Lovell agt. Clarke. jurisdiction. There may be cases where the statute provides for an appeal, or some other mode of reviewing proceedings: but it is undeniable, that in most cases a certiorari alone will reach them. Hence we must conclude that the authors of the Code intended to include cases of this description; otherwise the section would not operate upon the great majority of cases brought to this court for review. The proceedings below must, therefore, be affirmed with costs SUPREME COURT. LOVELL agt. CLARKE. An application by petition, may be so framed as to embrace a discovery under the Code, and the production of papers, under the rules. A defendant is entitled to an inspection and copy of an assignment of plaintiff's bond, declared on and made under an order of court, and also to a copy of the order to enable him to prepare for trial. Dutchess Special Term, October 1852. The action is founded upon a bond which the complaint alleges to have been assigned to the plaintiff by "The New York Life Insurance Trust Company," by virtue of an order of the Supreme Court made on the second day of November 1850. The defendant now applies, by petition, for a discovery and production of the assignment and order to enable him to prepare for trial. H. HOGEBOOM, for Defendant. BARCULO, Justice.-The application, although in the form of a petition, and conforming substantially to the rules, in fact seeks the discovery given by the Code. But I see no objection to the practice of so framing the application as to embrace both, which seems to have been done in the present case. As to the assignment, there can be no doubt of the defendant's right to an inspection and copy. The suggestion made by plaint Miller agt. Gunn. iff's counsel that he may rely on an assigment by mere delivery, is of but little force, in the absence of any affidavit; and especially when the penalty for not producing it is that the court "may exclude the papers from being given in evidence." But it is contended that the plaintiff can not be required to discover the order, "because it is a record of the court and open to all." There would be more force in this argument, if all the orders were entered in one clerk's office; but as the orders are scattered over the whole state, I think it quite as reasonable to require the plaintiff to exhibit his copy, as to send the defendant's attorney to the various clerks' offices in search of it. The plaintiff must, therefore, within three days after service of a copy of the order, give to the defendant an inspection and copy, or permission to take a copy of the order and assignment. SUPREME COURT. MILLER agt. GUNN. Where in an action for slander the plaintiff obtained verdict and judgment, from which the defendant appealed to the general term; and pending the appeal the defendant died; On a motion to continue the action in the name of the personal representatives of the deceased defendant (Code, § 121), Held, that although it was not necesssary in respect to the pending appeal; yet that the personal representatives should be allowed to be made parties in reference to a further appeal if they desired. Albany Special Term. Motion that action be continued in the name of the personal representatives of the defendant. The action was for slander. The plaintiffs in April 1851, obtained a verdict and perfected judgment thereon. From this judgment the defendant appealed to the general term, after perfecting his appeal, and before the cause had been argued upon the appeal the defendant died. His personal representatives applied for an order directing the action to be continued in their name. E. P. CowLES, for Plaintiff. K. MILLER, for representatives of Defendant. Miller agt. Gunn. HARRIS, Justice. The objection that there was no necessity for this motion, so far as the pending appeal was concerned, was well founded. The case is analagous to the writ of error at common law, where, if error had not been assigned, the writ abated by the death of the plaintiff in error; but if the death happened after error assigned, the cause proceeded. In such case, the court of review directed judgment to be entered upon its decision, as of a day anterior to the death of the party. So in this very case, since this motion was made, the appeal has been argued at a general term of this court, and the judgment affirmed. The court directed the judgment upon such affirmance to be entered, as of a day previous to the death of the defendant. But it may be that the personal representatives may wish to appeal from the decision at the general term. How can they do this, without first becoming parties to the action? The 325th section of the Code declares that any party aggrieved may appeal, &c. I will not say that this provision is not broad enough to authorize an appeal by the personal representatives without their first being made parties to the suit. But it is certainly more orderly for such parties, before appealing, to have an order, under the 121st section, allowing the action to be continued in their name. I think the application is proper, and the motion should be granted. Pomeroy agt. Hulin and Beebe. SUPREME COURT POMEROY agt. HULIN AND BEEbe. Under the 385th section of the Code, a plaintiff has, in all cases of an offer of judgment by the defendant, ten days to elect, whether he will accept it or proceed to trial. If a defendant desires to avail himself of the provisions of this section he must make his offer at such time that the plaintiff may also have the full benefit of the section; and if it is served so late that the cause is reached and triea before the expiration of the ten days, the rights of the parties are in all respects as if no offer had been made. Onondaga General Term, October 1852-W. F. ALLEN, HUBBARD and PRATT, Justices. This was an appeal from an order at special term affirming the adjustment of the costs by the clerk of Cortland county. The action was upon a promissory note, and was defended by the defendants separately, and noticed for trial by all the parties at the circuit in Cortland, commencing on Monday the 26th day of July and was placed on the calendar of causes for trial. On Thursday before the circuit, the defendants' attorneys, by letter, requested the plaintiff's attorney to set the cause down for trial for a particular day in the latter part of the first week of the circuit, which was declined for the reason that the plaintiff had subpoenaed witnesses from Onondaga county, and among others a practicing physician, and it would not be proper to detain them after the cause should be reached. On Saturday the 24th of July, about 5 P. M., the defendants served upon the plaintiff's attorney an offer of judgment for the amount of the note and interest. On the 27th of July, the second day of the circuit, an inquest was taken and the clerk on the adjustment of the costs allowed the plaintiff the costs of the trial, and all the costs of the circuit. The plaintiff and his witnesses lived in Onondaga county, the former residing eighteen miles, and one of the latter twenty-nine miles from the residence of the plaintiff's attorney and the place of trial, and neither could have been reached by mail in time to prevent their attendance at the circuit on Monday. Pomeroy agt. Hulin and Beebe. R. RAYNER, for Defendants L. R. MAYNARD, for Plaintiff. By the Court, W. F. ALLEN, Justice. We are of opinion that the clerk properly allowed to the plaintiff the expenses of the trial; that by the true construction of the 385th section of the Code of Procedure, the plaintiff has, in all cases of an offer of judgment by the defendant, ten days within which to elect whether he will accept the offer and take judgment in pursuance of it, or proceed to trial with the risk of being compelled to pay costs to the adverse party if he fail to obtain a more favorable judgment. Upon any other construction a party may be compelled to determine upon the instant, while a jury is being empannelled or while the trial of a cause is progressing, in a case requiring deliberation and the exercise of a sound judgment upon a cunning and doubtful offer, or an attorney may be compelled to act in the absence of his client, or a party may, as in this case, be met with an offer after he is compelled to attend court with his counsel and witnesses at great expense, for which he can receive no compensation. The provision was designed for cases in which some amount was confessedly due the plaintiff, but the precise amount was in dispute, and was not intended for cases Jike this, where the whole amount or nothing was due; it being supposed that in such cases the party would suffer judgment for want of an answer or litigate it to the end (Report of Commissioners, page 238). Hence the chapter is entitled "Offers to compromise," &c. Although as reported and originally adopted (Code of 1848, § 338), the provision was only applicable to actions arising on contract, it has been since extended by amendment to all actions, to which probably there is no good objection, if the party who is to act upon the offer is not deprived contrary to the evident intent of the section, of the time therein limited for his action. But if a party, or his counsel in his absence, can be compelled to act instanter upon an offer of judgment in a case where there may be a doubt whether it is better to accept the compromise than to contend for what may be supposed to be the strict right of the party, or where the judgment offered and which must in any event be entered is complicated |