Jones a. McCarl. merely in self-defence, is sufficient to satisfy me that the Legislature intended, by the language used in section 399 of the Code, to compel the former party to give his evidence orally at the trial, while it permits the other to be examined conditionally by commission, if a non-resident of the State. This construction of that section does no violence to its language, but harmonizes all its parts. I must, therefore, adhere to the opinion I had expressed in this cause prior to seeing the decision in Fairbanks a. Tregent. I think a new trial should be granted in the action, costs to abide the event. All the justices concurring. Decision accordingly. JONES a. McCARL. New York Common Pleas; General Term, December, 1858. STAY OF PROCEEDINGS.-LEVY. The defendant perfected his appeal from a judgment of a justice's court, after execution had been issued, and when it was in a constable's hands; but before levy, he served a copy of his undertaking upon the plaintiff, though not upon the constable. After receiving the copy undertaking, the plaintiff directed the constable to levy. Held, that the levy should be set aside, as made in bad faith. Appeal from an order setting aside a levy on execution, The facts are stated in the opinion. BY THE COURT.*-DALY, J.-The ground upon which the levy was set aside was, that it was made in bad faith, at the instance of the plaintiff. An execution was handed to the constable on the 4th; on the 5th the defendant perfected an appeal; and a copy of the undertaking, the service of which upon the constable would have stayed all further proceedings upon the exe * Present, DALY, F. J., and BRADY and HILTON, JJ. Pearson a. Fiske. cution, was served upon the plaintiff, who immediately, that is, upon the afternoon of the 5th, the service upon him having been made at eleven o'clock in the morning, went to the constable and directed him to levy upon a horse in the possession of the defendant. This was a course of proceeding which the court should not sanction. The plaintiff had security for his judgment approved by the court, and with the knowledge of that fact he sought to perfect a levy upon the defendant's property before a copy of the undertaking was served upon the constable. By so doing he subjected the defendant to the expense of the levy, which involved the keeping of the horse in the hands of the constable until the appeal was decided (Smith a. Allen, 2 E. D. Smith's C. P. R., 259), while, at the same time, the plaintiff had his judgment secured upon appeal. The court should discountenance such a course as this, and I think the judge below did right in setting aside the levy. The order appealed from should be affirmed. PEARSON a. FISKE. New York Common Pleas; General Term, December, 1858. APPEAL. FINDING UPON QUESTION OF FACT.-EXCEPTION. Where the testimony upon an issue of fact is conflicting, the court will never interfere with the finding upon the issue, unless they are convinced that it must have been induced by partiality, prejudice, or corruption, or was the result of obvious mistake. An objection to a question as leading must be put upon that specific ground, otherwise it is not available upon review on appeal. Confirmation of the report of a referee. The facts are stated in the opinion. BY THE COURT.*-DALY, J.-After a careful perusal of the testimony, we are of opinion that we cannot interfere with the * Present, DALY, F. J., and BRADY and HILTON, JJ. Pearson a. Fiske. finding of the referee upon the question of fact. Upon the three questions in issue-First, Whether the plaintiff entered into a special agreement to serve as steward and book-keeper at the same rate of compensation that he had received from Tallmadge; Second, Whether he fully and faithfully performed what he engaged to do, or what the law would imply that he had engaged to do from the capacity in which he served, and the nature of the duties undertaken by him; and Thirdly, As to the general value of his services-the testimony was conflicting; and where, in respect to any of the matters in issue, the testimony is conflicting, the general rule is, that an appellate court will never interfere with the finding of the tribunal before whom the witnesses were examined, whose appropriate and special duty it is to pass upon questions that must be determined upon conflicting testimony. An appellate court will not assume the office of a jury or of a referee, and weigh the testimony with the view of ascertaining on which side the weight of probability lies. They will reverse for the want of evidence, or where the finding is against evidence, in respect to which there is no contradiction nor conflict; and in extreme cases, though there may be some conflict or contradiction in the testimony, they will set aside the verdict, finding, or report, if, after full and careful deliberation, they are convinced that it must have been induced by