NEW YORK, not treated as a party upon the record. But in other res May, 1824.

Jackson

V.

Mather.

pects, and eminently so far as interest is concerned, he is a party with his wife. Whatever affects her, affects him equally. On recovering judgment against her he may be made an actual party by a scire facias, and in this manner, be subjected to execution. Being substantially a party, we think he is to be received to make an affidavit of merits, consistently with the rule which requires this to be done by the party. Let the inquest be set aside, on payment of costs. Rule accordingly.

Unnecessary

in hæe verba

into a case, tho'

were disallow

JACKSON ex. dem. M'CLELAN and others, against MATHER.

APPEAL from the taxation of costs in ejectment, and verpapers, copied dict for plaintiff, on which a case was made, and judgment thereon for the plaintiff. In making up the case, (which allowed by the judge on setwas done by the plaintiff,) several written evidences of title, tling the case, as patents, deeds, and field books, were inserted therein ed in taxation. verbatim; and on taxing the costs, the taxing officer reOnly one fused to allow for copying these, as he deemed them not pœna and sub- necessarily incorporated in the case, though they were allowed, though lowed to be inserted by the Judge who tried the cause, by sub- whom the case was settled.

draft of sub

pœna ticket al

several

pœnas issue

Certified co- He also refused to allow for more than one draft of subpies from the secretary's of pæna, though several subpænas were issued; and so of

fice taxed.

So certified

tickets.

copies of He also refused to allow the fees paid for certified copies depositions ta- of a patent, an act of partition, deed of partition and field ken pendente

lite, under act book, and another deed which had been procured from the to perpetuate office of the Secretary of State—$24 35.

the testimony

455.)

of witnesses, He also refused to allow for copies of testimony taken un&c. (1 R. L. der the "act to perpetuate the testimony of witnesses in cerBut there tain cases," filed in the Delaware Clerk's office, and exemfidavit that plified-$9.

must be an af

these were necessary, &c.

Curia. This case is swelled to 200 folios, by copying the patent, field book and deeds in hæc verba; when 30 folios

would have answered every purpose. It would have been NEW YORK, enough to refer to these papers, without encumbering the May, 1824. case with the entire instruments. It was in season to object this on the taxation which is so far right.

One draft is sufficient for all the subpoenas in the cause, and so of the tickets. The taxation is right in this respect. But the charge for certified copies should have been allowed. The certificate and seal of the Secretary is made evidence,(a) and it is no longer necessary for him to attend Court on a subpoena duces tecum, or commit the papers of his office to a deputy, as formerly. The allowance comes. in place of that which was formerly due to him as a witness, and is highly reasonable.

So also as to the papers for perpetuating testimony under the statute.(b) The 4th section of that act, it is true, declares that the parties may take copies at their own expense, and would seem to imply that this should not be taxed; but as to evidence taken under that statute in a suit already pending, there is nothing to negative the allowance.

RULE. That the costs in this cause be re-taxed; but the taxation is confirmed except as to $24 35, for copies of records from the Secretary's office, and the sum of $9, for copies of testimony perpetuated, and that, as to those items, the same be allowed, on filing an affidavit that the said copies were necessary on the trial, and that the plaintiff has paid for the same the amount charged.(c)

(c) See Jackson v. Root, (18 John. 336,) acc.

Jackson

V.

Stiles.

(a) Stat. sess. 32, ch. 141, s.

1.

(b) Sess. 36, ch. 61, 1 R.

L. 455; and vid. Jackson v.

Hooker, 1

Cowen's Rep.

586.

JACKSON, ex. dem. Loomis, against JOHN STILES, WHITE,

tenant.

H. B. DAVIS, moved for leave that the tenant enter into a To entitle the special consent rule. He read an affidavit of the tenant thus: tenant to enter into a special consent rule in

an action of ejectment, as a tenant in common, he must, at least, swear that he claims as tenant in common.

That he believes the action will involve a question between tenants in common, is not enough.

NEW YORK, “that, as he, this deponent, verily believes, this ejectment May, 1824. will involve a question between tenants in common."

Pitcher

V.

Pierce.

SAVAGE, Ch. J. He should swear that he is a tenant in

common.

Davis. It is a question of law, whether he is so or not. He can do no more than state his belief.

SAVAGE, Ch. J. He can take the advice of counsel. At least, he must swear that he claims as a tenant in common. That he believes the ejectment will involve a question between tenants in common is not enough.

