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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.

Saller v. Birdgen, 447. See rol. 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 now trial,

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

Case v. Shepperd, 445. See vol. 1, p. 245.
See Case. COMMISSION. Cosrs.

LVI. Stipulation.
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
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,

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.

Ilaskins v. Sebor, 490. See vol. 2, p. 217-91.

P.

218.

3. Costs of.
See WRIT OF Right.

LVII. Supplemental Afiduvit.

See Motion.

LVIII. Tirne, 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.
Seo 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. Slossun, 470.
See vol. 2, p. 41.

99. In slander. Affidavit by defendant's attorney to change the venue

founded on information from the plaintiff as to the county where the cause
of action arose, admitted ; the plaintiff swearing generally to his belief that
he could not have a fair trial in that county, not enough to retain it.

Scott y. Gibbs, 472. See vol. 2, p. 116.
See Infra, 4.

2. Counters Afidavits on motion.

See Supra, Scott v. Gibbs.

3. In Debt.
100. The venue in debt on a judgment in a county court, changed to the
county where it was given. Barnes v. Kenyon, 514. See vol. 2, p. 381.

4. In use and occupation.
101. An action for use and occupation is founded on the privity of contract,

and is not local.
The venue being laid in New York, is not of course to be changed on ac-
count of the supposed influence of the plaintiffs.
Corporation of New York v. Dawson, 516. See vol. 2, p. 335.
5. Effect of change in Declaration.

See DECLARATION.

LXIII. Verdict.
See ARGUMENT. CASE.

LXIV. Writ of Error.
See ARREST OF JUDGMENT.

LXV. Writ of Right.

1. View.
102. In a writ of right, the demandant must sue out the view, although the

tenant demands the view, and he may be nonsuited for not doing it.
Scofield v. Loder, 452. Haight v. Schureinan, 572. See vol. 1, p. 395.

See Infra, Ilaines v. Budd.

2. Summons.

103. In a writ of right, a writ of summons to a vouchee being irregularly re-

turned, an alias must issue. Scofield v. Loder, 482. See vol. 2, p. 75.

3. Plea.
104. Tenant in a writ of right must plead instanter. View granted, it being

said to be in the discretion of the court. Haines v. Budd, 458.
Seo vol. I, p.

335.
See Affidavit, Amendment, DepositioNS DE BENE Esse, EJECTMENT, IMPAR.

LANCE, Justices' Court, MANDAMUS, VENUE.

4. Ne Recipiatur.
105. If a tenant in a writ of right will put a demandant out of court on the
quartio die post, he must enter a ne recipiatur.

Sacket v. Lothrop, 445. See vol. 1, p. 249.

5. Costs.
106. Demandant in a writ of right must pay costs for not proceeding to trial

according to notice. Phillips v. Peck, 466. See vol. 2, p. 104.

PRACTICE IN THE COURT OF ERRORS.

On an appeal from chancery.
A discovery of new and material evidence which could not before be obtained,

is a good ground to open a former judgment or decree.
So also a surprise, as to a matter of evidence, or question of fact, but not an

ignorance or pretended surprise, as to a question of law.
The same rules prevail in a court of equity as to bills of review, to re-examine

its own decrees.
The magnitude of the property in question, in case of doubt and difficulty, is

a ground of opening, a judgment or decree, but magnitude alone is not

enough.
An appeal from an interlocutory or final decre brings up all the antecedent

proceedings, which are of course open for decision here.
On an appeal from an interlocutory order or decree, this court may proceed

to a final decree, if all the merits appear before them.
In certain specific cases, it is the common course in chancery, to order an

issue to be tried at law, but in all cases it is in the sound discretion of that
court. If the case do not require the trial of an issue, the chancellor ought

to decide.
No costs or damages given in this court in case of a reversal against the party
to support the judgment or decree of the court below.

Le Guen v. Gouverneur Kemble, 605. See vol. 1, p 436.

PREMIUM.

See INSURANCE.

PRINCIPAL AND SURETY.

See SURETY.

PRIVILEGE.

The privilege of a member of congress from arrest, does not extend farther

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

Lewis v. Elinendorf, 492. See vol. 2, p. 222 and 222, n. (a.)

PROMISE OF MARRIAGE.

See EVIDENCE.

PROMISSORY NOTES.

See Bills OF EXCHANGE_PROMISSORY NOTES-CHECKS.

QUARANTINE.

See CONSIGNEE.

QUO WARRANTO.

Where a person is already in office by color of right, the court will not grant

a mandamus to admit another person, who claims to have been duly elected ;
the proper remedy is by an information, in the nature of a quo warranto.

The People v. The Mayor, g-c. of New York, 79.
Cases and authorities, 80, n. (6.)

RECEIPT.

See EVIDENCE.

REFERENCE.

I. When refused.
Il. Postponement of meeting of Referees.
III. Duties of RefereesAdjournment.
IV. Powers of Referees.
V. Setting aside Report.

I. When refused.

1. Reference refused, because by an opposite affidavit, questions of law will

arise.
No counter affidavits as to such questions can be received

D'Hart v. Covenhoven, 520. See vol. 2, p. 402.

II. Postponement of meeting of Referees.
2. The meeting of referees ordered to be postponed for two months for the re-
turn of an absent witness on the application of the defendant.

Bird v. Sands, 454. See vol. 1, p. 394.

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