111) PR errery HERA Tie biti WU EOEDEL LETT AO OEE CU HSEYL ATRL GANSTA SDD Haut] Shel eHaTeVePaHdTaISH STEAL RPT Pio iaiesal erat Iisa TOL ate ph Men brea oa hil ALURMHEHAHtCatPEH dee bees tcataepeH HEVEDL tetash dete a sii rate tr ufone iat by apes We it hit Ht ; heli tittt teat ii | ipa Hitt THA hi HREIG MACHA HOUTTIEHEMGGSH UGG ty tstddaed caeaeea papedect ded it i ith HH Utne bean estan al tpt ldetyt nipped ests bidet Ht i IETF OLA LeeneHHCHaTT a Pead4d Tet eatitrGatati tah Pea HE PLAtD EAT ARH publ Hat Eth Thee DED i Hy Thityhetvesed net earedeye Witenes Avesta poetyta ar catedieseateeedgutgt) WU abSoLRURRASEIA ERG eatare eeu geseages Hand dn tO IWEOTDTHAPLADN Ahad atid pth tebdty rbot shea LB Hsin tag et pirieirimeririnter beter tea stit i totals ey slot talet ted gant int itil i} Hoi spebeeetddelet Helier esl ati biyphnnidinna Hse Pere at tet ibshbabehueastyvirhesar eta DAT Ae ET TT Gt hans AUGLISGLALALMUVEMRHGAC GUHA RAtTRGdMELeyQaddestsewesesepeptcedeye seiQeeyeatbebcpacs te esac iE FENeELL We TAY PRAM RECA peated aaah iy cer te Une aga LT HHH fo) ith APSHA EEL Hy ‘ he ui} irl tessa fyi tae ady a eirbetar bine Peta Hanah AHR HA HC Pree teed) bet tots at itt ype Tete td hatte en ' Hbestiideieesia seneeudtei Fay HOH HD taedagde ite teeeietat ete at TTS tpt HAA nna ty Wee bPPOHHER diy pet sede fitpibela tii PEAT AA ese eases bie UHHH CCrEEHL Phe ELE Pieper relby Het paver ng SHAH yE HAMEL saety a HA siatee Het te sparsity My Herring irielerrisl piel plenpred Shyer ptakshea aero ra ort PEELE she peek pa ad pprpbe ; Hae iets en Abe yey Bee rity i t ape eh } ssi itshpertste tans Bich eda nn teh y Se eE init behind aiep eset bein) ihe {iieatet tt tih shitty tht iit A EIN Hebi bhatt Ma eege Ares they inhib as ae at + nei Het hh fist sida tng ue Hebi ih SCOTEEDRS CH RUEEUE En pL erp ct GE Ge Est sietat ta Monta tea esta cpa et AMPED ra need cure ioe bitched pay tsb etathe Ftp te Hee LATHE HEM A aubyd a errh bore riytaeeinterseniremerariss Pi purietrretres ree PISEOeL rer et std pry tnd php RL nR BEAR PERL pay err a Hepp itsteitet Hater ea aesby rd iegt ovale Hoe teres gr ehi it phth Uae HER ET EE AD Adrien theta behtdnl Peete tid aati tani py eb siutl h ' hs a LEAH pa Sih pentanntyey i nate pha meets rapid af it Versi ite jhritshtd bait THEUATEULTDT GLH or sreti huey tt Mra state tonatal eatetetotaietnist Tia est ratetit a Prost sesrot PAH At Epeddieanitabod MsnCeMeHtehGtuadeN Ud tcksog tot yrs Sorcerer visrireet iri rirrerinier erect a cnrranl Streep even gert pe pieve an Meity pinta d tie ati ryt hi beay. aye hlaaed bang Acoust dbs ye ih obey Asbiesty “ tiie Edis teeatsndbatdbstosrtetaressaeregi tenes geet ur Uebel eed Peedi OTHE Hebe Hargett i Heber re ene Heh tk tt Heat poe ee Rtates Ppa itary pep eye WH nial gta et oh stata shabby k chured ab ry , septelad Mibeabeaes sertiapedeyeaty ett isatcturgbeent steep aie eledttsTobetrtatettsbetpheittaletat tele ttiaieta iedtalptoraasiat sesnstiaseteedgssestapeais HPP eb hebsana ah aap att sata HeApUc tp Eetid ga eA tdendD APOE Ld) Chek jap Hertel He aieel " Pra HatCeietrtat pirat rbot evedtia ' Pantrint! diabetatndtdsgettytitueyeitususaecees tty {ela bri ctresepl enariston A eeu ce bivepr iter elihi ices titad saan Hie Heabseet yl ctabal i it va seta Weta PELL! 1th in Hii Way oelali bad us i a sce AI hebben ty Bhi mor Hebel nel adat he dead eh Hd He aH ME deh Fybvdatatal italshitel bebitis betahehatat ahs 4 Vd eR ‘ UMM eh HAR geal it ' és ‘yt PEL YEE HEAL Hote bab Iau + ihsiaaly EPIL be phat get Riel PHM PEPPER uhh ut ciate 8 Ve ble MH pra ete PE bert Hh LF pte Pe eee hgh sdyt sian ile HHH Clot heed IM AEAEy EEG prblp Ebon lprpagtaneege Heeb Te Beyer itite art ot da dent ttt ny Hilibaiahital PEL ce ceca pril pide Lee pret bE ib had sesty pond Up heehy iil palit tittibetenpl tilebsepieteehteriettusplapcestuest eset Re en fineetsrdl CUO eae Pod pada JiTere APE HLE HHL He ete ee eb Nerdy Fubth AL ity tr FeO iivep che ee ede Prt ee yee " PFU ERTEPG CRC ERKIMTRY UIA Argrakg rar bet pipe HE He BELA Leb bred A End ara yr SOMME EreEEd red Eeiusbrab obit aint usar hlGdstL4 bhi PALA HLA itbi it bear iael opr eleva uricet aruba bil lal iby| keveed Cem diene ced] eb rrevthy faa a Adupebbbulattitite the Leer eEY ath GQornell Law Srhonl Library CORNELL UNIVERSITY LIBRARY CATA A a Ofte 2 PRACTICE, PLEADINGS, AND FORMS. PRAC TECH, PLEADINGS, AND FORMS IN CIVIL ACTIONS IN COURTS OF RECORD IN THE STATE OF NEW YORK. ADAPTED TO Che Cove of eget of the is of Hew Pork; » 4 a THE PRACTICE IN CALIFORNIA, MISSOURI, INDIANA, WISCONSIN, KENTUCKY, OHIO, ALABAMA, MINNESOTA, AND OREGON. BY JOHN L. TILLINGHAST any THOS. G. SHEARMAN, a COUNSELLORS AT LAW. VOL, I. NEW YORK: LEWIS & BLOOD, LAW BOOKSELLERS & PUBLISHERS, NASSA WT STRE ST. MDCCCLXI. Entgren atcording to Act of Congress, in the year 1861, by LEWI3 & BLOOD, Im the Gierk’s Office of the District Court of the Uniied States, for the Southern District of New York. eee eee RASS NAR RARE W. OU. Tinsod Printer and Stereotyper, 43 & 45 Centre street, New York, PREFACE. An apology for the appearance of this