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appellant shall be entered, and no motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party.
Supersedeas. Supersedeas bonds in the Circuit Courts must be taken, with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ or appeal to effect and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including “just damages for delay," and costs and interest on the appeal; but in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages; or where the property is in the custody of the marshal, under admiralty process, as in case of capture or seizure; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, — indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use or detention of the property, and the costs of the suit and “just damages for delay," and costs and interest on the appeal.
Writs of Error. In cases where final judgment is rendered more than thirty days before the first day of the next term of this court, the writ of error and citation, if taken before, must be returnable on the first day of said term, and be served before that day; but in cases where the judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the said term, and be served before that day.
ASSIGNMENT. A firm proposed to its creditors that they should accept fifty per cent on their respective claims, in full satisfaction thereof; and, if the firm could not comply with those terms, then an assignment should be made, for the benefit, first, of confidential and accommodation creditors ; second, for those creditors who should have executed a conditional release, under the above arrangement, to pay them fifty per cent on their claims; third, for other creditors. A conditional release was accordingly signed by certain creditors, Nov. 16, 1854, and, as part of the same transaction, an assignment was made, Dec. 1, 1854, as proposed. Plaintiff recovered a judgment against the firm in March, 1855, and now seeks to set aside said assignment. Held, reversing the judgment of the Supreme Court, that the assignment was valid. — Spaulding v. Strang, 37 N.Y. 135. See Low v. Graydon, 50 Barb. 414.
ASSUMPSIT, 1. When, of two claimants for the same service, the one who is not entitled is paid, the other has no claim against him, but must look to the original debtor. – Patrick v. Metcalf, 37 N.Y. 332.
2. Defendant's assessor assessed plaintiff on shares in a bank at their par value, although the bank held government bonds as part of its capital. Plaintiff did not take any measures to correct the assessment, and the tax was collected and paid to defendant. Held, that an action for money had and received would not lie, as the act of the assessors was judicial. Semble, per Bacon, J., that, upon a certiorari, the validity of the tax, as well as the jurisdiction of the assessors, might have been reviewed. — Swift v. City of Poughkeepsie, 37 N.Y. 511.
3. To recover the amount of a school district tax, illegally assessed and collected, the remedy is by action against the school district for money had and received, not against the town or assessors. — Bacon v. School District in B., 97 Mass. 421. See CONTRACT, 1; PRINCIPAL AND AGENT, 2; SLAVE, 4.
ATTACHMENT. In a suit against a third party, the Deputy United States Marshal seized goods belonging to W., who replevied the same. The court finding in favor of the marshal, he waived a return, and took judgment for the value of the goods. Held, that, as he was a trespasser, and only allowed to hold the goods to prevent a clashing of process, he discharged his levy by relinquishing it. — Weber v. Henry, 16 Mich. 399; Cohen v. Henry, ib. 405; s.c. ante, 2 Am. Law Rev. 775.
ATTORNEY. Parties, in whose name an attorney has prosecuted an action and failed therein, are liable for costs, although such action was brought without their knowledge. — Hamilton v. Wright, 37 N.Y. 502. See CONFEDERATE MONEY, 8; Test OATH, 1.
AUTREFOIS ACQUIT. When a prisoner has been acquitted under a ruling that the indictment is too defective to sustain a conviction, if in fact it was good, autrefois acquit is well