Wheeler a. Wilcox. equity. It was doubtless the object of the codifiers, in the provisions of section 254 of the Code, to give to the court the trial of this class of equity cases. It would be a better rule in administering the law of equity, to have the report of a referee upon such collateral facts as exist in this case, than to determine them upon affidavits. This will afford each party an opportunity to be fairly heard in relation to them. The report of the referee upon his findings of facts, and conclusions of law upon the issues in the pleadings in this case, are affirmed; and I direct that an order be entered, referring it to the same referee to find and report upon such collateral facts as are set forth in the affidavits used on this motion; and especially, to take proof of, and report, a particular description of the plaintiff's real estate, so that the final decree, if proper, may be made a specific lien thereon. A further order may also be entered, requiring the next friend of the plaintiff to show cause, upon due notice, at the final hearing, why he should not pay the defendant's costs. WHEELER a. WILCOX. Supreme Court, First District; At Chambers, June, 1857. BAIL.-DISQUALIFICATIONS OF SURETY. The common-law disqualifications of persons proposed for bail, remain unaffected by the Code. Justification of bail. The facts appear in the opinion. CLERKE, J.-The Code (§ 194) prescribes expressly the qualifications of bail, without referring to what have been always held by the common law as disqualifications of persons who are proposed for bail. Those disqualifications have been so long and so firmly established, that it cannot be supposed that the legislature intended, by the mere omission in the Code to enumerate disqualifications, to supersede the old practice. On this subject they have left the law as it always had been, and as Hewlett a. Brown. the courts had after long experience considered expedient. Among the persons disqualified were practising attorneys and their clerks; and at the present day in England, by rule of court, this disqualification is so marked, that putting them in as bail might be treated as a nullity. On this ground, therefore, I cannot allow the bail offered in the present case; although Mr. Woodhouse states, in an affidavit subsequently handed to me, that he is not in active practice. Still, he does practice; he has an office, and has his sign up as an attorney and counsellor. If he has his name stricken off of the roll, and ceases altogether to practice, he will be of course qualified. Neither do I think that Miss Woodhouse is, beyond all reasonable doubt, worth the necessary amount. Other bail must be procured. HEWLETT a. BROWN. New York Superior Court; Special Term, July, 1858. EXAMINATION OF PARTY.-WITNESS FEES.-NOTICE OF MOTION. Where a party to an action is made a witness by his adversary, he is as much entitled to witness-fees, as a condition to creating his duty to attend and be sworn, as any third person. A six days' notice to a party to appear and be examined, and notifying him that if he fail to do so, he will be liable as for contempt, and to have his answer stricken out, not sufficient to found an order upon, on his default to appear, striking out his answer, or punishing him for contempt. Motion to vacate an order striking out an answer. On the 9th of June the plaintiff caused a notice to be served on the defendant, requiring him to appear on the 15th, at 10 o'clock A. M., before J. S. Bosworth, a justice of this court, &c., and "be examined as a witness, pursuant to the provisions of the Code of Procedure for such purpose." The notice further stated, "and if you refuse or neglect to attend, you will be liable to be punished as for a contempt of court, and your answer stricken out; and we shall apply for such relief against you, Hewlett a. Brown. and for such further and other relief, as is provided for by said Code." The defendant not attending on the 15th, another judge of the court, on an affidavit of that fact, and of service of the notice, made an order that "the answer of the defendant herein be stricken out." The defendant now moved to vacate that order. This motion was founded on the papers before named, and on an affidavit that he was neither summoned nor subpoenaed to attend, and that his fees for attending as a witness were not tendered, and that he told the person serving the notice he should not attend unless his fees, as a witness, were paid. BOSWORTH, J.-No witness is obliged to attend court, or before an officer out of court, to be examined, unless paid the usual fees allowed by law. (2 Rev. Stats., 401, §§ 52, 54.) Sections 390, 391, 392, and 394 of the Code enable either party to make the other a witness, and prescribe the means for procuring and compelling this attendance. I think a party, when made a witness by his adversary, is as much entitled to fees, as a condition to creating a duty to attend and be sworn, as any third person. Under the notice served on the defendant he could not be punished for a contempt for not attending, unless first brought up on an attachment, or served with an order to show cause,-to the end that he might show, if he could, a sufficient excuse for not attending, such as sickness, or other inability. The notice does not, in terms, state that a motion