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1. Where the plaintiff, in an action against defendant, a former

partner, states in his complaint that there is a large sum of
money due from the defendant to the plaintiff, but says that he
is unable to state lhe amount and demands an account, and that
the defendant


upon the accounting may be found due, Held, that he was not entitled to an attachment against the defendant. The Code requires, on issuing an attachment, the amount of the claim to be specified. (Ackroyd agt. Ackroyd,

Ante, 93.) 2. The mere opinion or belief of the plaintiff is not sufficient to

warrant the granting of this process. (Id.) 3. Although it is the practice in the first district, on motion to

vacate attachment made solely upon the insufficiency of the original papers upon which it was granted; that opposing affidavits to support the attachment are inadmissible, yet such opposing affidavits will be allowed where, since the original application has been made, it appears that there has been a change in the relation and condition of the parties, such as a general assignment by the defendant for the benefit of creditors. (Dickerson

agt. Benham, Ante, 343.) 4. A general assignment by a defendant of his property for the

benefit of his creditors, does not deprive the defendant of the right to make a motion to vacate an attachment previously granted against him; his interest in the property is not entirely divested.

(Id.) 5. It is well settled that a threat made by a debtor to his creditor,

to make an assignment of his property for the benefit of his creditors, is no evidence of an intended fraudulent disposition of his property, so as to authorize an attachment to issue against him. And this is so, although the debtor promised when the debt was created to give the creditor collateral security for the debt, which

he failed to do. (Id.) 6. In order to secure a lien upon property by virtue of an atlach

ment, whether issued under the Revised Statutes or under the Code, there must be an actual levy or seizure of the property; and this is the rule as to real estate, and the return of the writ,

Attorneys and counsellors.

or the inventory attached, is the evidence of the seizure. (Yale

agt. Demick, Ante, 430.) 7. But the priority of liens, where several such attachments are

issued against the same defendant, and levied upon the same property, is determined by the Revised Statutes (3 R. S., 645, 5th ed., 99 14, 15,) and the attachment first delivered to the officer has priority, although a seizure of the property may be first made under an attachment subsequently delivered to him or his deputy. (Id.)

See SHERIFF. (Mayhew agt. Duncan, 32 Barb., 87.)

ATTORNEYS AND COUNSELLORS. 1. An order of the general term of the supreme court, denying an

application for admission to practice as an attorney and counsellor at law, is appealable to this court. (Matter of Henry W.Cooper,

Ante, 1 ; court of appeals.) 2. It is a general rule that, whenever the law confers a right, and

authorizes an application to a court of justice to enforce that right, the proceedings upon such an application are to be regarded as of a judicial nature (not executive or administrative ;) and, according to the definition of the Code of Procedure, an application to enforce such right is a remedy; and remedies being divi. ded into “actions” and “special proceedings,” the application

must be considered a special proceeding. (Id.) 3. The act entitled “An act relative to the Law School of Colum

bia College," passed April 7, 1860, providing for the examination by a law committee, of graduates, and their admission to practice as attorneys and counsellors at law in all the courts of

this State, held to be valid and constitutional. (Id.) 4. An attorney has a lien to the extent of his costs, not only upon

the judgment obtained by him, but also upon all the incidents of the judgment or securities for its payment, including the under

taking of bail in the action. (Shackleton agt. Hart, Ante, 39.) 5. He can maintain an action upon such undertaking in the name

of his client to enforce the collection of his costs; and the client cannot, by any release or discharge, prevent a recovery, or affect

such right of the attorney. (Id.) 6. A court of justice of the peace has jurisdiction of such action. (Id.)

Attorneys and counsellors.

7. Where the wife commences an action of divorce against her hus

band, and pending the litigation the parties become reconciled and settle the action, and live together again as man and wife, the husband is not liable for the costs of her attorney. (Phil

lips agt. Simmons, Ante, 342.) 8. In an action against several defendants jointly interested (on an

indemnity bond) who appear and defend by separate attorneys, and succeed in the action, they are entitled to recover separate bills of costs as they have appeared, there appearing nothing collusive or unfair, but on the contrary the defences being conducted separately in good faith. (Bridgeport Fire and Marine

Insurance Co. agt. Wilson, Ante, 511.) 9. A practicing attorney is disqualified as well under the Code as

formerly, from becoming bail in a civil action. The objection must be taken by exception where such bail is put in for the

defendant. (Miles agt. Clark, 4 Bosw., 632.) 10. Where the parties, before trial, settle the action, bona fide on

the part of the defendant, without any intent to deprive the plaintiff's attorney of his costs, held valid; and a judgment entered by plaintiff's attorney, after notice of such settlement, set aside as irregular. As between the parties, an attorney as such has no lien upon the subject of the action, and the parties may settle and discharge it before judgment, without consulting him, if there be no collusion between them to deprive the attor. ney of his costs. (McDowell agt. Second Avenue R. R. Co., 4 Bosw., 670.) *