treatise is hardly necessary. No work, professing, even, to cover the entire field of practice in civil actions under the New York Code of Procedure, has been published for nearly seven years. The second edition of Mr. Whit- taker’s Practice and the second edition of Mr. Monell’s Practice, were both published in 1854; and although very valuable works at that time, yet from the fact that since that date the Code of Procedure has been five times amended by the Legislature, and that, decisions of the courts, contained in sixty-one volumes of reports in this State alone, have been rendered in relation to matters of practice, it must be evident that those works cannot be relied upon as in all respects correct exposi- tions of the practice at this day. No book has ever been issued, which has attempted to cover the whole ground taken up in this. In the conduct of any single action, a young practitioner is compelled to resort to three or four different works in order to ascertain the course which he should pursue—some of them, moreover, almost obsolete by reason of legislative amendments to the Code, or judicial decisions correcting half-settled errors. The frequent editions of annotated Codes tes- tify to the anxiety of the profession to keep pace with the changes of practice, but the arrangement of the iv PREFACE. Code is rather confusing to a practitioner who seeks to use it as a handbook in the course of an action. The present work is intended to cover the whole subject of practice and pleading in civil actions in Courts of Record of this State, without regard to the distinction between law and equity. The Code of Procedure, the rules of court, and the principal statutes relating to practice under the Code, are first given. The whole practice in courts of record is stated in the order in which it naturally proceeds in actual cases, except where subjects are so closely allied in their nature, that nine lawyers out of ten would be annoyed by not finding them together. The forms are always given in the same place with the text of the practice relating to them, while they are distinctly numbered, so that they can be referred to separately, a desired. The subject of pleadings cannot be treated so fully as in works devoted to that alone, but for most actions of an ordinary nature we trust, with sufficient com- pleteness, in our second volume, now in the course of publication, to supply satisfactory information. All matters of practice are treated of with the utmost full- ness as to matter, though with close condensation as to manner. Equitable proceedings receive fully as large a share of attention as common law actions, as may be seen by referring to chaps. 30 and 31, on Injunctions and Receivers. The forms are invariably original, unless otherwise stated, and have been prepared with great care to ex- clude mere verbiage, and to include everything desira- ble to be stated. They are framed with substantial uniformity of style, and have been approved by eminent authorities. The citations of authorities are far more numerous than in any similar work, not merely by reason of the great number of new cases, but by an independent PREFACE. v search among earlier authorities, which has brought to light many decisions overlooked in previous works of the kind, many obsolete decisions being, however, omitted. Every case cited, with the exception of about twenty-five (mostly from reports not contained in the Library of The New York Law Institute), has been care- fully verified by the original reports. The few excep- tions have been verified by several digests, treatises, or later decisions referring to them, so that, typographical errors excepted, we venture to believe that perfect reliance may be placed in the citations. Errors of the press have also been guarded against with great care, and will probably prove unimportant where they exist. Very few statements are made without the authority of a judicial opinion, but an effort has been made to reconcile apparently conflicting decisions or dicta, and to indicate the course which, under such con- flict, may be most safely followed. While we have used every book that was accessible to us, in preparing this work, we can acknowledge andebtedness to but few books other than the reports. It should be a point of honor among our profession to acknowledge freely the use made of each other’s labors, and we shall clear our conscience in this respect. We have been much aided in our task by Mr. Townshend’s [Voorhies’] annotated Code, to the general excellence of which we bear willing testimony. Graham’s, and Burrill’s Practice, Barbour’s Chancery Practice, and Edwards on Receivers have been freely used by us in certain portions of this book, though never servilely followed ; Monell’s and Whittaker’s Practice, but little, because of the numerous legislative amendments, and judicial constructions of the Code made since those books were published; Van Santvoord’s Equity Prac- tice, not at all, it having appeared after this volume had gone to press. The first