of Title 3 of Chapter 7 of Part 3 of the Revised Statutes, in a proceeding upon an application of A. B. to take your testimony conditionally, and perpetuate the same, to be used in evidence upon the trial of an action in the Supreme Court, between A. B. and C. D., which the said A. B. expects to be commenced; or, in failure thereof, you will be liable to pay to the party aggrieved all damage he may sustain thereby, and in addition thereto forfeit the sum of fifty dollars. Given under my hand this 15th ) day of November, 1857. j GEO. GOULD. This summons must be personally served on the witness, and his fees paid. See ante. Chapter 23 ; 2 E. S., 401, § 44. After satisfactory evidence shall be given to the judge, that the order has been duly served on the party to such suit, if one be pending, or on the persons named in the original affidavit as expected parties, if no suit be pending, at least ten days before the time therein appointed for such examination, he shall proceed, on the day so appointed, and on such other days to which the matter shall be from time to time adjourned, as may be necessary, to take the deposition of such witness conditionally. 2 E. S., 399, § 36. The officer taking such deposition must insert therein every answer or declaration of the witness examined, which either party shall require to be included therein. The deposition, when com- pleted, must be carefully read to and subscribed by the witness ; mast be certified by the officer taking the same; and within ten days thereafter must be filed in the office of the county in which the same was taken, together with the original order for the exam- ination of the witness, and the affidavits on which the same was founded, and those proving the service of such order. Id., § 37. OP PEOCEEDINGS TO PERPETUATE TESTIMONY, 317 The caption to this deposition should be in the following form : Be it remembered, that on this fifth day of December, 1857, before me personally appeared James Smith, in pursuance of an order for that purpose heretofore made by me, under and by vir- tue of Article 5 of Title 3 of Chapter 7 of Part 3 of the Eevised Statutes, on the application of A. B., who expects an action to be commenced in the Supreme Court, between the said A. B. and C. D., and proof having been made of the due service of the said order, I hereby certify that the said James Smith was duly exam- ined by me, in pursuance of said order, and that the following deposition, subscribed by said Smith, is a full and true statement of the testimony of the said Smith, upon such examination, and every part thereof, and that, after the same was read over to the said witness, the same was sworn to and subscribed by him. Given under my hand this fifth day of December, 1857. GEO. GOULD. The deposition should follow this caption, commencing : Eensselaer County, ss : — James Smith, being duly sworn and examined by counsel for the respective persons named as expected parties in the original affidavit of A. B., on which an order was made by the Honorable George Gould, on the 15th day of Novem- ber, 1857, to take the testimony of the said Smith, conditionally, and to perpetuate the same, in an action expected to be com- menced in the Supreme Court, between A. B. and C. D., deposes and says, [here state the entire examination of the witness, too-e- ther with any corrections which may have been made at the request of the witness]. Sworn, &c., JAMES SMITH. The original affidavits filed with such deposition, or a certified copy thereof, will be presumptive evidence of the facts therein contained, to show a compliance with the statute. 2 E. S , 399 § 33. ^ ' In case a trial is had between the persons named in the original affidavit as parties, or as expected parties, or between any parties claiming under such persons, or either of them, upon due proof of the death or insanity of the witness .so examined, or of the inability of such witness to attend such trial by reason of old age,_ sickness, or settled infirmity, the deposition of such witness, or a certified copy thereof, may be given in evidence by either party Id., § 39. The depositions so taken and read in evidence have the same 318 COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. effect, and no other, as the oral testimony of the witness would have, if given on such trial ; and every objection to the compe- tency or credibility of such witness, or to the relevancy of any question put to him, or of any answer given by him, may be made in the same manner as if such witness were personally examined on such trial. Id., § 40. The judge to whom the application is made in this proceeding may order the examination to be had before a justice of the Su- preme Court, or cou.nty judge, residing in the same county with the witness to be examined. Id., § 41. The attendance and examination of the witness may be com- pelled in the same manner as pointed out in Chapter 23. CHAPTER XXV. COMMISSIONS TO TAKE TESTIMONY OUT OP THE STATE. At common law there was no proceeding for taking the testi- mony of witnesses out of the State, although the necessity of some proceeding by which the testimony of witnesses may be taken in a foreign State or country, is so obvious as not to require any dis- cussion, in order to show the reasonableness or object thereof We find a statute authorizing and regulating the examination of wit- nesses out of the State, and the reading of their depositions as evi- dence here, incorporated in the Revised Laws of 1813, and by that act witnesses might be examined upon commission out of the State, whenever an action at law was pending in a court of record, (the witness being a non-resident of the State), in any stage of the pro- ceedings. 1 R. L., 519. . The same law, in substance, is found in the Revised Statutes, limiting the time when a commission might issue in an action, so that it could only be obtained after the joining of an issue of fact (2 R. S., 393, § 11), or where an interlocutory judgment had been entered in the action, 2 R. S., 396, § 24. The language of the Revised Statutes, like the "old Revised Laws, is as follows : " Whenever an action at law shall be pend- ing," &o. Under our present system, the words " at law'''' are wholly unmeaning, since the distinction which heretofore existed COMMISSIONS TO TAKE TESTIMONY OUT OP THE STATE. 319 between law and equity has been abolished, Code, § 69, and there is now no such thing, eo nomine, as a court of equity, the Su- preme Court having general .jurisdiction in all actions not triable in courts held by justices of the peace. JSTor is there now any such thing recognized by the Code as an interlocutory judgment, and that term, as used in the 2 Eevised Statutes, page 396, § 24, must now be understood as meaning cases where testimony is required for the purpose of assessing damages, either before the Court, the Clerk, a Eeferee, or by a writ of inquiry, the defendant having permitted the time allowed him for that purpose to elapse without having put in a demurrer or answer. Code, § 246. With this explanation as to their effect, the provisions of the Eevised Statutes, relative to the examination of witnesses residing out of the State, are still in force. The term " residing out of the State" does not, however, mean the permanent abode or domicil of the witness, but a person whose domicil is in this State, and who is temporarily abiding abroad, may be examined upon a commission. Pooler v. Maples, 1 Wend., 65. The motion for a commission may be made to the Court, or to a justice thereof at chambers, either during the sitting of the Court or in vacation, or before the county judge of the county in which the venue is laid. If made before the Court, it is on the usual notice of eight days, and it cannot be made before a justice of the Supreme Court at chambers, or county judge, except upon an order to show cause, which, as we have seen before, when made returnable before the judge who grants it, may be for a less time than eight days. When made returnable before the Court, it must be eight days, at least, from the time of service to the return, unless the order to show cause is made by the Court. 2 E. S., 391, § 2 ; 393, § 12 ; L. of 1857, 640, § 15 ; Code, § § 401, 402 and 403. This motion, like all others, must be made within the district where the venue in the action is laid, or in a county adjoining the county in which the venue is laid. Code, § 401 ; Sturgess v- Weed, 13 Pr. E., 130. By the Eevised Statutes (volume 2, 893, § 12) the motion for a commission might be made before a justice of the Supreme Court, or circuit judge, on ten days' previous notice. It could not, how- ever, be made before a county judge. This section was passed in 320 COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. 1830. By the new constitution, adopted in 1846, the office of circuit judge was abolished, and, by the fifteenth section of the act known as the judiciary act, the authority of a justice of the Supreme Court, to hear a motion for a commission at chambers, is given, also, to county judges, and they are authorized to hear such motion as well in term time as in vacation, nor is there any limitation as to the district or county where such motion is to be so made. Laws of 1847, 640. This is a repeal, in effect, of § 12 of the Eevised Statutes, above cited. By this section, however, no notice is required, and perhaps the ten days' notice required by the Revised Statutes would have been necessary where the motion was made before a judge at chambers, between the time of the passing the judiciary act and the first of July, 1848, when the Code went into effect. But the provisions of the Code Hmit the effect of § 15 of the judiciary act, so that from the time the present Code went into effect, the statutory regulations relative to the making of motions for commissions have been as follows: They may be made before the Court, or a justice thereof, or a county judge. Before the Court, on eight daj's' notice, within the district where, or in a county adjoining that in which, the venue is laid in the action, and within the same territorial limit before a justice of the Supreme Court, upon an order to show cause, or before the county judge of the county where the venue is laid. Code, § § 401, 402 and 403, and Sturgess v. Weed, above cited- When this motion is made before the Court, it is a non-enu- merated motion (Watson v. Delafield, 2 Cai. R., 260), and must in all cases be founded upon affidavit, which must show, either that an issue of fact has been joined in the action, or that the time for answering the complaint in the action has expired, and no demurrer or answer has been served therein. It must also state the name of the witness, and that his testimony is material and necessary. Bracket v. Dudley, 1 Cow., 209 ; Hackley v. Patrick, 2 J. R., 478 ; Jackson ex dem. Aikins v. Bancroft, 3 J. R., 259 ■ Anonymous, 2 Cai. R., 259; Allen v. Hendree, 6 Cow., 400; Watson V. Delafield, 2 Cai. R., 260. And where a motion for a commission is made on the part of a defendant, the affidavit must state that he has a good and sub- stantial defense upon the merits in the action, as he is advised by counsel, and verily believes. Hoyt v. Brisbands, 1 Wend., 27 ; Meech v. Calkins, 4 Hill, 534. COMMISSIONS TO TAKE TESTIMONY OUT OP THE STATE. 321 It is not necessary that the affidavit upon which the motion for a commission is founded should be made by the party ; it may be by the attorney, or any person having a knowledge of the facts. Murray v. Kirkpatrick, 1 Cow., 210; Demar v. Van Zandt, 2 J. C, 69. It must also show in what county the venue is laid, ISTewcomb V. Eeed, 14 Pr. E., 100, and that the witness is a non-resident, 6 Cow., 299 ; 2 J. C, 68, 285 ; 1 Wend., 65. The materiality of the witness must be stated in the affidavit to be upon the advice of counsel. Id. Hiovr, by the Code, parties may be examined as witnesses. By § 389, the bill of discovery, formerly used in order to obtain the testimony of a pai1;y, is abolished, and § § 390 to 399, inclusive, are intended to give every facility for the examination of a party which was afforded by the former bill of discovery, and also to enable a party, if he shall elect so to do, to have the benefit of his own testimony in his own behalf, except in cases where the adverse party is the assignee, administrator, executor or legal representa- tive of a deceased person". And when the application for a com- mission was to examine a party as a witness, it was held by Willis, Justice, in Merrifield v. Cooley, 4 Pr. E., 272, that the pro- vision in § 397 of the Code, as to the examination of co-defend- ants, did not apply to actions where a separate judgment could not be rendered against each of the defendants, and consequently that the affidavit upon which the motion for a commission to examine a party, as authorized by § 390 of the Code, must show,' in addition to the facts above mentioned, (which would require the affidavit to state that the party to be examined was a material witness for the party calling him,) that the case was one in which the party might be examined, and accordingly he denied the nfotion for a commission, on the ground that the affidavit did not show that the defendants were not sued upon a joint and not a several liabihty ; the motion in that case being by one defendant to exam- ine a co-defendant. But the doctrine of this case is in direct con- flict with the case of Shufelt v. Power, 10 Pr. E., 286, in whicli Justice Harris, we think, shows conclusively that the language of § 397 does not by any means preclude the idea that a separate judgment may be rendered against any one or more of several defendants, who are sued as joint debtors; because, although sued jointly in an action upon contract, it may well happen that 322 COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. only one of several defendants is liable; and in tliat case, judg- ment would pass against the one, while all the others would be discharged, or, in other words, would recover costs against the plaintiff; and one or all of the defendants not liable might require the testimony of the one who was, to establish a defense. And to require a party to show, in the afi&davit for a commission, that this was a case where one defendant only was liable, would often make it necessary to set forth in the afiSdavit every allegation which it would be material to prove upon the trial of the action. We cannot think that the legislature intended so to encumber the practice. We, therefore, adopt the rule of Justice Harris, in the case above cited, viz.: "Where a party swears, upon the advice of counsel, that another party, who is absent from the State, is a material witness, he should be regarded as having made a 'prima facie case for a commission." And if it is a case where, according to the Code, the testimony of a party sought to be examined could not be taken or used upon the trial, this should be shown in opposition to the motion. This would render but one rule necessary, as to what the affidavit to obtain a commission must contain as to the materiality of a witness, without regard to whether he is a party to the action or not. This affidavit should be substantially in the following form : SUPREME COUET. Eensselaee County, ss. : C. D., being duly sworn, says, he is the defendant in the above-entitled action; that an issue of fact was joined therein by the service of an answer (or a reply, as the case may be) on the day of 1857, and that he has a good and substantial defense on the merits in said action, as he is advised by William A. Beach, of the City of Troy, his counsel in this action, after fully and fairly stating the case therein to his said counsel, and as he verily believes ; that the place of trial is laid in the County of Rensselaer, and that E. P., who is absent from the State and resides at Orwell, in the State of Vermont, is a material and necessary witness for deponent upon the trial of said action, as he is advised by his said counsel, and verily believes. Sworn, &c., C. D. COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE, 323 If the application is made by the plaintiff, tlie affidavit of merits will of course be omitted. And if the commission is to be exe- cuted for the purpose of obtaining testimony to use on the assessment of damages, then the statement that an issue of fact has been joined should be omitted, and in place of it a statement showing that the time to answer had expired, and that no answer or demurrer had been served in the action, should be inserted ; and the witness should be shown to be material, on the assessment of damages instead of upon the trial in the action. The provision of § 899 of the Code, that when notice of the intended examination of a party shall be given in an action or proceeding, iu which the opposite party shall reside out of the jurisdiction of the Court, such party may be examined by com- mission issued and executed as now provided by law, is intended to provide for taking the testimony of a party by commission, in the only case which is not covered by the ruling of Justice Harris, in the case of Shufelt v. Power, above cited. The notice of motion for a commission may be in the following form: SUPEEME COUKT. Take notice that upon the affidavit, with a copy of which you are herewith served, a motion will be made at a Special Term of this Court, to be held at the City Hall, in the City of Albany, on the day of 1857, at the opening of the Court on that day, or as soon thereafter as counsel can be heard, for an order that a commission issue in the above entitled action, directed to Gr. H., of the town of Orwell, in the State of Vermont, to examine E. F., of said town, upon interrogatories to be annexed to said commis- sion, and in which the plaintiff shall be at liberty to join, and that such commission, with the testimony of said witness, may be returned by mail, and that the trial of said action be stayed until such return. Dated, &c.. Yours, &c., M. L. TOWNSEKD, Att'y for Deft, To C. E. EiCHARDs, Es«., Att'y for Pl'ff. This notice must be eight days. The section of the Revised Statutes requiring ten days' notice, when the motion was before a Circuit Judge, having been repealed, the length of notice must be 824 COMMISSIONS TO TAKE TBSTIMONT OUT OF THE STATE. governed by the general provision of tlie Code, whicli is eight days. Code, § 402. The motion for a commission should always be made at the earliest opportunity after the cause is at issue. When notice of the motion is not given until after the action is noticed for trial by the adverse party, if the giving notice of the motion has been unnecessarily delayed, the Court will impose' terms as a condition of granting the commission. Burr v. Skinner, 1 J. C, 391 ; Lafarge v. Luce, 2 Wend., 242. But the penalty of paying costs is never imposed as a condition for granting the motion, unless the party moving has been guilty of laches. Jones v. Ives, 1 Wend., 283. The motion will not be granted at all, when the Court have reason to believe the object of making it is delay. Eogers v. Eogers, 7 Wend., 514. The granting of the commission cannot be demanded by a party as a matter of strict right. The Court, in the exercise of its discretion, may deny the motion for a commission altogether, although it is usual to grant it in all cases where it is asked in apparent good faith. It will not, however, be granted when the amount to be recovered, or defended against, by means of the tes- timony of the witness for whose examination the commission is sought, would not exceed the expense of executing the same. Mitchell V. Montgomery, 4 Sand. S. C. E., 676. The Court will always be governed by the circumstances of each particular case, and if great injustice will be likely to ensue to the adverse party^ the motion will either be granted upon such terms as wiU be a pro- tection to the party, or will be denied altogether. Eing v. Mott, 2 Sand. S. C. E., 683. A stay of proceedings for the return of a commission will not be ordered, as a general rule, where the party has been guilty of laches in making his motion. The order for a commission with stay is applied for in season, if notice of motion is given within twenty days after issue joined) and the question (when the notice is given at a later day), whether the party has been guilty of laches, must depend upon the circum- stances of each particular case. Bank of Charleston v. Hurlbut, 1 Sand. S. C. R, 717. The following is the form of the order, when proceedings are stayed until the return of the commission : COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. 325 At a Special Term of the Supreme Court, held at the Court House, in the City of Troy, on the day of 1857. Present — Hon. W. B. Weight, Justice. On reading the afftdavit and notice of motion in this action, on motion of H. S. Flagg, for defendant, after hearing counsel opposed : Ordered, that a commission issue in this action, directed to Albert Gridley, of the town of Bloomington, in the State of Illinois, to examine Henry C. Campbell, of Bloomington, aforesaid, as a wit- ness, upon interrogatories to be attached to said commission, and that the plaintiff be at liberty to join in said commission, and that the same may be returned by mail to the clerk of the county of Eensselaer, at the city of Troy, and that the trial of said action be stayed until the return of said commission. When the commission is without stay, the last clause of the above order will be omitted, and the directions for the return of the commission will be in accordance with the arrangement made between the parties for that purpose (the same being approved by the Court) ; the usual direction, however, is, that it be returned by mail or by some person who proposes to attend the examination of the witness. The form of the order, when made by a judge out of court, should commence as follows : SUPEEME COURT. An order having been heretofore made by me, founded upon the affidavit of the defendant, requiring the plaintiff to show cause why a commission should not issue to examine E. F., of Bloom- ington, in the State of Illinois, as a witness in this action, which said order was returnable before me this day, at my office, in the city of Troy : On proof of due service of said order, and on mo- tion of Cr. H., for defendant, no sufficient cause having been shown to the contrary : Ordered, (then proceed the same as in the above form, from the word ordered to the end). 1 326 COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. This order should, of course, be dated and signed by the judge» When an application for a commission has been made to a judge at chambers, and denied, it will be a bar to an application to the Court subsequently made for the same purpose. Allen v. Gibbs, 12 Wend., 202. If the Court have any reason to doubt the good faith of the party in making the application, they will sometimes require him to disclose, upon affidavit, the facts he expects to establish by the testimony of the witness whose examination is proposed. And should the testimony not be deemed material, or should the plain- tiff stipulate to admit the facts sought to be proved, the motion will be denied. If the defendant decline making such disclosure, the order for a commission would probably be granted without a stay. The People v. Vermilyea, 7 Cow., 369. The order to show cause, before a judge at chambers, why a commission should not issue, after the title of the cause, should contain a brief recital of the facts contained in the affidavit upon which the application for the commission is founded, and should be substantially in the following form : SUPREME COURT. A. B. agt. C. D. On reading the affidavit of C. D., by which it appears that E. F., of Bloomington, in the State of Illinois, is a material witness for the defendant on the trial of this action, and that an issue of fact is joined therein ; that defendant has a good defense upon the merits, and the said witness is a non-resident of the State of New York : Ordered, that the plaintiff show cause before me at my office, in the city of Troy, on the day of , 1857, why a commission should not issue, directed to G. H., of the town of Bloomington, in the State of Illinois, to examine E. F., of said town, upon interrogatories to be annexed to said commission, and in which the plaintiff shall be at liberty to join, such commission, with the testimony of said witness, to be returned by mail, and the trial of said action be stayed until such return ; and it is fur- ther ordered, that a copy of this order, together with the affidavit upon which the same is granted, be served upon the attorney for the plaintiff, at least days before the time to show cause specified herein. Dated, &c. GEOKGE GOULD, Justice. COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. 327 The order that a commission issue having been obtained, the next step is to prepare interrogatories. These must vary accord- ing to the circumstances of each particular case, being a series of questions to be put to, and answered by, the witness ; and any question may thus be put which could be asked upon the trial on an oral examination of the witness in Court. A copy of the inter- rogatories, when drawn, must be served upon the attorney of the adverse party, together with a notice of the time and place when and where the interrogatories will be presented to the Judge for settlement. This notice is, by the statute, to be in accordance with the practice of the Court. 2 R. S., 4 ed., p. 639, § 14. And, as the settlement of interrogatories is not regulated by the Code in such case, and no rule has been adopted by the Supreme Court, as at present organized, upon that subject, the rules in force under the former practice must be resorted to in order to ascer- tain the time to be given by this notice. And, by Rule 67 of the Supreme Court, rules adopted in 1845, all notices not otherwise provided for were required to be notices of four days. Under that rule, interrogatories were always settled upon four days notice. Gra. Pr., p. 596 ; Burrill's Pr., vol. 1, 444. The plain- tiff is allowed to join in the commission where it is applied for by the defendant, and so vice versa. This is done by preparing cross- interrogatories, which should also be served in the same manner as the direct interrogatories, and two days' notice given that they will be presented for settlement before the same officer, at the same time and place where and when the direct interrogatories have been noticed for settlement. The object of this is, that the party may be prepared, by an examination of the cross-interroga- tories, to take such such objections to them as he may deem proper upon the settlement This is certainly a very convenient prac- tice, and Burrill lays it down as a settled rule, that a copy of the cross-interrogatories; with two days' notice of their presentation for settlement, must be served. Burrill's Pr., vol. 1, 444. But we are not aware of any existing rule of the Court requiring this notice, and in actual practice, although it is conceded by the pro- fession, we believe, very generally, that two days' notice should be given, yet it is not unfrequent for the cross-interrogatories to.be presented for settlement at the same time with ihe others, without any previous notice for that purpose. It is very common, upon the settlement of interrogatories, that 328 COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. they should be materially changed in very important particulars, and questions entirely new are not unfrequently allowed, wliich were not contained in the copy served. Indeed, we have never known or heard of an objeption being raised to the allowance of any interrogatory on settlement, upon the ground that it was not contained in the copy served. The manner in which interrogato- ries are usually prepared is exhibited in the following form : SUPREME COURT. Interrogatories to be administered to B. F., a witness to be pro- duced, sworn and examined on the part and behalf of C. D., defendant in a certain cause now pending against him in the Supreme Court of the State of New Yoi'k, at the suit of A. B., before G. H., under and by virtue of the commission hereunto annexed. First Interrogatory. — Do you know the parties, plaintiff and defendant, in the title of these interrogatories named, or either, and which of them, and how long have you known them, or either, and which of them ? Declare. Second Interrogatory. — Were you present, at Troy, in 1856, or at any other time, when the above-named plaintiff purchased from the defendant a certain bay horse, called Durock ? If yea, when was it, what was the price the plaintiff was to pay for said horse, and when and how was it to be paid, and who then took posses- sion of said horse ? Declare fully. (Then put any such questions as maybe deemed necessary and proper, numbering each interrogatory, until all the questions which occur to the party have been asked.) Then conclude with what is called the general interrogatory, as follows : Lastly. — Do you know any other matter or thing, touching the matters in question, that may tend to the benefit or advantage of the defendant ? If yea, declare full}^ and at large, as if you had been particularly interrogated thereto. JOSEPH WHITE, Att'y for Deft. The cross-interrogatories are in the same form as the direct, except that in the introduction, or caption, they are called cross- interrogatories, and in the last interrogator}' the witness is required to state any other matter which would tend to the benefit COMMISSIOXS TO TAKE TESTIMONY OUT OF THE STATE. 329 or advantage of the plaintiff. A copy of tlie interrogatories, we have seen, must be served upon the attorney of the adverse party, and the notice of settlement is usually endorsed upon it, substan- tially as follows : Take notice, that the interrogatories to be attached to the com- mission to be issued in this action, of which the within is a copy, will be settled by the Hon. Geoege GouLn, one of the Justices of this Court, at his office, in the city of Troy, on the day of 1857, at 10 o'clock in the forenoon of that day. JOSEPH WHITE, Att'y for Deft To G. ROBERTSOJT, Jr., Esq., Att'y for PM. After the interrogatories have been settled, they are, together with the cross-interrogatories, attached to the commission, which is prepared by the attorney for the party who obtained the order therefor, and is in the following form : The People of the State of Xew York, by the grace of God free and independent, to G. H., of Bloomington, in the State of Illi- nois : "Whereas it appears to our Supreme Court that E. F., of Bloomington, in the State of Illinois, is a material witness in a certain cause, now pending in our said Supreme Court, between A. B., plaintiff, and C. D., defendant, and that 1iie personal attendance of said witness cannot be procured at the trijil of the said cause ; we, in contideuce of your prudence and fidelity, have appointed you a commissioner to examine the said witness, and, therefore, we authorize and empower you, at certaia days and places, to be by you for that purpose appointed, dUigently to examine the said witness, on the interrogatories annexed to this commission, on his corporal oath, first taken before you, and cause the said examination of said witness to be reduced to writing, and signed by the same witness and by yourselves, and then retui'u the same, annexed to the said commission, unto our Supreme Court aforesaid, with aU conveuient speed, inclosed under the seal of you, the said commissioner. Witness, Geobge Gocld, one of the Justices of our Supreme Court, at the Court House, in the citv of Trov, this day of , 1857. 'JOHX'P. BALL, Clerk. Joseph White, Attorney, The commission must be sealed with the seal of the Court, and witnessed in the name of some one of the justices, and the name of the Clerk of the County, where the venue in the action is laid, should be signed to it, at the right hand, and the name of the attor^ neys for the party in whose favor it is issued signed at the left. 330 COMMISSIONS TO TAKE TESTIMONY OtfT OP THE STATE, The commission, like any other writ or process of the Court, may now be dated at any time, as tlie Court is always open for the issu-- ing of process. The allowance of the interrogatories, after the same have been settled, should be endorsed thereon by the judge, and,- thus endorsed, they are attached to the commission ; and the judge also directs, in entering upon the commission, the manner in which the same, with the testimony of the witness,, is to be returned, which is usually by mail, addressed to the Clerk of the County,- where the place of trial in the action is laid in the complaint. There must also be annexed to every commission a copy of sec- tion 16, art. 2 of title 3 of part 3 of chap. 7 of the Eevised Statutes, which is in the words following; " § 16. The persons to whom such commission shall be directed, or any one of them, unless otherwise expressly directed therein, shall execute the same as follows : " 1. They, or any of them, shall publicly administer an oath to the witnesses named in the commission, that the answers given by such witnesses, to the interrogatories proposed to them, shall be the truth, the whole truth, and nothing but the truth. " 2. They shall cause the examination, of each witness to be reduced to writing, and to be subscribed by him, and certified by such of the commissioners as are present at the taking of the same, " 3. If any exhibits are produced and proved before them, they shall be annexed to the depositions taken by them ; they shall annex all the depositions and exhibits to the commission, upon which their return shall be endorsed ; and they shall close them up under their seals, and shall address the same, when so closed, to the Clerk of the Court from which the commission issued, or to the Clerk of the County in which the venue shall be laid, as shall have been directed on the commission, at his place of residence. " 5. If there is a direction on the commission to return the same by mail, they shall immediately deposit the packet, so directed, in the nearest post-ofBce. " 6. If there be a direction on the commission to return the same by an agent of the party who sued out the same, the packet, so directed, shall be delivered to such agent. A copy of this sec- tion shall be annexed to every commission authorized by this article." Each interrogatory must be separately answered by the wit- ness, and the answer written down substantially in the following manner : To the first direct interrogatory the witness answers : (Then the answer of the witness should be given at length, and the answer to each succeeding direct and cross-interrogatory should be taken in COMMISSIONS TO TAKE TESTIMONY OUT OP THE STATE. 331 the same manner). It is usual, in addition to the sixteenth section of the Statute, which is attached to the commission, for the attorney to send to the commissioner particular written instructions as to the examination of each witness. In executing the commission, it has been held by the United States Supreme Court, that it is immaterial in whose handwriting the depositions are ; and the commissioners have a right to employ a clerk ; 3 Peters, 8 ; although they are not bound to do so, 2 Har. & Johns., 442. Nor is it necessary that the form of the oath administered to the witnesses should be returned. 3 Peters, 10. In all cases, however, the power conferred on a commissioner, to take testimony, is strictly personal ; especial confidence is pre- sumed to be reposed in the person appointed, and he cannot dele- gate his authority. 1 Har. & Gill, 154. If the packet be delivered to an agent, he shall deliver the same to the Clerk to whom it shall be directed, or to one of the judges of the Court in which the action is pending, who shall receive and Open the same, upon such agent making affidavit that he received the same from the hands of one of the commissioners, and tliat it has not been opened or altered since he received it. 2 E. S., 395, § 17. If such agent be dead, or, from sickness or other casual t}!-, unable to deliver the packet personally, as in the last section directed, the same may be received by the Clerk or judge, from the hands of any other person, upon such person making affidavit that he received the same from such agent ; that such agent is dead, or otherwise unable to deliver the same ; that it has not been opened or altered since it came from the hands of the commissioners. lb., § 18. The Clerk or judge, receiving and opening such commission and return, shall immediately file the same in the office of the Clerk from which it issued ; or, if the action be pending in the Supreme Court, in the office of the Clerk of the County in which the venue in the action is laid. lb., § 19. Under the provision in the old statute on this subject, (1 R. L. of 1813, p. 520,) which was substantially, and almost in terms, the same as the provisions just cited, it was held, that a commission, issued to take the testimony of foreign witnesses, must not merely be returned and delivered to a judge, but must be actually filed m the clerk's office before the depositions under it could be read in evidence ; and where a commission was delivered by the agent io a judge at the circuit, who took the affidavit of the agent as to the 382 COMMISSIONS TO TAKE TESTIMONY OUT OP THE STATE, manner of his receiving it after the cause was called, but before the trial was commenced, the Court held that the depositions annexed to the commission, so opened by the judge, were not legal evi- dence. " When a statute," says Piatt, J., " makes innovations on the common law rules of evidence, its positive requirements must be strictly complied with. In this case the Legislature have wisely provided against frauds and abuses, by prescribing the manner of taking such testimony, and the channel through which it shall be returned. The commissioner, or special agent, is to deliver the sealed enclosure to the judge, who is to take proof that it has been sent in the regular channel, and that it has not been opened or altered ; the judge is then to open the enclosure, for the specified purpose of endorsing on the commission a certi- ficate that such proof was made before him, so as to authorize the filing of the commission and depositions ; and the judge is then required to deposit them in the clerk's office. And after these positive injunctions, the statute declares that ' every such depo- sition, being so taken and returned, shall be allowed and read as evidence,'" &c. In addition to these modes of returning a commission, the parties or their attorneys may, in writing, agree to the manner in which a commission for the examination of witnesses may be re- turned ; and, on filing such agreement with the clerk of the Court, the attorney for the party suing out the same may endorse there- , on a direction according to such agreement ; and such commission shall be returned accordingly. 2 E. S., 640, § 21. The statute also requires, that the commission, returns, depositions and ex- hibits thereto annexed, shall remain on file in the ofiice of the clerk to whom the same were addressed, unless the Court, by special order, shall direct them to be filed in the ofQce of some other clerk ; and that the same shall be at all times open to the inspection of the parties, who shall be entitled to copies of such parts as they may require, on payment of the fees allowed by law. 2 E. S., 640, § 22. Where a cause is tried in a county, other than that in which the depositions are filed, the same, or an exemplification thereof, may be read in evidence by either party on the trial, subject to the objections and exceptions hereinafter mentioned. 2 E. S., 640, § 23. These depositions and exhibits, after they are filed with the clerk, are at all times open for the examination of the parties ; COMMISSIONS TO TAKE TESTIMONY OUT OF THE STATE. 835 and when the same are offered in evidence at the trial any ob- jection may be raised to the competency of the evidence, either in whole or in part, in the same manner as if the witness were pre- sent and being examined before the Court. 2 E. S., § 23, p. 640, see 8 Pic, 51. The party against whom such depositions are offered, may also object to the reading of the deposition, if it appears on the face of the same not to have been executed in accordance with the requirements of the statute. And it is now settled, that the interrogatory, notwithstanding it has been settled before a judge and allowed by him, may be objected to when the answer to it is offered in evidence at the trial, in the same manner as if it was a question then proposed to a witness upon the stand. Ocean Ins. Co. v. Francis, 2 Wen., 65. To adopt any other rule might be grossly unjust and oppressive. Suppose the judge upon the settlement allows an improper inter- rogatory, the party has no remedy, and must submit that the answer to it must be read to the jury upon the trial, or he must be allowed to appeal from the decision of the judge upon the set- tlement, and thus to stay all proceedings in the action until the question can be decided upon appeal. The practice now is to avoid this by exercising great liberality in the settlement of the interrogatories. Wherever there can be any doubt, the interro- gatory is allowed, and the party left to his remedy by objection at the trial. Where the general interrogatory does not appear by the depo- sitions, taken upon the execution of a commission, to have been answered by the witness, as a general rule the deposition cannot be read in evidence. 3 Wash. C. C. E., 109 ; 4 Id., 324 ; Kimball V. Davis, 19 Wen., 437; S. C, 25 Wen., 259. It seems, however, that where the counsel of both parties attend the examination, and no objection is taken, on the ground that the general interrogatory is not answered, and the answer taken down, the deposition will be allowed to be read. Brown v. Eoe and Kimball, above cited. The witness is not confined, in answering the general interrogatory, to the subject embraced in the previous questions, but may give any answer pertinent to the issue or issues of fact joined in the action. Percival v. Hickey, 18 John., 257. After the return shall have been filed with the clerk (and not until then), either party may move to set aside the deposition, for fraud, partiality, or irregularity in the execution of the commission • 834 EXAMINATION" OP PART'S' BEFORE TRIAL. but this motion cannot be made at tbe trial, unless a notice of mo- tion for that purpose, to be made at the circuit, has been previously given, according to the practice of the Court, and then, if the mo- tion is noticed in due season, and an opportunity has not been had of making it before, the motion -would undoubtedly be beard when the cause was reached upon the calendar, or the cause would be reserved until the party should have an opportunity of making his motion. Jackson v. Hobby, 20 John., S62. Formerly the expense of executing the commission could not be recovered by the party, either as costs or disbursements ; now the party prevail- ing in the action may recover the fees of the commissioner, and, doubtless, any other actual and necessary expense attending the execution and return of a commission to examine a non-resident witness. Code, § 311. CHAPTER XXVI. EXAMINATION OF PARTY BEFORE TRIAL. When an issue of fact has been joined in an action, either party may examine his adversary before a judge in the county where he resides, or, as we understand section 391, in any county where he may be found, so as to have a summons for that purpose served upon him. The Code provides for the examination, at the trial, of a party in his own behalf; but, in such case, it allows his adver- sary, also, to be sworn. The Legislature, by section .391 of the Code, undoubtedly intended to give a party, who intended to be examined himself as a witness, an opportuiiity of ascertaining exactly how his adversary would meet, by his oath, the testimony so offered by the party in his own favor, that he might determine whether, in preparing for the trial, other witnesses should be subpoenaed by him to sustain or corroborate his own testimony. But it is somewhat questionable what the particular method is which the Legislature intended the party should use, in the first instance, for the purpose of obtaining the attendance of his oppo- nent before a judge to be examined. Mr. Townshend thinks EXAMIKATION OF PARTY BEFOEK TRIAL. S35 ttat, where the design is not to have the examination on a shorter notice than five days, a mere notice to attend for the purpose of being examined is all that is necessary. Yoorhies' Code, p. d36i note to section 291. Although there has been some difference of opinion upon that subject," We think Mr. Townshend is right, and that the cases where a contrary doctrine has been held were not well considered. It is evident, we think, from the language of section 391, that a similar notice is to be given-to the party to be examined to that given to other parties in the action (where there are any). And section 892, speaking of how the attendance of the party to be examined may be compelled, should be understood as referring to the process to be issued against a witness after he has neglected to appear, upon the day first appointed, in obedience to a sum- mons issued pursuant to § 10, Art. 1, Title 3, Chap. 7, Part 8 of E. S. ; and the party desiring the examination, after a personal service of notice, if his adversary do not appear for the purpose of being examined, on proof of such service, may take the same pro' ceedings against the party, whose examination is sought, to com- pel his attendance, as might be had against a witness who should refuse to appear in obedience to a summons issued pursuant to the section of the E. S. above referred to. This is not, however, the only remedy which the party has, where his adversary refuses to appear and be examined after the service of notice, as provided in section 891. Instead of procure ing a warrant to compel attendance before the officer, he may, on an affidavit showing the service of the notice, and the neglect of the party to attend for the purpose of being examined, make a motion to strike out the complaint, answer, or reply of the per- son so refusing or neglecting to attend in pursuance of such notice. And such motion will be granted, unless the default is excused, in which case the Court would, undoubtedly, give the party a further day to attend and submit to such examination. Code, § 894. The notice to a party to appear, for the purpose of being examined, need not specify to what particular matter he is to be so examined : it is sufficient if it apprise him of the action in which he is to be examined, the officer before whom his testimo- ny is to be taken, and the time and place of the examination- The notice may be in the following form : 336 EXAMINATION OP PARTY BEFORE TRIAL. SUPREME COURT. Take notice, that you are hereby required to attend .before the Hon. Archibald Bull, County Judge of the County of Eensse- laer, at his office, in the city of Troy, on the day of , 1857, at 10 o'clock in the forenoon of that day, for the purpose of being examined as a witness, before said Judge, in the above- entitled action, pursuant to the provisions of section 391 of the Code of Procedure. U. DEXTER, Att'y for Plaintiff. Dated, &c. To C. D., Defendant. •! The above notice must be served, at least five days before the time appointed for the examination, upon the defendant person- ally. A party can never be punished, as for a contempt, for disregarding any notice, or order, which is not personally served ; and we do not think the judge would be justified in issuing a warrant to bring a party before him to testify, who had not been personally served with notice; perhaps a service on the attorney might be sufficient to sustain a motion to strike out the complaint, answer, or reply, for disregarding such notice. It would seem, where the object is to strike out a pleading of the party, that notice to attend and be examined should be served upon the attorney as well as the party. The attorney should have notice of every proceeding which is made the foundation of a motion in any manner altering or affecting the issue between the parties. The notice to the party to appear, for the purpose of being examined as a witness, is the only thing necessary to be served where the party to be examined and the party seeking the exam- ination are the only parties to the action; and where the object is to examine a defendant in behalf of a plaintiff, all the plaintiffs should join in the application, as none but those interested in the relief sought can be properly joined as plaintiffs in an action, and, of course, all must be interested in any testimony tending to establish the facts which show the title to such relief; but any one of several defendants may apply for the examination of any one of several plaintiffs or co-defendants, and, if he choose, may have the testimony of all taken in the same manner ; but in any case where there are more parties than one besides the person EXAMINATION OF PARTY BEFORE TRIAL. 837 applying for the examination, in addition to the notice to be served upon the party to be examined, a notice must be served upon every other party whose interest is adverse to the applicant. This notice should be served upon the attorney of the plaintiffs, if the applicant is a defendant, and, also, upon every other defend- ant who has appeared by a separate attorney, as the interests of defendants in an action may be as adverse to each other as they are to those of the opposite party. And if there are any defend- ants who have not appeared in the action, by attorney or other- wise, they should be personally served with such notice, as we understand the words adverse party, in § 391 of the Code, to mean any party, whether plaintifiE" or defendant, whose interest in the action is in any respect adverse to that of the applicant. This notice should be in the following form : SUPREME COURT. A. B. agt. C. D. and E. P. Take notice, that the defendant, E. P., will be examined as a witness, in behalf of the plaintiff in this action, before the Hon. Archibald Bull, County Judge of the County of Eensselaer, at his office, in the city of Troy, on the day of , 1857, at 10 o'clock in the forenoon of that day, in pursuance of the provisions of § 391 of the Code of Procedure. Yours, &c., U. DEXTEE, Att'y for Pl'ff. Dated, &c. To A. A. Lee, Att'y for Deft, C. D. This notice, like the one upon the party to be examined, must be served at least five days before the time of such examination. If the party to be examined does not appear at the time and place appointed for the examination, he may be compelled to attend in the same manner as the attendance of a witness to be examined conditionally is compelled. Code, § 392. As to the practice upon this subject, see ante, part 2, chap. 23. If the party attend, either in obedience to the notice, or is brought in upon a warrant issued for that purpose, the examina- tion is conducted in the same manner, and the testimony taken signed, certified and filed, and may be read by either party upon the trial, the same as testimony taken conditionally. Code section 892 ; and as to practice, see ante. Chap, above referred to. If the 338 EXAMINATION OF PARTY BEFORE TRIAL. applicant, instead of compelling the party to be examined, wishes either to punish him, as for contempt, or to strike out his com- plaint, ansvYer, or reply, or both, he should apply to the Court, upon a motion to be made for that purpose, at a special term, or before a judge at chambers, upon an order to show cause. If, for any reason which shall be approved of by the judge to whom the application is made, an examination of a party as a witness, upon a shorter notice than five days, is desired, the judge will grant an order requiring the party to appear before him for examination, at a time to be specified in the order, and will direct when the order is to be served. Code, § 391. This order must be founded upon an affidavit, showing the rea- son why an examination on a notice shorter than five days is necessary, a copy of which affidavit should be served with the order. The affidavit should be in the following form : SUPRE^IE COURT. Kensselaer Countt, ss. — A. B., being duly sworn, says he is the plaintiff in this action, and that issue was joined therein, by the service of an answer by the defendant, two days since ; that the defendant, at the same time of serving his answer, served a notice of trial at the next circuit to be held in and for the countv of Rensselaer ; and that said defendant has given notice that he intends to be examined as a witness upon the trial, and it will be necessary on said trial for deponent to prove several facts, which will require him to procure the attendance of one witness residing in the city of New York, and one witness whose residence is in Troy, but who is absent on business in the western part of the State, and is at one of several places which are named to deponent, but at which one deponent is not informed ; and deponent has reason to fear that it may require several days to find said witness, so as to procure his attendance, which it is necessary he should do, unless he can prove, as he hopes he may, the facts to be estab- lished by said witness, by the defendant. And deponent deems it very important to the interest of the parties that the cause should be tried at the next circuit, and believes the same will be reached, and may be tried, if the parties can be in readiness for the trial. Sworn, &c. A. B. EXAMINATION OF PARTY BEFORE TRIAL. S39 * The order should be in the following form : SUPREME COURT. Sufficient cause having been shown, by the affidavit of A. B., for the examination of the defendant, 0. D., as a witness upon a notice less than five days, on motion of U. Dexter, for plaintiff: Ordered, that the defendant, 0. D., appear before me, at my office in the city of Troy, to be examined as a witness in the above- entitled action, at five o'clock in the afternoon of this day, and that this order be forthwith served upon the said defendant. Dated, &c. ARCHIBALD BULL, Judge, Reus. County Court. The affidavit should properly, in addition to what is contained in the above form, show where the defendant and his attorney reside, that the discretion of the judge may be properly exercised in determining what notice of the examination should be required by the order. The affidavit upon which to found a motion to punish a party as for contempt, and to strike out his complaint, answer, or reply, should be in the following form: SUPREME COURT. A. B. agt. C. D. Rensselaer County, ss. — A. B., being duly sworn, says he is plaintiff in the above-entitled action, and that a notice,, of which the annexed is a copy (or a copy of the annexed order, as the case may be), was duly served upon the defendant, personally, on the day of , 1857, and that the time appointed therein for the examination of the said C. D., as a witness, before the Hon. Archibald Bull, County Judge, is now past, and that the said C. D. did not attend in obedience to said notice (or order, as the case may be), but wholly neglected so to do. Sworn, &c. A. B. This affidavit should be attached to the notice, or order, served upon the party, and to it should be annexed a further notice, in the following form: 340 EXAMINATION OF PARTY REFORE TRIAL. SUPREME COURT. Take notice, that, at the next Special Term of this Court, to be held at the Capitol, in the city of Albany, on the last Tuesday of December, 1857, at 10 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, a motion will be made for an order striking out the answer of the defendant in this action, and that an attachment issue to said defendant for .con- tempt, for disobedience to the notice (or order, as the case may be) requiring the said defendant to appear, to be examined as a witness in this action, before the Hon. Archibald Bull, County Judge, at his office, on the day of , 1857, or for such other or further order as to the Court shall seem meet in the premises, which motion will be founded upon the affidavit and papers, with copies of which you are herewith served. Dated, &e. U. DEXTEE, Att'y for Pl'ff. To C. D., Defendant, and A. A. Lee, his Att'y. We think, as above remarked, that this notice shotild be served both upon the attorney and party. If the motion is granted, the order will be in the following form : At a Special Term of the Supreme Court, held at the Capitol, in the city of Albany, on the day of , 1857. Present — Hon. George Gould, Justice. On reading affidavit and notice of motion, and after hearing counsel for the respective parties, on motion of U. Dexter, attor- ney for plaintiff: Ordered, that the answer of the defendant in the above-entitled action be, and the same is hereby stricken out and set aside ; and it is further ordered, that an attachment issue against the said defendant, C. D., for contempt in disobeying a notice duly served upon him, requiring him to appear before the Hon. Archi- bald Bull, Rensselaer County Judge, to be examined as a witness in the above-entitled action, on the day of , 1857. This order should be entered with the clerk ; thereupon an at- tachment may issue in the following form: EXAMINATION OP PARTY BEFORE TRIAL. 341,, The people of the State of New York to the Sheriff of the County of Eensselaer, Greeting: We command you that you attach C. D., if he may be found in your county, so that you may have him before our Supreme Court, at a Special Term thereof, to be held before one of the justices of said Court, at the Capitol, in the city of Albany, on the last Tuesday of , 1857, to answer for a certain con- tempt in not appearing to be examined as a witness, before the Hon. Archibald Bull, Eensselaer County Judge, at his of&ce in the city of Troy, on the day of , 1857, in obedience to a notice duly served upon him, pursuant to the provisions of § 391 of the Code of Procedure, in an action wherein A. B. was plaintiff, and the said C. D. defendant : and have you then there this writ. Witness, Geoege Gould, Esq , Justice, at the Court House, in the city of Troy, this day of , 1857. J. P. BALL, Clerk. U. Dexter, Attorney. The attachment, when thus drawn, should be sealed by the clerk, and on the return day, if the defendant is brought into Court, or having given a bond for his appearance, if he appear, the attorney for the party procuring the attachment usually attends, with interrogatories to be served upon the defendant, which should always be prepared before for that purpose. The Court then gives the defendant time to answer the interrogatories, and upon the interrogatories and answer, which must be made under oath, and in which the defendant may insert any matter which will tend to excuse the contempt, the Court will decide ; and, if the contempt is not purged, will impose such fine or punishment as the circum- stances of the case may seem to require. But we can scarcely conceive of a case where a party, actuated by proper motives^ would desire the issuing of an attachment against a party refusing to appear to be examined as a witness, under the provisions of § § S90 to 394 of the Code ; in case of non-attendance in obedience to a notice or summons, he may be brought before the judge by warrant, and his testimony then taken, or his complaint, answer, or reply, may be stricken out ; this is surely all that can be required for the legitimate purpose of doing justice between the parties in the action, and anything beyond that, in a majority of instances, if not always, might be regarded as vindictive. However, as there may be cases in which it will be deemed expedient to punish 8 342 EXAMINATION OF PARTY BEFORE TRIAL. the party as for contempt, for not appearing to be examined aa a -witness, we have given the necessary forms, except the interroga- tories to be answered by the party when brought in on the attach- ment, and they should be in the following form : SUPREME COUET. People, &c. ) agt. V 0. D. ) Interrogatories to be administered to C. D., defendant in an action commenced and pending against him in this Court, in favor of A. B., wherein the said C. D. has been attached as for contempt, in not appearing to be examined as a witness, pursuant to § § 391 and 394 of the Code of Procedure. First Interrogatory.— W&s a notice or order for you to appear to be examined as a witness in the action of A. B. against you, in this Court, before the Hon. Archibald Bull, County Judge of the county of Rensselaer, at his office in the city of Troy, on the day of , 1857, at 10 o'clock in the forenoon of that day, served on you on the day of , 1857, and if yea, did you appear in obedience to said notice ? Second Interrogatory. — Have you, at any time since, appeared, or offered to appear, to be examined as a witness in said action, or have you refused or neglected so to do ? Third Interrogatory. — At the time the said notice was so served on you, was anything paid to you as your travel and attendance fep, as such witness ? And, if yea, how much ? Answer fully, ai.'cording to the best of your knowledge and belief, each of the above interrogatories. U. DEXTEE, Att'y for Pl'ff. The answer to these interrogatories is in the form of an affida- vit, and may set up any matter justifying or excusing the default in not appearing to be examined. If the contempt is not purged, the Court will impose a fine on the defendant, sufficient in amount to cover the expenses of the attachment, and the fees paid on ser- vice of the notice to appear and testify, and any other actual damage which the party, seeking the testimony of his adversary, may have sustained, in consequence of his neglecting to attend and be examined as a witness ; and this, by order of the Court, will be paid to the party for his indemnity. MOTIONS TO KEFEE. 843 CHAPTEE XXVII. MOTIONS TO REFEK. Prior to the Code of Procedure, no cause could be referred by consent of parties, except such actions as the Court would have referred, on motion, where the parties did not agree ; that is to say, the action must have been of such a nature, that a reference would have been ordered if the trial would require the examination of a long account. But, now, all distinction in actions is done away, and the parties are authorized by stipulation to refer any action being at issue to one or more persons, not exceeding three, to try and determine the action, and to make report to the Court of their doings therein. Code, § 270. When a reference is made by stipulation between the parties, the stipulation should be filed and an order entered, referring the cause ; and, in such case, the copy of the order need not be served upon the opposite party by the party entering it. The Eeferee should not act without having a certified copy of the order appointing him. The stipulation to refer must always be in writing, and should be substantially in the following form : SUPKEME COURT. A. B. agt. C. D. It is hereby stipulated to refer this action to E. F., sole Eeferee, to try and determine the same, upon all the issues joined therein. Dated, &c. G. H., Att'y for Plaintiff, L. E., Att'y for Defendant. The above stipulation is sufficient to authorize the Court to order a reference without regard to the character of the action ; and, perhaps, would be sufficient authority for the clerk, on filing it, to enter the order of reference without application to the Court. On such a stipulation, it would be unnecessary to give any notice of motion ; the mere presentation of the stipulation is sufficient, and, even if a trial was had before the Eeferee, upon the stipula- tion alone, no order having been entered, the Court would direct 8M MOTIONS TO REFER. the order to be entered nunc pro tunc, and would not set aside the report of the Eeferee on the ground that no order had been entered at the time of the trial. Whalen agt. The Board of Super- visors of the County of Albany, 6 How. P. R, 278. Where the parties do not agree, the motion to refer is a non-enumerated motion, and must be made at a special term, or on an order to show cause before a Judge at Chambers, and must be founded upon affidavit. Eule 27 of Supreme Court Eules; 2 Cow., 448, 3 Cow., 84, and 7 Cow., 447. This affidavit should be made by the par- ty, unless some good reason exists for its being made by the attor- ney or some third person ; and, in such case, the affidavit should, upon its face, show why it was not made by the party. John M. Mesick v. Joseph W. Smith et al., 2 How. P. R., 7 ; ib. 157, 164, and 165 ; 4 Hill., 548 ; 10 How. P. R., 851. The Court may, how- ever, whenever it shall appear that the action is one which might be referred according to the provisions of § 271 of the Code, direct an order of reference without any motion for that purpose, and even against the consent of the parties. This is not unfre- quently done after the trial of an action has been commenced at the Circuit, upon the discovery by the Court that the trial will require the examination of a long account. Section 271 of the Code is in the words following : " When the parties do not consent, the Court may, upon the application of either, or upon its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases : "1st. Where the trial of an issue of fact shall require the exami- nation of a long account on either side, in which case the Referees may be directed to hear and decide the whole issue, or to report upon any specific questions of fact involved therein ; or, " 2d, Where the taking of an account shall be necessary for the information of the Court, before judgment, or for carrying a judg- ment or order into effect ; or, " 8d. Where a question of fact, other than upon the pleadings, shall arise upon motion or otherwise, in any stage of the action." The notice of motion should state the name, or names, of the persons proposed as referees, and should be in the following form : MOTIONS TO EEFEE. 