Effect of appearance of defendant, in cases commenced in these courts by attachment-Conway v. Hitchins, 9 Barb. S. C. R. 378. Practice in justices' courts,-various points in relation to considered.-Allen v. Stone, 9 Barb. S. C. R. 60. LIBEL. See Justification. LIEN LAW. v. Mechanics Liens. MITIGATING CIRCUMSTANCES. See Justification. MECHANICS LIENS. V. page 713. Proper forms of pleading under, fully considered. Doughty v. Devlin-decision of New York Common Pleas, published by clerk of that court. This case establishes the following principles: That owner cannot be compelled to pay any greater sum than his contract price; and that sub-contractors are bound by the terms of the contract between him and the principal contractor. That prior payments, made by the owner in good faith, under the contract, before notice of claim filed, will be allowed to him in making up the aggregate sum for which he is liable. That if the owner have paid the contractor in full, before the filing of the lien, no claim can be asserted against him. That the owner cannot be required to pay money, before the period fixed in the contract signed by him. That in administering relief under this law, the court acts as a Court of Equity, and may adapt that relief accordingly, all the different claims made being taken into consideration. N.B. The whole subject of this law will be found fully considered in the report in question. It seems doubtful as to whether this law has any retrospective effect,as to contracts made before its passage.-V. Brien v. Clay, decision of same court, similarly published-V. Demurrer, Irrelevancy. OMISSION TO REPLY. ORDER Cannot be made by county judge of any other county, except county of venue. So held in Chubbuck v. Morrison, 6 How. 367. Adverse to Peebles v. Rogers, cited at p. 132 and 133. The latter seems the better authority. Order to stay proceedings arbitrarily, cannot be made. The stay should always be, until the party obtaining it can make some other application for relief.-Chubbuck v. Morrison, 6 How. 367. Order of county judge cannot be set aside as erroneous, on motion to general term.-Conway v. Hitchins, 9 Barb. S. C. R. 378. V. county judge. PARTIES. V. Bank of British North America v. Suydam, 6 How. 379. Reported 1 C. R. (N. S.) 325. Cited from that report at page 63 of work. PARTY. Defence of, refused to be stricken out on his non-attendance as a witness.-Bennett v. Hall, 10 L. O. 191. V. defence. PETITION. On discovery. V. discovery. PLEADING. V. Complaint,-Answer,-Demurrer. If complaint defectively verified, opposite party may serve his answer without oath. Semble, he need not, in this case, return defective paper.-Lane v. Morse, 6 How. 394. V. page 171, 172. Defective Verification of, by Attorney: See Verification. Admission of fact, by omission to reply to allegation, conclusive in every stage of the suit; and report of referee, or verdict of jury to the contrary, may be disregarded. But, amendment may be allowed, nunc pro tunc.--Willis v. Underhill, 6 How. 396. As to incompatibility of joinder in same pleading, of cause of action on tort, and cause of action on contract, arising out of same facts, V. complaint.-Cobb v. Dows, 9 Barb. S. C. R. 230. Strict view taken as to supposed incompatibility of putting in equitable defence to legal action.-Crary v. Goodman, 9 Barb. S. C. R. 657. N.B. This restriction removed by recent amendment of Code. Query if law before? V. page 155. Held that by sec. 69, one form of proceeding is " made com mon to both legal and equitable actions. One mode is prescribed for the prosecution of rights and remedies, whether legal or equitable; but the pre-existing distinction between those rights and remedies which the common law enforced, and those which equity alone could protect or administer, remains untouched." Same case. See p. 155, and chap. 1, book 5, passim. Similar questions considered very fully; in relation to the point as to whether a judgment, when sued upon, can or cannot be impeached on the ground of fraud.-Dobson v. Pearce, 10 L. O. 170. N.B. The authority of the decision seems neutralized, by the note at the commencement of the report. POSSESSION, ADVERSE. V. Adverse Possession. PROCEEDINGS, STAY OF. REPLY (OMISSION TO). V. Pleading. SCIRE FACIAS. Abolished altogether by Code.-Cameron v. Young, 6 How 372. Remedy, a new action, in case where plaintiff died after judgment, but before execution. SLANDER. V. Justification. STAY OF PROCEEDINGS. V. Order. STREET COMMISSIONERS. Case in relation to, Morewood v. The Corporation of New York, 6 How. 386. SHERIFF. Commencement of action against in Justice's Court. V. Es cape. VERIFICATION By plaintiff, swearing positively that complaint was true, but omitting words, " to his knowledge," sustained as sufficient.Southworth v. Curtis, 6 How. 271; 1 C. R. (N. S.) 412. Attorney verifying pleading, must have personal knowledge of all the allegations, unless same be founded on an instrument for payment of money only. Verification grounded on client's statements alone, and attorney's belief of those statements, held to be defective.-Hunt v. Meacham, 6 How. 400. See also as to defects in verification.-Lane v. Morse, 6 How 394, under the heads of Affidavit, Answer, Pleading. WITNESS. See Husband and Wife. Where demand of creditor has been assigned for the purpose of making him a witness, it is just and equitable that the other party, under the recent amendment of the Code, should have the same privilege.—Willis v. Underhill, 6 How. 396. V. pages 363, 373. Query, fees payable to non-resident witness, served within jurisdiction.-Bennett v. Hall, 10 L. O. 191. INDEX. THE arrangement in the following index is rather that of subjects, than of mere For references to Forms, see Table at commencement of volume. |