would be made on the 15th to strike out the answer, or punish for a contempt. When notice of a motion is necessary, it must be served eight days before the time appointed for the hearing. (Code, § 402.) The notice in question was served but six days. The fact which created the right to have the answer stricken. out, if any such fact exists, did not exist when the notice was served, but only occurred on the 15th, the day the order was made. Since its alleged occurrence, the defendant has had no opportunity to be heard in respect to it, except upon this motion. I think the order was irregular, because the defendant was not summoned to attend, and because his fees as a witness were Hasbrouck a. Ehrich. not paid. Whether the answer could have been stricken out, on a motion made for that purpose, on due notice, if witness's fees had been paid, although no summons was served, is a question not before me. The proceeding to punish for a contempt, or to strike out an answer, must be based on affidavits to be served with a notice of motion for an attachment, or to strike out the answer, according as the one relief or the other is sought. The notice actually served did not advise the defendant that a motion would be made on the 15th to strike out his answer; and if it did, it was too short to enable the plaintiff to then make such a motion. If I supposed the judge who made the order passed upon these questions, I should deem it my duty to deny the present motion, and leave the defendant to his remedy by an appeal. But I think I may consider that the length of the service of the notice was overlooked, as a notice of trial and inquest often is; although in theory, and generally in practice, a party is required to produce it, and prove due service before an inquest will be permitted to be taken. The motion is granted, but without costs of it to either party. No point was made on this hearing, that the defendant's only remedy was an appeal from the order he now seeks to vacate. HASBROUCK a. EHRICH. Supreme Court, Second District; Special Term, July, 1858. ORDER TO SHOW CAUSE.-COURT.-STAY OF PROCEEDINGS. An order to show cause, returnable at special term, must be granted at special term; and an order to show cause, returnable before a judge out of court, .must be made by the judge before whom it is returnable. In an action which was in readiness for trial at the next circuit, in the county of Orange, to commence on the 14th of June, the defendant was arrested upon an order made the 29th of May, and on the 5th of June was discharged upon bail. Upon Saturday, the 12th of June, the defendant obtained from a justice of the first district an order requiring the plaintiff to show cause at a special term in Kings county, on the 1st Monday in July, why the order of arrest should not Hasbrouck a. Ehrich, be vacated, and meanwhile staying his proceedings. At the circuit, the cause being called, and the defendant objecting that the plaintiff's proceedings were stayed, the court vacated the stay by an order entered in the minutes in the presence of the attorneys, and the cause was, with consent of the attorney who was acting for the defendant, set down for trial, and actually tried, and the plaintiff had a verdict. Held, that it appearing that defendant's object in a stay of proceedings was delay, the verdict should not be set aside. 1. No judge holding circuit is bound to regard such an order made by another judge in another part of the State, interfering with the business of the circuit, especially when served after the commencement of the circuit. 2. That such an order is vacated at once; and in presence of the parties, is sufficient notice to them. 3. That the stay in this case was irregular, in that it was not made by the judge before whom it was returnable. 4. That by proceeding to trial, the defendant had waived the objection. Order to show cause why an order of arrest should not be vacated, and order to show cause why a verdict should not be set aside. The facts appear in the opinion. EMOTT, J.-This was an action for the recovery of the value of a large amount of goods which were stolen from the plaintiff's store by burglars, and received by the defendant. It was commenced in November, 1857, and was postponed at the next Orange circuit in January, 1858, on the application of the defendant, for the absence of witnesses. On the 29th day of May last, the plaintiff obtained an order of arrest from Judge Brown, which was placed in the hands of the sheriff of New York, and was executed no doubt very soon afterwards; but when precisely, is not stated by the defendant, and does not appear. The defendant alleges that this arrest was made in bad faith, and with a design to prevent a proper preparation by him for the trial of the cause at the ensuing June circuit. I see no evidence of this in the papers. On the contrary, considering the facts disclosed as to the defendant's conduct, his situation at the time this order was obtained, and the manner in which his defence has been conducted, this step of the plaintiff's attorney was very proper at that time, as it would have been at any previous stage of the cause. Whatever may have been the design of the plaintiff, however, this arrest did not in fact have any effect upon the preparation of the cause, and affords no justification |