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Index.

(204 and 205) is not entitled to have the order vacated, upon the ground that no special cause for requiring bail is set up in the plaintiff's affi. davit, upon which the order was granted. Baker agt. Swackhamer,

251. if the judgment does not show that the action is wholly in tort, a ca. sa.

can not issue, founded upon the order of arrest simply. Gridley agt.

McCumber. 414.
(Contra, see Cheney agt. Garbutt, 467.

ASSESSMENT OF DAMAGES, (see Practice,) King agt. Stafford, 30.

Where defendant has appeared but not answered, in an action for the

recovery of money only, and com int is verified, he is not entitled

to notice of assessment. Dix agt. Palmer, 233. Where complaint is not verified, notice of assessment must be given,

where defendant has appeared. Van Horne agt. Montgomery, 238.

ASSIGNMENT, (see Party) 369.

ATTACHMENT, (see Non resident.)

where an affidavit for an attachment sets forth enough to call upon the

officer for the exercise of his judgment, it is enough to give jurisdic

tion. Conklin agt. Dutcher, 386. Attachment generally, id.

ATTORNEY'S LIEN, (see Lien,) 339, 347.

BURIAL GROUNDS, Schoonmaker agt. Dutch Church of Kingston, 266.

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ASE AND BILL OF EXCEPTIONS, it is almost a matter of course to

allow (on motion) a case to be incorporated into the judgment roll upon report of referees, where questions of law are involved. A rehearing may be granted on such a motion. Nones agt. Hope Insu

rance Co., 157. if questions of fact alone are involved, a motion for rehearing should be

made at a special term. id. see Appeal, 435.,

CERTIORARI, where a common law certiorari issued against a corporation,

who neglected to appear and make return thereto, held, that a writ of sequestration ought not to issue until a distringas should be tried People er rel Griffin agt. Brookdyn, 314.

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Opposing affidavits may be read on motion, for a common law certiorari,

In re Saratoga and Western Rail Road Company, &c., 378.
a certiorari will not lie to the trustees of a school district where a remedy

is given by appeal. id.
a supersedeas may be granted before return of certiorari. id.

CLAIM AND DELIVERY OF PERSONAL PROPERTY, in an action,

for the recovery of personal property, the defendant is liable to be arrested, if the property has been removed, concealed or disposed of

Van Neste agt, Conover, 148. Contra, Roberts agt. Randel, 327. in such case defendant can be discharged, only on giving bail in double

the value of the property, and that not only for the appearance of the

defendant but for the return of the property. id. An action to recover personal property can not be maintained where the

defendant has no possession or control of the property claimed. An
order for arrest can not be granted in such a case. Roberts agt. Ran-

del, 327.
The “claim and delivery of personal property

" under the Code is a substitute for replevin, and is limited by the same rules. id.

COMPLAINT, what facts should be stated in a complaint against the makers

and endorsers of a promissory note, where they are all united in the

same action, under $ 120 of the Code. Spellman agt. Weider, 5. After demand of copy complaint, plaintiff should be allowed twenty

days for the service. Colvin agt. Bragden, 124. see Amendment, 142, see Pleading, 188. The general allegation that plaintiffs are an incorporated company,

organized pursuant to the act," gc., is sufficient to show a legal cor

poration. Oswego and Syracuse Plank Road agt. Rust, 390. subscribers to stock of a corporation can not question its capacity to appear upon the record

id. If plaintiff neglect to bring cause to trial, upon an issue of fact, the de

fendant may move to dismiss complaint. Cusson agt. Whalon, 302. but he need not notice the same for trial until a reasonable time after

the time to amend has expired. id. see Arrest and Bail, 4!4. 467. A complaint containing six counts on same cause of action, all the counts

but one will be stricken out. Stockbridge Iron Co. agt. Mellen, 439.

CONFESSION OF JUDGMENT, a justice of the peace had no jurisdiction

to take judgment by confession for a sum greater than $100, by Code of 1848. Daniela azt. Hinkston, 322.

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Where a confession of judgment commenced with the title of the cause

and then proceeded thus, "judgment is hereby confessed in this cause for the sum of $1413, &c." the statement being signed and sworn to by defendant, held sufficient. Park agt. Church, 381.

CONFIDENTIAL COMMUNICATIONS, the rule prohibiting the disclosure

of confidential communications from client to attorney, how far it ex

tends. Rochester City Bank agt. Suydam, 254. where an attorney has an interest in the facts communicated, he is ex

empted from the obligation of secrecy, id,

CORPORATION, (see Complaint,) 390.

