Van Rensselaer v. Jewett.

rent reserved by the lease was 183 bushels of wheat, four fat hens, and one day's service with carriage and horses. The defence did not go to the items of the plaintiff's claim, but denied the defendant's liability altogether. A motion was made at the circuit, in behalf of the plaintiffs, for a reference, on an affidavit that the trial of the cause would "require the examination of a long account, to wit," &c., stating the ground of action as above. The circuit judge ordered a reference; and he made a like order in three similar cases between the same parties, two of which were for four years' rent, and the other for one year's rent.

R. W. Peckham, for the defendant, moved to vacate the orders of reference made by the circuit judge in the four suits. He cited Thomas v. Reab, (6 Wend. 503;) and Levy v. Brooklyn Ins. Co. (25 Wend. 687.)

D. Cady, for the plaintiff, cited 2 R. S. 384, § 41.

By the Court, BRONSON, J. Where there is no account between the parties, in the ordinary acceptation of that term, the cause cannot be referred, although there may be many items of damage. (Thomas v. Reab, 6 Wend. 503; Silmser v. Redfield, 19 id. 21; Dederick v. Richley, id. 108.) If there had been payments in money or other things, and the question was whether any part or how much of the rent was in arrear, there might, perhaps, be a reference. But here the defendants claim nothing in the way of payment; but rest their defence on the ground that they were never liable for the rent which the plaintiffs claim. The cases do not come within the statute.

Although the circuit judge may order a reference with the like effect as if the order was made by this court, it is settled that we may review his decision, and revoke the order. (6 Wend. 503; 25 id. 687.) We could review the decision if it had been made by ourselves.

Motions granted.

The Chautauque County Bank v. Risley.

THE CHAUTAUQUE COUNTY BANK vs. RISLEY.

Where a notice occupies the half of a sheet of paper, the other half may be used as a wrapper, under the 4th rule of May term, 1840, though the sheet remain entire.

After the attorney of record has left the state with the fixed intention of taking up his residence elsewhere, his name can no longer be used in conducting the suit even by his law partner.

MOTION by the defendant to set aside an inquest taken at the Chautauque circuit in January last. The attorney of record for the plaintiffs left the state in November last, with the intention of settling elsewhere, if he found a place which pleased him, leaving his law partner in charge of the business. In December following, the partner served notice of trial and inquest by mail, in the name of the attorney of record. The notice and the copy of an order in the cause were written on the half of a sheet of paper, and the whole sheet was then folded in the form of a letter, so that the blank half sheet served as a wrapper for the half which contained the notice and order; but the two half sheets were not separated. The postage was paid, and the letter sent by mail to the defendant's attorney. He refused to receive the notice, and re-mailed it to the partner of the plaintiffs' attorney, insisting that it was not enclosed in a wrapper as the rule required, and that the name of the attorney of record could not be used after he had left the state. The plaintiffs proceeded and took an inquest, which the defendant now moved to set aside.

M. T. Reynolds, for the defendant, cited Anonymous, (1 Hill, 217, 218.)

N. Hill Jun., for the plaintiffs.

By the Court, BRONSON, J. Where the notice or other paper occupies only one of the halves of a sheet, the other half, on

Dean v. Williams.

which the letter is directed, is a sufficient wrapper within the meaning of the rule. We have so held on several occasions.

After the attorney of record has left the state with the fixed intention of taking up his residence in another place, his name can no longer be used for the purpose of carrying on his unfinished business. It cannot be done by his law partner. There should be a substitution. The attorney in whose name a lawsuit is conducted, must reside within the state, so that he can be reached by the orders of the court in case his client or the opposite party should complain of any mal-practice. The papers before us leave the question in some doubt whether the attorney had ceased to be a resident of this state at the time the notice was served. The defendant has merits; and, on the whole, the proper course will be to set aside the inquest, and leave the costs to abide the event of the suit.

