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The People agt. Wright.

clearly established. Conceding that actual experiment is not the only admissible proof, yet I find no other satisfactory evidence here presented. There are no facts and circumstances shown which, in my judgment, warrant such a conclusion; and the extent to which the witnesses who make the affidavits go, on this point, is only to say that they believe it is very doubtful, whether a fair and impartial trial can be had in the county of Rensselaer. This is clearly insufficient within all the cases. Nor do I think the witnesses would have been warranted on the facts stated by them in expressing their opinions more strongly. I have never found any great difficulty in obtaining fair and impartial juries, even in capital cases and other trials of great public interest in the same counties where the offences were committed and where there had been much newspaper discussion and great public excitement. And I have no doubt a jury entirely free from prejudice, and satisfactory to the parties, may be readily empannelled in this cause in the county of Rensselaer.

This case is entirely unlike that of The People vs. Webb, which is the only one cited, or that I have found, in which a change of venue was granted on the ground of excitement, without a previous attempt to empannel a jury. Here has been no undue or improper influence exerted on either side. Here it does not appear that one, more than the other of the parties, is likely to be benefitted or injured by any possible prejudice or bias. Both stand upon equal ground; and the high character of the contestants, and the nature of the controversy forbid the supposition that either of them would, if it was in his power, avail himself of any preconceived impressions existing in the community, or permit any considerations of personal advantage, to interfere with a fair and candid examination of the questions of fact to be tried.

I find nothing in this case to warrant a departure from the well settled practice of the court. The cause should be tried where the controversy arose, and where nearly all the witnesses reside.

Motion granted.

Dorr et al, agt. Noxon.


DORR et al., agst. Noxon.

If it appears, on examination of witnesses on a proceeding supplementary to

an execution, under the first branch of 5 292 of the Code, that a third person, not a party to the proceeding, is in possession of property liable to an execution belonging to the judgment debtor, and is colluding with the debtor to enable him to defraud his creditors, the proper remedy of the judgment creditor is to levy on the goods and sell them under his execution; or to institute an action, in the nature of a creditor's bill, against the judgment debtor and

his fraudulent assignee. If a receiver can be appointed, in such case, he can only be appointed on notice

to the judgment debtor. (See Corning agt. Tooker, ante page.) A referee appointed to report the facts, is not at liberty to report the evidence

at large.

At Chambers-Saratoga Springs, May, 1850.

WILLARD, Justice.-On the third October 1848, the plaintiffs obtained a judgment in this Court against the defendant for $223-30, which was docketed in this county; and an execution was issued on said judgment to the sheriff of this county, where the defendant resides, and was returned nulla bona in February last. The plaintiffs thereupon applied to me, under the first branch of g 292 of the Code, for an order requiring the defendant to appear and answer, concerning his property, before a referee appointed for that purpose, and which referee was required to report the facts. The referee took the examination of several witnesses as to the affairs of the judgment debtor, and has reported the evidence at large. He did not examine the defendant at all. The return of the referee has been submitted to me without argument. I do not know for what order the plaintiffs intend to apply.

As the referee has not complied with the order under which he was appointed, and has reported the evidence instead of the facts, I might well decline to examine the matter further, and refer it back to him to complete his report. But I am inclined to think a few remarks may save the trouble and expense of a further

King agt. Stafford and Maxwell.


reference. The testimony tends to show that Noxon, the judgment debtor, is in truth the owner of the store of goods in his possession; and that Ogden, who claims to be the owner, has colluded with him for the purpose of defrauding the creditors of Noxon. If that be so, the plaintiffs should either direct the sheriff, after indemnifying him, to levy upon and sell the goods on the execution against Noxon; or they should commence a suit, in the nature of a creditor's bill, against Noxon and Ogden.

Ogden is not a party to this proceeding.

It is possible a receiver might be appointed under 99 298, 244. But this can not be done except upon notice to the defendant, who has a right to be heard on the question (Kemp v. Harding, 4 H. Pr. Rep. 178).

I will decline making any order at present, but without prejudice to the plaintiffs' rights.

