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The fact of a person being a householder, can not be proved by reputa

tion; it is capable of direct proof. Eastman agt. Caswell, 75. A good cause of action for breach of promise of marriage, is not a

debt recoverable out of defendant's premises, under the Homestead Exemption Act, passed April 10, 1850-judgment having been recovered subsequent to the filing of notice by defendant under that act,

the promise and the breach having occurred previous thereto. The sheriff's certificate of sale under such a judgment, creates a cloud

upon the title of the premises, which the court may remove. Cook

agt. Newman, 523. The Homestead Exemption Act, (Laws 1850, p. 499,) does not exempt

the homestead of a householder from sale on execution, except for debts

contracted after the passage of that law. Therefore, held, where judgment was obtained against the plaintiff, for

costs, in an action of tort, his homestead was not exempt from levy and sale on execution under that act. Schoughton agt. Kilmer, 527.

REFEREES. Where the facts of a case, which involve among others, the

existence of a co-partnership, is referred, and the referee reports that there is sufficient evidence to establish the co-partnership, the party in whose favor the report is made cannot file the report without notice, and enter an order dissolving the co-partnership and direct an account

ing. Such an order is not a judgment under the Code. Notice should be given of the time and place of presenting the report to

the court, and the nature of the order asked for. Bantes agt. Brady,

216. A referee has no power to strike out a complaint, nor to panish for a

contempt. Bonesteel agt. Lynd, 226.
Either party may notice and bring on the trial of a cause before referees,
same as before the court.

Thompson agt. Krider, 248.
It is uot necessary that referees should fix the time and place of hearing

in writing. (Although it is the better practice.)
When the time and place for the hearing is actually fixed by the referees

or referee, (by parol or otherwise,) and the attorney gives the adverse party notice of the hearing at the time and place fixed, such adverse party is in fault if he neglect to attend; and in his absence the referee

may proceed upon the motion of the party giving the notice. If the plaintiff neglects to appear, the referee may proceed and make his

report in favor of the defendant; and may non-suit the plaintiff. Stephens agt. Strong, 339.




Law, held to be un constitutional and void.
And the whole system of similar legislation, which has been rapidly in-

creasing of late years in this and many other states of the Union, of
submitting to the people to determine at an annual election whether a
proposed act should or not become a law, was also held to be a viola-
tion of the spirit and meaning of the constitution. The law making
power of this state is, by the constitution (with some specified excep-
tions,) vested in the legislature, consequently no other power is

authorized to exercise the same functions. This kind of legislation is widely different, and, indeed, has no analogy

to enacting conditional laws. The circumstances to meet which such laws are enacted, are contingent and uncertain; but the laws themselves express the deliberate will of the law making power, provided

the circumstances happen to which the laws are intended to apply.
(It will be seen that this decision is adverse to that of Johnson agt.

Rich. 9 Barb. 630.) Bradley agt. Baxter, 18.
In proceedings by school district officers, to compel the taxable inhabi-

tants of the district to pay certain expenses, in pursuance of an order
of the Board of Supervisors of the county, (Laws of 1847, ch. 172;
Laws of 1849, ch. 388,) held, on a return by the trustees, to an alter-
native mandamus requiring them to levy and collect the tax, &c., that
if the Board of Supervisors acquired jurisdiction under the statute, the
power was with them to adjudge as to the nature and amount of the
claim, and whether it was of the character provided for by the law.
Having jurisdiction their judgment upon these points would be con-
clusive upon the parties. , People agt. Van Leuven, 358.

SHERIFF'S SALE. Where the sheriff sold, among others, a lot of land to

which the defendant in the execution had no legal title, but an equita-
ble interest arising under a contract for purchase, held, that the sheriff's
certificate of sale might be amended by striking out of it such lot.

Richards & Russell agt. Varnum, 79.
In reference to lien of sheriff's fees, after judgment paid. Bank of

Whitehall agt. Weed, 104.

STAY OF PROCEEDINGS. The court may make an ex parte order staying

proceedings on appeal from a judgment on report of referees to the general term, until judgment of the court upon the case made and settled in the cause, But a judge out of court is not authorized to make such an order; the most he can do is to grant an order to show cause before himself or some other judge, or some court, why proceedings should not be stayed, &c. The last paragraph of $ 401 is as applicable

to such an order as any other. The respondents are not entitled to an order that the appellants file security

for costs on appeal from a judgment, although the latter is a foreign Vol. VIII.



corporation. If the appellants stay proceedings they must give security
on the appeal, or the stay, if obtained from the court or a judge, will be
upon such terms as may be just. The Steam Navigation Co. agt.

Weed, 49.
A County Judge has power, under § 401 of the Code to make an order

staying proceedings on a judgment entered upon a report of referees,
but none to stay proceedings after verdict. This section evidently

intended to restrict the word "verdictto the finding of a jury. On appeal from a judgment, section 348 of the Code, after giving the

appeal, says, “such an appeal, however, does not stay the proceedings, unless security be given as upon an appeal to the Court of Appeals, or unless the court or a judge thereof so order, which order may be made upon such terms as to security or otherwise, as may be just, such security not to exceed the amount required on an appeal to the Court of Appeals.” Now a county judge has not authority to make an order

directing what security shall be given in an action in the Supreme Court And a judge of this court on making such an order upon a judgmeni

entered upon a report of referees, should be presented with the report, and the exceptions, and the case if one has been made, in order to decide whether there is probable cause for review, &c. Otis agt. Spen

cer, 171. A judge at Chambers has no power to grant a series of 20 day orders, es

parte, staying proceedings. An order to stay proceedings, to render it effectual, must be accompanied

by a notice of motion. An order to stay proceedings for a given nuinber of days is never proper. It should always be limited by the time when the party can make application for the relief he seeks. Sales agt. Woodin, 349.

