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V. Lex loci not applicable to remedy on.

6. Endorsee against the maker of a promissory note given in Connecticut,
where by the lex loci it was not negotiable; held, that this was no objec-
tion to an action here in the name of the endorsee. The lex loci must be
pleaded subject to the mode of redress by our law.

Lodge v. Phelps, 441. See vol. 1, p. 139, 140, n. (a.)

CO-PARCENERS.

Co-parceners may demise severally in ejectment. A mere servant or bailiff in
the possession of lands is not entitled to a notice to quit.

Jackson, ex dem. Fitzroy v. Sample, 449. See vol. 1, p. 231.

CORPORATION.

Of their right to take the lands of Citizens for Corporate
purposes.

Where a special power is granted by statute affecting the property of indi-
viduals, it must be strictly pursued; and it must appear on the face of the
proceedings, that the directions of the statute have been strictly observed.
Where an inquisition taken under the second section of the act, amending
the act to establish the Columbia Turnpike Company, passed March 28,
1700, (sess. 23,) omitted to state a disagreement between the owner of the
lands mentioned, and the company, and that the judge who appointed the
commissioners was not interested, &c.. it was held defective and quashed.
Gilbert v. The Columbia Turnpike Co., 107, 541.

COSTS.

I. Plaintiffs.

1. In debt.

a. On bond conditioned for performance of Covenants.

b. Recovery of £100 and interest as damages.

2. In Trespass.

a. Assault and Battery-Certificate.

b. Quare dom. fregit.

3. In actions by Executors.

II. Defendants.

1. Against Attorney.

Against Executor Plaintiff.

III. In special cases.

IV. On new trial.

V. Certificate.

VOL. III.

92

VI. Security for.

VII. When they are a debt under the Insolvent Act.
VIII. Set-off-Judgment against.

I. Plaintiffs.

1. In debt.

a. On bond conditioned for performance of Covenants.

1. On a bond in the penalty of $500, conditioned to perform covenants; on
the trial, the plaintiff recovered 6 cents only, his judgment must still be for
the penalty, and he is entitled to full costs.

Hodges v. Shufelt, 521. See vol. 2, p. 406, 407, n. (a.)

b. Recovery of £100 and interest, as damages.

2. On a recovery of £100 of debt and interest by way of damages; held,
that the plaintiff is entitled to full costs. Clapp v. Reynolds, 523.

2. In Trespass.

a. Assault and Battery-Certificate.

3. In assault and battery, a certificate to entitle the plaintiff to costs may be
given by the judge after the trial.

Vielle v. Towers, 444. See vol. 1, p. 221.

b. Quare dom. fregit.

4. In trespass qu. dom. fregit, and for an assault and battery, and impreg-
nating plaintiff's daughter, per quod, &c.; the plaintiff recovered $10.
Motion for costs by the defendant, denied. The plaintiff is entitled to
Walrod v. Spalbergh, 438. See vol. 1, 162.

costs.

3. In actions by Executors.

5. Executors recovering under £10 in this court are not entitled to costs,
nor are they bound to pay costs.

Executors of Mahany v. Fuller, 489. See vol. 2, p. 209.

II. Defendants.

1. Against Attorney.

6. Application for costs against plaintiffs' attorney denied; one of the lessors
resided in this state at the commencement of the suit, and afterwards died.
Defendant ought to have applied for security for costs.

Jackson, ex dem. Lewis v. Powell, 482. See vol. 2, p. 67.

2. Against Executor Plaintiff.

See Supra, I. 3.

III. In special cases.

7. On a removal by habeas corpus, the plaintiff declared before the defendant
appeared and obtained a procedendo for not appearing, he can have no
costs for the declaration in this court, it being premature.

Murray v. Smith, 431. See vol. 1, p. 105.

IV. On new trial.

See Dole v. Rensselaer, 458, vol. 1, p. 279.

V. Certificate.

8. In an action of trespass, assault and battery, where the damages found by
the jury are under 5 dollars, the judge, notwithstanding the verdict or
pleadings, may, in his discretion, refuse a certificate to entitle the plaintiff
to full costs, if he is satisfied, on the evidence, that the assault and bat-
tery were not sufficiently proved. Hunt v. Leon, 140. See 513, 557.
Authorities, 140, n. (a.)

See Supra, I. 2, a.