volume of Abbotts’ Digest was vi PREFACE. not published until the same period, to our great regret, as it would have saved us much labor. We are indebted to it, however, for a few points under the heads of arrest and attachment. The last edition of Judge Clin- ton’s Digest was too late for our use, and we gained but little advantage from any other American Digest. Do. ANON scsweni nd visors Amonymous..............e000. se bP aaaneaartedc ANStis c.cesicieoslewes Anstruther’s Reports...........2..eee scene wee. Do. ADD. csisiecccncaaens Anthon’s Nisi Prius Reports............. Lb Ravers N. Y. Appl. coicece cents Appleton’s Reports......... ee eerie Me. Archb. Pr....... Archbold’s Practice...........cceeceeceeea cess English. XX ABBREVIATIONS USED IN THIS WORK. ieala Oia fodatudercmatat ate? Arkansas Reports..........20eceeeecseeeetneceeees Ark. Arms. M. & 0 err Armstrong, M’Cartney & Ogle’s Nisi Prius Reports... .Jrish. Arnold.............Arnold’s Reports.......00cse0ees Sais WOE a4 RERES English. Am. & H........., Arnold & Hodges’ Reports.........s:0.-sreseereee+ Do. Ashm,.........0085 Ashmead’s... 0.0... ccc ec ee cece cece csceeeneeesess Pa. Ale seiia ds enaaid sce a aun Atkyn’s Chancery Reports.........0.++eeeeeeeeee English. Baill: ia.eo save eoees Bailey’ Scys wac5 ce cine eden eo eeaegeodeeee eee aces So. Car. Bail. Eqg..........., Bailey’s Equity Rane. 3 5 Site eh pleas ate ele giel ew IS ou Do. Bald Wescccieesis casa Baldwin’s Circuit Court Reports...........+++eeee ees U. 8. Ball & B........... Ball & Beatty’s Reports. ......2..eseeeceec eee eeeeee Trish. Barbin.cor eavet cuainys's Barbour’s Supreme Court Reports. .........-0++eee+5 N.Y. Barb. Ch. R......... Barbour’s Chancery ReportS.......+.eeeeeeeeeeerere Do Barb. Ch. Pr........ Barbour’s Chancery Practice...... Sasi eal osela sal Dea. tine Do. Barnard..........0. Barnardiston’s Reports.........-.0+eeeeeeeeeeees English, Barnes............. Barnes’ Notes of Cases.......2-ee cece cceerecees Do. See : Cad ons } Bamnewall & Adolphus’ Reports..........++-0e00- Do. Lane a Riga { Barnewall & Alderson’s Reports..........2+eeeee- Do. - ane } Bamewall & Creswell’s Reports.........0.0.0ee English. arn, & Cres..... Batty... ...cceeeeee Batty’s King’s Bench Reports..........-+sseeeeeeee Trish. BAY scsuaacpaceosie a WS N cBay’a Reports save scieisise sng aietie siaiane @iaiaiieie sans wrnyearniees So. Car. i er ere Beasley’ Suisvtsicecccsse wane cease acters wae ess 2 weeee WM Jersey. Beatie 6.5 oazeoe esas Beatty’s Chancery Reports. .........-.-.0e cece eeeee Trish. Peaiias asasi ena een Beavan’s Chancery Reports...........c.eeee seers English. Bell -wisa'secpecses (cc 02 2 Bell’s Appeal Cases... 0... ccc ee cece eee eee Scotch. Bet) cana eband ieee Benloe’s Reports... 0... ... eee e eee cece eee eee eee English. Bib basics wcevsinte dete % Bibb Sigistsu aad sin aanae tia eenie ane einsiie eng se cas Kentucky. Bing ...-. eee ee ees Bingham’s Reports. ........ 20. e cess eee eee eeee English. Bing. N. C.......-- Bingham’s New Cases...........0..eeeeeee ences Do. Binney ......+++05- Binney’s Reports, ssc: oviaies otters ase sens a ervsnsiga sind ene. Blackf. ......--0005 Blackford’s Reports... . 02.00... cc cece cece cece ees Indiana. Black. D. & O.....-- Blackham, Dundas & Osborne’s Reports............- Trish. Bl. (H.).-- eee eee ee Henry Blackstone’s Reports. ...............02 000+ English. BL (W.)... eee eres William Blackstone’s Reports...............00005 Do. Bland... eee eee Bland’s Chancery Reports........-........2.05- Maryland. Bligh... ..-2-+-+e+- Bligh’s Reports of cases in the House of Lords..... English. Bligh, [N. S.]......-New series Of thEsSaIM Cs oe ea oe eek see ia-s Reise cles OSS Do. Bos. & Pul......--- Bosanquet & Puller’s Reports.................005 Do. Bos. & Pul. [N. R.].. Do. Do. New Reports................ Do. Bosw.. see eee reees Bosworth’s Superior Court Reports...............06. N.Y. Bradf. Surr.........Bradford’s Surrogate Reports..............cc cee ue Do. Bradf, [Iowe]....--- Bradford’s Reports. ...... 0... cece cece eee ee eee eae Towa, Brayecweceeeeeeees .Brayton’s Reports ......... cece eee eee eee cece eens Vt. Breese ...+-- eer eee Breese’s Reports... 2... ... cece cece ee eee cence lilinois. Brev..cceseeeeceeee Brevard’s Reports. ......... cece eee ee ee ee eee So. Carolina. Brightly ...+.--++++ Brightly’s Reports... 2.0... cece eee eee eens Penna. Brock....+eeereee? .Brockenbrough’s Reports..........ceeeeeeeeeeee eee U.S ABBREVIATIONS USED IN THIS WORK. XX aoe ae ; | Broderip & Bingham’s Reports..............00.85 English. BroiP; Ova ousuvieern Brown’s Cases in Parliament. ..........0. eee eens Do. Bro. C.C...........Brown’s Cases in Chancery...........e0ceeeeeees Do. Browne, (P. A)......P, A. Browne’s Reports.......0..0cecseceeeeeeeees Penna. Brown. & Gold. ..... Brownlow & Goldsborough’s Reports...........+- English. Bulsthis ceccokoecnes Bulstrode’s Reports... 00.00 cesccsceeecceesseeees Do. Boab... eca vee wes Bunbury’s Reports. ........ 0. ce cece ecco e eee ees Do. Burt siete eg ess steed Burrow’s. Reports. 