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NOTICE, notice of trial served on the 11th for the 21st, is good, Dayton agt.

McIntyre, 117,
So much of a rule entered by default upon motion, as grants costs, to

abide the event of the suit, will be set aside for irregularity, if no no-
tice of application for costs is given in notice of motion, Northrop

agt. Van Deusen, 134. see Costs, Dix agt. Palmer, 233, see Motion, Darrow agt. Miller, 247. In partition-on sales of lands in the city of New York, the notice must

be for six weeks, Romaine agt. McMillen, 318.

Party,see Actions, Dodge agt. Averill

, 8.

see Demurrer, Wallace agt. Eaton, 99.
see Amendment, Russell agt. Spear, 142,
see Costs, Giles agt. Halbert, 319.
The 121st section of the Code, so far as it is made applicable to existing

suits commenced before the Code, and to transfers made before that

time is unconstitutional, Vrooman agt. Jones, 369. One of several plaintiffs having assigned to his coplaintiff after suit com

menced and cause referred and some testimony taken, plaintiffs were allowed to amend, Davis agt. Schermerhorn, 440.

PENDENCY of another suit, see Pleading, 51.


PLACE OF TRIAL, the trial of a cause for the convenience of witnesses,

should be had in the county where witnesses reside, though they may be required to travel a greater distance than to the court house of an

adjoining county, People agt. Wright, 23. supposed circumstances which render it doubtful whether a fair trial can

be had in the county to which it is moved to change the place of trial,

are no cause for refusing the motion, id. Motion to change the place of trial can not be made before the issues in

the cause are settled, Hartman agt. Spencer, 135. The venue in a complaint is to be fixed irrespective of convenience of

witnesses where some or one of the parties reside, is either reside in the state (sections 125 and 126 of the Code in connection with the

46th and 47th sections of the judiciary act), Moore agt. Gardner, 243. a change of the place of trial for the convenience of witnesses, is pro

perly made, when the venue has been fixed in the proper county, id,


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PLEADING AND PLEADINGS, a party can nol demur and answer to the

same pleading, Spellman agt. Weider, 5. where this is done, the remedy is to move to strike out one of them or

to compel the defendant to elect by which he will abide, id. the plaintiff can not in such case, move for judg.nent on account of the

frivolousness of the demurrer, id. what facts should be stated in a complaint against the makers and en

dorsers of a promissory note, when they are all united in the same

action under ý 120 of the Code, id. An answer is bad, where it controverts no allegation of the complaint,

and sets up no new matter in bar, but merely denies a conclusion of

law, McMurray agt. Thoma an answer is bad, which merely alleges that the note sought to be re

covered was obtained by fraud, and omits to set out any facts showing

the existence of such fraud, id. Motion to strike out redundant matter must be made before giving bo

tice of trial, Esmond agt, Van Benschoten, 44. A plea of the pendency of a suit in another estate for the same cause of

action, is bad, Burrows agt. Miller, 51. Impertinent and scandalous matter struck out with costs, Carpenter agt.

West, 53. it seems any one affected thereby may move to strike out such scandalous

matter, even though not a party to the suit, id. impertinence includes irrelevancy, redundancy, and prolixity, id. The objection that summons was not properly served is not available by

answer or demurrer; but only by motion, Nones agt. Ins. Co., 96. Demurrer for non joinder of parties is well taken where it appears that

the court can not determine the controversy, without prejudice to

rights of others, nor by saving their rights, see Demurrer, 99. It is not necessary to charge an endorser, to aver a presentment and de

mand at the place specified in the note, in a complaint, Gay agt.

Paine, 107. see Demurrer, 112. see Answer, 146. see Judgment, 155. Several causes of action in slander can not be united in the same com

plaint unless they are separately stated, Pike agt. Van Wormer, 171. it seems, that the separate statement of a cause of action, is equiva

lent to a separate count, under the former rules of pleading, id. the words you have passed counterfeit money, &c." without any col

loquium, or allegation of guilty knowledge and intent to defraud, will not sustain an action. The words "you are a bogus pedler," without

averment, showing the meaning of the term, are not actionable, id. words imputing that plaintiff had had the pox, but without asserting the


at once.

present continuance of the disease, and without alleging special da-

mages, are not actionable, id.
A complaint demanding a judgment of forfeiture of a term of years, and

also praying an injunction restraining defendant from making altera-
tions, is inconsistent. Either may be pursued separately but not both

The Code has not changed the inherent difference between
legal and equitable relief, although it has abolished the inherent
difference between legal and equitable remedies, Linden agt. Hep-

burn, 188.
see Answer, Burget agt. Bissell, 192.
see Answer, Howard agt. Michigan R. R. Co., 206.
All those preexisting rules of pleading at common law or in equity,

which are not expressly abrogated, and which can properly be made
applicable under the new system (the code), remain in force, Roches-

ter City Bank agt. Suydam, 216.
if the case and relief sought to be of an equitable nature, the rules of

chancery pleading are to be applied; otherwise those of the common

law, id., Contra, 272.
Sham pleadings and frivolous pleadings, Darrow agt. Miller, 247.
Although there are actions of legal and equitable cognizance between

which there is still a distinction, yet but one system of pleading is
applicable to both. There is no distinction between the pleadings in
actions at law and suits in equity. The facts, without the evidence

or legal conclusions should be stated, Milliken agt. Cary, 272.
The cause is deemed at issue upon the service of the pleading joining

issue in the cause, notwithstanding the right to amend, Cusson agl.