J. A. Collier, opposed the motion. He cited Jackson v. Lyons, (18 John. 398.)

Motion denied.

Motiou for a

new trial for

ANONYMOUS.

CURIA, per SAVAGE, Ch. J. Where a motion for a new

irregularity trial is founded both upon irregularity and newly discovered and newly dis- evidence, it is an enumerated motion.(a)

covered evi

dence, is an enumerated motion.

And the counsel having moved the matter as a non-enumerated motion, the papers were returned without farther consideration.

(a) Vid. Remsen v. Isaacs, 1 Caines' Rep. 22; Foden & Slater v. Sharp 4 John. Rcp. 183.

A certiorari

PITCHER against PIERCE.

D. L. VANDERHEYDEN, moved to set aside a writ of cer

returnable out tiorari, on the ground that it was returnable the 5th January,

of term, but

returned by

the justice, amended without costs.

1824, which was out of term. The Justice had made a NEW YORK,

return.

May, 1824.

Bogart

V.

William M'Manus & John Woodworth, jun. contra, Brinkerhoff. moved to amend.

Curia. We grant the motion to amend, without costs.

HAZARD against HENRY, executor of POTTER.

Order for bill of particulars absolute in the first instance. The judge is

to

der for that

THE First Judge of Ontario Common Pleas had, on the 13th April last, granted an order, absolute in the first instance, that the plaintiff's attorney furnish a bill of particulars in 20 days, and that all proceedings on the part of the requested plaintiff be stayed until such bill should be furnished. On vacate the orthe 15th April, Wm. M. Oliver, Esq. the plaintiff's attorney, requested the Judge to vacate this order, because it was absolute, which he declined doing; and now I moved to set Order, therefore, set aside it aside, because it should have been in the alternative, as for irregulariwas decided in the first volume of my reports, in Brew- ty.

ster v. Sackett, p. 571.

J. L. Riker, contra.

reason, which

he refuses to

do.

Curia. Take your rule.

Motion granted.

BOGART against BRINKERHOFF.

SLANDER in the New York Common Pleas, removed by The two habeas corpus, returnable in May term, 1823. Special bail terms within which a plainwas put in on the 6th August last, and notice thereof given tiff is allowed

to declare on

a habeas corpus must be reckoned inclusive of the term at which bail is put in. Motion to set aside declaration served after that time; but because the plaintiff showed a good excuse for the delay, the motion was denied.

And so the plaintiff does not absolutely lose his right to declare, though two terms pass.

NEW YORK, to the plaintiff's attorney, the next day. The plaintiff did May, 1824. not serve a declaration till in February term, 1824, so that Bogart two terms, including August term, (when bail was put in,) Brinkerhoff had elapsed since the defendant had put in bail. On the copy of declaration being left at the office of the defendant's attorney, he declined receiving it. On these facts,

C. S. Woodhull, moved to set aside the declaration, and that proceedings on the part of the plaintiff be perpetually stayed.

He insisted that the two terms after the return of the habeas corpus, within which the plaintiff was bound to declare, included the term at which bail is put in. (1 Dunl, Pr. 228. Sheridan's Pr. 487. Wyche's Pr. 290. 2 Archb. Pr. 173. 1 Tidd's Pr. 350. 2 Sell. Pr. 274. Cheetham v. Lewis, 3 Caines' Rep. 256. Drake v. Hunt, Col. Cas, 43. Smith v. James, 6 T. R. 752. Hutton v. Stoubridge, 1 Str. 631. Clark v. Harbin, Barnes' Notes, 90.) In Bank of Orange v. Van Aukin, (1 Cowen's Rep. 58,) bail was probably not put in before August term; and the only question there was as to the manner of service.

D. Brush, contra, contended that the term of putting in bail is to be excluded.

He also read an affidavit excusing the delay, stating that the reason why he did not declare within two terms inclusive was, that the late Judge Van Ness, who was counsel in the cause, had a paper material to enable him to declare; that the paper was with Judge Van Ness at his death. This fact, and supposing there was a perfect understanding between him and the defendant's attorney, and also supposing that the term of putting in bail was exclusive, induced him to delay declaring till the 13th March:

Curia. The term at which bail is put in must be reckoned inclusive; and the plaintiff was, in strictness, too late; but as a very satisfactory excuse is given for the delay, the motion must be denied, without costs.

Motion denied.