2.2.03 sce ssccwees ase vane coees Do. Calley seid ies cove Caines Reportsys 4000s nat ahs Wales nawaGanarisaedanion NV. Y. Cain. Cas........... Caines’ Casés in Error. sy4s vans sonsaewsteensi eases Do Call... ssio00 sie sees Calls Reports scnc2t anoxnsestrede sees wtb ees see Va. Cslthecaxcadaneven Calthrop’s Reports... cccnaveaesiseeved eae s dees oe English. Cam piss English. Nott & M........... Nott & M’Cord’s Reports........e.eeeeee ceeeereress S.C. NOs 6s. c ceed cauan Noy’s Reports. ..... cece ec ceetee eer eeeeeceee .-- English. OHIO. g waesccieesacs Ohio Reports. ..... 0... c cece cece eee eee cere eee Ohio® Ohio St..........5. Ohio State Reports.......... eee cece cree eer teeeee Do. OC Ottinwcessiss aivixe Olcoti’s Reports......... cece cece cece eee e eect eeees U.S. OWeR ices weed vere Owen’s Reports...ccases asaosrenoeanen 5 ie halos English. Paige..............-Paige’s Chancery Reports. ........ee eee e ee ee eeeeres N.Y. Paine.............-Paine’s Circuit Court Reports.........eeeeeeeeee seers U. 8. Palm...............Palmer’s Reports. ......++4+ guey eee a Sow a eiy eee English. PAPK OM coz quae activate Parker’s Reports. .........00+eeeee er or Do. Park. Cr... ........Parker’s Criminal Reports............0.eeeeeeeeeee N.Y PaPS 026 heasc3 ee cents Parsons [various works]...........seecereeeeeeee ee Patt: & He. cise cae Patton & Heath’s Reports. .........cecee eee eee eeee +. Va. Peake N. P......... Peake’s Nisi Prius Cases.... .....---200 seeese english. Peake Add..... ,+»-Peake’s Additional Cases... ..... 2. cece eee ee eeeee Do. Pecks sivas access acdbeck’s Reports: cs cv cv caw vvgie cive ae vegageeas vee Tennessee. Ps WAN Sisvcterseokrieds Peere Williams’ Reports...........0.eeeeeeeeees English: Penning ........... Pennington’s Reports. ......... essere cece cere N. Jersey. Penn. or Pa........ Pennsylvania State Reports........-....ee00 sonaless Penn. Penn, Rep.......... Pennsylvania Reports, Old Series..... 5 ests oats s adage Do. Penr. & W..........Penrose & Watts’ Reports.............05085 wastes Do. Per. & Dav......... Perry & Davison’s Reports.......... sieves eee tess English. POTS is detnnee Peters’ Supreme Court Reports............00.eeee eee U. 8. Peters C. C......... Peters’ Circuit Court Reports. ........0.. cece eee eee Do. PHIM: aces ets Phillimore’s Ecclesiastical Reports.............+-. English Phillips............ Phillips’ Chancery Reports........-...ee sees eeeee Do. Picks 3. iasedtawcdae ‘,Pickering’s Reports. .......... cee cee eee ee eee eee Mass. Pikes osccacrauwackikels: ROpontSic.sc05c400 2 08 th ORR ee otes 8 Arkansas. Plea vance pattems SHOU staat: Sav eCSmsayrnee Guarete Gk cavs oe age e nee aR Plow. .....-.-0+ oo ++ -Plowden’s Reports........0.0ccccecneeeseceeeue English. Pollex...........---Pollexfen’s Reports....... 0c. cece ee eee eee eee eee Do. Pop... pease POphamis Reports. aniancauminenwvei e644, beeooe ae Do. Port. F&lo) een ears Porter's Reports. 6. .cccece snes eee ee sacs we eens Alabama. Port. [Ia.]......... Porter’s Reports [See Indiana]..............0065 Indiana, Prices) ayeneie seas ss PRaChice saisias-siscvis wisreiiniecanargs lave sige gareneig rye a saa Prec. Ch..... eee Precedents in Chancery. ........ceeeeeseneeeeees English. Price. .... eee eens Price's: Reporiists coc-caccevaeesaeaie sate geile dot oi tee Do. Price Ps Ciscpoanaveais Price’s Practice Cases. ........ cc cece cece en ee ees Do. Pyke......... ..++Pyke’s Reports...........465 ABhieakelotetaas Lower Canada. ABBREVIATIONS USED IN THIS WORK. Xxx Q. B...............-Queen’s Bench Reports......... 0.0.00 e cece ea ee English. Rand. ccnwe ougeaaces Randolph's Reports. 0... see oe seicecisee iawn en nernes Va. Rawle cs vicascisinceeceawle’s ‘Reports so-so cevas eevee parcisiacga siered eerie rae, Penn. Raym., (T.)..... ... Sir T. Raymond’s Reports. .........0.eeeeee eee English, Raym., Ld.......... Lord Raymond’s Reports...........-..2000- ixaas DO; Rep. t. Holt......... Reports temp. Holt.......0.s.0.ecceccesrcceeeee Do. Rep. t. Hard........ Reports temp. Hardwicke...........-..eeeeeeees Do. Rep. Ch.........00- Reports in Chancery. ..........0e ce see weer ee eens Do. Rep. t. Finch........Reports temp. Finch. ........ 0.0. c cece een eee eee Do. Ri Bae yeaaedevcsaes Revised Statutes of New York ; the original edition is cited in [brackets]... ....... ccc eect eee ee ee eee N.Y. Religie tuige eases Rhode Island Reports...........-. cess reece eens R. I. RCC icy sagre's evan a eo RICE’S REPOLS, asics siscvarparesigvchew aves see So. Carolina. Rice Ch............ Rice’s Chancery Reports.....-...eeeeeeeeees Do. Ribiystageesceesdes Richardson’s Reports. ............eee seers Do. Richs: Eq..css 23% 5 Richardson’s Equity Reports............+..55 Do. Rich. & W.......... Richardson & Woodbury’s Reports......... N. Hampshire. Ridg. t. Hard....... Ridgway’s Reports temp. Hardwicke.........-. +++ English. Ridg. A. C.......... Ridgway’s Appeal Cases,.......:c eee eee ee ee eee ees Irishe Ridg. L. & 8........ Ridgway, Lapp & Schoales’ Reports............--+++ Do. Rileyisacassies ass e Riley's: RepoOrtds.s veces genes ations se osveancies So. Car. Riley Ch............ Riley’s Chancery Reports. ...........00esee eee eee Do. Rob. H. of L........Robinson’s House of Lords Cases.............-+- English. Robin, [Va.]........ Robinson’s Reports......... 2.2. ceseee eee cece eeeees Va. Robin. [La.]........ Do. DOw eacne sages vais aeiaeaeeanrsoe Louisiana. Rollesisa waves sass Rolle’s Reports... csv sceccces csee sce case aaee ees English. Roots osc cesaceeas Root’s: Reports: . ir. ..teandn adwdseter owes wees nese Conn. Rutt... casiastee acces Ruffin’s: Reports... oie ices cok awe seas tsaaees exer N.C. RUSS sae siciaiw esse vce Russell’s Chancery Reports.........+..2e0eeeeees English. Russ. & M.......... Russell & Mylne’s Reports. ...........- ese eevee Do. Russ. & R..........- Russell & Ryan’s Crown Cases.........-2eeeeeee Do. Ry. & M............ Ryan & Moody’s Reports at Nisi Prius...........- Do. Saleecsss cae gees sae Salkeld’s Reports. .ciccscce sae casita ane dere ves English. Satid « ciesnennsians Sandford’s Superior Court Reports.............--0+- NV. Y. Sand. Chscsisccscss Sandford’s Chancery Reports. ..........+0 200s ee recess Do. Saund wc.cicwsiwees Saunders’ Reports [by Williams]............ ...- English. Saund. Pl. & Ev..... Saunders’ Pleading & Evidence...............eeee Do. Saund. & Cole...... Saunders & Cole’s Reports...........:.0eeeeeee Do. Saus. & Sc.......... Sausse & Scully’s Reports. .......... 00s scene cence Trish. Savile wat apesns Saville’s Reports, ccc vss saeco gad ogee eee aeeens English. Sater oeetiencaiatess DAXtON'S:- RE POLrtGee.s ash da Gal slew shies wn wer euestsigreer N. Jersey. Saysexs Pedsciewreies Sayer's Reportsisc.decsnew vawnig oe veeeeccad eee English. Scams scawenes se Scammon’s Reports...........0. 2 sees eee ee ees Mlinois. Schoales & L.......- Schoales & Lefroy’s Reports......-....seeeeeeeeeeee Trish. Scott.......00-e0++ Scott's Reportsi.csciccnesocs estes aneates sages English. Scott N. R........- Scott’s New Reports. ......-...00ceeee eee teens Do. Sedg. on Dam.......Sedgwick on Damages...... MEER GED EE So RG REASAR TAY NY; Seldiccic Sie cavrtianeess Seldeh’s ReportB.ccc cisies oe visas ce ebelg ace east nese ae’ Do. XXX Show. P.C Sma. & Giff... ... Sme. & M........ Sme. & M. Ch... Smith, (E. D.).... Smith, (E.P.)...... Smith [Ind.]...... Smith, (J. P).... Smith & B Story Payless veeeaee ABBREVIATIONS USED IN THIS WORK. . Select Cases in Chancery, temp. King...........- English. , Sergeant & Rawle’s Reports. .........eeeeeeneceeeee Penn. «Shaw's Reportgiscs:scc revs sew esedr es xed pa eee eee Verm. . Shepley’s Reports [See Maine'Reports].......00+-e0+++ Me, «sShower’s Reports, .... ics cee esse seve aneseeees English. . Shower’s Parliamentary Cases...........00eeee eee Do. asmiderfin’s: Reporte. : occ. seas etic vee eeaer were Fees Do. SeOIMONS' REPOTB: ccwsnsascond sy darn. SE Reeaes Do. . Simons’ & Stuart’s Reports...............-0-00 Do. . Six Circuits in Ireland (Reports)...........000- ee eee Trish. soSlEiMHer’s REPOtts os. x civececceinecescreeccw@ eons % English. ol MOLRIL GS: TOD ODES oe crsnsncve.a cee iers ovevindeet sos aidcecadssond cagninsostie eens Verm. . Smale & Giffard’s Reports. ..........00 cece eee ees English. . Smedes & Marshall's Reports...........00eseeeeeee » Miss. ..Smedes & Marshall’s Chancery Reports............++ Do. . .E. Delafield Smith’s Com. Pleas Reports............- N.Y. ..[See Mew York Reports]........0..0-005 she eee eens . Smith’s Reports............ apwantiaties gtr bieeridr ates Regio Ind. . J. P. Smith’s Reports........ soe SialNiatsie eagle: seater avexerere English. . Smith & Batty’s Reports...... 0... 006 cee e cece enone Trish gromy,thes Repo nts cca core ev aceds ote eats nieiaiete sleiete eeuiars Do. epmleed Ss Reports's .ninnante sawsisny vasa ens ewaloaw sn ees Tenn ,outhard’s Reportsss+ssvsecsw senna sevescos yo NV. Jersey. . South Carolina Law Reports......... 19 sae e eee wees 8. C. . South Carolina Equity Reports................0.0005 Do. DANG CASO ceneocinnoacueawee ens seus sane seam eeamer apame point decided :.i05ss0% sosvuees sais cues sear ees 2iBpears’ Reports’: «dav ccesnctnasneeeeaeotadee.ce So. Car. . Spears’ Equity Reports. .....0....0c sees eee weeee Do. . Spencer's Reports. .........-..c cece ee ence evens N. Jersey. . Stanton’s Reports.... .........0- Pal asei tac Gissnene +--+ Ohio. . Starkie’s Nisi Prius Reports ............0...00005 English. . Stewart's Reports........... ce ceecencenes (eisas evacuees Ala. . Stewart & Porter’s Reports............ eee eee eee ee Do. . Stockton’s Reports. .......... 0... cece eee ee eee N. Jersey. sO LOB YB ROG PORES cca ase cosa nba a abi cu ces etna nntecaeno T.8. .. Story on Equity Jurisprudence..............-.-..0-- pS Ore e!S: ROD ONES ce. seca acezet bes seane bute wicicanacenseeaniaiees English. < Strobhart’s Reports: ;..5 cc asvcaswecegeaey ese vein yl So. Car. . Strobhart’s Equity Reports............. cece eens Do. Stuart, [See Lower Canada Reports. ] «{Suminer's! Reported sistas eee waved sian on en atewk ees U.S. . .Swabey’s Admiralty Reports. .......... 