345 SUPREME COURT. Take notice, tliat a motion will be made in this action, at the next Special Term of this Court, to be held at the Capitol, in the city of Albany, on the last Tuesday of January, 1858, to refer said action to E. E., of Troy, in the county of Eensselaer, as sole referee to try and determine the same, upon the issue of fact therein joined, (or to take and state an account, or to try a specific ques- tion of fact, as the case may be), and to report his doings therein to the Court, without delay ; which motion will be founded upon the pleadings and bills of particulars served in this action, and upon an affidavit, with a copy of which you are herewith served. Dated, &c. G. H., Att'y for Pl'ff. The affidavit, upon which the motion to refer is founded, should be in the following form : SUPREME COURT. Eensselaer County, ss. — A. B., being duly sworn, says, he is the plaintiff in the above-entitled action, and that the said action is at issue upon questions of fact, and that the trial thereof will require the examination of a long account upon the part of the plaintiff. Sworn, &c. A. B. The above affidavit will, of course, be changed, as may be re- quired by the circumstances of the case, and in accordance with the provisions of § 271 of the Code. And ia addition to bring- ing the case within the provisions of the above section, if the affi- davit is not made by the party, the reason why it is made by another must appear upon the face of the affidavit, as we have seen above. If the facts contained in the affidavit of the moving party are not controverted, a reference will be ordered as -a matter of course, unless the trial will require the decision of difficult questions of law. Formerly the practice was, upon an affidavit showing that questions of law would arise, to refuse the reference upon that ground. By the Revised Statutes, it was 846 MOTIONS TO REFEH. provided that where the trial would require the examination of a long account, a reference would be ordered, unless difficult questions of law would arise upon the trial. The Code, in this respect, has followed the Eevised Statutes (Code, § 271), but we are not aware that any legal definition of the word diffi- cult, as used in this section, has as yet been given, or is to be found in any reported case. The written law, therefOTe, in this respect, rests upon the cases of Hart agt. Covenhoven, in 2 John- son's Cases, 402, and Adams agt. Bayles, 2 J. K, refusing a reference where questions of law would arise, subject to such modification as the Eevised Statutes and the Code have caused, by the use of the word difficult, as above suggested. How far the rule has been changed, we have remarked, is not determined by any reported adjudication that we are aware of. There is, how- ever, a kind of lex non scripia, which has rendered this question tolerably well understood by those who are accustomed to attend the Terms, held for hearing and deciding non-enumerated motions. We are not aware that the Courts have gone so far as to say no question was difficult, within the meaning of § 271 of the Code ; but they have said, in several instances, that questions of law could be much better decided by a lawyer, sitting as referee, where he would have an opportunity not only of hearing the arguments of counsel, but of giving the question a careful examination, than by a judge at the trial, in the haste necessarily required for the dispatch of business at the Circuit. We think it may be regarded as well settled, that the Court will not refuse to refer, because the party or his attorney states in an affidavit that the trial will involve the decision of difficult questions of law. The great majority of trials require the decision of law questions, i>but whether those questions are difficult, the Court will judge and determine for itself; and the questions must be very grave indeed, or a reference will not be refused upon this ground. We give this as the result of our observation of the actual practice at the Special Terms. (Dewey agt. Field, 13 How., P. E. 437.) There is another question arising under this section, necessary to be discussed — the meaning of the expression long account. The result of the decisions upon this question seems to establish the following rules : First. The account must be composed of items, such as ordi- narily constitute the dealings between merchants or individuals, or MOTIONS TO EEPEE. 347 for service and charges for damage, arising from the misfeasance, malfeasance, or non-feasance of another, although charged, and the amount of damage specified in the charge will not constitute a long account, within the meaning of this section, no matter how- numerous the items may be. (Dewey agt. Field, 13 How. P. R., 437 ; McMaster agt. Booth, 4 How. P. R., 427 ; Silmser v. Redfield, 19 Wend., 21 ; Dedrick v. Richley, 19 "Wend., 108 ; McCulloch agt. Brodie, 18 How. P. R., 346.) Second. The items of a bill of merchandise, however numer- ous, purchased all at one time, being but one transaction and one bill, is not a long account ; and so of a bill of lading. (Swift vs. Wells, 2 How. P. R., 79 ; Miller vs. Hooker, 2 How. P. Ry 171.) Third. An account containing four items only is not a long ac- count, within the meaning of § 171 of the Code. (Parker vs. Snell, 10 Wend., 577.) The above rules will serve as a general guide in determining the cases in which the Court will order a reference under § 171 of the Code ; and perhaps the subject cannot be made more plain than it is rendered by the language of the section itself, as to references for the purpose of stating an account between the parties. Al- though, according to the above rule, an account of four items is not a long account, yet the Courts are in the daily habit of refer- ring cases where the number of items does not much exceed four, where it is evident that conflicting evidence may be ofiered as to each item. Where the motion is granted, the order should be in the follow- ing form : At a Special Term of the Supreme Court, held at the Capitol, in the city of Albany, on the last Tues- day of January, 1858. Present — Hon. George Goulb, Justice. On reading the affidavit and notice of motion, and after hearing counsel for the respective parties, on motion of G. H., attorney for plaintiff: Ordered, that it be referred to Jeremiah Romeyn, Esq., sole referee, to hear, try, and determine the above-entitled action, 348 MOTIONS TO EEFEK. upon tlie issues joined therein, and that he make report to this Court of his doings therein, with all convenient speed. This order should be entered in the office of the clerk of the county in which the renue in the action is laid, and a copy there- of served upon the attorney of the party against whom the motion is made. The wide authority to refer, given by § 270 of the Code, may be, and, in fact, is beginning to be very much resorted to, and many actions of tort, and in cases sounding in damages only, are now referred, particularly in counties where the numerical strength of the Court will not enable them to hold circuits of sufficient frc quency and duration to prevent a continually accumulating calen- dar ; and we can see no reason why such causes should not be referred. Any attorney, having a proper respect for himself and for his office as a member of the bar, should not bring an action for slan- der, malicious prosecution, false imprisonment, assault and battery, or for any wrong, where the character of the action is not such, that he would be willing that any fair and impartial intelligent citizen (especially a member of the bar) should pass upon the question of damages, whether the same is to be given as a compen- sation to the plaintiff, or punishment to the defendant, or both. And it will be observed, that, by the above section, any action may be referred by stipulation, even though the issues be of law, or of both law and fact. PA.IIT III. CHAPTER I. OF THE NOTICE OF TRIAL, ETC. By § 256 of the Code, after isaue joined in an action, either par- ty may bring the same to trial, by a written notice, to be served upon his adversary ten days before the time of trial specified in the notice. If the action has not been referred, it is, of course, to be tried at a Circuit Court appointed to be held in the county where the place of trial is laid, or to which it may have been changed. Where there are issues of law and issues of fact in the same action, the issues of law will be first tried (Code, § 251), and, strictly, the action should be noticed for trial upon the issues of law only, until they are disposed of, as it may often happen that the trial of the issues of law will result in such a manner as to re- quire an amendment of the pleadings, and may, sometimes, make new issues of fact, which should, of course, be disposed of at the same time with all the other issues of fact in the same action. If there are no issues of law, then, in addition to the ordinary notice of trial, it is usual to give notice that an inquest will be taken in the action. All notices of trial at the Circuit must be for the first day of the Circuit. In addition to the notice served upon the opposing attorney, a note of issue (which is a memorandum, or notice, in writing, " containing the title of the action, the names of the attor- neys, and the time when the last pleading was served") must be served \ipon the clerk of the county where the place of trial is laid, at least eight days before the first day of the Circuit. The notice of trial and inquest should be substantially in the follow- ing form : 850 OF THE NOTICE OF TKIAL, ETC. SUPREME COURT. A. B. 1 agt. [• C. D. ) Take notice, tliat tKis action will be brought to trial at the next Circuit Court, appointed to be held at the Court House, in the city of Troy, in and for the county of Eensselaer, on the third Monday of February, 1858, at 10 o'clock in the forenoon of that day, and that an inquest therein will then and there be taken. Dated, &c. Gr. H., Plaintiff's Att'y. To L. E., Defendant's Att'y. If the action is noticed upon an issue of law, the notice should be the same as the above, except that, after the words " will be brought to trial,'' insert, " upon the issue of law joined therein" and omit the notice of inquest which is contained in the above. Whether the notice of trial is of issues of fact or law, the note of issue must be served upon the clerk, and, usually, one note of issue should have inserted in it all the actions which the attorney making it has noticed for trial at that circuit, and should be in the following form : NOTES OF ISSUE. January Circuit, 1858. Title op Actioms, Datb of Ibsub. Namk of Attorvets. aTk " E. F. " agt. October 9, 1857. C. D. G. H. J. K. ~~ N. 0. agt. November 3, 1857, L. M. P. Q. To R. S., Clerk of Rensselaer Co. Y. Z., Att'y. If the action has been referred, the attorney, wishing to notice the same for trial, should call upon the Referee for an appointment of the time and place when and where the action might be noticed for trial. This appointment is, sometimes, obtained in writing, and a copy of it served with the notice of trial. But this is unne- cessary. The only object of obtaining the appointment by the Referee being, to secure a time when the Referee will hold him- OF THE NOTICE OF TRIAL, ETC. 851 flelf bound to be free from otber engagements, and in readiness to attend to the trial of the action. The notice of trial before a Referee is in the same form as the one above given, except it is that the trial will be had before the Eeferee at the place appointed instead of at the Circuit, &c. It should always be borne in mind, that the notice of trial, when served by mail, should be twenty days instead of ten. All the defendants, who have appeared in the action, are entitled to notice of trial, although only one of several has put in an answer. Tracy v. N. Y. Steam Faucet Co., 1 E. D. Smith's R., 346. The time of this, like all other notices, is computed by exclud- ing the first and including the last day. For instance, a notice served on the 1st, for the 11th, is a ten days' notice. If a party, having noticed an action for trial, countermand his notice, at any time before the circuit, or before the time of trial, if the action is noticed before a Eeferee, he will be required to pay all the costs to which his opponent may be put, in consequence of such notice of trial. Morse vs. La Farge, 2 Wend. R., 241. And the Court, on motion for that purpose, will compel the pay- ment of such costs. Issues of law form an exception to the rule, that actions must be noticed for trial, in the county in which the place of trial, or venue in the action, is laid ; and whenever an action is to be brought to trial, upon an issue of law, it may be noticed for trial in any county in the district to which the county in which the place of trial is laid belongs, or in any county adjoining the one in which the place of trial is laid, although it may be in a differ- ent judicial district. By section 255 of tlie Code, issues of law may be brought to trial at a special term, as well as at a circuit, and there is no reason why they sliould not be so brought to trial, as they are, in no case, to be tried by jury. The trial of issues of law, therefore, so far as the place of trial is concerned, is regulated by the same rule which governs the making of motions ; and this, as regulated by section 401 of the Code, allows a motion, except in the actions in which the venue is laid in the first dis- trict, to be made in any county, in the same district with that in which the venue is laid, or in an adjoining county, though in another district. This practice, in relation to noticing issues of law, and bringing them to trial, out of the county where the venue is laid, was approved by Justice Willard, in Ward agt. Davis and others, in 6 How. P. E., 274, and has been ever since followed. 352 JURY — HOW COITVEN'ED. CHAP TEE II. JUEY — HOW CONVENED. Formerly a venire was issued, for the summoning of a jury, in eveiy action, or was supposed to be so issued. This was not, however, generally done, in actual practice ; and, if the omission to issue a venire was assigned as a ground of error, the Court wovtld allow a venire to be issued and filed, nunc pro tunc, for the purpose of curing that defect ; the issue of a venire having come long before this to be regarded as a mere matter of form ; and, by the Eevised Statutes, the issuing of a venire was altogether dis- pensed with, except in cases where a foreign jury is ordered. 2 E. S., 4th ed., 655, § 9. The manner of drawing and summoning juries has not been, in any manner, changed by, or since the Code ; and the provisions of the Revised Statutes, on this subject, are still in force, which are as follows : " The Supervisor, Town Clerk, and Assessors of each of the several towns, are required to furnish to, and file with, the clerks of their several counties, respectively, ' a list of persons to serve as jurors.' " This list must be taken from the assessment roll of the town, and must contain the names of male persons, each of whom is over twenty-one, and under sixty years of age ; not by law exempt from serving on juries ; who is assessed for personal property, to the amount of two hundred and fifty dollars, or who owns real estate, in his own right, or in the right of his wife, of the value of one hundred and fifty dollars ; in the possession of his natural fac- ulties, and not infirm or decrepit ; free from all legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed. 2 E. S., 4th ed., 656. The County Clerk writes the name of each person upon the list of jurors furnished to him, upon a separate ballot, stating the residence upon the same ballot, and deposits them in a box prepared for that purpose. lb., 657. At least fourteen days prior to the sitting of the Circuit, or other Court, for the trial of issues of fact, the Clerk of the county where such Circuit is to be held is required to draw from the box, containing the ballots with the names of jurors written JUET — HOW CONVENED. 853 thereon, thirty-six ballots; and the persons whose names are written thereon form the jury for the trial of the several actions to be tried at such Circuit. Before drawing the jury, the Clerk is required to publish a notice of the time when such jury will be drawn, and to deliver a copy to the Sheriff and County Judge ; and it is their duty to attend at the drawing of such jury. A list of the names, so drawn, is made and delivered to the Sheriff, whqse duty it is to summon the several persons, named on said list, to attend such Court as jurors. Whenever the Court shall deem it necessary, they may order an additional number of jurors to be drawn and summoned, not exceeding twenty-four in number. 2 E. S., 4th ed., 664. In the city and county of New York, and in some other coun- ties, there are special statutory provisions, regulating the manner of making the list of jurors, and of drawing the juries for the several Courts, which we deem it unnecessary to notice particu- larly, as they can be of no possible importance to the practitioner, except in a case where he wished to make a challenge to the entire panel, which is called a challenge to the array ; and this can be very rarely, if ever, necessary, under our present system, for rea- sons which we shall consider more fully hereafter. In addition to the juries, drawn for the trial of actions, from the regular panel of jurors at the Court, there are two other methods sometimes resorted to, for the purpose of empaneling a jury for the trial of a particular action. First. A foreign jury ; and. Second. A special, or struck jury. And, to obtain either a foreign or a special jury, the party desiring it must apply to the Court, by motion founded upon affi- davit, and upon notice to the opposite party, for an order, direct- ing the summoning of such foreign jury, or the striking and summoning a special jury for the trial of the action. Cases in which a foreign jury would be ordered are of rare occurrence, as, ordinarily, in a case where a fair and impartial trial could not be had in the county where the place of trial is laid, the Court would order a change of venue, and thus the diffi- culty would be entirely obviated. The affidavit, npon which the motion for a foreign jury is founded, should show three things : First. That a fair and impartial trial cannot be had in the action in the county where the venue is laid. 354 JURY — HOW CONVENED. Second. That a view will be required, or some other very strong reason, if not an absolute necessity for trying the cause in the county where the place of trial is laid. Third. That the action is one of suf&cient importance to war- rant such a departure from the ordinary practice. We do not give the form of this affidavit, as the facts to be stated in it must differ very widely in different cases, and will necessarily be of a nature that we cannot well imagine that any of them would be overlooked or forgotten. It should be borne in mind, however, that it will not be sufficient to allege in the affidavit that a fair trial cannot be had in the county where the venue is laid, but the facts which establish this must be stated, that the Court may judge of them, so also of the facts showing the necessity that the trial should be had in the county laid in the complaint for that purpose. The venue for a foreign jury is issued by the attorney of the party applying for it, and should be substantially in the following form : The People of the State of New York to the Sheriff of the county of Washington, Greeting : We command you that you cause to come before one of the justices of the Supreme Court of the State of New York, at a Circuit Court, appointed to be held at the Court-house, in the city of Troy, in the county of Eensselaer, on the third Monday of February, 1858, at ten o'clock in the forenoon of that day, twenty-four free and lawful men of your county, each of whom shall be assessed for personal property belonging to him, in his own right, to the amount of two hundred and fifty dollars, or who shall have a freehold estate in real property in your county, belonging to him in his own right, or in the right of his wife, to the value of one hundred and fifty dollars ; of the age of twenty- one years or iipwards, and under sixty, in the possession of their natural faculties, and not infirm or decrepit, of approved integrity, sound judgment and well-informed, and not exempt from serving on juries, by whom the truth of certain matters at issue, and then and there to be tried, in an action wherein A. B. is plaintiff, and C. D. defendant, may be the better known ; and who are in nowise of kin, either to the said A. B. or to the said C. D., to make a certain jury of the county between the parties aforesaid, in the action aforesaid, because as well the said A. B. as the said C. D., between whom the said issues are pending and to be tried, have put themselves upon that jury ; and have you then there the names of those jurors and this writ. JURY — HOW CONVENED. 355 Witness, George Gould, Esq., Justice, at the Court House, in the city of Troy, this day of , 1858. J. P. BALL, Clerk. C. B. Brintnall, Attorney. This writ, being issued by order of the Court, must be sealed with the seal of the Court, 2 E. S., 4th ed., 366, § 20, and must be delivered to the sheriff of the county from which the jury is to be taken, a suificient length of time before the return day thereof to enable the sheriff to present the same to the clerk of the county, at least twenty days before such return day ; and it is the duty of the clerk, on being notified by the sheriff that such venire has been issued and delivered to him, to draw, in the same manner as juries are drawn for the Circuit Courts to be held in the same county, twenty-four names, and to deliver the list of the names so drawn, and the persons whose names are so drawn must be summoned by the sheriff as jurors, in obedience to the com- mand contained in said writ of venire. 2 R. S., 4th ed., 655, § 2. This is the only form of venire for foreign jury which can ever be required under our present system of practice, and the forms to be found in the old books for a venire to try the issues between the parties and to assess contingent damages upon issues of law, which were undetermined at the trial, or to try the issues between the parties, and assess the damages against certain other parties who had suffered interlocutory judgments to be taken against them by default (commonly called a venire tanquam), are now wholly out of use and unnecessary, as juries are now always sworn to find their verdict, as between all the parties to the re- cord, as well those who have made default as those who have answered. If there are issues of law in the action, they are dis- posed of before the trial of the issues of fact ; and if the action is one where separate judgments might be entered against the de fendants, if any of them make default, such separate judgments are usually entered, and then the persons making default cease to be parties to the record for the purpose of the trial; and if a joint judgment only can be entered, a general verdict is found for or against all the defendants, as well those who have made default as those who have answered. It would, perhaps, be well, for the better satisfaction of the sheriff and clerk, to deliver to the sheriff, with the venire, a copy of the order directing the same to be issued, although it is not 356 JUEY — HOW CONVENED. necessary that such order should be so delivered. The form of the order, that a venire for a foreign jury be issued, should be substantially as follows : At a Special Term of the Supreme Court, held at the Capitol, in the city of Albany, on the last Tuesday of January, 1858. Present — Hon. Ira Harris, Justice. On reading the affidavits and notice of motion that a foreign jury be convened for the trial of this action, and after hearing counsel for the respective parties, on motion of C. E. Brintnall, for plaintiff: Ordered, that a venire be issued in this action, directed to the sheriff of the county of Washington, requiring him to sum- mon twenty-four free and lawful men of his county, each of whom shall be assessed, for personal property belonging to him in his own right, to the amount of two hundred and fifty dollars, or who shall have a freehold estate in real property in his county, belong- ing to him in his own right, or in the right of his wife, to the value of one hundred and fifty dollars, of the age of twenty-one years or upwards, and under sixty, in the possession of their natural faculties, and not infirm or decrepit, of approved integrity, sound judgment, , and well-informed, and not exempt from serving on juries, to be and appear at a Circuit Court, to be held at the Court House, in the city of Troy, in the county of Eensselaer, to form a jury, for the trial of the issues joined in the above-entitled action, on the third Monday of February, 1858, at ten o'clock in the fore- noon of that day. A special, or struck jury, is never ordered, except in very im- portant cases, and fgr reasons to be stated in the af&davit upon which the motion for such order is founded, such as shall be approved by the Court. The notice of motion for a struck or special jury, and that for a foreign jury, is substantially the same, substituting the -wotA foreign in the one, in place of special in the other, and should be in the following form : SUPREME COURT. A. B. ) agt. \ C. D. ) Take notice, that a motion will be made at the next Special Term of this Court, to be held at the Capitol, in the city of Albany, JURY — HOW CONVENED. 357 on the day of , 1858, at ten o'clock in tbe fore- noon of that day, or as soon thereafter as counsel can be heard, for an order that a special jary be struck for the trial of this action, according to the form of the statute in such ease made and pro- vided, which motion, will be founded upon the pleadings in this action, and upon an affidavit, with a copy of which you are here- with served. Dated, &c. 0. B., Att'y for Pl'ff. To R. M., Att'y for Deft. If the notice is for a motion that a foreign jury be ordered, then insert the following words: Ordered^ that a venire he issued to the sheriff of the county of , to summon a foreign jury to try the aJbove-entUlcd action, returnable at the Circuit Court, to be held at the Court House, in the city of Troy, in the county of Rensselaer, on the day of , 1858. The order for a special jury should be substantially in the fol- lowing form : At a Special Term of the Supreme Court, held at the Capitol, in the city of Albany, on the last Tues- day of January, 1858. Present — Hon. Geoege Gould, Justice. A. B. agt. CD. On reading affidavit and notice of motion, and the pleadings in this action, and after hearing counsel for the parties respectively, on motion of W. F., for plaintiff: Ordered, that a special jury be struck for the trial of this action, for the purpose of trying the same, at the next Circuit Court, appointed to be held in and for the county of Rensselaer, on the day of , 1858, at the Court House, in the city of Troy. This order should be entered in the office of the clerk of the county where the place of trial is laid, and a copy served upon the adverse party, together with a notice of the time when the party obtaining the order will attend before the clerk, for the purpose of striking the jury. 2 R. S., 4th ed., 665, § 57. This notice should be in the following form : s §58 JUEY— HOW CONVENEIX SUPKEME COURT. Take notice, that I shall attend before the clerk of the county of Eensselaer, at his ofi&ce, in the city of Troy, for the purpose of having the special jury struck for the trial of this action, on the day of , 1858, at ten o'clock in the forenoon of that day. Dated, &c. E. F., Att'y for Pl'fiF. To L. M., Att'y for Deft. This notice must be served eight days before the time appointed by it for appearing before the clerk. " The manner in which the jury is struck is as follows r " At the time appointed, the clerk of the county shall attend at his office, with the original lists of the jurors returned to- him by the officers of the several towns, who are then liable to serve, and- in the presence of the parties, or their coumsel, shall proceed to strike a jury, as follows : " 1. The clerk shall select from such lists the names of forty- eight persons, whom he shall deem most mdiflferent between the parties, and best qualified to try such cause. "2. The party on whose application such struck jury was or- dered, or his attorney, shall then first strike out one of the said names, and the opposite party, or his agent, shall strike out another of such names, and so alternately until each party shall have stricken out twelve names. " 3. If either party shall fail to attend at the time and place of striking such jurors, or shall neglect to strike out any names ac- cording to the foregoing provisions, the clerk shall strike for such party. " 4. The clerk shall, thereupon, make out a list of the names of the twenty-four persons not stricken out, and certify the same to be the persons drawn to serve as jurors, pursuant to the order of the Court. 2 E. S., 4th ed., 665, § 58." This list is delivered to the sheri^ who summons the jury in the same manner as other juries aresummouedr without amy venire being issued for that purpose. The expense of striking a jury is to be paid for by the party moving for the same, and cannot be taxed in the costs of the action. Any juror may be challenged, for the same reasons and in like manner as in other cases. OP COMPELLING THE ATTENDAlfCB OF WITNESSES. 359 CHAPTEE III. OF COMPELLING THE ATTENDANCE OF WITNESSES. An action having been duly noticed for trial, and a note of the issue furnished to the Clerk, the next step for the Attorney is, to •see that his witnesses are all duly subpoenaed. The subpoena should be, stihstantially, in the following form : The People of the State of New York to E. F., G. H., and K. L., Greeting : You, and each of you, are hereby commanded and required to appear and attend a Circuit Court, appointed to be held, by one of the Justices of the Supreme Court, at the Court House, in the city of Troy, in and for the county of Rensselaer, on the third Monday of February, 1858, at ten o'clock in the forenoon of that day, to testify and give evidence, in a certain action now pending in the Supreme Court, then and there to be tried, between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff; and, for a failure, you will be deemed guilty of contempt of Court, and liable to pay all loss and damages sustained thereby to the party a,ggrieved, and forfeit fifty dollars in addition thereto. Witness George Gould, Justice, at the Court House, in the city of Troy, the day of , 1858. By the Court. J. P. BALL, Clerk. P. H. B., Attorney. The subpcena need not be sealed (2 E. S., 4th ed., 366, § 20), land may be tested at any time, as the Court is always in session for that purpose- The subpoena ticket is in the following form: By virtue of a writ of subpoena, to you directed, and herewith shown to yon, you are commanded and required to appear and attend a Circuit Court, appointed to be held by one of the Justices 'of the Supreme Court, at the Court House, in the city of Troy, in and for the county of Rensselaer, on the third Monday of February, 1858, at ten o'clock in the forenoon of that day, to testify, all and singular, what you may know, in a certain action now pending in the Supreme Court, then and there to be tried, between A. B., plaintiff, and C. I>.j defendant, on the part of the plaintiff; and, for a. failure to attend, you will be deemed guilty of a contempt of 860 OF COMPELLING THE ATTENDANCE OF WITNESSES. Court, and liable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit fifty dollars in addition thereta Dated the day of , 1858. By the Court. P. H. B., Attorney. To B. F. Instead of the ticket, a copy of the subpoena may be, and some- times is used, in subpoenaing witnesses, which is done by showing^ the witness his name in the original subpcena, telling him what it is, and, at the same time, delivering to him a ticket, addressed to him, or a copy of the subpoena, with his name in it, and paying to him eight cents a mile, as traveling fees for going to and return- ing from Court ; computing the amount by the distance from the place of residence of the witness, to the Court House, or place where the action is to be tried, one way only. For instance, if the residence of the witness is ten miles from the place of trial, he must be paid eighty cents travel fees. He must also have fifty cents for one day's attendance. If the witness refuse to receive the money, tendering it to him is sufficient. (2 E. S., 4th ed., 646, § 55.) The witness is also entitled to receive fifty cents for each day his attendance may be required at Court, and if this is not paid, upon the witness demanding it of the party, or his attorney, the witness would not be held in contempt, should he leave Court and return home. If there is any book, or other paper in the possession of the witness, as well where he is a party to the suit as otherwise, he may be required to bring such book or writing with him to Courts for the use of the party, by a subpcena duces tecum. This sub- poena is precisely the same as the form before given, with the addi- tion of what is called the duces-iecum clause, which is inserted immediately after the words, " on the part of the plaintiff," and is in the following form : And that you bring with you a certain article of agreement, purporting to have been entered into, and made by and between A. B. and C. D., on or about the day of , 185 , relative to the building of a certain steam engine {or such description of the jiaper or hook as will leave no doubt of what is intended to be described), to be produced by you, as a witness upon the trial of said action. This clause should also be introduced into the ticket, or copy subpoena, delivered to the witness. OF COMPELLING THE ATTENDANCE OF WITNESSES. 361 It was for a time doubted whether a party to an action, being subpoenaed as a witness by his adversary, could be compelled, by the duces-tecum clause in the subpoena, to briDg into Court books or papers in his possession, to be produced and used on the trial, but we adopt, on that subject, the opinion of Justice Welles, in Bonestell agt. Lynde et al. (8 How. P. E., 226), where we think the learned Justice proves very clearly, that the Courts have the power to compel parties to obey the duces-tecum clause, in a sub- poena served upon them, and that, for disobedience, they may not only be punished as for contempt, but may have their complaint, answer or reply, stricken out, according to the provisions of section 394 of the Code. If a witness does not attend, in obedience to a subpoena duly served upon him, the party who subpoenaed him may apply to the Court, upon an affidavit, showing the service of the subpoena, which should be attached to the affidavit ; the delivery of a sub- poena ticket containing the witness's name, or a copy of the sub- poena; a statement of the distance the witness resides from the place where the Court was held, which he was subpoenaed to attend ; and the amount of fees paid, or tendered to such witness, at the time he was so subpoenaed; and that said witness has not attended said Court, in obedience to said subposna, for an attachment against the witness, as for a contempt of the Court. This is an ex parte application, and may be made at the same Cir- cuit at which the subpoena was returnable, or at a Special Term afterwards, and the attachment, when granted, if there is sufficient time to afford an opportunity to have the same served, may be made returnable at the same term of the Court at which the order for issuing it was obtained, or it may be made returnable at a sub- sequent Special Term ; and it is not necessary that the cause should be called upon the calendar, to bring the witness into contempt for disobeying the subpoena. It should, however, appear that the subpoena was served long enough before the Circuit to give the witness a reasonable time to prepare and attend the same. Gra- ham's Practice, 267 ; 2 E. S., 4th ed., 773. If the attachment is moved for, under the provisions of the Eevised Statutes, it would seem that the application must be made at the Circuit, and the allowance of the attachment must be endorsed upon it, and signed by the Judge holdiftg the Court, and must be made returnable at the same Circuit (2 E. S., 4th ed.. 362 OF COMPELLIKG THE ATTENDANCE OF WITNESSES- 773, § 85) ; but it need not, .wben issued under the statute, as was formerly required, be tested on a day of the previous term of the Court, as the Court is always open for the purpose of issuing pro- cess (2 E. S., 4th ed., 366, § 20) ; nor need it be tested in the name of the Chief Justice, as process may now be tested at any time, in term, or vacation, in the name of any Judge of the Court. See E. S., section above cited. But the Court possess the power to attach and punish witnesses as for contempt in disobeying subposna, independent of the statute above referred to. 1 Str., 510 ; 2 Str., 810 ; 3 B. & Aid., 598 ; 1 Marsh, 410 ; 1 Bing,, 366. And, as remarked above, the attach- ment, when ordered by the Court, in the exercise of its common law jurisdiction, should be made returnable at a Special Term ; and may be at the same term at which the order granting it is made, or at a subsequent term. And, when an order is granted by the Court, the attorney issues the attachment, and it is not necessary to have any allowance endorsed upon it. It should, however, be under the seal of the Court. 2 E. S., 4th ed., 366, ,§20. The affidavit, upon which the motion is founded, in addition to -showing the due service of the subpcena, and the non-attendance •of the witness, should also show that the witness is material for the party who subpcenaed him upon the trial of the action. The affidavit should be in the following form : SUPEEME COURT. A. B. I agt. \ C. D.) Eensselaer County, ss. — A. B., being duly sworn, says, that he is the plaintiff in the above-entitled action, and that he served the annexed subpoena on E. L., in said subpoena named, on the day of , 1858, at Brunswick, in the county of Eensselaer, by showing him the said subposna, with his name therein, at the same time delivering to him a ticket addressed to him, containing the substance of said subpoena (or, a copy of said subpoena, as the case may be), and that he, at the same time, paid to said witness the sum of one dollar and thirty cents, for his travel fees and one day's attendance as a witness in said action ; that said witness resides in the town of Brunswick, where he was subpoenaed, and that the distance from his residence to the place where said subpoena is OS' COMPELLING THE ATTENDANCE OF WITNESSES. 363 Mturnable does not exceed eight miles, and that said witness did not attend said Court, in obedience to said subpoena (or has not attended, and is not now in attendance upon said Court, in obedi- ence to said subpoena, as the case may be), and that the said E. L. is a necessary and material witaess for the plaintiff on the trial of this action. Sworn, &c. A. B. If the motion is made at a Special Term, the affidavit should state the expense caused by the non-attendance of the witness, that the Court may order the amount of bail. 2 E. S,, 4th ed., 770, § § 10 and 14. The motion for an attachment, whether made at the Circuit, or at a Special Term after the Circuit, is an ex •parte motion. If made at the Circuit, under the statute, on reading the affidavit an order is entered by the Clerk in the minutes, and the attachment is drawn, sealed, and presented to the Court, who endorses his allowance thereon. The attachment, when issued at the Circuit, under the statute, is in the following form : The People of the State of New York to the Sheriff of the ^ounty of Eensselaer, Greeting ; You are hereby commanded to attach L. E,, if he may be found im your bailiwick, and bring him, forthwith, jpersonally, before the Circuit Court, now being held in and for the county of Eensselaer, at the Court House in the city of Troy, to answer for certain tres- passes and contempts, alleged against him for not obeying a cer- tain writ of subpoena, issued in an action wherein A. B. was plain- tiff, and C. D. defendant, requiring him to attend the said Circuit, on the day of , 1858, to testify and give evidence in said action on the part of the plaintiff; and youa,re further commanded to keep the said L. E. in your custody until he shall be discharged by the said Circuit Court, and have you then there this writ. Witness, Geoegb Gould, Justice, at the Court House, in tjie city of Troy, this day of , 1858. J. P. BALL, Clerk. E. COWEN, Attorney. On the back of this writ, the allowance thereof by the judge holding the Circuit should be endorsed as follows, to wit; Allowed, this day of , 1858. GEOEGE GOULD, Justice. 364 OF eOJIPELLIKG THE ATTENDANCE OF WITNESSES. The object of issuing an attachment under the statute, return- able at the Circuit, is to enable the party upon whose motion the attachment is issued to have the witness brought in, so that he can have the benefit of his testimony upon the trial of the action, and it is for this reason that the Sheriff is commanded by the writ to keep the person attached in his custody until discharged by the Court. Where the application is not made at the Circuit, it must be made within a reasonable time thereafter, or an order that an attachment issue will not be granted. Eee v. Stretch, 4 Dowl., 80 ; and S. C. 1 Me. and W., 322. Where the motion is made at a Special Term, and granted, the order that an attachment issue is in the following form ; At a Special Term of the Supreme Court, held at the Capitol, in the city of Albany, on the day of , 1858. Present — Hon. Henry Hogeboom, Justice. On reading the affidavit of A. B,, whereby it appears that L. E. was duly and regularly subpoenaed to attend a Circuit Court, held on the day of instant, at the city of Troy, in the county of Rensselaer, as a witness in the above-entitled action, on the part of the plaintiff, and that he is a material witness for the plaintiff in said action, and that he neglected and refused to attend said Circuit Court, or in any manner to obey said subpoena, whereby the plaintiff was caused an expense of $200, on motion of B. Cowen, for plaintiff: Ordered, that an attachment issue against the said L. R., as for contempt in disobeying the said sub- poena, and that he be held to bail in the sum of four hundred dol- lars. This order should be entered with the clerk, and thereupon an attachment is issued in the following form : The People of the State of New York, to the Sheriff of the County of Rensselaer, Greeting : You are hereby commanded to attach L. R., if he may be found in your bailiwick, so that you may have his body before one of the justices of the Supreme Court of the State of Kew York, at a Special Term of said Court, to be held at the Capitol, in the city OF COMPELLING THE ATTENDANCE OF WITNESSES. 365 of Albany, on tte day of , 1858, to answer for certain trespasses and contempts, alleged against him in the said Supreme Court, and have you then and there this writ. Witness, Henby Hogeboom, Justice, at the Court House, in the city of Troy, this day of , 1858. J. P. BALL, Clerk. E. CoWEN, Attorney. -'I This writ must be sealed, and then, instead of being endorsed, allowed, by the judge, as in the case of an attachment against a wit- ness, returnable at the Circuit, it should be endorsed as follows : Issued for not attending as a witness at the Eensselaer Circuit, on the day of , 1858, in obedience to a sub- poena regularly served upon the within-named L. E,, in an action in which A. B. was plaintiff, and C. D. defendant, on the part of the plaintiff, pursuant to a special order of the Court, for that pur- pose, entered on the day of , 1858, whereby the said L. E. is directed to be held to bail in the sum of four hundred dollars. J. P. BALL, Clerk. E. CoWEN, Attorney. -'J An attachment against a witness, applied for and made return- able at a Special Term, subsequent to the Circuit at which the attendance of the witness was requirecl, is an attachment by the special order of the Court, within the meaning of that term, as used in 2 E. S., 4th ed., 770, § 14, and the endorsement upon the attachment must be signed by the clerk. We doubt very much whether the Legislature intended that the attorney, by a quality of his office as such, should sign the clerk's name to this endorse- ment. It is required by the statute to be the certificate of the clerk, and should be signed by him. (2 E. S., 4th ed., 770, § 14.) And it is by authority of this certificate that the sheriff is author- ized to let the defendant go, upon his giving bail for his appear- ance upon the return of the attachment. We consider this the fair construction of the statutory provisions upon this subject. By § 10, above cited, the Court is required to direct the penalty in which the defendant shall give bail for his appearance to answer the attachment; but this section says nothing about how this direction shall appear. By § 11, the direction to hold to bail in certain other cases of attachment is required to be endorsed upon the writ. By this, we think it is evident that the Legislature did 866 OF COMPELLING THE ATTENDANCE OF WITNESSES. not intend that the direction required by § 10 should be by the Court endorsed upon the writ, and we conclude that the certifi- cate of the clerk, required by § 14, was intended as an authority to the sheriff to take bail upon the arrest of the defendant, by virtue of the attachment, although, by tbe language of the section, the clerk is required only to certify that the attachment is issued by the special order of the Court, yet, if we are right in constru- ing § 10 by comparing it with § 11 as above mentioned, and we think the convenience of the practitioner would often require such a construction, it is queer that the clerk's certificate should state the direction to hold to bail contained in the order granting the attachment; otherwise it would be necessary to deliver, with the attachment, a certified copy of the order granting it, to the sheriff, in every instance where it was issued by the special order of the Court. When a witness is brought into court upon an attachment returnable at the circuit, the Court, at such time as they shall elect — which is usually not until after the action has been tried, or otherwise disposed of, in which the witness was subpoenaed to testify — unless the party applying for the attachment shall con- sent that the defendant therein be diseharged from custody (when the Court will ordinarily allow such discharge, on payment of the costs and expenses of the service of the attachment), will direct interrogatories to be prepared, which the defendant will be required to answer on oath. The interrogatories must be confined to the matters alleged against the defendant in the affidavit upon which the attachment issued, and the answer of the defendant may be sustained on the one side, and contradicted on the other. And upon the interrogatories, answers and affidavits, including the original affidavit upon which the attachment issued, the Court will determine the question of contempt If the contempt is not purged, the Court is required to impose a fine sufficient to cover any damage which the party may have incurred, together with his costs and expenses in the issuing, and the proceedings upon, the attachment ; and the party is entitled to an order that the same be paid over to him. 2 E. S., 4th ed., 771, §21; Albany City Bank v. Schermerhorn, 9 Paige, 372; The People ex rel. Johnson v. Nevins, 1 Hill, 155. The interrogatories to be put to the witness are substantially in the following form : OF COMPELLING THE ATTENDANCE OF WITNESSES. 867 The People ex rel. A. B. agt. L. R. Interrogatories to be administered to L. E., who is in the custody of , Esq., Sheriff of Eensselaer, on an attachment issued against him for disobeying a certain writ of subpoena, directed to the said L. R., commanding him to appear at a Cir- cuit Court, held in and for the county of Rensselaer, at the Court House, in the city of Troy, on the day of , 1858, to testify as a witness in an action pending in the Supreme Court, between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff. First Interrogatory. — Were you not subpcenaed to appear and testify at the time, in the manner, and between the parties in the caption of these interrogatories ? If yea, state when, where, how, and hy whom you were so subpoenaed, and whether any, and what, money was paid you for your fees as such witness. Declare fully. Second Interrogatory. — Is the subpoena, a copy of which is an- nexed to these interrogatories, the subpoena by which you was so subpcenaed ? And if yea, was a ticket containing the substance of said subpoena delivered to and left with you? Declare fully, according to your best knowledge and belief. Third Interrogatory. — Did you obey such, subpoena, by attending as a witness at, the time and place therein mentioned, and from day to day during the Circuit Court in tbe said writ specified, or until the Court, or the party subpoenaing you, duly discharged you? Answer fully. E. COWEN, Att'y for Pl'ff. These interrogatories will be in many cases sufficient, where the attachment is not made returnable at the Circuit, and will in all cases, we believe, be sufficient for a guide to the practitioner. Instead of proceeding by attachment against a witness, the party has his election of two other remedies. One, by an action under the statute for the penalty of fifty dollars, for which a witness is liable for disobeying a subpoena ; the other, an action for any and all damages which the party may have sustained in consequence of the disobedience, by the witness, of the command contained in the subpoena. The proceeding against a witness by attachment is a bar to an action against him for damages, provided the party accept the fine imposed by the Court upon the witness. 2 E. S., 4th ed., 771, § 21, It would seem, however, that the party is at liberty to try the 368 EXAMINATION OP A PARTY AS A WITNESS, ETC. experiment of proceeding by attachment, and then, if the amount of the fine is not in accordance with his idea of his legal rights, so far as the amount is concerned, he may refuse to accept the same, and resort to his action for damages ; and, in any event, the action for damages is no bar to an action for the penalty, nor do we perceive that the action for the penalty is barred, or in any way affected, by the proceeding against a witness by attachment as for contempt, even though the fine imposed is accepted by the party aggrieved. CHAPTEE IV. EXAMINATION OF A PARTY AS A WITNESS IN HIS OWN FAVOR. Under the present practice in this State, a party may be exam- ined at the trial, in his own behalf, by giving ten days' previous notice, specifying the points in relation to which he will be exam- ined, and this rule is also extended to persons for whose immediate benefit the action is prosecuted or defended, such persons being placed upon the same footing as parties whose names appear upon the record as such. Code, § 399. This section of the Code will present for the consideration of the practitioner, when preparing for the trial of an action, two ques- tions ; First. "Who is a person for whose immediate benefit an action is prosecuted or defended, within the meaning of the Code ? Second. What will be a sufiicient notice, specifying the points as to which a party will be examined, to entitle him to be sworn in his own behalf at the trial ? It is now well settled, that the words, for whose immediate benefit an action is prosecuted or defended, are limited, in their significa- tion, to persons who would be bound by the judgment in the action ; or, in other words, where the record would be evidence against them, in the same manner as if they had been named as parties in the action. As, for instance, where the subject matter of the action belongs to a trust-fund, or is claimed as belonging to it, and the action is prosecuted or defended by the trustee, the person beneficially interested in the trust (usually called, in legal proceedings, cestui que trust) would be bound by the judgment; EXAMINATION OF A PARTY AS A WITNESS, ETC. 369 SO in an action against the sheriff for property levied upon hy virtue of an execution, where the plaintiff in the execution indem- nified the sheriff for the levy, the plaintiff in the execution would be incompetent as a witness at the trial ; because, like the cestui que trust, in the case above supposed, he is not only directly inter- ested (which alone would not render him incompetent), but he would be bound by the judgment. See opinions of Bosworth and Duer, Judges, in Catlin v. Hansen, 1 Duer's E., 309. There is one case where a person does not stand in such a rela- tion to the action as to be (in the language of the law) bound by the record, and yet he would be incompetent as a witness, as being the person for whose benefit the action was defended. For instance, where the person, for whose benefit an accommodation note is made, in an action brought upon the note against th.e maker, indemnifies the defendant in such action, and employs an attor- ney, who interposes and conducts the defense by his direction, he would clearly be incompetent as a witness on the trial of the action. Catlin v. Hansen, above cited. And, in an action brought by a receiver (appointed in proceed- ings supplementary to execution) upon a note or other claim belonging to the judgment debtor, such debtor is incompetent as a witness upon the trial of the action ; he is not only interested as the real party in the action, the judgment, when collected, being first to pay the debt and costs adjudged to the plaintiff in the action in which the receiver was appointed, including costs of the proceedings supplementary to execution, and the balance to be paid directly to him ; but, in addition to this, he would be bound by the judgment. Should the defendant prevail in the action, the record would be a bar to any future action for the same cause, iu favor of the judgment debtor, or those claiming under him. Van Duzen v. Worrell, 18 Barb., S. C. E., 409. And the § 399 of the Code will not be so construed as to make the words, we have been above considering, render a witness incompetent in any case which does not come strictly within the rules above laid down. The very able and well-reasoned opinion of Justice Harris, in Davidson agt. Miner, 9 How. Pr. E,, 524, is a good illustration of the strictness, as well as of the propriety, of the rule under the statute, that a witness shall not be excluded ou the ground of interest alone. We cannot state this case more 370 EXAMIKATION OF A PAETT AS A WITNESS, ETC. concisely (and do justice to it) than is done by the learned judge who decided it. We, therefore, quote his opinion : " Davis clearly had a direct interest in the event of the suit. He had sold the cause of action, for which the suit was brought, to the plaintiff, and had agreed that the payment of the price should depend upon the plaintiff's success in collecting the demand. If the plaintiff never collected anything, he never would be liable to pay Davis anything. When he should succeed in collecting the demand, then, and not till then, would Davis have a right of action against him for the $50, which he had agreed to pay as the con- sideration of the sale. A clearer case of disqualifying interest at common law could scarely be put. The witness had agreed, that his right of action against the plaintiff should depend upon the plaintiff's success in this suit. The witness must inevitably gain or lose by the result of the trial in which he is called to testify. " But the Code has declared, that no witness shall be excluded on account of his interest in the event of the suit. To sustain the ruling at the trial, it must appear that it is, in fact, his suit in which he is called to testify. Of this there is no evidence. It is the plaintiff 's suit. He holds the demand upon which the action is brought, by a valid transfer. He alone has the right to take the conduct of the suit, and, if successful, receive the fruits of it. He alone, if unsuccessful, is liable for the costs. In no proper sense of the term can it be said, that the suit is prosecuted for the benefit of Davis. All that can be said is, that, if the plaintiff recovers the demand in suit, he will owe the witness $50 — if he does not, he will owe him nothing. Thus, the witness has an interest in the event of the suit, but has no interest in the suit itself. He cannot discharge the cause of action. He cannot receive the recovery, if it should be had. It is not prosecuted for his imme- diate benefit. It was error, therefore, to reject Davis as a wit- ness." The remaining question under this section is : What notice is necessary? According to the Code, the party to be examined in his own behalf must give a notice, specifying the points upon which such party or person is intended to be examined, and this must be served ten days previous to the trial (Code, § 399). A very general practice has prevailed in some, if not most, of the judicial districts of the State, of giving a general notice that the party would be examined, as a witness, relative to every allega- tion in the complaint and answer in the action, and as to every question of fact which shall arise upon the trial, or in some other words quite as general and uncertain as the above. We cannot regard this otherwise than as a gross departure from the practice EXAMINATION OF A PARTY AS A WITNESS, ETC. 371 intended to be established upon this subject by tbe Legislature, ■where tlieyused the plainlanguage, specifying ihepoinisujoonwhich, ^c. And we do not believe that the practice above alluded to will ever be sustained by any well-considered judicial opinion. If the Legislature had intended that the notice should only inform the party, the provision would simply have been, that the party would be examined as a witness upon the trial ; or, if they had intended that notice should be given of the particular issue as to which the party would be examined, they would have said so. On the contrary, the law requires the points to be specified ; and, for the Courts to adopt a different rule, is, in effect, to say, that the Legislature were incapable of using language which would express their intention, and we hold that they are not at liberty thus to speak judicially, whatever may be their opinion upon that subject. In Benham agt. The New York Central R. E. Co. (13 How. Pr. E., 198), the General Term of the Eighth District— Mullett, Justice — delivering the opinion of the Court, a notice was held to be insufficient to allow the party to be sworn as a witness, which was in the following form : " Take notice, that, on the trial of this action, Willis Benham, the assignor of his interest in the claim against the above-named defendants, upon which this action is brought, will be examined as a witness, on the part of the plaintiff, as to the liability of the above-named defendants, and, also, generally, as a witness in said action." And, in Pattison agt. Johnson (15 How. Pr. E., 289), the notice was, that the party would be examined " on each and every alle- gation contained in, and fact put at issue by the pleadings therein." Justice Marvin, in his opinion in this case, inquires : " Are any points, upon which he intends to be examined, specified in this notice?" and he replies : " It seems to me not." And he further remarks, that he considers the notice, in this case, more indefi- nite than that in the case of Benham agt. The New York Central E. E. Co., above cited, and the notice was held insuffi- cient. The same, in substance, was also held in Falon agt. Keese (8 How. Pr, E., 341), where the question is fully discussed by Hand, Justice. We think those cases contain the true doctrine, and that a notice as general as the pleadings themselves is wholly insufficient. It need not contain details like abill of particulars ; but 372 BXAMIHTATION OF A PARTY AS A WITNESS, ETC. it should be as specific, as to the subject or fact to which the party will be examined, as a bill of particulars is in stating the items of an account. The notice should be in the following form : SUPREME COURT. A. B. 1 agt. V C. D. ) Take notice, that the plaintiff will be examined as a witness, on the trial of this action, as to the execution of the agreement in the complaint mentioned, and of the doing of the labor required by said agreement to be performed by him. And, also, as to the payments claimed in the answer to have been made by the defend- ant to him, and as to each item of the account set up by the defendant, as a counter-claim, in his answer. And, also, to prove that the defendant did not furnish building materials of the quality, or at the time, required by the agreement aforesaid. Yours, &c., G. STOWE, Att'y for Pl'ff. To H. A. Beigham, Esq., Att'y for Deft. This notice is required to be served at least ten days before the trial, and should be served, like the other papers in the action, upon the attorney for the defendant, and the examination of the party will be confined to the points specified in the notice. And where one party is examined in his own behalf, upon notice, the other party may be examined also, without notice. Code, § 399. The parties, when thus called, are sworn generally; but, when called in pursuance of notice, the examination will be confined to the points specified in the notice, but the cross-examination is not thus limited. Either party would have a right to call his adver- sary as a witness to any particular point, or generally, in the action (Code, § 390), and of course his examination cannot be limited by the party offering himself as a witness in his own behalf But if, on the cross-examination, testimony is called out not relating to the matter as to which the direct examination was made, or for the purpose of discharging a liability which the tes- timony on the direct examination tended to create, then the party might be re-examined relative to the matter to which the cross- examination had been thus extended. And in case a party is called, upon notice, in his own behalf, as EXAMINATION OF A PARTY AS A WITNESS, ETC. 373 a witness, his adversary may be sworn, and examined generally, as a witness in his own behalf; the Legislature have made no limit to the examination of a party in such case. The language of the Code is, " may offer himself as a witness in his own behalf, and shall be so received." Had any limit to this examination been intended, it certainly would have been expressed, because in the same section (899 of the Code), where a party is called in his own behalf because the assignor of the claim against him has been examined as a witness, his examination has been confined to the matter as to which the assignor was examined. Where, however, the party offering himself as a witness in his own behalf (because his adversary has been examined) travels beyond the subject to which the testimony of his adversary related, it seems but just to allow the party first examined to be recalled, and examined as to the matters to which the testimony of his opponent had been extended beyond the limit of the direct examination of the party first called in his own behalf We believe this is the practice, although we are not aware that it has been established by any reported decision, or written rule, of the Court. Where the assignor of a claim, which is counted upon or set up as a counter- claim in an action, is called and examined as a witness, the oppo- site party, or person in interest, " may offer himself as a witness to the same matter in his own behalf, and shall be so received, and to any matter that will discharge him from any liability that the testimony of the assignor tends to render him liable for" (Code, § 399), and this examination should be limited strictly by the lan- guage of the Code. Potter agt. Bushnell, 10 How. Pr. E., 94. Where the assigned claim set up in an action, as against an assignee, executor, or administrator, without ten days' previous notice of his intention to be examined, specifying the points to which he would be examined (as in case of a party examined in his own behalf), and he cannot be examined at all, unless the opposite party to the claim is living, and his testimony can be procured upon the trial. Code, § 399. The language of the above section is somewhat vague ; it is, " unless his testimony can be procured for such examination." We think this means, unless the attendance of the party to the claim can be procured at the trial. Ten days would scarcely take the testimony in any other manner, and, besides, the assignor must be first examined for by it the other examination is limited. 