Morse agt. Evans.

SUPREME COURT.

MORSE agt. EVANS.

A bill of exceptions should be settled, signed and sealed by the justice or court to whose decisions the exceptions were taken.

Where a justice of this court dies pending the settlement of a bill of exceptions taken to his decisions, the party will be allowed to make a case containing the exceptions, which may be settled by any justice of the court.

Albany Special Term January 1852. This action was tried at the Erie circuit in April 1851, before the late Mr. Justice SILL. The plaintiff had a verdict. The defendant's attorney, within the time allowed for that purpose, prepared and served a bill of exceptions to which amendments were proposed. Notice of settlement was given, but before the settlement could be had, Judge SILL died. Upon these facts the defendant moved for an order directing the bill of exceptions to be settled in such manner as to the court should seem proper, or for such other relief in the premises as the court should think proper to grant.

A. J. COLVIN, for Plaintiff.

J. K. PORTER, for Defendant.

HARRIS, Justice.-I do not think it is in the power of the court to grant the defendant the specific relief he seeks. It is an essential element in a bill of exceptions that it should be signed and sealed by the judge or court to whose decisions the exceptions are taken. The court have no power to dispense with this requisite, or to substitute any thing else in the place of it (2 R. S. 422, § 75, 76, 77, 78; Radcliff vs. Rhan, 5 Denio, 234; Law vs. Jackson, 8 Cow. 746).

But I think the defendant presents a case which entitles him to such relief as the court is able to afford. I can see no objection to his being allowed to make a case by means of which he can probably obtain the judgment at least of this court, in general term, upon the questions he intended to present by his bill of exceptions. Such a case might be presented upon affidavits,

Blood agt. Wilder.

in analogy to the provisions of the statute providing for the review of the judgment of a justice of the peace who has died (2 R. S. 272, § 262). But it would probably be still better to have a case settled by one of the justices of this court.

An order may, therefore, be entered authorizing the defendant, within thirty days to serve upon the plaintiff's attorney a case containing the exceptions taken by him upon the trial. The plaintiff to have twenty days after the service of such case to propose amendments. If the amendments are not assented to, the defendant may, within ten days, notice the proposed case and amendments for settlement according to the practice of this court, before any justice thereof. Upon such settlement the defendant shall furnish the judge with the minutes of trial kept by Judge Sill, or a copy thereof. Either party may also present to the judge upon the settlement, affidavits in respect to any thing which occurred upon the trial. The case so to be settled is to be deemed a case made and settled according to the rules and practice of this court. Neither party is to have costs upon this

motion.

SUPREME COURT.

BLOOD agt. WILDER.

On an appeal from an inferior court to the Supreme Court, the respondent

. should have information of the residence of the sureties.

R seems the undertaking must state their residence.

Essex Special Term, March 1852. A. POND, moved to dismiss an appeal from the judgment of the County Court reversing the judgment of a justice.

It appeared that a certificate of a justice of this court had been obtained and filed.

An undertaking was also acknowledged and filed, and the sureties had justified; but it no where appeared in the undertaking or acknowledgment or justification, where the sureties resided.

Blood agt. Wilder.

Notice that the plaintiff appealed, with a copy of the undertaking had been served; but no copy or notice of the judge's certificate, nor copies of the acknowledgment or justification by the sureties, nor notice of their residence or additions had been given.

S. C. DWYER, Contra.

HAND, Justice. It would seem Mr. Justice EDMONDS understands the practice to be, particularly on an appeal from an order, to serve copies of all the appeal papers (Beach vs. Southworth, 6 Barb. 173). No doubt this would be more convenient to the profession; or, at least, to require notice of filing the certificate required by § 344, together with a copy of the undertaking, and notice of the names, residence and addition of the sureties.

Perhaps no notice need be given of the judge's certificate (see 22 Wend. 627). But, however that may be, § 340 requires that a copy of the undertaking, including the names and residence of the sureties be served. The sentence is blindly expressed, but it is pretty difficult to see how a copy can include the residence of the sureties unless included in the original.

The undertaking in this case does not state the residence of the sureties, nor did any of the papers on the appeal.

It is contended that this is unnecessary on an appeal to this court from an inferior court; but § 245 requires security to be given "in the same manner" as in § 340; and if that undertaking must contain their residence, the same is required by § 345. At any rate, I think the respondent should, in some way, have notice of the residence of the sureties. It would sometimes be difficult to ascertain their ability, &c. without this information -(see 2 R. S. 595, § 34).

The motion must be granted, but with leave to amend.

The People agt. Cook.

SUPREME COURT.

THE PEOPLE OF THE State of New YORK agt. Cook.

In an action in the nature of a quo warranto, the place of trial may properly be laid in any county in the state. The People are a party whose residence extends to every county.

Cayuga Circuit, February 1852. This was an action in the nature of a quo warranto, against the defendant, for an alleged usurpation of the office of treasurer of the state of New York; and the place of trial named in the complaint was Tompkins county. A motion was now made by the defendant for a change of the place of trial to Albany county, on the ground that the defendant resided in that county at the commencement of the action.

W. L. LEARNED, for Defendant.

GEO. RATHBUN, for Plaintiffs.

SELDEN, Justice-Denied the motion, on the ground that the residents of Tompkins county were parties to the action, and therefore that the place of trial was properly laid in a county where part of the plaintiffs resided.

Gardiner and others agt. Clark.

SUPREME COURT.

GARDINER AND OTHERS agt. CLARK.

The distinction between pleas in abatement and pleas in bar are not abolished by the Code (1851).

Therefore an objection in the nature of a plea in abatement can not be taken in a general answer, and is waived by an answer upon the merits.

Oswego General Term, April 1852. ALLEN, HUBBARD and PRATT, Justices. Action upon contract by plaintiffs claiming as assignees. The defendant in his answer set up several matters in bar, and then averred the commencement of an action by capias in 1847 by the original party in interest (the plaintiff's assignor) and that such suit was still pending. Upon the trial of the cause before Justice MONSON, at the Madison circuit, the defendant proved the pendency of the former action as alleged, and the justice directed a non suit to be entered.

HIRAM DENIO, for Plaintiffs.

THOMAS BARLOW, for Defendant.

W. F. ALLEN, Justice. The first question to be considered is, whether matter in abatement and matters in bar can be put forth in the same answer. Prior to the enactment of the Code the order of pleading at common law was well established. The defendant could plead 1st, to the jurisdiction; 2d, in abatement; and 3d, in bar. Pleading in either class was an admission that there was no ground for pleading in the preceding classes and a waiver of the right to do so (Gra. Pr. 2d ed. 224). A plea in abatement could not be pleaded after a plea in bar; neither could these pleas be interposed together (1 Mass. 347; 1 J. Cases, 101; 13 Wend. 285; 2 Cow. 417). In the cases cited the rule was applied to pleadings in justices courts, where there has been great laxity and great liberality to secure substantial justice between suitors. The pendency of another suit for the same cause of action is conceded to be mere matter in abatement and not in bar (3 Johns. 259; 18 id. 257).