00... e eee English. ..Swabey & Tristram’s Reports............. 0.02005 Do. «sSwan’s Reports... csay coawesewgurseekaeaaedie s caee's Tenn « Swanston’s Reports. ......cscceceeseesesceveness English. ss MalbOt's! Cases: ta siciecck 23 winieion asin scnie ie sid chseenptelen's Do ..Tamlyn’s Reports...........08. Gadi setae aeminta Do. . -Taylor’s Reports........... daannwcayerndeuiess Sis Sa Seat N.C. ABBREVIATIONS USED IN THIS WORK. XXxX1 TAUNt esac ...Taunton’s Reports..............00005 Bs Secittie ateasted English. D3 Reet src aetaers ....Term Reports—by Durnford & East...... dauaeadunes Do. Tex Sajal CXAS REPOS sc/acace suaise: espisedousacseayiecesticcaue! dyeused satevereceue S Texas Tothisiis see sins »..-Tothill’s Reports..........-+000- sonbsbtcGvolcouss ooh 6 English, Trans. Rep......... Transcript Reports........ 0... cece cess ee ee eee eee N.Y. Turn. & Russ....... Turner & Russell’s Reports............eeeeeeeeeee Do. DVlePosaruss coeewans Diy let 1S: Re pO rg sce arg gos tex astscie sands doch eas elas weirs 6 8trs Verm DYRW banc kevacare Tyrwhitt’s Reports............... ere eee ee English. Tyrw. &G.......... Tyrwhitt & Granger’s Reports....... weedeyeavens Do. Van Santv. Pl....... Van Santvoord’s Pleadings............. 000. cee e es N.Y. Van Santy. Eq. Pr... Van Santvoord’s Equity Practice.............2e000 Do. Vauehiscess satis Vaughan’s Reports. ........ 000. eee e eee cece English. MENtisvnaeecuec voc MEDUrIS) REPOTtS cca. ceed soles tes oC 38 ae eke beaded Do. Verm. or Vt........ Vermont Reports....... Wise eRaeeeeaee Seen Ve. Wiehe utote canes Vernon’s Reports... 0.2... e cece cece eee e ences English. Vern. & Sc......... Vernon & Scriven’s Reports............... ayaiaeimign tts Trish, Ves..........+......Vesey’s, (senior) Reports [vols. 1 & 2.]............ English. V8 s paneniascnsncde Vesey’s, (jr.) Reports. [All_after vol. 2. Vols. 1 and 2 are cited as 1 and 2 Ves, jr.]...........0005. Do. Ves. & B....... ....Wesey & Beames’ Reports...........0..cseeseeeee Do. WaslCasiscsatcnoeninis Virginia, Cases. cc.xicds-sdiocanaet awn iie ee aaa icies Va Walk. [Miss.]....... Walker's Reports........... sees econ NS a eemeese ac Miss. Walk. [Mich.]...... Walker's Reports. ico. c0 ae ace nano ae came renner nes Mich, Waal. Satsctatoscishnesig Weallace’s: Reports’ iccjcs:sc4 nies enters Spaces iar sieveresra cowie U.S. Wall. jts.ses vseae as Wallace’s, (jr.) Reports. .... 2. see cece ee eee ee eee eee eee Do. Wallis or Wall. Lyn. Wallis’ Reports, by Lyne.... 2.0... . eee cece ee eee eens Trish. Wrares.c cess acon; ot Ware Re portsecs cae soe sls ca eeee vareesh ec aes cooee U.S. Washb....cc000e00+s Washburn’s Reports: .ocsccsueseu ieee ares soeece es Verm. Wastvcccv tis ccc Washington’s Reports. ...... sce. cee e eee eee cece eeeee Va. Wash, C. C.........Washington’s Circuit Court Reports..................U. 8. Watts ............. Watts’ Reports... 6.0... cece cee ee eee ee ee ee eee eeee Penn. Watts & §.......... Watts & Sergeant’s Reports. ......... csc cece cere eee Penn. West t. Hard........ West’s Reports temp. Hardwicke...........-+0005 English. West H. of L....... West’s House of Lord’s Reports...... iB iiceah Mecteavsiaat Do. Whartis scsi acc sci Wharton's Reports... sieccccccae cats c eine to See nee Penn. Wheat ..ass.ccdeces Wheaton’s Reports. ..........+.0000 oni@lelgtaanele U.S. Whitt. ...........0. Whittlesey’s Reports... .... ese ee ee tee cece eee eee N.Y. Wightw............ Wightwick’s Reports. ........ sees eee eee ee ee eee English. Wilcox... ...c...00 Wilcox’s Reports. ......0..ccsecec eee ee eee eeeeee Ohio. Willard’s Eq. Jur. ...Willard’s Equity Jurisprudence............-...0. 00 NN: Ye Willesunsnipecscceine ais Willés’ Reports. ..:c.000ee8caeeeee4 aes eee ses a English. Williams............ Williams’ Reports... 0.0.6... eee e eee eee eee ee ee eee Mass. W.W. &D......--- Willmore, Wollaston & Davison’s Reports......... English. W.W.&H.......-- Willmore, Wollaston & Hodges’ Reports.......... Do. Wilson........---+++ Wilson’s Reports......... 00 ce ee eee cece cece cece English. Wils. Ch.......-..5- Wilson’s Chancery Reports.......0..eeeeeeeeeee Do. Winch once see coe es Winch’s Reports. ........ 0... ec ee eee cere neers English, Wikis aahienuaciose es Wisconsin Reports..........+4- sarees plata aaron Notto Wis. XXXL ABBREVIATIONS USED IN THIS WORK. Woll. P.C.. .+++.++-Wollaston’s Practice Cases.........es seen eee . English. Wood & M......... Woodbury & Minot’s Reports.........----+eeeeeeee U. 8. Wright . csuecdve css Wright’s Reports.......... cece cece ee erence eeeee Ohio. Wyatt Pr. Reg..... Wyatt's Practical Register..........+eeeeeeeeeeee English. Wythe.............Wythe’s Reports........ 0. sccece cece ee eeeneeeeeees Va. MCAtCS si ciscne-s aceecdace Yeates’ Reports... .... cece cece cece eee ee te ee eenes Penn. Yelv...........,.+-Yelverton’s Reports...........eeeeeeee sees eeeee English. MCRE is tates peaverecee 8 Yerger’s Reports... .... 