10 374 OF THE TKIAL OF ACTIONS. CHAPTER V. OF THE TRIAL OF ACTIONS. We have seen, in a former cliapter, that, preparatory to the trial of an action at the Circuit, the Code (§ 256) requires a note of issue to be served upon the Clerk. Prom these notes of issue the Clerk prepares a calendar, which is nothing more than an arrangement of all the causes which have been noticed for trial at that Circuit, according to the dates of the time when the last plead- ing was served in each action, as appears by the notes of issue served upon the Clerk, placing the oldest issue at the top of the list, or head of the calendar. A copy of this calendar, thus pre- pared, is furnished to the Judge who holds the Circuit, and the actions are called for trial according to their order upon the calen- dar, the oldest cause being first called. If there is any mistake in the date of the issue, or if an action by any other means does not stand in its proper place upon the calendar, the same may be cor- rected by motion on the first day of the Circuit ; and motions to correct the calendar will not be heard except upon that day. The calendar being thus made up and corrected, although the causes are required to be arranged according to the dates of the several issues (Code, § 256), is not conclusive upon the Court. Indeed, we think there is quite as wide a discretion given to the Court now, as was ever exercised by it before the Code, as to the man- ner of calling, reserving, giving preference to, or otherwise dispos- ing of the actions upon the calendar for trial at the Circuit. By section 255 of the Code, issues of law are to have a preference upon the calendar, unless otherwise ordered by the Court. This is somewhat in conflict with section 257, which is in the words following: " The issues on the calendar shall be disposed of in the follow- ing order, unless, for the convenience of parties or the dispatch of business, the Court shall otherwise direct : " 1. Issues of fact to be tried by a jury ; " 2. Issues of fact to be tried by the Court; "3. Issues of law." But for the words in the above section, "unless, for the conve- nience of parties or the dispatch of business, the Court shall other- OP THE TRIAL OF ACTIONS. 375 wise direct," that portion of § 255, giving issues of law a prefer- ence upon the calendar, would be repealed by the conflicting provision of § 257, which requires trials to be disposed of in a given order, namely : 1. Issues of fact to be tried by a jury ; 2. Issues of fact to be tried by the Court, And, lastly, issues of law. The exception to this provision, very wisely made by the Legis- lature, leaves the matter precisely as it would have been if § 257 and the part of § 255, above referred to, had never been passed, that is to say, the Court has entire control of the calendar, and may dispose of the business upon it in any manner which, in his judgment, shall be best calculated to facilitate the business of the Circuit, and thus advance the interests of parties. The practice, with reference to the order with which the business of the calendar is disposed of, differs now, as formerly, in different circuits, and sometimes different judges of the same district differ in their practice in this respect, and, perhaps, no rule could be laid down which should be adhered to in all cases. From our observation of the practice, we are inclined to think, as a general rule, that the interest of parties is best subserved by trying causes in the order in which they stand upon the calendar, without regard to whether they are issues of law or issues of fact. This rule gives parties an opportunity of having their causes tried upon the old principle of first come first served, and there is no reason for adopting a different course, except the inconvenience and expense of keeping jurors in attendance to listen to law argu- ments or trials of questions of fact before the Court alone. But, should the course be taken to give jury cases a preference upon the calendar, in many counties an issue of law would never be tried at the circuit. When a cause is regularly called upon the calendar, there are four ways in which it may be disposed of, if the issue is one of fact. First. The Court, on motion, may put it over the circuit, or reserve it for a future call. Second. By consent of parties, it may be tried by the Court. Third. It may be tried by a jury, and Fourth. It may be referred, if the pleadings show upon their face that the trial will require the examination of a long account, 376 OF THE TRIAL OF ACTIONS, SO that the Court can see it by inspection. A motion to refer in such case being always in order when the action is called upon the calendar. If the issue is one of law, it may, by consent of parties, be referred ; or, secondly, it may, on application to the Court, be re- served, or put over the term, or it may be brought to trial, wliich is an argument before the Court of the questions raised by the pleadings. No jury is ever empanelled or witnesses examined upon tbe trial of such an issue. If the issue is one of fact, and the action Has been noticed for trial and inquest, on the morning of the second day of the circuit, or on the morning of any day thereafter, during the sitting, the plaintiff may move the cause as an inquest, without regard to its place upon the calendar, and an inquest will be taken unless the defendant files an affidavit of merits with the clerk, and serves a copy thereof on the plaintiff's attorney before a jury has been empanelled for the purpose of taking the inquest. Eule 12 of Supreme Court. The affidavit of merits to prevent an inquest must be in the same form as required by the former practice of this Court (Jones V. Kussell, 3 How., P. E., 324 ; Eickards v. Swetzer, Id., 418), and is as follows : SUPEEME COUET. Eensselaer County, ss. : — C. D., being duly sworn, says, he is the defendant in the above-entitled action, and tbat he has fully and fairly stated the case in said action to U. Dexter, Esq., of the city of Troy, his counsel in said action, and that he has a good and substantial defense upon the merits in said action, as he is advised by said counsel after such statement, and verily believes. Sworn, &c. C. D. This affidavit must be made by the party, unless an excuse is shown upon the face of the affidavit for its being made by a third person who has a knowledge of the facts. It must state the ad- vice of counsel, see Rules 20 and 36, and must be filed with the clerk, and a copy served upon the plaintiff's attorney. The taking of an inquest is an ex parte trial of the cause in which, if the defendant appear, he waives any irregularity in the OF THE TRIAL OP ACTIONS. 377 taking of the inquest, and, by appearing, has no other right or privilege than that of cross-examining the witnesses called by the plaintiff. If the defendant do not appear, the inquest may be taken before the Court without a jury, if the action is founded upon contract. Code, § 266. In taking an inquest before the Court, it should be observed, that the right so to proceed depends upon the failure to appear, as wherever he appears, as we have seen he has a right to do for the purpose of cross-examining the witnesses, the trial must be by jury. Consequently, an inquest taken at the circuit, after the jury had been discharged, is irregu- lar. See opinion of Justice Harris in Dickinson v. Kimball, 1 Code Eep., 83, approved by Sill, Justice, in Harris agt. Davis and Lansing, 6 How. P. E., 118. If, when a cause is regularly called upon the calendar, it is moved by the party noticing it, and no sufiScient cause be shown for reserving or postponing it, the Court will proceed to the trial. If an issue of law, by hearing the arguments of counsel for the respective parties. If an issue of fact, unless the parties consent to waive a jury, the next step in the regular proceeding is the empanelling of a jury. If either party desires to put the cause over the term, or the day, the application must be made before the jury is empanelled. Such motion is founded upon an affidavit, which must state, if the application is made by the defendant, that he has a good and substantial defense upon the merits, as he is advised by counsel, and verily believes, after stating the case to such counsel. It must also show the facts upon which the motion is founded, which may be, that the attorney or counsel of tiie party has been taken suddenly ill, and that he has no other counsel who has such a knowledge of the facts as to enable him safely to go on with the trial. 3 Young & Jerv., 381. The usual ground, however, of the motion, is the absence of some material witness, and then the affidavit must show that the wit- ness is material, and that the party cannot safely proceed to the trial of the cause without the benefit of his testimony, and this must be on the advice of counsel, after stating to him what is ex- pected to be proved by the witness. It must also show that the vntness has been duly subpoenaed, or that every reasonable and proper effort has been made to subpoena him, so as to explain to the satisfaction of the Court that the omission to subpoena the witness, or to have his attendance, has not been in any manner 378 OF THE TEIAL OF ACTIONS. owing to the culpable negligence of the party. And it must fur- ther show, that the party has good reason to expect that he shall be able to procure the attendance of the witness at the next circuit, or upon a subsequent day during the same circuit (as the case may be), and that he intends to procure the attendance of said witness upon the trial of the action. It must also appear from the affidavit that the witness is not in attendance, and his name should be stated. In addition to this, if the Court have reason to suspect that the application is not made in good faith, the party may be required, in the discretion of the Court, to show what the issues are in the action and what he expects to prove by the witness. 3 Burr. R., 1518 ; 1 W. Bl. 510, 436. The affidavit, where the application is made by the defendant, should be in the following form : SUPREME COURT. Eensselaer County, ss. — C. D., being duly sworn, says, he is the defendant in this action, and that he has a good and substan- tial defense upon the merits therein, as he is advised by Gt. H., of the city of Troy, his counsel in said act-ion, after fully and fairly stating the case therein to said counsel, and as he verily believes; and that L. R. is a material witness for deponent, without the benefit of whose testimony deponent cannot safely proceed to the trial of said action, as he is advised by said counsel, after fully and fairly stating to him what he expects to prove by said witness, and as deponent verily believes ; and deponent further says, that the said witness is not in attendance, and that, two weeks before the first day of the present Circuit, deponent went to the residence of said witness, in the town of Berlin, in the county of Rensselaer, for the purpose of subpoenaing him to attend as a witness in said action, at said Circuit ; that he there learned that said witness had unexpectedly left home the day before, in order to go to the State of Ohio, and intended to remain there about two months ; and deponent further says, he had no knowledge that said witness was going to be absent from home, until he learned it when he went to subpoena said witness, as aforesaid ; and deponent further says, he expects to be able, and intends to procure the attendance of said L. R. as a witness in this action at the next Circuit Court, appointed to be held in and for the county of Rensselaer. Sworn, &c. C. D. OP THE TEIAL OF ACTIONS. 379 If the applicatiou is made by the plaintiff, the affidavit of merits, of course, will be omitted, and the reason for not subpoenaing the witness, or the fact that he has been subpoenaed, in short, all the circumstances showing the absence of the witness, and that it is without any fault or neglect of the party making the application, should be fully set out in the af&davit, according to the circum- stances of each particular case. The order to put the cause over is ordinarily upon terms, and these terms are usually the payment of the costs of the Circuit, which are the fees of the several witnesses which the adverse party has in attendance, the sheriff's. fee for summoning the jury, and ten dollars for the cause being necessarily or the calendar and the trial postponed. Formerly, the plaintiff had no occasion to move to put off a trial at the Circuit, as he alone had a right to notice the cause, and when it was called upon the calendar, he moved it or not, at his own election. And if the plaintiff did not bring a cause to trial, or did not notice it at a Circuit at which it might have been noticed and tried, the remedy of the defendant was a motion for judgment as in case of non-suit. This proceeding is unknown to our present practice, and, as both parties may now notice the action for trial, the plaintiff' is as often driven to his motion to postpone as the defendant. If, however, the action is noticed for trial by one party only, he is at liberty to move it or not, at his election ; and if his adversary wishes the cause brought to trial, he must charge his inability to have it brought on to his own folly in not noticing it for trial. The postponing the trial of an action is sometimes pre- vented by the party stipulating to admit on the trial the facts expected to be proved by the witness. It is not enough to admit that the witness will so swear ; the admission must be that what he is expected to testify to is true. 7 Cowen, 369. If a motion to put over the cause is granted, and a bill of the costs is made up, and a copy of it, with an affidavit of the attendance of witnesses, is presented to the party, and payment of the costs demanded, the Court will allow the action to be brought to trial, if they are not paid. It is, perhaps, proper here to observe, that the trial of an action is the judicial examination of the issues between the parties, whe- ther they be issues of law or of fact. Code, § 252. The empanelling of a jury is one of the most important pro- 380 OF THE TRIAL OF ACTIONS. ceedings connected with the trial of an action, and as well the rules of the common law as legislative enactments throw every guard around it, which is adjudged in any manner necessary or useful in procuring a fair and impartial jury. An objection may be made to the entire panel of jurors summoned ; or it may be made to the jurors individually as they are severally called, or at any time before the jury has been fully empanelled for the trial of the action. This objection, whether it be to a single juror or to the entire panel, is called a challenge. Challenges are first to the array for principal cause ; second, to the array to the favor; third, challenges to single jurors for prin- cipal cause ; fourth, to single jurors to the favor. A challenge to the array for principal cause was formerly based upon some objection to the ofi&cer summoning the jury. Now, however, where the jurors, belonging to the regular panel, are in attendance, no such ground of challenge can well exist, as the jurors are drawn by the clerk. Any fraud, or any illegal pro- ceeding, or substantial error in the drawing of the jury, would now be a principal cause of challenge to the array. And where the regular panel of jurors are so few of them in attendance that the Court direct the sheriff to snmmon talesmen to fill the panel for the term, all the causes of challenge to the array which existed under the former system of summoning jurors are appli- cable. A challenge to the array is never for any fault of or objection to the jurors themselves, but must be for fraud, or substantial error, in the drawing, as above stated, or for some partiality or default in the officer summoning the jury, or rather the talesmen, who are summoned to fill up the panel in consequence of the ncm. attendance of jurors drawn upon the regular panel. Co. Litt., 156, 158 ; 8 Bl. Com., 359. The most usual grounds of the principal challenge to the array, according to Judge Cowen (See 2 Cowen's Treatise, 3d ed., 343), are as follows, viz.: "that the party nominated any juror sum- moned ; that the sheriff is liable to be distrained upon by the party, or is his servant, counsellor or attorney, or acts as his advo- cate (10 John., 107 ; Cowp., 112), or if the sheriff be any way interested (against the party challenging) in the question to be tried, and this, whether it be in the cause to be tried or in any other cause or matter depending on the same point of contro. OF THE TBIAL OF ACTIONS, 381 versy ; or if either party has brought an action against the sheriff, or there be any action depending between him and the party (whether as plaintiff or defendant) which implies malice, such as slander, battery and the like. And consanguinity {relation hy blood) between the sheriff and party, however remote, is also a principal cause of challenge (Foote v. Morgan, 1 Hill, 654). Even relationship in the ninth degree has been held a sufficient objec- tion. So, affinity by marriage, between the party and the consta- ble's cousin, or the constable and the party's cousin, has been held a ground of principal challenge, but the challenge must show how they are related (Grab. Prac, 2d ed., 801, 2). Even if strangers make the panel, without the interference of the party in the cause, or his agent or friend, though it be not favorable to one side or the other, yet it is a principal cause of challenge to the array." Any fact which would raise a strong presumption of partiality is a principal cause of challenge to the array (Co. Litt., 156). It should be observed, however, that the party, in whose favor the prejudices or partiality of the officer summoning the jury would operate, cannot challenge the array for that cause. This objection can only be taken by the party who would be supposed to be injuriously affected by the fact which constituted the ground of challenge. We have observed above, that under our present system a chal- lenge to the array for principal cause, where there were no tales- men upon the panel, could not be made except upon the ground of fraud or substantial error in drawing the jury, and it is pro- vided by statute, that " it shall not be a cause of challenge to any panel or array of jurors, in any cause, that the clerk of the county who drew them was a party or interested in such cause, or was counsel or attorney for, or related to either party therein." 2 E. S., 4th ed., 667, § 66. And in relation to the sheriff, the Legislature have made the following provision : It shall not be a good cause of challenge to the panel or array of jurors, in any cause, that the sheriff by whom they were summoned was a party, or interested in said cause, or related to either party therein, unless it be alleged in such challenge, and be satisfactorily shown, that some of the jurors drawn by the clerk were not summoned, and that such omission was intentional (lb., § 67). Query — Does this apply to any case 882 OF THE TRIAL OF ACTIONS. in sucli manner as to change the right of the party to challenge the array, where the panel is composed partly of talesmen selected by the sheriff? We think it does not. It is also enacted, that, " In penal actions for the recovery of any sum, it shall not be a good cause of challenge to the jurors summoned, or to any officer summoning them, that such juror or officer is liable to pay taxes in any town or county which may be benefited by such recovery." lb., § 68. A challenge to the array for favor is for facts, which are not deemed in themselves conclusive evidence of partiality, but which imply, at least, a probability of bias or partiality in the sheriff, and from which the triers may infer that the officer is not indifEerent (Co. Litt., 156 ; Grah. Prac, 2d ed., S02) ; as, if there is a relation by marriage between the cousin or son of the sheriff and the party ; that the party is subject to be distrained on by the sheriff; or that the sheriii' hath an action of debt, or the like, against the party (Co. Litt., 156) ; that the sheriff and party are fellow-serv- ants (Dyer, 367, pi. 40) ; or the party servant to the sheriff (Cro., Eliz., 531) ; and so of any cause, from which the triers may infer that he is not entirely indifferent between the parties. The third and fourth classes of objections to the jury are com- monly called challenges to the polls, and now in addition to the challenge to a single juror, for cause and to the favor (as con- sidered below), there is given by statute to each party a peremp- tory challenge of two of the jurors called. 2 R. S., -ith ed., 667, §71. The challenges to the polls cannot be made until the jurors are drawn to try the action, or at least until the one to whom the chal- lenge is made is drawn and called. The drawing of the jury is as follows: tlie clerk places the names of all the jurors on the panel in a box (unless a jury is out, considering what verdict to render, and then the residue of the panel only will be placed in the box), and draws therefrom until twelve jurors, who appear, and against whom no challenge is made and sustained, are drawn, and these twelve foi-rn the panel for the trial of the action. In civil actions it is usual to wait until twelve jurors have been drawn from the box before any challenges are made, and then, as we have seen, the challenges are for principal cause, to the favor, and peremptory. It should be remembered, however, that the challenge cannot be made to a single juror, which might have been OF THE TEIAL OF ACTIONS. 883 made to the array, (Co. Litt., 156, b ; lb., 157, b). And a chal- lenge to the array cannot be made after making a challenge to the polls (Co. Litt., 158, a), but a challenge to the array may be made at any time before the jury is fully empanelled, and before any other challenge has been made. The order in which challenge to the polls should be made is as follows : First. Challenge for principal cause ; which is, that the juror does not possess the requisite property qualifications, that is, that he is not a freeholder in his own right or in the right of his wife, and is not assessed for personal property to the amount of two hundred and fifty dollars ; that he is an alien (Co. Litt,, 156 ; 6 John., 332 ; 4 Dall., 353) ; that he is under twenty-one, or over sixty years of age (2 E. S., 4th ed., 656, § 5) ; or that he is an idiot or lunatic, Gilb., C. B., 95. One of the above-mentioned causes of principal challenge is an objection, which the juror may make himself to serving, and we have seen it may also be made by the party. There is another ground of challenge to a juror for which he may be set aside by the Court, although no challenge be made by either party ; that is, that the juror is intoxicated or drunk, and therefore unfit to serve. Bullard and Lord against Spoor, 2 Cowen's E., 430. There is another cause of challenge, called, in the old books. Propter delictum; that is, where a juror has been convicted of any crime or misdemeanor that affects his credit and renders him infamoiis. 1 Sel. Pr., 460. The most common ground for principal challenge, however, is what Lord Coke calls Propter affectum^ which is thus briefly and fully described in Sellen's Practice. Where the cause of challenge carries with it, prima fade, evident marks of suspicion, either of malice or favor ; as that a juror is of kin to either party ; that he has been arbitrator on either side ; that he has an interest in the action ; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney. AH 4hese are principal causes of challenge, which, if true, cannot be overruled ; for jurors must be omm exceji^ione ?nayore. 1 Sel. Pr., 460. An- other very common principal cause of challenge to the polls is, that the juror has expressed or formed an opinion as to which 384 OF THE TRIAL OF ACTIONS. party should prevail, founded upon a knowledge of, or upon hav. ing heard a statement of what was alleged to be the facts in the case. The People v. Mather, 4 Wend. R., 229 ; Freeman v. The People, 4 Denio's E., 9. Challenges to the favor are the second in order, and may be for any cause, however slight, which the triers may think would in- fluence the juror in favor of a party, or which would prejudice him against the party making the challenge. The challenge which is the third in order at the circuit is the peremptory challenge, and this may be resorted to after a chal- lenge for cause, or to the favor, has been made, and found against the party challenging. We have seen, however, that each party is limited to two peremptory challenges. The manner of trying the question of challenge is as follows : Challenges for principal cause are tried and determined by the Court. Challenges to the favor are determined by triers sworn for that purpose, unless the parties consent that the Court shall act in place of triers. Lastly, where the challenge is peremptory, nothing remains but for the juror to stand aside and have another called in his place. If, in determining the challenge for principal cause, there is a difference of opinion about the facts, the challenge becomes one to the favor, so far as the method of trial is concerned, at least, as the Court do not, except when acting in the place of triers, decide questions of fact. And whenever it appears that there is to be a dispute upon a question of fact, the Court will have triers sworn, if either party desires it. If triers are not asked, the Court, in deciding the question, will be deemed to act in place of triers by agreement between the parties. The People agst. Mather, 4 Wend., 229, where this whole subject is considered and deter- mined by Marcy, Justice, delivering the opinion of the Court. For instance, a juror says he has expressed an opinion upon the only question in an action, and on being farther examined states, that that opinion was formed upon newspaper reports of the facts, and that if those reports were not sustained by the evidence, that he did not think they would influence his judgment, in other words, he thought he would be governed by the evidence in the case ; in such case it was held that the challenge became one to the favor instead of for principal cause, and that triers should have been sworn. But, as neither party called for triers, it was held to be a consent that the Court act in their place, and his OP THE TRIAL OF ACTIONS. 385 finding, that the juror was not indifferent, was held to be a finding by the Court acting instead of triers by agreement of the parties. And we think it may now be regarded as well settled, so far as a strong expression of the opinion of able jurists can settle such a question, that the man who has expressed an opinion either way, upon the question at issue in an action, should not be regarded as standing indifferent between the parties, whatever may be his own opinion as to the effect which his previously-formed opinion would have upon his mind in determining the action, and the Court, we think, in such case, should so instruct the triers. The People agst. Mather. 4 Wend., 229. And by a recent decision in the Court of Appeals, where a juror, being himself examined as a witness, "testified that he had formed an opinion and expressed it," but that he had no fixed opinion, none which could not be removed by the evidence, it was held that this constituted a sufficient principal cause of challenge, and that deciding that it was not so was ground of error upon which the judgment should be reversed. Cancemi v. The People, 16 K Y. R. (2 Smith) 501. Challenges to the favor are determined by triers, who are chosen as follows : If the juror challenged is the first one drawn, the Court appoints two triers, which is usually done by directing the Clerk to draw two names from the box of jurors ; or, if twelve jurors have been drawn from the box before the challenge is made, then the second and third jurors called would be sworn as triers. If the juror challenged is the second one drawn, then the first and third jurors would be sworn as triors. If any other than the first or second drawn juror is challenged, then the first two drawn are sworn as triers. Each challenge is independent of every other, and is tried, in all respects, as if it was the first chal- lenge made to any juror called in the action. The triers are sworn to find whether the juror challenged stands indifferent between the parties in that action, and their verdict is, that they find the juror indifferent or not indifferent, as the case may be. If they find him indifferent, he remains upon the panel ; if not indifferent, he stands aside, and another juror is drawn in his place. The calling and examining witnesses is the same, whether the challenge is for principal cause, or to the favor. The party is at liberty to prove the facts upon which his challenge is founded, by any wit- ness who knows the same. The usual course, however, is to swear the juror challenged, and examine him for the purpose of 386 OP THE TRIAL OF ACTIONS. proving the facts upon which the party relies, and any question may be put to him, the answer to which, would not tend to crimi- nate or disgrace him. Challenges are usually made, tried, and disposed of, without any formal issue, or any statement, except the counsel says he challenges such a juror for principal cause, or to the favor, as the case may be. If to the favor, triers are sworn, unless it is agreed to submit the question to the Court, which is by far the more com- mon practice. The witnesses, or the juror himself, having been sworn and examined, the ground of challenge is for the first time stated by the witnesses, who testify to the facts which constitute the same. The question presented is then discussed and decided, and a jury formed for the trial of the action, without any. unneces- sary delay. In strict practice, the party making the challenge may be required to state, in the first instance, the ground of his challenge, and then the opposing counsel must either demur to it, which admits the truth of the allegation, or he must deny it, and thus fi-ame an issue of fact to be tried, which will, of course, depend upon the evidence, and, if the fact alleged as the ground of challenge is proved, the opposite party is estopped from deny- ing that it is a sufiicient cause of challenge ; had he intended to raise that question, he should have done so by demurrer. Free- man V. The People, 4 Denio's E., 9. But this practice is very rarely resorted to in civil cases ; indeed, the entire practice, rela- tive to challenging jurors — we mean now the actual practice — ^dif- fers very much in civil and criminal cases, especially in capital cases, where jurors are sworn as they are called; and if either party intends to challenge the juror, it must be done before he is sworn, and, of course, before a second juror is drawn from the box. And, if the first juror called in such case is challenged, the Court appoints two triers, and they officiate as triers, in all cases of challenge, until two jurors are sworn upon the panel, after which sucli jurors are the triers. But, if the first juror is chal- lenged, and triers appointed, and he is afterwards sworn as a juror, or, if any other juror be called and sworn, and another juror is challenged before a second one is sworn, then three triers are sworn, viz. : the juror sworn, and the two triers appointed by the Court ; and so, if no challenge is made until one juror has been sworn, and only one, then three triers are sworn, the Court OF THE TRIAL OF ACTIONS. 387 appointing two to act with the juror who has been sworn ; but as soon as two jurors have been sworn, they constitute the triers. But this practice is certainly not generally followed in civil cases. When the jury is empanelled, the party holding the affirmative of the issue proceeds to open his case to the jury. The opening is a brief statement of the issues to be tried and the facts expected to be proved, to sustain the issue for the party opening. After the opening, the counsel proceeds to call and examine the wit- nesses to sustain his side of the issue, and he should call all the witnesses to the facts, necessary to sustain his case, before he rests ; because, as a general rule, he will not be permitted to call any witnesses to facts, which he has already given evidence in support of, after the opposite party has rested his case. He may, however, call witnesses to rebut the testimony offered by his adversary, and the Court have a discretionary power to allow a party to call witnesses to the same subjects, relative to which he had first given evidence, and thus open again the entire case. But, as a general rule, the plaintiff opens the case, and then calls all the witnesses he expects to call to sustain the issues on his side, and then rests, and the defendant calls all the witnesses on his side, and rests. Then tbe plaintiff is allowed to introduce any evidence he may have to rebut the testimony introduced by the defendant. And when the plaintiff again rests, if any new fact or subject has been elicited in the course of the introduction of his rebutting evidence, the defendant in turn may introduce evidence as to such new matter ; and then the testimony upon the trial is closed. It should, however, be observed here, that the defendant may call witnesses to impeach any witness called by the plain- tiff; and so the plaintiff, in addition to rebutting evidence, may impeach any witness called by the defendant, and the defendant again may impeach the rebutting witnesses called by the plaintiff. When witnesses are called to impeach a witness called by the opposite party, the Court usually (if the impeachment is of the general character of the witness) limits the number of witnesses to be called to a specified number to be called by each party ; that is, he limits the number of witnesses to be called to impeach a witness, and then confines the opposite party to the same number. The limit is generally five or six witnesses on a side. They have, however, in some instances, been limited to three on a side. This is upon the ground that, if three intelligent persons, who are 388 OP THE TRIAL OF ACTIOKS. acquainted -with the witness, are called and examined, the Court or jury will be quite as well prepared to judge of the character of the witness as they would be if twenty witnesses were examined on each side. When the testimony is closed, one counsel upon a side is permitted to address the jury, commenting upon the evi- dence, and applying it to the issues and the law of the case. The plaintiff's counsel is entitled to close the argument ; that is, if he holds the affirmative, and this question is determined by an inspec- tion of the pleadings in the action. If the complaint (for illustration) is upon a promissory note, and the answer admits the making and delivery of the note, but sets up as a defense that he has paid it, at a particular time and place, and in a manner specified in the answer, then the defendant holds the affirmative of the issue, because it is not necessary for the plaintiff to call a witness to entitle him to a verdict for the whole amount that he claims, unless the defense is proved (3 Camp., 366; 2 Stark, 518; Grah. Prac, 289). In England, the Court has resolved that the plaintiff shall open and close, in all actions for injuries to the person, and in actions for libel and slander ; and in this country the rule is, that wherever it is neces- sary for the plaintiff to introduce any witness (even though the entire cause of action is admitted), and the testimony to be intro- duced by the plaintiff relates solely to the amount of damages to be recovered, the plaintiff is held to hold the affirmative, so far as the proceedings on the trial are concerned. In other words, in any case where the plaintiff, on taking an inquest at the Circuit, would find it necessary to examine a witness, or where the amount of damage to be recovered is not established by the pleadings, the plaintiff holds the affirmative at the trial, and this is very nearly in accordance with the English rule above referred to. We have remarked upon the order in which the witnesses are called, and the manner of examining them is as follows: each witness called by the plaintiff is examined by him, and then cross- examined by the defendant. Then the plaintiff may re-examine him as to any matter which the cross-examination has rendered it necessary to explain. This ends the examination, and the ques- tion whether a witness, who has been thus examined, can be at any time during the trial recalled as to a matter that he might have been asked concerning, upon his first examination, rests in the dis- cretion of the Court, and cannot be claimed as a matter of right. OF THE TRIAL OF ACTIONS. 389 And, as a general rule, the Court will not allow a witness to be examined a second time (whether he has once been dismissed from the stand or not) upon a subject in relation to which the party calling him has already once examined him. The same rule is also observed in relation to the defendant's witnesses. After opening his defense to the jury, his witnesses are examined, cross- examined, and re-examined, in the same manner, and subject to the same rules as above applied to the witnesses of the plaintiff. When the testimony is closed, we have seen that one counsel only, on each side, addresses the jury, and the examination of the witnesses is also conducted by one counsel on a side (Rule 13' S. C. Eules). This rule is, however, sometimes departed from in very important cases, and two counsel on a side allowed to sum up. In such cases, the counsel usually alternate; that is, first one counsel on the part of the defendant submits his argument to the jury; he is followed by one of the counsel for the plaintiff: then follows the senior counsel on the part of the defense, and then the senior counsel for the plaintiff closes the argument. The Court then delivers a charge to the jury, stating to them the rules of law by which they are to be governed, in considering upon and rendering their verdict in the action ; to all or any part of which charge either party can except, and have the questions reviewed in the manner hereinafter particularly pointed out ; but the Court never should, in his charge, submit to the jury an argument upon the facts in the case. He may recapitulate the evidence, if he choose, but should not intimate an opinion upon any question which belongs to the jury to decide. We believe this practice is universally followed in the Third District, except when foreign, judges hold their Circuits. The jury are kept together by an officer of the Court, in a room provided for that purpose, and when they have agreed upon their verdict they are re-conducted into court. The clerk calls the panel, and then asks the jury if they have agreed upon their ver- dict. If they have, the foreman then delivers the verdict (on being asked how they find) to the clerk, who receives and enters the same in the minutes of the Court. Before it is so entered, however' the party against whom the verdict is rendered, if he has any doubt whether all of the jury have fully agreed upon such a ver- dict, may require the clerk to ask each juror, separately, if that is his verdict. This is called polling the jury; and if each of the 11 390 OF THE TEIAL OF ACTIONS. jurors, when so called, answers in the affirmative, their verdict is then entered by the clerk. If any one of them answers in the negative, they are sent back to consider further what verdict they shall render. It is proper to remark, before dismissing the subject of pro- ceedings on the trial by jury, that where the testimony is closed, a witness of one of the parties having left Court and not returning, and the proofs having been so closed without his testimony, if he afterwards come in, before the summing up has commenced, the party has a right to call and examine him. By Marcy, Justice, this proposition is laid down in Leggett & Wooster v. Boyd (3 Wend. E., 376), but it does not seem to have been necessary to decide the question in that case. And even if the witness come in after the counsel has commenced summing up, it seems the Court may reject or receive his testimony, or rather permit or refuse his ex- amination, in the exercise of a soiind discretion ; and the examin- ation would probably not be allowed unless the Court could see that great injustice might result from excluding the witness. 4 Cowen, 450. The Court adheres so strictly to the above rule, relative to but one counsel on a side summing up, or examining and cross- examining witnesses, that where several different defendants appear by different attorneys and different counsel at the trial, if the defenses are the same, but one counsel will be allowed to ex- amine or cross-examine a witness, and only one counsel will be allowed to sum up or argue the case to the jury. 4 Campb., 174 ; 2 Wend., 385 ; 1 Carr & Payne, 321 and note. This note, how- ever, as applied to the examination of witnesses, means, that the same counsel who commences the examination or cross-examin- ation of a witness must complete it, and no other counsel will be allowed to interfere with such examination, by putting any question whatever to the witness. But this is confined to that witness, and the next witness may be examined by different counsel ; and it is a very common practice for the attorney, or junior counsel of a party, to examine his own witnesses, while the senior counsel cross-examines the witnesses of his adversary. The counsel for the defendant may, in his summing up, or at any time during the trial (that he shall deem appropriate), object to the plaintiffs recovery, on the ground that the complaint does not state a cause of action. Higgins v. Freeman, 2 Duer, 650 ; OF THE TRIAL OF ACTIONS. 891 Montgomery Co. B'k v. Albany City B'k, 3 Selden, 464 ; Gould V. Glass, 19 Barb., 186. So also the objection tliat the Court has not got jurisdiction to try the action, no matter what the ground is upon which the objection to the jurisdiction rests. Code, § 148; Burnham V. De Bevoise, 8 How, RE., 159; 3 Selden, 576. If, in the taking of testimony at the trial, any evidence is offered by one party which is deemed improper or incompetent by the other, he should object to such evidence, and, if either party is dissatisfied with the ruling of the Court, he excepts to the same, and in the same manner an objection may be taken to the compe- tency of a witness, or to any question that is asked, and the party against whom the decision is made may have his exception, unless the objection to the question is on the ground that it is leading, and the Court allows the question to be put. In this case the party has no exception, because it is a matter resting in the dis- cretion of the Court, whether they will allow or disallow a ques- tion which is conceded to be leading. A leading question is one which intimates to the witness the answer which is desired, and it should be observed that, upon the cross-examination, leading questions are always allowed. This, by some writers, is said to be on the ground that the witness is supposed to be in the interest of the party calling him. We could never bring our minds fully to subscribe to this as the reason or the rule above laid down. The true reason, we think, is, that the party calling a witness knows what he expects to prove by him, and the witness, on the other hand, knows for what he is called, and that he has been conversed with by the counsel of the party calling him, and thus the witness understands what is sought by a question which is not leading, and which does not contain any language designed to refresh his recollection. Leading questions arc not only allowed upon the cross-examina- tion of a witness, but the party calling a witness, where a strong feeling against such party is manifested, or an unwillingness or reluctance to answer, may put leading questions. The rules for the examination of witnesses in this respect are designed to afford to the parties the best means of eliciting the truth. And a witness may be compelled to answer any question which is approved by the Court. Should he refuse to answer, he may be committed as for contempt ; and although it is true he cannot 392 OF THE TKIAL OF ACTIONS. be compelled to speak, yet the Court hare a wide discretion in the punishment for refusing to answer, and a witness would probably be punished to the same extent for not answering as he would be for not appearing for a witness. (See ante, Chapter ILL of Part rn.) And if a witness, called and examined by one party on the cross- examination, refuses to answer a proper and relerant question, and the testimony is closed without his consenting to answer, the Court will strike his entire testimony out of the case. In actions upon contract, a trial by jury may be waired by a written consent of the parties, or by a verbal consent, made a: the Circuit at the time of the trial, and entered on the minutes by the clerk ; and then the trial will be had before the Court, without a jury. Code, § 266. The trial by the Court is conducted in all respects in the same manner as the trial by jury, and the same rules are obserred as to the opening the case, the calling and examination of witnesses, and the sTi mm ing up, after the testimony is closed. Indee-i, the oiily difference that exists between a trial before the Court and a trial by jury, so far as the proceedings upon the trial are concerned, consists in the empanelling of the jury, and the receiving and en- tering their Terdict in the one case, which, of course, is not done in the other. Where the trial is before the Court, he is required to make his decision in writing, which must be filed with the clerk, within twenty days after the time of the trial. (Code, § 267.) Tnis written decision contains nothing but the final conclusion at which the judge arrives, and is, like the verdict of a jury, a finding in favor of the plaintiff or defendant, as the case may be, and nee Costs on trial, and judgment for plaintiff. C. D. & B. F. ) Proceedings before notice of trial $15 00 " after notice, and before trial 10-00 An additional defendant served, &c 2 00 Cause on Calendar, 5 circuits, to wit : February, June, October, and December, 1857, Febru- ary, 185S 50 00 Trial fee on issue of law 15 00 " " " fact 20 00 Additional allowance under § 808, attachment issued in action, verdict, $1,000 48 . 00 Additional allowance by Court, § 309 50 00 Sheriff's fees, serving summons 4 50 " " summoning jury, 6 circuits 3 00 '' " on return of execution 69 Witnesses' fees, as specified in affidavit, showing names, attendance and travel, and terms. ... 60 00 Clerk's fee, on trial 1 00 " " " entering judgment, (except in courts where clerks are salaried officers, and in such courts, $1.00) 50 3 transcripts, 18 cts., filing, 18 cts 36 Postage . . . .' 09 $280 14 The first item in this bill will be ten, instead of fifteen dollars, in cases where judgment may be perfected for want of an answer, without application to the Court. The bill of costs must be accompanied, when presented for adjustment, with an affidavit of disbursements, and an affidavit of the attendance and travel of the witnesses. The affidavit of disbursements is usually at the foot of the bill of costs, and should be, substantially, in the following form : 426 COSTS IN JUDGMENT AFTER TRIAL. Rensselaer County, ss. : W. A. B., being duly sworn, says, that he is the attorney foi the plaintiff in the above-entitled action, and that the several amounts, charged for disbursements in the foregoing bill of costs, are for money actually and necessarily expended, and to be ex- pended, for disbursements in said action. Sworn, &c. W. A. B. The affidavit of the attendance of witnesses must state in detail the names of the witnesses, the time each one attended at each circuit, the place of residence of each, and the distance traveled, and it should also state that each witness was subpcsnaed in good faith, and on the advice of counsel that his attendance was neces- sary. A copy of the bill of costs must be served upon the defendant's attorney, with the following notice endorsed upon it, which must be a notice of five days, or two days, as before stated : Take notice, that the within bill of costs will be presented to the clerk of the County of Eensselaer for adjustment, at his office, in the city of Troy, on the day of inst., at ten o'clock in the forenoon. Dated, &c. Yours, W. A. BEACH. Att'y for Pl'ffi To A. B. Olin, Esq., Att'y for Deft. The bill of costs, where the defendant succeeds at the trial, should be made out in the same manner as theforegoing, the items of course being changed, according to the allowance, as before specified ; and a copy must be served, and the bill adjusted upon notice, in the same manner as the costs and disbursements are adjusted on the part of the plaintiff END OF PART III. PA.RT IV. CHAPTER I. APPEALS TO GEN^ERAL TERM FROM ORDERS, ETC. By § 349 of the Code, as now amended, the Legislature have, ill all cases, where they deemed it subservient to the ends of jus- tice, allowed appeals to the Greneral Term of the Supreme Court, from orders made by a single justice (in or out of court), or by a county judge, in the performance of a duty which, he is authorized to perform, in an action or proceeding pending in the Supreme Court, or in a proceeding in aid of, or supplementary to, an execu- tion issued upon a j udgment of said Court. ■ And, instead of undertaking to improve upon the section, by laying down general rules specifying the cases where appeals from' orders are and where they are not allowed, we have deemed it expedient briefly to consider .separately the provisions of the sec- tion, noticing under each such constructive limitations or enlarge- ment of the language as have been made by judicial decisions. The first clause of the section is in the following words : "An appeal may, in like manner, and within the same time,, be taken from an order made at a Special Term, or by a single judge of the same court, or a county or a special county judge, in any stage of the action, including proceedings supplementary to the execution." In like manner and within the same time:. This language has reference to the preceding 327th and 332d sections. By the first of these sections it is provided that an appeal shall be made by serving a notice in writing, stating that the party appeals from the order, which must be so described that the party to whoim it is- addressed shall not be misled thereby, or from some specifi,ed part of said order. And this notice must be served upon the party against whom the appeal is brought (which, as we have seen, is by delivering the notice to his attorney), and also upon the clerk of the Court, in whose office said order is entered. And by the- other section such appeal is required to be brought within thirty 428 APPEALS TO GEWEEAL TERM, ETC. <]aj3 after written notice of the order shall have been given to the party appealing. There is no general provision of the Code requiring notice of orderig to be served. By the former practice, an order, granting a favor to a party, was required to be served within twenty days of the time it was granted, or it was deemed to have been waived "Whatever rale may be adopted by the Court, upon this subject, will not, in any manner, limit the right of a party to appeal ; and we do not deem it necessary that a notice of the order should be served before appealing. On the contrary, the appeal may be brought immediately upon the entering of the order. The notice of appeal should be in the following form : SUPREME COURT. A. B. ) agt. [ C. D. j Take notice, that the defendant appeals to the General Term of this Court, from the order entered in the above-entitled action, at a Special Term, held at the Capitol in the city of Albany, on the day of ,1858, before the Hon. William B. "Wright, Justice, and filed in the office of the Clerk of the county of Rensselaer, striking out, as redundant and irrelevant, the matter set up, in the answer of the defendant, as a second defense in this action. Dated, &c. Yours, &c., R. M. TOWNSEND, Att'y for Deft. To 0. R. Ingalls, Att'y for Pl'ff, and ) J. P. Ball, Clerk, &c. j The section then speciBes the cases in which such appeal may be made, as follows : '*' 1. "When the order grants or refuses, continues or modifies, a provisional remedy." The only question, under this section, which can require explana- tion, is the expression, provisional remedy. The framers of the Code have not undertaken to define the meaning of this expression. "We conclude that it has reference to some step or proceeding in a cause rendered necessary or proper by the exigencies of the casei and not one of those steps or proceedings which are taken ordina- rily in every action. (Becker agt. Hager, 8 How, Pr. R., 68 ) And it would seem that proceedings, supplementary to execution, are APPEALS TO GEKKKAL, TEUM, ETC. 429 not included within the meaning of the term provisional remedy, as used in this section, as special provisions upon that subject are made in subdivision five of the section, under the name of sum- mary proceedings after judgment. Under this definition of the term provisional remedy, an appeal may be liad to the General Term from an order granting or refusing an attachment, pursuant to section 229 of the Code (Bank of Lansingburgh v. McKie, 7 How. Pr. E., 364), or granting or refusing an order for the arrest of & defend- ant, or«for an injunction and the like cases. " 2. When it grants or refuses a new trial, or when it sustains or overrules a demurrer." This subdivision can scai'cely be made more plain by remarks or illustrations, and yet there has been some conflict of authority as to when an appeal might be brought upon an order granting or overruling a demurrer. It is now, however, well settled that, if an appeal is brought under this section, it must be before judg- ment; because the moment judgment is rendered, in pursuance of the granting or overruling of a demurrer, the order is merged in the judgment, and of course the appeal must be from the judg- ment. But, so long as it remains an order, it may be appealed from, as such. Kolton v. The Western R. R. Co., 10 How. Pr. R., 97 ; Kellis v. De Forest, 6 lb., 413 ; Reynolds v. Freeman, 4 Sand., 702. " 3. When it involves the merits of the action, or some pal-t thereof, or affects a substantial right." Under this subdivision, an appeal may be made to the General Term, from an order granting a motion for judgment, on account of the frivolousness of an answer ; but the appeal must be taken before judgment is perfected, pursuant to the order, otherwi.se the order becomes merged in the judgment, and then the appeal would be from the judgment. But an appeal will not lie from an order denying such motion, because it does not, in any manner, affect the merits of the action, or a substantial right of the party. He can, upon the trial, raise every question involved in the motion, and have the same benefit of a decision in his favor, thereupon, that he would obtain by an appeal from the order. West. R. R. Co. V. Kortright, 10 How. Pr. R., 457 ; Gould v. Carpenter, 7 lb., 98. But the words, "affects a substantial right,". are very much 430 APPEALS TO GENERAL TERM, ETC. limited in their meaning by the rule (which is well established), that an appeal cannot be taken in any case where the granting or refusing of the order rests in the discretion of the Court. (Seely v. Chittenden, 10 Barb., 803.) There surely can be no question that an order granting temporary alimony in a divorce case, or an order granting an extra allowance of costs, under § 309, affects a sub' stantial right, as enforcing or resisting the payment of money, in the great majority of cases, is the only substantial right in con troversy, and yet, in the at)ove and similar cases, no appeal lies Abbey v. Abbey, 6 How. Pr. E., 340, n. ; Dickson v. McElwain How. Pr. R., 138 ; Cook v. Dickiuson, 5 Sand., 663. Substantial right, as used in this subdivision of § 349, must be understood as meaning a right affecting the subject matter of the action, and not merely that which affects the proceedings to acquire the relief sought, or establish the defense interposed. " 4. When the order, in effect, determines the action, and pre- vents a judgment from which an appeal may be taken." We are not aware that anybody has hitherto been able to deter- mine what was intended by this subdivision, and, if it is possible that such an order as is contemplated by it can ever be entered, its features must be such as will require no comment to determine where it belongs. And, as we think it means nothing, we shall say nothing about it. " 5. When the order is made upon a summary application, in an action after judgment, and affects a substantial right." This subdivision is intended to give an appeal from all orders made in a proceeding in aid of, or supplementary to, an execiition, and in all proceedings founded upon the judgment, v/hich may be had before a single justice out of Court ; subject, however, to the limitation, that in such proceedings an appeal does not lie from an order which it rests in the discretion of the Judge to grant or deny ; e. g., an order granting or refusing costs of the proceeding. We believe it is now well settled, that an appeal under this sec- tion is, per se, a stay of proceedings. Of course, the effect of this rule is, that an appeal from an order may be brought in any case, and without giving any security for costs, or otherwise ; all pro- ceedings are stayed until a decision upon the appeal. It was, for a time, considered that an order was necessary to stay proceed- ings, and that, "on granting the order, the judge might impose APPEALS TO GENERAL TERM, ETC. 431 the condition of giving security ; and this was the almost univer- sal practice. But that doctrine is overruled, and now, in any action, where a defendant has an opportunity of appealing from an order, under § 349, stay the proceedings of the plaintiif, until a decision upon the appeal at the General Term, without giving any security, and without the Court having power to require him to pay to his adversary any more than ten dollars costs. Emer- son V. Burney, 6 How. Pr. E., 32 ; Cook v. Pomeroy, 10 lb., 103 ; Trustees of Penn Yan v. Forbes, 8 lb., 286 ; Stewart v. Saratoga and Whitehall R. E. Co., 12 lb., 435. CHAPTER II, APPEALS TO GENERAL TERM FROM JUDGMENTS, ETC, Appeals from judgments, to the General Term of the Supreme Court, are divided into two classes : Eirst. Appeals from judg- ments of an inferior Court. Second. All appeals from judgments in the Supreme Court, entered upon the decision of a referee or referees, or upon the order or decision of a single judge upon the trial, with or without a jury. In other words, the appeals, embraced within this class, are authorized by § 348 of the Code, and reach every case, where judgment has been entered in the Supreme Court, unless the same was entered by the General Term, or by default. Appeals, belonging to the first class, above mentioned, must be brought within two years from the time of filing the judgment- roll, in the office of the Clerk of the Court below. (Code, § 331.) The appeal is made by serving a notice of appeal upon the adverse party, and also upon the Clerk of the Court, in which the judg- ment, appealed from, was recovered. (Code, § 327.) For form of notice, see Chapter I., Part IV. And, in order to render the appeal effectual for any purpose, the party appealing, unless the same is waived, by a written consent on the part of the respond- ent, must file, with the clerk of the- Court in which the judgment is recovered, an undertaking, executed by two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two 432 APPEALS TO GENERAL TERM, ETC. hundred and fifty dollars ; or must deposit that amount with the Clerk, to abide the event of the appeal. Code, § § 334 and 343. By § § J^35 and 336, it is required that, in order to stay pro- ceedings upon the judgment appealed from, if the judgment is for the payment of money, an undertaking must be given, " by, at least, two sureties, to the effect that, if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be afirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal." And, if the judgment directs the assignment of documents or property, the same must be brought into Court, or left with an officer, under the direction of the Court, or an undertaking, by two sureties, must be given, that the appellant will obey the order of the Court upon appeal. These two sections are, at least, broad enough to cover every case of an appeal within the proposed limits of our work. The sureties, in every undertaking, must justify, in the first instance by an affidavit, endorsed upon or attached to the undertaking, that they are each worth double the amount specified therein. The sureties, however, notwithstanding this affidavit, may be excepted to, at any time within ten days after service of the notice of appeal. Code, § 341. Where sureties are excepted to, they must justify, upon notice given to the opposite party, in the same manner as bail are required to justify, by § § 195 and 196 of the Code. (Code, § 341.) As to the notice and manner of justification, see ante, 69 and 70. The notice of excepting to the sufficiency of the sureties is somewhat different from the notice given for the purpose of having bail upon an arrest justified. In that case, the notice is that the party does not accept of the bail, but, in § 341, theframers of the Code had apparently forgotten, for the time, "that it was necessary to depart, as far as possible, from the former practice, in the man- ner in which every necessary step in an action should be taken. Consequently, under this section, the notice is, that the sureties are excepted to. The notice should be, substantially, in thfi follow ing form : APPEALS TO GENERAL TERM, e'tC. 433 SUPREME COURT. A. B,, Resp. I agt. \ 0. D., AppHH. ) Take notice, that the respondent excepts to the sufficiency of the sureties, in the undertaking given upon the appeal to the General Term, in this action. Yours, &c., Dated, &c. T. E., Att'y for Eesp'd't. To S. F., Att'y for App'l't. This notice must be served upon the attorney for the appellant, and, within