Moore agt. Livingston and wife. a deed, signed by Miss Blackwell,' conveying back this property to Dr. Moore ?" the only response that could be drawn from him was, "I will,-I do not think I ever saw it. I am positive I never saw it." Such was the cross-examination, upon a different issue, and in a different court, as recently as last February. The pleading in this court was nearer to the date of the transaction. It was sworn, as the jurat shows, on the 5th of June, 1852, more than four years prior to the criminal trial, and bears strong indications of Livingston's supervision, if not dictation. As to the alleged reconveyance, instead of averring, as, if true, it naturally would have done, that no deed of any kind, or in any manner, was ever executed, the answer on this point contents itself with denying "that the indenture alleged in the complaint was so duly executed and acknowledged as is therein stated." Such a denial, although perhaps sufficient to raise an issue as matter of pleading, when considered as a sworn statement framed by able counsel for an intelligent client, can hardly be regarded in any other light than as a negative pregnant. If not a direct admission, it leads almost irresistibly to the conclusion that some deed was executed. And if the deed, so (almost confessedly) executed, was different from the plaintiff's description, why is it not produced, so that the court may see wherein the difference, if any, consists, and whether it be material or not? The plaintiff's oath, uncontradicted as testimony, conclusively shows that the instrument, whatever be its contents, was last seen in the possession of the adverse party; and due notice having been given to produce it on the trial, and its non-production being unaccounted for, it must be deemed to be there still? Its non-production, consequently, is an implied admission that the parol testimony, as to its purport, is substantially correct, and that an inspection of the paper itself, if produced, would not improve the defendants' case. I must conclude, therefore, that a deed of reconveyance to Moore was actually executed and delivered; that, as a muniment of title, it lawfully became, and was his property; that the defendant subsequently, in some way unexplained, repos Ostrander and others agt. Harper and others. sessed himself of the instrument, and wrongfully withholds it; and that the plaintiff is entitled, lawfully, as well as justly, to a decree for its restitution, and for an account of the rents and profits from the 1st of July, 1851, up to which time it is conceded by the complaint there was a full and fair accounting, "to the entire satisfaction of the plaintiff." SUPREME COURT. ELIZABETH OSTRANDER and others agt. JOHN HARPER and others. Where an application for leave to sue in forma pauperis, is made after the defendant has appeared in the action, it can only be made upon notice to the defendant. Such an application will be denied, on the ground of laches, if not made upon, or soon after the commencement of the action. The statute authorizing prosecutions in forma pauperis, does not extend to appeals under the Code. Such an appeal is not a cause of action" within the statute. (2 R. S. 444, § 1.) One of several plaintiffs cannot sue as a poor person. The poverty of all must be shown, and the leave must be given to all. Brooklyn Special Term, Feb., 1857. PIERPONT POTTER, for petitioner. BIRDSEYE, Justice. The complaint in this action was filed. for the purpose of redeeming mortgaged premises from the lien of the mortgage. The action was brought to trial, and the complaint was dismissed upon the merits; and judgment has been duly perfected in favor of the defendants. Mrs. Ostrander, who is one of twenty-three plaintiffs, now presents a petition, praying that she be admitted to appeal from that judgment to the general term, in forma pauperis, and that this court will assign her an attorney and counsellor to prosecute the appeal. She states that she is not worth twenty dol Ostrander and others agt. Harper and others. lars, excepting her wearing apparel and her interest in the subject matter of this action; that her interest in this action is equal to that of all the other plaintiffs combined; that the plaintiffs are all poor and irresponsible; and that she, as well as the other plaintiffs, are unable to give the security required by law on the appeal. There are two conclusive objections to the granting of this petition-not to mention the want of notice to defendants of the motion, or the delay in making the application. Notice in such a case was required under the former practice. (Isnard agt. Cazeaux, 1 Paige, 40; Thomas agt. Wilson, 6 Hill, 257,) and certainly not less requisite under the Code. (§ 414.) The obtaining of an order which may deprive the defendants of costs in case they succeed in the suit, is clearly a proceeding, to notice of which they are entitled, and which they have a right