Digest. The fact of a person being a householder, can not be proved by reputa- A good cause of action for breach of promise of marriage, is not a The Homestead Exemption Act, (Laws 1850, p. 499,) does not exempt 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. 527. Schoughton agt. Kilmer, 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 accounting. 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 punish 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 not 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. Digest. SCHOOL OL LAWS. The act of March 26, 1849, known as the FREE SCHOOL And the whole system of similar legislation, which has been rapidly in- This kind of legislation is widely different, and, indeed, has no analogy In proceedings by school district officers, to compel the taxable inhabi- 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 equitable 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 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. 72 Digest. corporation. If the appellants stay proceedings they must give security A County Judge has power, under § 401 of the Code to make an order cer, 171. A judge at Chambers has no power to grant a series of 20 day orders, es An order to stay proceedings, to render it effectual, must be accompanied Sales SECURITY FOR COSTS. An order made by a judge in vacation, that plaintiff file security for costs, should be in the alternative, 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 execution, 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. Digest. 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 proceed 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 § 405.) The order forbidding a transfer of a defendant's property, issued under § 298, is not called an injunction in the Code, and is 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 1848, 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- It seems, the mode of proceeding to remove such guardian is to apply to TITLE. Digest. "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 TRIAL. Where a cause involves the examination of a long account, it is no objection to a motion for 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 A defendant may, in all cases, move for a dismissal of the complaint, V. 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 effect 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 This rule applied in an action of assault and battery. Springsted agt B the above plain A verification to a complaint as follows: "A—— An answer to such a complaint, without verification, is well pleaded. |