Digest. APPEALS. Appeals to the County Court which are transferred to the Supreme Court in pursuance of the 31st section of the act amending the act in relation to the judiciary, passed December 14, 1847, may be heard and decided at special term of the Supreme Court. They are not such appeals as are provided for by section 346 of the Code. SEE COURT OF APPEALS, Crittenden agt. Missionary Society, 327. SEE COUNTY COURT, Kasson agt. Mills, 377. An appeal can not be taken from an order of the special term overruling a demurrer as frivolous. Judgment must first be entered, and the appeal brought upon that. (See Code, § 247.) Bruce agt. Pinckney, 397. An appeal will not lie upon an order of the special term rendering judgment on demurrer, with leave to amend on payment of costs in twenty days. Judgment must be actually entered before an appeal will lie. (See Bruce agt. Pinckney as to frivolous demurrers, ante page 397.) It seems, that the amendment to § 349 of the Code in 1851, which provides that an order may be appealed from "when it sustains or overrules a demurrer," is inoperative. The decision of a demurrer is always a judgment, whether absolute or upon terms. Lewis agt. Acker, 414. An appeal from the special to the general term does not operate per se, as a stay of proceedings in the action. Special leave of the court must be obtained. Story agt. Duffy, 488. ATTACHMENT. A warrant of attachment under § 231 of the Code, is not a lien on property, either real or personal, until such property is levied on under it. (See the report at special term in these causes, 7 How. Learned and others agt. Vandenburgh, 77. Pr R. 379.) ARREST, Order for, under sub. 3, of § 179 of the Code, when authorized, &c. Mulvey agt. Davison, 111. In an action against husband and wife, for a tort committed by the wife, neither can be arrested. Anonymous, 133. A defendant who has been arrested under an order in an action upon contract, and has not been bailed, may move to vacate the order at any time, before he has been charged in execution. Wilmerding agt. Moon, 213. An order denying a motion that an undertaking given on the arrest of the defendant be delivered up, and an exoneretur entered, is appealable. Digest. A defendant, by procuring bail on his arrest, unless he does so voluntarily, does not waive his objections to the legality of the arrest. Nor, it seems, under the Code, does obtaining time to answer the com- A summons and complaint and order of arrest were delivered to the ATTORNEY. Where an attorney, residing and practising in another State, receives money upon demands left with him for collection in that State, which he omits or refuses to pay over, he is liable to arrest here, in in an action brought to recover such money. Yates agt. Blodgett, 278. Liability of attorney for costs, where non resident plaintiff, and how collection enforced. Boyce agt. Bates, 495. COMPLAINT. AINT. It was not the intention of the Legislature by the last clause The plaintiff must still state his interest in or title to the instrument, and An incurable defect in a complaint is not waived by any pleading, but SEE PLEADINGS, Getty agt. Hudson R. R. Road Co., 177. Digest. The Code, (§ 140,) has abrogated the provision of the Revised Statutes, (2 R. S. 482, § 10,) specially authorizing a declaration for offences against a penal statute, to allege the words of, and refer to the statute. That is in declaring now, for offences against penal statutes, (excise laws, gaming, &c.,) the plaintiff must set forth "a plain and concise statement of the facts constituting a cause of action," &c. (Code, § 142.) The plaintiff must follow the general rule which prevailed previous to the An amended complaint can not be disregarded and treated as a nullity, COSTS. The costs ordered to be paid by a party obtaining a new trial costs of the former trial and of motion, or the costs of such proceedings as are vacated for the purpose of a new trial. Where an extra allowance has been made on the trial of the cause, it is to be treated as a part of the costs to which the prevailing party is entitled, and is to be paid as a part of the costs ordered on granting a new trial. A motion for a new trial on a case or bill of exceptions, is not a non enumerated motion, therefore § 315 of the Code does not apply as to costs ($10) of a motion. It is a regular proceeding in the cause, and the prevailing party should be entitled to a trial fee, under § 307, sub. 3, to the plaintiff $15, to the defendant $12; as often as the cause is brought to a hearing on the merits. On an appeal from the special to the general term from an order granting or refusing a new trial, under the Code of 1851, $15 should be allowed before argument, and $30 upon the argument. Ellsworth agt. Gooding, 1. The A judge at Chambers has no power to tax or adjust general costs. The amount of costs upon interlocutory proceedings should be fixed in Under the Code of 1852 the prevailing party on appeal to the general term from an order granting or refusing a new trial, or sustaining or over Digest. ruling a demurrer, not being entitled to costs under the 6th subdivision of section 307, as