ten days after such service, the sureties, or other sure- ties in their places, must justify in the same manner as bail upon an arrest, and this j astification must be on a notice, of at least five days. Code, § 341. The justification must be before a Justice of the Court, or a County Judge, and all proceedings upon the justification are the same as in the justification of bail upon arrest. See ante, 69 and 70. The notice of justification should be in the following form : SUPREME COURT. Take notice, that J. K. and L. M., the sureties in the under- taking given, upon appeal to the General Term, in this action, will justify before the Hon. George Gould, one of the Justices of this Court, at his office, in the city of Troy, on the day of , 1858, at ten o'clock, in the forenoon. Yours, &c., Dated, &c. S. F., Att'y for AppTt. To T. E., Att'y for Eesp'd't. If new sureties are substituted, then the notice, in addition to the names of the sureties, should state their places of residence and occupation, so as to give the respondent the means of inform- ing himself with regard to their sufficiency. The undertakings required to be given by § § 334 and 335 of the Code may be (and, where the appellant wishes to stay pro- ceedings, usually are) embodied in one instrument. Code, § 340. The undertaking should be in the following form : 434 APPEALS TO GENERAL TERM, ETC. RENSSELAER COUNTY COURT. A. B., Resp. agt. C. D., AppelVt. Whereas, the above named, C. D., proposes to appeal from the j udgraent rendered against him in this action, in this Court, on the day of , 1858, for one hundred dollars, damages and costs, to the General Term of the Supreme Court, now, therefore, in consideration of bringing of such appeal, and in order to ren- der the same effectual, we, the undersigned, hereby undertake and promise that the said C. D. will pay all costs and damages which may be awarded against him upon said appeal, not exceed- ing two hundred and fifty dollars. And, also, that the said appel- lant (if the judgment appealed from, or any part thereof, shall be affirmed,) will pay the amount directed to be paid by said judg- ment, or the part of such amount as to which the judgment shall be affirmed, and all damages which shall be awarded against him upon said appeal. ' Gr. H. [l. s.] Dated, &c. K. L. [l. s.] The above form will be a sufficient guide for drawing the appeal bond, in any case, where security upon appeal is required to be given. The above not only renders the appeal effectual, but stays the proceedings upon the judgment appealed from. An undertaking required by any of the other sections, relating to appeals, should be in the same form as the above, always taking care to state what the sureties undertake that the appellant shall perform, or abide by, in the language of the Code. Where the undertaking is simply to render the appeal effect- ual, under § 334, it is not necessary that the recitals should show the amount of the judgment appealed from ; but, where the under- taking is for the purpose of staying proceedings upon the judgment, the recitals should state the amount of the judgment. Although this is not in terms required, it was evidently the intention of the Legisla- ture that it should be done, as the sureties by § 341 are required to justify in double the amount mentioned in the undertaking ; and, unless the amount of the judgment is therein recited, the sureties could only be required to justify in the amount of twice two hundred and fifty dollars', that being the only sum that would be stated in the undertaking. This could not have been the inten- tion of the Legislature, by the language used in § 841, requiring APPEALS TO GENERAL TEEM, ETC. 435 the sureties to justify in double the amount mentioned in the undertaking. It seems to have been taken for granted, that the judgment appealed from could not be sufficiently described in the undertaking, without specifying the amount for which it was re- covered. The papers, for the purpose of appealing from the judgment of an inferior Court, should be entitled in the Court below, until after the notice of appeal and undertaking have been served ; because, until that is done, the action is not removed ; and the papers for taking any step should be entitled in the Court where the action is pending at the time such step is taken. Accordingly, when the notice of appeal, together with a copy of the undertak- ing, shall have been duly served, and the undertaking filed, the papers, in all subsequent proceedings, should be entitled in the Appellate Court. The second class of appeals to the General Teiiiii embraces all cases of appeals from judgments, where the trial is before a single judge or before Eeferees ; and where questions of law only are sought to be reviewed, all cases, whether the trial be before Referees or the Court, with or without a jury. The appeals embraced within this class are brought in the same manner as appeals from judgments of an inferior Court, except that the Court may order a stay of proceedings without the security required by § 344, on the bringing of an appeal from the judgment of an inferior Court. In all appeals brought under § 348 of the Code, the Court may stay the proceedings by an order, upon such terms as are deemed to be just, having no limit fixed to their discretion in such cases, except that the secu- rity required by them, to entitle the party to an order staying the proceedings, cannot exceed the security required by the Code, upon an appeal to the Court of Appea,ls. And this limitation seems to have been unnecessary, as, by giving the security required to be given upon appeal to the Court of Appeals, the proceedings are stayed without an order for that purpose. Code, § 348. When an appeal has been brought and perfected, in either of the classes we have been considering, nothing remains to be done but to bring the action to an argument at the General Term, ac- cording to the rules and practice of the Court. But, in case the object of an appeal to the General Term, from a judgment of the same Court, under § 348 of the Code, is to review proceedings 436 APPEALS TO GENERAL TERM, ETC. had at the trial, a foundation should be laid for such review- before the judgment is perfected,, by preparing a case or bill of exceptions, and having the same made a part of the judgment- roll, the method of doing which it will be proper here to con- sider. If a party, at the trial of an action, feels himself aggrieved by any decision of the Court or a Eeferee, relative to the admissi- bility of evidence, competency of witnesses, the construction of the pleadings, or the legal effect of any given state of facts, estab- lished by the pleadings and proofs, he should, at the time such decision ia made, except thereto, and have his exception entered upon the minutes of the Judge or Eeferee. This is a question of law, and the party, by taking his exception, has placed himself in a position to have the same incorporated in a case or bill of excep- tions, to be thereafter prepared ; and if, when the trial is con- cluded, he is dissatisfied with the final decision of the Court or Eeferee, as contrary to the weight of evidence, he will be allowed to make a case, containing a full history of the proceedings at the trial, and upon this, as well as upon the questions of law, a review may had upon an appeal to the General Term. Watson and an- other agt. Scriven et al., 7 How. Pr. E., 10. There is, however, a great difference in the rule by which the Court grants, or denies, a new trial, which depends upon whether it is sought upon a question of law, or one of fact. If it is a question of law, and a majority of the reviewing Court diifer in opinion from the Judge, or Eeferee, who tried the cause, the judgment will be set aside, and a new trial ordered. On the con- trary, the Court will not grant a new trial, simply because they differ in opinion with the Judge or Eeferee upon a question of fact. It is not enough that the appellate Court would have made a different decision from that made at the trial, but the decision complained of must be so clearly against the weight of the evi- dence as to indicate that it was the result of mistake, or prejudice, or of some influence not properly connected with the case. The rule in granting or denying a new trial, in such a case, is the same as in motions for a new trial, on the ground that the verdict of the jury was against the weight of evidence. Smith v. Hicks, 5 Wen., 48 ; Astor v. Union Ins. Co., 7 Cow., 202 ; Ex parte Bailey, 2 Cow., 479 ; Hart v. Hosack, 1 Cai. E, 25 ; Le Eoy v. Sternbergh, 1 Cai. E., 162 ; Conrad v. Williams, 6 Hill, 444. APPEALS TO GENERAL TEEM, ETC. ' 437 We think tlie intention of the Legislature, judging from a careful examination of § 265 of the Code, was, to have motions for a new trial, upon questions of fact, first argued at a Special Term, and if such question was to be reviewed at all upon appeal, that it should be an appeal under § 349, from the order granting^ or refusing, a new trial. But § 348 gives an appeal, in express terms, upon questions of fact, when the trial is by the Court or Referees. The appeal thus given is from the judgment, and, in the language of the section, " upon the fact." This clearly is intended to give the right to review questions of fact, upon an appeal from the judgment, in the cases specified, viz. : where the trial is by the Court or Eeferees. This is directly in conflict with our understanding of §265; and, where two sections of the Statute are in conflict, the latter prevails. This construction gives the review, upon questions of fact, where the trial is by the Court, without a jury, or by a Referee, only by appeal from the judg- ment, and, therefore, such motion cannot be made at a Special Term. We, therefore, without noticing the conflicting decisions upon this subject, adopt the opinion of Justice Harris in Watson agt. Scriven (7 How. Pr. R., 10), which is in accordance with the rule above laid down, and which, we believe, is now generally (if not uniformly) followed. Motions for a new trial, before judgment, in cases not coming within the above rule, will be noticed in the next chapter. There is now no such thing, properly belonging to the practice, as making a case, with leave to turn the same into a bill of excep- tions. By Comstock, Jadge, in Johnson agt. Whitlock, (3 Ker- nan, 350). Where the trial is before a Referee, or before the Court, with- out a jury (in which case, we have seen, questions of fact may be reviewed upon appeal), if a party is aggrieved by any decision, made in the proceedings upon the trial, he should take his excep- tions, as above stated. But if the decision, deemed objectionable, is made by the Judge, or Referee, in his final determination of the action (the same having been duly submitted for that purpose), the party is then allowed ten days, after written notice of the judg- ment, to except to such decision as he deems objectionable in point of law. (Code, § 268.) This exception should be drawn up in writing, stating definitely the precise proposition, or point complained of, and served upon the opposite party, within the u 438 APPEALS TO GEXERAL TERM, ETC. ten days allowed for that purpose, after notice of the judgment. It is not necessary to serve the exceptions, thus taken, upon the Court or Referee ; but the same must be presented, at the time of the settlement of the case, together with proof of service upon the party. It is proper here to remark, for the benefit of the young prac- titioner, that the only difference between a case and a bill of exceptions is this : a bill of exceptions presents for re^aew ques- tions of law only, and should only contain the evidence in the case so far as is actually necessary to present the questions of law intended to be reviewed. (Rule 24 of Sup. Court Rules.) On the contrary, a case should set out fully the entire proceedings upon the trial, including the decision, and including, also, every excep- tion taken ; the of&ce of a case being to review, not only the ques- tions of law, but the questions of fact arising upon the trial of the action. Some have supposed that, under the present sys- tem, the Court would not, upon a case, grant a new trial upon a question of law, as it would seem, from some cases which have found their way into our reports. This is clearly a mistake, and is not, as we understand the practice, the rule in any case what- ever. The reason given is, that to do so would be calling upon one justice, sitting alone, to overrule the decision of another jus- tice, whose opinion is entitled to equal respect with his own. This reason, under the practice as now settled (allowing it to be sound), has no foundation in fact, when applied to appeals ; because, in such case, the review is by the General Term. It can only apply to motions for a new trial, before judgment, where the trial was by jury ; and how far it is applicable to such a case will be considered in the next chapter. The exceptions, to be made and served within ten days after .the notice of the judgment, as above stated, should not contain a reiteration of the exceptions taken during the trial, but should be ■confined to matters as to which the party had no previous oppor- 'tunity of taking an exception. And, in the case of a trial before •the Court, or a Referee, the case, when made and settled, should contain a statement of the facts found, and the conclusions of law thereon, separately. (Code, § § 272, 267, and 268.) And in Johnson agt. Whitlock (3 Kernan, 344), above cited, in a well- argued opinion, Judge Comstock very clearly defines the practice Tipon this subject, to which we would refer our readers, as a full authority for the rules of practice above laid down. APPEALS TO GENERAL TERM, ETC.', 439 Whenever a party intends to review the proceedings, upon the trial of an action, before the Court, or a Eeferee, or upon excep- tions, where the trial was by jury, by an appeal from the judgment, he should, within ten days from the time of the trial, if it be by jury, and from the time of notice of the judgment, if by the Court or a Referee, prepare and serve, upon his opponent, a case or bill of exceptions, unless the Court, by order, shall allow a longer time. (Code, § 268; Rule 15, Sup. Court Rules.) We have noticed above what the case, or bill of exceptions, should contain. The question of time, for preparing the case, or bill of exceptions, may be regulated by the Court, or by a Judge at Chambers. (Code, § § 401 and 405 ; Huff v. Bennet, 2 Sand., 703.) But the order by a Judge at Chambers, enlarging the time to make a case, must be made before the ten days, given by the Code and the Rules, have expired. (Doty v. Brown, 3 How. Pr. R., 375.) And if the party desire a stay of proceedings, until the case is made and settled, the application should be made to the Court, and, if the ten days have been suffered to expire, the party can only be relieved by motion for leave to make a case, whicli must be upon notice to the opposite party, and must be founded upon an affida- ■ vit, excusing the default, and showing a sufficient reason for reviewing the proceedings upon the trial. That is, a reason that satisfies the Court that the application is made in good faith. 7 Cowen, 467. When a case, or bill of exceptions, has been made and served, the opposite party hasten days to propose amendments (Rule 15, Supreme Court Rules).. It is usual, however, to have the time to make a case, or bill of exceptions, enlarged, either by order or stipulation between the parties ; and, where the time is so enlarged, to give the same time to propose amendments after the case is served as is given to make the case. After the case and amendments have been prepared . and served, the party making the case may notice the same for settlement, before the Referee or Judge before whom the action was tried, within four days after the service of the amendments; and this notice must specify the time and place of settlement, and the time must be not less than four, or more than twenty, days from the service of such notice. Rule 15, Supreme Court Rules. When a case, or bill of exceptions, has been duly served, if amendments are not served within the time allowed for that pur- 440 APPEALS TO GENERAL TEEM, ETC. pose, the right to propose amendments is lost, and the case, or bill of exceptions, Ls deemed to have been assented to by the party. And, on the other hand, if amendments are served, and the party making the case, or bill of exceptions, does not, within four days thereafter, give notice of settlement of the case and exceptions, he is deemed to have adopted the amendments pro- posed, and must engross his case, or bill of exceptions, accordingly. (Rule 16, Supreme Court Rules.) The party making a case, or bill of exceptions, must, within ten days after the same shall have been settled, if amendments were proposed, and, if no amendments are served, then, within ten days after the time to serve amend- ments has expired, file, with the Clerk of the County in which the venue is laid, the settled case, or bill of exceptions, or be will be deemed to have abandoned the same. (Rule 17, Supreme Court Rules.) The modus operandi of making, settling, and filing a case, or bill of exceptions, is as follows : The party aggrieved by the decision prepares his case, or bill of exceptions, each folio of which must be distinctly marked and numbered, and all the copies must be made to correspond with the original. (Rule 41, Supreme Court Rules.) The lines must also be numbered, and the lines of the necessary copies must correspond in all respects with the original. (Rule 1 5, Supreme Court Rules.) The most convenient method of numbering is to mark the lines of each page separately, that is, the first line of each page marked one, and so on to the end of the page. This avoids a difficulty which would arise in numbering by the counted folio — where the commencement of a folio would frequently be in the middle of a line — and thus the same line would require two numbers. It is necessary, however, where this course is adopted, that the pages also should be num- bered and distinctly marked, in order that, in proposing amend- ments, the place proposed to be amended might be clearly indicated by word, line and page. A copy of the case, thus prepared, is served upon the opposite attorney, who prepares his amendments, numbering each amend- ment, so that the Judge or Referee may be enabled to settle the same by marking each separate amendment, allowed, or disallowed, or allowed as arnended, as the circumstances may require. There should also be a space of a few lines left between each two amend- ments, so as to enable the Judge, or Referee settling, to make any ETC. 4-11 alteration of, or addition to, an amendment, -which he may deem necessary before he can allow the same. The amendments may be in the following form : SUPREME COURT. A. B. I agt. V Amendments to Case. C. D. ) I. Strike out all of the proposed case, after the word "under- taking" in the ninth line of the second page, down to and includ- ing the word " informality" in the fourth line of the third page (and if it is desired to insert anything, in place of that which is stricken out, it should be done in the same amendment, by saying after the above), and insert, instead thereof, the following, to wit: (Then insert the matter proposed, underscoring the' words). II. Between the words " assignment of" and the words " the lands," in the tenth line of the eighth page of the proposed case, insert the following : all his interest in. By observing the above form, in proposing amendments, the settlement and engrossing of the case, or bill of exceptions, is rendered easy. A copy of the amendment having been served, the party mak- ing the case gives notice of settlement, which should be in the following form: SUPREME COURT. Take notice that the case and amendments in this action will be presented to his Hon. George Gould (the Judge or Eeferee before whom the cause was tried), at his office in the city of Troy, for a settlement, on the day 1858, at ten o'clock in the forenoon. Dated, &c. E. WADE, Attorney for Plaintiff. To "W. S. Hevenor, Attorney for Defendant. At the time and place appointed by the notice (which we have seen must be served at least four days before the day appointed for the settlement), the parties appear before the Judge, and sub- mit to him the case and amendments, and, if they desire to make any remarks, they are permitted to call the attention of the Judge to any amendment, or to each of the amendments, separately, mak- 442 APPEALS TO GENERAL TERM, ETC. ing such such suggestions, in relation to the same, as they may deem appropriate. The usual practice, however, is to deliver or send the case and amendments, -without comment, to the Judge, who settles and returns them to the party making the case. The case as set- tled is then engrossed, striking out the parts directed to be stricken out, and inserting any new matter allowed by the amendments. The engrossed case must then be re-folioed (each folio being marked and numbered), and filed in the office of the Clerk of the County where the venue in the action is laid. And, if proceed- ings have been stayed in the action, the case forms a part of the judgment-roll when judgment is perfected; but, when proceed- ings have not been stayed, and the judgment has been perfected before the settlement of the case, then the engrossed case, together with the order extending the time to make the same (if the time has been so extended), is attached to and becomes a part of the judgment-roll. In all cases of appeal it is the duty of the appellant to furnish the papers to the Court, and these papers must be printed on white writing paper, with a margin on the outer edge of the leaf, not less than one and a half inch wide. The printed page, ex- clusive of any marginal note or reference, must be seven inches long, and three and a half inches jride ; and the folio, numbered from the commencement to the end of the papers, must be printed on the outer margin of the page. Eules 29 and 80 of Supreme Court Rules. The papers to be printed and furnished to the Court, in cases of appeal, are, on an appeal from the judgment of an inferior Court, the return of the Clerk of the Court in which the judg- ment appealed from was recovered (which is a copy of the notice of appeal), together with a copy of the judgment-roll, duly certified by the clerk (Code, § 328) ; and where the appeal is from a judg- ment upon the verdict of a jury, the report of referees, or the decision of a single judge in the Supreme Court, a copy of the judgment-roll ; and in all cases, in addition to the return (or the judgment-roll, as the case may be), a case must be prepared and printed, stating the time of the commencement of the suit, and of the service of the respective pleadings, the names of the original parties in full, the change of parties, if any has taken place, pend- ing the suit, and a very brief history of the proceedings in the cause, and containing an abstract of the pleadings, not exceeding APPEALS TO GENERAL TERM, ETC. 443 one-sixth of the number of folios ia the original pleadings, and also the reasons of , the Court below for its judgment, if the same can be procured. And, in addition to the above, each party must have his points, citing the authorities upon which he intends to rely, printed. Eule 29, Supreme Court Eules. Where the appeal is from the judgment of an inferior Court, the return is made at the expense of the appellant, according to the words of § 328 of the Code. This is not to be understood, how- ever, in such manner as to deprive him of the right to recover the same from his adversary, as a necessary disbursement, should the appellant succeed in the final determination of the action. But the appellant must procure and pay for the return in time to have the same printed, so that a printed copy of all the papers above, required to be printed by the appellant, may be served upon the attorney of the respondent at least eight days before the term of the Court, at which the same may be regularly noticed, and, if for any reason he cannot do so, he should obtain an order (founded upon an affidavit, showing the cause of his inability tO' have said papers printed in time), staying the proceedings of the respondent, to enable him to print and serve the necessary papers,, otherwise the respondent might, on the last day for noticing, give notice of trial of the appeal, and on the next day give notice of a. motion, to be made on the second non-enumerated day in term, for judgment in favor of the respondent upon the appeal, on the ground that said papers had not been served eight days before the commencement of the term. Eules 28 and 29, Supreme: Court Eules. The papers having been printed as above, the next step. is to notice the appeal for argument, or, according to the language of the present system, to notice the action for trial upon the appeal. This notice must be served at least eight days before the com- mencement of the term at which it is intended to bring on the- trial, and should be in the following form : SUPREME COUET. Take notice, that this action will be brought to trial upon the appeal therein to the General Term of the Supreme Court, at the 444 APPEALS TO GENERAL TERM, ETC. next term of said Court, to be held at the Capitol, ia the city of Albany, on the first Monday in September, 1858, at ten o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard. Dated, &c. E. F., Att'y for Appell't, To G. H., Att'y for Eesp'd't. Either party may notice the action upon the appeal ; and, as we have seen, when noticed by the appellant, his notice must be accompanied by printed copies of the papers, as before directed, and, if noticed by the respondent, said papers must be served at least eight days before the commencement of the term at which the action is noticed for trial. The party noticing must also serve upon the Clerk of the Court, in the county where the Term of the Court is to be held, a note of issue. The note of issue must contain the title of the cause, the names of the attorneys, and the time when the appeal was brought. Or, if it is a demurrer, special verdict, or case ordered to be heard in the first instance at the General Term, then the date of the issue, or the time of trial of the action, should be stated in the note of issue, as this determines the place the action is to occupy upon the calendar, the same being arranged according to the date of the issue, trial, or appeal, as the case may be. The form of the note of issue is the same as that furnished to the Clerk, on noticing an action for trial at the Circuit ; and, by the rules which go into effect October 1st, 1858, must be served eight days before the Term at which the action is noticed. Eule 41 of new Rules. (The present rule is four days only.) Monday and Thursday of the first week, and Friday of the second week in Term, are called non-enumerated, or motion days, and motions, which are not required to go on the calendar, can only be made on those days. Accordingly, if the papers are not furnished by the party whose duty it is to serve them, upon his opponent, eight days before the commencement of the Term, as required by the Rules above cited, does not so serve the papers, a motion may be made, upon one of the non-enumerated days in Term, to strike the cause from the calendar and for judgment. This motion is upon notice, which is in the following form : APPEALS TO GEKERAL TEEM, ETC. 445 SUPREME COURT. A. B., Respondent, \ agt. V C. D., Appellant. ) Take notice, that a motion will be made, on Thursday of the , first week of the next General Term of this Court, to be held at the Capitol, in the city of Albany, commencing on the first Mon- day of September, 1858, at ten o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, to strike this action from the calendar, and that the judgment, from which the appeal in this action is brought, be affirmed, with costs, together with the costs of this motion, which motion will be founded on an af&davit, with a copy of which you are herewith served. Dated, &c. Yours, &c., G. STOWB, Att'y for Eesp'd't. To Kellogg & Percy, Esqrs., Att'ys for Appell't. This notice must be served eight days befqre the day on which the motion is to be made, and, consequently, it cannot be noticed for the first non-enumerated day in Term, as the appellant is entitled to the whole of the eight days next before the term, to serve his papers. The af&davit, upon which this motion is founded, is in the usual form, and must state that judgment has been recovered in the action in favor of the respondent, upon the trial of an issue of law, or of fact, or as the case may be ; that an appeal has been brought, which is pending, and has been regularly noticed for trial,' at the General Term, specifying the time and place when and where the same is to be held ; and that the said action is upon the calendar, or that a note of issue has been duly served upon the Clerk, and that there are less than eight days repiaining befare the first day •of said Term, and that no printed copy of the judgment-roll has been served upon the respondent. Upon reading such af&davit, and proof of service of the same, together with notice of motion, unless cause be shown to the contrary, an order will be granted in the following form : 44.6 APPEALS TO GENERAL TEEM, ETC. At a General Term of the Supreme Court, held at the Capitol, in the city of Albany, on the first Monday of September, 1858. Present — Hon. William B. "Weight, George Gould, and Hene^ Hogeboom, Justices. A. B., Resp'd't, "I agt. > C. D., Appeirt. ) On reading the affidavit of A. B., respondent, whereby it appears that this action has been regularly noticed for trial upon the appeal, and that the appellant has not delivered to the attor- ney for the respondent printed copies of the judgment-roll, as required by the rules and practice of the Court, eight* days before the commencement of the present Term : Ordered, that the said action be stricken from the calendar, and that the judgment appealed from be, and the same is, hereby affirmed, with costs. This order must be filed with the Clerk of the County in which the venue is laid, and becomes a part of the judgment-roll in per- fecting the j udgment of affirmance. As a general rule, motions, which might be made at a Special Term, will not be heard at a General Term of the Court. Motions which may be made upon the non-enumerated days at the Gene- ral Term are motions to correct or strike a cause from the calendar, appeals from orders granted at a Special Term, or by a single Judge, upon an order to show cause, and the like. But appeals from an order giving judgment on account of the frivolousness of a demurrer or answer, by the rules which take effect on the first of October, 1858, must be placed upon the calendar, and brought to argument, in all respects, in the same manner as if the appeal was from a judgment, instead of from an order. The case which is required to be furnished at the commence- ment of the argument, after giving the title of the cause, proceeds to state the day on which the action was commenced, the time when each of the several pleadings was served, the names of the original parties in full, the change of parties, if any has taken place, pending the suit, and a copy of the opinion of the Court below, or, if this cannot be procured, that fact must be established by affidavit, according to the rules adopted in 1858. See Eule OF MOTIONS FOR A NETV TRIAL, ETC. 447 43 of said Rules. "We do not deem it necessary to give a form of this case. The judgment-roll is a bare addition to the judgment appealed from ; of the notice of appeal, and a recital that the cause was duly brought on to trial, upon the appeal ; a copy of the order made upon the decision ; the adjustment of the costs, by the Clerk, stating the amount; and then follows the judgment, in the usual form : " Therefore it is considered," &c. This, of course, must be signed by the Clerk, in the usual manner. We have already given so many forms of judgments, that we do not deem it necessary here to repeat the formal parts of the roll. CHAPTER III. OF MOTIONS FOR A NEW TRIAL AND VERDICT, SUBJECT TO THE OPINION OF THE COURT. In addition to the method already considered, of submitting questions of law to the Court upon a case agreed upon between the parties, it is often found a convenient and expeditious way of presenting questions for the consideration of the Court, after issue joined in the action : First, if there is no dispute about the facts, to take a verdict, subject to the opinion of the Court, upon a case to be made by the party in whose favor the verdict is found. This case is made and settled in the same manner as a case, or bill of exceptions, on which to move for a new trial, or to attach to the record, for the purpose of an appeal. Second. Where there is a dispute about the facts, the propositions relative to which the parties differ may be drawn up in the shape of questions, to be passed upon by the Jury, or of particular facts or propositions to be found by them, and then to take the verdict of the Jury upon those propositions, leaving the plaintiff upon a case to move for judgment upon the facts so found by the Jury, and the questions of law involved in the action. Or, thirdly, an order may be entered, appointing a Referee to report the facts put in issue in the action ; and, upon the report of the Referee, either party may move for judgment at a Circuit Court or Special Term. If either party is dissatisfied with the finding of the Referee, upon any question of fact, the Court, upon motion, will order the Referee to 44:8 OF MOTIONS FOR A NEW TBIAL, ETC. report the evidence taken before him. This is drawn up and set- tled in the same manner as a case, and a motion founded upon it, made at a Special Term, unless ordered by the Court to be heard at a General Term. The motion for judgment, upon a verdict taken subject to the opinion of the Court, is always made at the General Term, and an appeal, from a judgment so obtained, lies to the Court of Appeals. Motions for new trials are made when, on a trial before a jury, at the Circuit, the party is dissatisfied, either with the ruling of the Court upon a question of law, or when he thinks the verdict against the evidence, upon a question of fact. Or a new trial may be asked, on the ground of surprise, or of newly-discovered evidence. The motion must always be founded upon a case, or bill of exceptions, and, when it is claimed on the ground of sur- prise, or newly-discovered evidence, the case is accompanied by affidavits, showing specifically what the surprise of which he complains is, or what the newly-discovered evidence consists of. And leave to make a case, in order to move for a new trial, is usually obtained by application to the Court, founded upon afi- davits showing the facts upon which the party relies, for the pur- pose of obtaining a new trial. These motions are always made at a Special Term, unless ordered by the Court to be made at a General Term. See Code, § 265. As we have seen, a new trial will not be granted, because the verdict is against the weight of evidence, unless the case is so strong a one as to satisfy the Court that the verdict was the result of mistake or partiality. A new trial will not be granted on the ground of surprise, unless it arose wholly without the fault of the party asking the new trial. For instance, if a cause is unexpectedly reached, and called upon the calendar, and, after the trial has commenced, the defendant discovers that a witness, without whose testimony he could not establish an important point in his defense, who had been duly subpoenaed, and was in attendance just before the action was called, and was supposed to be present when the plaintiff rested, has left Court, and cannot be found, the Court will order a new trial, upon terms, on the ground of surprise ; but, if the defendant has in any manner been notified, before the com- mencement of the trial, of the intention of the witness to leave, the motion will be denied, because he should have had the wit- OF APPEALS TO THE OOUET OF APPEALS. 449 ness called, aad moved to postpone the trial on the ground of his absence. As a general rule, a new trial will not be granted where the newly-discovered evidence is cumulative (The People v. Superior Court of New York, 5 Wen., 114), or where the party ought, with ordinary diligence, to have discovered the evidence in time for the trial. (lb.) Or where the newly-discovered evidence is for the purpose of impeaching a witness sworn upon the trial. Harrington v. Bigelow, 2 Denio, 109. A motion may also be made, at the same Circuit at which an action is tried, upon the Judge's minutes, to set aside a verdict, and for a new trial upon exceptions, or for insufficient evidence, or for excessive damages. This motion is made without notice, and cannot be made at any other time. The Court will, however, take care that such a motion shall not be made, without giving the counsel of the opposite party an opportunity of being heard, unless he willfully absents himself from_the Court, and, perhaps in some instances, would enter an order to show cause, at a sub- sequent day of the same Circuit, why a new trial should not be granted upon the Judge's minutes, pursuant to § 264 of the Code. CHAPTER IV. OF APPEALS TO THE COURT OF APPEALS. An appeal, to the Court of Appeals, lies from any judgment of the Supreme Court at a General Term, or of the Superior Courts of New York or Buffalo, or the Court of Common Pleas for the city and county of New York, except where the action was origin- ally commenced in a Justice's Court, and removed, by appeal, from the judgment rendered in such Court. But an appeal can- not be taken to the Court of Appeals, in any case, from the judg- ment or decision of a single Judge. Code, § 11. So also an appeal lies, to the Court of Appeals, from ^n order of the Supreme Court, Superior Court of New York or Buffalo, or the New York Common Pleas, made at a Greneral Term, pro- vided the order grants a new trial, or affects a substantial right, or is the final order, made upon a summary application, or spe- cial proceeding, in an action after judgment. Code, § 11. 450 OF APPEALS TO THE COURT OP APPEALS. An appeal may, in' like manner, be had to the Court of Appeals, where the action originated in a Justice's Court, or the Marine Court of the city of New York, provided the General Term of the Court, in which the judgment appealed from was rendered, shall, before the end of the next Term, after such judg- ment was pronounced by such Court, enter an order allowing such appeal. Code, § 11. For the purpose of bringing an appeal to the Court of Appeals, the notice of appeal should be served upon the attorney of the party who is to be the respondent in the Appellate Court ; and for this purpose the attorneys of the respective parties in the Court below are, by rule, made the attorneys in this Court, until other attorneys are employed and notice thereof given. Eule 4 of Court of Appeals. "We are not aware that it has ever been decided what the prac- tice should be, in bringing an appeal to the Court of Appeals, in a case where the attorney of the party, obtaining the judgment to be appealed from, dies or removes from the State,- after the entry of judgment and before the service of notice of ap- peal. By § 327 of the Code, the notice of appeal is required to be served upon the adverse party. This means simply that the notice must be served according to the practice of the Court, as established by its rules or by the Statute. And, accord- ing to the practice of the Court, all papers, after the commence- ment of an action, must be served upon the attorney, where an attorney has appeared, and service upon the party would not be good. (Code, § 417.) And the attorney of record continues to be the attorney of the party in the action, for the purpose of ap- pealing from a judgment, or of having a notice of appeal there- from served upon him. Eule 4 of Court of Appeals ; Tripp agt. De Bow, 5 How. Pr. E., 114; Crittenden vs. Adams, 1 Code Eep., N. S., 21. It is very clear from the sections of the Code, together with the authorities above cited, that where it appears upon the record that the judgment was perfected by an attorney, a notice of appeal served upon the party in person would not be good, and the action would not be thereby removed into the Appellate Court. If the attorney is living and in the State, the notice should be served upon him. If he has died or removed from the State, since perfecting the judgment, the party wishing to appeal should com- OF APPEALS TO THE COUBT OF APPEALS. 451 pel his adversary to retain a new attorney, upon whom the notice of appeal and subsequent papers might be served, otherwise it would not appear upon the face of the record that the cause had been legally removed into the Appellate Court, and every record should be sufficient upon its face to give the Court jurisdiction of the action. The Court, upon motion, founded upon an affidavit, showing the death or removal of the attorney who perfected the judgment, and that the time in which an appeal might be brought had not elapsed, and that the moving party desired to appeal from the judgment, would, undoubtedly, grant an order that the party retain a new attorney, and that he give notice of his retainer to the attorney of the moving party, or show cause, at a Special Term of the Court, to be held at a time and place to be mentioned in the order, why the notice of appeal should not be served upon the party personally, or why the Court should not appoint an attorney upon whom the notice of appeal and subsequent papers might be served. And if, in sach case, the party was a non-resi- dent of the State, the Court would also incorporate in the order a direction of the manner in which a copy of such order should be served upon the party. In addition to the notice of appeal to be served upon the party, as above directed, a notice must also be served upon the clerk with whom the judgment or order appealed from is entered (Code, § 327). And this service upon the clerk must be by getting the same actually into the possession of the clerk, or some one in his office authorized to receive the same, within the time allowed by law for serving such notice. Putting a notice in the post-office, addressed to the clerk, and paying the postage, would not be good service, although the attorney making the service resided in a town different from that in which the clerk's office is situated. Crittenden v. Adams, 1 Code Eep., N. S., 21. The notice of appeal must state that the party appeals from the judgment or order (as the case maybe), or from some part thereof, which must be particularly specified. If the appeal is from an order, it must be brought within sixty days after notice of the order, and, if from final judgment, within two years after the judgment shall have been perfected, by filing the judgment-roll. Code, § 331. In addition to the notice of appeal, if the appeal is from a judg- 452 OF APPEALS TO THE COURT OF APPEALS. ment, the appellant, in order to make the appeal effectual for any purpose, must give a written undertaking, executed by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars, or deposit that sum with the clerk, with whom the judgment or order was entered, to abide the event of the appeal, unless the same is waived by the written consent of the attorney for the respondent. Code, § 334. If the party desires to stay execution upon the judgment, he must give security in the same manner hereinbefore directed for staying execution upon appeals to the General Term of the Su- preme Court. Indeed, any direction upon the subject would be but to re-write the substance of sections 335 to 343 of the Code. The appeal having been perfected as above directed, the next step is, to procure the return of the clerk in whose office the judg- ment or order appealed from is entered. This return, if the appeal is from an order, consists of certified copies of the notice of appeal, the order appealed from, and the papers on which the Court below acted in making the order ; if from a judgment, the return con- sists of certified copies of the notice of appeal and judgment-roll. Eule 1 of Court of Appeals. Unless this return is filed with the Clerk of the Court of Appeals, within twenty days after perfecting the appeal, the respondent may give notice in writing, requiring such return to be filed within tea days after service of such notice, and, if not so filed, the appellant shall be deemed to have waived the appeal ; and the respondent, after the ten days have elapsed, on filing an afS.davit, showing when the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, may enter an order with the clerk, dismissing the appeal for want of prosecution, with costs ; and the Court below may thereupon proceed as though there had been no appeal. Eule 2 of the Court of Appeals, as amended in 1855. If either party is dissatisfied with the return, he may make an ex-parte application to one of the Judges of the Court of Appeals, founded upon an affidavit showing the defect complained of ; and such Judge is authorized, by Rule 8 of the Court of Appeals, to make an order, requiring the clerk forthwith to make a further return. This order should specify, particularly, the point or matter in relation to which the further return is required. OF APPEALS TO THE COURT OF APPEALS. 453 The appellant is, by Rale 6, required to prepare a case, in all calendar causes, containing a copy of the return, and the reasons of the Court below for its judgment, if the same can be procured; And, if the ease is voluminous, an index to the pleadings, exhibits and depositions must be addedl What will be considered a vo- luminous ease seems to be left entirely to the discretion of the attorney making it, as the Court, by its rules, has given no inti- mation as to what would be judicially held to be a voluminous case, and we are not aware of any decision upon the subject. This case^ including the index, together with all other papers to be furnished to the Court in calendar causes, must be printed upon white writing^ paper, with a margin on the outer edge of the leaf not less than one and a-balf inch wide; and in all other respects corresponding to the manner in which papers are required to be printed on appeals to the General Term of the Supreme Court, as hereinbefore directed. And, within forty days after the appeal is perfected, the appellant must serve three printed copies of the case on the attorney of the adverse party. If he fail to do so, the respondent may, by notice in writing; require the service of such copies, within ten days after service of the notice, and if the copies be not served, in pursuance of such notice, he will be. deemed to have waived the appeal ; and on an affidavit, showing the default the respondent may enter an order with the clerk, dismissing the appeal for want of prosecution, with costs ; and the Court below may thereupon proceed as though there had been no appeal. Rule 7 of Court of Appeals. The Court of Appeals is required by law to hold four terms ia each year, commencing on the first Tuesday of January, the fourth Tuesday of Marchj the third Tuesday of June, and the last Tues- day of September. (Code, § 13). All civil actions, in order to be placed upon the calendar for argument, must be noticed for the first day of the term, by a notice of at least eight days ; and a copy of such notice must also be served upon the Clerk of the Court eight days before the term, specifying the judicial district in which the cause originated, and from the notices so served upon the clerk the calendar is made up ; the date of the issue being the time when the return was filed. Rule 8 of Court of Appeals. All the Terms of the Court of Appeals are held at the CapitoT, in the city of Albany, and causes are disposed of in the following manner : The causes will be called in the order in which they ifi 454. OP APPEALS TO THE COURT OF APPEALS. stand upon the calendar ; but no more than ten causes will be called in any one day. If, however, the hour for the adjourn- ment of the Court has not arrived when the ten causes have been called, the Court will take up any cause in which both parties are ready, always giving preference (if there should be more than one in which the parties are ready) to that which is first in the order of the calendar. Any cause regularly called and passed upon the calendar, without postponement by the Court, upon cause shown at the time, will lose its place upon all subsequent calendars, upon which it will be placed, as if the filing of the return had been on the day it was so called and passed. Causes may be struck from any calendar by the clerk in court, on any day during the first week, by consent of parties, without prejudice, unless it is one of the ten causes liable to be regularly called upon the calendar on the day upon which it is proposed to strike it off. And causes also may be exchanged, each taking the place of the other upon the calendar, by the like consent. Eule 20 of Court of Appeals, (am'd Jan'y, 1853). Causes may be submitted, upon printed arguments, at any time during the Term; unless the cause to be submitted has been exchanged, pursuant to Kule 20, in which case it cannot be sub- mitted, except at the time it is regularly called on the calendar. Eule 14. of Court of Appeals, as am'd in 1855. By Eule 9, at the commencement of the argument, the appellant is required to furnish a printed copy of the case to each of the judges, and to deliver six other copies to the clerk, and each party is required at the same time to furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and to deli- ver six other copies to the clerk, and three copies to the counsel of the adverse party. The Court will not hear questions of fact discussed at length, but the parties are respectively required to state upon their points the leading facts upon which they respectively rely, and which they deem established by the return, with reference to the folio where each fact, or the evidence establishing the same, may be found in the printed case. Eule 10 of Court of Appeals. If either party neglect to appear when the cause is regularly called upon the calendar, or neglect to furnish the papers required to be furnished by him, his opponent may take judgment against OP APPEAIiS TO THE COURT OF APPEALS. 455 him, upon due proof of the service of notice of argument. Eule 11 of Court of Appeals. In the argument of any cause or motion, but one counsel shall be heard upon a side, without leave of the Court obtained for that purpose, and no counsel upon the argument of a cause can occupy more than two hours, without the express permission of the Court. Rules 12 and 22 of Court of Appeals. Appeals from orders are argued as special motions, and the papers are not required to be printed. They must be noticed for the first day of term, in the same manner as other appeals, and all special motions must be noticed for the first day of Term, unless a good reason is shown upon the papers for giving the notice for a subsequent motion day in Term. The first day of every Term, and every Friday and Tuesday thereafter during the Term, are motion days, and on those days the Court will not commence calling the calendar until the motions ready to be made on that day are disposed of. Orders may be taken, of course, upon due proof of service of the notice of motion, if no one appears to oppose. But in such case it is proper that the order should show on its face that it was taken by default, although there is no written rule requiring this. (Rule 15 of Court of Appeals.) Orders obtained on motion in this Court should be served in the same manner as in the Supreme Court. No record of judgment for the purpose of docketing or of issu- ing an execution is made up in the Court of Appeals; but the Court reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties, aijd the cause, together with the judgment of the Court of Appeals, must then be remitted to the Court below, where the judgment is to be enforced according to law, (Code, § 12). And the Court of Appeals has power, where the judgment appealed from is reversed, to order a new trial in the Court below. (Code, § 330.) Without the exercise of this power, great injustice would some- times be done to the party whose judgment was reversed. For example, suppose the claim for which the action is brought after the commencement of the action, and before the judgment is reversed in the Court of Appeals (being a simple contract debt), becomes more than six years old, a new action for the same cause might be barred by the statute of limitations, and thus a merito- 456 OF APPEALS TO THE COURT OF APPEALS. rious cause of action be lost, without any fault or laches on the part of the plaintiff. The decisions of the Court are usually made at the end of the Te^'m. They are delivered to and entered by the clerk; in the minutes of the Court. By Kule 16 of the Court of Appeals the remittitur must, con- tain a copy of the judgment of the Court, and the return made by the clerk of the Court below, and must be sealed with the seal and signed by the Clerk of the Court. The remittitur should be in the following form: COURT OF APPEALS. A. B,, Appellant, ) agt. \ C. D., Respondent. ) This action having been brought into this Court, upon an appeal entered therein, in. the Supreme Court, on the ninth day of August, 1858, in favor of the appellant against the respondent, for one thousand dollars damages, and ninety-five dollars costs, and the said action having been regularly heard in this Court upon the said appeal, and the Court having duly deliberated thereon, it was by the said Court adjudged and determined, at a Term of the said Court, held at the Capitol, in the city of Albany, on the third Tuesday of September, 1858, that the said judgment be in all things affirmed. And it was further adjudged by the said Court, that the said appellant should recover from the said respondent the sum of dollars for his costs, damages ' and disbursements upon the said appeal. Therefore the judg- ment-roll and proceedings thereon in the said Court of Appeals are hereby remitted into the said, Supreme Court, that the judg- ment of the said Court of Appeals in the premises may be en- forced according to law. Dated, &c. [L. s.] E. P., Clerk of the Court of Appeals. The above form will, of course, be changed according to the circumstances of each particular case. For instance, if the appeal is from an order, instead of a judgment, it should be so stated, and the statement of the judgment of the Court will, of course, be conformed to the decision in each particular case, and we have OF APPEALS TO THK GOURT OF APPEALS. 457 not deemed it necessary to multiply forms with a view to hit every imaginable case. Wherever the judgment of the Court of Appeals is obtained by default, unless the Court shall make a special Order for that pur- pose, the remittitur shall not be sent to the Court below until ten days after written notice to the party against whom such decision has been made, the service of such notice to be proved by affida- vit, or the admission of the attorney on whom the same was served. Eule 17 of Court of Appeals. Any Judge of the Court has power to enlarge the time for serving papers, or taking any other proceedings, or to stay pro- ceedings in the action, by an order, for that purpose, signed by such Judge, which may . be revoked or modified at any time by the Judge granting it, or, in case of his absence or inability to act, by any other Judge of the Court. Eule 18 of Court of Appeals. The costs in this Court, exclusive of disbursements (which are- always to be added), are twenty-five dollars for proceedings, before argument, and fifty dollars for the argument, to the pre- vailing party ; and, in addition to this, ten dollars for every Term the cause is on the calendar, and not reached, or postponed, not exceeding five Terms, and the Court, on affirmance, may award damages for the delay, not exceeding ten per cent, upon the. judgment. Code, §370. Appeals from orders are, as we have seen, argued as special motions. They are never placed upon the calendar, and can only be brought on upon motion days. In appealing from an order, no bail or undertaking need be given, as no security is required ; and the service of the notice of appeal upon the adverse party, and upon the Clerk of the Court, in whose office the order appealed from was entered, makes the appeal perfect. An appeal from an order made by the Supreme Court, the Superior Court of the city of New York, the Superior Court of the city of Buffiilo, or the Court of Common Pleas of the city and county of New York, at a General Term of either of said Courts, to the Court of Appeals, is per se a stay of proceedings, without an order being obtained for that purpose. No further action can be had in the Court below until the appeal is dismissed, or, until the decision of the Court upon the appeal (and the filing of the remit- titur in the office of the Clerk in which the order appealed from 4^8 OF THE EXECOTIOK. was entered), signed by the Clerk of the Court of Appeals, and. sealed with the seal of that Court. The prevailing party, on an appeal from an order, has costs awarded to him, as upon a motion only, and is not entitled to recover costs, as upon an appeal from a judgment. CHAPTER V. OF THE EXECUTION. Before considering the manner in which actions were reviewed, after judgment, we had given the method of perfecting judgment, in all the different modes of proceeding, authorized by the Code. The next regular step in the action, on the part of the party recovering the judgment, is to issue an execution, which, accord- ing to § 283 of the Code, may be done at any time within five years from the time of entering the judgment; but, if not done within that time, it cannot be issued, except by leave of the Court, on notice to the adverse party ; and an execution cannot be issued against the personal property of a deceased judgment debtor. It may, however, within the five years from the entry of judgment, be issued, by leave of the Surrogate, against property upon which the judgment is a lien, after one year from the death of the judg- ment debtor. In order to obtain leave to issue an execution, in such case, an application must be made to the Surrogate of the county where letters testamentary, or of administration, have been granted, or might, by law, be granted, upon the estate of the deceased judgment debtor, which application must be founded upon an affidavit, or a petition, duly verified, showing the decease of the judgment debtor, more than a year before the application, and that the Surrogate, to whom the application is made, has juris- diction to grant letters to administer upon the estate of the deceased, and that he died seized of real estate, or property, upon which the judgment is a lien, and that the judgment is unsatisfied. The Surrogate is then authorized to make an order permitting the execution to issue. (2 R. S., 4th ed., 610, § 30.) The order granted by the Surrogate should specify that the execution is to issue against the property upon Which the judgment is a lien, and that only. OF THE EXECUTION. 45& Upon this order, granted by the Surrogate, the party is not permitted to issue his execution, without an application to this Court, although the Surrogate's order may have been made within five years from the entering of the judgment, as the right to issue execution ceases npon the death of the party ; and this is, probably, the reason why the Legislature did not require notice of the application to the Surrogate to be given to the persons inter- ested, or claiming to have an interest, in the property sought to be reached by the execution. The application to the 'Supreme Court should be made at a Special Term, and founded upon the order of the Surrogate, and the papers, upon which it was founded, together with a petition, duly verified, showing, in addition to the Surrogate's order, and papers upon which it was founded, who are the heirs of the deceased judgment debtor, and what other, persons, if any, claim an interest in the property sought to be reached by execution, and the amount actually due and unpaid," and praying for leave to issue execution to collect the amount, so due upon the judgment, out of the property specified. The Court will thereupon grant an order for the parties in interest in the property to show cause, at the next Special Term of the Court, why an execution should not issue, according to the prayer of the petition. The order will also direct that a copy of the same, together with the petition and papers upon which it was founded, be served upon each of the persons, interested in the property sought to be levied upon, at least eight days before the return day, mentioned in such order. On the first day of the Term, at which the order to show cause' in such case is returnable, if no cause be shown to the contrary," upon due proof of the service of the papers, as required by the order, the Court will grant an absolute order, according to the' prayer of the petition. Alden agt. Clark et al, 11 How. Pr. E., 209. Sections 283 and 284 of the Code, relative to the issuing of executions, and motions, after the lapse of five years from the rendering of the judgment, for leave to issue execution, apply only to cases in which the parties to the judgment, as well plain- tiff as defendant, are living. (Jay vs. Martine, 2 Duer, 654.) Con-' sequently, the Court will not, on motion, grant leave to the executors' or administrators of a deceased judgment creditor to issue execu- tion upon a judgment recovered in the lifetime of their decedent. 460 OF THE BXBOUTION. Their only remedy is by action, upon the judgment. Bellinger ir. Ford et al., 14 Barb., 250; 21 lb., 311; Canaeron et al. agt. Young, 6 How. Pr. E., 372. If an execution has been issued, and returned unsatisfied, mthin the five years, a second, execution; may be issued, after the lapse ©f the five years from the rendering the judgment, without leave of the Court. Bxit if no execution is issued within the five years, then it cannot issue without leaveof the Court, obtained by motion, uipon personal notice to the adverse party, unless he be absent or aoa-resident, or canaot be found to make suchservice ; in which case such service may be made by publication, or in such other aianner as the Court shall direct. And such leave will not be given unless the Court is satisfied that the judgment, or some part thereof, is due and unsatisfied. Code, § 284. Executions upon judgments against executors and administra- tors as such, and not against them personally, should be special, ajad direct the amount to be collected out of the estate of the testator or intestate, naming him. {Olmstead v. Vredenburg, 10 Mof/f, Pr. B., 217.) And no execution can issue against an executor or iadmindstrator, except upon an order of the Surrogate, obtained for that purpose, until after he has rendered and settled his accoupt before such Surre^te. This, of course, means the Surrogate who granted the lettera to administer upon the estate. 2 E. S., 4th Ed,, 274, § 86. Execution, however, may issue after such settlement iwithout leave of the Surrogate, but it must be endorsed to levy the sum only that shall have appeared, on the settlement of such account, to have been a just proportion of the assets applicable to the judgment. (lb.) Where, on a motion for leave to issue execution (none having been issued within the five years), the judgment debtor opposes the motion, on the ground that the judgment has been paid, if there is such a conflict in the affidavits that the Court cannot determine the amount due, a Eeferee will be appointed to ascer- tain aud report bow much, if anything, remains unpaid upon the judgment, and it will be made a part of the order appointing the Eeferee, that if anything shall be found due upon the said judg- ment upon filing the report of the Eeferee, an execution issue for the amount so reported due. The Catskill Bank agt. Sanford, 4 How. Pr. E., 101. We think the Court should not order a reference, except in or THE EXECUTION. 