Brokaw and Halsted agt. Bridgman.

Issue was joined on the 18th April last. Notice of the motion was served on the 6th inst; afterwards the plaintiffs noticed the cause for trial at the present circuit, and the cause is upon the calendar of the present term.

F. R. E. CORNWELL, for Defendant.

F. C. DINNINY, For Plaintiffs.

WELLES, Justice. The papers on the part of the defendant appear to be regular, and the commission should go. The only question is whether the defendant should pay the plaintiffs' costs of noticing the cause for trial and preparing for the present circuit. The practice appears to have been settled before the Code, that where the defendant intends to sue out a commission, he must give notice of it before he receives notice of trial, or within a reasonable time after issue is joined, according to the circumstances of the case, and in that case such notice will stay the proceedings. If he waits till he receives notice of trial before he gives notice of the motion, he must pay the plaintiffs costs up to the time of the notice of the motion, and must pay, or offer to pay them then, or he will have the whole costs of preparing for trial to pay, unless it appear that he has served his papers for the motion without unnecessary delay; in which case he will be excused from the payment of any costs (lves vs. Jones, 1 Wend. R. 283; 1 J. C. 391; Gra. Pr. 1 ed. 485; 2d ed. 594).

I am not able to perceive any reason why the practice should not remain the same under the Code. There is nothing there in conflict with the rule.

In the present case the notice of trial was not given until after the notice of the motion was served, and there is no complaint

of any unnecessary delay on the part of the defendant.

The motion is granted without the payment of any costs.

Ellice agt. Van Rensselaer.

SUPREME COURT.

ELLICE agt. VAN RENSSELAER.

Interest upon tax warrants, issued under the act to equalize taxation, can not be collected.

Where a judgment creditor, whose execution was junior to some of the tax warrants in the sheriff's hands, and older than others, held, that on a sale of defendant's property, under the tax warrants, the judgment creditor not desiring to advertise under his execution, all the tax warrants in the sheriff's hands must first be paid out of the proceeds of the sale, and next, the execution of the judgment creditor.

Rensselaer Special Term, February 1851. Motion for an order directing the sheriff of Rensselaer to apply certain moneys arising from the sale of the defendant's property upon the execution in this cause.

The judgment in this cause was recovered and docketed in September 1848. In March 1847, the treasurer of the county of Rensselaer had delivered to the sheriff seven warrants, issued pursuant to the provisions of the "act to equalize taxation,” directing him to collect $1352-09, for unpaid taxes, and seven dollars for the expense of issuing the warrants. In March 1848, four other similar warrants were issued for the collection of $558 40. In 1849 another warrant was issued for the collection of $224.30.

By virtue of these warrants the sheriff seized and sold certain real estate of the defendant for $2700. An execution having been issued upon the judgment in this cause, which, on the 9th of September 1850, had been assigned to Robert Christie, jr. before the sale, the assignee immediately after the sale, and before the sheriff had made any application of the proceeds, demanded that the surplus moneys, after satisfying the amount of the warrants issued in 1847 and 1848, and before the recovery of his judgment, should be applied upon his execution. The sheriff refused to make such application, on the ground that he was authorized to collect interest upon the tax warrants. It also appears that when the sheriff was about to advertise the property for sale

Ellice agt. Van Rensselaer.

under the warrants, he proposed to Christie to advertise other real estate, upon which the judgment was a lien, to satisfy his execution, but that Christie requested him not to do so. The collection of the warrants issued to the sheriff had, for a long time, been delayed by injunctions restraining such collection. Before receiving notice of this motion, and immediately after the sale, the sheriff paid over to the couny treasurer all the proceeds of the sale, except about $75, retained for his fees.

warrant.

