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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 v. Gibbs, 472. See vol. 2, p. 116.
See Infra, 4.

2. Counters Affidavits 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.

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.

See vol. 2, p. 335.

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. Schureman, 572. See vol. 1, p. 395.
See Infra, Haines 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.

View granted, it being

104. Tenant in a writ of right must plead instanter.
said to be in the discretion of the court. Haines v. Budd, 458.
See vol. 1, 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 decree, 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. Elmendorf, 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, &c. of New York, 79.

Cases and authorities, 80, n. (b.)

RECEIPT.

See EVIDENCE.

REFERENCE.

I. When refused.

II. Postponement of meeting of Referees.
III. Duties of Referees-Adjournment.

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.

III. Duties of Referees—Adjournment.

3. It is unreasonable for referees not to grant a delay of one day for further
proof, and the report therefore set aside.

Forbes v. Frary, 492. See vol. 2, p. 224.

IV. Powers of Referees.

4. There was a rule of reference by consent and special, as to the time of
reporting. Report set aside because made after the time agreed, and,
Because two of the referees acted only, without notifying the third.

Brower v. Kingsley, 460. See vol. 1, p. 324.

V. Setting aside Report.

5. A report of referees set aside, on the ground of intricacy and difficulty in
the accounts, and that new lights may probably be afforded.

Allard v. Mouchon, 456. See vol. 1, p. 280.

RECORDER OF NEW YORK.

This court has the same power over the proceedings of the recorder of New
York, while acting as commissioner, as when acting as recorder; but they
will not exercise the power where the recorder has a discretion by the act,
and has acted definitely, as in granting a supersedeas under the act, as
to absconding debtors. The regular course is to bring up the proceedings
of the recorder, by certiorari, not by an order of this court.

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RETURN OF PREMIUM.

See INSURANCE.

REVERSION.

See COVENANT.

REVOLUTION.

The American revolution worked no forfeiture of previously vested rights in
lands. Where a British subject died seised of lands in this state, in 1752,
leaving daughters in England, who married British subjects, and neither,
they, nor their wives, were American citizens; it was held that the hus-
bands of the heiresses might be joined in a demise with their wives, in or-
der to maintain an action of ejectment; and that even if the marriages
were subsequent to the American revolution, such marriages with aliens
would not impair the rights of the wives, nor prevent the full employment
of the property, according to the laws of the marriage state; especially
after the provision contained in the ninth article of the treaty of amity and
commerce with Great Britain, of the ninth November, 1794.
Though in case of a purchase, the law will recognize the title of an alien in
lands, until office found; yet in case of a descent, the law takes no notice
of an alien heir, on whom, therefore, the inheritance is not cast. But
where the title of land in this state was acquired by a British subject, prior
to the American revolution, it seems, that the right of such British subject
to transmit the same, by descent, to an heir, in esse, at the time of the re-
volution, continued unaltered and unimpaired; the case of a revolution or
division of an empire, being an exception to the general rule of law on this
subject. The objeclion of alienism is not to be favored.

Jackson ex dem. Gansevoort v. Lunn, 109, 539.

See ALIEN.

RIGHT

In dower. The demandant had always been a British subject and resided in
Ireland; her husband an American before the revolution; adjudged that
she may recover dower on all the lands whereof her husband was seised
before the 4th July, 1776, and no other.

Kelly v. Harrison, 476. See vol. 1, p. 29.
See REVOLUTION.

SALE.

I. What constitutes.

II. Conditional-right to rescind.

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