0 cc ceee cece cece eee enenees Tenn. Younge..........0. Younge’s Reports........- ona tau aie ied ieaeee English. You. & Col......... Younge & Collyer’s Reports in Chancery.......... Do. You. & Col. Ex..... Do. do. do. in Exchequer......... Do. You. & Jer......... Younge & Jervis’s Reports............ceeee ee eee Do. DAD viceiciaws won whee Zabriskie’s Reports. .......0 eee cc ee ee eeneeeaee N. Jersey. ERRATA. Page 266; 9th line from foot, “‘ conveniently” should read “ concurrently.” Page 327; ‘Chapter III.” should read ‘‘ Chapter XIII.” Page 369; lines 21 and 22, beginning “2. On Saturday,” etc., should be can- celled. See page 59. - Page 386; § 27 should read,—“ J. L., of .. . . ., being duly sworn, says, that he is the printer of” etc. Page 896; above Chapter XVIIL., ssi TITLE V. \ MOTIONS AND PAPERS. Cuap, 18. Motions and Orders. 19. Notices and papers. PRACTICE, PLEADINGS, AND FORMS, UNDER THE CODE OF PROCEDURE OF THE STATE OF NEW YORK. Tae existing Constitution of the State of New York, which was adopted by popular vote on the third of November, 1846, and went into full effect from and including the first day of January, one thousand eight hundred and forty-seven, altered, in almost every particular, the previously existing system of jurisprudence of the State. It abolished some courts, created others, and in respect to those courts which were recognized and preserved, the jurisdiction was in some instances enlarged, and in others restricted. The offices of judges were made elective, and to be held for limited terms. But among all the changes and alterations effected by that instrument, probably none were more radical and important than those which resulted from the following section of the sixth Article: “Srcrion 24. The Legislature, at its first session after the adoption of this Constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, reform, simplify, and abridge the rules and practice, pleadings, forms, and proceedings of the courts of record of this State, and to 1 2 THE CODE OF PROCEDURE. report thereon to the Legislature, subject to their adoption and modification from time to time.” The Legislature at their first session after the adoption of the Constitution, (70th session,) passed an act, (Chap. 59,) pursuant to the requirements of the Constitution, appointing commission- ers to perform the duties therein specified. At the ensuing session thereafter, (T1st,) the Legislature passed, April 12, 1848, “Aw Acr to simplify and abridge the Practice, Pleadings, and Proceedings of the Courts of this State.” And also, “ Aw Acr to facilitate the determination of existing suits in the Courts of this State. (See Chapters 379 and 380.) The first named act (Chap. 379) was designated “The Code of Procedure.” At the next session (72d) the Legislature passed (Chap. 438) “ Aw Acrto-amend the act entitled ‘An act to simplify and abridge the Practice, Pleadings, and Proceedings of the Courts of this State.’” And also, (Chap. 439,) “Aw Acr to amend an act entitled ‘An act to facilitate the determination of existing suits in the Courts of this State.’” Both these acts were passed April 11, 1849. At the 74th session, the Legislature, on the 10th of July, 1851, (Chap. 479,) passed “ Aw Act to amend the Code of Procedure.” And again, at the 75th session, on the 16th April, 1852, (Chap. 392,) the Legislature passed “An Act to amend certain sections of the Code of Procedure.” At the next (76th) session, on the 13th July, 1853, (Chap. 529,) the Legislature passed ‘“ Aw Acrin relation to the Superior Court, and to the Court of Common Pleas, and the Marine Court for the city of New York.” By this act the provisions of section twenty-eight of the Code of Procedure were made to apply to those courts. At the next (77th) session, there was passed, April 3, 1854, (Chap. 135,) “Aw Acr concerning appeals.” And also, on the 15th April, 1854, (Chap. 270,) “Aw Acr in relation to special proceedings.” And again, at the 78th session, there were passed two acts on the subject—one March 3, 1855, (Chap. 44,) “ An Acr to amend the one hundred and fifty-third section of the Code of Proce- dure ;” and the other, April 9, 1855, (Chap. 202,) “ An Act to extend the provisions of the Code of Procedure to forfeited re- cognizances.” THE CODE OF PROCEDURE. 