* Whatever may have been the former rules and practice in reference to this subject, it would seem that, under the Code, the rule established in this case should not prevail. Because, now, the attorney is authorized (as in this case) to make an agreement with his client for a certain amount of the recovery in the action; and the opposite party, like all other persons, is supposed to know the law; and when he settles the action with his adversary, he must have notice, of course, that his adversary has an attorney employed in the action, and that such attorney may bare an agreement with his client for a certain portion of the claim which he is about to settle. This statutory notice must, in our judgment, conclude the opposite party from making any bona fide settlement in the absence, or without notice, to the attorney who prosecutes and has an equitable lien upon the claim intrusted to him. If otherwise, no attorney is safe in prosecuting any claim, except he give a notice accompanying the summons (and which would, if such a practice is to prevail, be printed and made part of it,) that the defendant must not settle the action with the plaintiff before judgment, without notice to the attorney, and the payment of his costs. Such a practice would undoubtedly be more useful than ornamental.-(ED.


See SHERIFF. (Mayhew agt. Duncan, 32 Barb., 87.) 11. Where an attorney appears for a party in an action without

authority, and suffers or confesses a judgment which charges the innocent party with a debt which he does not owe, and creating a lien which may deprive him of his property against his will, it is a wrongful act, which the courts are bound to redress. Nor will the party be compelled to seek his remedy against the attorney. The court will stay the proceedings, and give the party an opportunity to answer to the merits, preserving the plaintiff's

lien. (Ellsworth agt. Campbell, 32 Barb., 134.) 12. A subpæna issued for a witness is "process" within the mean:

ing of the statute (2 R. S., 287, 070,) prohibiting any person not the general law partner of an attorney, or a clerk in hi:: office, from suing out any process, &c., in the name of such attor

ney. (Yorks agt. Peck, 32 Barb., 350.) 13. The supreme court has power to relieve a party to an action

pending in it, from a judgment or order obtained against him by reason of the negligence, ignorance, or fraud of his attorney, without any reference to an action against, or to the responsibility of the attorney. (Sharp agt. Mayor, &c., of New York,

32 Barb., 578; S.C., 19 How., 193.) 14. It is the right of a municipal corporation, by its proper officers,

to apply to the court for protection; and it is the duty of the court to grant it, if it is made to appear that the conduct of their counsel is prejudicial to the rights of the city-especially where the legislature has conferred upon the corporation counsel the management of all civil actions, independent of any directions from its officers. The duty of the counsel to the corporation of New York, in reference to referring causes, and to appeal from judgments stated. (Id.)


1. By $ 191 of the Code, it is obvious that the legislature designed

not to change the practice, but to allow it to remain as it was before, respecting the time in which bail may apply for further time in which to surrender their principal after the expiration of twenty days from the commencement of the action against them, and also as to the grounds of such application. (Agreeing


with Gilbert agt. Bulkley 1 Duer, 668.Y (Bank of Genera agt.

Reynolds, Ante, 18; S. C., 12 Abh., 81.) 2. Before the Code the practice was well settled, that where bail,

by reason of circumstances over which they had no control, were prevented from making the surrender within the regular time, the court would enlarge the time to surrender; and this might be done, although no application had been made, or order to stay proceedings obtained within the regular time for making the surrender. What grounds have been, and are, considered sufficient to grant

such application, examined and stated. (Id.) 3. Where the surrender has been made within the regular time al

lowed by law, the rule seems to be that the bail are entitled under a substantial, if not technical, legal right to an eroneretur, although they are fully indemnified. But it is clear, upon general principles, that where the bail ask a favor of the court, no further time should be granted them for the surrender of their principal where they have the means in their hands, or at their command, of indemnifying themselves in case of a recovery

against them. (Id.) 4. And it should properly be shown as a part of the application

that the bail had no indemnity and would suffer, unless allowed

to surrender, before further time should be granted. (Id.) 5. An order of special term granting defendants who are sued as

bail, further time to render their principal, is not appealable; but in this case, the appellate court said that a rehearing at

special term ought to be had. (Id.) 6. The courts possess the power to let to bail for murder, even after

indictment; but they never exercise it, unless after a trial and a disagreement of the jury, or in some other manner there appears to be great doubt of a conviction ever being obtained. (People

agt. Collins, Ante, 111.) 7. The prisoner in this case, having been legally committed to jail

for the crime of murder, by a regular inquisition of a coroner's jury, and it appearing that there was probable cause for charging him with such offence, held that he should not be let to bail, but should be remanded to prison, there to await the action of the

grand jury. (Id.) 8. No court has authority to suspend sentence indefinitely, against

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