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XXIV. Ejectment.

1. Striking out Name of Dead Lessor.
54. The demises of a lessor in ejectment, who was dead at the commencement
of the suit, struck out on motion.

Butler v. Deitz, 453. See vol. 1, p. 392.

2. Effect of Service of Second narr. in.
55. The service of a second narr, on the tenant in ojectment, is a waiver of the
first, and proceedings on the first set aside.

Kemble v. Finch, 466. See vol. 1, p. 414.

3. Default.

a. When entered.
56. In ejectment the consent rule, new narr., common bail and plea, are simul.

taneous acts, and if no plea be given, a default may be entered against the
casual ejector instanter, under the first rule. No new rule is requisite.

Quackenhoss o Woodward, 470. See vol 1, p. 110.

b. Against whom entered.
57. In ejectment there can be no judgment by default against the tenant; it
must be against the casual ejector.

Van Alen v. Vischer, 468. See vol. 2, p. 106.

3. Consent Rule.- New narr.-Common Bail. Plea.

See Supra, 3 (a.)

XXV. Error.
58. In error from the common pleas, the plaintiff may proceed by rule to
join in error only, or by sci. fa ad. aud. error.

Sheldon v. M'Evers, 438. See vol. 1, p. 169.

XXVI. Eroneretur.
See Bail. Costs.

XXVII. Forcible Entry and Detainer.
59. On certiorari to bring up proceedings of forcible entry and dctainer, a
rule to assign errors, held a nullity.

The People v. Burtch, 523. See vol. 2, p. 400.

XXVIII. Fraud.

See SATISFACTION.

XXIX. Hard Defence— Usury.
60. Motion to set aside an inquest because by mistake the defendant's attor.

ney did not suppose there was a defence, refused, there being no advantage
taken by the plaintiff.

Crammond v. Rosevelt, 501. See vol. 2, p. 282.

XXX. Imparlance.
61. Where there are several actions on one policy, the court will grant im-

parlance until the plaintiffs enter into the consolidation rule, and the Eng-
lish consolidation rule is intended. No favor (as to examine witnesses de
bene esse,) will be granted till this be done.

Classon and Stanley v Church, 422. See vol. 1, p. 29.

XXXI. Inquest.
62. A verdict refused to be set aside on the ground that the action was com-

menced before the debt was due, the defendant is too late after having
pleaded in chief as was decided in Crygier v. Long, ante.

Lawrence v. Brower, 493. See vol. 2, p. 225.
63. After bail and pleading in chief, the defendant is too late to avail himself
of an objection that the arrest was made before the debt was due.

Grygiers v. Long, 453.
See Hard Defence, supra.

XXXII. Inquisition.
See STIPULATION.

XXXIII. Irregularity, motion to set aside Proceedings for.
64. Where a notice of trial is deficient in point of time, and an inquest be
taken, the defendant must avail himself of it at the next term.

Marklar v. M'Evers, 446. See vol. 1, p. 248.

XXXIV. Joinder in Error.

See CERTIORARI.

XXXV. Judgment.
See DEBT. DEFAULT.

XXXVI. Judgment as in case of Nonsuit.

1. When Plaintiff may stipulate or not.
65. Every motion for a nonsuit must be made the term after the default.

Plaintiff may, after the first default, stipulate, and if he account for it, shall
not be bound to stipulate.

Wilde v. Gillet, 423. See vol. 1, p. 30.

2. What excuses performance of Stipulation.
66. Nonsuit for not proceeding to trial, entered the first day of term, set

aside. The distance of the attorneys residence at New York admitted as
an excuse for not opposing the motion the first day, and the prevailing
epidemic in New York, admitted as an excuse for not going to trial at the
last circuit. Touey v. Morehouse, 463. See vol. 1, p.

242.

XXXVII, Justice.

See CERTIVRARI.

XXXVIII. Laches.

See BAIL. CERTIORARI. COMMISSION.

XXXIX. Mandamus.
67. On an application for a mandamus to a county court, the practice is first
to grant a rule to show cause.
The People v. Judges of Cayuga, 483. Seo vol. 2, p. 68.

See MANDAMUS.

XL. Motion.

1. Copies of Affidavits to found, to be served.
68. On every special motion, a copy of the affidavit on which it is founded
must bo served on the opposite party.

Fitzroy v. Card, 422. See vol. 1, p. 30.

