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Gilbert v. Brazur.-Cooper aus. Jauncey.- Malia v. Line.-&c.
GILBERT against Baazur.
A fee to the sheriff for levying a fine imposed, cannot be demanded against the party. It is usually charged in his account against the state, in the exchequer.
Cooper ads. JACKSON er dem. JAUNCEY.
Two defendants appearing and pleading separately, does not subdivide the action into two, nor change its title in the subsequent proceedings, but notices, &c., must be served on each attorney.
Malia against Lane.
The defendant was released from an agreement that this case should abide the event of a suit of the same plaintiff against Brown, decided at the last term, because the court did not decide it on the questions of law, but merely on the ground of its being a trivial suit.
Hunn against Bowne.
Case allowed to be amended where time was given by the agreement of the parties, and from unavoidable accident the amendment was not delivered within the time.
Depeyster ads. Watson.--Alden ads. McVickar-&c.
Depeyster ads. Watson.
A compromise of a suit by the parties themselves, without any thing said about costs, leaves each to pay his own. .
ALDEN ads. McVICKAR.
Nonsuir granted in a cause which at the circuit was marked down regularly, no reason being shown with sufficient certainty for not trying it.
SHIVERS ads. BRAINE.
1st. While a commission to examine witnesses remains in force, the plaintiff cannot proceed to trial. But,
2d. If he does, and the defendant appears at the trial and makes a defence, he waives the irregularity.
Jackson ex dem. Low and others, against ReynoLDS.
Motion by the defendant to strike out one of the lessors, on probable proof of his death at the commencement of the suit, granted, without costs. It was irregular to make him a party, and his name may be struck out at any time before
W. Neilson, on the partition of lands.-Phelps ads. Higby.-&c.
trial, and it is incumbent on the plaintiff to contradict this proof, if he be in fact alive.
W. Nielson and others, on the partition of lands.
ORDERED the rule to plead in partition to be 20 days, and it is not necessary to serve the rule more than in ejectment; the parties having notice of the application is sufficient.
Phelps and wife ads. Higby.
A delivery of the narr. in chief, cures a defective notice of bail, and acknowledges the sufficiency of the bail.
WATSONS ads. HALSEY.
On a motion for a new trial on the ground of the discovery of new evidence, if it tends only to impeach the former witnesses, is not enough of itself, and the court will still judge of the weight of the testimony.
2d. Swearing that other witnesses are also material without stating their testimony, is also insufficient.
Hart v. Hosack.-Smith ads. Dow.-&c.
Hart against HosacK.
A new trial awarded on the ground that the verdict was against evidence.
SMITH ads. Dow.
1st. An adjustment of a policy is, prima facie, sufficient evidence for the plaintiff.
2d. The court will not inquire into a defence founded on facts which, at the time of the adjustment, were fully in the knowledge of the defendant.
3d. If there appear fraud or mistake, the adjustment will not conclude.
4th. A schooner of 35 or 40 tons, not considered sufficiently manned for a voyage from New York to Edenton, by the captain and one hand only.
On the last point, a new trial awarded to examine and determine it by jury.
The People against Young.
Ist. In order to punish a person as for a second offence, it is necessary to charge the first offence in the indictment, and he must be found guilty by the jury, of having committed a second.
20. The sessions have no jurisdiction of a second offence, which thereby is punishable with imprisonment for life.
Hallet ads. Huguet.- Potter v. Briggs.-&c.
HALLET ads. HUGUET.
The plaintiff by proceeding in the original suit, waives further proceedings on bail bond suit, and cannot proceed on both at the same time. The costs of the hail boud suit, until the time of entering special bail, are however to be paid.
Potter against BRIGGS.
Motion to amend a sheriff's return on the part of the plaintiff, denied; the return having long since been made, and it being a competent return of a rescue; if it be false, the plaintiff must be left to his remedy by action.
In the matter of JAMES MANNING.
ONE who prosecutes a felon to conviction, is not of course entitled to his expenses by the act. It is on a consideration of the circumstances of the prosecutor only that they are to be allowed.
Sreet and FULLER ads. TENANT.
JUDGMENT on the bail bond directed to stand as a security, a trial having been lost, but the defendant swearing to merits, he is permitted to defend on pleading, &c. instapter.