Jones a. Underwood.

ment to be rendered. (2 Rev. Stat., 353, $$ 21, 22.) Thus the whole merits are involved, and the plaintiff's demand forms a constituent element of the judgment. It is only when a balance is found to be due from the plaintiff to the defendant that judgment is to be rendered for him. As a matter of equity and justice, and of the public policy defined by the Code of Procedure, the defendants ought not to be twice vexed. (Code, §§ 149, 150, 258, 274; Cockle a. Underwood, 1 Abbotts' Pr., 1.)

R. E. Mount, Jr., for the respondents.-The judgment in the Superior Court, in favor of Cockle, is no bar to this action; because Cockle never prosecuted his action, and there was no trial upon the merits. The defendants in said action, by reason of their answer, became virtually plaintiffs for their counterclaim, and were entitled to judgment for the same, without trial, -no reply having been made, and the plaintiff having applied for a discontinuance. (Mason's Executors a. Alston, 5 Seld., 28; Hadley a. Greene, 2 Cr. & Jer., 374; Seddon a. Tutop, 6 T. R., 607; Ravee a. Farmer, 4 Ib., 146; Davis a. Talcott, 14 Barb., 611; Doty a. Brown, 4 Comst., 71; Sweet a. Tuttle, 4 Kern., 465.)

BY THE COURT.*-Whatever issues or questions in an action are adjudicated by a court, cannot again be the subjects of inquiry until the judgment is set aside by an appellate tribunal. Consequently such judgment can be set up as a bar to the same claim in another action. In the present case it appears, on the very face of the judgment, that the plaintiff's demand was not passed upon by the court. It states expressly that the plaintiff applied for a discontinuance, and, when refused, declined to give any evidence; and the court merely considered the counterclaim of the defendant, who, in fact, then became the actor in the suit.

We think the plaintiff had a right to maintain this action for the demand, which he declined to submit for adjudication in the former action in the Superior Court.

Judgment affirmed, with costs.

* Present, CLERKE, P. J., LEONARD and Ingraham, JJ.

Ryckman a. Coleman.

RYCKMAN a. COLEMAN.

Supreme Court, First District; At Chambers, September, 1861.

DISABILITY OF ATTORNEYS TO BECOME SURETIES.

The practice of the court, not to allow attorneys to become sureties for their clients in legal proceedings, extends only to bail for the appearance of parties arrested.

Application for the approval of an undertaking on continuance of injunction

This was an action to declare void, for usury, an agreement under which plaintiff had deposited with the defendants storage receipts and invoices for goods valued at $150,000, and to obtain judgment for the possession of the goods.

At the commencement of the action an injunction had been issued restraining the defendants from selling, transferring, or removing the goods, which was set aside upon defendants' motion; but a stay of proceedings was allowed on the order setting aside the injunction, provided the plaintiff increased the security given on issuing the injunction, by an undertaking in $10,000, to be approved by a justice of the court.

The plaintiff, in order to avail himself of the stay of proceedings, executed an undertaking with Welcome R. Beebe and Gilbert Dean, as sureties, in the amount prescribed. The sureties were members of the firm of Beebe, Dean & Donohue, the attorneys for the plaintiff in this action. On the application for the approval of the undertaking, the defendants objected to the competency of the sureties proposed, on the ground that they were the plaintiff's attorneys in the action.

Gilbert Dean, for the plaintiff.

Daniel Lord, for the defendants.

LEONARD, J.-The attorneys for the plaintiff having executed

Hoffman a. Rowley.

a bond as security for an injunction granted by the court, it is objected by the defendants, that it is inconsistent with the practice of this court to allow the attorneys thereof to become sureties for their clients in legal proceedings, and that the bond in question ought not for that reason to be approved.

This practice extends only to bail for the appearance of parties arrested.

The chancellor said it was not a valid objection to the regularity of an appeal, that one of the sureties in an appeal bond was the solicitor of the appellant. (Studwell a. Palmer, 5 Paige, 57.)

The late Supreme Court refused to quash a writ of error, on the ground that one of the sureties therein was an attorney and counsellor of the court. (Craig a. Scott, 1 Wend., 35.) In Micklethwaite a. Rhodes (4 Sandf. Ch., 434), the vice-chancellor held that "the rule, as to bail, in the courts of law had never been adopted in that court, in respect of security required by the statute." He held, in that case, that the moving party was mistaken in supposing that the surety, being the solicitor for the complainant, furnished a ground of exception to his becoming security for costs.