Whalon, 302.
see Answer, 321.
The Code not only abolishes the distinction between law and equity in

remedies but also in proceedings, Williams agt. Hayes , 470.
he criterion, as to relevancy or redund incy, is whether the allegation

can be made the subject of material issue, id.
The cases on this subject collected, id.
It is the right of the adverse party to have the matter improperly inserted,

removed, so that the record shall present nothing but issuable facts, id.
see Answer, Averill agt. Taylor, 476.

PRACTICE, 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.
A party can not demur and answer to the same pleading, Spellman

agt. Weiter, 5.
where this is done, the proper remedy is to move to strike out one of
them, or to compel the defendant to elect by which he will abide, id.


the plaintiff can not in such case move for judgment on account of the

frivolousness of the demurrer, id.
The decision of a motion on a demurrer as frivolous, is a judgment. An

appeal from such decision must be taken as from a judgment-not

from an order, King agt. Stafford, 30.
in such case defendant is entitled to notice of assessment of damages.

The provisions of the R. S. in relation thereto are still in force, id.
By noticing a cause for trial a party waives the right of moving subse-

quently to strike out redundant matter from his adversary's pleading,

under ý 160 of the Code. Esmond agt. Van Benschoten, 44.
Decision of county judge on appeal from a justice's judgment taken be-

fore the Code, may be filed after twenty days, People ex rel. Cahoon

agt. Dodge, 47.
New trial in ejectment, see New Trial, 50.
Impertinent matter struck out, 53, 439, 470.
The objection that a summons was not properly served, is not available

by answer or demurrer, but only by motion. The meaning of the
language of the Code allowing it to be set up as a defence “ that the
court has not jurisdiction of the person is that the person is not sub-
ject to the jurisdiction of the court; not that process was improperly

served, Nones agt. Hope Ins. Co., 96.
Upon the presentation of petition, for the appointment of commissioners

of appraisal of damages in taking land for a rail road, is the proper
time to raise questions of regularity in the proceedings. Too late to
raise such objections on a motion for confirmation of report, N. Y.

and Erie Rail Road agt. Corey, 177.
as to proceedings of sucn commissioners generally, see id.
see also Appeal, id.
To authorize legal service upon a foreign corporation through its man-

aging agent, his agency must extend to all the transactions of the

company, Brewster agt. Michigan Rail Road Co., 183.
where service of a summons is made upon a proper officer of a foreign

corpcration, the court have jurisdiction only to subject the property
of such corporation within this state to the payment of its debts by

a judgment in rem. id.
see Answer, 206.


may, in his discretion, make an order to apply the property of the

debtor, or to appoint a receiver, Corning agt. Tooker, 16.
when a receiver should be appointed, &c., id.

the duty of a referee on taking the examination, &c., id.
Where a third person, not a party, is in possession of property of the

debtor. liable to execution, the remedy of the creditor is to levy on




the goods, under his execution, or to institute an action, in the nature

of a creditor's bill, Dorr agt. Noxon, 29. a receiver can only be appointed in such a case, on notice to the judg

ment debtor, id. A motion to vacate the order may be made to the court, without first ap

plying to the judge before whom the proceedings are pending, Lind

say agt. Sherman, 308. an appeal from an exparte order, made by a judge at chambers, will

not lie at the general term, under Ø 350 of the Code, id. Upon the return of an execution within the sixty days, proceedings sup

plementary may be commenced, Livingston agt. Cleaveland, 396. Where proceedings supplementary to execution are instituted under the

Code, the order for the debtor's examination under the 292d section gives the judgment creditor the same lien upon the debtor's equitable assets which he acquired under the former practice by the commencement of a suit by creditor's bill. And the orders authorized by the 297th and 298th sections themselves, and without an assignment by the debtor, divest his title in the personal property and vest it in the

receiver, Porter agt. Williams and Clark, 441. W., on the 5th of January, assigned to C. all his property for the benefit

of creditors, with power to sell either for cash or credit. This assignment is void (2 Comst. 365). On the 28th of March an order was made in proceedings supplementary to execution against W., and on the 4th of April P. was appointed a receiver of W.'s property. On the 30th of March W. executed a further instrument to C. declaring

that it was intended that C. should sell for cash only, id. Held that P., the plaintiff had acquired a lien on the 28th of March,

which rendered ineffectual the instrument of the 30th of March, even

if otherwise of any effect, id. Held, also, that W. could not at any time after the execution of the as

signment to C. revoke the authority therein contained to sell upon credit, and that the instrument subsequently executed was of no avail

to render the assignment valid, id. In proceedings supplementary to execution under $ 292 of the Code, a

county judge has no authority or jurisdiction to issue an order for the defendant to answer, &c., until after an execution has been issued against his properly. And this fact, and all others upon which jurisdiction rests, must be shown affirmatively; they are not to be deduced by inference or presumption, People ex rel. Williams agt. Hulburt,

County Judge, 4.16. where the creditor claims the application of a demand or debt due to

the debtor from a third person, and such demand or debt is denied, the judge can not proceed and try such disputed question of fact; he is only authorized to issue an order forbidding the transfer or other dis.

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