461 cases of real doubt as to the amount whicli remains unsatisfied upon the judgment, as there is no provision which authorizes the Court to charge either party -with the expense of the reference. By § 315 of the Code, costs of a motion may be awarded to the party who, in the judgment of the Court, is entitled to the same, not exceeding ten dollars, and no allowance is made for disburse- nients, upon a motion. It is evident that a trial must be had before the Eeferee, and he is bound to examine such witnesses as may be produced by the parties ; and the moving party, being the actor, would be doubtless bound to pay the Eeferee his fees, and yet we see no way in which he can recover the same from his advei'sary, nor yet any costs of the reference, although the report should show the whole amount claimed, by the motion, to be actually due upon tbe jud^nent, and that the opposition to the motion was without the slightest foundation. It would seem that the Court should have a larger discretionary power than the Legislature have aa yet given them, in granting costs upon special motions. It is good defense, to a motion for leave to issue an execution, that more than twenty years have elapsed since the recovery of the judgment, such motion being so far in the nature of an action, that the Court will require the same facts to be established to entitle a party to an execution, which would be necessary to overcome an answer of the statute of limitations, interposed to an action upon the judgment. Kennedy v. Mills, 4 Abb. Pr, E,, 132. It is no answer to a motion for leave to issue execution, upon a judgment, after the lapse of five years, that an action had been commenced upon such judgment, and judgment perfected, in such action, for the reason, that one security, or obligation, for a debt, is not canceled by another of the same degree : for example, a judgment recovered upon a note cancels the note — so would a bond and mortgage — ^for the reason, they are securities of a higher nature. But a judgment is not canceled by another judgment being recovered upon it. They are securities of the same degree, and execution may be issued, upon either of them, at the election of the party. Small v. Wheaton, 2 Abb. Pr. E., 316 ; Gregory V. Thomas, 20 Wend. R, 17 ; Manhood v. Crick, Cro. Eliz., 716 ; Norwood V. Gripe, Id., 727 ; Eawdon v. Turton, Brownl, 74 ; Maynard v. Crick, Cro. Car., 86 ; Eve's Case, Lit. Eep., 68. 462 OF THE EXECUTION. So far as common law actions, founded upon contract, are con- cerned, and we are considering such only, there are under the Code bat two kinds of execution, viz. : the first, against the prop- erty of the judgment debtor; the second, against his person (Code, § 286). An execution against the body or person of a judgment debtor is never issued in actions founded upon contract against a female (Code, § 179, Sub. 5). And, where the debtor is not a female, an execution against the person can ' issue only in cases where the claim upon which the judgment was recovered was for a breach of promise of marriage, or for money received or fraudulently misapplied by a public officer, or an attorney, solicitor, or counselor, or an officer or agent of a corporation or banking association, in the course of his employment as such, or by a factor, agent, or other person in a fiduciary capacity, or for misconduct or neglect in a professional employment, or where the defendant has been guilty of a fraud in contracting the debt or incurring the liability, or where the defendant has removed or disposed of, or is about to remove or dispose of, any of his prop- erty, with intent to defraud his creditors. Code, § 179, Sub. 2, 4 and 5. For the meaning of the word fiduciary, as used in § 179 of the Code, see ante. Part L, chap. IX, page 63. It must be remembered, also, that in order to entitle the plain- tiff to an execution against the person of a judgment debtor, it must appear upon the face of the judgment-roll that the action was one in which the defendant could be arrested according to the provisions of § 179 of the Code ; for, although the proof upon the trial of the action might be abundantly sufficient to show the character of the claim to be such as to warrant the arrest of the defendant, yet, if that character does not appear upon the judg- ment-roll, an execution will not issue against the person unless it is in some manner made to appear that the case is one in which an arrest is authorized by § 179 of the Code ; and where that does not appear upon the face of the record, and where no order of arrest was made prior to the entering of the judgment, the Court, upon an application made for that purpose, would have undoubted authority to grant an order authorizing the issuing of an execution against the person of a judgment debtor. The language of § 288 is, that an execution may issue against the per- son, if the action is one in which the defendant " might have been OF THE EXECUTION. 463 arrfisied." It is not necessary that he should have been arrested, or that an order should have been made authorizing his arrest, prior to the perfecting of the judgment, and an order of arrest can only be made by a Judge out of Court, before judgment in the action. Code, § 183. Although the language might be understood as limiting the powQr of the Court, so that an order could not be made for an execution to issue against the body, (which is, in substance, an order of arrest) after judgment, yet, it is clear that was not the intention of the Legislature, when § § 183, 179 and 288 are read together. By § 179 an order of arrest is authorized where a party has put any of his property out of his hands, with intent to defraud his creditors, and this fact, certainly, cannot appear upon the face of the plaintifiPs complaint. And, by § 281, we have seen that the right to an execution against the body does not depend upon the question whether an order of arrest was granted in the action before judgment, but on the question whether it might have been so granted, according to § § 179 and 181 of the Code. "We think the following rules will give full effect to what the Legislature intended by the provisions of the Code, relative to executions against the person of a judgment debtor. 1. Where the judgment is against a female, execution cannot in any case issue against the body, in an action upon contract. 2. An execution may issue against the person, where it appears upon the judgment-roll that the action is one in which an order of arrest might have been made according to § § 179 and 181 of the Code. Code, § 288 ; Cooney v. Van Eensselaer, 1 Code Eep., 38 ; Hasten v. Scoville, 6 How. Pr. E., 515. 8. An execution may be issued against the person of a j udg- ment debtor in any case where an order of arrest had been made pursuant to § § 179 and 181 of the Code, and which had not been revoked, reversed, or vacated. Cheney v. Garbutt, 5 How. Pr. R, 467. 4. An execution against the person can only be issued pursu- ant to an order obtained for that purpose, after judgment, where no order of arrest has been previously made, and where it does not appear upon the face of the record that an order of arrest might have been procured, according to § § 179 and 181 of the Code. 464 OF THE KXECUTIOir. The order spoken of, necessary to the issuing of an execution against the person, in the above fourth rule, may be made by the Court upon an ex-parte application, in the same manner as an order of arrest before judgment. But the order is not techuically an order of arrest, but an order that execution issue against the person. The requiring notice of motion for such an order would often defeat the object of obtaining it. We cannot, however, well conceive of a case in which such an order would be neces- sary. Because, in all actions, except those founded upon con- tract, the judgment- roll would show a sufficient authority upon its face to authorize the issuing of an execution against the person. And in actions upon contract, of which alone it is our purpose to treat, an order of arrest, under the non-imprisonment act, would be a much more efficient remedy than an execution against the person. And the manner of obtaining such an order, together with the practice under it, will be found, ante, fart I., commenc- ing at 73. No execution, however, can issue in any case against the person, until after an execution against the property has been duly issued and returned unsatisfied, in whole or in part. Code, §288. The Code does not in terms require that an execution against the property of the judgment debtor should be issued into the county where the defendant resides, or even into the county to the sheriff of which the execution against the person is directed. And it has been decided that it need not be issued into the county where the party resides, before issuing an execution against the person. Fake v. Edgerton, 3 Abb. Pr. R., 229. The language of § 288 of the Code is, " an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the Court, after the return of an execu- tion against his property, unsatisfied in whole or in part." We are inclined to think that the true intention of the Legis- lature, in the use of the above language, would be better ex- pressed by the following words being added at the end of the above quotation : in the same county into which the execution against the person is issued. And even with this reading the practice might be very much abused, and the intention of the Legislature, in requiring an execution against property to be first issued and returned, be practically defeated, so long as it is not required that OF T5E EXECUTION. 466 siicb. execution should, bo Issued into the county vfhere the judg- ment debtor resides. For example, a judgment debtor residing in the city of New Yorlr, having business wiaicb made it necessary for him to pass occasionally through the county of Franklin, might have an execution issued against his property into the county of Franklin, and returned unsatisfied, he having no proi perty there,, and then when passing through the county might be arrested, upon an execution against his person, and thus be sub- jected to the -very inconvenience from which the Legislature intended to relieve him. But, as the labor of amending the Gode belongs to the Legislature^ we must leave it as we find it. It is not necessary that the sheriff should wait until the retura day, of an execution against property, before making hia return, so that an executi<=>n against, the person may be issued. It is enough, if the sheriff make a suitable and proper effort, in good faith, to collect the execution, and is satisfied that the defendant will not pay the same, and that there is no property from which he could collect it by a levy. And the return may be made at any time, no mattpr how soon, after the delivery of the execution to tlie sheriff, provided such necessary effort has been made to collect it. Fake v. Edgerton, 3 Abb. Pr. E., 229. In actions founded upon «ofltract, "the execution must be directed to the sheriff, or coroner, when th« sheriff is a party or interested, subscribed by the party issuing it, or his attorney, and must intelligibly refer to the judgment, stating the Court, the county where the judgment-roll or transcript is filed, the names of the parlies, the amount of the judgment, if it be for money, and the amount, actually due thereon, and the time of docketing in the county to which the execution is issued." 1. " If it be against the property of the jurlgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor, and, if sufliGient personal property cannot be found, out of the lieal property belonging to him on the day when the judgment was docketed in the county, or at auy.time thereafter." 2. " If it be against the person of the judgment debtor, it shall require the officer to arrest such, debtor and commit him to the jail of the county, until he shall pay the judgment or be dis- charged according to law." And it must be madereturnablej " within sixty days after its 466 OF THE EXECUTION, receipt by the officer, to the clerk with whom the record of judg- ment is filed." Code, § § 289, 290. If the execution is upon an interlocutory order, instead of reciting a judgment it should state that an order was entered, stating the time and place when and where it was so entered, upon the decision of a motion regularly noticed in the action ; whereby it was, among other things, ordered that the plaintifi" pay to the defendant ten dollars costs, of making (or opposing) such motion ; and then proceed, in the same manner as above directed, in executions against property, except that the direction to levy should not extend to real estate ; and an execution upon an order never issues against the person. It is now well settled, that interlocutory costs may be collected by an execution against the property of the party charged there- with, which may be issued of course, and without any application to the Court for that purpose. Francis Buzard v. George Gross, 4 How. Pr.R, 23; Mitchell agt. "Westervelt, 6 How. Pr. R., 265 ; Weitzell v. Shultz, 3 Abb. Pr. E., 468 ; 13 How. Pr, R., 191. An arrest upon an execution against the person is, so long as the party remains in custody, a satisfaction of the judgment; and if the sheriff suffers a voluntary escape of a judgment debtor so in his custody, he is liable for the amount of the judgment. But if the judgment debtor has given bail for the jail limits, and then escapes, the action against the sheriff must be commenced while he is ofiF the limits, for, if he return before suit brought, the action cannot be sustained. A defendant arrested on an execution against his person, in an action where an order of arrest before judgment had been im- properly granted, may, notwithstanding he had given bail in the action, move to vacate the order of arrest, and if he succeed upon that motion, he will be discharged from arrest upon the execution. The bail are, by the arrest on the execution, exonerated and dis- charged, and the defendant is in the same condition as if no bail had been given. Moore v. Calvert, 9 How. Pr. R., 474. The defendant may, of course, be discharged, by paying the amount endorsed upon the execution, to be received by the sheriff; and every execution against the person must be endorsed, with the amount to be received, by the sheriff, and executions against the property with the amount to be levied. If the judgment is against several joint debtors, some of whom OF THE EXECUTION. 467 have not been served with process, and have not appeared in the action, the execution should be endorsed to levy the amount directed to be collected, upon the joint property of all the defend- ants, and upon the individual property of those only who have been served with process, or have appeared in the action. And it seems that the attorney who issues the execution has no authority to discharge the same without receiving the full amount directed to be levied thereon. Simonton v. Barrell, 21 Wend.,. 362. It is not necessary that the execution should be issued by the attorney upon the record. Any attorney may, at the request of the party in whose favor judgment has been perfected, issue an execution thereon. If the Sheriff does not return the execution, as required by its Diandate, an action will lie against him for any damage which the party may sustain in consequence of such neglect, or, he may be proceeded against by attachment, at the election of the party. And an action may be commenced against the Sheriff for not returning the execution, without first serving him with notice to return. 15 Johns. R, 456 ; 18 lb., 390 ; 2 E. S., 358, § 80, [440, §77]; 4 Hill, 71 ; 3 lb., 552. By Eule 8 of the Eules of August, 1858, if the Sheriff do not return an execution (whether it be against the property or the person) according to the exigencies of the writ, the party issuing it may serve upon the Sheriff a notice, in writing, requiring him to return the execution • within ten days after service of such notice, or show cause, at a Special Term of the Court, within the judicial district to which the county, where the place of trial is laid, belongs, why an attachment should not issue against him. The place where such Special Term is to be held must be specified in the notice, and this notice, must be personally served upon the Sheriff, or be delivered to some one in his office, having charge of the same. This is not one of the notices which may be served by mail, such service being expressly limited, by § 408, to notices, and other papers, to be served upon the party, or his attorney. If no cause is shown to the contrary, and the execution is not returned, upon an affidavit, showing the service of the notice and the failure of the Sheriff" to make return, an order will be granted that an attachment issue against the Sheriff, as for contempt, in not returning such, execution. For the form of this order, the 468 OF PBOCEEDINGS SUPPLEMENTAET TO EXECUTION. attachment, and the proceedings thereon, including the fbnn of the interrogatories to be administered to the SheriSj see ante, Part m, chapter III. CHAPTER VI. OF PROCEEDINGS SUPPLEMENTAEY TO EXECUTION. By the Code, bills of discovery, as such, have been abolished, and the sections of the Code, relative to the examination of par- ties for the purposes of the trial, were intended to, and, we think, do, fully supply the place of the old bill of discovery, estcept where, after judgment, a discovery was sought upon what was called a creditor's bill. And § 292 of the Code was designed to take the place of the creditor's bill, so generally resorted to under the former system. By § 292 of the Code, where an execution, against property, is returned unsatisfied, in whole or in part, which has been issued into the county where the judgment debtor resides-, or, if he be a non-resident of the State, into the county wliere the judgment-roll, or a transcript of a Justice's judgment, for twenty-five dollars, or over, exclusive of costs, has been filed, the judgment creditor may apply to a Justice of the Court, a County Judge of the county to which the execution was issued, or, if issued to the city and county of Kew York, a Judge of the Court of Common Pleas, for an order requiring the judgment debtor to appear, at a time and place, in the county to which the execution was issued, to be specified in the order, and answer concerning his property. This application must be founded upon an affidavit, showing where the judgment was docketed, and the. amount of it, and that an execution had been regularly issued to the county where the judgment debtor resides, and that the same has been duly returned unsatisfied, iu whole or in part. And upon presenting such afiidavit to any one of the officers above mentioned, he is bound to issue the order for the examination of the judgment debtor, and, should he refuse it, the Court would undoubtedly order a mjuida- musto issue, commanding him to make such order — the language of the Code being, " is entitled to an order" &c. The return of the PROCEEDINGS SUPPLEMENTABT TO EXECUTION-. 469 order must always be at a place within the county into which the execution had been issued and returned. It necessarily follows, from this language, that the order must be returnable at a place in the county where the judgment debtor resides, or has a place of business, if he is a resident of the State. If the order is made by a Justice of the Supreme Court, it may be made by any such Justice, at any place within the State, the place of return only being limited by the Code. Herzenheim v. Hooper, 1 Duer, 594. For the purpose of the examination of the party and taking the testimony of such witnesses as may be produced by the par- ties respectively, the order may require the judgment debtor to appear, either before the officer making the order or before a Eeferee, to be appointed by the officer and named in the order ; or, when the order is made returnable before the officer making it, a Eeferee may be appointed to take the examination and proofs, upon the parties appearing before the officer upon the return day of the order ; and such Eeferee may be a person agreed upon between the parties, or may be appointed upon the nomination of the officer. Care will always be taken, however, that no person should be appointed Eeferee against whom there is any good cause for challenge. Code, § § 292 and 300. The only duty the Eeferee has to perform is, to take the exam- ination of the party and reduce the same to writing, which it would be well to have signed by the party, taking care always to allow the party to make any correction which he may desire, rela- tive to any statement made or answer given by him upon his examination. No cross-examination, however, of the party was allowable, according to the decisions, until since the recent amend- ment of Code, by which it is provided that the party may be examined in the same manner as a witness. This very clearly authorizes a full cross-examination, and was intended, doubtless, to enable counsel by such examination to free the party from any trap into which he may have been betrayed by a cunning adversary. The Eeferee should also reduce to writing, in the same manner, the testimony of the witnesses ; and, in taking the testimony, no question should be overruled upon objection, which the Eeferee can see may have a bearing upon the subject matter of the- en- quiry. He should, however, state every objection and his ruling upon it, and report fully the proceedings had before him, and this 16 470 PROCEEDINGS SUPPLEMENTARY TO EXECUTION. is his whole duty. And upou this report of the Eeferee, the offi- cer making the order decides the case. There is no time fixed by law that must elapse between the service and return of the order for the examination of a judgment debtor, upon the return of an execution unsatisfied ; but the offi- cer should require an affidavit, showing the time and place of ser- vice, and see that a sufficient time has been allowed to enable the party, with reasonable diligence, to appear at the time and place mentioned in the order, before proceeding against him as for con- tempt, in disobeying the order. In case, however, the party shall neglect to appear, or shall otherwise disobey the order, he may be brought in upon attachment, and punished as for a contempt. Code, § 302. In addition to the order above mentioned, upon the return of an execution unsatisfied, after the issuing of an execution and before its return, by § 292 of the Code, the judgment creditor, upon an affidavit showing the issuing of an execution against property into the county where the judgment debtor resides, and that such debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, is entitled to an order from any one of the officers above named, residing in the county where the judgment debtor resides, requiring him to appear, at a time and place to be specified in the order, to answer concerning the property which he so refuses to apply. Or, if in addition to what is required to be shown by the affi- davit last above-mentioned, the party shall show there is danger of the. debtor leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly re- fuses to apply to such judgment, instead of the order last above- mentioned, such officer is authorized to issue a warrant, requiring the sheriff of any county where such debtor may be, to arrest him, and bring him before such judge, for the purpose of such examination. The Legislature, in the foregoing provisions, have carefully guarded against any abusive or oppressive exercise of the power to issue a warrant against a party, in aid of execution against him, by providing that he shall not be taken, by virtue of such war- rant, into any county other than that in which he resides. And it should be observed by the party obtaining such warrant, that the only officer authorized to serve the same is the sheriff (or one PROCEEDINGS SUPPLEMENTAET TO EXECUTIOIf. 471 of his deputies) of the county in which the arrest is made. An officer of the county, where the warrant is issued and naade return- able, cannot serve it beyond the limits of his own county. The examination, upon an order or warrant, in aid of an execu- tion, before its return, is conducted in the same manner, in all respects, as in case of a like order after the return of an execu- tion. After the examination of the party and the witnesses has been closed, if no Eeferee was appointed, and, if a Eeferee was appointed, then, on the coming in of his report, the officer granting the order will hear the counsel of the respective parties, if desired, and will then make his decision. There is no provision made in the Code, requiring the defend- ant to have notice of any proceeding founded upon the report of the Eeferee, if that report is not made at a time when the defend- ant is in attendance before the officer. We think, however, the officer should, and, probably would, require a reasonable notice of any application to be founded upon the Eeferee's report, or upon the examination and evidence taken by the officer, where no Eeferee had been appointed. In case the defendant is brought in, upon a warrant, and it shall appear to the satisfaction of the officer issuing it, by the examina- tion of the defendant, on oath, that there is danger of his leaving the State, and that he has property which he has unjustly refused to apply to such judgment, he may be required to enter into an undertaking, with one or more sureties, that he will, from time to time, attend before the Judge, as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any por- tion of his property not exempt from execution. Or, in default of his entering into such undertaking, he may be committed to prison as for contempt. When the case is submitted for the consideration of the officer making the order (or issuing the warrant), he will either discharge the defendant, and if it is a case where there is no probable cause for the application, or, if, for any other reason, he should deem the defendant entitled to recover costs, he will order that the plaintifiE" pay to the defendant in the proceedings, the fees of his witnesses, including the fees of the defendant, if he was examined, together with such sum, for costs, as he may deem reasonable, not exceeding thirty dollars. Code, § 301. 472 PROCEEDINGS SUPPLEMENTARY TO EXECTTTION. If, upon the examination, property is discovered belonging to the defendant, which should, in justice, be applied towards the satisfaction of the judgment, the officer will make an order, appointing a Receiver, and will direct the delivery, to the Eeceiver, of any and all property, which should, justly and legally, be applied towards the payment of such judgment, whether in the possession of the defendant or of any other person. Code, § § 297 and 298. If, however, the defendant have a family dependent upon him, in whole or in part, for support, his earnings for the sixty days next preceding the issuing of the order shall be exempt from application to the payment of such judgment, and will not be ordered to be delivered to the Eeceiver. Code, § 297. And the officer, before appointing a Eeceiver, in any case, by § 298 of the Code, is. required to ascertain, if practicable, by the oath of the party, or otherwise, whether any other supplementary proceed- ings are pending against the judgment debtor, and, if such pro- ceedings are pending, the plaintiff therein must be notified to appear, at a time and place to be specified in the notice, being the time when the first proceeding is to be had, or first step to be taken, after the examination of the party before the officer (or, if the order was for the defendant to appear before a Eeferee, after the coming in of his report) ; and he must, also, have notice of all proceedings subsequent to the appointment of such Eeceiver. And, if it shall be ascertained that a Eeceiver has already been appointed, in a previous proceeding, the officer cannot appoint any other person Eeceiver, as there can be but one Eeceiver of the property of the same judgment debtor, in any proceeding authorized by § 292 of the Code. Property, within the meaning of the provisions of the Code, relative to the subject we are now considering, is any interest in real estate, or any personal property, including money, and all rights of action which, by the death of the judgment debtor, would survive to the executor or administrator. (Ten Broeck agt. Sloo, 13 How. Pr. E., 28.) And the officer, in appointing a Eeferee, will take care so to limit his power that the property of the judgment debtor shall not, unnecessarily, be either sacrificed or depreciated, and, at the same time, will restrain the judgment debtor from dis- posing of, or in any manner interfering with it, to the prejudice PROCEEDINGS SUPPLEMENTABT TO EXECUTION. 473 of the creditor. And he may compel the debtor to make an assignment of any specific right of action ; for instance, a bond and. mortgage, payable by installments, or an annuity, continuing during the life of the debtor ; the Eeceiver being authorized by the assignment to receive the payments, until the claim of the judg- ment creditor, including costs, should be fully satisfied. Ten Broeck agt. Sloo, above cited. Wherever any property supposed to belong to the judgment debtor, or any interest therein, is claimed by a third person, or ■where any sum of money, claimed to be due to the judgment debtor, from any person or corporation, is denied by such person or corporation to be so due, the officer will not direct an assign- ment or delivery of such property or claim to the Receiver, but will enjoin the judgment debtor against in any manner intermed- dling with the same, until the Eeceiver shall have had an oppor- tunity of commencing and prosecuting to a final determination an action for the purpose of determining the title to such pro- perty, or the real existence of such alleged claim, if the Receiver shall, within a reasonable time, elect to bring such an action. Code, § 299. In aU cases where the decision of the officer is against the judg- ment debtor, he will allow to the creditor the fees for the attend- ance of his witnesses ; and may, also, allow a sum for costs, in his discretion, not exceeding thirty dollars in amount. Code, § 301. Where the proceeding is, after the return of an execution, un- satisfied in whole or in part, after the order for the examination of the party upon an affidavit, showing, in addition to the facts necessary to entitle a party to an order for the examination of the debtor, pursuant to § 292, that any person or corporation is in possession of property of the judgment debtor, or is indebted to him in a sum exceeding ten dollars, the officer may make an order requiring such person or corporation, or any officer or member of such corporation, to appear, at a specified time and place, and answer concerning the same. Notice may also be required to be given, in the discretion of the officer, to any party or person who may, in his judgment, have an interest in such proceeding. Code, §294. In addition to the provisions of the Code, which we have been considering in this chapter, designed to afford facilities to judg- 474 PROCEEDINGS SUPPLEMENTARY TO EXECUTION. ment creditors, to compel satisfaction of their judgments, the judgment creditor is authorized to induce any debtor to his judg- ment debtor to pay such debt, or so much thereof as shall be necessary to satisfy his judgment to the sheriff having an execu- tion issued thereon, and the sheriff's receipt is made a satisfaction of such debt, to the amount so paid. Code, § 293. K U L E S COURT OF APPEALS, AND OT THS SUPREME COURT, OF THE STATE OF NEW YORK. llnIeB 0f i\t €mxt 0f ^pals. Rule I. When the appeal is from a judgment, the return of the clerk of the Court below shall consist of certified copies of the notice of appeal and the judgment-roll. When the ap- peal ia from such an order as is mentioned in in the eleventh section of the Code of Procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the Court below acted in making the order. EnLE n. — {ArrHd Mm-ch, 1855.) The appellant shall cause the proper return to be made and filed with the clerk of this Court, within twenty days after the appeal shall be perfected. If he fail to do so, the respond- ent may, by notice in writing, require such return to be filed within ten days after service of the notice ; and if the return be not filed, in pursuance of such notice, the ap- pellant shall be deemed to have waived the appeal ; and, on an affidavit proving when the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk, dismissing the appeal for want of prosecution, with costs, and the Court below may thereupon proceed as though there had been no appeal. See note to sections 328, 839 of the Code. a. An affidavit of the respondent is sufficient to prove when the api>eal was perfected. Unless the respondent can show some delay or inconvenience in not making the return in pursuance of this rule, or not serving the copies of 478 ETJLES OF THE COURT OF APPEALS. the case as required by rule 1, the defaults taken under those rules should be relieved against upon terms, in all cases where it appears that the appeal is brought in good faith. (Watennan v. Whitney, 1 How. Pr. R., 407.) Where the respondent has omitted to avail himself of the neglect of the appellant, in procuring the return of the clerk within twenty days after the appeal was perfected, until after the return has been made, and has, after the filing of the return, noticed the cause for argument, the objection, that the return was not made in time, is waived. An objection that the return does not contain a copy of the notice of appeal, and, also, that the printed copies of the case served do not contain a copy of the notice of appeal, or a copy of the certifi- cate of the clerk of the Court below that the papers returned by him are cor- rect copies of judgment roll, &c., are omissions which the Court will, on mo- tion, allow the appellant to supply, without dismissing the appeal. (Beecher v. Conradt, 11 Id., 181.) Rule III. If the return made by the clerk of the Court below shall be defective, either party may, on an affidavit specifying the defect, apply to one of the Judges of this Court for an order that the clerk make a farther return, without delay. See Note to eection 328 of the Code. Rule IV. The attorneys and guardians, ad litem, of the respective parties in the Court below, shall be deemed the attorneys and guardians of the same parties respectively in this Court, until others shall be retained, or appointed, and notice thereof shall be served on the adverse party. Rule V. In all calendar causes, a case shall be made by the appel- lant, which shall consist of a copy of the return of the clerk, and the reasons of the Court below for its judgment, if the same can be procured. If the case is voluiainious, an index to the pleadings, exhibits, depositions, and other principal matters, shall be added. EULES OF THE COURT OF APPEALS. 479 Etjle VI. All cases and points, and all other papers furnished to the Court in calendar causes, shall be printed on white writing paper, with a margin on the outer edge of the leaf not less than one and a half inch wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long, and three and a half inches wide. The folios numbered from the commencement to the end of the case, shall be printed on the outer margin of the page. EuxE VII. Within forty days after the appeal is perfected, the appel- lant shall serve three printed copies of the case on the attor- ney of the adverse party. If he fail to do so, the respondent may, by notice in writing, require the service of such copies within ten days after service of the notice ; and if the copies be not served in pursuance of such notice, the appellant shall be deemed to have waived the appeal ; and, on an affidavit proving the default, and the service of such notice, the respondent may enter an order with the clerk, dismissing the appeal for want of prosecution, with costs, and the Court below may, thereupon, proceed as though there had been no appeal. a. This rule applied to appeals pending when this rule was adopted (Dres- ser V. Brooks, 2 Code Kep., 130). h. Where, after the respondent had entered an order under this rule, dis- missing the appeal for want of prosecution, and the cause had been remitted to the Court below; the appellant moved to set aside the said order entered by the respondent, aud^«r curiam : " Although the respondent has been reg- ular, the appellant would be relieved on terms, if we had power to grant it ; but as the cause has been regularly remitted to the Supreme Court, we no longer have jurisdiction, and cannot grant relief. The only remedy is a new appeal." (Dresser v. Brooks, 2 Corns., 861.) «. Where an appeal is regularly dismissed by the Court of Appeals, and the remittitur sent down, the appellate Court loses possession of the the cause, and all power over it ; but where an order dismissing an appeal is irregularly 480 RULES OF THE COURT OF APPEALS. entered, or entered upon a false or garbled affidavit, the appellate Court may grant relief by vacating the order of dismissaL So long as the order of the appellate Court stands, the Court below is bound by it, and has no power to make an order impairing its force. The Court below cannot, therefore, upon motion, vacate a judgment entered upon the remittitur on account of the irregularity of the order of the appellate Court. (Newton v. Harris, 1 Code Kep., N. S., 191.) d. It has been decided by this [Superior] Court, upon full consideration, that after a remittitur has been regularly filed, and an order entered to carry into effect the judgment of the appellate Court, the order will not be vacated, and the remittitur taken from the files, without some suggestions from the ap- pellate Court itself that the remittitur does not conform to its judgment, or has been irregularly issued. (Selden v. Vermilyea, 3 Sands, 683 ; Bogardus v. Rosendale Manufacturing Co., 1 Duer, 502.) e. When an appeal to the Court of Appeals is dismissed for want of prose- cution, and remitted to the Court below (the Superior Court) to be there pro- ceeded with, the proper course appears to be, that the judgment of the Court of Appeals be directed to be made the judgment of the Court below, and that the costs of the appeal be adjusted by the clerk, and by him entered in the judgment. (Union India Rubber Co. v. Babcock, 1 Abb. Pr. R. 267; 4 Duer, 620.) /. In the foregoing case, the judges of the Superior Court settled the form of an order or judgment to be entered in the Court below on remittitur from the Court of Appeals, as follows : Title of Caicse. At a Special Term, &c. This cause having been brought on upon the remittitur here- in sent down from the Court of Appeals, and now filed in this Court, by which remittitur it appears that an appeal was taken by the defendant from the judgment of this Court to the Court of Appeals, and that such appeal has been dis- missed by such Court, with costs, for want of prosecution, and that the record and proceedings had been directed by said Court of Appeals to be remitted to this Court, and this Court directed to enforce the said judgment of the Court of Appeals according to law: Now, therefore, on motion of the counsel for the plaintiff, it is ordered and adjudged that the judgment of the Court of Appeals be, and the same is hereby made the judgment of this Court, and that the plain- tiff have execution against the defendant for the costs when adjudged by the clerk and inserted in the judgment, as well EULES OF THE COURT OF APPEALS. 481 as for the amount to be adjudged, to be recovered in and by the judgment of this Court, in this case, entered day, &c., and that this order or judgment be annexed to the judgment record herein. See note to Bule II., supra. Ktjle vin. Either party may bring on the argument on a notice of eight days, which notice, except in criminal cases, shall be for the first day of the term. A copy of the notice, specifying the judicial district in which the cause originated, shall be furnished to the clerk eight days before the first day of the term. The clerk shall make a calendar of the causes thus noticed, arranging them in the order in which the returns were filed, specifying the judicial district in which the causes originated, respectively. Copies of the calendar for the use of the judges, and five other copies to be delivered to the clerk, shall be printed, in like manner as cases and points are directed to be printed. See Wilkin t. Pearce, 5 How. Pr. K., 26, in note to § 256 of the Code. Etjle IX. At the commencement of the argument the appellant shall furnish a printed copy of the case to each of the judges, and shall deliver six other copies to the clerk. Each party shall, at the same time, furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to " the authorities which he intends to cite, and shall deliver six other copies to the clerk, and three copies to the counsel of the adverse party. The cases, points and calendars delivered to the clerk shall be disposed of as follows : one copy of each shall be kept by the clerk, with the records of the Court ; one copy shall be deposited in the State library ; one copy shall be 482 EULES OF THE COURT OF APPEALS. deposited in each branch of the library of the Conrt of Appeals ; one copy shall be deposited in the library of the New York Law Institute, and one copy shall be delivered to the reporter. a. The heads of an argument, together *ith the authorities cited, but not the argument at length, are embraced under the term " points." (Gray v. Schenck, 3 How. Pr. R. 231.) Will the Court take notice of any matter not raised by the points submitted? (DoUoway t. Turrill, 26 Wend. 398 and 403.) EULE X. In all cases, each party shall briefly state, upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios, where the evidence of such facts may be found : and the Court will not hear an extended discussion upon any mere question of fact, EuLE XI. The party who has noticed and placed the cause on the calendar for argument, may take judgment of aflirmance or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or shall neglect to furnish and deliver cases or points, as required by the Ninth and Tenth Eules. EuLE XII. In the argument of calendar causes and motions, only one counsel will be heard on each side, unless the Court shall otherwise direct. EuLE xni. Criminal eases shall have a preference, and may be moved, on behalf of the people, out'of their order on the calendar. Barron v. The People, 1 Barb., 136. EULES OF THE COtTBT OF APPEALS. 483 Rule XlY.—{Am'd March, 1855.) Causes which have not been exchanged, may be sub- mitted, at any time in term, on printed arguments. Ex- changed causes cannot be submitted until reached upon the calendar. Rule XV. Motions will be heard on the morning of the first day, and the morning of each following Tuesday and Friday, during the term, before taking up the calendar. Where notice has been given of a motion, if no one shall appear to oppose, it will be granted, as of course. Rule XVI. The remittitur shall contain a copy of the judgment of this Court, and the return made by the clerk of the Court below ; and shall be sealed with the seal, and signed by the clerk of this Court. Rule XVII. When a decree or order shall be affirmed or reversedi by the default of either party, the remittitur shall not be sent to the Court below, unless this Court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served. a. The XVIIth Rule of the Court of Appeals was intended to protect the party against surprise, and to give him ample time to make his application for relief, or to obtain an order staying proceedings to enable him to do so ; and, if a party rejects the opportunity to avail himself of the benefit of the time thus given, and permits the remittitur to be sent to the Court below, the ap- 484 EULES OP THE COURT OF APPEALS. pellate Court has lost all power over the cause. (Latson v. Wallace, 9 How. Pr. R., 3S6.) Thus, where a default was taken, 8th April, notice thereof served 10th April, and the remittitur filed 12th May, held that a motion made after- wards to open the default was too late. (lb.) KuLE xvni. The time prescribed by these rules for doing any act may be enlarged by the Court, or by either of the judges thereof; and either of the judges may make order to stay proceedings, ■which when served with papers and notice of motion, shall stay the proceedings according to the terms of the order. Any order may be revoked or modified by the judge who made it ; or, in case of his absence or inability to act, by either of the other judges. KuxE XIX. These rules shall take effect on the first day of July next (1849); from which time all former rules are abrogated, except so far as it may be necessary to follow them upon appeals and writs of error which shall be then pending. Etjlb XX. — (^Am'd Jmiuary, 1853.) Ten causes only will be called on any day; but after such call, causes ready on both sides will be heard in their order. Any cause which is regularly called and passed, without postponement by the Court, for good cause shown at the time of the call, will be placed on all subsequent calendars, as if the return had been filed on the day. when it was so passed. Causes upon the calendar may be exchanged one for an- other, of course, on filing with the clerk in Court a note of the proposed exchange, witli the numbers of the causes, signed by the respective attorney or counsel. Upon all sub- sequent calendars each of said causes will take the place due to the date of the filing of the return in the other. EULES OF THE COUET OF APPEALS. 485 Any cause, except the first ten upon the calendar, may be struck therefrom before it is reached, of course, and without prejudice by the clerk in Court, on consent of the parties who placed the same upon the calendar, at any time during the first week of term. KULE XXI. The clerk must keep a memorandum of such exchanged and passed causes, and place them upon all subsequent cal- endars, in accordance with the foregoing provisions. EuLES VI., X., XX., with a notice that " fourteen copies of the cases and points are required," must be printed on the first leaf of the calendar. a. The last two preceding rules were adopted July 1st, 1852. EULE XXII. In the argument of a cause, not more than two hours shall be occupied by each counsel, except by the express permis- sion of the Court. a. This rule was adopted April, 1854:. Note. — According to the present organization of the Court of Appeals, four of the Judges of that Court are taken from the bench of the Supreme Court, being the justice whose term of office will first expire in the First, Third, Fifth and Seventh Districts in one year ; and the next year they are taken, iu like manner, from the Second, Fourth, Sixth and Eighth Districts. By the Reyised Statutes, part three, chapter three, title one, section three, all Judges are prohibited from taking any part in the decision of any action which may have been decided by them while sitting in another Court. But, by the laws of 1850, chapter 41, it is provided that the above provision of the Revised Statutes shall not apply to Judges of the Court of Appeals. 11 RULES OF THE SUPREME COURT. 487 TABLE to find the new number of a Rule on knowing its former^ number. Form er No, Present No. Former No. PreseDt No. Former No. Present No. 1 am. 1 31 am. 45 61 am. 67 2 am. 2 32 49 62 69 3 am. 3 33 am. 48 63 85 4 am. 9 34 am. 41 64 am. 86 5 am. 10 35 am. 57 65 87 6 8 36 21 66 88 7 am. 11 37 13 67 89 8 am. 9 am. 14 15 38 I 39 \ Struck out 68 am. 69 am. 90 33 10 am. 16 40 50 70 am. 91 11 17 41 am. 20 & 56 71 am. 6 12 29 42 am. 47 72 77 13 am. 30 43 am. 51 73 78 14 am. 54 44 am. 58 74 79 15 am. 34 45 59 75 84 16 35 46 am. 71 76 92 17 am. 37 47 am. 72 77 44 18 ) 19 \ Struck out 48 49 76 75 78 am. 79 81 82 20 am. 22 50 74 80 83 21 28 51 73 81 52 22 am. 32 52 61 82 am. 23 28 31 53 am. 60 83 5 24 am. 36 54 am. 62 84 18 25 am. 39 55 am. 65 85 am. 24 26 am. 55 56 am. 70 86 19 27 am. 40 57 63 87 53 28 42 58 64 88 7 29 am. 43 59 68 89 93 30 46 60 66 ^nh 0f t\t ^n^xmt €mxl IN GENERAL SESSION OF THE JUSTICES OP THE SUPREME COURT, OP THE SUPERIOR COURT OP THE CITY OP NEW YORK, AND THE COURT OP COMMON FLEAS FOR THE CITY AND COUNTY OF NEW YORK, At the Capitol, In the City of Albany, August 4, 18SS. ICode of 1SB2, 8 4T0.] [ The parts printed in Italics are new.] tion of can didates fo admission. Ordered, That the following Rules shall commence and take effect on the first day of October next : Rttle 1. — (^Amended). Applicants for admission to practice as attorneys and ^Jn'Jf''*' counsellors of this Court, who are entitled to examination, didatea fo shall be examined in open court ; the examination shall be had at general term, and shall commence on the first Wed- nesday of the second and fourth general terms, which shall be held in the several judicial districts in each year, and at no other time or place, and no private examination shall be permitted. Rule 2. — (Amended). To entitle an applicant to an examination, he must prove to the Court : 1. That he is a citizen of the United States, and that he fit?"^^^; , is twenty -one years of age, and a resident of the district in *«• 490 EULES OF THE SUPREME COURT. which he applies, which proof may be made by his own' affidavit of the fact. 2. The evidence of good moral character shall be the cer- tificate of a reputable counsellor of this Court, or of some other reputable person known to the Court ; but such certifi- cate shall not be deemed conclusive evidence, and the Court must be satisfied on the point, after a full examination and inquiry. 3. Svich applicant must sxistain a satisfactory examination upon the law of real and personal property, contracts, part- nership, negotiable paper, principal and agent, principal and surety, insurance, eocecutors and administrators, bailments, cor- porations, personal rights, domestic relations, wills, equity juris- prudence, pleadings, practice' and evidence. ^roiicants 4_ Applicants for admission from other States shall conform to states. the foregoing rules, unless they produce a certificate from a judge of the highest court of original jurisdiction in the State from which they come, to the effect that for three years immediately pireceding they have practiced as attorneys or counsellors in such court, and that they are in good standing as such attorneys or counsellors. Tosignron, 5. Applicants admitted shall sign a roll and subscribe and take the constitutional oath of office. miSBlOD. Rule 3. — (A^nended). Where pa- Papers shall be filed in the county specified in the com- pers to be ^ , , . , HI"?''- plaint as the place of trial, or in the county to which the place of trial has been changed ; and in case the place of trial is changed for the reason that the proper county is not specified, papers on file at the time of the order making such change shall be transferred to the county specified in such order, and all other papers in the cause shall be filed in the county so specified. Papers on When the affidavits and papers upon a non-enumerated ^pccla^ mo- ^ J J 2 li'ied wUhin ^'^^^^^ "'"^ required by law to be filed, and the order to be pn- tcn (lays. (Bred in a county other than that in which the motion is made, the clerk shall deliver to the party prevailing in the motion, EULES OF THE SUPREME COURT. 491 unless the Court shall otherwise direct, a certified copy of the rough minutes, showing what papers were used or read, to- gether with the affidavits and papers used or read upon such motion, with a note of the decision thereon, or the order di- rected to be entered, properly certified ; and it shall he the duty of the party to whom such papers are delivered to cause the same to he filed and the proper order entered in the proper county within ten days thereafter ; or, in default thereof, he shall lose the benefit of the said order. EuLE 4. — {New). It shall be the duty of the plaintiff's attorney forthwith P^f,;'^^" to file with the clerk of the proper county all undertakings "''*'*■ given upon procuring an order of arrest, an injunction order, or an attachment, with the approval of the justice taking the same, endorsed thereon ; and in case such undertaking shall not be filed within five days after the order for arrest or in- junction or the attachment has been granted, the defendant shall be at liberty to move the Court to vacate the proceed- ings for irregularity, with costs, as if no undertaking had been given. It shall also be the duty of the attorney to file, within the ^f^^^i^^ '" same time, and under the like penalty, the affidavits upon which an injunc^n« or attachment has been granted, and also the affidavit ujMi which an order for the service of the summons by publication, or an order for a substituted ser- vice of a summons has been granted, together with the order for such service. Rule 5— (83). Whenever bail are required to justify, they shall justify Ban where within the county where the defendant shall have been ar- to justify. rested, or where the bail reside. 492 RULES OF THE SUPREME COURT. EuLE 6 — {11 Amended). Whenever a justice, or other ofBcer, approves of the se- Suretles to justify and ouHty"to"bo curity to be given in any case, or reports upon its sufficiency, proved. jj. ^-^^y^ ^^ j^j^ ^^^^ ^^ require personal sureties to justify, or, if the security offered is by way of mortgage on real estate, to require proof of the value of such estate. And all bonds Undertak- and Undertakings, and other securities in writing, shall be inffs to be *-' ' °' fed eT' ^^^y proved, or acknowledged in like manner as deeds of real estate, before the same shall be received or filed. EuLE T— (88). Sheriff to file affida- vits on arrest. The sheriff shall file with the clerk the affidavits on which an arrest is made, within ten days after the arrest. EuLE 8— (6). compelled" ^^ ^^7 ^™® ^^^^^ *^^ ^^Y ^^^^ i' ^^ the duty of the OToceM™ sheriff, or other officer, to return, deliver or file any process, undertaking, order or other paper, by the provisions of the Code of Procedure, any party entitled to have such act done, may serve on the officer a notice to reUu-n, deliver or file such process, undertaking, order or oAerpaper, as the case may be, within ten days ; or show cau* at a special term to be designated in said notice, why an attachment should not issue against him. EuLE 9 — (4 Amended). telp''bMk». ^^^ several clerks of this Court shall keep in their respect- ive offices, in addition to the "judgment book," required to be kept by § 279 of the Code of Procedure, a book, properly indexed, in which shall be entered the title of all civil ac- tions and special proceedings, with proper entries under each, RULES OF THE SUPREME COURT. 493 denoting the papers filed, and the orders made, and the steps taken therein, with the dates of the several proceedings; an index of all undertakings filed in the ofiice, stating, in appro- priate columns, the title of the cause or proceeding in which it is given, with a general statement of its condition or a reference to the statute under which it is given, the date when, and before whom acknowledged or proved, by whom ap- proved and when filed, with a statement of any disposition or order made of or concerning it, and such other books, properly indexed, as may be necessary to enter the minutes of the Court, docket judgments, enter orders and all other necessary matters and proceedings ; and such other books as the Courts of the respective districts, at a general term, may direct. Judgments shall only be filed and entered, or docketed, f"2f",®°" in the offices of the clerks of the courts of this State within *uring'^ the hours during which, by law, they are req^uired to keep "^i^® "»"*- open their respective offices for the transaction of business. EuLE 10 — (5 Am-ended). On process or papers to be served, the attorney, besides ^"'"^''^ subscribing or endorsing his name, shall add thereto his ^^Jf^g^"^"! place of business ; and if he shall neglect to do so, papers ™r?X"' may be served on him at his place of residence through the mail, by directing them according to the best information which can conveniently be obtained concerning his resi- dence. This rule shall apply to a party who prosecutes or defends, in person, whether he be an attorney or not.' Rule 11 — (7 Amended). Service of notice of an appearance or retainer sjenerallv, 'What to be 1 n 1 1 ^ T 1 Ti • n 1-1 '''deemed, aa by an attorney tor the aeiendant, shall m all cases be deemed appearance. an appearance. And the plaintiff, on filing such notice at any time thereafter, with proof of service thereof, may have 494 RULES OF THE SUPREME COURT. the appearance of the defendant entered as of the time when such notice was served. Rule l^—{]Sfew). Change of An attomcj may be changed by consent or upon cause shown, and upon such terms as shall be just, upon the appli- cation of the client, by the order of a justice, and not other- wise. Rule 13— (37). Stipulation No private aareement or consent between the parties or must be in -•■ ° ^ _ J^ cme'rel °^ their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or uiiless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel. Rule 14 — (8 Amended). Application Application may be made, in the manner provided by cavery, iiow i^iM, to compcl the productiou E^nd discovery of books, papers, and documents relating to the merits of any civil action pend- ing in this Court, or of any defense in such action, in the following cases : 1. By the plaintiff, to compel the discovery of books, papers or documents in the possession or under the control of the defendant, which may be necessary to enable the plain- tiff to frame his complaint, or to answer any pleading of the defendant. 2. The plaintiff may be compelled to make the like dis- covery of books, papers or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff. 3. Either party may he compelled to make discovery as pre- scribed hy%^m of the Code. RULES OF THE SUPREME COURT. 495 Rule 15 — (9 Amended^. The moving papers on the application for such discovery, ^^pe"^^ shall state the facts and circumstances on which the same ^afe.'" is claimed, and shall be verified by affidavit, stating that the books, papers and documents whereof discovery is sought, are not in the possession nor under the control of the party applying therefor. The 'party applying shall show to the satisfaction of the Court or judge, the materiality and necessity of the discovery sought, and the particular information which he requires. RuxE 16 — (10 Amended). The order for granting the discoverv shall specifv the 9'^^" '•"■ a o •' , discovery. mode in which the same is to be made, which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or, by requiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed in the order. The order shall also specify the time within which the discovery is to bo made. And when papers are required to be deposited, the order shall specify the time that the deposit shall continue, and shall also declare the consequences of an omission to com- ply with the same, and the Court, at any special term, upon proof of the default, may of course grant a rule absolute, giving effect to such order either non-suiting the plaintiff, striking out the defendant's answer, debarring him froin a particular defense, excluding the paper from being given in evidence, or punishing the party in default as for a contempt, as the order for the discovery may require. Rule 17— (11). The order directing the discovery of books, papers or docu- orJ^f '<>■• ments, shall operate as a stay of all other proceedings in the °fay ofy^.* cause, until such order shall have been complied with or "eedingB. 496 EULES OF THE SUPREME COURT. vacated ; and the party obtaining such order, after the same shall be conaplied with or vacated, shall have the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. But the justice, in granting the order, may limit its effect, by declaring how far it shall operate as a stay of proceedings. EuLE 18— (84). Affidavit of Where the service of the summons, and of the complaint serving ' ^ or notice, if any accompanying the same, shall be made by summons. any other person than the sheriff, it shall be necessary for such person to state in his af&davit of service, when, and at what particular place he served the same, and that he knew the person served to be the person mentioned and described in the summons as defendant therein ; and also to state in his affidavit, whether he left with the defendant such copy, as well as delivered it to him. EuLE 19— (86). nore than one dist "TOunds'of <3efense, counter-claim or reply, the same shall not only be Numbering In all cascs of more than one distinct cause of action, causes of ' separately stated but plainly numbered. EuLE 20 — (41 Amended). m°a"kld"aSd '^^^ attorney or other officer of the court who draws any c'ause°en- pleading, deposition, affidavit, case, bill of exceptions, re- doiiBed. ppj,^^ ^ other paper, or enters any judgment, exceeding two folios in length, shall distinctly number and mark each folio in the margin thereof; and all copies, either for the parties or for the Court, shall be numbered or marked in the margin, so as to conform to the original draft or entry, and to each to b6*'°^' other, and shall be endorsed with the title of the cause. And all wfi'ttln. tlie pleadings and other proceedings, and copies thereof, shall RULES OF THE SUPREME COURT. 497 be fairly and legibly written, and if not so written andfolioed, and endorsed as aforesaid, the clerks shall not file such as may be offered to them for that purpose ; nor will the Court hear any motion or application founded thereon. The party upon objections, whom the paper is served shall he deemed to have waived the waived. objection, unless within twenty four hours after the receipt thereof, he returns such paper to the party serving the same, with a statement of the. particular objection to its receipt. EuLE 21— (36). Whenever it shall be necessary, in any affidavit, to swear Advice of " ' •' ' , counsel, to the advice of counsel, the party shall, in addition to what ^"•^ sta"^- haa usually been inserted, swear that he has fully and fairly stated the case to his counsel, and shall give the name and place of residence of such counsel. EuLE 22 — (20 Amended). No order extending the time to answerer demur to a com- Time to plaint shall be granted, unless the party applying for such extended order shall present to the justice or judge to whom the anoli- affidavit cation shall be made, an affidavit of merits, or an affidavit of the attorney or counsel retained to defend the action, that, from the statement of the case in the action made to him by the defendant, he verily believes that the defendant has a good and substantial defense upon the merits, to the cause of action set forth in the complaint, or to some part thereof. And if any extension of time to answer or demur has been Subsequent . , Tint extension. granted by stipulation or order, the fact shall be staled in the affidavit. EuLE 23 — (82 Amended.) If any application for an order be made to any judge or subsequent iustice, and such order be refused in whole or in part, or be for order granted conditionally, or on terms, no subsequent application refusal. upon the same state of facts, shall be made by any other. 498 EXILES OF THE SUPREME COUET. judge or justice ; and if, upon such subsequent application, any order be made, it shall be revoked. And inhis affidavit for such order the party shall state whether any previous appli- cation/or such order has been made. Rule 24 — (85 Amended). onlfnur"' When the plaintiff in the action is entitled to judgment vh^TtJ\>e upon the failure of the defendant to answer the complaint, applied for. ^^^ ^-^^ relief demanded requires application to be made to the Court, such application may be made at any special term, in the district embracing the county in which the action is triable, or in an adjoining county ; such application may also be made at a circuit court in the county in -which the action is triable. But when a reference, or writ of inquiry shall be ordered, the same shall be executed in the county in which the action is triable, unless the Court shall otherwise order. EuLE 25 — {New). Judgment Jn actionsfor the recovery of money only, when the summons 'ubikau^ Aas heen served by publication under section 135 of the Code, no judgment shall be entered, unless the attorney, at the time ofmaTcing the application for judgment, shall show, by affidavit, that an at- tachment has been issued in the action and levied upon property belonging to the defendant, which affidavit shall contain a specific description of such property, and a statement of its value, and shall be attached to and filed with the affidavits of publication ; nor unless the plaintiff shall at the time produce and file with te cle r k an undertaking with two sureties to he approved of by the Court, that the plaintiff will abide the order of the Court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or de- livered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or RULES OF THE SUPREME COURT. 