VI. Security for.

9. Security for costs denied, although it appeared that one of the plaintiffs
only resided in this state, and he was confined in jail and insolvent, and
had assigned the cause of action. Pfister & Macomb v. Gillespie, 470.

VII. When they are a debt under the Insolvent Act.

10. Plaintiff, an insolvent, being discharged pending the suit, the accruing
costs included in a subsequent judgment of nonsuit, are recoverable from
him on the principle decided in the case of Frost v. Carter.

See Frost v. Carter, 449, and Light v. Strang, 543.

Whitaker v. Cone, 501.

VIII. Set-off of Judgment against.

11. On a recovery under £20, the defendant's costs were allowed to be set
off against the sum recovered. Spencer v. White, 430. See vol. 1, p. 102.

COSTS IN THE COURT OF ERRORS.

No costs or damages given in this court in case of a reversal against the party
coming to support the judgment or decree of the court below.

Le Guen v. Gouverneur & Kemball, 605. See vol. 1, p. 436.

COUNSELLOR AT LAW.

Charge of Divulging Secrets of Client.

To charge a counsellor at law with offering himself as a witness, in order to
divulge the secrets of his client, is libellous; and it is not a sufficient justifi-
cation, that he disclosed matters communicated to him by his client, which
had no relation or pertinency to the cause in which he was engaged.
The secrets of his client, which the counsel is bound to keep, are the commu-
nications and instructions of the client, relative to the management or de-
fence of his cause. Riggs v. Denniston, 198, 549.

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II. Common Pleas of Mandamus to.
III. General Sessions of the Peace.

1. Of the right to grant new trials.

2. Of Mandamus to.

3. Of their power to discharge Juries.

IV. Oyer and Terminer.

I. Justices.

See JUSTICES' COURTS.

II. Common Pleas of Mandamus to.

1. The Common Pleas is an inferior court, and a mandamus will lie to that
court to restore an attorney who was improperly removed.

People on pro. of Gephard v. Common Pleas of Delaware, 462.

See vol. 1, p. 181, 184, n. (a.)

III. General Sessions of the Peace.

1. Of the right to grant new trials.

2. The sessions have no power to grant a new trial in a case of felony.
Mandamus granted. The People v. Justices of Chenango, 462.
See vol. 1, p. 179.

2. Of Mandamus to.

See Supra, II. 1.

3. Of their power to discharge Juries.

3. On an indictment for a misdemeanor as an inspector of an election, the

jury were detained a long time, (— hours,) and several times retired
and returned to the bar, and could not agree. This appearing to be sincere
on their part, the court considered it necessary to discharge them, and did
so without the consent of the defendaut. Held, it was proper and in the
discretion of the court, in the case of a misdemeanor, as in civil cases, and
that the defendant was again liable to be tried.

People v. Denton, 505. See vol. 2, p. 275.

4. The court may dismiss a jury in a case of misdemeanor, where it appears
after a full experiment that they cannot agree.

The People v. Olcott, 512. See vol. 2, p. 301.

IV. Of Oyer and Terminer-Practice.

4. After a conviction of perjury at the Dutchess oyer and terminer, and re-
ported by the presiding judge to be against evidence, a new trial was di-
rected, and the judge at the next oyer and terminer, to communicate the
opinion as the award of a new trial, must there be made. The proceed-
ings brought up by certiorari, were not received, and ordered to be returned.
If filed, they could not be returned, but the case would have to be tried at
the Circuit by nisi prius. In a capital case, that probably could not be
done. Benson added, such certiorari ought only to be allowed in open
The People v. Townsend, 431. See vol. 1, p. 101.

court.

5. Defendant was convicted of a nuisance in the oyer and terminer in West-
chester. It was brought up by certiorari, and an application made for a
writ to the sheriff to prostrate the nuisance. Refused, because it appeared
the record was not made up.

The People v. Valentine, 460. See vol. 1, p. 336.

COVENANT.

I. Action of.

1. Where it lies.

2. By whom.

3. Against whom.

II. Construction of.

I. Action of.

1. Where it lies.

1. Executors are liable upon the express covenant of their testator, so long
as a privity of contract exists, though the breach happen while a third
person is in possession of premises to which the covenant relates.

Ex'rs of Van Rensselaer v. Ex'rs of Platner, 475. See vol. 2, p. 17.

2. By whom.

2. An executor cannot recover rent acccrued after the testator's death upon
a lease in fee. Ex'rs of Van Rensselaer v. Ex'rs of Platner, 475.

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