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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 CERTIORARI.

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. 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
must be 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. See vol. 2, p. 292.

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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.

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
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.

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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.

XLVII. 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. 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
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. After 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.

1st. 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 v. Jacker, 461. See vol. 1, p. 131.

86. Service of narr. on one of the defendant's family, although at his office,
being an attorney, is not of itself sufficient, and it being denied by his affi-
davit to have been received, a default was set aside.

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
him with a copy of the narr., and is not bound to do so again on an attor-
ney afterwards employed by the defendant. It is different from the case
where the defendant himself does not appear, and an attorney is afterwards
employed. Haskins v. Snowden, 505. See vol. 2, p. 287.

3. Service by mail.

88. Affidavit that plea was sent in time, per mail, yet the plaintiff's attorney
entered judgment, and he not denying that he had received the plea, al-
though he made an affidavit on the subject, it shall be intended that he did,
and judgment, therefore, set aside.

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-
tion in the office, and a 20 days' rule to plead, is sufficient.

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,
and if for want of it, judgment be entered, the motion cannot be heard. If
a judge refuse a certificate the party may apply to the court.

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
the nature of an arbitration, and the court will not set aside the inquisition,
merely for admitting or rejecting improper evidence.

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
term had elapsed since the plaintiff's default happened, but plaintiff was
required to stipulate anew.

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,
after a stipulation, as an excuse for not going to trial.

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,
is irregular, it could not be done till the next.

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
had departed, a new witness just appeared who had not before attended on
the part of the defendant, but he was refused to he examined, and the re-
fusal held to be proper, and to rest in the declaration of the court.

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.
96. The residence of material witnesses in another county, not enough to
entitle the defendant to change the venue.

Gourly v. Shoemakers, 453. See vol. 1, p. 392.
97. Motion to change the venue founded on an affidavit that the action was
brought on a special agreement, and otherwise in the usual form, granted
notwithstanding an affidavit by plaintiff that the cause of action arose in a
third county where the venue was not laid, and the objection that the narr.
contained money counts only. The special agreement may still be given
in evidence, if it was rescinded, &c. Weaver v. Bentley, 447.

See vol. 1, p. 240.

98. In assumpsit where the count is general, the venue will not be changed
on a general affidavit, the special matter or cause of action must be shown,
&c. and where it arose, &c. Wheaton v. Slosson, 470.

See vol. 2, p. 41.

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