Bailey v. Caldwell
New York Supreme Court
moved to set aside the inquest taken by default in this cause, and all subsequent proceedings, and that the money levied on the execution and received from the defendant, should be refunded, with costs.
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moved to set aside the inquest taken by default in this cause, and all subsequent proceedings, and that the money levied on the execution and received from the defendant, should be refunded, with costs. The cause was noticed for trial at the last April sittings in New-York, and an inquest was taken by default in the cause, out of its order on the calendar, of which the defendant’s attorney had no notice, until served " , ' with a copy of the costs, on the 16th of May, when he offered to pay the costs, if the plaintiff’s attorney would waive the default. On the 17th of May he obtained a…
1Per curiam
The distinction stated between a judge’s order to stay proceedings, and a certificate of probable cause, has never been made by the judges, who have, in practice, considered them the same, and have used either form indifferently. An order, in the form in which the one was granted in this cause,(a) has always been consi*453dered as having the same effect as a certificate of probable cause, and as requiring the same practice, under the 4th rule of January term, 1799. The attorney of the plaintiff took the inquest in this cause at his peril; and as there is the usual affidavit of merits, and no…
2Cited by2 opinions
- Hempstead v. HempsteadNew York Supreme Court · 1852
- Rosevelt v. FultonNew York Supreme Court · 1826