under the Code of 1551, (see Ellsworth agt. Gooding, ante p. 1,) is still entitled to a trial fee, as well at the general as at the special term, under the 3d sub. (§307.) And this trial fee may be allowed, as often as the cause has been brought before the court upon the issues made by the pleadings, ($15 to plaintiff and $12 to defendant.) Van Schaick agt. Winne, Ex'r, 5. Where a cause is tried before a judge at the circuit without a jury, who subsequently files his decision, an application can not afterwards be made for an extra allowance to another judge, presiding at a different court. Such application ought to be made at the trial of the cause. It seems, that the statute does not authorize the court to make an extra allowance in an action brought to set aside a voluntary assignment. Osborne agt. Betts, 31. The dismissal of a complaint, on motion at a special term, for want of prosecution, is a judgment in the action in favor of the defendant. In such case defendant is entitled to $5 for proceedings before trial, and $10 may be allowed on the motion. But defendant is not entitled to $7 for subsequent proceedings, nor to a trial fee on the dismissal of the complaint. The clerk in such case is not entitled to a trial fee of $1, nor to any charge for entering the order, but may charge 50 cents for entering judgment. Tillspaugh agt. Dick, 33. Where an action is brought in the Court of Common Pleas to recover damages for trespass on personal property, and the plaintiff recovers less than $50 damages, he is not entitled to costs. The section of the R. S. 2 vol. p. 510, which provides for costs in such cases, where the court or jury certify the trespass to have been malicious, is repealed. The distinction which existed between this court and the Supreme Court in the rate of costs in certain cases is abolished by the Code. Smith adm'r, agt. Keller, 55. A fee of $10, not to be allowed for each time that a cause is noticed before a referee. Anonymous, 82. Costs, on an offer of judgment, not accepted. Keese agt. Wyman, 88. Where both parties noticed the cause for trial, put it on the Calendar, and it was reached the first day of the Circuit, called and passed; the plaintiff's attorney then discontinued and tendered defendant's attorney $12,50 costs, which was refused, as not being enough into $10. And on a second call of the Calendar the defendant's attorney moved the cause, when it was stipulated between the attorneys to submit the question of costs to the Judge. Held, that defendant was entitled to the $10, counsel fee he claimed-making $22.50 directed to be paid. A liberal construction should be given to these questions of costs. 218. Where the plaintiff brought an action (in the nature of replevin,) to recover a horse, and the referee found for the plaintiff, six cents damages Digest. and assessed the value of the horse at $25, Held, that the plaintiff could recover no more costs than damages, six cents. (Code, § 304.) Minks agt Wolf, 238. The plaintiff sued the defendant on a promissory note which with interest, amounted to $258,60, but claimed and demanded judgment for a balance only of $95,S5. The defendant on the trial proved his account to be $253,48, and the referee reported a balance due to the plaintiff of $5,20. The question was whether the plaintiff was entitled to costs on the ground that the demands of the parties, allowed by the referee, in the aggregate exceeded $400, and therefore deprived a justice of the peace of jurisdiction. Held, that he was not. The only claim proved was the defendant's claim, which with the plaintiff's demand was short of $100. Hoodless agt. Brundage, 263. Where judgment is ordered for plaintiff on demurrer to answer, with leave to defendant to amend on payment of costs, the plaintiff is entitled to a fee for proceedings before notice of trial, to wit: $7 in an action upon contract for the payment of money, and $12 in cases where application to the court for judgment would be necessary. Van Valken burgh agt. Van Schaick, 271. SEE DISCOVERY, Brevoort agt. Warner, 321. Plaintiff entitled to $10 costs attending special term to argue motion, on defendant's notice, out of the proper judicial district. Hager agt. Danforth, 448. The plaintiff is entitled to charge a trial fee of fifteen dollars, for arguing a motion for new trial at special term, on a case made by the defendant. It is not necessary, under section 311 of the Code, to set forth in the bill of costs the particular items of witnesses' fees, and of postage. It is sufficient to state them severally in gross, and to set forth in the affidavits presented and filed on taxation, the particular items of each expenditure. Hager agt. Danforth, 448. Liability of attorney for, where non resident plaintiff, and how collection enforced. Boyce agt. Bates, 495. COURT OF APPEALS. Where a party in a cause dies after the return is filed in this court, the court having obtained jurisdiction, has the power to allow his legal representatives to be substituted. It seems, that section 121 of the Code does not apply to this court. A decree which declares a legacy wholly void as to one defendant, and |