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Demurrer for non joinder of parties is well taken where it appears that
the court can not determine the controversy without prejudice to the
agt. Eaton, 99.
do not constitute a defence, is sufficient, Hyde agt. Conrad, 112.
DISCOVERY, an order for discovery may be enforced before issues joined in
cause, Miller agt Mather, 160.
be made upon petition, Dole agt. Fellows, 45).
DIVORCE, an issue in a divorce case may be referred by consent of parties,
EQUITABLE RELIEF, see Pleading, 188, 216,272.
see Answer, 192, 470, 476.
EVIDENCE, in proceedings for publication in case of a non resident defendant,
the fact of non residence is evidence that the defendant can not, after
due diligence be found within this state, Vernam agt. Holbrook, 3.
can not avail, although it be incorporated in the report of a referee,
Litchfield agt. Burwell, 341.
the object is in good faith to perpetuate testimony, Paton agt. West-
EXECUTION, where an execution contains all the requisites of $ 289, it is
sufficient. It need not be “in the name of the people," nor tested,"
nor on its face "returuable in sixty days," Park agt. Church, 381.
EXECUTORS, it seems that foreign executors may foreclose a mortgage in
this state without taking out letters testamentary here, Averill agt.
EXEMPTION, when a horse or team is exempted, Wheeler agt. Cropsey 288.
exemption generally, id,
EES, what fees a county clerk is entitled to under the Code, as clerk of
the Supreme Court, 11.
to recover the possession of land, against the adverse party, Patridge
agt. Ford, 21.
Van Heusen agt. Kirkpatrick, 422.
50 cents for entering judgment. This fee is his and he has a right
FOREIGN CORPORATION. see Practice, 96, 183.
ent of pura
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.,
IMPERTINENCE IN PLEADING, see Pleading, 53.
struck out as irrelevant, Burget agt. Bissell, 192.
INJUNCTION, a creditor of insolvent partners may have injunction to pro-
being verified, must be regarded as made on affidavits, and affidavits
may be read in opposition, Schoonmaker agt. Durch Church, 265.
(Florence agt. Bates, 2 Sand. 675, Krom agt. Hogan, 4 How. 225.
complained of will produce injury to the plaintiff, Cure agt. Craw-
cause for issuing an injunction, Pomeroy agt. Hindmarsh, 437.
benefit of his creditors, id.
where a remedy is given by appeal, Woodworth agt. Lyon, 463.
to authorize an injunction it must appear that plaintiff is entitled to the
final relief demanded according to law, independent of the Code, id.
INTEREST, to recover annual interest upon the whole principal payable in
installments, words must be used clearly to express that intention,
Bander agt. Bander, 41.
decision of a motion on a demurrer as frivolous, is a judg-
without any dissent at the time, neither party can go behind such
judges, Mason agt. Jones. 118 Court of Appeals).
is an equal division of the judges, id.
answer denies one bill only, and the balance claimed specifically in
the accounts not denied by the answer, Tracy agt. Humphrey, 155.
it is verified, id.
with no new consideration, is liable to be set off against the assignor,
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, Dan
icls agt. Hinkston, 322, see Appeal, 323, 422.
DLORD AND TENANT, tenants from year to yeur 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 þolds over without permission of
his landlord, id. Distinction between sub lease and assignment of the original terra,
Linden agt. Hepburn, 188, 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 in
jury to plaintiff, id.
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.
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.
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.
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.
such other relief, &c." held, that judgment, on account of its frivo
lousness, 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.
of riglit, a party is entitled to a new trial in ejectment, Rogers agt.
NE EXEAT, the writ of ne exeat is not abolished by the Code. To autborize
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 de
fendant can not, after due diligence be found within this state, 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,