SECURITY FOR COSTS. An order made by a judge in vacation, that plain

tiff file sccurity for costs, should be in the alteri ive, as was formerly the practice, requiring security to be filed in twenty days, or that the plaintiff show cause why such security should not be required, at the

next special term thereafter. Where security is filed and notice of justification is served, if the defendant

excepts, a new justification must be served. Bronson agt. Freeman, 492.

SUPPLEMENTARY PROCEEDINGS. In proceedings supplementary to ex

ecution, where an execution has been returned unsatisfied, a judge has no power to make an order that the defendant appear before a referee, for the purpose of an examination as to his property, under § 247 of

the Code. The order must require the defendant to appear before the judge granting

it, in the first place, otherwise, no jurisdiction is obtained over the person of the defendant,


Where the proceeding is founded upon the return of an execution against:

the property of the debtor unsatisfied, it is not necessary to state in the affidavit that the defendant has property. The creditor is not required first to show that the defendant has property in order to pro

ceed with an examination. Hatch agt. Weyburn, 163. In supplementary proceedings the Code does not require that a copy of,

the affidavit should be served on the defendant, with the order forbidding a transfer of his property. That requirement relates to orders granted in actions, enlarging the time within which any proceeding

may be had. (Code 9 405.) The order forbidding a transfer of a defendant's property, issued under § 299, not called an injunction in the Code, and

a different proceeding from injunctions granted in an action, as a provisional remedy

under chap. 3, § 218, et seq. The restoration of the first clause of $ 292 in the Code of 1851, to the

form it was under the Code of 1818, does not necessarily require the judge to summons the defendant in supplementary proceedings, to appear before himself, in the first instance, before a referee can be appointed. (This is adverse to Hatch agt. Weyburn, ante 163.) Sections 296 and 300 in the Code of 1851 are left as in the Code of 1849, and these sections are ample to confer the power of appointing

the referee at the same time that the order for an examination is made. The judge acquires jurisdiction of the subject matter and of the person

of the defendant for all the purposes of the appointment of a referee, by the presentation to him of an affidavit containing the facts required by § 292, to be stated in it, and by the motion of the creditor for the order. (See the authorities cited in the opinion.) (This is also adverse to Hatch agt. Weyburn, supra.) Green agt. Bullard & Granger, 313.

SURROGATE. The application to the surrogate pursuant to 2 R. S. 150, § 5,

must be by petition. If a petition presented in pursuance of the provisions of that section con

tains sufficient facts to give the surrogate jurisdiction of the person of the infant, and he proceeds regularly and appoints a guardian for such infant, such appointment is valid until it shall be reversed or vacated by a direct proceeding for that purpose, and will not be held void,

although the infant never resided in the county of such surrogate. An action brought in this court to remove the guardian appointed under

such circumstances, can not be sustained. It seems, the mode of proceeding to remove such guardian is to apply to

the surrogate who made the appointment, on the ground of the fraud practiced upon him as to the residence of the infant. Dutton agt. Dutton, 99.

Digest. TITLE.

“Where the claim of title to real property arises on the pleadings," and the plantiff recovers a verdict, he is entitled to costs of course. If the defendant puts the title in issue, and compels the plaintiff to prepare

to prove it, he can not relieve himself from the liability by admitting

the title on the trial. The only evidence that can be received as to whether or not “ the title

question at the trial," is the certificate of the judge who tried the cause

Niles agt. Lindsley, 131.


TRIAL. Where a cause involves the examination of a long account, it is no

objection to a motion a reference that it had once been tried by a

jury. Brown agt. Bradshaw, 176. Either party may notice and bring on the trial of a cause before a referee,

the same as if the trial was before the court.
Consequently, where both parties notice the cause, neither can charge
delay or default upon the other, for not bringing on the hearing.

Thompson agt. Krider, 248.
A defendant may, in all cases, move for a dismissal of the complaint,

where the plaintiff neglects to bring the cause to trial according to the
course and practice of the court; without being himself bound to notice

the cause for trial. Roy agt. Thompson, 253. Where in an answer one of several statements of defence is stricken out

by the special term as irrelevant-not being a bar to the action—and the defendant appeals to the general term; the plaintiff' can not proceed and try the cause at the circuit upon the remaining issues of fact, pend

ing the appeal. Trustees of Village of Penn Yan agt. Forbes, 285. SEE WITNESS, People agt. Hendrickson, 404.


ERIFICATION. When it can be seen from the pleading to be answered,

that an admission of the truth of its allegations might subject the party answering it to a prosecution for felony, or might expose him to detection and thus lead to such prosecution, his general affidavit, that such might be the eflect of the admission, should be received in lieu of a

verification of the answer. In such affidavit the particular facts and circumstances which lead him to

such conclusion need not be stated.
This rule applied in an action of assault and battery. Springsted agt

Robinson, 41.
A verification to a complaint as follows: “A-

-B the above plaintiff being duly sworn, says, the above complaint is substantially true

of his own knowledge,” is defective. An answer to such a complaint, without verification, is well pleaded.

Waggoner agt. Brown & Brown, 212.

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