COSTS, the costs allowed to the prevailing party in a summary proceeding to

recover the possession of land, are merely the fees of those officers who are required to perform the services, such as the judge, sheriff,

constable, fc. Patridge agt. Ford, 21. attorneys and counsel fees are not recoverable in such proceeding against

the adverse party. ii. Where in an action for libel two defendants defend by the same attorney, and answer separately and verdict in their favor, but one bill of costs

and one set of charges can be allowed. Tracy agt. Stone, 104. Costs of motion, see Notice, 134. An adjustment of costs, without motion, does not render the judgment

irregular. The adjustment o: ly is irregular, and that may be cured

by readjustment. Dix agt. Palmer, 233, The sum $10 " for every circuit at which the cause is necessarily on the

calendar and not reached, or is postponed” ($ 307, subdivision 8), is not allowable to the prevailing party, where the cause was postponed

at his request and for his benefit. Hinman agt. Bergen, 245. Plaintiff in interest, though not a party to the record, is liable for

Giles agt. Halbert, 319. Where two defendants appear separately and each demurs to the com plaint, and both demurrers are allowed, each defendant is entitled to

Collomb agt. Caldwell, 336. costs on allowance of demurrer. id. a motion for readjustment of costs should be made without delay. id. Double costs, when allowed. Calkins agt. Williams, 393. The statute giving double costs is repealed by :he Code.-PARKER, Jus

tice-see 4 How. Pr. R. 239. (There are adverse decisions upon this point in other districts-(see 4 How. Pr. R.) Van Rensselaer agt.

Kidd, 242, it is too late to make application for double costs or an extra allowance,

after judgment at the general term on appeal. id. see Fees, 458.

costs.

costs.

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Extro allowance.-All litigated trials are difficult or extraordinary, and per

centage should be allowed, Dyckman agt. Mc Donald, 121. the application should be made to the justice who tried the cause, id. Extra allowance should be allowed in all referred causes, because they

are litigated, Niver agt. Rossman, 153. the application should be made in the court where judgment is rendered,

unless some special reason exists for applying elsewhere, id. The court should discriminate in litigated actions between “difficult and

extraordinary common and ordinary," Fox Adm'r, agt.

Gould, 278. see to same effect, 4 How. 416, and ante Dexter agt. Gardner, 417. (see Contra, ante, 121 and 153.) Plaintiff claimed $300 on account, and recovered less than $100. Extra

allowance denied, Fish agt. Forrance, 317. COUNTY CLERK, what foes a county clerk is entitled to under the Code, as

clerk of the Supreme Court, 11.
(see Appeal,) Crittenden agt. Adams, 310.
see Fees, 458.

COUNTY JUDGE, a county judge has power, independent of the Code, to

grant an order extending the time to answer, Peebles agt. Rogers, 208. see Motions, id. see Proceedings Supplementary gc., 446.

COURT OF APPEALS, decisions September Term, 1848, 40, 77.

Service of notice of justification of sureties, in an undertaking, when

made by mail, should be double time, ten days, Dresser agt. Brooks,

75. if such service would carry the time of justification beyond the ten days

required by $ 341 of the Code, it should either be made personally, or

a judge's order obtained extending the time, id. the non payment of costs of the dismissal of an appeal, is ground for

staying proceedings on a second appeal in the same cause, until such

costs are paid, id. Where judgment is pronounced in open court, holder by eight judges,

without any dissent at the time, neither party can go behind such public act and attack the judgment on the ground of what may hare taken place among the judges in their private consultation, Mason

agt. Jones, 118. when the court has jurisdiction, its judgment is never void because it is

erroneous in point of law, id. it seems, there is no doubt of the right of the court to order a judgment

of affirmance where there is an equal division of opinion among the judges. Besides, the Code of 1849 ($ 14, which is not unconstitutional), expressly authorizes it, id.

Index.

A decree at general term reserving no questions; nothing to be done

but to compute the amount due, was, under the former practice, a final decree, for the purpose of appeal. And under the Code such a decree becomes final, for the like purpose, after the referee's report is con

firmed, Swarthout agt. Curtis, 198. where the rule for confirmation is entered by default, at special term, the

merits of that order can not come under review upon the appeal, id. An appeal brought on the same day that the judgment roll was filed, but

previous thereto, and before the hour for which the costs where ada

justed, held good, Blydenburgh agt. Cotheal, 200. An order of the Supreme Court denying a motion for stay of proceed

ings on the judgment and for liberty to move to set aside a report of referee without an appeal, or for an order extending the time to ap

peal, is not an appealable order, Enos agt. Thomas, 359. An appeal from a judgment of the Supreme Court, reversing an order

of a surrogate, with costs, is premature, if brought before the amount of costs are ascertained and roll filed; whether a stay of proceedings

is sought or not, McMahon agt. Harrison, 360. The time for bringing an appeal (two years) begins to run from the

making the final order determining the rights of the parties in the action, that is, from the time of making the final order for judgment, and not from the time of docketing the judgment roll, Bank of Ges

neva agt. Hotchkiss, 478. Held, that the 331st section of the Code should receive the same cor.

struction as was given to the former statute (2 R. S. 594, § 21), in

respect to the limitation of bringing appeals, id. although it may be necessary to have the costs adjusted and roll filed,

before bringing the appeal (McMahon and wife agt. Harrison, ante page 360), the appellant has it in his power to coerce this to be done in time, id.

DECREE, when final, Swarthout agt. Curtis, 198.

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DEMURRER, a party can not demur and answer to the same pleading,

Spellman agt. Weider, 5. the plaintiff, in case of a demurrer and answer to the same pleading,

can not move for judgment on account of the frivolousness of the de

murrer, id. decision on frivolous demurrer is a judgment. King agt. Stafford, 30. The objection that summons was not properly served, is not available by answer or demurrer, see Practice, 96.

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