Kirby v. Cogswell

The necessity of accompanying a certificate of probable cause, with a notice of motion, is settled by the case in the text. On a non-enumeratod motion it suspends the proceedings, during the term for which the notice is given, (4th Rule, January, 1199,) if the certificate be in general terms. If only till the 4th day of term, and there be then such a press of business, that the non-enumerated lay over, the certificate is by operation of law enlarged till the next non-enumerated day. Caines’ Prac. 35. Where a certificate is granted after the 4th day of term, it enlarges the time for *638moving in arrest of judgment to any other day. Bayard v. Malcolm, 1 Johns.’Rep. 310. If the motion be enumerated, it suspends the cause till heard, or the certificate be vacated. Jackson v. Brownell, 3 Caines’ Rep. 151. To give effect to the certificate, a copy should be served; a mere notice oí it is not enough. Cheetham v. Lewis, 2 Johns. Rep. 104. To bring a party into contempt for disobeying the certificate, the original should be shown at the time of serving the copy. Howland v. Ralph,. 3 Johns. Rep. 20. There is no difference in the practice .under an order to stay proceedings, and a certificate- of probable cause.

As to staying proceedings on making a case see also Graham’s Prac., 2d ed. 334; 2 Wend. 246; 1 Cowen, 598; Code of Procedure, secs. 401, 264, and 348; and ante, p.