The sureties in this case, being without objection in other respects, must be approved.

HOFFMAN a. ROWLEY.

Supreme Court, Sixth District; General Term, January, 1862.

SERVICE OF PAPERS ON A PARTY AFTER THE DEATH OF HIS ATTORNEY.

When the attorney for a party to an action has died, and due notice has been given to such party to appoint a new attorney, which he neglects to do, notice of any proceeding in the action is properly given to such party personally.

Motion for judgment on a verdict, subject to the opinion of the general term.

Hoffman a. Rowley.

This action was brought to recover the possession of a piece of land situated in the county of Chemung, and was tried at a circuit held in that county in February, 1854; when, by direc tion of the court, a verdict was rendered in favor of the plaintiff, subject to the opinion of the court at general term, on a case to be made. All proceedings were stayed on the verdict for sixty days; and it was ordered that if no case should be made within that time, the defendant might have a judgment of nonsuit against the plaintiff. A case was made and served, and defendant's attorney proposed amendments thereto, and served a copy thereof on plaintiff's attorney; but the case was never noticed for settlement or printed. The plaintiff's attorney died in September, 1859. In May, 1861, defendant's attorney served a notice upon the plaintiff at his residence at Big Flats, in the county of Chemung, to appoint another attorney; and that in default of making such appointment, all subsequent notices in the cause would be served by affixing them in the office of the clerk of Chemung county, at Elmira. No new attorney was appointed for the plaintiff. In October, 1861, the defendant's attorney duly served a notice by mail upon the plaintiff, that the case in the cause would be brought on for argument before the general term of the court, in Broome county, on the 19th day of November, 1861; and on the same day a copy thereof was posted up in the office of the clerk of Chemung county, in a conspicuous place. Defendant's attorney filed a note of issue in the cause with the clerk of Broome county, and the cause was placed upon the calendar for the Broome general term, held at the court-house in Binghamton, on the 19th day of November, 1861; on which day, upon proof of the aforesaid facts, defendant's attorney moved the cause for argument before said general term, and asked for a judgment in favor of the defendant upon. the verdict, with costs. Plaintiff did not appear.

James A. Christie, for defendant.

BY THE COURT.*-BALCOM, P. J.-It is provided by statute, that "when any attorney or solicitor shall die, be removed or suspended, or cease to act as such, the person for whom he was

* Present, BALCOM, P. J., CAMPBELL and PARKER, JJ.

Hoffman a. Rowley.

acting shall be notified to appoint another attorney or solicitor, in such manner as the court shall direct, at least thirty days before any proceeding shall be had against such person. (3 Rev. Stat., 5 ed., 477, § 54.) In Jewell a. Schouten (1 Comst., 241), the attorney for the plaintiff in error removed from the State, and a notice was served upon the plaintiff to appoint another attorney, which he neglected to do; and the attorney for the defendant in error moved ex parte to dismiss the writ of error; and the court held that notice of the motion should have been given to the plaintiff in error, and therefore denied the motion without prejudice.

I think there can be no doubt that when the attorney of a party has died, and such party neglects to appoint another attorney, in such manner as the court shall direct, for thirty days after notice to appoint one, notices in the cause may thereafter be served on such party. The attorney for the plaintiff in this cause died in 1859, and the plaintiff was duly served with a notice to appoint another attorney in May, 1861, but he did not appoint one. It was, therefore, proper for the defendant's attorney to serve notices in the cause upon the plaintiff, in October of that year; and the notice of argument was regularly served on him in that month for the Broome general term, held on the 19th day of November thereafter. The cause, therefore, was duly noticed, and properly placed on the calendar for that general term.

The case became perfect, by the omission of the plaintiff's attorney to give notice of the settlement thereof, for ten days after he was served with a copy of the proposed amendments. (See Rules 34 and 35.)

The plaintiff did not appear to argue the case or to oppose the defendant's motion for judgment; and by Rule 39 the defendant was entitled to a judgment against the plaintiff upon the verdict, with costs.

For the foregoing reasons I am of the opinion an order should be made, as of the November general term, 1861, that the defendant have judgment against the plaintiff upon the verdict,

with costs.

Decision accordingly.

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