Feb. 1824. Whitney V. requiring James Fairlie, Esquire, one of the Clerks of this ALBANY, Court, to pay to the petitioners the sum awarded by the commissioners of estimate and assessment on the enlarging and improving Maiden lane, &c., to the owners of all that certain piece or parcel of land described in the report of the commissioners and in the petition as follows, viz. (describing the premises,) and on motion of J. I. Drake, for the petitioners Per Curiam. On granting this rule, it is proper to remark, that the 184th section of the act to reduce the several laws, relating particularly to the city of New York, into one act, under which this proceeding is conducted, authorizes us to secure, dispose of, and improve the money, when paid into Court, as we shall direct. (2 R. L. 418.) This act contains no clause, like the act for the partition of lands, (1 R. L. 511, s, 7,) expressly authorizing the Court, on directing a rule to pay over the moneys, to require security to refund, with interest, in case it shall at any time appear that the parties receiving the money are not entitled to it; and we require no security in this case. The omission is not because we doubt our power under the general words cited, but because the rights of the petitioners are very clearly and satisfactorily made out. In a case where there is doubt as to the title of the claimants, we shall exact the same security, in cases like this, as is required on ordering out moneys paid into this Court under the act for the partition of lands. Warner. Motion granted. WHITNEY against WARNER and CRISSEY. An affidavit for a certiorari ON certiorari to a Justice's Court. The affidavit on which the certiorari was allowed, was entitled and began to a justice's thus: cause in the court below, but not in the cause in this court. court may be entitled in the ALBANY, Whitney V. Warner. "Justice's Court. ads. Before James Squires, Esquire, one of William Warner &ty of Broome, 8th December, 1823. Broome County, ss. George Whitney, the above named defendant being duly sworn, maketh oath and saith, that on the 27th day of November last past, a suit was commenced by the above named plaintiff against the above named defendant," &c. [going on and giving a history of the cause between the plaintiffs and defendant in the said Justice's Court.] The affidavit purported to have been sworn before George Park, commissioner, &c. J. A. Collier, for the defendant, moved to set aside the writ of certiorari for irregularity; and he made two objections. 1. That the affidavit was entitled. 2. That it was taken before a commissioner. In support of the first point, he cited Haight v. Turner, (2 John. Rep. 371.) As to the second, he said commissioners have no authority to administer an oath in a Justice's Court, or in a cause entitled in that Court. Their authority extends only to taking affidavits to be read in courts of record. S. Sherwood, contra, said that if the case of Haight v. Turner had any application, it went to show merely that the affidavit could not be entitled in this Court. As to the second objection, though entitled in the Court below, it was still an affidavit to be used in a court of record, and might be taken before a commissioner. Curia. Where there is no suit pending, but the affidavit is to be used as the foundation of a suit, it should not be entitled in any cause. This is the case of affidavits to ground a motion for a mandamus, an information, or, (in England,) to hold the defendant to bail. But we see no objection to entitling the affidavit in the suit in the Court below. The statute, (1 R. L. 396, s. 17,) requires the party applying for Feb. 1824. V. a certiorari to make affidavit satisfying the Judge or commis- ALBANY, sioner who allows it, that there is reasonable cause for granting it, for error in the judgment below, which shall be spe- The People cified in such affidavit. This is properly a proceeding in the Court below. If entitled in the Supreme Court, it would have been irregular, according to the case of Haight v. Turner, cited on the part of the defendant. As to the second objection, it is enough that the statute expressly declares that the affidavit may be taken before any person authorized to take affidavits to be read in the Supreme Court. Forward. Motion denied. THE PEOPLE against FORWARD and DAY. The defert. a certiorari to dictment from which had The been returned by the sessions the ing given bail as required by statute, (1 R. L. 141, s 4,) and a commis THE defendants were indicted at the Oyer and Terminer in Erie county, July, 1821, for publishing a libel. They dant sued out pleaded not guilty, and the indictment was remanded to the remove an ingeneral sessions of that county; but the defendants brought the sessions to a certiorari to remove the indictment to this Court. This