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Benedict v. Lord

2 How. Pr. 82 Court February Term, 1846. English

Delivered by Bronson, Chief Justice.

Contents

Majority

p. 82
Joseph Benedict agt. Amasa Lord.

Headnote

Service of affidavit or case, with notice of motion to set aside report of referees, is ijpt a stay of proceedings per se, until the case is settled; but an order must be obtained.
February Term, 1846.
Motion by defendant to set aside judgment for irregularity.
This was a case where the defendant’s attorneys had served plaintiff’s attorney with copy case and papers for a motion to set aside the report of referees, without any order to stay proceedings. Plaintiff’s attorney gave defendant’s attorneys written notice as follows: (title of the cause) Gent. Judgment has been entered upon the report of referees. I do not regard your papers as regular, and that no motion can be made upon them.
0. P. Kirkland, defendant's counsel.
Sherwood & Wye, defendant’s attorneys.
M. T. Eeynolds, plaintiff’s counsel.
0. M. Benedict, plaintiff’s attorney.

Denied the motion, with costs, without prejudice, on the ground that service of affidavit or case, with notice of motion to set aside report of referees, is not a stay of proceedings per se until the case is settled; but an order must be obtained.