DIGEST ОР ALL POINTS OF PRACTICE EMBRACED IN THE STANDARD NEW YORK REPORTS, Issued during the period covered by this Volume: viz-15 NEW YORK R. (1 E. P. Smith); 24 BARBOUR; 5 DUER; 3 E. D. SMITH'S C. P. R.; 4 Bradford, Surr. R.; 6 ABBOTTS' PR. R.; 14 and 15 HOWARD'S PR. R.: including, also, notes of UNREPORTED CASES, and the provisions respecting Practice contained in the LAWS OF 1858. ABATEMENT. Where a defendant in an action for lands transfers his possession pendente lite to a third person, the suit may be continued against the original defendant without notice to the grantee; and upon the judgment and writ of possession, such grantee may be dispossessed. (1 Cai., 500; Adams on Ej., 309; 5 Johns. Ch. R., 39; 7 Paige, 21.) Such an action, founded in tort-e. g. for an entry into the lands of another, and unlawfully withholding possession from him, or for trespass in cutting timber by a tenant at will, or for years, or for waste, committed by a tenant for life or for years-is personal to the tort feasor; it dies with his person, and cannot at common law be continued against his grantee. (7 How. Pr. R., 32, 33; Mitf. Pl. by Jer., 1 Saund., 72; Adams on Ej., 309.) Such a cause of action cannot be deemed to "survive or continue" against the grantee, and a motion to make such a grantee a party defendant should be denied. His assuming and withholding possession constitutes a new cause of action against him. Supreme Ct., Third Dist., Sp. T., 1856, Mosely a. The Northern Railroad Company, 14 How. Pr. R., 71. DEFENCES. ACKNOWLEDGMENT OF DEEDS. 1. How a deed acknowledged in, and according to the laws of, another State may, when the parties executing the same are dead, be qualified for record, or to be read in evidence in this State. Laws of 1858, 409, ch. 259. ACTION. 2. Under the act of 1856 (Laws of 1856, 84, ch. 61), providing that acknowledgments of deeds may be taken out of this State before such persons as are authorized to take such acknowledgments by the law of the place where they reside, and requiring that, in such case, a. certificate that such person was so authorized shall be annexed, under the name and seal of the clerk of the county, register, recorder, or prothonotary, or of the clerk of the county court, clerk of the district court, or clerk of the court of common pleas of the county in which such officer resides,-it is not the duty of a recording officer of this State to record a deed acknowledged out of this State before a person whose authority is certified to by the clerk of the circuit court of his county. The People on rel. Alton a. The Register of New York, Ante, 180. 3. In such a case, it is not competent to resort to the laws of the other State to show that such clerk of the circuit court is ex officio clerk of the county; but the certificate must show on its face, and without extrinsic proof, all that is required by the statute. Ib. ACTION. 1. Certain paupers, whose settlement was in the town of P., were found in the town of N., under circumstances requiring relief. The defendant, overseer of P., having been duly notified by the plaintiff, overseer of N., to provide for them, requested the plaintiff to support them, and promised, as overseer, to settle the account. Held, that the defendant by making such a promise could not change the mode which the statute provides for the auditing, collecting, and paying over the money. The overseers of P., on receiving the notice, could do one of two things. They could contest the allegation of settlement in their town by a proceeding before the superintendents; or they might take the paupers home to their own town, and provide for them. If they do neither, the law declares he shall be supported where he may be, and the expense, after being audited, shall be collected out of the town to which it is chargeable, by the board of supervisors. The undertaking of the defendant in no way affected the liability of the town; nor did it authorize the plaintiffs' town to pass by the agencies which the law provided for ascertaining the amount of the expenses, and sue the town or its representatives. Overseers of Norwich a. Overseers of Pharsalia, 15 N. Y. R. (1 E. P. Smith), 341. 2. It seems, that the action which is substituted for the writ of nuisance, is governed by all the rules of the Code in regard to amendments, pleading, parties, &c. (Mann v. Provost, 3 Abbotts' Pr. R., 446.) ADJOURNMENT. Second Dist., Gen. T., 1857, Hubbard a. Russell, 24 Barb., 404, 410. 