499 his representatives shall apply and be admitted to defend the action and shall succeed in such defense. Rule 26— (20 of 1852.) Whenever the plaintiff shall hare neglected to bring his Plaintiff cause to trial according to the practice of the Court, and the '"'e 'o^ , " i ' proceed to same shall not have been noticed by the defendant, the plain- 1"*"- tiff may, if he have not before stipulated, tender a stipulation and offer to pay the costs to which the defendant is entitled up to that time. EuLE 27— (21 of 1852.) Whenever an issue of fact shall have been joined in any Dismissing action, and the plaintiff therein shall fail to bring the same for not , proceeding to trial according to the course of practice of the Court, the » trial, defendant may move for the dismissal of the complaint with costs. If it is made to appear to the Court that the neglect of the plaintiff to bring the action to trial has not been unreason- able, the Court shall permit the plaintiff, on payment of costs, to bring the said action to trial at the next Court where the same is triable. EuLE 28— (21.) Issues of fact to be tried bv the Court may be tried at the issues or •' •' fact, how circuit or special term. tr'ed. EuLE 29— (12.) Inquests may be taken in actions, out of their order on the in what calendar, in cases in which they were heretofore allowed at inquest ' *' may be ' taken. 500 RULES OF THE SUPEEME COURT. the opening of the Court, on any day after the first day of the Court, provided the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served. Rule 30 — (13 Amended). Examin- ation of witnesaes, how con- ducted. Time for summing up. On the trial of issues of fact, one counsel only on each side shall examine or cross-examine a witness, and one counsel only on each side shall sum up the cause, and during such examination the examining counsel shall stand, and the tes- timony, if taken down in writing, shall be written by some person other than the examining counsel ; but the justice who holds the Court may otherwise order, or dispense with this requirement. No coiinsel shall occupy more than one hour in summing up, unless by permission of the Court. EuLE 31— (23.) Callinff Plaintiff. It shall not be necessary to call the plaintiff when the jury return to the bar to deliver their verdict ; and the fo"nonsuu^ plaintiff shall have no right to submit to a non-suit, after the jury have gone from the bar to consider of their verdict. Rule 32— (22 Amended.) Submitting to nonsuit leferees. On a hearing before referees, the plaintiff may submit to a before™'*^*' nou-suit or dismissal of his complaint, or may be non-suited, or his complaint be dismissed in like manner as upon a trial, at any time before the cause has been finally submitted to referees for their decision. In which case the referees shall report according to the fact, and judgment may thereupon be perfected by the defendant. RULES OF THE SUPBBME COUBT. 501 Upon a trial bu referees, they shall, in their decision and i""™ "f ■* J ^ ' J 1 referees final report, state the facts found hy them and their conclu- report. sions of law separately, a copy of which shall be served with notice of the judgment, and the time within which exceptions may be taken to the report shall be computed from the time of such service. In references other than for the trial of the issues in an ?"°o®''" action, upon the coming in of the report of the referee, the othe"thaa same shall be filed and a note of the day of the filing shall be f/aJ,^. entered by the clerk in the proper book, under the title of the cause or proceeding ; and the said report shall become abso- lute and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after the service of notice of filing the same. If exceptions are filed and served within such time, the same may be brought to a hearing at any special term thereafter^ on the notice of any party inter- ested therein. Rule 33 — (69 Amended). In cases where the trial of issues of fact is not provided for J|J°^j ^°'" in § 253 of the Code, if either party shall desire a trial by jury, such party shall, within- ten days after issue joined, give notice of a special motion, to be made upon the pleadings, that the whole issue, or any specific questions of fact involved therein, be tried by a jury. With the notice of motion shall be served a copy of the questions of fact proposed to be sub- mitted to the jury for trial, and, in proper form, to be incor- porated in the order, and the Court or judge may settle the issues, or may refer it to a referee to settle the issues. Such issues must be settled in the form prescribed in § 72 of the Code of Procedure. In all actions for divorce, when issue is joined by the i^uo on ' ** ^ question of pleadings upon the question of adultery, such issues shall »'iuitery. not be tried by a jury until the issues to be tried shall be . settled in like manner as in other actions where issues arising out of the pleadings are required to be settled. When any specific questions of fact involved in an action, 18 502 EIJLES OF THE SUPREME COURT. Mw'tSah' ^^ ^^7 q.'iestion of fact not put ia issue is ordered to be tried by a jury as a substitute for a feigned issue, and has been tried, or a reference, other than of the whole issue, has been ordered, under § 371 of the Code, and a trial had, if either party shall desire to apply for a new trial, on the ground of any error of the judge or referee, or on the ground that the verdict or report is against evidence, (except where the judge directs such motion to be made upon his minutes at the same term or circuit at which the issues are tried,) a case or excep-- tions shall be made, or a case containing exceptions, as the case may require, which case or exceptions shall be served and settled in the manner prescribed by the rules of Court for the settlement of- cases and exceptions in other cases. Such motion shall be made, in the first instance, at special term ; and if neither party move for a new trial in such case, they shall be deemed to have acquiesced in the decisions of the judge or referee, and the verdict of the jury or report of the referee, and the same shall not be questioned upon the final hearing of the cause, or in any subsequent proceeding therein. Rule 34 — (15 Amended). Settling Case. Exce] and Whenever it shall be intended to move for a new trial -P"™', (except for irregularity, surprise, or upon the minutes of the verdicts, judge), or to rcvicw, by appeal or otherwise, a trial by jury, by the Court, or by referees, a case or exceptions, or case containing exceptions, as may be proper, and the party may elect, shall be prepared by the party intending to make the motion or to review the trial, and a copy thereof shall be Eerved on the opposite party within ten days after the trial, if by jury, or after a written notice of the filing of the decis- ion or report, if the trial be by the Court or by referees ; and the party served may within ten days thereafter propose ■ amendments thereto and serve a copy on the party proposing the case or exceptions, who may then within four days there- after serve the opposite party with a notice that the case or exceptions, with the proposed amendments, will be submitted, EULES OF THE SUPREME COURT. 503 at a time and place to be specified in the notice, to the justice or referee before whom the cause was tried, for settle- ment. The justice or referee shall thereupon correct and settle the case, as he shall deem to consist with the truth of the facts. The time for settling the case must be specified in the notice, and it shall not be less than four, nor more than twenty days after service of such notice. The lines of the case shall be so numbered that each copy shall ijorrespond. Cases reserved for argument and SJieoial verdict shall be settled in the same manner. KuLE 35— (16). If the party shall omit to make a case within the time case how ■*■ •' waived and above limited, he shall be deemed to have waived his right J^^/^^^ thereto; and when a case is made, and the patties shall '^"'®'^- omit, within the several times above limited, the one party to propose amendments, and the other to notify an appear-- ance before the justice or referee, they, shall respectively, be deemed, the former to ;have agreed to the case as proposed, and the latter to have agreed to the apiendments as pro- posed. Rule 36 — (24 Amended). Exceptions shall only contain so milch of the evidence Exception!, as may be necessary to present; the tjuestibns of law upon contain, which the same were taKeh on the trial; and it shall be the duty of the justice, upon settlement, to' strike out all the evidence and other matters which shall not have been necessarily inserted. Whenever amendments are proposed to a case or excep- Amend- , .11, ments, how tions, the party proposmg such case or exceptions shall, '« be before submitting the same to, the justice for settlement, mark upon the several amendments his proposed allowance or disallowance thereof. < •'<-■- • 504 BULES OP THE SUPBEME COURT. Rui^ 37 — (IT Amended^. or ex? "^'^ Where a party makes a case or exceptions, lie shall pro- oeptions. Q^j.g ^jjg g^j^g J.Q ^g £jgjj^ within ten days after the same shall be settled, or it shall be deemed abandoned. decfaring ■^''^^ '>'"■ filing affidavit thai such case or exceptions has doMd.,*"' not been filed and showing the time of the settlement thereof , and that more than ten days have elapsed from the time of such settle- ment, an order, of course, may he entered declaring the same abandoned, and the party may proceed as if no case or excep- tions had been made. EuLE 38 — {New). statement of facte on A party, desiring to appeal to the Court of Appeals in an courf of" action tried by the Court or Referees, may have the facts, Appeals, ypon which the decision of the general term was based, settled for the purpose of such appeal, and, for the purpose of such settlement, the party shall, within twenty days after notice of the judgment, propose and serve upon the opposite party such a statement of the facts as he deems proper. The party, upon whom such statement is served, may, within twenty days after such service, prepare such amendments to the statement as he may deem proper, which amendments shall be in writing, and served on the moving party. The party preparing the original statement may give eight days' notice that the statement and amendments will be pre- sented for settlement to the justice who delivered the opinion in the case, or, if no opinion was delivered, to the presiding justice of the Court ; such justice shall settle the facts, and upon the statement, as settled by him, he shall endorse an order that the statement be attached to the judgment-roll. Rule 39 — (25 Amended). All .questions for argument, and all motions, shall be brought before the Court on a notice, or when a notice less KULE3 OF THE SUPBEME COtTBT. 505 than eight days is prescribed by the judge or Court, under ^^f^^? „g § 402 of the Code, by an order to show cause ; and, if the noticed opposite party shall not appear to, oppose, the party making fhe'leon*''"' the motion or obtaining the order shall be entitled to the rule or judgment moved for, on proof of due service of the notice or order and papers required to be served by him, unless the Court shall otherwise direct. Svich order to show cause shall only he granted when a special °how canoe reason for a notice less than eight days appears on the papers pre- ^d^i^'how sented, and the party shall in his affidavit state the present condi- ''""™^'''*' tion of (he action, and whether at issue, and the time appointed for the next circuit in the county where the action is triable. The order shall also {except in the first judicial district) be re- turnable only before the judge who grants it, or at a special term appointed to be held in the district in which sicch judge resides. No order served after the action shall have been noticed for trial, if served within ten days of the circuit, shall have the effect to stay the proceedings in the action, unless made at the circuit where a etay or J Jr i7 7 proceediiigB such action is to be tried, or by the judge who is appointed to hold such circuit. And when the motion is for irregularity, the notice or ?(';^^fft°'*^^ order shall specify the irregularity complained of ^'^'«'*- This rule, so far as it permits a judgment by default, or by Judgment the consent of the adverse party, shall not extend to a com- cases. plaint for a divorce. Rule 40 — (2*7 Amended). Enumerated motions are motions, arising on special verdict, ^^""""on issues of law, cases, exceptions, appeals from orders sustaining or overruling demurrer, appeals from an inferior Court, and appeals by virtue of § 348 of the Code. Non-enumerated motions include all other questions sub- ^°°;®^^- mitted to the Court, and shall be heard at special term, motione. except when otherwise directed by law. Contested motions shall not be noticed or brought to a contested . T 7 7 7 1. . J 7 motions, hearing at any special term held at the same time and place where to be with a circuit, except in actions upon the calendar for trial 508 E0LE8 OF THE SUPBEME COURT. at such circuit and in vbhich the hearing of the motion is necessary to the disposal of the cause, and except also that in counties in which no special term distinct from a circuit is appointed to^ be held, motions in actions triable in any such county may he noticed and brought on at the time of holding the circuit and sjieczal terms in the county in which $uch actions are triable. BuLE 41 — (34 Amended). riling notes Notes of issue for the general term shall be filed eigtt days before the oommeuoement of the Court at which the General oauses may be noticed. The Clerfe shall prepare a calendar cti^dar. for t^^ general term and cause the same to be printed for each of the justices holding the court. Appeals shall be Date of placed on the calendar according to the date of the service of the notice of appeal ; and other oases, as of the time when the question to be reviewed arose. U93Ue. Ettle 42— (28). Enumerat- Enumerated motions shall be noticed for the first day of ed motions, how term by either party. notieed. •^ r J ■* ■ i n -l Papers to The papers to be furnished on stJoh motions shall be a ■be^fumiah. ^^^ ^|. ^^^ pleadings, when the question arises on the pleadings, ^r mj part therepf, ofol" such parts only as relate to '.the qupstion ji;aii!ed by the dem?uTer; a copy of .'the special verdict, returu eg* other papers on which the ' question arises ; and the ,pa?ty wh<^p ,^^tj it is to u'^^^^s^ ,ihe papers shall , serve a copy on the pppp^ite party, except jUpon it^ria^ ,of issues of law, at ,lea§t eight days before the ; time the i^iatte,r may be noticed for argument. ^ (t^e party W^Qse .d,uty it is jto fijii^is.);! the papprs shall neglect, to d9so, ik^ iPpposite p?,rty shall be entitled to move, on affldayit, atfd notice of motion^ that the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor ; provided, how- ever, that in mortgage and partition cases, where the plain- BULES OP THE SUPEEME COURT, 607 tiff's rights are not contested, no copies of pleadings need be furnished to the Court. The papers shall be furnished by the plaintiff, when the 4Som5 question arises on special verdict, and by the party demur- ring, in cases of demurrer, and in all other cases by the party making the motion. Rule 43 — (29 Amended). When ■ an appeal is noticed for a general term, in cases Papers to / ^ ° ' be furnieh- embraced m chaper 3 of title 11 of the Code, and of §348 «don ^ - " . appeal, of the Code, the appellant shall, furnish the papers for the ^^^^ Court, which consist of a copy of the judgment-roll, together with a case, stating the time of the commence- ment of the suit, and of the service of the respective plead- ings, the names of the original parties in full, the change of parties, if any has taken place pending the suit, to whicli shall be added the opinion of the Court below, or an affida- vit that no opinion in writing was given, or if given that a copy could not he procured. At the commencement of the argument the appellant shall furnish a printed copy of the "^"^^^^^ papers to each of the judges, together with a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and he shall also deliver to the attorney of the adverse party, at least eight days before the first day of the term, three printed copies of the said papers. And, at the commencement of ^°^'|_*°'"' the argument, each party shall serve upon his adversary a printed copy of his . points- and authorities on which lie intends to rely. In case the appellant neglects so to furnish striking ■^ ^ ^ , " , cause from to the adverse party the said number of copies of the papers, ea'endar. the latter shall be entitled to move, on af&davit and notice of motion, for the earliest practicable day in term for hear- ing non-enumerated motions, that the cause be stricken from the calendar (whichever party may have noticed it for argu- ment), and that judgment be rendered in his favor. When a case is agreed upon by the parties according to cases under § 372 of the Code, the plaintiff shall furnish the necessary ' papers for argument, duly printed, as in cases of appeal. 508 EULE3 OF THE SUPREME COURT. Rule 44— (77). Appeals On the appeal to this Court from the order, sentence or from flurro- ^ *■ ' gate's deci- decree of a surrogate's court, the party appealing shall file a petition of appeal, addressed to this Court, with the clerk of the county in which the order, sentence or decree appealed from was made, within fifteen days after the appeal is entered in the Court below, or the appeal shall be considered as waived ; and any party interested in. the pro- ceedings in the Court below may thereupon apply to this Court, ex parte, to dismiss the appeal with costs. The Petition, petition of appeal shall briefly state the general nature of the proceedings, and of the sentence, order or decree ap- pealed from, and shall specify the part or parts thereof com- plained of as erroneous ; except where the whole sentence, order or decree is alleged to be erroneous, in which case it shall be sufficient to state that the same and every part thereof is erroneous. And where the appeal is from a sen- tence or decree, on the settlement of the accounts of an executor, administrator, or guardian, if the appellant wishes to review the decision as to the allowance or rejection of any particular items of the account, such items shall be specified in the petition of appeal; or the allowance or disallowance of any such items shall not be considered a sufficient ground for reversing or modifying the sentence or decree appealed from. Answer to The respondent, in his answer to the petition of appeal in such cases, may also specify any items in the account, as to which he supposes the sentence or decree is erroneous, as against him and in favor of the appellant. And upon the hearing of the parties upon such appeal, the sentence or decree may be modified as to any such items, in the same manner as if a cross-appeal had been brought by such respondent. The Order to appellant may have an order of course, that the respondent petttion. in the petition of appeal answer the same within twenty days after the service of a copy of the petition of appeal and notice of the order, or that the appellant be heard ex parte. And where the respondent is an adult, upon filing an affidavit of RULES OP THE SUPREME COURT. 509 such service upon the attorney of the respondent, if he has appeared either in this Court or in the Court below by an attorney of this Court, or upon the surrogate, if he baa not appeared by such attorney, and that no answer to the petition of appeal has been received, the appellant tnay have an order of course that the appeal be heard ex parte as against such respondent. Where the respondent is a minor, if he does Guardian ad litem, not procure a guardian ad litem upon the appeal, to be ^""^^^p: appointed within twenty days after the filing of the petition of appeal, the appellant may apply to a justice of this Court, ex parte, for the appointment of such guardian. And if the minor has appeared by his guardian ad litem in this Court, the appellant may have an order of course that the guardian ad .litem of the respondent answer the petition of appeal within twenty days after the service of a copy thereof and notice of the order, or that an attachment issue against such guardian. When a petition of appeal is filed, if it has not order to de- ■u 111 1 1 "''^■' ""py been served on the adverse party, the respondent may have peiition. an order of course, that the appellant deliver a copy of the petition of appeal to the attorney, or to the guardian ad litem of the respondent, within ten days after the service of notice of such order, or that the appeal be dismissed ; and if the same is not delivered within the time limited by such order, the respondent, upon due notice to the adverse party, may apply at a special term to dismiss the appeal, with costs. Upon the hearing of any such appeal as is referred to in this Appellant rule, it shall be the duty of the appellant to furnish the Court papers. with a copy of the petition of appeal, and of the answer thereto, if an answer has been received, and a copy of the proceedings below, including a copy of the appeal as entered. EuLE 45 — (31 Amended). In all enumerated motions, each party shall briefly state, Points on , . motions. upon his printed points, the leading facts which he deems established, with a reference to the folios where the evidence dibcussIoq of such facts may be found ; and the Court will not hear an extended discussion on a mere question of fact. 510 EULES OF THE SUPREME COURT. Gases, Points, &c., how printed. Rule 46— (30). The cases and points, and all other papers furnished to this Court at a general term in calendar causes, shall be printed on white "writing paper, with a margin on the outer edge of the leaf, not less than one and a half inch wide. The printed page, exclusive of any marginal note or refer- ence, shall be seven inches long and three and a half inches wide. The folio, numbering from the commencement to the end of the papers, shall be printed on the outer margin of the page. Certiorari, when heard. Etjle 47 — (42 Amendeo^. Every case on certiorari to subordinate courts, tribunals, or magistrates, may be brought to a hearing by either party upon the usual notice of argument, and shall be entitled to preference, on the morning of any day during the first week of term. Non -enu- merated motiona, hearing of. EiTLE 48 — (33 Amended). Non-enumerated motions made in term time at a general term will be heard on the first day, and Thursday of the first week, and Friday of the second week of the term, immediately after the opening of the Court on that day. Except in the first judicial district, a party attending, pursuant to notice, to oppose a non-enumerated motion, if the same shall not he made on the day for which it is noticed, may at the close of that order of Iv^iness take a rule against the party giving ths notice for costs for attending to oppose. Motions in criminal cases may be heard on any day in term. Rule 49— (32). Non-enu- Non-cnumerated motions, except in the first district, shall merated ' '■ « , motions, be noticed for the first day of the term or sittmg of the noticed. Court, acoompanied with copies of the affidavits and papers EULE3 OF THE SUPREME COURT. 511 on which the same shall be made ; and the notice shall not be made for a later day, unless sufficient cause be shown (and contained in the affidavits served) for not giving notice for the first day. EuLE 50— (40). Motions to strike out of any pleading, matter alleged to Motions to be irrelevant or redundant, and motions to correct a plead- pleadings, ing, on the ground of its being " so indefinite or uncertain, that the precise nature of the charge oi defense is not appa- rent," must be noticed, before demurring to or answering the pleading, and within twenty days from the service thereof. Rule 51 — (43 Amended). The return to a writ of mandamus or of prohibition having Proceedings ^ ^ ° on return to been filed, the party making such return may serve a notice mandamus, upon the relator, requiring him to demur, or plead thereto within twenty days after such service, and if no plea or demurrer to such return be interposed within that time, either party may notice the matter for a hearing at the next or any subsequent special term at which the same may, according to- the practice of the Court, be heard, as a non- enumerated motion, and the same shall be heard and dis- posed of on the said return. Rule 52~(81). Auclications for an additional allowance under the pro- Additional - ^' , n T-. 1 allowances. visions of the 809th [308] section of the Code of Procedure, can only be made to the Court before which the trial is had, or the judgment rendered. 512 RULES OF THE SUPREME COURT. Amending justice's return on appeal. Rule 58— (87). On appeals from a justice's judgment, where the county court has not jurisdiction, by reason of relationship, &c., a notice of motion for an order to compel the justice to amend his return may be given in twenty days after the date of the certificate of the county judge, and not after that time. Number ol counsel. Rule 64 — (14 Amended). At the hearing of causes at a general or special term, not more than one counsel shall be heard, on each side, and then not more than one hour each, except when the Court shall otherwise order. Gounael'to endorse proof of notice. &c Rule 55— (26). When^a rule is obtained, either at a general or special term, by default, the counsel obtaining the same shall, endorse his name as counsel on the paper containing the proof of notice ; and the clerk, in entering the rule, shall specify the name of such coxmsel. Rule 56 — (41, see Rule 20 ante). markld'" ^^ ^^® attomcy or other officer of the Court who draws any pleading, deposition, affidavit, case, bill of exceptions, or report, or enters any judgment, exceeding two folios in length, shall distinctly number and mark each folio in the margin thereof; and all copies, either for the parties or the Court, shall be numbered or marked "in the margin so as to conform to the original draft or entry, and to each other, fo'blfi?^ And all the pleadings and other proceedings, and copies biy written, thereof, shall be fairly and legibly written, and, if not so written, the clerks shall not file such as may be offered to them for that purpose. RULES OP THE SUPREME COURT. 513 Rule 57 — (35 Amended). In all cases where a motion shall be granted, on payment TOSpi'°ing^ of costs, or on the performance of any condition, or where J^*°'" the order shall require such payment or performance, the party whose duty it shall be to comply therewith shall have twenty days for that purpose, unless otherwise directed in the order. But, where costs to be adjusted are to be paid, the party shall have fifteen days to comply with the rule, after the costs shall have been adjusted by the clerk, on notice, unless otherwise ordered. Rule 58 — (44 Amended). No order to stay proceedings for the purpose of moving °''''%J\ to change the place of trial shall be granted, unless it shall ™^ '° appear from the papers that the defendant has used due ^^""*- diligence in preparing the motion for the earliest practica- ble day after issue joined. Such order shall not stay the plaintiff from taking any step, except subpoenaing "witnesses for the trial, without a special clause to that effect. On pre- ^1""°^ senting to and filing with the officer granting the order an affidavit, showing such facts as will entitle the plaintiff, according to the settled practice of the Court, to retain the place of trial, the officer shall revoke the order to stay pro- J^°"^tuL ceedings ; and the plaintiff shall give immediate notice of such revocation to the defendant's attorney. Rule 59— (45). In addition to what has been usually stated in affidavits f^^^Hg' concerning venue, either party may state the nature of the ^*°""'" controversy, and show how his witnesses are material ; and may also show where the cause of action or the defense, or both of them arose ; and those facts will be taken into consideration by the Court, in fixing the place of trial. 514 RULES OF THE SUPREME COURT. G-aardians ad litem. KuxE 60 — (53 Amended). No person shall be appointed guardian ad litem either on the application of the infant or otherwise, unless he be the general guardian of such infant, or is fully competent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. And no person shall be appointed such guardian who is not of sufficient ability to answer to the infant for any damage which may be sustained by his negli- gence or misconduct in the prosecution or defense of the suit. This rule shall not apply to actions for the recovery of money only, or of specific real or personal property, as speci- fied in § 253 of the Code. Duty of guardian ad litem. KuLE 61---(52). It shall be the duty of every attorney or officer of this Court to act as the guardian of: any infent defendant in any suit or proceeding against him. whenever appointed for that purpose by an order of this Court. And it shall be the duty of such guardian to examine into the circumstances of the case, so far as to enable him to make the proper defensor when necessary for the protection of the rights of the infant, and he shall be entitled to such compensation for his services as the Court may deem reasonable. KuLE 62 — (54 Amended). Guardian not to re No guardian ad litem for an infant party, unless he has <=eive pro-^^ given securfty to the infant according to law, shall, as such been"'fven' gi^irdian, receive any money or property belonging to such infant, or which may be awarded to him in the suit, except such costs and expenses as miay be allowed by the Court to the guardian out of the fund, or recovered by the infant in EULES OP THE SUPREME COURT. 615 the suit. Neither shall the general guardian of an infant receive any part of the proceeds of a sale of real property belonging to such infant sold tinder a dbcree, judgment or order of the Court, until the guardian has given such further security- for the faithful discharge of his trust as the Court may direct. Rule 63-^(57). General ian, For the purpose of having a general guardian appointed, ^°/J: the infant, if of the age of fourteen years or upwards, or poJ^f/d" some relative or friend, if the infant is under fourteen, may present a petition to the Court, stating the age and residence of the infant, and the name and residence of the person proposed or nominated as guardian, and the relationship, if any, which such person bears to the infant, and the nature, situation and value of the infant's estate. EuLE 64— (58). Upon presenting the petition, the Court shall, by inspec- ^ge of in- tion or otherwise, ascertain the age of the infant, and, if of ascertained. the age of fourteen years or upwards, shall examine him as to his voluntary nomination of a suitable and proper person as guardian ; if under fourteen, shall ascertain who is enti- tled to the guardianship, and shall name a competent and proper person as guardian. The Court shall also ascertain the amount of the personal property, and the gross amount or value of the rents and profits of the real estate of the infant during his minority, and shall also ascertain the sufficiency of the security offered by the guardian. Rule 65 — (55 Amended). The security to be given by the general guardian of an security by infant shall be a bond, in a penalty of double the amount guardian. of the personal estate of his ward, and of the gross amount 516 RULES OF THE SUPREME COURT. or value of the rents and profits of the real estate, during his minority, together with at least two sufficient sureties, each of whom shall be worth the amount specified in the penalty of the bond, over and above all debts ; or, instead of personal security, the guardian may give security hj way of mortgage on unincumbered real property, of the value of the penalty of his own bond only. But the Court, in its discretion, may vary the security, where, from special cir- cumstances, it may be found for the interest of the infant ; and may direct the principal of the estate, or any part thereof, to be invested in the stocks of the Slate of New- York, [or] of the United Stales, or with the New- York Life Insurance and Trust Company, or the United States Trust Company, or on bond and mortgage for the benefit of the infant, and that the interest or income thereof, only, be re- ceived by the guardian. Rule 66— (60). Application Au infant, by his oreneral eruardian, if he haa any, and, if to appoint . n , • o-i . . •peeiai there IS none, by his next friend, may present a petition, stating the age and residence of the infant, the situation and value of his real and personal estate, the situation, value and annual income of the real estate proposed to be sold, and the particular reasons which render a sale of the premi- ses necessary or proper ; and praying that a guardian may be appointed to sell the same. The petition shall also state the name and residence of the person proposed as such guardian, the relationship, if any, which he bears to the infant, and the security proposed to be given ; and the peti. tion shall be accompanied by affidavits of disinterested per- sons, or other proofs verifying the material facts and circum- stances alleged in the petition. And, if the infant is of the age of fourteen, he shall join in the application. EULES OF THE SUPREME COURT. 517 Rule 67 — (61 Amended). If it satisfactorily appears that there is reasonable ground petiuonl.. for the application, an order may be entered, appointing a guannau. guardian for the purposes of the application, on his execut- ing and filing with the clerk the requisite security, approved of, as to its form and manner of execution, by a justice of this court or a county judge, signified by his approbation endorsed thereon, and directing a reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, or any and what part thereof, would be beneficial to the infant, and the particular reasons therefor > and to ascertain the value of the property proposed to be sold, and of each separate lot or parcel thereof, and the terms and conditions upon which it should be sold ; and whether the infant is in absolute need of any and what part of the proceeds of the sale for his support and maintenance, over and above the income thereof, and his other property, together with what he might earn by his own exertions. And if there is any person entitled to dower in the premises, who is willing to join in the sale, also to ascertain the value of her life estate in the premises, on the principle of life annuities. But no preceedings shall be had upon such Procecd- , ings on reference, until the guardian produces a certificate to the ^^"^ '"''ef- clerk, that the requisite security has been duly proved or acknowledged, and filed agreeably to the order of the Court ; and which certificate shall contain the name of the officer by whom it was approved, and shall be annexed to the report. The said report shall contain in itself a statement of the particular reasons which in the opinion of the ?-eferee render a sale of the premises necessary or proper, and of all the facts required to he ascertained and reported, and shall not refer to the petition or affidavits for such statements. EuLE 68— (59). The security required on a sale of the real estate of an security by ■^ ■*■ special infant, shall be a bond of the guardian, with two sufficient guardiau-- 19 5J8 EtTLES OF THE SUPEEME COUKT, miTeties, in ^a penalty of double the value of the premises, including the interest on such value during the minority of the infant, each of which sureties shall be worth the penalty of the bond, 'over an^ above all debts ; or a similar bond of the guardian only, secured by a mortgage on unincumbered real estate, of the value of the penalty of such bond. KuLE 69— (62). bebroiSht'' ^^ ^^^ procceds of the sale exceed five hundred dollars, into court. ^^^ ^j^g guardian has not given security by mortgage upon real estate, he shall bring the proceeds into Court, or invest the same under the direction of the Court, for the use of the infant ; and the guardian shall only be entitled to receive so much of the interest or income thereof, from time to time, as may be necessary for the support and maintenance of the infant, without the order of the Court. If the infant's interest in the property does not exceed one thousand dollars, the whole costs, including disbursements, shall not exceed twenty-five dollars. And, where several infants are interested in the same premises as tenants in common, the application in behalf of all shall be joined in the same peti- tion although they may have several general guardians ; and there shall be but one reference to ascertain the propriety of a sale as to all, and but one bill of costs shall be allowed. EuLE 70 — (56 Amended). Wlicn mtjiieya may No moneys arising from the sale of the real estate of an '"'if'ai'" infant, on a mortgage or partition sale, or under any decree, i^ardian. judgment or order of Court, shall be paid over to his gene- ral guardian, except so much thereof, or of the interest or income, from time to time, as may be necessary for his sup- port or maintenance ;, unless such guardian has previously given sufficient security on unincumbered real estate, to account to the infant for the same, in the usual form. Orders to JVo Order shall be made for the payment of any such moneys pay money. _ _ •' ^ •' . . to any person claiming the same, except upon petition, accom- RULES OP THE SUPREMK COURT. 519 panted by a certified copy of the order in pursuance of which the money was brought into Court, together with a statement of the county treasurer, city chamberlain, or other depository of the money, showing the present state and amount of the funds, separating the principal and interest, and showing the amount of each; and the Court may take such proof of the truth of the matters stated in the petition as shall be deemed proper, or may refer the same to a suitable referee to take proof and report thereon. Rule 71 — (46 Amended). If, in aii action to foreclose a mortgage, the defendant Eeference ' o o ) * to compute. fails to answer within tlie time allowed for that purpose, ^°™^ ' or the right of the plaintiiF, as stated in the complaint, is ""'•'K'^g'"- admitted by the answer, the plaintiff may have an order referring it to the clerk, or to some suitable person as referee, to compute the amount due to the plaintiff, and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels, if the whole amount secured by the mortgage has not become due. If the defendant is an infant, and has put in the general answer wbea proof by his guardian, or if any of the defendants are absentees, be also the order of reference shall also direct the person to whom it is referred, to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any payments which haye been made, and to compute the amount due on the mortgage preparatory to the application for judgment of foreclosure and sale. Where no answer is put in by the defendant, within the time allowed for, that purpose, or any answer denying any material facts of the complaint, the plaintiff, after the cause is in readiness for trial as to all the defendants, may apply Judgment ' '' '■^ -^ Hi special for judgment, at any special term, upon due notice to such '«™. of the defendants as have appeared in the action, and with- out putting the cause on the calendar. The plaintiff, in such case, when he moves for judgment, must show by affidavit, 520 RULES OF THE SUPEEME COUET. or otherwise, -whether any of the defendants, who have not appeared, are absentees ; and, if so, he must produce the report, as to the proof of the facts and circumstances, stated in the complaint, and of the examination of the plaintiff, or , his agent, on oath, as to any payments which have been Proof of made. And in all foreclosure cases, the plaintiff, when he filing notice ' ^ ' dine ''™' ™°'^^s for judgment, must show by affidavit, or by the certi- iScate of the clerk of the county in which the mortgaged premises are situated, that a notice of the pendency of the action, containing the names of the parties thereto, the object of the action, and a description of the property in that coun- ty affected thereby, the date of the mortgage, and the time and place of recording the same, has been filed at least twen- ty days before such application for judgment, and at or after tM time of filing the complaint, as required by § 132 of the Code of Procedure. EuLE 12 — (4T Amended). Judgment In evcrv iadgment for the sale of mortgaged premises, the forsaleof , . . '' f^ . -. , , . „ ,^ ^ ' , mortgaged description and particular boundaries ot the property to be premiBes. '■ ■*■ l i j sold, SO far, at least, as the same can be ascertained from the mortgage, sliall be inserted. And unless otherwise specially ordered by the Court, the judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to raise the amount due to the plaintiff" for principal, inter- est and costs, and which may be sold separately without ma- terial injury to the parties interested, be sold by, or under the direction of the sheriff of the county, or a referee, and that the plaintiff, or any other party, may become a pur- chaser on such sale; that the sheriff or referee execute a deed to the purchaser ; that out of the proceeds of the sale, he pay to the plaintiff, or his attorney, the amount of his debt, interest and costs, or so much as the purchase money will pay of the same, and that he take the receipt of the plaintiff, or his attorney, for the amount so paid, and file the same with his report of sale ; and that the purchaser at such sale be let into possession of the premises, on production of RULES OF THE SUPBEME COURT. 521 the deed. All surplus moneys, arising from the sale of mort- ^^^l^l gaged premises under any judgment, shall be paid by the sheriff or referee making the sale, within five days after the same shall be received and be ascertainable iu the city of New York, to the chamberlain of the said city, and in other counties to the treasurers thereof, unless otherwise specially directed, subject to the further order of the Court, and every judgment in foreclosure shall contain such directions, except when other provisions are specially made by the Court. No report of sale shall be filed or confirmed unless accompanied ^lf°'^ with a proper voucher for the surplus moneys, and showing that they have heenpaid over, deposited or disposed of in pursuance of the judgment. The referee to be appointed in foreclosure cases shall be selected by the Court, and the Court shall not appoint, as such referee, a person nominated by the party to the action w his counsel. Rule Y3— (51). of Sale of lands in the Where lands in the city of New York are sold under a decree, order or judgment of any Court, they shall be sold at Y^rkJ'^'"' public vendue, at the Merchants' Exchange, between twelve o'clock at noon and three in the afternoon, unless otherwise specially directed. The notice of the sale of lands, lying in any of the cities of this State in which a daily paper is print- ed, except where a different notice is required by law, or by the order of the Court, shall be published in one or more of the daily papers of that city, for three weeks immediately previous to the time of sale, at least twice in each week. When lands in any other part of the State are directed to be sa'e or •'_ ^ _ landa«out of: sold at auction, notice of the sale shall be given for the same"'* ""J^- time, and in the same manner as is required by law, on sales- of real estate by sheriffs on execution. Rule T4— (50). premises or other r be sold, consist of several distinct lots or parcels, which can Where mortgaged premises or other real estate, directed to How sfieriir 522 RULES OP THE SUPREME COURT. be sold separately, without dxminisliing the valtie thereof on such sale, it shall be the duty of the sheriff, or other person conducting the sale, to sell the same in separate lots or par- cels, unless otherwise specially directed by the Court. But if the sheriff or other person is satisfied the property will produce a greater price if sold together than it will in sepa- rate lots or parcels, he may sell it together, unless otherwise , directed in the Order of sale. EuXE 75— (49). mSBt^bl* Whenever a sheriff or referee sells mortgaged premises, corded. Under a decree, or order, or judgment of the Court, it shall be the duty of the plaintiff, before a deed is executed to the pur- chaser, to file such mortgage in the ofl&ce of the clerk, unless such mortgage has been duly proved or acknowledged, so as to entitle the same to be recorded ; in which case, if it has not been already done, it shall be the duty of the plaintiff to ■cause the same to be recorded, at full length, in the county or counties where the lands so sold are situated, before a deed is executed to the purchaser on the sale ; the expense of which filing or recording, and the entry thereof, shall be allowed in the taxation of costs ; and if filed with the clerk, he shall enter in the minutes the filing of such mortgage, and the time of filing. But this rule shall not extend to any case where the mortgage appears, by the pleadings or proof in the suit commenced thereon, to have been lost or de- stroyed. Rule Y6— (48). J^u^ihis''" ^^ filing the report of the sale, any party to the suit, or ™oney. ^^y pgpgoQ yf}xo had a lien on the mortgaged premises at the time of the sale, upon filing with the clerk, where the report of sale is filed, a notice, stating that he is entitled to such surplus moneys or some part thereof, and the nature and ex- tent of his claim, may have an order of reference to ascertain RULES OF THE SUPREME COURT. 52o and report the amouut due to him, or to any other person,, which is a lien upon such- surplus moneys, and to ascertain the priorities of the several liens thereon ; to the end that, on the coming in and confirmation of the report on such refer- ence, such further order may be made, for the distribution of such surplus moneys, as may be just Every party who ap- peared in the cause, or who shall have filed such notice with the clerk, previous to the entry of the order of reference, shall be entitled to service of a notice of the application for the reference, and to attend on such reference, and to the usual notices of subsequent proceedings relative to such sur- plus. But if such claimant has not appeared, or made his claim by an attorney of this Court, the notice may be served by putting the same into the post office, directed to the claimant at his place of residence, as stated in the notice of his claim. Rule YT— (72). Where several tracts or parcels of land lying within this S^n'']3'Ji''"[d' State are owned by the same persons in common, no sepa- '" =<"""">"• rate action for the partition of apart thereof only shall be brought, without the consent of all the parties interested therein ; and, if brought without such consent, the share of the plaintiff may be charged with the whole costs of the pro- ceeding. And when infants are interested, the petition shall state whether or not the parties own any other lands in common. Rule Y8— (T3). Where the rights and interests of the several parties, as ^g*'to't!["g stated, in the complaint, are not denied or controverted, if jS"-',,. any of the defendants are infants, or absentees, or unknowD, 'erposed. the plaintiff, on an affidavit of the fact and notice to such of the parties as have appeared, may apply at a special term- for an order of reference to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth r)24 BULES OF THE SUPKEME COUHT. in the bill or petition, and to ascertain and report the rights and interests of the several parties' in the premises, and an ab- stract of the conveyances by which the same are held. KuLE 79— (74), ?«i'!iT/'"^ Where the whole premises, of which partition is sought, paiution. g^j.g g^ circumstanced that a partition thereof cannot be made without great prejudice to the owners, due regard being had to the power of the Court to decree compensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to pro- duce such equality, or where any lot, or separate parcel of the premises, which will exceed in value the share to which ■ either of the tenants in common may be entitled, is so cir- cumstanced, the plaintiff, upon stating the fact in the affida- vit which is to be filed for the purpose of obtaining an order of reference under the next preceding rule, may have a fur- ther provision inserted in such order of reference, directing the officer or person to whom it is referred to inquire and report whether the whole premises, or any lot or separate parcel thereof, are so circumstanced that an actual partition cannot be made; and that if he arrives at the conclusion that the sale of the whole premises or of any lot or separate parcel thereof will be necessary, that he specify the same in his report, together with the reasons which render a sale necessary; and, in such a case, that he also ascertain and report whether any creditor, not a party to the suit, has a specific lien, by mortgage, devise or otherwise, upon the un- divided share or interest of any of the parties, in that por- tion of the premises which it is necessary to sell ; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incum- brance, by judgment or decree; and that he ascertain and report the amount due to any party to the suit who has either a general or specific lien on the premises to be sold, EULES OF THE SUPREME COURT. 525 or anj part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and who shall appear and establish his claim on such reference. He shall also, if requested by the parties, who appear before him on such reference, ascertain and report the amount due to any creditor, not a party to the suit, which is either a specific or general lien or incumbrance, upon all the shares or interests of the parties in the premises to be sold, and which would remain as an incumbrance thereon in the hands of the pur- chaser; to the end that such directions may be given in relation to the same, in the decree for the sale of the premises^ as shall be most beneficial to all the parties inter- ested in the proceeds thereof on such sale. Rule 80— (iVew). No order to stay a sale under a judgment in partition or for f^fj'j"^ the foreclosure of a mortgage shall be granted or made by a '^-^pfjiH judge out of Court, except upon a notice of at least two days to the plaintiff 's attorney. foreclosure ;ion. EuLE 81 — (Y8 Amended). All moneys brought into Court, by order of this or any Moneys •^ ° ' -^ ■' brought in- other Court, shall be paid to the country treasurer of the »<> "omi to ' . . ^'^ 5""^ '" county in which the action is triable, unless the Court shall f^^^^JJ^,. otherwise direct. And all bonds, mortgages and other secu- rities upon real estate, heretofore required to be taken in the name of the clerk of the Court of Appeals, shall, except as otherwise provided by law, be taken to the treasurer of the county where such fund belongs, or such other county treasurer as this Court shall direct. And all moneys re- ceived by the county treasurer, under and by virtue of any law vesting him with the funds or securities belonging to any of the suitors in any Court of this State, shall be deposited by the said county treasurer, in his name of office, 526 RULES OF THE SUPREME COURT. Where de- posited. in the New- York Life Insurance and Trust Company, the United States Trust Company, or in such bank or trust com- pany as the Court for the district shall from time to time direct as a deposit bank, unless the order or judgment, under which such moneys are brought into Court, shall direct such moneys to be deposited in some other bank or company. AccounlA of county ■Ireasurer^ County Ireasuref to report mnnually. Rule 82— (79). The accounts of the county treasurers, with respect to moneys or securities, received by them under the foregoing rule, or by virtue of any order of any Court of this State, with the banks and other companies in which moneys are directed to be deposited, shall be kept in such manner, that in the cash books of the banks and other companies, and in the bank books of the said treasurers, it shall appear in what particular suit, or on what account the several items of money credited, or charged, were deposited or paid out. The said county treasurer shall, at the first general term of this Court, for the district in which such treasurer resides, in each year, make a report to said Court, containing a state- ment of his accounts, and of the funds and securities under his control on the first day of January, which statement shall show the amount in his hands uninvested, and the times when received, and the suit or matter in which the same was paid in, constituting the balance in deposit in banks, and other companies ; and also all stocks, bonds and mortgages and other investments, for the benefit of suitors or otherwise. The Court to which such report shall be made shall cause the same to be examined by some suitable and proper person, to be appointed by them. The person so appointed shall forthwith proceed to examine the account and statement, with the accounts in banks and in other companies, and with the accounts and securities in the office of such treasurer. He shall have the power to summon witnesses before him, if necessary, to be examined with respect to such accounts. He shall report whether such accounts have been correctly kept and are truly stated ; and shall, on or RULES OF THE SUPREME COURT. 52 before fhe first day of the next ensuing general term, in such district, deliver to the Court of such district, by which he shall be appointed, or one of the justices thereof, his report upon the matters so referred. Rule 83— (80). Orders upon the banks or other companies for the pay- p^yf"'"' ment of moneys out of Court shall be made payable to the ™™ourt°"' order of the person entitled thereto, or of his attorney duly authorized, and shall specify in what particular suit or on what account the money is to be paid out, and the time when the order authorizing such payment was made. When moneys are deposited in the New York Life Insurance and ^i^hTrust Trust Company to the credit of the county treasurer, the *^''' entry of such deposit, both in the books of the company and in the accounts of the county treasurer with the company, shall contain a short reference to the title of the cause or matter in which such deposit is directed to be made, and specifying also the time from which the interest or accumu- lation on such deposit is to commence, where it does not commence from the date of such deposit. The secretary of the company shall transmit to the justices holding the first general term for the first district, in January in each year, a statement of the accounts of the said county treasurer, and, to the justices holding the first general term in the othdr districts, a statement of the accounts of the county treasurer in each district, showing the amounts standing to his credit on the first day of January, including the interest, or accu- mulation on the sums deposited to the credit of each cause or matter. In every draft upon the Trust Company by the county treasurer for moneys deposited with the said com- pany, or for the interest or accumulation on such moneys, the title of the cause or matter on account of which the draft is made, and the date of the order authorizing such draft, shall be stated ; and the draft shall be made payable to the order of the person or persons entitled to the money or of his or their attorney, who is named in the order of the Court 528 KULES OF THE StTPREME COURT. authorizing such draft. Aiid to authorize the payee or en- dorsee of such draft to receive the money thereon from the Trust Company, the same shall be accompanied by a certified copy of the order of the Court authorizing such draft, coun- tersigned by the justice by -whom such order, was made. But where periodical payments are directed to be made out of a fund deposited with such company, the delivery to the secretary of the company of one copy of the order, authoriz- ing the several payments, shall be sufficient to authorize the payment of subsequent drafts in pursuance of such order. EuiE 84— (75). in'^MySt Whenever a party, as a tenant for life, or by the courtesy estates, ^^ in dower, is entitled to the annual interest or income of tSned!'''''^^" atiy sum paid into Court and invested in permanent secu- rities, such party shall be charged with the expense of investing such sum, and of receiving and paying over the interest or income thereof; but if such party is willing, and consents to accept a gross sum in lieu of such annual inte- rest or income for life, the same shall be estimated according to the then value of an annuity of six per cent, on the prin- cipal sum, during the probable life of such person, accord- ing to the Portsmouth or Northampton tables. Rttle 85— (63). ecuMns'''^' ^'^ *^® cxecutiou of a commission of lunacy, &c., the Bion™f^" commissioners, for every day they are necessarily employed innnc}-. jjj hearing the testimony and taking the inquisition, shall be entitled to the same allowance which is made by law to commissioners to make partition or admeasure dower. And for drawing the inquisition and process and serving notices, when no attorney is employed, they shall have the fees to which an attorney would be entitled for the same services. may piy'^'' ^^^ Committee of a lunatic, idiot, or drunkard, may pay to the petitioner on whose application the commission was ir taxed costs. RULES OF THE SUPEEME COURT. 529 issued, or to his attorney, tlie costs and expenses of the appli- cation and the subsequent proceedings thereon, including the appointment of the committee, and without an order of the Court for the payment thereof, when the bill of such costs and expenses has been duly taxed and filed with the clerk, in whose ofiice the appointment of such committee is entered ; provided the whole amount of such costs and ex- penses does not exceed fifty dollars. But where the costs and expenses exceed fifty dollars, the committee shall not be at liberty to pay the same out of the estate in his hands, without a special order of the Court directing such pay- ment. EuLE 86 — (64 Amended). When an action is brought to obtain a divorce or separa- -f.""'"' *'"'■ '-' ^ divorce or tion, or to declare a marriage contract void, if the defendant sspar^'ion fail to answer the complaint, or if the facts charged in the complaint are not denied in the answer, the Court, to which application is made for judgment, shall order a reference, to take proof of all the material facts charged in the complaint. The Court shall in no case ordm- the reference to a referee nominated hy either party. And, when the action is for a divorce on the ground of Complaint ' _ ^ C) for divorce. adulteay, unless it be averred in the complaint that the adul- tery charged was committed without the consent, conni- vance, privity or procurement of the plaintiff — that five years have not elapsed since the discovery of the fact that such adultery had been committed — and that the plaintiff has not voluntarily cohabited with the defendant since such discovery — and also where, at the time of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed — that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff; and the complaint coataining such aver- ments be verified by the oath of the plaintiff in the manner prescribed by the 157th section of the Code, judgment shall Eeference in Bult to annul marriage. 530 RULES OF THE SUPREME COURT. not be rendered for the relief demanded, until the plaintiff's afSdavit be produced, stating the above facts. KuLE SY— (65). To obtain an order of reference, if the complaint seeks to annul a marriage on the ground that the party was under the age of legal consent, an afB.davit must be produced, showing that the parties thereto have not freely cohabited for any time, as husband and wife, after the plaintiff had attained the age of consent. If the complaint seeks to annul the marriage, on the ground that the plaintiffs consent was obtained by force or fraud, the plaintiff must show, by af&- davit, that there has been no voluntary cohabitation between the parties, as man and wife ; and, if it seeks to annul a marriage oa the ground that the plaintiff was a lunatic, an affidavit must be produced, showing that the lunacy still continues: or the plaintiff must show, by his affidavit, that the parties have not cohabited as husband and wife, after the plaintiff was restored to his reason. Rule 88— (66). may'beex- ^^ ^ reference to take proof of the facts charged in a com- aminedon plaint foj. separation, or limited divorce, the examination of the plaintiff on oath may be taken, as to any cruel or inhuman treatment, alleged in the complaint, which took place, when no witnesses were present who are competent to testify to the facts on such reference. reference. Rule 89— (67). Defense in The defendant in the answer may set up the adulterv of action for , i diTorce, 4c. the plaintiff, or any other matter which would be a bar to a divorce, separation, or the annulling of a marriage contract ; and if an issue is taken thereon, it shall be tried at the same time, and in the same manner as other issues of fact in the cause. RULES OF THE SUPREME COURT. 531 Rule 90 — (68 Amended^). On a complaint filed by a husband for a divorce, if he i^^fSc"^ •wishes to question the legitimacy of any of the children "f"'''''''™- of his wife, the allegation, that they are or that he believes them to be illegitimate, shall be distinctly made in the complaint. If a reference is ordered, proofs shall be taken upon the question of legitimacy, as well as upon the other matters stated in the complaint ; and if the issue is tried by al jury, an issue on the question of legitimacy of the children shall be awarded and tried at the same time. Rule 91 — CZO Amended). No sentence or decree of nullity declaring void a marriage ^unuvOT"' contract, or decree for a divorce, or for a separation or lim- afyorce!^"' ited divorce, shall be made of course by the default of the defendant ; or in consequence of any neglect to appear at the hearing of the cause, or by consent. And every such cause shall be heard after the trial of the issue, or upon the coming in of the proofs; at a special term of the Court ; but, where no person appears on the part of the defendants, the details of the evidence in adultery causes shall not be read in pub- lic, but shall be submitted in open Court. ISTo of&cer of this „, t|^°^' Court, with whom the proceedings in an adultery cause are "e^pSb"-"' '" filed, or before whom the testimony is taken, nor any clerk ^'''^'"^' of such ofiicer, either before or after the termination of the suit, shall permit a copy of any of the pleadings or testimony, or of the substance of the details thereof, to be taken by any other person than a party, or the attorney or counsel of a party, who has appeared in the cause, without a special order of the Court. No judgment in an action for a divorce shallbe entered, excepi Judg'nent upon the special direction of the Court. 