Charges for witnesses cannot be taxed on an affidavit stating merely that they were subpoenaed and attended. The affidavit must add, that they were material and necessary, or that the party believed them to be so.

If the party resisting the taxation show that a large number of the witnesses were not sworn, and the other party do not explain this, the charges should be disallowed.

MOTION by the defendant for a re-taxation of costs. The plaintiff, who had the verdict, produced before the taxing officer an affidavit of the subpoenaing and attendance of a great number of witnesses. The defendant produced affidavits tending strongly to show bad faith on the part of the plaintiff in subpœnaing and procuring the attendance of many of the witnesses that it was done to swell the costs, when some of the witnesses knew nothing about the matter, and others were wholly unnecessary. The taxing officer thought he was bound

Downer v. Thompson.

by the usual affidavit that the witnesses were subpoenaed and attended, and allowed all the charges for witnesses' fees.

S. H. Hammond, for the defendant.

A. Taber, for the plaintiff.

By the Court, BRONSON, J. The bill must be re-taxed. When the officer saw that there had probably been an attempt to charge the defendant with the fees of witnesses who were not necessary, he should have followed the common affidavit no longer. The charges should have been struck out, unless the plaintiff produced further proof. I say this on the assumption that the affidavit was sufficient in the first instance. But it was not. It is not enough to swear that the witnesses were subpœnaed and attended. It should be added, that they were material and necessary; or that the party verily believed they were material and necessary witnesses. (See 2 R. S. 653, 7.) And § where, as in this case, a great number of witnesses attended who were not sworn on the trial, the party should explain and show how it happened that so many of his witnesses proved not to be necessary. The fees of witnesses are now a very heavy charge upon the unsuccessful party, and there is room for great abuse if taxing officers do not require a very full affidavit.

Motion granted.

DOWNER vs. THOMPSON.

A plaintiff who has been nonsuited at the circuit on the ground that the declaration contained no count adapted to the nature of his case, will not be allowed to amend by adding a new count, except upon condition of paying all costs subsequent to the plea.

The plaintiff, having been nonsuited at the circuit, made an unsuccessful application for a new trial, and judgment was rendered against him. He removed the cause into the court of errors, where the judgment was reversed, and a venire de VOL. VI. 48

Downer v. Thompson.

novo ordered, with costs in error to abide the event. Afterwards, he applied for leave to amend his declaration, by adding a new count, and the application was refused, except upon condition of his paying all costs in this court subsequent to the plea, and relinquishing his contingent right to the costs in error.

THE declaration contained counts for goods bargained and sold and goods sold and delivered. At the trial, the plaintiff was nonsuited on the ground that the proof did not support either of the counts. He aftewards moved for a new trial, which was denied; and it was said in the course of the opinion then delivered that no action would lie unless it were a special assumpsit for not accepting the goods. (See 2 Hill, 137.) The plaintiff thereupon removed the cause into the court for the correction of errors, where the judgment of this court was reversed, and a venire de novo ordered, with directions that the costs of the plaintiff in the court for the correction of errors abide the event of the suit. (See ante, p. 208.)

W. McCall & M. T. Reynolds, for the plaintiff, now moved for leave to amend the declaration by adding special counts for not accepting the goods. They said that no terms should be imposed beyond paying the costs of this motion.

H. A. Foster, for the defendant, referred to the case of Hamilton College v. Stewart, where, under circumstances nearly the same, the plaintiffs were required to pay all the costs subsequent to the plea, as a condition of allowing them to amend the declaration.

By the Court, BRONSON, J. Where on the trial there is a question of variance as to names, dates, amounts, or the like, which is not calculated to mislead the defendant, the judge usually overrules the objection, and the plaintiff is afterwards allowed to amend on very easy terms. But this was not a mere question of variance. The plaintiff was nonsuited because he had no count in the declaration adapted to his evidence; and we thought the nonsuit was properly ordered. If the plaintiff had then asked for leave to add new counts, the amendment would