3. In an action brought under the act for the sale of real estate to pay assessments (Laws of 1841, ch. 341; 2 Rev. Stats., 4th ed., 353, § 45), and the act for the due apportionment of taxes and assessments (Laws of 1855, 537, ch. 327), any parcel of the property in question taxed or assessed may be sold under the judgment of the court to satisfy a tax or assessment on any other parcel. Second Dist., Sp. T., 1857, Powers a. Barr, 24 Barb., 142. 4. If enough has been sold to satisfy the taxes or assessment, the land remaining cannot be sold under the judgment, although it should be deemed by the referee more advantageous to the parties to convert the same into money than to retain it unsold. Ib. CAUSE OF ACTION; PARTIES, 1, 2; STATUTORY CONSTRUCTION, 16. ADJOURNMENT. The primary signification of "adjourn" is, to put off, or defer to another day specified. It has acquired, also, the meaning of suspending business for a time-deferring, delaying. Probably, without some limitation, it would, when used with reference to a judicial proceeding, include the fixing of the time to which the postponement was made. There is no express provision of the statute, or of the rules of the court, however, which requires the naming of the future day, on the adjournment of a sale under judgment of foreclosure. If a fixed day is named, the sale should be had on that day; and if there be a variance between the notice announced upon the adjournment, and that published in the newspapers, the sale will be irregular. (Miller a. Hull, 4 Den., 104.) It is, undoubtedly, also, the general rule that the day to which such a postponement of sale is made should be specified at the time of the adjournment. Supreme Ct., Second Dist., Sp. T., 1857, La Farge a. Van Wagenen, 14 How. Pr. R., 54. JUSTICE'S COURT, tit. Adjournment; MOTION, 9. AFFIDAVIT. A complaint, duly verified by the plaintiff, is an affidavit upon which an injunction may be granted, if the facts are alleged positively, and not on information and belief. Levy a. Ley, Ante, 89. VERIFICATION, 1. AFFIDAVIT OF MERITS. 1. The rule that counter affidavits of want of merits cannot be admitted to disprove an affidavit of merits (2 Cai, 30; 3 Johns., 141), is con AFFIRMATIVE RELIEF. fined to the point of controverting the merits which have been sworn to. But where the affidavit is made by the defendant's attorney or agent, with an excuse for that fact, the plaintiff is not precluded from presenting, by affidavits, facts to show that the excuse offered is false or frivolous, and that, therefore, a substituted affidavit is not to be received. The defendant should take the burden and responsibility of swearing to merits, and it is the plaintiff's right to insist that the party himself shall be put to the test, where the effect is to delay the speedy recovery of judgment. Supreme Ct., Fifth Dist., Sp. T., 1857, Johnson a. Lynch, 15 How. Pr. R., 199. 2. Where it appeared from the facts that the defendant was, without doubt, in the county at the time the substituted affidavit was made, and he did not, after the inquest, supply a full and sufficient affidavit of merits; or show, by a frank disclosure of his whereabouts, that he had been nowhere within the State since the joining of the issue; or that he had been in a position which rendered it impracticable for him to supply the affidavit which the plaintiff had a right to require, if the defendant was in a condition to make it,-it was held that the substituted affidavit was insufficient, and the motion to set aside the inquest must be denied. 1b. 3. It seems, that an affidavit of merits, to prevent an inquest, made by the defendant's attorney, will be sufficient, where it swears to merits, and shows an adequate excuse for its not being made by the party. Absence beyond seas, or out of the State, will usually be deemed sufficient. It is no valid objection that the knowledge of the defence is sworn to be derived from the statements of the defendant, for this is all the information that, as a general rule, the attorney can have. (See 1 Cow., 210; 2 Johns. Cas., 69; 6 Cow., 395; 3 Johns., 141; 1 Wend., 77; 2 Cor., 581; 1 How. Pr. R., 62.) And an agent or attorney in fact, for the defendant, who is specially employed to defend the suit, may also make such affidavit, where he states not only that he has been fully informed of the defence, but has himself made inquiries into the facts, and more fully become possessed of them, by means of such inquiry, and states his belief that the defendant was then absent from the State. Ib. INQUEST; VERIFICATION, 3, 4, 5. AFFIRMATIVE RELIEF. ANSWER, 5; DEFENCES, 9. ALIMONY. DIVORCE, 1. |