to oppose. And the delay in asking the leave till after judgment, which shows that the plaintiff has no cause of action, is good ground for refusing it. In Florence agt. Bulkley, (1 Duer, 705,) the leave was denied on account of delay in applying for it till after the cause had been referred and noticed for trial. Here it has been tried, and judgment rendered in favor of the defendants. But the main objections to granting the leave desired are, 1. That the statute authorizing prosecutions in forma pauperis does not extend to appeals under the Code. It was held not to extend to writs of error, (Moore agt. Cooley, 2 Hill, 412; M'Donald agt. Bank for Savings in New-York, 2 Howard's Sp. T. R. 35,) nor to appeals in chancery. (Bolton agt. Gardner, 3 Paige, 273, 280.) I can see no reason why the rule is not the same under the Code. The present appeal is a substitute for the old writ of error, (Code, § 323,) and is no more than that such a cause of action as the statute respecting suits by poor persons allows to be prosecuted without expense to them. (2 R. S. 444, § 1.) 2. It is not sufficient for one of several co-plaintiffs to state his own inability to sue by reason of poverty. The poverty and inability must be shown to extend, and the leave must be VOL. XIV. 2 Sheldon and others agt. Wood. granted, to all the plaintiffs. These applications are not favored, and the court will construe the statute strictly against the applicant. (2 Hill, 412; 1 Paige, 40.) It would be in the last degree oppressive, to allow solvent and responsible plaintiffs to join a pauper with themselves in the action, and under his protection to prosecute a doubtful claim, harassing the defendant with litigation, and subjecting him to costs, from which they shall escape, if defeated; but ready to come in and share the fruits of the suit, if it can be made to yield any. The prayer of the petition is denied. SUPERIOR COURT. HENRY SHELDON and others agt. FERNANDO WOOD. Where a case, upon a report of referees, was made before the decision in 3 Ker. nan, 341, which did not conform to that decision, held, that it might be made to conform to that rule after the determination of the general term on appeal. This court hold, that they have the power, under § 174 of the Code, to allow exceptions to the report of referees, &c., to be filed nunc pro tunc, after the ten days fixed by the court. New-York Special Term, March, 1857. ant. On a trial before referees, the report was against the defendThe referees made a special finding of facts, and of their conclusions of law. Thereupon, by agreement of the attorneys, a case was made, setting forth in detail all the evidence before the referees, with a stipulation that either party might turn the same into a bill of exceptions. The defendant appealed to the general term, and when the case came on to be argued there, it was objected that there were no exceptions to the finding. JOHN W. EDMONDS, for defendant, On an affidavit setting forth these facts, and that the case was made before the decision of the court of appeals in 3 Ker Sheldon and others agt. Wood. nan, 341, was known to the profession, now moved for leave to make a case .conformable to the ruling of the court of appeals, and for leave now to file exceptions to the finding. WM. CURTIS NOYES, for plaintiffs, Read an affidavit, that judgment on the report of the referees was entered 8th March, 1856, and notice thereof served on defendant on 13th March, 1856. HOFFMAN, Justice, said it was not necessary now to make the case to conform to that decision; that could be done as well after the determination of the general term on the appeal, if it should then appear that the case as argued there, was not in conformity to that rule. As to the leave to file exceptions, he said he had had occasion already to rule, under § 174 of the Code, that the court have the power to allow them to be filed nunc pro tunc. Under 405 of the Code, the time to take any proceeding may be enlarged by a judge at chambers. But under § 174 the court may allow any act to be done after the time limited by the act, and may, at any time within a year after notice thereof, relieve a party from any proceeding taken against him through mistake, inadvertence, surprise, or excusable neglect, and supply any omission in any pleading, &c. He had held, after consultation with the other judges, that this provision allowed exceptions to be filed after the ten days fixed by the court. Motion granted, and the following order entered : [Henry Sheldon and others agt. Fernando Wood.] On filing affidavit and order to show cause, and on hearing Mr. Edmonds for defendant and Mr. Noyes for plaintiffs, ordered-That the defendant have leave to file exceptions to the finding of the referees in this action now, as of the 13th day of March, 1856; the same to be served within forty-eight hours on the attorney for the plaintiffs, and printed for use on the argument. |