532 KULBS OF THE SUPREME COURT. EuLE 92 — (76 Amended). debtor's' °' Evcrj receiver of the property and effects of the debtor estate. shall, unless restricted by the special order of the Court, have general power and authority to sue for and collect all the debts, demands and rents, belonging to such debtor, and to compromise and settle such as are unsafe and of a doubtful cbaracter. He may also sue in the name of a debtor, where it is necessary or proper for him to do so ; and he may apply for and obtain an order of course that the tenants of any real estate belonging to the debtor, or of which lie is entitled to the rents and profits, attorn to such receiver, and pay their rents to him. He shall also be permitted to make leases from time to time, as may be necessary, for terms not exceed- ing one year. And it shall be his duty, without any unrea- sonable delay, to convert all the personal estate and eflFects into money ; but he shall not sell any real estate of the debt- or without the special order of the Court, until after judg- When ai- meut iu the cause. He is not to be allowed for the costs of lowed his costs. 2^-Qj g^|^ brought by him against an insolvent from whom he is unable to collect his costs, unless such suit is brought by order of the Court, or by the consent of all persons interested May sell in the funds in his hands. But he may, hy leave of the Court, claims at scU such dcspcratc debts and all other doubtful claims to auction. *■ personal property at public auction, giving at least ten days' public notice of the time and place of such sale. KuLE 93— (89). Suits pend- All actions depending on the first day of July, 184.8, may 1848. be conducted according to the rules of the Supreme Court, adopted in July, 1847, so far as the same are applicable. Cases not In cascs whcre no provision is made by statute or by these provided ^ ^ ^ ^ -^ ■■<"■• Eules, the proceedings shall be according to the customary practice, as it has heretofore existed in the Court of Chan- cery and Supreme Court, in cases not provided for by stat- ute or the written rules of the Court. S'o°effc"ot" These Rules shall take effect on the first day of October, 1854 [1858]. EULES OF THE SUPREME COURT. 533 APPENDIX TO RULE 84. ANNUITY TABLE. A table corresponding -with the Northampton tables referred to in the 75th rule, showing the value of an annuity of one dollar, at six per cent., on a single life, at any age from one year to ninety-four inclusive : Age. No. of Years' purchase the annuity is worth. Age. No. of Years' purchase the annuity is worth. Age. No. of Years' purchase , the annuity is worth. Age. No.of years' purchase the annuity is worth. 1 10.107 25 12.063 49 9.563 73 4.781 2 11.724 26 11.992 50- 9.417 74 4.565 3 12.348 27 11.917 51 9.273 75 4.354 4 12.769 28 11.841 52 9.129 76 4.154 5 12.962 29 11.763 53 8.980 77 3.952 6 13.156 30 11.682 54 8.827 78 3.742 7 13.275 31 11.598 55 8.670 79 3.514 8 13.337 32 11.512 56 8.509 80 3.281 9 13.385 33 11.423 57 8.343 81 3.156 10 13 285 34 11.331 58 8.173 82 2.926 11 13.212 35 11.236 59 7.999 83 2.713 12 13.130 36 11.137 60 7.820 84 2.551 13 13.044 37 11.035 61 7.637 85 2.402 14 12.953 38 10.929 62 7.449 86 2.266 15 12.857 39 10.819 63 7.253 87 2.138 16 12.755 40 10.705 64 7.052 88 2.031 17 12.655 41 10.589 65 6.841 89 1.882 18 12.562 42 10.473 66 6.625 90 1.689 19 12.477 43 10.356 67 6.405 91 1.422 20 12.398 44 10.236 68 6.179 92 1.136 21 12.329 45 10.110 69 5.949 93 806 22 12.265 46 9.980 70 5.716 94 518 23 12.200 47 9.846 71 5.479 24 12.132 48 9.707 72 5.241 20 534 RULES OF THE SUPREME COURT. KULES For computing tJie vdhw of the Life Estate or Annuity. Calculate the interest at six per cent., for one year, upon the sum to the income of which the person is entitled. Multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person in said sum. EXAMPLES. Suppose a widow's age is 37 ; and she is entitled to dower in real estate, worth $350.75. One-third of this is $116.91|. Interest on $116.91, one year at six per cent, (as fixed by 75th rule), is $7.01. The number of years' purchase which an annuity of one dollar is worth, at the age of 37, as appears by the table, is 11 years and y|f ^ parts of a year, which, multiplied by $7.01, the income for one year, gives $77.35, and a fraction, as the gross value of her right of dower. Suppose a man, whose age is 50, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum, at six per cent., is $540.00. The number of years' purchase which an annuity of one dollar is worth, at the age of 50, as per table, is QyVoV parts of a year, which, multiplied by $540, the value of one year, give $5,085.18, as the gross value of his life estate, in the premises, or the proceeds thereof. Note. — ^The values in this table are calculated ou the supposition that the annuities are payable yearly ; if payable half-yearly, one-fifth of a year's pur- chase should be added to those values. For the rule to compute the present value of an inchoate or contingent right of dower, vide Jackson vs. Edwards, 7 Paige, 408. MoKean's Pr. 1. TabUi 26, §4. Hendry's Ann. Tables, 87, Prob. 4. INDEX TO CASES CITED Allen, "Wilson v 3 Pr. R., 369 .. . 43 Alliance Ins. Co. v Cleveland, Mss., UPr. R.,4:08 73 Anthony, Wood v 9 Pr. R., T8. . 98 Ahsbahs v Cousin, 2 Sand. S. C. R., 632 139 Abbott T Smith, 8 Pr. R., 463 .. . 140 Avery, McLees v4 Pr. R., 441 . . . 159 Allen, Lannbeer V 2 Sand. S. 0. R., 648 184 Averill v Patterson, 10 Pr. R., 85 198,199 Andrews v Shaffer, 12 Pr. R., 443 203 Annabal v Hunter, 6 Pr. R., 255. 204 Acker, Lewis v 3 Abb. Pr. R., 166 211 Andrews v Durant, 6 Pr. R., 191 . 256 Acker, Lewis v 8 Pr. R., 414 261 Anon., 5 Sand., 656 264 AUen V Compton, 8 Pr. R., 251 . . 266 Allen, McMahon v 12 Pr. R., 39 ; 3 Abb. Pr. R., 89 266 Ahoyke v Wolcott, 4 Abb. Pr. R., 41 294 Am. Ex. Bank, Hoyt v 8 Pr. R., 89 294 Amer. Ex. Bank, Hoyt v 8 Pr. R., 89; IDuer, 652 297 Allen v Hardree, 6 Cow., 400 320 Allen V. Gibbs, 12 Wend., 202. . . 326 Adams v Bayles, 2 J. R., 346 Albany City Bank v Schemerhom, 9 Paige, 372 366 Albany City Bank, Montgomery Co. Bank v 3 Selden, 464 391 Allen, Richards v 11 N. Y. Leg. Obs., 159 394 Abbey v Abbey, 6 How. Pr. R., 340 430 Astorv Union Ins. Co.,-7 Cow., 202 436 Adams, Crittenden v 1 Code Rep., N. S., 21 450,451 Alden v Clark, et al, 11 How. Pr. R., 209 459 B Ballou, Morehouse v 16 Barb. S. C. R., 289 18 Baxter, Voorhis v 18 Barb. S. C. R., 592 19 Black, Pindar v 4 Pr. R., 95 33, 63 Buckel V Ecart, 3 Cow., 182. .. . 50 Bushnell v Bushnell, 7 Pr. B., 389 61 Bloodget, Yates v 8 Pr. R., 278 . . 62 Burhead v Casey, 4 Sand. S. C. R., 707 63 Bell V Morrison, 1 Peter. U. S. S. C. R., 362 83, 84, 85> Beardslee, Johnson v 15 Johns., 3 85 Benedict, Shoemaker v 1 Kernan, 176 • 86 Bowman, Wincheld v 21 Barb. S. C. R., 448 86 Barger v Durrim, 22 Barb., 68. . . 87 Babcock, Ford v 2 Sand. S, C. R., 519 89 Blanchard v Strait, 8 Pr. B., 83 94,95, 98, 99, 107, 108 Benedict v Seymour, 6 Pr. H., 298 97 Brown v Bradshaw, 8 Pr. R., 176 97 Bank of TJtica v Smedes, 3 Cow., 662 99 Bowman v Sheldon, 5 Sand. S. C. R., 657 102 Barbour v Bennett, 4 Sand. S. 0. R., 705 103 Benedict v Dake, 6 Pr. R., 352. . . 104 Bryan, Wagstaflf v 1 Russ. & My., 30 105 536 INDEX TO CASES CITED. Brice, Van Rensselaer v 7 Paige, lU 103 Bigelow, Yates v 9 Pr. R, 186. . . 112 Bowman v Earle, 3 Duer, 691 115 Bigelow, Tallmau v 10 Wend,, 420 35 Bank of Lansingburgh v McKie, 7 Pr., 360 35 Byrne and wife v Van Folsen, 5 J. R., 66....' 13 Bardwell, et als., v Weeks, 13 J. R., 1 23 Bortle, Wardolph. v 4 Pr. R., 358 122, 125 Bates, Green v 7 Pr. R., 296 . . 124, 131 Butler T Wood, 10 Pr. R., 813. . . 140 Boyce v Bates, 8 Pr. R., 495. .. . 141 Bucldey, Florence v 1 Duer, 705 141 Bank of Michigan v Jessup, 19 Wend., 10 142 Bronson v Truman, 8 Pr. R., 492, 143,164 Bently, Sterne v 3 Pr. R., 331. . . 156 Beach v Forsyth, 14 Barb., 499. . 168 Bonnel V Henry, 13 Pr. R., 142. . 168 Beebe, Paddock v 2 Johns. Oases, 117 181 Brainard v Hanford, 6 Hill, 368. . 182 BiUings, Catlin t 13 Pr. R., 511 . . 185 Butler V Kelsey, 14 J. R., 342. . . 191 Bedell v Powell, 13 Barb., 183 .. . 200 Butler V Wood, 10 Pr. R., 222 .. . 203 Bell, Eldrige v 12 Pr. R., 547. .. . 203 Bank of Lowville v Edwards, 11 Pr. R., 216 203 Baker, Hain v 1 Seld., 363 203 Beale v Hayes,' 5 Sand., 640.' 203 Bodle, Ogden v 2 Duer, 611 206 Burrows v Miller, 4 Pr. R., 51. . . 206 Brown v Jay, 9 J. R., 221 206 Buroh, Mitchell v 2 Paige, 620 .. . 206 Brigham, Marquise v 12 Pr. R., 400 208,220 Barbour, People v 8 Pr. R., 261 . . 214 Brewster v Hall, Bennett, White v 7 Pr. R., 59. . . 220 Brown v Orvey, 6 Pr. R., 876 225 Baldwin, Ourrie v 7 Sand., 690 ..225,226 Brown v Jennison, 3 Sand., 782 . . 228 Brigham, Marquise v 12 Pr. R., 400 280 Banker, People v 8 Pr. R., 262. . . 231 Banker, People v 8 Pr. R., 261 . 236, 237 Brown t Spear, 6 Pr. R., 47 288 Bennett, White y 7 Pr. R., 59. . . 248 Brown, Mason v 6 Pr. R., 481.250, 251 Bank of the U. S. v McKenzie, 2 Brockonbrough, 395 251 PAOI Brown, Mason v 6 Pr. R., 481 .. . 253 Bowman v Ely, 2 Wend., 250.. . . 255 Bodine, People v 7 Hill, 181 255 Bentley v Jones, 4 Pr. R., 835 258,261 Brull T Pinckney, 8 Pr. E., 397. . 262 Bangs V Selden, 13 Pr. R., 874. . . 263 Barney, Culver v 14 Wend., 161. 268 Broome vBeardsley, 3 Cai. R., 172 269 Brewster v Stewart, 8 Wend., 441 273 Browne v Cribb, 20 Wend., 682.. 286 Bank of Utica v Hillard, 5 Cow., 153 288 Bradstreet v Bailey, 4 Abb. Pr. R., 233 294 Birdsall v Pixley, 4 Wend., 196 . . 294 Bracket v Dudley, 1 Cow., 209. . . 320 Bancroft, Jackson ex. dem. Ai- kins t3 J. R., 259 320 Brisbands, Hoyt v 1 Wend. 27. . 320 Burr V Skinner, 1 J. C, 891 324 Bank of Charleston t Hurlburt, 1 Sand. S. 0. R., 717. 324 Board of Supervisors of the County of Albany, Whalen v 6 How. Pr. K, 278 344 Bayles, Adams v 2 J. R., 346 Booth, McMaster v4 How. Pr. R., 427 347 Brodie, McCuUoch v 13 How. Pr. R., 346 347 Bonestell v Lynde, et al., 8 How. Pr. R., 226 861 Benham v N. Y. Central R. R. Co., 13 How. Pr. R., 198 371 Bushnell, Potter v 10 How. Pr. R., 94 373 BuUard & Lord v Spoor, 2 Cowen's R., 430 383 Boyd, Wooster & Leggett v 3 Wend. R., 376 390 Burnham v De Bevoise, 8 How. Pr. R., 159 391 Benedict, Mclnroy v 11 J. R., 402 397 Brewer v Kingsley, 1 J. C, 334. . 894 Brown v Babcock, 3 How. Pr. R., 305 398 Bacon v. Oomstock, 11 How. Pr. R.,197 399,402 Blanchard v Strait, 8 How. Pr. R., 83 403 Balcom v Woodruff, 7 Barb., 18. . 404 Booth, Hinman v 21 Wend., 267. 405 Berry, Marsh v 7 Cow., 344 405 Belding v ConkUn, 4 How. Pr. R., 196 415 Bulkley v Smith, et al., 1 Duer, 704 420 INDEX TO CASES CITED. 637 FAGE Beoter v Hager, 8 How. Pr. R., , 68 428 Bank of Lansingburgh v MoKie, 7 How. Pr. K, 364 429 Burney, Emerson v 6 How. Pr. R., 82 431 Bennet, Huff v 2 Sand., 703 439 Brown, Doty v 3 How. Pr. B., 875 489 Bigelow, Harrington T 2 Denio, 109 449 Bellinger v Ford, et al; 14 Barb., 250 460 Buzard v Gross, 4 How. Pr. B., 23 466 Oorsin, Rawdon v 8 Pr. R., 416. . 27 Cook, et al., v Rawdon, 6 Pr. R., 233 51,54 Comstook T Carr, 6 Wend., 526 . . 52 Cook V Jewett, 8 Pr. R., 19 63 Casey, Burhad v 4 Sand. S. 0. R., 707 68 Coulter V McNamara, 9 Pr. R., 225 65 Craig, Richardson v 1 Duer, 666 . 66 Chapin v Seely, 13 Pr. R., 409. . . 72 Cayuga Bank v Warfield, 13 Pr. R., 439 72 Cleveland Mss., Alliance Ins. Co. v 14 Pr. R., 408 73 Ohoate, Patterson v 7 Wend., 441 85 Carpenter v Wells, 21 Barb., 593 88 Colwell V N. Y. & Erie R. R. Co., 9Pr. R., 812 92 Church V Mumford, 11 Johns., 479 92 Chatfield, Handy v 23 Wend., 85 97 Churchillv Churchill, 9 Pr. R., 552 98 Campbell, Whitmarsh v 1 Paige, 645 105 Carpenter, et al., v West, et al., 5 Pr. R., 58 106 Conro, et als., v Port Henry Iron Co., et als., 12 Barb., 27 28 Comfort V Gillespie, et als., 13 Wend., 404 35 Connell v Lascells, 20 Wend., 77. 35 Oorbin, Rawdon v 8 Pr. R., 416 . . 39 Cox V Potter, 5 Mod., 80 125 Coon, Peels v 1 Hops. Ch. R., 450 125 Cardit, Darby v 1 Duer, 599. .. . 139 Causin, Ahsbahsv2 Sand. S. C. R., 632 139 Champlain v Pierce, 3 Wend., 445 142 Gumming, Glover v 2 Wend., 295 148 Cohen, Jeroleman v 1 Duer, 629. 151 Cromwell, Toll v 12 Pr. R., 79. . . 151 Chapman v Webb, 6 Pr. R., 390. 151 Chilson, La Forge v 3 Sand. S. C. R.,755 160 PAGE Oatlin V Gunter, 1 Duer R., 265. 229 Oarnley, Park v 7 Pr. R., 356 .. . 250 Chapel V Chapel, 2 Kern., 216 ... . 166 Clark, Sillman v 2 Pr. R., 160 . . . . 184 Catlin V Billings, 18 Pr. R., 511 . . 185 Croden v Drew, 1 Duer, 652 186 Curtis, Southworth v 6 Pr. R., 271 187 Chapman v Lemon, 11 Pr. R., 285 194 Cuyler v Coates, 10 Pr. R., 141 . . 197 Conrad, Hyde v 5 Pr. R., 112 204 Cook V Litchfield, 5 Sand. S. C. R., 330 206 Cook V Chase, 3 Duer, 643 207 Church, Kellog v 4 Pr. R., 389. . . 209 Chapman v Palmer, 12 Pr. R., 37 211 220 Cartedge, Mix v 8 Barb., 75 219 Clow, HoUenbeck v 9 Pr. R., 292 224 Currie v Baldwin, 7 Sand., 690.225, 226 Clark, Rayner v 7 Barb., 581 232 Oummings, White v 1 Code Rep., N. S., 107 248 Cromwell v Charleston Ins. Co., 2 Richardson, 512 251 Conro V Nat Prot. Ins. Co., 10 Pr. R., 403 251 Carpenter, Gould v 7 Pr. R., 98. . 261 Cook V Pomeroy, 10 Pr. R., 221 . 262 Clark, Harris v 10 Pr. R., 416. . . 263 Compton, Allen v 8 Pr. R., 251 . . 266 Cohen, Jeroliman v 1 Duer, 631.. 266 Culver V Barney, 14 Wend., 161 . 268 Curtis, Drought V 8 Pr. R., 56. . . 268 Clark V Metropolitan Bank, 5 Sand., 665 277 Cribb, Browne v 20 Wend., 682 . . 286 Concklin v Hart, 1 J. C, 108. 305 812 Church, Mumford v 1 J. C, 147. 805 Clark V Dibble, 16 Wend., 601 . .. 312 Calkins, Meech v 4 Hill, 534 320 Cooley V Merrifleld, 4 Pr. R., 272 321 Covenhoven, Hart v 2 J. 0., 402. 346 Catlin V Hansen, 1 Duer's R., 309 869 Cancemi v People, 16 N. Y. R. (2 Smith) 501 385 Clark V Prazer, et al., 1 How. Pr. R.,98 397 Comstock, Bacon v 11 How. Pr. R., 197 399 Corning v Corning, 2 Selden, 97. 399 Clickman v Clickman, 1 Corns., 611 401 CatUn V Gunter, 10 How. Pr. R., 321 402 Comstock, Bacon v 11 How. Pr. B., 197 401 Carter v Hope, 10 Barb. S. 0. R. 180 408 538 INDEX TO CASES CITED. PAGE Cheetham v Tillotson, 4 J. R., 499 406 Oonklin, Beldin v 4 How. Pr. R., 196 415 Connecticut River Banking Co. v Voorhies, 3 Abb. Pr. R., 173... 421 Curtis V Button, 4 Sand., 719 424 Comstock V Oknstead, 6 How. Pr. R.,77 424 Carpenter, Gould v 7 How. Pr. R., 98 429 Chittenden, Seely v 10 Barb., 303 430 Cook V Dickinson, 5 Sand., 663 . . 430 Cook V Pomeroy, 10 How. Pr. R., 103 431 Conrad t Williams, 6 Hill, 444. . . 436 Crittenden T Adams, 1 Code Rep., N.S., 21 450,451 Clark, et al., Alden v 11 How. Pr. R., 209 459 Cameron, et al., v Young, 6 How. Pr. R., 372 460 Catskill Bank t Sanford, 4 How. Pr. R., 101 460 Crick, Monhood v Cro. Eliz., 716.. 461 Crick, Maynard v Cro. Car., 86 . . 461 Cooney v Van Rensselaer, 1 Code Rep., 38 463 Cheeny v Garbutt, 5 How. Pr. R., 467 463 Calvert, Moore v 9 How. Pr. R., 474 466 D Dwight, Merchants' Bank of New Haven v 13 Pr. R., 366. . . Dunham v Dodge, 10 Barb. S. C. R., 566 86 Durrim, Barger v 22 Barb., 68. . . *87 Dickens v N. X. C. R. B. Co., 13 Pr. R., 228 98 Dake, Benedict v 6 Pr. R., 862. . 104 Duncan v Ray, 19 Wend., 530. . . 115 De Beixcedon, St. Amant v 3 Sand., 703 35 Durand, Flenrot v 14 J. R., 329 . . 115 Deming alias Daniels and his chil- dren, 11 Johns. R., 232 & 488 . . 119 Dow V Rice, 11 Wend., 178 128 Darby V Cardit, 1 Duer, 599 139 Donaldson, Hoppock v 12 Pr. R., 142 168 Drew, Croden v 1 Duer, 652 186 Dix V Palmer, 5 Pr. R., 233 187 De Witt, Ten Broeck v 10 Wend., 617 198 Durkee v Sar. R. R. Com., 4 Pr. B., 226 208 207 Durkin, Walsh v 12 Pr. R., 99. . 206 Dorman v Kellam, 14 Pr. R., 184. 207 Darrar v Miller, 3 Code R., 241 . . 226 Dillaye, Edson v 6 Pr. R., 274. . . 228 Durant, Andrews v 6 Pr. R., 191 . 256 Darrow v Miller, 5 Pr. R., 247. . . 261 Drummond v Husson, 8 Pr. R., 246 262 David, Ford v 13 Pr. R., 193. .. . 262 Drought V Curtis, 8 Pr. R., 56. . . 268 Dunn V Mason, 7 Hill, 154 273 Davis V Dunleavy, 13 Pr. R., 427 283 De Mott, Young v 1 Barb., 30. . . 287 Dunham, The Commercial Bank . of Albany V 13 Pr.R., 541.288 297 Dwight, Southart v2 Sand., 672. . 294 Dibble, Clark v 16 Wend., 601. . 312 Delafleld, Watson v 2 Cai. R., 260 320 Dudley, Bracket v 1 Cow., 209. . 320 Demar v Van Zandt, 2 J. C, 69 . 321 Davis, Kimball v 19 Wend., 437 ; 25 ib., 259 333 Dewey v Field, 13 How. Pr. R., 437 346 347 Dedrick v Richly, 19 Wend., 108 347 Davis, et al.. Ward v 6 How. Pr. R., 274 351 Davidson v Miner, 9 How. Pr. R.,524 369 Dickinson v Kimball, 1 Code R., 83 377 Davis & Lansing, Harris v 6 How. ' Pr. R., 118 377 De Beovise, Burnham v 8 How. Pr. R., 159 391 De Peyster v Wheeler, 1 Sand., Superior C. R., 719 399 402 Dows v Green, 3 How. Pr. R., 377 401 Diefendorf v Gage, 7 Barb. S. C. R., 18 402 Drake, Seaman v 1 Cai. R., 9 406 Dutton, Curtis v 4 Sand., 719. . . 424 De Forest, Nellis v 6 How. Pr. R., 413 429 Dickson v McElwain, How. Pr. R., 138 430 Dickinson, Cook v 5 Sand., 663 . . 430 Doty V Brown, 3 How. Pr. R., 375 439 De Bow, Tripp v 5 How. Pr. R., 114 450 E Eckhart, Buckle v 3 Cow., 132 . . 60 Ember, Wilder v 12 Wend., 191 . 52 Emirr, Fuller v 2 Sand. S. C. R., 626 61 Elias, Faulkner v 8 Sand. S. C. B., 781 72 INDEX TO CASES CITED. 539 PAQK Esmond v Van Benschoten, 5 Pr. R., 44 102 103 Earle, Bowman v 3 Duer, 691 .. . 115 Barle, Morse v 13 Wend., 271 12 Elder, Peck v 3 Sand., 126 23 Elsworth, Thompson v 1 Barb. Ch. E., 624 12 Bvertson v Ttomas, 5 Pr. R., 46 27 Emery v Emery, 9 Pr. R., 130 160 Ellsworth, Squire v 4 Pr. R., 77. . 189 Eldrige v Bell, 12 Pr. R., 547. . . 203 Edwards, Bank of Lowville v 11 Pr. R., 216 208 Earl of Stafford, North v 3 P. Wms.,148 203 Embree v Hanna, 5 J. R., 101 . . . 206 Eaton, Wallon v 5 Pr. R., 99 206 Edwards v Lent, 8 Pr. R., 28, 210 220 Edson V Dillaye, 8 Pr. R., 274. . . 228 Ely, Bowman v 2 Wend., 256 255 East India Co., Moodalay vBrown. Chan.R.,469 314 Eno, et al., v Woodworth, 4 Comst, 249 403 Egert V. Wicker, 10 How. Pr. R, 193 , 404 Evans atZs. Pierson 1 Wend., 30. 424 Emerson v Bumey, 6 How. Pr. R., 32 431 Ex parte Bailey, 2 Oow., 479 436 Etc's Case, Lit. Rep., 58 461 Edgerton, Fake v 3 Abb. Pr. R, . 229 464 465 Fort Edward Paper Mill Co., Howland v 8 Pr. R., 505 13 FitchvFitch, 18 Wend., 513, 52,58 66 Forrest v Forrest, 5 Pr. R., 125 ., . 61 Fuller V Emire, 2 Sand. S. C. R., 626 61 Faulkner v Elias, 3 Sand. S. 0. R., 731 72 Ford V Babcock, 2 Sand. S. 0. R., 519 89 Franklin v Keeler, 4 Paige, 382. . 105 Furman, et als., v Walter, 13 Pr. R., 348 33 36 Fleurot V Durand, 14 J. R., 329 . . 115 Passett, Treadwell V 10 Pr. R., 184 138 Florence v Buckley, 1 Duer, 705 . 141 Freeman, Bronson v 8 Pr. R, 492.' 143 154 Field V Morse, 8 Pr. R, 47 152 Fogg, Buggies V 7 Pr. R, 324. 157 158 Forsyth, Beach T 14 Barb., 499.. 163 Finn, Gandal v 13 Pr. R., 418. ... 168 PA&B Field V Park, 20 John. R., 140. . . 181 Forbes, Wright v 1 Pr. R., 240. . 182 Fancher, Schenk v 14 Pr. R., 95 197,198 199 Frost, Jones v 3 Mod., 1 203 Fales V Hicks, 12 Pr. R., 155 ... . 208,211,220 Finkle, Livingston v 8 Pr. R., 485 220 Fales V Hicks, 12 Pr. R., 155 229 Furniss, Schwabb t 4 Sand., 704, 231,236 237 Fraser, Limerick & Waterford R. R. Co. V 4 Ring., 394 251 Fielding, Kilkenny R. R. Co. v 2 Eng. Law & Eq. R., 388 251 Freeman, Reynolds y4 Sand., 702. 262 Ford V David, 13 Pr. R., 193. .. . 262 Fulton, Roosevelt v 5 Cow., 438.. 263 Farrand v Herberson, 3 Duer, 655 265 Francis, Ocean Ins. Co. v 2 Wend., 65 333 Field, Dewey v 13 How. Pr. R., 437 346 347 Falon V Keese, 8 How. Pr. R, 341 371 Foote y Morgan, 1 Hill, 654...... 381 Freeman v People, 4Denio's R., 9, 384 386 Freeman, Higgins v 2 Duer, 650 . . 390 Fraser, et al., Clark v 1 How. Pr. R., 98 397 Fay, et al., v Grimsteed, 10 Barb. S. 0. R, 321 404 Field V Hawkhurst, 9 How. Pr. R., 75 404 Fort V Goodings, 9 Barb., 388 424 Freeman, Reynolds v 4 Sand., 702 429 Forbes, Trustees of Penn Tan v 8 How. Pr. R., 286 . 431 Ford, et al., Bellinger v 14 Barb., 250 460 Fake v Edgerton, 3 Abb. Pr. R, 229 464,465 G Grinnell v Schmidt, 2 Sand. S. C. R, 709 14 Gilespie v Rosekrants, 20 Barb., 35 87 Glen Cove Mut'l Ins. Co. v Har- rold, 20 Barb., 298 87 Goodwin, Lippincott v 8 Pr. R„ 242 97 107 Gilbert, McNairv 3 Wend., 344.. 115 Griswold, Aaron, In the matter of, 13 Barb., 412 33 Gillespie, et als.. Comfort v 13 Wend., 404 35 540 INDEX TO OASES CITED. PAQB Oenin, et. aJs., v Tompkins, 12 Barb., 265 35 Godson V Good, 13 Petersd., 135 ; 6 Taunt, 587 16 Good, Godson v 13 Petersd., 135 ; 6 Taunt,, 587 16 Griswold, Aaron, In the matter of, 13 Barb., 412 33 Green v Bates, 7 Pr. R., 296. .124 131 Gunn, Miller v 7 Pr. E.,159 187 Gleason, Meads v 13 Pr. R., 309 . . 138 Ganney v Wermland, 3 Duer, 618 139 Glover V Gumming, 12 Wend., 29S 148 George v McAvoy, 6 Pr. E., 200 152 Gandal v Finn, 13 Pr. R., 418. . . 168 Giles, Jackson v 8 Cai., 88 181 Gilman, "Wilkin vl3 Pr. R.,225. . 184 Greenwood, Jacques v 1 Abb. Pr. R.,230 185 Gooding v McAllister, 9 Pr. R., 123 ■ 203 Getty T H. R. R. Co., 8 Pr. R., 177 204 207 Groshon v Lyon, 16 Barb., 461 . . 205 Greening, Smith v 2 Sand., 702. . 214 Grant v Power, 12 Pr. P., 500. . . 220 Gifford, McMurray v 5 Pr. R., 14 ..227 228 Gunter, Catlinv 1 Duer, R., 265 229 Grinnell, Merrill v 10 Pr. R., 31 . . 251 Glazie v S. 0. R. Co., 1 Strobhart, 70 251 Gould T Carpenter, 7 Pr. R., 98. . 261 Gould V McArthur, 1 Kernan, 575 288 Grant,Staulkesvl2Leg. Obs., 132 288 Gaunt, Stalker v 12 Leg. Ob., 132 297 Gibbs, Allen t 12 Wend., 202 ... . 326 Gould T Glass, 19 Barb., 186. .. . 391 Getty V Hudson River R. R. Co., 6 How. Pr, li,., 270 399 402 Gould, Hull V 3 Kernan, 127. .. . 399 Green, Lows v 3 How. Pr. R., 377 401 Gunter, Catlin v 10 How. Pr. R,, 321 402 Gage, Diefendorf v7 Barb. S. 0. R,18 402 Grimsteed, Fay etal., v 10 Barb. S. 0. R., 321... 404 Gardner, Taylor v 4 How. Pr. R., 68 415 Gooding, Fort v 9 Barb., 888. .. . 424 Gould v Carpenter, 7 How. Pr. R., 98 , 429 Gregory v Thomas, 20 Wend. R,, 17 461 Gripe, Norwood v Cro, Eliz., 727. 461 Garbutt, Cheney v 6 How. Pr, R., 467 463 Gross, Buzard v 4 How. Pr. R., 23 466 H. Howland v Fort Edward Paper Mill Co., 8 Pr. R., 505 13 Holbrook, Vernam v 5 Pr. R., 3. 27 Hulbert v Newel, 4 Pr. R., 98 . . . 51 Hibbard, Shepard v 19 Wend., 96 . 52 Hill V Thatcher, 3 Pr. R., 407. . . 52, 54 Hudson, Wyatt v 8 Bing., 309 .. . 85 Harrold, Glen Cove Mutl. Ins. Co. V 20 Barb,, 298 87 Hallock V Losee, 1 Sand, S. C. R., 220 87 Hickok, Hickok v 13 Barb., 682 . . 87 Hallock, Smith v 8 Pr. R., 78. . . 92 Hulce V Thompson, 9 Pr. R., 118 92 Handy v Chatfleld, 23 Wend., 35 . 97 Harlow V Hamilton, etal., Pr. R., 475 108 104 Hodgman v Western R. R. Co., 7 Pr, R.,498 115 Hurst T Watkis, 1 Camp,, 69 115 Hatchet v Marshall, . Peake's C, 172 115 Holland V Hopkins, 2 B. & P,, 243 ; 3 Esp, R., 168 115 Hopkins, Holland v 2 B. & P. 248 ; 3Esp. R., 168 115 Hagan, O'Brien v 1 Duer, 664. 119 120 Hornfager v Hornfager, 6 Pr. R., 18 126 151 Hastings v McKinley, 8 Pr. R., 175 187 HoUisterv Livingston, 9 Pr. R., 140 151 Hulin, Pomeroy v 7 Pr. R., 161 . . IW Henry, Bonnel v 13 Pr. R., 142. . 168 Hoppock v Donaldson, 12 Pr. R., 142 168 Hanford, Brainard v 6 Hill, 368. . 182 Hewit V Howell, 8Pr.R., 846. 186 190 Held, Weigan v 3 Abb., 462 197 Harrison v Hogg, 2 Ves jr., 323. . 203 Hain v Baker, 1 Seld., 363 203 Hayes v Beale, 6 Sand., 640 203 Hyde v Conrad, 5 Pr. R., 112. . . 204 Hunter, Annabal v 6 Pr. E., 255 . . 204 Hinds V Tweddle, 7 Pr. R., 278. . 204 n. R. R. Co,. Getty v 8 Pr. R., 177 204 207 Hanna, Embree v 5 J, R., 101 ... . 602 Hicks, Fales v 12 Pr. R., 155, 208 211 220 Howard v Mich. South. R. R. Co., 5 Pr. R., 206 218 INDEX TO X!ASES CITED. 541 PASE Barrap, Thomas v7 Pr. R., 57. . 214 flewit, Walker v 11 Pr. R., 395 220 Hitchcock, Mass. Bank, Roches- ter T 14 Pr. R., 406 220 222 HoUenbeck v Clow, 9 Pr. R., 292 224 Hull V Smith, 8 Pr. R., 150. .228 229 Hicks, Fales v 12 Pr. R., 155 ... . 229 Hempstead t Hempstead, 1 Pr. R., 8 248 Hubbard v Nat. Prot. Ins. Co., 11 Pr. R, 149 . .249, 250 251 Holmes, Messenger v 12 Wend., 203 256 Husson, Drummond v 8 Pr. K, 246 262 Harris t Clark, 10 Pr. R.,416. . 263 Hempstead v Hempstead, 7 Pr. R, 8 , 263 Herberson, Parrand y 3 Duer, 656 266 Hornfager v Hornfeger, 6 Pr. R. 13 267 Huntington, Kimball v 10 Wend. 675 268 Hoyt V The American Exchange Bank, 8 Pr. R., 89, 1 Duer, 652 284 Hooker T Matthews, 3Pr. R., 329 288 HiUard, Bank of Utica y 6 Cow., 153 288 Hoyt T Am. Ex. Bank, 8 Pr. R., 89 294 Hoyt V Am. Ex. Bank, 8 Pr. R., 89; 1 Duer, 652 297 Hooker, Jackson v 1 Cow., 586 305 Hill, Packard v 7 Cow., 489 ... . 305 Hart, OoncklinvlJ. 0. 103,, 305 312 Hackley v Patrick, 2 J. R., 478... 320 Hendree, Allen v 6 Cow., 400. . . 320 Hoyt V Brisbands, 1 Wend., 27. . 820 Hurlbut, Bank of Charleston v 1 Sand. S. C. R., 683 324 Hickey, Percival v 18 John., 257, 333 Hobby, Jackson t20 John., 362, 334 Hart T Covenhoven, 2 J. 0., 402, 346 Hooker, Miller v 2 How, Pr. R., 171 847 Hansin, Catlin v 1 Duer'sR., 809, 869 Harris v Davis & Lafising, 6 How. Pr. R., 118 377 Higgins V. Freeman, 2 Duer, 650, 390 Hoffman, Van Steenburgh v 6 How. Pr. R., 492 898 Hudson River R. R. Co., Getty v 6 How. Pr. R,, 270 399, 402 HuU V Gould, 3 Kernan, 127 399 Hare v White, 8 How, Pr. R, 296, 400 Hope, Carter v 10 Barb. S. C. R., 180 403 PAGE Holmes v Seeley, 17 AVend., 75.. . . 404 Hawkhurst, Field v 9 How. Pr. R.,75............ 404 Hinman V Booth, 21 Wend., 267, 405 Holmes v Remsen, 2 Cow,, 110 . . 405 Hogan & Aut., Williams v 18 How. Pr. R., 138 ■ 420 Hager, Becker v 8 How. Pr. R., 68 428 Hicks, Smith v 5 Wend., 48 ... . 436 Hart V Hosack, 1 Cai. R., 25 436 Huff V Bennett, 2 Sand., 708 439 Harrington v Bigelow, 2 Denio, 109.- 449 Herzenheim V Hooper, 1 Duer, 594 46-9 I. IngersoU, Sweet v 12 Pr. R., 331 91, 92 In the matter of Aaron Griswold, 13 Barb., 412 33 IngersoU V IngersoU, 1 Code Rep., 102 224 Ives V Miller, 19 Barb., 197 '.262 Ives, Jones v 1 Wend., 283 324 Jackson, Parker v 16 Barb. S. C. R., 33 19 Jewett, Cook v 8 Pr. R., 19 63 Johnson v Beardslee, 15 Johns., 3, 85 Jackson, Morse v 18 Wend., 271, 12 Johnson v Moss, 20 Wend., 145 35 Johnson v Parmely, 17 Johns., 271 13 Johnson & Mann, Kellogg & Sa- ben V 7 Cow., 421 26 Jones, Vroomar v 5 Pr. R., 369 . . 125 Jessup, Bank of Michigan v 19 Wend., 10 142 Jeroliman v Cohen, 1 Duer, 629 . . 151 Johnson, Walker v 8 Pr. R., 240 157 Jacobi, Schneider vl Duer, 694. . 158 Jackson v Giles, 3 Cai. R., 88 181 Jaques v Greenwood, 1 Abb., 230, 185 Jones V Frost, 3 Mod., 1 203 Jay, Brown v 9 J. R., 221 206 Judd, Robinson v 9 Pr. R., 378. . 207 Judd, Wesson v 1 Abb. Pr. R., 254 211 Jennison, Brown v 3 Sands., 782, 228 Jones, Nicholas v 6 Pr. R., 855 . . 228 Joy, White v 8 Kernan, 88 235 Joy, White v 3 Kernan, 89 239 Jones, Bently v 4 Pr. R., 335, " 258, 261 Jeroliman v Cohen, 1 Duer, 631 . . 266 Johnson, Wilkinson v 4 Hill, 46 . . 273 542 INDEX TO CASES CITED. FAOE Jackson v Hooker, 1 Cow., 586. . 305 Jackson v Kent, 7 Oow., 59 305, Jackson t Kent, 7 Cow., 60 311 Jackson v Eice, 8 Wend., 180 312 Jackson ex. dem., Aikin t Ban- croft, 8 J, E,, 259 320 Jones V Ives, 1 Wend., 288 824 Jackson v Hobby, 20 John., 862, 834 Johnson, Pattison t 15 How. Pr. E., 289..-. 871 Johnson v Whitlock, 8 Keman's E., 845 392 Johnson v Whitlock, 3 Keman's E., 345 ; 12 How. Pr. E., 571, 393 Johnson v Titus, 2 Hill's E., 606, 402 John V. Sagur, 10 HowPr. E., 554, 419 Johnson v Whitlock, 3 Keman, 350 437 Johnsonv Whitlock, 3 Kern., 344, 438 Jay V Martine, 2 Duer, 654 459 King, StoU T 8 Pr. E., 298 . . . . , . 63 Keeler, Franklin v 4 Paige, 382. . 106 Kidd, White v 4 Pr. E., 68 106 Kellogv Paine, 8 Pr. E., 329. .110, 115 Knight, EyckmanT 15 J. E., 222, 115 Kellogg & Sabin v Johnson & Mann, 7 Cow., 421 26 Kelsby, N. Y. Central Ins. Co. v 13 Pr. E., 535 182 King V Stafford, 5 Pr. E., 30 188 Kent T McDonald, 16 J. E., 400 . . 190 Kip, Salters t 12 Pr. E., 342, 190, 191 Kelsey, Butler v 14. J. E., 342.. 191 King T Stafford, 5 Pr. E., 80, 198, 227 Kellam, Daman V 14 Pr. E., 184, 207 KeUog V Church, 4 Pr. E., 839 . . 209 Ketchum v Zeroga, 1 E. D. Smith E., 557 211,214,220 King T Utica Ins. Co., 6 Pr. E., 486 224 Kilkenny E. E. Co. v Fielding, 2 Eng. Law and Equity E., 888. . 251 King V Vanderbilt, 7 Pr. E., 385.. 251 Keep T Tyler, 4 Oow., 541 256 KortwrightvW. E. E. Co., 10 Pr. E., 457 261 King V Stafford, 5 Pr. E., 30 . . . 261 Kimball t Huntingdon, 10 Wend., 676 268 Kellog V Paine, 8 Pr. E., 829. .. . 291 Kent, Jackson v 7 Cow., 59, 305 Kent, Jackson t 7 Cow., 60 311 Kirkpatrick,MurrayTlCow., 210 821 Kimball v Davis, 19 Wend., 487 ; 25 Wend., 259 838 Keese,Walon V 8 How. Pr. E., 341, 371 Kimball, Dickinson vl Code E., 83 377 Kingsley, Brewer v 1 J. C, 334. 897 Kortwright, West E. E. Co. v 10 How. Pr. E., 457 429 Kennedy v Mills, 4 Abb. Pr. E., 132 461 Laurence v The Trustees of the Leak and Watta Orphan House, 2Denio, 577 19 Lewis V Truesdell, 3 Sand. S. C. E., 706 72 Losee, Hallock v 1 Sand. S. C. E., 220 87 Lippencott v Goodwin, 8 Pr. E., 242 97, 107 Lascells, Connell v 20 Wend., 77, 35 Leland, Tracy v 2 Sand., 729 62 Livingston, Hollister v 9 Pr. E., 140 151 La Farge v Chilson, 3 Sand. S. C. E., 755 160 Lansing v McKillup, 7 Cow., 416, 181 Laimbeer, AUen v 2 Sand. S. C. E., 648 184 Lemon, Chapman v 11 Pr. E., 235 194 Loft, Simpson v 8 Pr. E., 235. . . 203 Lyon, Groshon v 16 Barb., 461. . 205 Litchfield, Cook v 5 Sand., 330. . 406 Leant, Edwards v 8 Prac. Eep., 28 210,220 Lewis V Acker, 3Abb. Pr. E., 166 211 Lemon v Trull, 13 Pr. E., 248. . . 213 Livingston v Finkle, 8 Pr. E., 485, 220 Latson, Eeed v 15 Barb., 17 229 Losee, MUler v 9 Pr. E., 356 Lane v Losee, 11 Pr. E., 860 245 Lynch v Mosher, 4 Pr. E., 86. . . 251 Limerick & Waterford E. E. Co. V Eraser, 4 Bing., 394 251 Louisville & E. Co. v Letson, 2 How. U. S. E., 497 251 Lewis V Acker, 8 Pr. E., 414 261 Lambert, Wood v 8 Sand. S. C. E.,724 262 Lawrence, Townsend v 9 Wend., 458 287, 297 La Farge v La Farge Fire Ins. Co., 14 Pr. E., 26 288 La Farge v Luce, 2 Wend., 242. . 324 La Farge v Morse, 2 Wend., E., 241 351 Lynde, et al., Bonestell v 8 How. Pr.E.,226 861 INDEX TO CASES CITED. 543 Leggett & "Wooster v Boyd, 3 Wend., R., 376 390 Lettman r Ritz, 3 Sand. Superior C. R., 734 399 Lansing v Lansing, 18 J. R., 502 405, 424 Lee T Curtiss, 17 J. R., 86 406 Le Roy v Stefnbergh, 1 Cai. R., 162 , 436 M. Morehouse v Ballou, 16 Barb. S. C. R., 289 18 Mercer v Seymour, 13 Pr. R., 564. 63 McNamara, Coulter v 9 Pr. R., 225 65 Martin v Vanderllp, 3 Pr. R., 266 . 72 Moon, Wilmerding v 1 Duer, 645 . 72 Merchants' Bank of New Haven v Dwight, 13 Pr. R., 366 73 Morrison, Bell v 1 Peter, U. S. S. C. R., 362 83, 84, 85 McNaughton, Ried v 15 Barb. S. C. R., 168 86 Moore, Woodruff v 8 Barb. 171 . . 87 Mohawk Ins. Com., WenmanvlS Wend., 267 87 Mumford, Church v 11 Johns, 479 92 Marsam, Willard v 1 Cow.^, 37 95 Mclntyre v Trustees of Union Col- lege, 6 Paige, 240 105 McNair v Gilbert, 3 Wend., 344. . 115 Millard, Stanley v 4 Hill, 50 115 Morse v Earle & Jackson, 13 Wend., 271 12 McLean & Roach, Quick & Wife v 9 Wend., 238 12 Moss, Johnsoo v 20 Wend., 145 . . 35 McKie, Bank of Lansingburgh v 7 Pr. R., 260 36 Marshall, Hatchet v Peake's C, 172 115 Mann & Johnson v Kellogg & Sa- bin, 7 Cow., 421 26 McKie, Schenck t 4 Pr. R., 246. 28, 154, 181 Mumford, Randall t 18 Ves. R., 424 125 Malines, Wheeler v 4 Mod., 171 . . 125 Merrills, Quick v 3 C. R, 133. . . 128 Moore v Thayer, 6 Pr. R., 47 . . 134^ 136 McKinley, Hastings v 8 Pr. R., 175 137 Miller v Gunn, 7 Pr. R., 159. .. . 137 Meads v Gleason, 13 Pr. R., 309.. 138 McGrath v Van Wyck, 2 Sand. S. C. R., 651 152 Morse, Field v 8 Pr. R., 47 152 McAvoy, George v 6 Pr. R., 200. 152 Merritt v Slocum, 6 Pr. R., 350. . 154 McLees v Avery, 4 Pr. R., 441 . .. 159 McKillup, Lansing v 7 Cow., 416. 181 McKannal, Ryan v 1 Sand. S. C. R., 709 189 McDonald, Kent v 15 J. R., 400.. 190 Mersereau v Norton, 15 J. R., 179 190,191 McAllister, Gooding v 9 Pr. R., 123 203 Miller, Burrows v 5 Pr. R., 51 . . . 206 Mitchell V Burch, 2 Paige, 620. .. 206 Marquise v Brigham, 2 Pr. R., 400 208,227 Mich. Southern R. R. Co., How- ard v 5 Pr. R., 206 213 Miln V Vose, 4 Sand., 660 219 Mix V Cartedge, 8 Barb., 75 211 Manfs' Bank Rochester v Hitch- cock, 14 Pr. R., 406 220, 222 MiUer, Darrow v 3 Code R., 241. . 225 Murray, Temple v 6Pr. R., 331.. 227 McMurray v Gifford, 5 Pr. R., 14 227 228 MaynaVd, Thorn v io'Pr," R.,' 25..' 229 Marquise v Brigham, 12 Pr. R., 400 230 Miller v Losee, 9 Pr. R., 356 234 Myers v Trimble, 1 Abbott's R, 220 245 Merrit v Thompson, 10 Pr. R, 428 245 Myers v Trimball, 1 Abbott's R, 399 and 221 246 Mason v Brown, 6 Prac. Rep., 481 250, 251 Merrill v Grinnell, 10 Pr. R, 31. 261 Mosher, Lynch v 4 Pr. R, 86 . . . . 251 McKenzie, Bank of U. S. v 2 Brockenbrough, 396 251 Mason v Brown, 6 Pr. R, 481 .. . 253 Moreland v Sandford, 1 Denio, 660 254 Messenger v Holmes, 12 Wend., 203 255 Merritt v Slocum, 6 Pr. R, 350. . 260 Miller, Darrow v 5 Pr. R, 247. . . 261 Miller, Ives v 19 Barb., 197 262 McKie, Schenck v 4 Pr. R., 246. 263 McMahon v Allen, 12 Pr. R, 39, 8 Abb. Pr. R, 89 266 Mason, Dunn v 7 Hill, 154 273 McDonald, People v 1 Cow., 189 277 Metropolitan Bank, Clark v 6 Sand., 665 277 McArthur, Gould v 1 Keman, 575 283 Moore V Mcintosh, 18 Wend., 529 286 Murray, Wallis v 4 Cow., 399. . . 287 544 INDEX TO CASES CITED. Mathews, Hooker v 3 Prao. Eep., 329 288 Mathis V Vanderbilt, 2 Abb. Pr. R. 387 288 Mumford v Church, IJ. C, 147 305 Moodalay v East India Co., Brown Chan. R., 469 314 Maples, Pooler v 1 Wend., 65 . . . 319 Meech v Calkins, 4 Hill, 534. .. . '320 Murray v Kirkpatrick, 1 Cow., 210 320 Merrifield v Cooley, 4 Prac. Rep., 272 821 Mitchell V Montgomery, 4 Sand. S. C. R..676 324 Mott, Ring V 2 Sand. S. C. R., 083 824 Mesick t Smith, et al., 2 How., Pr. R., 7 344 McMaster v Booth, 4 Hoiw. Pr. R., 427 847 McCuUoch V Brodie, 13 How., Pr. R.,346 347 Miller v Hooker, 2 How. Pr. R., , 171 347 Morse v La Parge, 2 Wend. R, 241 351 Miner, Davidson v 9 How. Pr. R., 524 869 Morgan, Foote V 1 Hill, 654 381 Mather, People v 4 Wend. R., 229 384, 885 Montgomery Co. Bank v Albany City Bank, 3 Selden, 464 391 M'Inroy T Benedict, 11 J. R., 402 397 Marsh y Berry, 7 Cow. 344 405 McDonald, People v 1 Cow., 189 405 Mechanics' Bank v Minihorn, 19 J. R., 244 406 Martin v McCormick, 3 Sand., 765. 422 Mannv Tyler, 6 How. Prao. Rep., 23S 422 McKie, Bank of Lansingburgh v 7 How. Pr. R., 864 429 McElwain, Dickson v How. Pr. R.,138 430 Martine, Jay v 2 Duer, '654.... 459 Mills, Kennedy v 4 Abb. Pr. R., 132 461 Manhood V Crick, Cro. Bliz., 716 461 Maynard v Crick, Cro. Car., 86 . . 461 Masten V Scoyille, 6 How. Pr. R., 515 468 Mitchell T Westervelt, 6 How. Pr. R., 265 466 Moore v Gal vert, 9 How. Pr. R., 474 466 N Newel, Hulbert T 4 Pr. R., 93... 51 New York Com. Pleas, The Peo- ple v 11 Wend., 164 52 N. Y. & Erie R. R. Co., Colwell v 9Pr. R., 312 92 N. Y. C. R. R. Co., Dickens v 18 Pr. R., 228 98 Noble V Trotter, 4 Pr. R., 322. . . 182 N. Y. Central Ins, Com. v Kelsby, 18 Pr. R., 535 182 Morton, Mersereau t 15 J. R., 179 190,191 N. Y. C. P., Stewart V 10 Wend., 557 198 North V Earl of Staftord, 3 P. Wins., 148 203 Nicholas v Jones, 6 Pr. E., 355. . 228 New York Central Mills, Shear- man V 1 Abb. Pr. R., 190 229 Nat. Prot. Ins. Co., Hubbard v 11 Pr. R., 149 249, 250, 251 Nat Prot. Ins. Co., Conro t 10 Pr. R., 303 251 Nolton V W. R. R. Co., 10 Pr. R., 97 262 Newcomb v Reed, 14 Pr. R., 100 321 N. T. Steam Faucet Co., Tracy v 1 B. D. Smith's E., 346 351 Nevins, People ex rel. Johnson v 1 Hill., 155 366 N. Y. Central R. R. Co., Benham v 13 How. Pr. E., 198 371 Newton v Sweet, et al., 4 How. Pr. R., 134 415, 424 Nolton T Western R. R. Co., 10 Pr. R., 97 429 Nellis V De Forest, 6 How Pr. R., 413 429 Norwood T Gripe, Cro. Ehz^ 727. 461 O'Brien v Hagan, 1 Duer, 664 119, 120 Ogden T Bodle, 2 Duer, 611 206 Orviz, Brown v 6 Pr. R., 876 225 Onondaga Ann. Conf., Stoddard v 12 Barb., 575 .236, 237 Olssen, Smith v 4 Sand. S. C. R., 711 245 Ocean Ins. Co. v Francis, 2 Wend., 65 338 Olmstead, Comstock v 6 How. Pr. R., 77 424 Olmstead v Vredenburgh, 10 How. Pr. E., 217 460 IKDEX TO CASES CITED. 545 P, Paxker v Jackson, 16 Barb. S. 0. R., 33 19 Pindar v Black, 4 Pr. E., 95, 33.. 63 People V New York Com. Pleas, 11 Wend., 164 62 Parmele, Van Keuren v 2 Oom., 523 85 Patterson V Choate, T Wend., 441 85 Peoble, Van Namee v 9 Pr. E., 198, 97 lOT Parker, Strauss v 9 Pr. K, 342, 98 138 Paine, Kellby v 8 Pr. R., 829, 110 115 Peck, et als., v Elder, et als., 3 Sand., 126 23 Port Henry Iron Co., et als., Conro, et als., v 12 Barb., 27. . 23 Parmely, Jobnson v 17 Johns, 271 13 Peebles v Rogers, 5 Pr. E., 208. . 28 Potter, Cox v 5 Mod., 80 125 Peels V Coon, 1 Hopk. Ch. R., 450 125 Prince, Champlain v 3 Wend., 445 142 Pomeroy v Hulin, 7 Pr. R., 161. 157 Park, Field v 20 John. R, 140 .. . 181 Paddock v Beebe, 2 Johns, Cas., 117 181 Palmer, Dix 7 5 Pr. R., 233 187 Patten, Rees v 13 Pr. R., 238.. . . 197 Patterson, Averill v 10 Pr. R., 85 198, 199 Powell, Bedso T 18 Barb., 183 ... 200 Peabody v Wash. Co. Mutual Ins. Com., 20 Barb., 342 200 Peokham v Smith, 9 Pr. R., 436. 207 Palmer, Chapman v 12 Pr. R., 87, 211,220 Palmer, Yates v 3 Sand., 139 ... . 211 People V Barbou, 8 Pr. R., 261 . . 214 Power, Grant v 12 Pr. R., 500. . . 220 People T Banker, 8 Pr. R., 262. .. 231 Pattisonv Richards, 23 Barb.,, 146 284 People V Banker, 8 Pr. R., 261 ...286,237 Park V Cornley, 7 Pr. R., 356. . . 250 People V Bodine, 7 Hill, 181. 255 People V Wright, 5 Pr. R., 23 . . . 255 Pinckney, BuU v 8 Pr. R., 897. . . 262 Pomeroy, Cook v 10 Pr. R., 221. 262 Plumb T Whipple, 7 Pr. R., 411. 265 People V McDonald, 1 Cow., 189. 277 Paine, Kellog t 8 Pr. R., 829 ... . 291 Pixley, Birdsall t4 Wend., 196. . 294 Packard v Hill, 7 Cow., 489 305 Pooler T- Maples, 1 Wend., 65. . . . 319 Patrick, Haokley v 2 J. R., 478.. 320 Power, Shufelt v 10 Pr. R., 286. . 321 People T VermUyea, 7 Cow., 369. 326 PAGE Percival y Hickey, 18 John., 257. 333 Parker v Snell, 10 Wend., 577. . . 347 People ex rel. Johnson v Nevins, 1 Hill., 155 866 Pattison v Johnson, 15 How. Pr. R, 289 371 Potter V BushneU, 10 How. Pr. R, 94 : 873 People V Mather, 4 Wend. R., 229 384 385 People V Freeman, 4 Denio's R., 9 384 386 People, Cancemi v 16 N. Y. E. (2 Smith), 501 885 People V McDopald, 1 Cow., 189. 405 Pierson ads. Evans, 1 Wen., 80.. 424 Pomeroy v Cook, 10 How. Pr. R, 431 People V Superior Court of N. Y., 5 Wen., 114 449 Q. Quick & wife. Roach & McLean v 9 Wend., 288 12 Quick V Merrills, 3 C. R-, 133 ... . 128 Quin V Tilton, 2 Duer, 64a 188 Quintard v Secor, 1 Abbott's R., 393 245 R. RicartvTownsend, 6Pr. R., 460. 20 Rawdon v Oorbin, 8 Pr. R., 416 . . 27 Rawdon v Cork et al., 6 Pr. R., 233 51, 54 Roth V Whitlock, 5 Pr. R, 143. . 65 Richardson v Craig, 1 Duer, 666. 66 Ried T McNaughton, 15 Barb. S. C. R, 168 86 Rosekrants, Gillespie v 20 Barb. ,35 87 Richardson, Stafford T 15 Wend., 802 87 Rochester City Bank v Suydam, 5 Pr. R., 216 97 Roosa T The Saugerties & Wood- stock T. R. Com., 8 Pr. R., 237 102, 103 Rodgers vRathbone, 6 Pr. R., 66 103 Ray, Duncan v 19 Wend., 530. . . 115 Roach & McLean v Quick & wife, 9Wfind., 238 12 Robinson, L. ex parte, 21 Wend., 673 Randall, Wood v 5 Hill, 264 85 Ryckman y Knight, 16 J. R., 222 115 Eogers, Peebles v 5 Pr. R., 208 . . 28 Eawdon v Corbin," 3 Pr. R, 416 . . 29 Randall v Mumford, 18 Ves. E., 424 125 546 INDEX TO CASES CITED. FAQX Rice T Dan, 11 ■Wend.,178 128 Reynolds t Tenbroeck, 13 Pr. R., 462 UO RusseU T Spear, 5 Pr. R., 142. . . 161 Ruggles V Fogg, 7 Pr. R., 324..157, 158 Rees y Patten, 13 Pr. R., 258. ... 197 Roberdean v Rous, 1 Atkins, 544 203 Raymond, Wheeler v 8 Oow., 811 206 Robinson v Judd, 9 Pr. R., 878. . 207 Richardson t Wilton, 4 Sand., 708 311, 220 Riley v Thomas, 11 Pr. R., 266. . 214 Rae V Wash. Mutual Ins. Com., 6 Pr. R., 21 226 Reed v Latson, 15 Barb., 17 229 Rayner v Clark, 7 Barb., 581 ... . 232 Richards, Pattisonv 22 Barb., 146 234 Root T Taylor, 18 Johns, 335 256 Reynolds v Freeman, 4 Sand., 702 263 Roosevelt T Fulton, 5 Cow., 438. 263 Rice, Jackson v 3 Wend., 180. . . 312 Reed, Newcomb v 14 Pr. R., 100. 321 Rogers T Rogers, 7 Wend., 514. . 324 Ring V Mott, 2 Sand. S. C. R., 683 824 Redfield, Silmser v 19 Wend., 21 . 347 Richley, Dedi-ick vl9 Wend., 108 347 Ree V Stretch, 4Dowl. 30 ; 1 Mee. AW., 322 864 Richards v Allen, 11 N. Y. Leg. Obs., 159 394 Russel, Yates v 17 J. R., 461 ... . 397 Ritz, Lettman v 3 Sand. Supe- rior C. R., 734 399 Remsen, Holmes v 2 Cow., 110. . 405 Reynolds v Freeman, 4 Sand., 702 429 Rawdon v Turton, Brownl., 74.. . 461 S. Schmidt V Grinnell, 2 Sand. S. C. R., 789 14 Shepard v Hibbard, 19 Wend., 96 62 StoU V King, 8 Pr. R., 298 63 Seymour v Mercer, 13 Pr. R., 564 63 Seely, Chapin v 13 Pr. R., 409 .. . 72 Shoemaker v Benedict, 1 Ker- nan., 176 86 Stafford v Richardson, 15 Wend., 802 87 Sweet V Ingersoll, 12 Pr. R., 331 91, 92 Smith V Hallock, 8 Pr. R., 73 . . . . 92 Strait, Blanchard v 8 Pr. R., 83 94,96, 98,99, 107, 108 Suydam, Rochester City Bank v 6 Pr. R, 216.. 97 PASS Seymour, Benedict v 6 Pr. R., 298 97 Strauss v Parker, 9 Prac. Rep., 342 96,138 Steward t Travis, 10 Pr. R., 148. 98 Smeades, Bank of Utica v 3 Cow., 662 99 Saugerties A Woodstock T. R. Co. Roosa V 8 Pr. R., 237 102, 108 Sheldon, Bowman t 6 Sand. S. C. R, 657 -•.... 102 Stanley v Millard, 4 Hill., 60 115 St. Amand, v De Beixcedon, 3 Sand., 703 35 Searing v Searing, 9 Paige, 288. 12 Sabin A Kellogg v Johnson 4 Mann, 7 Cow., 421 26 Schenck v McKie, 4 Pr. R., 246 28, 154, 184 Schermerhom, Van Allen v 14 Pr.R, 287 122 Selfridge, Tilbballs v 12 Pr. R., 64 181 Smith, Abbott v 8 Pr. R., 463 . . . . 140 Spear, Russell v 5 Pr. R., 142. . . 151 Slocum, Meritt v 6 Pr. R, 350 .. . 154 Steene v Bently, 3 Pr. R., 331 .. . 155 Schneider t Jacobi, 1 Duer., 694. 158 SJlhnan v Clark, 2 Pr. R., 161 .. . 184 Southworth v Curtis, 6 Pr. R., 271 187 Stafford, King v 5 Pr. R., 30. . . . 188 Squire V EUsworth, 4 Pr. R., 77. 189 Salters v Kip, 12 Pr. R, 342 190, 194 Stewart v Sar. & W. R. R. Co., 14 Pr. R, 436 191 Schenectady & Sar. R. R. Co. v Thacther, 6 Pr. R., 226 19S Schenck v Fancher, 14 Pr. R., 95 197 198 199 Smithy White, 7Hill. R, 521 198, 199 Stewart v N. Y. C. P., 10 Wend., 667 198 Stafford, King v 6 Pr. R., 30 198, 227 Simpson v Loft, 8 Pr. R., 235. . . 203 Shaffer, Andrews v 12 Pr. R., 442 203 Sar. R. R. Com., Durkee v 4 Pr. R., 226 203, 207 Smith, Peckham v 9 Pr. R, 486.. 207 Slocumv Wheeler, 4 Pr.R., 378. 213 Spellman v Wirden, 5 Pr. R., 5 . . 213 Smith V Greening, 2 Sand., 702. . 214 Sutton V Wood, 12 Wend., 235. . Sickles, Winne v 9 Pr. R., 217... 220 Sixpenny Savings Bank v Sloan, 12 Pr. R., 544 226 Smith, Hull v 8 Pr. R, 150 228, 229 Shearman v New York Central MiUs, 1 Abb. Pr.R, 190...... 229 INDEX TO CASES CITEP. 547 \ PAOE Schwabt T Fumiss, 4 Sand., 704 231236, 237 Stoddard v Onondaga Ann. Oonf., 12 Barb., 575 236, 237 Spear, Brown v 5 Pr. R., 47 238 Secor, Quintaid v 1 Abbott's R., 393 245 Smith V Olssen, 4 Sand. S. 0. R., 711 245 St. John T Thome, 2 Abbott, 168. 245 S. C. R. Co., Glaciev 1 Strobhart, 70 251 Sandford, Moreland t 1 Denio., 660 254 Smith V Sharp, 13 Johns., 466 .. . 266 Slocum, Merrit v 6 Pr. R., 850. . 260 Stafford, King,v 5 Pr. R., 30. . . . 261 Selden, Bangs v 13 Pr. B., 374. .. 263 Sales V Woodin, 8 Pr. R., 349 263, 264 Steam Nav. Co., v Weed, 8 Pr. R., 49 263 Schenck v McKie, 4 Pr. R., 246 . . 263 Snyder v White, 6 Pr. R., 321 . . . 265 Stewart, Brewster v 8 Wend., 441 273 Strong, United States Bank v 9 Wend., 451 , 279 Staulkes v Grant, 12 Leg. Obs., 132 288 Southart v Dwight, 2 Sand., 672. 294 Stalker V Gaunt, 12 Leg. Obs., 132 297 Sturgess v Weed, 13 Pr. R., 103 319, 320 Shufelt V Power, 10 Pr. R., 286. . 321 Skinner, Burr v 1 J. C, 391 824 Smith, et al., Mesick v 2 How. Pr. R., 7 344 SihnservRedfield, 19 Wend., 21. 347 Swift V WeUs, 2 How. Pr. R., 79. 347 Snell, Parker v 10 Wend., 677. . . 347 Stretch, Ree v 4 DowL, 30 ; 1 Mee. and W., 322 364 Schermerhorn, Albany City Bank V 9 Paige, 372 366 Spoor, BuUard & Lord v 2 Cow. R., 430 383 Spaulding v Spaulding, 3 How. Pr. R., 297 401 S'trait, Blanchard v 8 How. Pr. R., 83 403 Seely v Holmes, 17 Wend., 75. . . 404 Seaman v Drake, 1 Cai. R., 9 406 Sweet, et al., Newton v 4 How. Pr. R., 134 415, 424 Sager v Johnson, 10 How. Pr. R., 554 419 Smith, et al., Bulkley v 1 Duer., 704 420 Seely v Chittenden, 10 Barb., 303 430 FAQS Stewart v Saratoga & iWhitehall R. R Co., 12 How. Pr. R., 436. 431 Scriver, et al., v Watson &Aut. 7 How. Pr. R., 10 436, 437 Smith V Hicks, 5 Wen., 48 436 Sternbergh, Le Roy v 1 CaL R., 162. 486 Superior Court of New York, People V 5 Wen., 114 449 Sanford, Catskill Bank v 4 How. Pr. R., 101 460 Small T Wheaton, 2 Abb. Pr. R., 316 461 Scoville, Masten v 6 How. Pr. R., 615 463 Shultz V Weitzell, 3 Abb. Pr. R., 468 466 Sloo, Ten Broeck v 13 How. Pr. R., 28. 472 The Trustees of the Leak & Watt's Orphan House, Lawrence v 2 Denio, 577 19 Townsend, Rioart v 6 Pr. B., 460 20 Thatcher, Hill v 3 Pr. R., 407. .52, 64 Truesdell, Lewis v 3 Sand. S. C. R., 706 72 Thompson, Hulce v 9 Pr. R., 113 92 Travis, Steward v 10 Pr. B., 148. 98 Trustees of Union College, Mcln- tyre v 6 Paige, 240 105 The People v Webster, 10 Wend., 554 13 Tallman T Bigelow, 10 Wend., 420 35 Tompkins, Genin v 12 Barb., 265 35 Thompson v Eldridge, et als., 1 Barb. 0. R., 624 12 Thomas, Bvertson v 5 Pr. R., 45 . . 26 Tracy v Leland, 2 Sand., 729 62 Thayer, Morree v 6 Pr. R., 47.,134, 13S Tibballs, Selfridge v 12 Pr. R., 64 139 Tilton, Quin v 2 Duer, 648 138 Treadwell v Fassett, 10 Pr. R., 184 138 Tenbroeck v Reynolds, 13 Pr. R., 462 140 Toll V Cromwell, 12 Pr. R., 79.. 151 Trotter, Noble v 4 Pr. R., 322. . . 182 Thatcher v Schenectady & Sar. R R. Co., 6 Pr. R, 226. 196 Ten Broeck v De Witt, 10 Wend., 617 . 198 Tweddle, Hinds t 7 Pr. R, 278. . 204 Trule, Lemon v 13 Pr. R, 248, , 213 Thomas v Harrap, 7 Pr. R, 57. . 214 (Thomas, Riley t 11 Pr. R, 281., 214 Temple, Murray v .6 Pr, E., 331, , 227 548 INDEX TO OASES CITED-.. PAGE Thorn v Maynard, 10 Pr. E., 25. 229 Trimble, Meyersv 1 Abbott's R;, 220 245 Thorne, St. John v 2 Abbott K, 166 245 Thompson, Memtt v 10 Pr. R., 428 245 Trimball, Meyers v 1 Abbott's E., 399and221 246 Taylor, Root t 18 Johns, 335 256 Tyler, Keep v 4 Oow.,. 541 256 The Ameriean Exehange Bank, Hoytv 8Pr. R., 89 ; 1 Duer, 652 284 Townsend y Lawrence, 9 Wend., 458.,,. 287, 297 The Commercial Bank of Albany v Dunham, 13 Pr. R., 541. . .288, 297 Tracy v N. Y. Steam Faucet Co., 1 E. D. Smith's R., 346 351 Titus, Johnson t 2 Hill's R., 606. 402 Tillotson, 0heethamT4J. R., 409 406 Thinks T Wolf, 8 How. Pr. R., 288 415 Taylor v Gardner, 4 How. Pr. R., 68 - 415 Tyler, Mann v 6 How. Pr. R., 286 . 422 Trustees of Penn "San v Forbes, 8 How. Pr. R., 286 431 Tripp V De Bow, 5 How. Pr. E., 114 , 450 Thomas, Gregory v 20 Wen. R., 17 461 Turton, Rawdon t Brownl, 47 . . 461 Ten Broeck v Sloo, 13 How. Pr. R.,28 472 U. TJtica Ins. Co.,. King v 6. Pr. R., 485 224 United States Bank y Strong, 9- Wend, 451 279 Union Ins. Co., Astor v 7 Oow., 202 436 V. VoorMs T Baxter,, IS B^arb; S. C. E., 592 19 Vernana v Holbrook, 5 Pr. R., 3 27,29 Vanderlip, Martin v 3 Pr. R., 265 72 Van Kueren v Parmele, 2 Com., 523 85 Van Namee v People, 9 Pr. R., 198 97,107 Van Benschoten, Esmond v 5 Pr. R., 44 102,103 FAfla' Van Rensselaer, v Price, 4 Paige, 174 105 Van Folsom,, Byrne and Wife, v 5 J. R^ 66 13- Van Allen v Schermerhorn, 14rPr. R., 287 122. Vrooman v Jones, 5 Pr. R., 369. 125 Van Wyck, McGrath v 2 Sand. S. 0. R., 651.. 152- Van Sickle V Van Sickle, 8Pr. R., 265 163; Vassear V Livingstone, 3 Ker., 252 213 Vose, Miln t 4. Sand., 660 219> Vanderbilt, King v 7 Pr. E., 385. 251 Vanderbilt, Mathis t 2 Abb. Pr. E., 387 28& Van Jaudt, Demar v 2 J. C, 69 . . 321 Vermilyea, People v 7 Cow., 369. 326- Van Duzen v Worrell, 18 Barb. S. C. E., 409 369' Van Steenburg v Hoflfman, .6 How. Pr. E., 493 39» Voorhies, Connecticut River Bak- ing Co. Y 3 Abb. Pr. R., 173. . 421 Vredenburgh, Olmstead v 10 How. P. R., 217 460. Van Rensselaer, Cooney v 1 Code. Rep., 38 463. W Wilder r Ember, 12 Wend.,. 191 .. g; Warfleld, Cayuga Bank v 13 Pr. R.,439 - 72 Wilmerding y Moon, 1 Duer, 645 72; Webster, The People v 10 Wend., 554.... 13: Wheeler v Malines, 4 Mod., 171 . . 125- Wilson v Allen, 3 Pr. R., 369 ... . 42: Whitlook Y Eoth, 5 Prac> Eep., 143 65 Whitcom v Whiting, Doug., 652. 65- Wyat V Hudson, 8 Bing., 309 ... . 65 Winchell v Bowman, 21 Barb. S. 0. E..,448 86 Woodruffv Moore, 8 Barb., 171 . . ST Wenman y Mohawk Ins. Co., 13 Wend., 267 87 Wells, Carpenter v 21 Barb., 598. 88 Williard v Marsain, 1 Cow., 37. . . 95 Wood y Anthony, 9 Pr. R., 78. . . 88- Whitmarst t Campbell, 1 Paige., 645 105- Wagstaff V Bryon, 1 Euss. & My., 30 ; 105 White Y Kidd, 4 Pr. R., 68 108; West, et al.. Carpenter, et al., v 5 Pr. R., 53 106i INDEX TO CASES CITED. 549 PAGB Western R. K. Co., Hodgman v 7 Pr. R, 193 115 Wood V Randall, 5 HiU., 264. .. . 35 Walter, et als., Furman v 13 Pr. R., 348 83, 35 Watkis, Hurst t 1 Camp., 69. . . . 115 Weeks, Bardwell v 18 J. R., 1 . . . 23 Wardolph v Borile, 4 Pr. R., 358, 122,125 Wersuland, Gornneyv8Duer.,613 139 Wood, Butler v 10 Pr. R., 818 .. . 140 Williams V Wilkinson, 5 Pr.R.,867 151 Webb, Chapman t 6 Pr. R., 890. 151 Walker t Johnson, 8 Pr. R., 240. 157 Wright V Forbes, 1 Pr. R., 240. . 182 Wilkin T Gihnan, 13 Pr. R., 225. 184 Wirgan v Weld, 8 Abb. Pr. R., 462 197 White, Smithy 7 HillR., .521, 198 199 Wash. Co. Mutuallns. Com., Pea- body V 20 Barb., 842 253 Wood, Butler v 10 Pr. R., 222. .. 208 WeUsv Webster, 9 Pr. R., 251. . 203 Walsh V Durkin, 12 Pr. R., 99 . . . 206 Wheeler v Raymond, 8 Cow., 811 206 Walton V Eaton, 5 Pr. R., 99 . . . . 206 Wilton, Richardson v 4 Sand., 708 211, 220 Wesson vJudd, 1 Abb. Pr. R., 254 211 Wheeler, Slocum v 4 Pr. R., 373. . 218 Weider, Spelhnan y 5 Pr. R., 5. . 213 Wood V Sutton, 12 Wend., 235. . 216 White T Bennett, 7 Pr. R., 55. . . 220 Winne v Sickles, 9 Pr. R., 217. . . 220 Walker v Hewit, 11 Pr. R., 365 . . 220 Wash. Mutual Ins. Co., Rae v 6 Pr. R., 21 226 White V Joy, 3 Kernan, 83 235 White T Joy, 8 Kernan, 89 239 White T Bennett, 7 Pr. R., 59 . . . . 248 White V Cummings, 1 Code Rep. N. S., 107 248 Wright, People v 5 Pr. R., 28. . . 255 W.R. R. Co., Kortwi-ightv 10 Pr. R., 457 261 Wood V Lambert, 8 Sand. S. C. R., 724 262 W.R. R. Co.,NoltonvlOPr. R.,97 262 Woodin, Sales V 8 Pr. R., 349 263, 264 Weed, Steam Nav. Co. v 8 Pr. R., 49 263 White, Snyder v 6 Pr. R., 321 .. . 265 Whipple, Plumb v 7 Pr. R., 416. 265 Wilkinson v Johnson, 4 Hill, 46 . 273 Wallis V Murray, 4 Cow., 399 .. . 287 Wesson v Judd, 1 Abb. Pr., R., 254 289 Wolcott, Ahoyke v4 Abb. Pr. R., 41 294 Wait V Whitney, 7 Cow., 69, n (a.) 305 21 PACK Wait V Whitney, 7 Cow., 69. . . . 312 Weed, Sturgess v 13 Pr. R., 130, 319, 320 Watson V Delafield, 2 Cai. R., 260. 320 Whalen v Board of Supervisors of the County of Albany, 6 How. Pr. R., 278 844 WeUs, Swift V 2 How. Pr. R., 79 . 347 Ward V Davis, et al., 6 How. Pr. R., 274 351 Worrell, Van Duzen v 18 Barb. S. C. R., 409 369 Whitlock, Johnson v 3 Kernan's R., 845 392 Whitlock, Johnson v 3 Kernan's R., 345 ; 12 How. Pr. R., 571 . . 393 Wheeler, De Peyster v 1 Sand., S. C. R., 719, 399 402 White, Hare v 8 How. Pr. R., 296 400 Woodworth, Eno et al., v 4 Comst. 249 403 Woodruff, Balcom v 7 Barb., 13.. 404 Wicker, Egert v 10 How. Pr. R.,19 3404 Wheeler v Westgate, 4 How. Pr. R., 269 415 Wolf, Thinks V 8 How. Pr. R., 238 415 Williams v Hogan & Aut, 13 How. Pr. R., 138 420 Western R. R. Co., Nolton v 10 How. Pr. R., 97 429 West. R. R. Co., Kortwright x 10 How. Pr. R., 457 42li Watson & Aut. v Scriven, et al., 7 How. Pr. R., 10 436, 487 Williams, Conrad v 6 Hill., 444. . 486 Whitlock, Johnson v 8 Kern., 350 487 Whitlock, Johnson v 3 Kern., 844 438 Wheaton, SmaU v 2 Abb. Pr. R., 316.... : 461 Westervelt, Mitchell v 6 How. Pr. R., 265 466 WeitzeU v Shultz, 3 Abb. Pr. R., 468 466 Yates V Bloodget, 8 Pr. B., 278 . . 62 Yates V Bigelow, 9 Pr. R., 186 .. . 112 Yates, Palmer v 3 Sand., 139 ... . 211 Young V De Mott, 1 Barb., 80 . . . 287 Yates V Russell, 17 J. R., 461 ... . 897 Young, Cameron v et al., 6 How. Pr. R., 872 460 Z. Zerega, Ketchum v 1 E.D. Smith, R.,557 211,214, 224 INDEX. [The reference is to the page.] A. ABATEMENT and Revivor, 118. 118. no plea in, of action, 118. motion to review after, 126. petition by defendant that cause be revived or complaint dis- missed, 129. ACTION, defined, 1. division of, 8. parties to, 11. how commenced, 24. place of trial of, 48. cause of, where it arises, 60. causes of, to be numbered, 496. limitation of, 80. when deemed commenced, 87, 133, 136. joinder of causes of, 90. ' consolidation of, 272. abatement of, 118. revival of, 121. after judgment, and pending an appeal, 136. ' for discovery abolished, 304. reference of, 343. notice of trial of, 349. against witness for not attending pursuant to subpoena, 367. trial of, 374. against sheriff for not returning execution, 467. Criminal, defined, 7. ADDITIONAL allowance, 201, 421, 422, 511. ADJUSTMENT OP COSTS, notice of 194, 195, 426. by clerk, 422. ADMISSION of written instruments and obtaining examination and copies of books, &c., 294. of attorneys regulated, 489. of genuineness of document, 295. by one partner, effect of, 84. ADULTERY, issue on question of, 501. ADVICE of counsel, how stated, 497. AFFIDAVIT, not invalidated by being wrongly entitled, 128. to be filed, 491. to change venue, 513. of merits to prevent inquest, form of, 376. by whom made, 376. how served, 182. of service of summons, what to state, 496. See Forms — Affidavits. 552 INDEX. [^'« reference AGGRIEVED thereby, meaning of in section 160 of the Code, 106. ALIEN enemies cannot sue, 23. cannot set up statute of limitations as a defence, 89. ALLOWANCE in addition to cost, 201, 422. in foreclosure suits, 421. motion for, 511. -AMENDMENT of complaint, of course, when allowed, ISO. what is not, 152. after demurrer, 20*7. of reply, after demurrer, 240. adding a verification is not, 247. of answer or reply as of course, 265. changing language of pleading is not, 265. on the trial, 398. after issue and before judgment, 400. after judgment, 404. to case, 503, 439, 440, 441. ANSWER, judgment for want of, 184. can not be served after time for answering expkes, 184. extending time to answer, 49*7. when the appropriate mode of defense, 208. , may be to part or all of complaint, 208. defense by, of three kinds, 208. by denial, 209. of new matter, 211. constituting a counter claim, 212. and demurrer, 213. judgment for want of, 184, 498. after service by publication, 189, 194, 498. may set up any number of defences, 213. defences in, to be numbered, 496. demurrer to, 214, when to be verified, 214, 219. not verified when necessary, should be returned, 248. striking out as sham, 215, 219. for non compliance with order for discovery, 292, 294. as false, 216, 219. for not attending to be examined as a witness, 339. amendment of, as of course, 265. putting in new answer, after one struck out as false, 223. frivolous, definition of, 22Y. motion for judgment on account of, 227, 230. leave to answer after frivolous demurrer, 226, 230. sworn to, wiU not be struck out as sham, 229. demurrer to, 235. supplement at, 268. motion for judgment on for want of a reply or demurrer to, 238 verification of, 247. ' See Amendment, Pleading. APPEAL to the court of appeals, in what cases, 449 notice of, 450, 481. where respondent's attorney'is dead, 450. to party and to the clerk, 451. what to contain, 451. attorney in court below to continue on, 478. time for, 451. security on, 452. statement of facts on, 504. return on, 452, 477, 478. amended return on, 477. case on, 453. to be indexed, 478. to be printed, 479. is to the page.] J_NDEX. 558 APPEAL — continued. copies of case to be served, 453, 479. points on, 479, 482. from orders, 457. costs on, 457. either party may notice for argument, 481. on argument appellant to furnish cases and points, 481. on argument counsel limited to two hours each, 485. no extended discussion allowed on questions of fact, 482. judgment on default of appearance or for not furnishing papers, 482. only one counsel heard on a side, 482. exchanging causes, 488, 484. submitting on printed arguments, 483. judgment of reversal or affirmance on default, 483. to general term, from orders, 427. judgments, 431. security on, 431. from order giving judgment on account of the frivolousness of a demurrer, 446. from judgments of inferior courts, 485, 512. preparing case on, 436, 446. papers to be printed, 442. appellant to furnish papers to the court, 442. what papers required on, 442, 448. points to be printed, 443. extending time to print and serve papers, 443. notice of argument of, 443. from justice's judgment, 508, 512 either party may notice for argument, 444. service of papers with or after notice of argument, 444. note of issue on, 444. notice of motion to strike appeal from calendar, 445. affidavit in support of motion to strike appeal from the calendar, 446. order to strike appeal from calendar, 446. judgment roll on, 447. from surrogate's decisions regulated, 508. justice's judgments, 612. APPEARANCE, demurring is appearing, 188. by guardian, 51. what to be deemed, an, 498. l;iow entered, 493. ARREST, in what cases, 61, 62. of female, 62. order for, by whom made, 63. affidavit to obtain, 63, 65. to be filed, 491, 492. form of affidavit to obtain, 65. undertaking required on, 65, 66. on, made be amended, 66. to be filed, 491. form of undertakiug on, 67. order of, 67. order for when made, 67. copy for defendant, 67. order of, when to be returned, 67. how executed, 68. ' bail on, 68, 71. See Bail. escape after, 71. vacating order for, 72. warrant for 73. form of, 75. to whom directed, 76. 564 INDEX. [^^ reference ARREST — warrant for — continued,. arrest on, 76. proceedings after arrest on, 76. commitment on, n. form of, 77. on execution, 466. in proceedings supplementary to execution, 471. See Bail, ASSESSMENT of damages on judgment for want of an answer, 186, 187. form of notice of, 188. reference for the purpose of, 189. by writ of enquiry, 190. by a jury, 191. inquisition, form of, 193. ATTACHMENT, when it may issue, 33. who may issue, 33. how applied for, 33. affidavit to obtain, 34. to be filed, 491. form of, 35. is not process, 35. should be sealed, 302. undertaking on issuance of, 36. ofto be filed, 491. how executed, 36. of perishable property, 37, 40. proceedings on claim by third party, 38. of vessels, 38, 40. of foreign vessels, 39, 40. of stock of corporation, 40. property levied under, how disposed of, 41 . when judgment for defendant, 42. how discharged, 42. return of, 43. sheriff's fee on, 43. inventory of property taken on, 43. bond by claimant of vessel attached, 44. order to discharge vessel from, 44. bond by plaintiff to claimant of foreign vessel, 45. order for sale of vessel taken on, 46. bond, by plaintiff, to indemnify against costs of action, on demand, seized by sheriff, 47. undertaking, to obtain discharge of, 47. death of defendant after, but before service of the summons, 133. in proceedings against the heirs, &c., of a deceased judgment debtor, 175-180. to enforce obedience to order for giving an Inspection of books, *c., 297, 301. to enforce satisfaction of amount admitted to be due by the answer, 246. for not attending to be examined as a witness before trial, 341 . against witness, for not obeying subpoena, 361, 364. against referee, for not making a report, 395. against sheriff, for not returning execution, 467. See Forms — Attachment. ATTORNEYS and Counselors, distinction between, 9. who may practice as, 9. application to become, 10. infant acting by, 52. to act as guardian, 60. when liable to arrest, 62. of plaintiff, when liable to defendant for costs, 140. should prepare judgment-roll, 412. ig to the page.] INDKX. 555 ATTORNEYS— co)i<2«Me(Z. statutes, regulating fees of, repealed, 413, death of, JSO. discharge of execution by, 46Y. who may issue execution, 46'?. admission of regulated, 489. to endorse name and residence on papers, 493. change of, 494. stipulations between, to be in writing, 494, 183. See Counsel. B. BAIL, how given, 68. form of undertaking of, 68. to sheriff, need not justify, 69. notice of non-acceptance of, 69. justification of, 69, 492. where to justify, 491. form of justification of, 10. deposit in lieu of, 11. sheriff, when liable as, 11. reducing amount of, 72. See Arrest. BILL OF COSTS, 196, 425. BILL OF EXCEPTIONS. See Case, Exceptions. BILL OF PAKTICULARS, when it may be demanded, 109. to be verified, 109. effect of omitting to deliver, 109, 110, 113, what to contain, 110. a further one may be ordered. 111, 113. of counter-claim, 111. order for. 111. within what time to be demanded, 112. form of demand of, 112. forms a part of the pleading, 116. other than of an account, 116. BONDS to be proved and acknowledged, 492. See Forins, Bonds — Undertaking. BOOKS AND PAPERS, discovery of, 284. See Discovery. c. CALENDAR, how made out and called, Zti. motion to correct, 374. disposal of issues on, 374. at general term, 506. of court of appeals, 481. CASE, when it may be made, 436. and bill of exceptions, distinction between, 438. within what time to be served, 439, time to serve may be enlarged, 439. stay of proceedings to prepare, 439. amendments to, how marked, 503. service of amendments to, 439, 441. right to serve amendments to, how waived, 440. 556 INDEX. [?^ feference CASE — continued. notice of settlement, 440, 441. settlement of, 602. to be filed, 441, 442, 504. lines of, to be numbered, 440. to be furnished at commencement of argument, 446. on verdict subject to opinion of the court, 447. on appeal to the court of appeals, 453, 504. order declaring it abandoned, 504. See Exceptions. CERTAIN. See Indejinite and uncertain. CAUSE OF ACTION, joinder of, 90. was formerly called a count, 94. how stated, 95. where more than one, each to be separately stated, and numbered, 91, 98, 496. See Actio7i. CBRTIOBARI, when to be heard, 610. CHALLENGES of jurors, to the array, for principal cause, 380. for favor, 382. to the polls, 382. for principal cause, 383. propter delictum, 303. propter effectum, 383. that juror has expressed an opinion, 383. for favor, 384. peremptory, 384. trial of, 384. CHANGING attorney, 494. place of trial, 248, 513. CIRCUIT COURTS, number of, and where held, i. CIVIL ACTION, defined, 1. division of, 8. See action. CLERK, fees of, 423. to keep books, 492. of Court of Appeals, duties of, 481, 485. COMMISSION to take testimony out of the State, in what cases, 318, 319. motion for, 319, .320. where applied for, 320. of parties, 321. order for, 326. order to show cause why it should not issue, 326. interrogatories on, 327. form of, 329. how issued, 330. how executed, 330, 331. how returned, 331. See witnesses, COMPLAINT, what causes of action may be joined in, 90. containing several, of action they must be separately stated, 90, 97, 496. causes of action on tort, and on contract cannot be joined, 91. copy when to be served, 93. of what it consists, 93. the several parts of, 94. must agree with the summons, 94. to state name of the court, 94. names of the parties, 94. y. place of trial, 95. cause of action, 95. demand of relief, 95. facts with certainty, 99. is to tite paffe.] INDEX. 557 COMPLAINT— conijjiwed. striking out irrelevant and redundant matter, and making complaint more certain, 101, 106, 511. supplemental, when necessary, 126, 129, 267. object of verifying, 137. form of verification of, 137. motion to dismiss if action not revived, 129. for not filing security for costs, 149. amendment of, without leave of the court, 150. of prayer of, 402. of, what is not, 152. after demurrer, 207. demurrer to, 202. allegation of when admitted, 209, 214. objections to, waived by answer, 214. defects in, cured by answer, 236. motion for judgment at the trial, on the ground of the iusufficiencv of, 390. See Pleading. rOMPROMISE, offers to, in what cases, 165, 156. form of, 156. notice of acceptance of, 156. when to be made, 167, 168. does it stay the proceedings, 157. when it should not be served until after answer, 168. effect of on the costs, 158, 159. by one of several joint debtors, 159. when defendant will be ordered to satisfy amount offered, 160. judgment on, 160. 'JONDITIONAL, examination of witnesses, 306. CONFESSION, judgment by, statement for, 166. CI I ySOLIDATING ACTIONS, in what cases, 272. , no general rule as to, 273. motion for, should be before answer, 276. proceedings on motion for, 279. CONTEMPT. See Attachment. CONTROVERSY. See Submitting controversy. CORPORATION, service of summons on, 25. verification of complaint in an action by, 139. foreign, to give security for costs, 141. attachment on stock of, ^0. COSTS, court may order executors to pay, 131. all previous statutes as to repealed, 413. when attorney of plaintiff liable to defendant for costs, 140. security for, in what cases, 139. order to file, how applied for, 142. bow filed and perfected, 145, 146. bond for, 146. notice of filing, 147. excepting to, 147. justification of sureties, 147. within -what time to be given, 148. who may be, 160. include disbursements, 416. on submission of controversy without action, 165. on judgment by default, 194, 195. on discontinuance, 197. on a settlement, 201. allowance in addition to, 201, 422. of proof of written instrument after a refusal to admit its genuineness, 295. in judgment after trial, 413. to plaintiff when allowed, 413. 