2. What excuses performance of Stipulation. 66. Nonsuit for not proceeding to trial, entered the first day of term, set XXXVII. Justice. See CERTIORARI. XXXVIII. Laches. See BAIL. CERTIORARI. COMMISSION. XXXIX. Mandamus. 67. On an application for a mandamus to a county court, the practice is first The People v. Judges of Cayuga, 483. See 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 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- 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. See IRREGULARITY. REFERENCE. PLEA. STAY OF PROCEEDINGS. XLI. Non pros. 71. To obtain judgment of non-pros for not declaring, the defendant must Gilbert v. Field, 509. See vol. 2, p. 292. XLII. Order. 72. After an order of court, a judge's order on the same matter is irregular. See RULE. TIME. XLIII. Plea. 1. When Party not let in to Plead. 396. 73. Motion to set aside a default on an affidavit of merits, and on the ground Gorham v. Lansing, 469. See vol. 2, p. 107. 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- Elmendorf v. Lewis, 492. See vol. 2, p. 222. XLVI. Real action. See WRIT Of Right. XLVII. Reference. 1. Postponement of. 76. The meeting of referees ordered to be postponed for two months for the Bird v. Sands, 454. See vol. 1, p. 394. a 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 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 XLIX. Retainer. 80. Plaintiff's attorney receiving notices from different attorneys for defen- L. Rule. 81. A rule regularly entered at the last term refused to be set aside on ac- Hildreth v. Harvey, 491. See vol. 2, p. 221. LI. Satisfaction. 82. After notice of an assignment, satisfaction was acknowledged and enter- 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 1st. On some person in the office. 2d. If no one be there, then on some person in the house where the office is 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, Jackson ex dem. Pickart v. Jacker, 461. See vol. 1, p. 131. 86. Service of narr. on one of the defendant's family, although at his office, Salter v. Birdgen, 447. See vol. 1, p. 244. 2. Service required to be made on party. 87. Where a defendant gives notice of bail in person, the plaintiff must serve 3. Service by mail. 88. Affidavit that plea was sent in time, per mail, yet the plaintiff's attorney Stafford v. Cole, 465. See vol. 1, p. 413. 4 Service by putting up in the Clerk's Office. 89. Where the defendant does not appear by attorney, a copy of the declara- Graves v. Hasenfrits, 451. See vol. 1, p. 391. 5. On Attorney. See SUPRA 1. COSTS. LV. Stay of proceedings. 90. A certificate to stay proceedings is necessary on a motion for a new trial, Case v. Shepperd, 445. See vol. 1, p. 245. See CASE. COMMISSION. LVI. Stipulation. COSTS. 1. To submit controversy to Sheriff's inquest-Effect of. 91. When parties agree to submit a controversy to a sheriff's inquest, it is in Sharp v. Dusenbury, 473. See vol. 2, P 117. 2. To try, &c. a. Waiver of. 92. Motion for a nonsuit after a stipulation to try the cause, denied because a Haskins v. Sebor, 490. See vol. 2, p. 217-91. b. What excuses not going to trial. 93. The absence of a material witness, who was expected to return, admitted, Nixon v. Hallet, 490. See vol. 2, p. 218. 3. Costs of. See WRIT OF Right. LVII. Supplemental Affidavit. See MOTION. LVIII. Time, construction of order, giving. 94. A default entered on the day to which the defendant had time to plead, Thomas v. Douglass, 494. See vol. 2, p. 226. LIX. Trial. 95. After the proofs were closed on both sides at the trial, and the witnesses Alexander v. Byron, 515. See vol. 1, p. 318. LX. Use and occupation. See VENUE. LXI. Vacatur. See BAIL. LXII. Venue. 1. What Affidavits, on which motion to change is made, must contain. Gourly v. Shoemakers, 453. See vol. 1, p. 392. See vol. 1, p. 240. 98. In assumpsit where the count is general, the venue will not be changed See vol. 2, p. 41. |