partiality, prejudice, or corruption, or was the result of an obvious and palpable mistake. Wherever there has been presumptively a fair and honest exercise of the judgment of the tribunal to which the law has committed the delicate and responsible duty of determining questions of fact upon conflicting evidence and that presumption exists in every case, unless the contrary distinctly appear-a court of review will never interfere with the determination arrived at, however strongly inclined to think, if they had to pass upon the questions upon the same evidence, that they would have arrived at a very different conclusion. The cases, therefore, are extremely rare in which a court of review would exercise the delicate discretion of assuming that the finding must have been produced by prejudice, partiality, corruption, or palpable mistake. In the multiplied and various business of this court, there is scarcely a term that goes by that parties, disappointed by the finding of juries or referees upon questions of fact, do not urge upon us that their case is one that Haulenbeck a. Gillies. calls for the exercise of this discretion on the part of this court; and yet, through a long series of years, the instances have been very few in which it has set aside a verdict, or a report of a referee, upon that ground. The several questions objected to were pertinent and material to the questions at issue. The form of one or two of them was objectionable as leading, but the objection was not put upon that specific ground; and where it is not, it is unavailable upon review. (After disposing of some minor objections) The report was confirmed. HAULENBECK a. GILLIES. New York Common Pleas; General Term, December, 1858. DISTRICT COURT SUMMONS.-NON-RESIDENT PLAINTIFF.-DISMISSAL OF APPEAL. Under the act of 1857, respecting practice in the district courts in the city of New York (1 Laws of 1857, 707), a non-resident plaintiff must give security for costs when he proceeds by long summons, as well as when he proceeds by short summons. (BRADY, J., dissented.) The plaintiff's appeal from a judgment dismissing his complaint in such an action, will be dismissed if it does not appear by the return that any costs were awarded against him. Motion to dismiss an appeal from a judgment of a district court dismissing a complaint. The facts are stated in the opinion of the court. BY THE COURT.*-HILTON, J.-The plaintiff, a resident of New Jersey, sued the defendants in the Sixth District Court, by long summons, and without giving security. The defendants appeared, and these facts being admitted, in * Present, DALY, F. J., and BRADY and HILTON, JJ. Haulenbeck a. Gillies. stead of answering, "moved to dismiss the case," because no security had been filed. The justice in his return states that he granted the motion, and from his ruling the plaintiff appealed. Upon the argument we are asked to dismiss the appeal upon the ground that such a decision, by which no costs were awarded, is not appealable. Under the law as it existed prior to the act relative to the district courts in this city, passed April 13, 1857 (see Laws of 1857, vol. 1, p. 707), a non-resident plaintiff might at his option sue either by long or short summons, the only difference being, that in the latter case he was required to furnish proof of his non-residence, and give security. (Nichols a. Tracy, 1 Sandf. S. C., 278; King a. Dowdell, 2 Ib., 131; Allen a. Stone, 9 Barb. S. C., 61; Kelly a. Kelly, 2 E. D. Smith, 250.) But by the act of 1857, the practice in this respect was changed, as will be seen by an examination of its provisions. By section 13, when the plaintiff is not a resident of the county, and gives the security for costs required by section 23, the summons must be returnable in not less than two, nor more than four, days from its date. In other words, it must be a short summons. Section 23 requires the security in such cases to be given be fore the summons is issued. Section 45 specifies the cases where the justice must render judgment dismissing the action with costs, and without prejudice to a new action. And among the cases there enumerated, are those where it is objected at the trial, and appears by the evidence, that the action is brought by a plaintiff not a resident in the county, without giving the security required by section 23 of the act. If, however, the objection is not taken at the trial, it is waived, and the court will be deemed to have jurisdiction. In this case the return shows that the fact of the plaintiff's non-residence duly appeared, and the objection having been taken by the defendants that the action had been brought without giving the security required by the act, the justice very properly dismissed the action. But as the return fails to show that any costs have been ad justed against the plaintiff, the determination of the justice ap pears to be incomplete, and as was said by the late Supreme |