2. Counter Affidavits.
69. Copies of counter affidavits need not be served. A party cannot be al-
lowed to read counter supplementary affidavits.

Campbell v. Grove, 468. See vol. 2, p. 105.

3. What excuses opposing.
70. Nonsuit for not proceeding to trial, entered the first day of term, set aside.

The distance of the attorneys residence at New York admitted as an excuse
for not opposing the motion the first day, and the prevailing epidemic in
New York, admitted as an excuse for not going to trial at the last circuit.

Touey v. Morehouse, 463. See vol. 1, p. 242.
See IRREGULARITY. REFERENCE. PLEA. STAY OF PROCEEDINGS

XLI. Non pros.

71. To obtain judgment of non-pros for not declaring, the defendant must
either enter a rule to declare, and serve a notice of it.

Gilbert v. Field, 509. Soe vol. 2, p. 292.
VOL. III.

102

XLII. Order.
72. After an order of court, a judge's order on the same matter is irregular.

Stansbury v. Durel, 452. See vol. 1, p. 396.
See RULE. TIME.

XLIII. Plea.

1. When Party not let in to Plead.
73. Motion to set aside a default on an affidavit of merils, and on the ground

of neglect of pleading occasioned by urgent business, denied. Although it
be a case of bail when they mean to defend by plea to the merits and not
to surrender, they are not favored.

Gorham v. Lansing, 469. See vol. 2, p. 107.

2. Adding nero.
74. The rule permitting a party to amend after a pleading is demurred to,

does not allow him to add new pleas. After demurrer by plaintiff, he
comes too late to strike out incompatible pleas.

Doe v. Moulton, 444. See vol. 1, p. 246.

3. Effect of.
See BAIL.

4. To Amended Declaration.
See DECLARATION. EJECTMENT. FORCIBLE ENTRY AND DETAINER,

XLIV. Point reserved at the trial.

See Case

XLV. Privilege.
75. The privilege of a member of congress from arrest, does not extend fur-

ther than during the period of his actual attendance there, and his actually
going to and returning from the residence of congress.

Elmendorf v. Lewis, 492. See vol. 2, p. 222.

XLVI. Real action.

See WRIT OF RIGHT.

XLVIJ. Reference.

1. Postponement of.
76. The meeting of referees ordered to be postponed for two months for the
return of an absent witness on the application of the defendant.

Bird v. Sands, 454. See vol. 1, p. 394.
2. Motion to set aside Report of Referees.
77. Motion to set aside the report of referees not delayed by the circumstance

that the report was in the hands of the opposite party, in whose favor it

made and not filed. Thompson v. Tompkins, 448. See vol. 1, p. 238.
78. Report obtained after a written agreement to postpone the reference, set
aside, and new referees appointed.

Thompson v. Tompkins, 462. See vol. 1, p. 238.

XLVIII. Replevin.
79. In replevin, both parties are actors, and there can be no judgment as in

case of nonsuit. Barret v. Forrester, 415. See vol. 1, p. 24..

XLIX. Retainer.

80. Plaintiff's attorney receiving notices from different attorneys for defen-
dant ought to inform the second of the first notice to prevent surprise.

Morrison v. McNealy, 422. See vol. 1, p. 28.

L. Rule.
81. A rule regularly entered at the last term refused to be set aside on ac-
count of the accidental absence of the opposite attorney.

Hildreth v. Harvey, 491. See vol. 2, p. 221.

LI. Satisfaction.
82. Aster notice of an assignment, satisfaction was acknowledged and enter-

ed of record; ordered, that the same be vacated, and the parties be left in
statu quo as to the claims of the assignee. The court will thus take notice
of the rights of an assiggee. Wardel v. Eden, 500. See vol. 2, p. 121.

LII. Second action for same cause.

See Costs.

LIII. Scire Facias.

See Costs.

LIV. Service of Papers.

1. How served generally.
83. A notice served on the clerk of an attorney, not sufficient, unless it be

in the attorney's office. Paddock v. Beebe, 474. See vol. 2, p. 117.
84. Notices are to be served.
Ist. On some person in the office.
2d. If no one be there, then on some person in the house where the office is

kept.
3d. If no one be there, then they may be left in the office.

Gelston v. Swartwout, 432. See vol. 1, p. 136.
85. A notice as given to plaintiff's attorney himself, must be served in person,
leaving it at a house where he lodges temporarily, not enough.

Jackson ex dem. Pickart y. Jacker, 461. See vol. 1, p. 131.

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