R. CHRISTIE, JR. for Motion.

C. L. TRACY, for Sheriff.

HARRIS, Justice.-The right to collect interest upon an execution is wholly statutory. At common law no such right existed in any case. But the law to equalize taxation, under which the warrants in question were issued, is silent on the subject of interest. It authorizes the county treasurer to issue his warrant to the sheriff, commanding him to make "the amount of the tax, together with one dollar for the expense of issuing the It is also provided that the sheriff shall proceed upon the warrant, in the same manner as is prescribed by law in respect to executions, and shall be entitled to the same fees for his services in executing the warrant (Sess. Laws, 1846, p. 467, §4, 5). There is nothing in the provisions from which it can be inferred that the legislature intended that interest should be collected. On the contrary, I think it was the obvious intention of the legislature that the same amount should be collected, as though the tax had been received by the collector. If interest can be collected at all, for the long period during which the payment of the tax was delayed, by reason of the injunction, it must be by way of damages to be recovered under the bond or undertaking executed when the injunction was obtained.

But I think the sheriff was right in applying so much of the proceeds of the sale as was necessary to satisfy the warrant whose lien was junior to that of the plaintiffs' judgment. When it was proposed to advertise under the plaintiffs' execution, the sheriff was requested not to do so. Under these circumstances

Haines agt. Davis and Lansing.

the sheriff was bound, I think, after satisfying the prior warrants, to apply the proceeds of the sale to the satisfaction of any other process in his hands by virtue of which he had sold. The sale was not made by virtue of the plaintiff's execution. The plaintiff still retained his right of redemption, which would have been lost had the sale been made under all the process in the sheriff's hands.

Nor do I think the payment of the proceeds of the sale to the treasurer, after the claim made by Mr. Christie, should protect him against an order for the proper application of the proceeds of the sale. After such a demand, if he chose to pay over the funds, he must be considered as having taken the risk of an erroneous application upon himself.

An order must be entered directing the sheriff, after first satisfying all the warrants in his hands at the time of the sale, together with his fees thereon, to apply the residue of the proceeds towards the satisfaction of the execution in this cause.

party is to have costs upon this motion.

Neither

SUPREME COURT.

HAINES agt. Davis and Lansing.

The plaintiff may waive a jury and take an inquest before the court in a cause at the circuit, out of its regular order on the calendar, where the defendant does not appear.

It seems, that this should be done before the jury are discharged for the circuit.

Niagara Special Term, February 1851. On the second day of the last Orleans Circuit Court an inquest was taken in this cause out of its order on the calendar. The defendants' counsel did not appear, and the plaintiff's counsel waived a jury. The cause was heard by the court without a jury, and a report made and judgment entered in favor of the plaintiff.

The defendants now move to set aside the inquest and judgment for irregularity, upon the ground that an inquest can not be

Haines agt. Davis and Lansing.

taken without a jury. If the application is not granted on this ground, they ask to be let in to defend on terms.

J. DEPUY, for Defendants.

F. J. FITHIAN, for Plaintiff.

SILL, Justice. It has been several times decided that the practice of taking inquests at the circuit, was not abolished by the Code of procedure (Anderson vs. Hough, 1 Code Rep. 50; Dickinson vs. Kimball, id. 81; Sheldon vs. Martin, id. 81; Jones vs. Russell, 3 How. Pr. R. 324). Provision is also made for taking inquests by the 12th rule.

It is said in behalf of the defendants that the word "inquest implies an examination by a jury, and there can not, therefore, be an inquest without a jury. Some authorities are referred to tending to sustain this position. It can not be very important on this occasion to inquire into the derivation of this term, or to seek for its literal or technical definition. Whatever these may be, its meaning when applied to proceedings in a cause at a circuit court, is well understood. It is a trial of the issue of fact where the plaintiff alone introduces testimony. Uusually in these cases the defendant does not appear, and the importance of a jury to him can not depend on the order, in regard to other causes on the calendar, in which his is tried.

It can not be supposed that the legislature intended to place the right to have a jury empannelled upon this unimportant circumstance.

What is called an inquest, when speaking of proceedings in a cause at a circuit. is within the statutory definition of the word "trial." "A trial is the judicial examination of the issues, between the parties, whether they be issues of law or issues of fact (Code, § 250).

Whether the cause is tried upon a regular call, or out of its order on the calendar, it is a judicial examination of the issues. The defendant not appearing, the proceedings are in both cases precisely the same; and a jury, under section 266 may be waived in either.