Index. Demurrer for non joinder of parties is well taken where it appears that A general allegation in a demurrer to an answer, that the facts therein DISCOVERY, an order for discovery may be enforced before issues joined in An application for discovery or inspection of books, papers, &c., must DIVORCE, an issue in a divorce case may be referred by consent of parties, EQUITABLE RELIEF, see Pleading, 188, 216,£72. see Answer, 192, 470, 476. EVIDENCE, in proceedings for publication in case of a non resident defendant, Consent to use as testimony what the law will not recognize as such, In proceedings to perpetuate testimony, it must be made to appear that EXECUTION, where an execution contains all the requisites of § 289, it is EXECUTORS, it seems that foreign executors may foreclose a mortgage in EXEMPTION, when a horse or team is exempted, Wheeler agt. Cropsey 288. Index. FEES, what fees a county clerk is entitled to under the Code, as clerk of the Supreme Court, 11. Attorneys and counsel fees are not recoverable in summary proceedings to recover the possession of land, against the adverse party, Patridge Fees of justice must be paid on serving notice of appeal (see Appeal,) see Surrogate, Gardner agt. Brown, 351. It is no ground for a readjustment of costs that the clerk refuses to allow FOREIGN CORPORATION. see Practice, 96, 183. GUARDIAN, the facts upon which a plaintiff relies for judgment against in- fant defendants must be established by legal proof, notwithstanding HUDSON RIVER R. R. COMPANY, their obligation by their charter to pay laborers, Warner agt. The Hudson River Rail Road Co., 454. IMPERTINENCE IN PLEADING, see Pleading, 53. facts constituting an equitable defence to a legal demand, will not be INJUNCTION, a creditor of insolvent partners may have injunction to pro- An application to dissolve an injunction made on the pleadings, the answer the complaint can not be treated as an affidavit, id. Index. (Florence agt. Bates. 2 Sand. 675, Krom agt. Hogan, 4 How. 225. the only inquiry now on an application for injunction is whether the act Contra, see Wordsworth agt. Lyon, 463. A mere refusal to pay a debt, whether debtor be solvent or not, is not suspicion, belief and information are not sufficient, id. It is not the province of the Supreme Court to interfere by injunction, to authorize an injunction it must appear that plaintiff is entitled to the INTEREST, to recover annual interest upon the whole principal payable in ISSUE, see Pleading. JUDGMENT, the decision of a motion on a demurrer as frivolous, is a judg- inent, King agt. Stafford, 30. Where judgment is pronounced in open court, holden by eight judges, It seems that the Court of Appeals can order an affirmance where there Where a complaint is on separate and distinct bills, or accounts, and the see Appeal, 200, 201. see Motion to dismiss complaint. see Confession of judgment, 322, 381. A judgment in the hands of an assignee who purchased with notice and Index. JURISDICTION, if motion be made and granted by default in the wrong county, the order is not void for want of jurisdiction, Blackmar agt. Van Inwager, 367. JUSTICE OF THE PEACE, a justice of the peace had no power to take judgment by confession for more than $100, by Code of 1848, Daniels agt. Hinkston, 322. see Appeal, 323, 422. LANDLORD LORD AND TENANT, tenants from year to year may be removed by summary proceedings, Prouty agt. Prouty, 81. such a tenant is included in the term "tenants at will" in the statutes of '30 and '49, and may be removed upon one month's notice to quit, terminating with the year, id. the affidavit should state that tenant holds over without permission of Distinction between sub lease and assignment of the original terra, see also, Pleading, id. The provision of the Revised Statutes (2 R. S. 516, § 47) is inconsistent with the Code, and therefore repealed, Cure agt. Crawford, 293. proceedings to remove tenant may be stayed if they would produce injury to plaintiff, id. Contra, Woodworth agt. Lyon, 463. LIEN OF ATTORNEY, the lien of an attorney for his costs is subordinate to the equities existing between the parties, Noxon agt. Gregory, 339. LIMITATION, see Appeal, Bank of Geneva agt. Hotchkiss, 478. LUNATIC, an action can not be brought against a lunatic, judicially declared such without application to the court. The old practice should be pursued by petition to the court for relief or application for leave to bring an action, Soverhill agt. Dickson, 109. MANDAMUS, ANDAMUS, see Appeal, People ex rel. Cahoon agt. Dodge, 47. MISNOMER, misnomer of the court-called "General Sessions of the Peace" instead of "Court of Sessions" as designated by the Code, immaterial. People agt. Hawkins, 1. Index. MOTION, costs of-see Notice, 134. costs of motion in the regular progress of the suit need not be inserted in the order, but follow of course to the prevailing party, Thomas agt. Clark, 375. see Jurisdiction, Blackmar agt. Van Inwager, 367. m MOTIONS, that part of § 401 which enacts "motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, &c.," applies exclusively to motions made upon notice, Peebles agt. Rogers, 208. "The county where the action is triable" includes any county in which, according to sections 123, 124, 125, the plaintiff is at liberty to have the action tried, id. Where notice of motion asked to strike out answer as frivolous, "or for such other relief, &c." held, that judgment, on account of its frivolousness, could not be given, Darrow agt Miller, 247. Motion to dismiss complaint, Cusson agt Whalon, 302. A motion for judgment for not serving the complaint must be made in that district, or a county adjoining the county in which venue is laid in another district, Johnston agt Bryan, 355. NEW TRIAL, on application and payment of damages and costs, as a matter of right, a party is entitled to a new trial in ejectment, Rogers agt. Wing, 50. NE EXEAT, the writ of ne exeat is not abolished by the Code. To authorize its issue, facts, not mere apprehensions, must be stated, Forrest agt. Forrest, 125. NON RESIDENT, the statute does not expressly require the filing of the affidavits on which an order is made for publication in case of a non resident defendant, Vernam agt. Holbrook, 3. in such proceedings, the fact of non residence is evidence that the defendant can not. after due diligence be found within this state, id. see Publication, Evertson agt. Thomas, 45. see Foreign Corporation. Although the Code authorizes an attachment against a non resident in an action for the recovery of money, whether for a wrong or on contract, it is only in the latter case that a suit can be commenced unless defendant can be served within this state: Hernstein agt. Matthewson, 196. see Executors, Averill agt. Taylor, 477. |