this court, writ was granted, on motion, in August term, 1821. general sessions, at their August term of the same year, re-t ceived the writ, and directed a return to be made, without defendant havrequiring the defendants to give bail; nor did the defendants themselves enter into recognizance, as required by the statute. (1 R. L. 141, s. 4.) At the January term of this Court, 1822, the defendants obtained a rule that all pro- ine witnesses ceedings be stayed until the public prosecutor should con- had been issusent to the issuing of a commission to take the testimony of foreign witnesses, a copy of which rule was served on the District Attorney of Erie, on the 23d day of May thereafter. On the 5th day of May, 1823, the defendants, on filing a stipulation in writing to that effect, signed by them and the District Attorney, with the Clerk of this Court in Utica, caused a rule for a commission to be entered, to examine certain witnesses named therein, agreeably to the rules VOL. II. 64 sion to exam ed under the direction of this court; but because no bail was in, a procedendo was ordered. Feb. 1824. ALBANY, and orders of this Court, and to be subject to the same rules as when obtained in a civil cause; but they had not proceed ed to issue the commission; and now, Jackson V. Paul. J. King, in behalf of Mr. Potter, Dist. Attorney of Erie, moved for a procedendo, on the ground that no bail had been given to warrant the writ of certiorari. He cited 1 R. L. 141, s. 4; id. 142, s. 6. P. S. Parker, contra, said the only question was, whether the Court would interfere. The statute is plain, that a recognizance must be entered into, or the writ is unavailing, and the Court below must proceed of course. Curia. Take your rule for a procedendo. Rule granted. To warrant one's being JACKSON, ex. dem. COLDEN and others, against PAUL. THE declaration contained 8 counts, and the last set forth made a lessor a demise from 18 persons, none of whom, (as the tenant stated in ejectment, in his affidavit,) he was informed and believed, pretend to he must have a claim to a claim any title to the premises in question. On this affi subsisting title or interest in the premises. It is not enough that it davit, L. Ford, moved to strike out the 8th demise. He cited may be a Jackson v. Sclover, (10 John. 368,) and Jackson v. Rich question on the trial whe- mond, (4 John. Rep. 483.) ther the legal title is not vested in him. J. O. Morse, contra, read the affidavit of the attorney for the plaintiff, which stated that it might be a question on the trial, whether the legal title of part of the premises is not vested in the lessors named in the 8th demise. Curia. This is not enough to warrant us in retaining that demise. The lessors must have a claim to a subsisting title or interest in the premises. The affidavit on the part of the plaintiff does not show this. Jackson v. Richmond, cited by the counsel for the defendant, is decisive in favor of the ap- ALBANY, plication. Rule granted. Feb. 1824. Fifield. V. Brown. FIFIELD, Survivor, &c. against BROWN and others. The rule to discontinue, on receiving a plea of an in J. PLATT, moved for a rule that all proceedings stay on the part of the plaintiff, till the costs of a former suit in favor of the same plaintiff against the same defendants, (in which the capias was served on Brown only, (for the same cause solvent of action, be paid. In the first cause, Brown had pleaded a discharge under the act to abolish imprisonment for debt, &c., obtained after the commencement of the suit. The defendants' attorney entered a rule to reply, served a notice thereof on the plaintiff's attorney, and entered a default for want of a replication. The default was entered March 26th, 1823. May 16th, of the same year, the plaintiff's attorney entered a rule of course, in the common rule book, that the plaintiff have leave to discontinue that suit without costs; and immediately commenced the present suit. B. F. Butler, contra, read an affidavit of the plaintiff's attorney, showing that the judgment had been perfected, before he received notice of this motion. Curia. The rule to discontinue was irregular. It is not of course to enter a rule to discontinue without costs, on receiving a plea of the defendants' discharge under the insolvent act. This can be done only upon special motion, and under circumstances to be shown on affidavit and approved by the Court. We should grant the motion, therefore, as applied for, but it comes too late. Judgment is perfected. Where an issue is joined in a cause, a motion to stay proceedings for non-payment of the costs of a former action, may be made before trial in the second. (Cuyler v. dis charge, is not a rule of course. Motion to stay proceedtill the ings costs of a former suit be paid, comes too late after judgment perfect ed. |