558 INDEX. [2^e reference COSTS— co«a'«M«A where several aotiona are brought on one bond, note 212. definition of, 213, 234. more than one may be set up, 213. to be numbered, if more than one, 213. folios of, to be marked, 213. in reply, 234. demurrer to, 214. bill of particulars of, 111, 512. See Pleading. COUNTY JUDGE, power of, to make orders out of court, 153,'259, meaning of the term 63. CRIMINAL ACTION defined, Y. COURT OF APPEALS, terms of, 453. calendar of causes in, 464, 481, 486. striking causes from calendar, 454, 484. exchanging causes on calendar, 464, 483, 484. submitting causes on printed arguments, 454, 483. appellant to furnish printed copies of cases and points to the court, 464, 481. will not hear extended argument on question of fact, 464, 482. taking default for not appearing, or not furnishing papers, 454, 482. only one counsel heard on each side, 466, 482. argument not to exceed two hours, 486. appeals from orders to be argued as special motions, papera need not be printed, 455, 457. motions, how noticed, 455. motion days in, 455, 488. motions, when granted of course, 483. orders in, how served, 455. calendar, how disposed of, 484. power of, on appeal, 455. criminal cases have preference, 482. decisions of, when made, and how entered, 466. remittitur to court below, 456. after judgment by default, 457. judges, power of, 467. appeals to, from orders, 457. rules of, 477. is to the page.} INDEX. 559 D. DAMAGES, offer to liquidate, 160, 1'70; 1Y2. acceptance of offer to liquidate, 172. how assessed on judgment for want of an answer, 186. See Assessment of Damages. DE BENE ESSE examination, 311. DECEASED JUDGMENT DEBTOR, proceedings against heirs and tenants of, 172. DECISION, on trial by the Court, form of, 393. DEFENDANT, who to be, 12, 17, 21. defending for himself and others, 15. service of summons on, 24. whose name is unknown, 33. an infant guardian for, how appointed, 57, 60. death of, 118. death of one of several, 132, 133. death of, after attachment and before service of summons, 133. ' motion requiring him to satisfy the part of plaintiff's claim, ad- mitted by the answer, 244. costs to, when allowed, 420. DEFINITIONS, action, 7. aggrieved thereby, 105. bill of exceptions, 438. case, 438. civil action, 17. counterclaim, 213, 234. county judge, 63. criminal action, 7. due notice, 296. enumerated motion, 153, 505. frivUous answer, 227. general denial, 209. immediately, 184. irrelevancy, 218. irrelevant and redundant, 102, 103. long account, 346. motion, 258, 152. non-enumerated motion, 505. order, 258, 152. points, 482. provisional remedies, 428. sham, 218. specific denial, 209. trustee of express trust, 14. variance, 401. DEMURRER, need not be verified, 248. decision on, how appealed from, 261. judgment on, 240, 407. to answer, may be to one or more of the defences, 235. in what cases, 214. containing a mere denial, not allowed, 235. defects in complaint considered on argument of, 236. motion for judgment on answer, for want of, 238. judgment on, 407. order overruling, 409. to complaint, in what cases, 202. should be limited to the part actually defective, 202. only in the cases prescribed by the code, 203. does not lie for duplicity, 203. should state grounds of demurrer, 203. 560 INDEX, ^'« refenw^' DEMURRER— coK^mMetZ. for that Court has no jurisdiction, 204. that plaintiff has not legal capacity to sue, 204. that there is another cause pending, 204. for defect of parties, 206. that several causes of action are improperly joined, 206. that complaint does not state facts sufficient to constitute a cause oi action, 207. amendment of complaint after, 207. and answer, 213. motion for judgment on account of the friTolousness of, 226. when frivolous, 226. leave to answer after, 226. to coimterclaim, 214. to reply, in what eases, 239. See Pleading. DEPOSITION, captious of, 311, SlY. DEVISEES of deceased judgment deht:r, proceedings against, 172. DISBURSEMENTS, included in the term costs. afiSdavit of, 426, 195. against executors, &c., 424. DISCONTINUANCE, how effected, 197, 199. costs on, 197. DISCOVERY, action for, abolished, 300. of books and papers, 283. under revised statutes, 284. petition for, 286, 289. granting is in the discretion of the court, 286. to enable party to prepare a pleading, 296. stay of proceedings to enable party to obtain, 287. proceedings for, 289, 494, 495. order for, is a stay of proceedings, 294, 496. penalty for disobeying order for, 304. DIVORCE CASES, judgment in, 505, 531. proceedings in, 529. DOCUMENTS, admission of genuineness, 294. production of, compelledby subpoena duces, 361. discovery of, 283. See Discovery. DUE NOTICE, what is meant by, 296. See Notice. E. ENUMERATED MOTIONS, what are, 153, 505. to be noticed for first day of term, 506. papers to be furnished on, 506. points on, 609. discussion of question of fact on, 509. EVIDENCE, books and papers when evidence without proof, 294. admission of genuineness of documents, and that same may be evi- dence, 295. costs of, when genuineness not admitted, 295. reading deposition of witness as, 812. proceedings to perpetuate, 314. out of State, commission to take, 318. reading deposition taken on commission as, 832. of party to action taken before trial, 337. See Testimony., Witness. U to the page. I INDEX. 561 -EXCEPTIONS to rulings on the trial, 436. to decision or to report of referee, 437. should be in writing, 437. what to contain, 503. settlement of, 502.' amendments to, how marked, 503. bill of, and case, distinction between, 502. EXECUTION, when may be issued of course, 458. when issued by leave of the court, 458. issued by leave of surrogate after death of judgment debtor, 468. by executors or administrators of deceased judgment creditor, 459. alias, may issue after five years, 460. on judgments against executors and administrators, 460. reference on motion for leave to issue, 460. kinds of, 462. against property and against the person, 462. against the person, in what cases, 462. against females, 463. against the person, order for, 464. return of, 465. form of, 465. when returnable, 465. upon interlocutory order, 466. against the person, arrest on, 466. discharge from arrest on, 466. against joint debtors, where all have not been served, 466. discharge of, by attorney, 467. what attorney may issue, 467. compelling return of, by sheriff, 467. attachment against sheriff for not returning, 467. proceedings supplementary to, 468. See Supplementary Proceedings. EXECUTORS or administrators, actions by, 14. limitation of actions against, 89. revival of action against, 128. power of court to order them to pay costs, 131. proceedings against, where defendant dies after attachment levied, but .before service of the summons, 133, 134. liabiUty of, for costs, 423, 131. execution on judgment against, 460. leave to, to issue execution on judgment of decedent when re- fused, 459. P. FEES of attorneys, 413. of clerks, 423. of referees, '423. of sheriff on attachment, 43. FEMALES, arrest of, 62. execution against, 463. FIDUCIARY, meaning of the term, 462. FOLIOS to be marked on papers, 512, 496, 182. FORECLOSURE, reference and proceedings on, 519, 525. FOREIGN CORPORATION, security for costs in action by, 141. FOREIGN JURY, venire for, 854. allowance on, 421. FOREIGN VESSEL, attachment against, 39, 40. 562 INDEX. [^^ reference FORMS: admission of genuineness of written instrument, 296. Affidavit. of citizenship, &c., 10. of service of summons, 25. of publication of summons, 29. of service of summons by leaving copy, 32. that judgment remains unsatisfied in proceedings against heirs, &c., of deceased judgment debtor, lYS. of acceptance of defendant's offer to allow judgment to be taken against him, 160. of controversy being real, on submission of controversy without action, 163. to accompany petition for discovery of books, &o., 290. of non-compliance with order for discovery of books, &c., 292. of merits to prevent inquest, STe. of disbursements, 426. in support of motion, for order for publication, 2*7. for attachment, 34. for order of arrest, 65. for warrant of arrest under non-imprisonment act, 74. for order of service by leaving copy at residence, 30. for bill of particulars, 116. to revive an action, 122, 123. for security for costs, 143. to dismiss complaint for not filing security for costs, 149. for attachment in proceedings against heirs, &c., of deceased judgment debtor, 176. to change place of trial for convenience of witnesses, 252. leave to serve a supplemental pleading, 270. to consolidate actions, 279. for examination of books, &c., 299. for order to examine witness de bene esse, 306. for order to take testimony to be perpetuated, 315. for a commission to examine witnesses out of the State, 322. for order to examine opposite party as a witness before trial on a notice of less than five days, 338. to strike out answer and for attachment for defendant not attending to be examined as a witness before the trial, 339. for order of reference, 345. for an attachment for not attending pursuant to subpoena, 362. to postpone trial on account of the absence of a material witness, 378. for attachment against referee for neglecting to report, 395. Amendments, to case, 441. Attachment, under the code, 35. in proceedings against heirs, &c., of deceased judgment debtor, 177. for disobedience to order for inspection of documents, 301, j for not attending to be examined as a witness before the trial, 341. at the circuit, for not attending pursuant to a subpoena, 363. at Special Term, the like, 364. Bill, of costs on judgment by default, 195. of costs, 425. Bond, by claimant of vessel attached, 44. by plaintiff to claimant of foreign vessel, 45. by plaintiff to indemnify against costs of a ction on a demand seized by she- riff, 47. that defendant will apply for assignment, &c., under act to abolish impri- sonment for debt, 80. ' under subdivision 6, of section 10, of non-imprisonment act, 81. is to the page.'] INDEX. 563 FORMS — Bond — continued. on adjourninent in proceedings on non-imprisonment act, 82. for securing plaintiff's costs, 146. See Undertaking. Caption, of deposition on examination of witness de bene esse, 311. of deposition on examination of witnesses in proceedings to perpetuate tes- timony, 317. Case, amendments to, 441. of good moral character, 10. of service of summons, 25. Commission, to take testimony out of State, 329. Commitment, on warrant of arrest under non-imprisonment act, 11. Complaint, commencement of, 95. demand of relief in, 96. Confession of Judgtnent, statement for, 168. Decision, on trial by the court, 393. Demand, of copy of complaint, 112. Deposition, on examination of witness, de bene esse, caption of, 311. on examination of witness to perpetuate testimony, caption of, 31*?. Inquisition, on writ of inquiry on judgment for want of an answer, 193. Interrogatories, in proceedings on attachment in proceedings against heirs, &e., of de- ceased judgment debtor, 178. to be administered on return of attachment for disobedience of order to give inspection of documents, 302. on taking testimony by commission out of the State, 328. on return of attachment for not attending to be examined as a witness before trial, 342. on return of attachment against witness for not attending pursuant to sub- pcena, 36Y. Inventory, of property taken upon attachment, 43. Judgment, on submission of controversy without action, 164. on confession, statement for, 168. on confession, 169. for want of an answer, 197. dismissing complaint on motion for judgment on alleged frivolous an- swer, 232. for plaintiff on demurrer, 242. for defendant on demurrer, 243. on demurrer, 407. for plaintiff after trial by the court without a jury, 409, for plaintiff on trial by a jury, 410. on report of referee, 410. of nonsuit at the circuit, 411. of nonsuit before referee, 411. dismissing complaint at the circuit for plaintiff's non-appearance, 412. in court below, after remittitur from Court of Appeals, 480. of bail, 70. N'ote, of issue, 350. 564 INDEX. [^'« reference FORMS — continued. Notice, to general guardian or relatire of, motion for appointment of guardian ad litem, 56. of non acceptance of bail, 69. of having given security for costs, 14'7. of excepting to securities for costs, J47. of acceptance of oifer to compromise, 156. of acceptance of offer to liquidate damages, 172. of assessment of damages, on judgment for want of an answer, 188. of adjustment of costs, 195. of settlement of interrogatories to take testimony on commission, 821). to party to action to attend and be examined before trial, 336. of examination of party to action before trial, 337. of trial and inquest, 350. of attending to strike special jury, 358. of examination of party as a witness on the trial, 372. of adjusting costs, 426. of appeal from order to the general term, 428. of exception to sureties on appeal, 433. of justification of sureties on appeal, 433. of attendance to settle case, 441. of argument of appeal, 443. of Motion, to strike out irrelevant matter, 103. to make definite and certain, 106. for order precluding party from giving evidence of his account, 114. for bill of particulars, 116. to revive an action, 123. for leave to file supplemental complaint, 127. by defendant that action be revived or complaint dismissed, 130. for order for security for costs, 144. to dismiss complaint for not filing security for costs, 149. to strike out answer as sham and irrelevant, 223. for judgment on account of the frivolousness of the demurrer, 226. for judgment on account of the frivolousness of the answer, 230. to change place of trial, 254. for leave to file supplemental answer, 271. to consolidate actions, 280. for examination of books, &c., 298. for an attachment for not obeying order for inspection of documents, SOii. for a commission to take testimony, 323. for order to strike out answer and for attachment for defendant not attend- ing to be examined as a witness before the trial, 340. for order of reference, S4C. for special jury, 356. to strike appeal from the calendar, 445. for appointment of guardian ad litem, to general guardian or relative, 56. to compromise, 156. to liquidate damages, 172. Order, for publication, 28. for service by leaving copy at residence, &c., 31. for sale of perishable property taken on attachment, 37. to discharge vessel from attachment, 45. for sale of vessel taken on attachment, 46. for appointment of guardian, 55. for appointment of guardian for infant defendant, 68. of arrest, 67. to strike out redundant and irrelevant matter, 108. to make pleading more definite and certain, 109. for further account, 113. for precluding party from giving evidence of his account, lis. is to the page.'] INDEX. 565 FOKIIS — Order — continued. for delivery of bill of particulars, 117. to revive action, 124. for leave to file supplemental complaint, 127. that action be revived or complaint dismissed, 131. that plaintiff have leave to commence an action against the executor or administrator of a defendant dying after attachment levied, but before service of the complaint, 135. of the court that plaintiff file security for costs, 144. at chambers that plaintiff file security for costs, or show cause to the contrary, 145. dismissing complaint for not filing security for costs, 160. for attachment in proceedings against heirs, &c. of deceased judgment debtor, 177. for assessment of damages by a jury on judgment for want of an answer, 192. to strike out answer as sham, 223. for judgment on account of the frivolousness of the answer, 230. that defendant satisfy the amount admitted by the answer to be due, 246. changing place of trial, 255. revokins; stay of proceedings to enable defendant to move to change place of trial, 257 that defendant may serve supplemental answer, 271. to consolidate actions, 281. for discovery of books, &c., 291, 293. striking out answer for non-compliance with order for discovery of books, &c., 292. for examination of books, &c., 300. for attachment for not obeying order for inspection of documents, 801. to examine witness de bene esse, 307. to examine witness de bene esse before a referee, 308. to examine witness in proceeding to perpetuate testimony, 315. of the court to take testimony by commission, 325. of a judge to take testimony by commission, 325. to show cause why a commission to take testimony should not issue, 326. for examination of party to the action as a witness before trial, on a notice of less than five days, 339. to strike out answer, and for an attachment for defendant not attending to be examined as a witness before the trial, 340. for reference, 347. for venire for foreign jury, 356, 357. for special jury, 357. at special term for attachment for not attending pursuant to subpoana, 364. to show cause why attachment should not issue againt referee for not making report, 396. overruling demurrer, 409. ' Petition, for discovery of books, '&c., 289. for appointment of guardian, for infant plaintiff under fourteen years of age, 64. the like over fourteen years of age, 66, for appointment of guardian for infant defendant over fourteen, 57. the like under fourteen, 59. by defendant that fiction be revived or complaint dismissed, 129. by surviving plaintiff for leave to revive or continue the action, 132. by plaintiff for leave to commence action against the executors or admin- istrators of a defendant, dying after attachment levied but before service of the summons, 134. Reeognizanx;e, for appearance of defendant on adjourned hearing under non-imprisonment act, 79. the like, with sureties, 80. Remittitur, from Court of Appeals, 456. 22 666 INDEX. L^/'* reference FORMS — continued. Report, of referee, 393, 501. Statement, for judgment on confession, 168. Stipulation, to refer, 343. Submission, of controversy without action, 161. Subpcena, writ of, 359. ticket, 359. duces, 360. Summons, form of, 24. against joint debtors, not served with process, 173. against the heir, devisee or legatee, of a deceased judgment debtor, 174. to witness to attend and be examined, de bene esse, before a referee, 809. for witness in proceedings to perpetuate testimony, 316. Undertahinff, on attachment, 36. on arrest, 67. of bail, 68. on appeal, 434. See Bond. Venire, for foreign jury, 354. Verification, of complaint, 137. of disbursements, 195. Warrant, of arrest under non-imprisonment act, 75. to arrest a witness not attending to be examined, de bene esse, 309. Writ, of inquiry, as to damages on judgment for want of an answer, 192. FRIVOLOUS ANSWER, motion for judgment on account of, 227. definition of, 227. demurrer, motion for judgment on account of, 226. demurrer part of judgment record, 227. G-. GENERAL DENIAL. What it is, 209. GENERAL GUARDIAN. See Guardian. GENERAL TERMS, to be held in each district, 3. appointment of, 4. non-enumerated motions at, 154. appeal to from orders, 427. " " judgments, 431. notice of argument at, 443. motion days at, 444. what motions will be heard at, 446. calendar of, 506. GUARDIAN, general, how appointed, 515. security by, 515. when moneys may be paid to, 518. special, application for appointment of, 616. order on petition to appoint, 517. proceedings on order to appoint, 517. security by, 517. is to the page.] INDEX 567 GTJASDIA:^— continued. ad litem, appointment of, 51, 614. by whom appointed, 52. for plaintiff, 53, 54. for defendant, SY. when required to give security for costs, 141. duty of, 614. not to receive property of infant until security given, 614. H. BffilRS AND TENANTS of deceased judgment debtor, proceedings against, 172. HUSBAND AND WIFE, action against for debt of wife, 1,3. See Married Wmnan. IMMEDIATELY, means 24 hours, 184. IMPRISONMENT in State Prison, effect of an action pending, 119. INDEFINITE and uncertain, motion to make definite and certain, 106, 10'7, 511. form of order to malce complaint more definite and certain, 109. answer and reply may be made more definite and certain on motion, 248. INFANT, service of summons on, 32. appointment of guardian of, 51. acting by guardian, 52. guardian of, when required to give security for costs, 141. See Guardian. INQUEST, when it may be taken, 376, 499. affidavit of merits to prevent, 376. is an ex parte trial, 376. INQUIRY, writ of, 190. INQUISITION, in writ of inquirv, form of, 193. INTEREST, on verdict or report,' 422. INTERLOCUTORY COSTS, how collected, 466. INSPECTION of written instruments, books, &c., how obtained, 294. for the purpose of preparing a pleading, 296. INTERROGATORIES, See Forms— Interrogatories. INVENTORY, See Fm-ms— Inventory. IRREGULARITY, notice of motion for, to specify what ia complained of, 505. waiver of, 497. IRRELEVANCY, definition of, 218. IRRELEVANT OR REDUNDANT, meaning of, 102, 103. motion to strike out matter as, when and how made, 102, 103. rules to be observed on motion to strike out matter, as, 104, 611. motion to strike out as when not proper, 104. no appeal from decision on a motion to strike out matter, as, 105. form of order to strike out matter as, 108. matter in an answer or reply may be struck out on motion, 248. ISSUE, when a cause is at, 282. of fact, when it arises, 282. how tried, 499. ' 568 INDEX. [^A« reference ISSUE — ccntimied. of law, when it arises, 283. place of trial of, 351. reference of, 3'76. order of trial of, 283. how settled, 501. ou question of adultery, 601. note of, 606. form of note of, 350. filing note of, 606. not in the action, 501. JOINDER OP CAUSES OF ACTION, in what cases, 90. tort and contract cannot be joined, 91. improper joinder how waived, 107. demurrer of improper joinder, 206. JOINDER OF PARTIES, plaintiff, 23. JOINT DEBTOR, not served with process proceeding against, 1'72. separate judgments against, 105. JUDGMENT, motion for, on frivolous answer, 154. / for want of an answer, 184, 498. after service by publication, 498, 189, 194. in divorce cases, 505. how it differs from an order, 258, 261. after trial, 406 fee on entering, 423. appeal to general term from, 481. to be filed and docketed only during office hours, 493. See Forms — Judgment. JUDGMENT BOOK, clerk to keep, 492. JUDGMENT DEBTOR, execution against property of, 458, 462. " " person of, 464. examination of on proceedings supplementary to the execu- tion, 468. arrest on warrant in proceedings supplementary to execu- tion, 470. to give security for attendance to be examined, and not to dispose of his property, 471. examination of debtor to, 473. debtor of, may pay sheriff, 473. See Supplementary proceedinffs. JUDGMENT DEBTOR deceased, proceedings against heirs and tenants of, 172. execution against property of, 46S. JUDGMENT ROLL on judgment for want of an answer, 196. demurrer, part of, 227. JUDICIAL DISTRICTS, number of, 3. general terms in, 3 JURY, how convened, 362. in New York city, 353. foreign or struck, 853. motion for, 353. venire for, 354. order for, 366, 357, special, 353. notice of motion for, 366. order for, 357. notice of attending to strike, 358. manner and expense of striking, 358. is to the page. IJfDEX. 569 JURY — continued. how empanneled, 3'79. challenges of, 380. to be kept together to deliberate on verdict, 389. may be polled, 389. sending back to re-consider verdict, 390. trial by, may be waived, 392. JUSTICES, number of, 3. JUSTIFICATION of bail, form of, 70. of sureties, 492. L. LEGATEE of deceased judgment debtor, proceedings against, 1'72. LIMITATION of actions, provisions of Revised Statutes as to, repealed, 83. new promise must be in writing, 84. admission by one partner, 84. payment by one of several joint debtors, 85. payment by one of several parties to a bill or note, 87. action when deemed commenced for purposes of, 87. on contract, 84. on judgments, 88. effect of defendants absence on, 88. when time commences to run, 87, 89. against executors or administrators, 89. ahen cannot avail himself of, 89. effect of disabilities in plaintiff, 89. when not to apply, 89. LONG ACCOUNT, what is meant by, 346. LUNACY, proceedings in, 528. M. MANDAMUS proceedings on return to, 511. MARRIED WOMAN, parties to suits by and against, 12, 14. next friend of, 51. order of arrest in action by, 66. See, HitshaTid and wife. MERITS, affidavit of, service of, 182. when order involves the, 429. MINOR, See Infant. MONEYS brought into court, disposition of, 525. MORTGAGE cases, reference and proceedings in, 619, 625. allowance in, 421. MOTION, defined, 258, 152. three kinds of, 258. practice on, 259. where to be made, 152, 154. notice of, 153, 154, 605, 128, 259. non-enumerated, what is, 153, 605. of course, what is, 153. enumerated, what is, 153, 606. for judgment, on frivolous answer or demurrer, 154. contested, where to be heard, 505. See Enumerated motion, non-enumerated motion. Notice of motion. 570 INDEX. [2^« refmuM N. JTE EXEAT, writ of, not abolished, 61. NEW MATTER in answer, how stated, 215. may be demurred to, 214. NEW PROMISE, to revive debt, must be in writing, 84. > NEW TRIAL, rule as to granting or denying, 4S6, 449. motion for, on question of fact, 437. motion for, where made, 448. court of appeals may order, 455. of issue not in the action, 502. NON-ENUMERATED MOTIONS, what are, 153, 605. division of, 153, 258. when to be noticed for first day of term, 154, 260, 510. in first district, 155, 510. at general term, 156. transfer of hearing of, 260. N-IMPRISONMENT ACT, proceedings under, 73. NONSUIT, submitting to, must be before the jury go from the bar to consider v£r" diet, 500. submitting to before referees, BOO. NOTE OP ISSUE, form of, 70. c' S C on appeal to general term, 444, 506. date of, and filing of, 606. NOTICE OF MOTION, what is sufficient, 128, 259, 153, 154, 505. for irregularity, 605. of trial, when and how given, 349. form of, 350. before referee, 350. countermand of, 351. due notice, what is, 296. See FoKm& — Notice. o. OFFER to liquidate damages, 160, 170. See Comprmnise, Forms, Offer, ORDER, defined, 268, 152. to show cause, where returnable, 260, 505. time to comply with, 513. distinction between, and a judgment, 261, 258. out of court without notice by whom it may be made, 153, 260. application for, after a refusal to grant, 497. application for, refused by a judge, is a bar to application to the court, 326. when not to stay proceedings, 506. appeal from, to general term, 427. notice of, need not be given, before appealing, 428. when does it involve the merits, 429. affect a substantial right, 429. See Forms — Order. U to tlie page.'] INDEX. 571 PAPERS, service of, 180. to be transferred on changing place of trial, 255. where to be filed, 256, 490. transfer of on, action being consolidated, 280, 281. discovery of, 283. when evidence without proof, 294. admission of genuineness of, 294, 296. inspection of, 294. discovery of, for the purpose of drawing pleading, 296. on special motions to be filed, 490. name and residence to be indorsed on, 493, 182. folios of, to be numbered, 182, 496, 512.- to be furnished, on enumerated motion, 506. on appeal to general term, 442, 443. on appeal to court of appeals, 481. on case pursuant to the 3'72d section, 50Y. to be indorsed by counsel, on taking default, 512. PARTICULARS OF DEMAND. ?,&&,' Bill of particulars. PARTIES, who may and who must be, 11, 23. in actions by or against married women, 12. . in action by executors, or administrators, or trustees of an express trust, 14. in action against several parties to bills or notes, 1 5. where very numerous, 15. who to be joined as, 15. to actions by or against surviving partners, 15, 17. joinder of, 23. death of, 118. pending appeal, 136. one of several, 136. amendment of course as to, not allowed, 151. demurrer for defect of, 206. compelling to produce documents by subpoena duces, 368. examination of, as witnesses before trial, 384. by commission, 321. in their own favor, 368, 370. notice of, 370, 372. adverse party as witness, 372. acting in person to endorse papers, 493. PARTITION, proceedings on, 623. PERISHABLE PROPERTY, attachment of, 37, 40. PERPETIJATING TESTIJIONT, proceedings for, 314. PETITION. See Forms— Petition. PLAINTIFF, who to be, 11, 17. suing for himself and others, 15. to be real party in interest, 16. person imprisoned for felony, or alien enemy, cannot be, 23. who may join as, 23. an infant, guardian for, how appointed, 53, 64. when may apply for guardian for infant defendant, 60. under disabilities, 89. death of, 118. death of one of several, 132. when required to give security for costs, 139. attorney of, when liable to defendant for costs, 140. guardian of, when required to give security for costs, 140. costs to when allowed, 413. may stipulate to proceed to trial, 499. 572 INDEX. [^/'« refmwi PLAINTIFP— fioniMiwrf. need not be called when verdict delivered, 500. submitting to non-suit, 600. See Parties. PLEADING, existing forms of, abolished, 93. principles of, not changed, 96. need not contain items of account, 109. bill of particulars forms part of, 115. there is now no plea in abatement, 118. supplemental, 268. discovery and inspection of documents to enable a party to prepare, 296. striking out, for not attending to be examined as a witness, 839. causes of action and defenses to be separately stated and numbered, 496. folios to be marked, 496, 512, 182. to be legibly written, 496, 512. to be endorsed, 182, 493, 496. waiver of objections to, 495. motion to amend, 511. See Answer, Complaint, Counter-claim, Demurrer, Eeply. POINTS, on enumerated motions, 509. on appeal to Court of AjDpeals, 479, 482. on appeal to general term, 448. to be printed, 51C, 443. defined, 482. PUBLICATION, service of summons by, in what cases, 24. proceedings on, 26. judgment for want of an answer, after service by, 18Y, 194, 4S8. PROVISIONAL EEMBDIES, what are, 428. R. RECEITEE, powers and duties of, 532. RECOGNIZANCE. See Forms — Recognizance. REDUNDANCY, definition of, 218. REDUNDANT. See Irrelevant and redundant. REFEREE, report of, 893. to deliver report to prevailing party, 394. fees of,. who liable for, 394. compelling a report from, 394, 395, 396. perfecting judgment on report of, 394. objecting to report of, 397. excepting to report of, 398. powers of, on trial, 398. statement of facts on appeal to court of appeals, after trial by, 504. fees of, 423. to report facts put in issue on trial, 447. on motion for leave to issue execution, 460. in proceedings supplementary to execution, 469. REFERENCE, stipulation to refer, 843. in mortgage cases, 519. motion for, where made, 344, 376. when directed, 344. notice of motion for, 845. • order for, 347. notice of trial on, 350. of issue of law, 376. trial on, 393, 397. is to the page.] INDEX. 573 REFERENCE— coniimferf. nonsuit on, 500. report on, 393, 601, other than of the issues in the action, 601. amendment on trial, 400. to report facts piit in issue on the trial, 447. on motion for leave to issue execution, 460. REMITTITUR, form of, 45G. REPLY, when authorized, 233. may be either by a denial or by setting up new matter, 233. new matter in, must be consistent with the complaint, 233. doubtful if counter-claim can be set up in, 234. motion for judgment on answer for want of, 238. demurrer to, 289. amendment of, as of course, 266. amendment of, after demurrer to, 240. verification of, 247. supplemental, 270. irrelevant or reduadant matter in, may be struck out on motion, 248. See Plcctding. REPORT OF REFEREE, form of, 393, 501. See Referee^ Reference, RETAINER, notice of, an appearance, 493. RETURN on appeal to the court of appeals, 452. on appeal from an inferior court to the general term of supreme court, 612, 435. RULES of Court of Appeals, 477. of Supreme Court, 489. table to iind the present number of, 487. of Court of Appeals. return of, what to consist, 477. appellant to procure return to be made, and consequences of neglect, 477. defective return, 478. attorneys in court below, to continue on appeal, 478. case to be made in calendar causes, 478. indexed when it is voluminous, 478. cases and points to be printed, 479. size of printed page, 479. folios to be numbered, 479. copies of case to be served on adverse party, 479. either party may notice for argument, 481. notice to clerk, 481. clerk to prepare a calendar, 481. calendar to be printed, 481. on argument, appellant to furnish court and clerk with cases and points, 481. copy of points to adverse party, 481. cases and points delivered to clerk, how disposed of, 481. leading facts deemed established, to be stated in points, 482. no extended discussion on question of fact, 482. judgment on default of appearance or for not furnishing papers, 482. only one counsel heard on a side, 482. criminal cases have preference, 482. causes may be exchanged, 483, 484. submitting causes on printed arguments, 483. motion days, 483. motion granted of course, 483. remittitur, what to contain, 483. notice of affirmance or reversal on default, 483. time to take any step may be enlarged, 484. stay of proceedings, judge may grant, 484. order, revoking, or modifying, 484. rules, when to take effect, 484, 574 INDEX [^« reference RULES — of Court of Appeals — continued. number of causes called each day, 484. striking causes from calendar by consent, 484. date of issue of exchanged causes, 484. clerk to keep memorandum of exchanged causes, 485. rules to be printed on calendar, 485. counsel to occupy not more than two hours each, 485. of Supreme Court. examination of candidates for admission as attorneys, 489. proof of citizenship, &c., of candidates, 489. applicants for admission as attorneys from other States, 490. applicants admitted as attorneys, to sign a roll and take oath of office, 490. where papers are to be filed, 490. papers on special motion to be filed within ten days, 490. affidavits and undertakings to be filed, 491. bail, where and how to justify, 491, 492. undertakings to be acknowledged, 492. sheriff to file affidavits on arrest, 492. sheriff how compelled to return process, 492. clerks to keep books, 492. judgments to be filed, &c., only during office hours, 493. attorneys, how to endorse papers served, 493. what deemed an appearance, 493. change of attorney, 494. stipulation must be in writing or entered, 494. application for discovery, how made, 494. moving papers, what to state, 495. order for discovery, 496. affidavit of serving summons, &c., 496. numbering causes of action or grounds of defense, 496. folios to be marked and title of cause endorsed, 496 pleadings to be legibly written, 496. objections, when waived, 497. advice of counsel, how stated, 497. time to answer, how extended, 497. judgment on failure to answer, where applied for, 498, judgment after service by publication, 498. plaintiff may stipulate to proceed to trial, 499. dismissing complaint for not proceeding to trial, 499. issues of fact how tried, 499. in what cases inquest may be taken, 499. examination of witnesses how conducted, 500. time for summing up, 600. calling plaintiff, 500. submitting to nonsuit or dismissal before referees, 501. form of referee's report, 601. proceedings on references other than the issues, 500 issues how settled, 601. issue on question of adultery, 601. motion for new trial, 502. settling case, exceptions and special verdicts, 502. case how waived and when deemed settled, 503. exceptions, what to contain, 503. amendments, how to be marked, 503. filing case of exceptions, 504. order declaring case abandoned, 504. statement of facts on appeal to Court of Appeals, 504. arguments and motions how noticed, and defaults thereon, BOoJ orders to show cause when granted, and how returnable, 605. a stay of proceedings, 505. irregularities to be stated, 506. judgment in divorce cases, 605. enumerated motions, 605. is to tlie page.] INDEX. 575 BULKS — of Supreme Court — continued. non-enumerated motions, 505. contested motions, where to be heard, 605. filing notes of issue, 506. general term calendar, 506. date of issue, 606. enumerated motions how noticed, 606. papers to be furnished on motion and by whom, 606, SOT. papers to be furnished on appeal, and by whom, eo'?. papers on appeal to be printed, SOY. points to be served, 50*7. striking cause from calendar, eOY. cases under Code, §372, 609. appeals from surrogate's decision, 608. guardian ad litem, how appointed, 509. order to deliver copy petition, 509. appellant to furnish papers, 509. points on motions, 509. discussion on question of facts, 509. cases, points, &c., how printed, 510. certiorari, where heard, 610. non-enumerated motions, hearing of, 510. non-enumerated motions, how noticed, 610. motions to amend pleadings, 511. proceedings on return to mandamus, &c., 511. additional allowances, 611. amending justice's return on appeal, 512. number of counsel, 512. counsel to endorse proof of notice, &c., 512. folios to be marked, 512. pleadings to be legibly written, 512. time for complying with orders, 513. order to stay with view to change venue, 513. revoking stay, 613. notice of revocation, 513. affidavits to change venue, 513. guardians ad litem, 514. duty of guardian ad lit&ni, 614. guardian not to receive property, unless sucurity has been given, 514, general guardian, how appointed, 515. age of infant, how ascertained, 515. security by general guardian, 515. application to appoint special guardian, 516. order on petition to appoint guardian, 61*7. proceedings on such order, 517. security by special guardian, 517. proceeds to be brought into court, 518. when moneys may be paid to general guardian, 518. orders to pay money, 518. reference to compute amount due &c. on mortgage, 519. judgment at special term, 519. proof of filing notice of lis pendens, 620. judgment for sale of mortgaged premises, 5^0. surplus moneys, 521. report of sale, 521. sale of lands in the city of New York, 521. sale of lands out of the city, 621. mortgage must be filed or recorded, 522. claims for surplus money, 622. partition of lands held in common, 523. reference as to title where no defense interposed, 523. order for sale in partition, 624. staying sale in foreclosure or partition, 625. 576 INDEX. [^« reference KTJLES — of Supreme Court — continued. moneys brought into court to be paid to county treasurer, 525. accounts of county treasurer, 526. county treasurer to report annually, 526. orders for paying moneys out of court, 627. accounts with Trust Co., 52'7. gross sum in payment of life estates, how ascertained, 528. fees on executing commission of lunacy, 528. committee may pay taxed costs, 528. action for divorce or separation, 629. complaint for divorce, 529. reference in suit to annul marriage, 630. plaintiff may be examined on reference, 530. defence in action for divorce, 530. questioning legitimacy of children, 531. sentence of nullity or decree for divorce, 531. pleadings or testimony not to be published, 531. judgment for divorce, 531. receiver of debtor's estate, 532. when allowed his costs, 532. > may sell doubtful claims at auction, 632. suits pending 1st July, 1848, 532. cases not provided for, 682. when rules take effect, 632. s. SCANDAL and impertinence, exception for, under former practice, 101. See Irrelevant or redundant. SECURITY on appeal from judgment to the general term, 431 sureties must justify, 432. excepting to sureties, 432. justification sureties, 433. substitution of sureties, 433. on appeal to the Court of Appeals, 452. for costs, 139. for foreign corporation, 141. SERVICE of papers, how made, 180. by mail, 181. on partner of .attorney, 181. on Sunday, 181. aflidavit of service, on a clerk, 181. irregularity in, how cured, 182. of notice to Sheriff to return execution, 467. of affidavit of merits, 182. of orders in Court of Appeals, 455. . of summons, 24, 496, to compel attendance of witness to be examined before referee, 310. to compel attendance of witness in proceeding to perpetuate testimony, 316. SETTLEMENT, costs on, 201. sham, definition of, 218. answer, striking out, 216, 229. SHERIFF, fees on attachment, 43. when liable as bail, 71. to file aflidavit on arrest, 492. how compelled to return process, 492. SPECIAL GUARDIAN. See Guardian. is to the page.] INDEX. 677 SPECIAL TERMS, appointment of, 4. motion for new trial at, 448. SPECIAL VERDICT, settlement of, 502. SPECIFIC DENIAL, what it is, 209. STAY OF PROCEEDINGS, to enable defendant to move to change place of trial, 256, 207, 613. by judge of court of appeals, 484. after notice of trial, 505. by whom granted, 263. power of judge to grant, 263. order for, when a nullity, 263. to examine a witness on commission, 264. order for discovery, amounts to, 264, 294. to enable a party to move for a discovery, 287. appeal from order is not, 430. to prepare case, 439. by appeal from order to court of appeals, 45*7. by appeal from judgment to court of appeals, 452. STATEMENT, for judgment on confession, form of, 168. of facts on appeal to court of appeals after trial by the court at referee, 504. STIPULATIONS to te in writing, 183, 494, to proceed to trial, 499. to refer — form of, 343. SUBMITTING CONTROVERSY without action, in what cases, 161. to be heard at general term, 164. judgment thereon, 164. costs on, 165. papers to be furnished, 507. SUBPOENA, forms of, 359, 360. SUBSEQUENT, meaning of in section 156 of the code, 247. SUMMONS, action to be commenced by, 24. how served, 24. form of, 24. proof of service of, 25, 496. service of by publication, 26. service when complete, 29. service by leaving copy at residence, 29. service on infant, 32, on person of unsound mind, 32. - against joint debtors not served with the original process, 173. against heir, devisees, or legatee of deceased judgment debtor, 174. to compel attendance of witness to be examined before referee, 309. See Forms — Summons. SUPPLEMENTAL complaint when necessary and proper, 126, 129, 267. what to contain, 126. motion for leave to file, 127. answer not known in former pratice, 267. under the code, 268. pleading, motion for leave to file, 270. SUPPLEMENTARY PROCEEDINGS a substitute for a creditor's bill, 468. in what cases they may be resorted to, 468. application for order in, 468. order for examination in, by whom it may be made, 469. examination in, may be before a judge or re- feree, 469. examination in, before a referee, 469. compelling attendance of judgment debtor "to be examined, 470. warrant to arrest debtor in, 470. , proceedings after arrest of, on warrant, 471. costs on, 471, 473. 578 INDEX. t^'^ reference SUPPLEMENTARY VROCESDISG^— continued. receiver in, when appointed, 4'?2. where property is claimed bv third party, 473. examination of third party or corporation in- debted to judgment debtor, 473. SUPREME COURT, rules of, 489. table to find number of, 487. SURETIES, to justify, 492. SURROGATE'S DECREE, appeals from regulated, 508. SURVIVING PARTNER, action by or against, 16, 17, 21. TENANTS of deceased judgment debtor proceedings against, 172. TERMS of court of appeals, number of and where to be held, 453. See General Term. TESTIMONY, proceedings to perpetuate, 314. out of State, commission to take, 318. of parties before trial, 334. See Evidence, Witness. TIME, how computed, 188, 351. extension of, 183, 263, 264, 497. by judge of court of appeals, 467. by judge at chambers, 263. to make a case, 264. limitation of to commence action, 83. to appeal from order, 427. judgment to general term, 431. to court of appeals, 453. to comply with condition in order, 513. TRIAL, definition of, 379. place of, 48. of issues of fact, 499. changing place of, 248. demand by defendant to have in proper county, 249. motion to have place of changed to proper county, 249. motion to change place of, for convenience of witnesses, 250. motion to change place of when to be made, 250. place of, where defendant a corporation and plaintiff a non-resident of the State, 251. affidavit in support of motion to change place of, for convenience of wit- nesses, 252. notice of motion to change place of, 264. order to change place of, 2.55. on changing place of, papers in cause to be transferred, 256. stay of proceedings to enable defendant to move to change place of, 256, 257, 613. plaintiif may stipulate to proceed to, 499. of issues, 283. examination of parties before, 334. notice of, 349. convening jury for, 352. order of, 374. ex parte, inquest is, 376. postponement of, 377. terms of, 379. costs on, 379. dismissing complaint for not proceeding to, 499. empanneling jury on, 379. is to the page.] INDEX. 579 TRIAL — continued. proceedings on, 38*?. right to open and close, 388. examination of witnesses on, 388, 389, 390, 600. summing up on, 389, 390, 500. motion for judgment on the ground of insufficiency of complaint, 390. motion for judgment, on the ground of want of jurisdiction in the court, 391. exceptions to testimony, 391. amendments on, 398. judgment after, 406. by jury, waiver of, 392. costs in judgment after, 413. fee, 423. reference to report facts put in issue on, 44'7. by the court, how conducted, 392. decision of, 392. by referee, how conducted, 393, 39'7. TRUSTEE OF EXPRESS TRUST, who is, 14. action by and against, 14. u. UNDERTAKINGS to be filed, 491. to be proved and acknowledged, 492. See Forms — Undertaking. V. VARIANCE, former rules relative to, changed, 401. what is, 401. VENIRE for foreign jury, form of, 354. VERDICT, subject to opinion of the court, 447. subject to motion for judgment upon, 448. motion to set aside, 449. plaintiff need not be called on rendition of, 600. interest on, 422. See Special Verdict. VERIFICATION of complaint, 13Y. form of, 137. when not verified by the party, 138. defect in, 138 when corporation a party, 139. of answer and reply, 247. adding is not an amendment of the pleading, 247. to demurrer not necessary, 248. of disbursements, 195, 426. VESSELS, attachment of, 38, 40. w. WARRANT. &i:& Forms— Warrant WRIT OF INQUIRY, form of, 192. 580 INDEX. WITNESSES, compelling attendance of, on trial, 839. fees for attendance, 360. compelling to produce documents, 360. puaishraent for not obeying eubpcena, 361. interrogatories to be administered to, on return of attachment against, for not attending pursuant to eubpa3na, 367. action against is barred by the issuing an attachment, 36'7. ^ examination of parties as, 368. on trial, 388, 389, 390, 391, 500. postponing trial on account of absence of, S11. impeachment of on trial, SS*?. examination of de bene esse, 306. order for, 307, 308. compelling attendance of, 309. time for taking, 310. caption of deposition, 811. damages against for not attending to be examined de bene esse, 313. examination of in proceeding to perpetuate testimony, 815. examination of in commission, 318. examination of party to action as, before trial, 334:. must answer all questions approved by the court, 391. punishment offer contempt in not answering, 391, 392. affidavit of attendance of, 426. See Commission, Evidence, Testimony, APPENDIX T O HOLMES & DISBROWS PRACTICE, CONSISTING OF THE ^idiom mi the (Hitnk ^nunM toy i\u g>tiii$Mxm in 1859. (The Amendments are, except in section 399, in Italic.) § 13. There shall be four terms of the Court of Appeals in each year to be held at the capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continue for as long a period as the public interests may require. But ike Judges of said Court may, in their discretion, appoint one of said terms in each year to he held in the city of New York. Additional terms shall be appointed and held at the same place by the Court, when the public interests require it. The Court may, by general rules, provide what causes shall have a preference on the calen- dar. On a second, and each subsequent appeal to the Court of Appeals, the cause shall be placed on the calendar as of the time of filing the return of the first appeal. § 134. The summons shall be served by delivering a copy thereof, as follows : (1.) If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director or man- aging agent thereof; but such service can be made, in respect to a foreign corporation, only when it has property within this State, or the cause of action arose therein, or ivhere such service shall he made within this State, personally upon the president, secretary, or treasurer thereof. £82 APPENDIX. (2.) If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian; or if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed. (3.) If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee has been appointed, to such committee, and to the defendant personally. (4.) In all other cases, to the defendant personally. § 172. Any pleading may be once amended by the party, of course without costs, and without prejudice to the proceedings at any time within twenty days after it is served, or at any time before the period for answering it expires ; or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the Court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which it is or may be noticed ; and if it appears to the Court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the Court may seem just. In such case, a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, either at a general or special term, the Court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead in upon such terms as may be just. If the demurrer be allowed for the cause mentioned in the fifth subdivision of section 144, the Court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper deter- mination of the cause of action therein mentioned. § 237. In case judgment be entered for the plaintiff" in such action, the sheriff' shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose — (1.) By paying over to such plaintiff" the proceeds of all sales of perish- able property, and of any vessel, or share, or intei'est in any vessel, sold by him, or of debts, or credits collected by him ; or so much as shall be necessary to satisfy such judgment. (2.) If any balance remain due, and an execution shall have been issued on such judgment, he shall proceed, to sell under such execution, so much of the attached propertj', real or personal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands ; and in case of the sale of any rights or shares in the stock of a corporation or APPENDIS. 583 association, the sheriif shall execute to the purchaser a certificate of sale thereof, and the purchaser shall thereupon have all the rights and privi- leges in respect thereto which were had by such defendant. (3.) If any of the attached property belonging to the defendant, shall have passed out of the hands of the sheriff without having been sold or converted into money, such sheriff shall re-possess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the attachment ; and any person who shall wilfuUy conceal or withhold such property fi-om the sheriff, shall be liable to double damage at the suit of the party injured. (4.) Until the judgment against the defendant shall be paid, the sheriff may proceed to coUect the notes, and other evidences of debt, and the debts that may have been seized or attached under the warrant of attach- ment, and to prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment. At the expiration of six months from the docketing of the judgment, the Court shall have power, upon the petition of the plaintiff, accompanied hy an affidavit, setting forth, fully, all the proceedings which have been had hy the sheriff since the service of the attachment, the property attached, and the disposition thereof, and also the affidavit of the sheriff that he has used diligence and endeavored to collect the evidences of debt in his. hands so attached, and that there remains uncollected of the same any part or portion thereof, to order the sheriff to sell the same, upon such terms and in such manner as shall he deemed proper. Notice of such application shall he given to the defendant or his attorney, if the defendant shall have appeared in the action. In case the summons has not been personally served on the defendant, the Court shall make such rule or order as to the service of notia and the time of service as shall be deemed just. When the judgment, and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defend- ant the residue of the attached property, or the proceeds thereof. § 256. At any time after issue, and at least fourteen days before the Court, either party may give notice of trial. The party giving the notice shall furnish the clerk, at least four days before Court, with a note of issue., containing the title of the action, the names of the attorneys, and the time when the last pleading was served ; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue. § 272. The trial by referees shall be conducted in the same manner, and on similar notice, as a trial by the Court. They shall have the same power to grant adjournments and to alter [allow] amendments to any pleadings and to the summons as the Court upon such trial, upon the same 584 APPE>'r)iz. terms and with the like effect. They shall have the same power to pre- serve order, and punish all violations thereof upon such trial, and to com- pel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attendance or refusal to be sworn or testify as is possessed by the Court. They must state the facts found and the conclusions of law separately, and their decision must be given and may be excepted to and reviewed in like manner, but not otherwise ; and they may in like manner settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the Court, and judg- ment may be entered thereon in the same manner as if the action had been tried by the Court. When the reference is to report the fact, the report shall have the effect of a special verdict. § 292. (1.) When an execution against the property of the judgment debtor, or of any one of the several debtors in the same judgment, issued to the sherifi* of the county where he resides or has a place of business, or, if he do not reside in the State, to the sheriff of a county where a judgment roll, or a transcript of a justice's judgment for ig25 or upward, exclusive of costs, is filed, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the Court or a county judge of the county to which the execu- tion was issued, or a jndge of the Court of Common Pleas for the city and county of New York, when the execution was issued to such county, requiring such judgment debtor to appear and answer concerning his property, before such judge, at a time and place specified in the order, within the county to which the execution was issued. (2.) After the issuing of an execution against property, and upon proof by affidavit, of a party or otherwise, to the satisfaction of the Court, or a judge thereof, or county judge, or any judge of the Court of Common Pleas for the city and county of New York, that any judgment debtor residing in the county where such judge or officer resides, has property which he un- justly refuses to apply toward the satisfaction of the judgment, such Court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same ; and such pro- ceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment, as are provided upon the return of an execution. Whenever it shall satisfactorily appear, by affidavit, to a justice of the Supreme Court, that such comity judge, or judge of said Court of Common Pleas, is incapacitated from acting in any of the proceedings whatever, herein authorized, from any cause or causes whatsoever, such iustice of the Supreme Court shall have the same powers and authority, n all cases whatever, as are herein conferred upon him as to cases of judgments in the Supreme Court. APPENDIX. 585 (3.) On an examination under this section, either party may examine ■witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. (4.) Instead of the order requiring the attendance of the judgment debtor, the judge may, upon proof by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriiF of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath, and, if it then appears that there is danger of the debtor's leaving the State, and that he has property which he has unjustly refused to apply to such judg- ment, ordered to enter into an undertaking, with one or more sureties, that he will from time to time attend before the judge as he shall direct ; and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking, he may be committed to prison by war- rant of the judge, as for a contempt. (5.) No person shall, on examination pursuant to this chapter, be excused from answering any question, on the ground that his examination will tend to convict him of the commission of a fraud ; but his answer shaU not be used as evidence against him in any criminal proceedings or prosecution. §307. When allowed, costs shall be as follows : (1.) To the plaintiff for aU proceedings before notice of trial (including judgment when rendered). In an action where judgment upon failure to answer may be had without application to the Court, $10 ; in an action where judgment can only be taken on application to the Court, $15 ; and $2 for each addi- tional defendant upon whom process shall be served ; except in actions for the foreclosure of a mortgage, the allowance for additional defendants is limited to ten such defendants, and in other cases to five such defendants. (2.) To the defendant, for all proceedings before notice of trial, $10. (3.) To either party, for all subsequent proceedings before trial, $10. (4.) To either party, for the trial of an issue of law, $15 ; for every trial for issue of fact, $20. (5.) To either party on appeal, except to the Court of Appeals, and except appeals in the cases mentioned in §349, before argument, $15 ; for argument, $30 ; and the same costs shall be allowed to either party before argument ; and for argument, on application for judgment, upon special verdict, or upon verdict subject to the opinion of the Court, as 586 APPENMS. for a new triai on a case made, and in cases where exceptions are ordered to be heard, in the first instance, at a general term, under the provisions of § 265. (6.) To either party, on appeal to the Court of Appeals, before argu- ment, $25 ; for argument, $50 ; and when a judgment is aflarmed, the Court may, in its discretion, also award damages for the delay, not ex- ceeding 10 per cent, upon the amount of the judgment. (7.) To either party, for every circuit or term not exceeding five circuits, and five special and five general terms, at which the cause is necessarily on the calendar, and is not reached or postponed, $10, But in an action hereafter brought to recover dower, before admeasure- ment of real property aliened by the husband, the plaintiff shall not recover costs, unless it appear that the dower was demanded before the commencement of the action, and was refused. The same costs shall be allowed to the plaintiff in proceedings under Chapter two, Title twelve, of the Second Fart of this Code (§§ 375 to 381), as upon the commencement of an action. § 309. These rates shall be estimated upon the value of the property claimed or attached, or affected by the adjudication upon the wiU or other instrument, or sought to be partitioned ; or the amount found due upon the mortgage in an action for foreclosure. And whenever it shall be necessary to apply to the Court for an order enforcing the payment of an instalment falling due after judgment in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last section prescribed, but to no more in the aggregate than if the whole amount of the mortgage had been due when judgment was entered. Such amount of value must be determined by the Court or by the commissioners in case of actual partition. In difficult and extraordinary cases, when a trial has been had, except in any of the actions or proceedings specified in section three hundred and eight, the Court may also, in its discretion, make a further allowance to any party, not exceeding five per cent., upon the amount of the recovery or claim, or subject matter involved, § 335. If the appeal be from a judgment directing the payment of money, it shall not stay the excution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed if it be affirmed, only in part, and all damages which shall be awarded against the appellant, upon the appeal. Whenever it shall be made satisfactorily to appear to the Court that APPENDIX. 587 since the execution of the undertaking, the sureties have become insolvent, the Court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the appeal may, on motion to the Court, be dismissed with costs. § 348. In the Supreme Court, the Superior Court of the city of New- York, and the Court of Common Pleas for the city and county of New York, an appeal upon the law may be taken to the General Term from a judgment entered upon the report of referees or the direction of a single judge of the same Court, in all cases, and upon the fact when the trial is by the Court or referees. Such an appeal, however, does not stay the proceedmgs, unless security be given as upon an appeal to the Court of Appeals, and suck security be reneived, as in cases required by section 335, on motion to the Court at Special Term ; or unless the Court, or a judge thereof, so order, which order may be made upon such terms, as to security, or otherwise, as may be just ; such security not to exceed the amount required on an appeal to the Court of Appeals. In the Supreme Court, the appeal must be heard in the same manner as if it were an appeal from an inferior Court. § 399. A party to an action or proceeding may be examined as a wit- ness in his own behalf, the same as any other witness, but such examina- tion shall not be had, nor shall any other person, for whose immediate benefit the same is prosecuted or defended, be so examined unless the adverse party or person in interest is living, nor when the opposite party shall be the assignee, administrator, executor or legal representative of a deceased person. And when, in any action or proceeding, the opposite party shall reside out of the jurisdiction of the Court, such party may be examined by commission issued and executed as now provided by law ; and whenever a party or person in interest has been examined under the provisions of this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received. When an assignor of a thing in action or contract is examined as a witness on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own be- half, and shall be so received, and to any matter that will discharge him from any liability that the testimony of the assignor tends to render him liable for ; but such assignor shall not be admitted to be examined in be- half of any person deriving title through or from him against an assignee or an executor or administrator, unless the other party to such contract or thing in action whom the defendant or plaintiff represents, is living, and his testimony can be procured for such examination, nor unless at 588 APPENDIX. least ten days' notice of such intended examination of the assignor shall be given in writing to the adverse party. § 401. (1.) An application for an order is a motion. (2.) Motions may be made in the First Judicial District, to a judge or justice out of Court, except for a new trial on the merits. (3.) Orders made out of Court, without notice, may be made by any judge of the Court, in any part of the State ; and they may also be made by a county judge of the county where the action is triable, or hy the county judge of the county in which the attorney for the moving 'party resides, except to stay proceedings after verdict. (4.) Motions upon notice must be made within the district in which the action is triable, or in a county adjoining that in which it is triable ; except that where the action is triable in the First Judicial District, the motion must be made therein, and no motion upon notice can be made in the First Judicial District, in an action triable elsewhere. (5.) In all the districts, a motion to vacate or modify a provisional remedy, and an appeal from an order allowing a provisional remedy, shall have preference over all other motions. (6.) No order to stay proceedings for a longer time than twenty days shall be granted by a judge out of Court, except upon previous notice to the adverse party. § 412. Where the service is by mail, it shall be double the time re- quired in cases of personal service, except service of notice of trial, which may be made sixteen days before the day of trial, including the day of service.