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Lawrence, New-York Fire Ins. Co. v.. 511 Laytin, Champlin v.................. 189 Lee, Cook v...... 158 Lent, Eagle Fire Ins. Co. v.......... ... 635 Leslie, Burrall v....... 445 Lewis, Wendell v..............

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Mohawk & H. R. R. Co. v. Artcher,... 83
Mohawk Br. Co. v. Utica & S. R. R. Co. 554
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CASES IN CHANCERY.

NOTT US. HILL and others.

It is improper to detail the proceedings at length in an affidavit of regularity. The affidavit should merely state that the bill had been taken as confessed upon a personal service of the subpoena, or on a voluntary appearance of the defendant, or upon a proceeding against him as an absentee, as the case may be, and that all the proceedings to take the bill as confessed are regular; except in special cases, where the solicitor wishes to submit the question of regularity to the court.

1836.

THIS was a bill to foreclose a mortgage, and the complainant's solicitor had set out, in his affidavit of regularity, January 26. all the proceedings at length, to take the bill as confessed.

J. N. Cushman, for the complainant.

THE CHANCELLOR. It is improper, in an affidavit of regularity, to set out all the proceedings at length; and no allowance for such an affidavit should be made on taxation, beyond two folios. The affidavit should simply state that the bill had been taken as confessed upon a personal service of the subpoena on all the defendants, or upon a personal service upon some and a voluntary appearance of others, or upon a proceeding against some of the defendants as absentees and a personal service of the subpoena upon others, as the case may be, and that the proceedings to take the bill as confessed have all been regular. Nothing further than this should be stated in the affidavit, unless in a special case, where the solicitor is in doubt as to the regularity of the proceeding, and wishes to submit the question to the decision of the court; in which case, the special circumstances upon which the doubt arises should be statVOL. VI.

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ed, and the general clause as to regularity should be varied so as to state that the proceedings were regular in all other respects, and that all the proceedings were regular, if the court should be of opinion that the special circumstances stated did not render them irregular in that respect.

VAN VALKENBURGH vs. FULLER & PETRIE.

Where the decree of a vice chancellor for the payment of money is stayed by an appeal to the chancellor, the respondent upon the affirmance of the decree is entitled to interest thereon, as damages for the delay caused by such appeal.

THIS was an appeal from a decree of a vice chancellor, directing the payment of a sum of money by the appellants to the respondents; and upon the hearing of the appeal before the chancellor, the decree of the vice chancellor was affirmed, with costs. The respondents' counsel thereupon asked for damages for the injury he had sustained by reason of the appeal.

N. S. Benton & D. Cady, for the appellants.

A. Loomis & M. T. Reynolds, for the respondent.

The CHANCELLOR decided, that upon an appeal from a decree or order of the vice chancellor directing the payment of money, if security had been given by the appellant so as to stay the proceedings of the respondent upon such decree or order pending the appeal, the respondent, upon the affirmance of the decision of the vice chancellor, was entitled to interest upon the decree or order of the court below during the time the proceedings were thus stayed, as damages for the delay and vexation caused by such appeal.

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