6 How. 30-DISAPPROVED, 1 Daly 452. How. 413.

See 6



The decision of a motion, granting judgment on the ground of the frivolous.

ness of the demurrer under ý 247 of the Code, and allowing the defendant time to answer, is not an order, but a judgment (See Bentley agt. Jones, 4 How. Pr. R. 335). An appeal from such a decision must therefore be taken

as an appeal from a judgment—not from an order. In an action upon a promissory note, where judgment is given for the plaintiff

on the ground of the frivolousness of the defendant's demurrer, the defendant is entitled to notice of assessment of damages, before the clerk. The provi. sions of the Revised Statutes (2 R. S., 356, 1, 3 and 4), in relation to assessment of damages in such a case, are not repealed and are not necessarily inconsistent with the Code. If not, they remain in force (Code, $ 468.)

Schenectady Special Term, July 1850. The defendants demurred to the complaint. The plaintiff applied to Justice WilLARD, out of court, for judgment on the ground of the frivolousness of the demurrer, under section 247 of the Code. The Justice granted the motion, but gave the defendants ten days to answer the complaint. The order of the Justice granting the motion,

King agt. Stafford and Maxwell.

gave no specific direction that judgment be entered. The defendants regarding the order granting the motion, as an appealable order, appealed to the general term under $ 349 of the Code, and gave the security required by $334 of the Code, except, omitting therein, an undertaking to pay damages. The plaintiff regarding the appeal as a nullity, after the lapse of ten days filed with the clerk an affidavit stating the order made by Justice WILLARD, that more than ten days had elapsed and no answer had been put in by the defendants, &c., and caused a final judgment to be entered for the sum claimed in the complaint—notice of the adjustment of the costs by the clerk was served on the defendant's attorney—the clerk assessed the damages on the note on which the action was founded. But no notice of assessment of damages was served on the attorney of the defendants. The defendants now move to set aside the judgment for irregularity.

W. A. Beach, for Defendants.

CHARLES S. LESTER, for Plaintiff. PAIGE,Justice. The first question raised on the motion, whether the decision of Judge Willard granting the motion for judgment on the ground of the frivolousness of the demurrer, was an appealable order under 349 of the Code, has been considered and passed upon by the Supreme Court of the third district. That court decided that the decision of a demurrer was not an order, but a judgment and that an appeal from it as an order could not be made (4 How. Pr. R. 335; Bentley vs. Jones, per PARKER, Justice). In that case Justice PARKER held that the argument of a demurrer was a trial. And he took the distinction, that an order was the decision of a motion, and a judgment the decision of a trial (Code, sections 400, 245, 252, 255, 251). A like decision was made at the last general term of the Supreme Court of this district, on a motion to dismiss the appeal brought in this suit. The court on that motion decided that the decision of Justice WILLARD was not an order but a judgment, and dismissed the appeal. The decision of Justice WILLARD was regarded as the

King agt. Stafford and Maxwell.

final action of the court. It was the determination of an issue of law, and was in effect a judgment. The application for judgment was a summary trial of an issue of law. It was also decided on the motion to dismiss the appeal in this action, that the leave given to put in an answer did not make the decision an order. The decision of Justice Willard does not come within the definition of an order (Code, $ 400). For it was in effect a direction to enter a judgment, and would necessarily be included in the judgment. The defendants therefore, to obtain a review of the decision of Justice Willard, must appeal from the judgment to be entered on such decision.

The other question raised on this motion, is, whether the plaintiff should have served a notice of the assessment of damages on the defendants' attorney.

The Revised Statutes (2 R. S. 356, § 1, 3, 4), provide, that if in an action on a promissory note, interlocutory judgment be rendered for the plaintiff, upon demurrer, the court shall direct the clerk to assess the damages; and if the defendant has appeared in the cause, notice of assessment must be served upon his attorney (Gra. Pr. 290). The first subdivision of section 246 of the Code declares, in cases of a failure of the defendant to answer the complaint, that, if the complaint be not sworn to, and the action is on an instrument for the payment of money only, the clerk must assess the amount due the plaintiff, and enter judgment for the sum so assessed; and if the defendant has given notice of appearance, he shall be entitled to five days notice of the assessment. Section 269 of the Code declares, that, on a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the same manner prescribed by 9 246 in cases where the summons, or summons and complaint are personally served and the complaint sworn to, upon the failure of the defendant to answer. The manner prescribed in such cases by 9 246, is, for the plaintiff to file with the clerk, proof of the personal service of the summons and complaint on the defendant and that no answer has been received, and the clerk then to enter judgment for the amount mentioned in the summons. This, the plaintiff did not

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