Smith v. Durkee. to exercise the authority for enforcing a discovery "in such cases as shall be deemed proper." § 21. I am satisfied that if the question contemplated by this application is ever reached in the course of the litigation, the only practicable remedy for the defendant will be found in a resort to a court of equity. There the mortgagee may be called to an account, and the sums received or lots appropriated to his own use or for his benefit, valued; and the whole subject deliberately examined and settled. The circuits ought not to be thus encumbered, and the ordinary business interrupted. We should therefore be justified in refusing the application for the above considerations. It appears, however, from the affidavit of the agent (Mr. Seymour) confirmed by that of the Messrs. Bowne, that, in 1835, and before this litigation commenced, Mr. Seymour rendered an authentic account of moneys received on sales, and outstanding on contract, at the request, and for the executors of the elder Bowne. This statement may, possibly, aid the defendant, if not answer the purpose for which the discovery is sought. Beyond this I cannot extend it. The correspondence sought for is sufficiently denied in the affidavit of the Messrs. Bowne. Where an attorney has not an agent at the places required by the rules for the receipt of papers, and a paper is put into the post-office directed to him, the day the paper is mailed, and not when it is received, is the day of service. ON a motion to set aside a default for not pleading, as irregularly entered, it was held, that putting a plea into the post-office, directed to the plaintiff's attorney at his place of residence, when the attorney has not an agent at either of the places required by the rules of the court, was equivalent to the service of a paper upon an agent; and the service was deemed to have been made on the day the plea was mailed, and not when, according to the course of the mail, the plea was received by the plaintiff's attorney. In the matter of Carlton-street. In the matter of CARLTON-STREET, in the city of Brooklyn. In street cases, it is a matter of course to grant a certiorari, after confirmation oft report of the commissioners of estimate and assessment, where the object of t party is to remove the proceedings into the court for the correction of errors. J. L. Wendell moved for the allowance of a certiorari, to be directed to this court, acting as commissioners on the motion to confirm the report of the commissioners of estimate and assessment in the above entitled matter, as preparatory to the suing out of a writ of error, to remove the proceedings into the court for the correction of errors. M. T. Reynolds was proceeding to oppose the motion, on the ground, that there were no errors to be corrected, but was stopped by Mr. Justice CowEN, who observed, that on a motion of this kind, the decision of the court on the confirmation of the report would not be reviewed; that the certiorari being asked for the purpose avowed, it was a matter of course to grant it, the proceeding being in substance the same as drawing up a case in a subordinate court for the purpose of enabling a party to prosecute a writ of error, which this court would require to be done. Motion granted. In the matter of ART-STREET, in the city of New-York. In street cases, where money is awarded to the estate of a person deceased, it is not necessary on an application to the court by the persons entitled to such estate for an order that the money be paid over, to show a publication of notice of such application in a public newspaper; it is otherwise, however, where the money is awarded to owners unknown. In the latter case, also, security for refunding the money on the happening of certain events, will be required; but not in the former. In the improving of this street, a piece of ground was taken, which the commissioners of estimate and assessment in their re In the matter of Art-street. port, stated to belong to the estate of John Vark deceased, and that in consequence of the taking of such ground, they had allowed as damage, the sum of $8,600 to the estate of John Vark deceased; which sum has since been paid into court. A petition is now presented by the children of John Vark deceased, stating that they are the heirs and devisees of their father; which petition is verified by their affidavits and by a certified copy of the last will and testament of John Vark, and is accompanied by a map on which is delineated the premises taken; and application is now made for a rule directing the clerk to pay over the moneys thus deposited to the petitioners or their attorney. Notice of the application was given to the counsel of the corporation, but was not published in any of the newspapers of the city. Mr. Justice COWEN granted the application, observing that this case differed from the cases where moneys are awarded to owners unknown, in which in addition to what had been done by the petitioners here, the court required the publication in a newspaper of a notice of the intended application. In those cases also, the court had latterly required security to be given by the petitioners for the return of the money when required so to do; but in this case neither the publication of a notice or security were necessary. The papers would be referred to the clerk, and if found to be right, a rule for paying over the moneys would be entered. AN INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. A ABSCONDING, CONCEALED AND ACTIONS IN GENERAL. AGENCY, 1. In a proceeding by attachment against necessary for the purpose of showing See PRINCIPAL AND AGENT. ALIENS. 1833, seized of real estate, the title 230 3. It is no objection to the remedy by tiffs could not claim any thing under id 3. Whatever rights the plaintiffs had husband, a natural born citizen, was act, where the lands in which dower In respect to the effect of the natural- tion, but not out of lands whereof her AMENDMENTS. The Chancellor, in commenting become absolute. 1. In an action of assumpsit for money 2. Senator VERPLANCK concurs with the The only costs allowed the defend- id It was held no objection to the mo- |