3 Two acts were passed at the 80th session of the Legislature ; the first, (Chap. 353,) passed April 13, 1857, entitled “ An Acr to amend section three hundred and ninety-nine of the Code of Procedure;” and the second, (Chap. 723,) passed April 17, 1856, entitled ‘“ Aw Acr to amend certain sections of the Code of Procedure, and certain sections of the same, as amended by chapter three hundred and ninety-two of the laws of eighteen hundred and fifty-two, and chapter forty-four of the laws of eighteen hundred and fifty-five.” At the 81st session, the Legislature, on the 17th April, 1858, passed an act (Chap. 306,) entitled “Aw Acr to amend certain sections of the Code of Procedure.” At the 82d session of the Legislature, an act, (Chap. 428,) was passed, April 16, 1859, entitled “Aw Acr to amend certain sections of the Code of Procedure.” At the 88d session, the Legislature passed two acts in relation to the Code; the first, (Chap. 131,) passed March 30, 1860, en- titled “ An Acr to amend section fifty-three of the Code of Procedure, and to extend the jurisdiction of justices’ courts, and to provide for proceedings therein ;” and the second, (Chap. 459,) passed April 16, 1860, entitled “ Aw Acr to amend the Code of Procedure.” After all these various modifications and alterations, the “ Code of Procedure,” as it now stands, is in the following form : AN ACT To amenD THE Act ENTITLED “‘ An Act To SmmpLiry AND ABRIDGE THE Practice, PLeapines, AND PROCEEDINGS OF THE CoURTS oF THIS State,” PassED ApgtL 12, 1848.—Passep Aprin 11, 1849. The act entitled “ An Acr to Simplify and Abridge the Prac- tice, Pleadings, and Proceedings of the Courts of this State,” passed April 12, 1848, is hereby amended so as to read as follows : AN ACT To Siupuiry anp Asripge tas Practice, Pieapines, AND PRo- CEEDINGS OF THE CouRTs OF THIS STATE. Whereas, It is expedient that the present forms of actions 4 THE CODE OF PROCEDURE. and pleadings in cases at common law should be abolished, that the distinction between legal and equitable remedies should no longer continue, and that a uniform course of proceeding, in all cases, should be established: Therefore, Lhe People of the State of New York, represented in Senata and Assembly, do enact as follows: GENERAL DEFINITIONS AND DIVISIONS. Szcrion 1. Division of remedies. . Definition of an action. - Definition of a special proceeding. . Division of actions into civil and criminal. - Definition of a criminal action. . Definition of a civil action. . Civil and criminal remedies, not merged in each other. . Subjects embraced in this act. wep OTATEA Section 1.—[Division of Remedies.|}—Remedies in the courts of justice are divided into— 1. Actions. 2. Special proceedings. § 2.—[Definition of an action.}—An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. '§ 3.—[Definition of a special proceeding.]}—Every other remedy is a special proceeding. § 4.—LDwision of actions into civil and criminal.]—Actions are of two kinds— 1. Civil. 2. Criminal. § 5.—[ Definition of a criminal action.|)—A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof. § 6.—[Definition of a civil action.|—Every other is a civil action. § 7.—[Civil and criminal remedies, not merged in each other.|—Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other THE CODE OF PROCEDURE. 5 § 8.—[Subjects embraced in this act.|—This act is divided into two parts. The first relates to the courts of justice, and their jurisdiction. The second relates to civil actions commenced in the courts of this State, after the Ist day of July, 1848, except when otherwise provided therein, and is distributed into fifteen titles. The first four relate to actions in all the Courts of the State, and the others, to actions in the Supreme Court, in the County Courts, in the Superior Court of the city of New York, in the Court of Common Pleas for the city and county of New York, in the Mayor’s Courts of cities, and in the Recorder’s Courts of cities, and to appeals to the Court of Appeals, to the Supreme Court, to the County Courts, and to the Superior Court of the city of New-York. 6 THE CODE OF PROCEDURE. PART I. OF THE COURTS OF JUSTICE AND THEIR JURISDICTION TITLE I. Or rue Courts in GENERAL. Il. Or tae Court or AppPEALs. III. Or tax Supreme Court; Crrcuir Courts; anp Courts or Over AND TERMINER. IV. Or tax Country Courts. V. Or ras Superior Court, anp Court or Common Pies IN THE CITY or New York, AND THE Mayors’ anp RECORDERS’ COURTS IN OTHER CITIES. VI. Or rae Courts or Justices OF THE Prack. VII. OF Justicns’ anp oTHER InreRior Covrts IN CiTIEs. TITLE I. OF THE COURTS IN GENERAL. Section 9. The several Courts of this State. 10. Their jurisdiction generally. § 9.—[The several courts of this State.]|—The following are the courts of justice of this State : . The Court for the trial of impeachments. . The Court of Appeals. . The Supreme Court. . The Circuit Courts. . The Courts of Oyer and Terminer. . The County Courts. . The Courts of Sessions. . The Courts of Special Sessions. . The Surrogate’s Courts. 10. The Courts of Justices of the Peace. 11. The Superior Court of the City of New York. 12. The Court of Common Pleas for the City and County of New York. 13. The Mayors’ Courts of cities. 14. The Recorders’ Courts of cities. 15. The Marine Court of the City of New York. 16. The Justices’ Courts in the City of New York. OMOIRA Rw H THE CODE OF PROCEDURE. 7 17. The Justices’ Courts of cities 18. The Police Courts. § 10.—[ Their jurisdiction generally.J\—These courts shall continue to exercise the jurisdiction now vested in them re- spectively, except as otherwise prescribed by this act. TITLE II. OF THE COURT OF APPEALS. Section 11. Its jurisdiction. 12. May reverse, affirm or modify judgment or order appealed from. 13. Terms of the court. Preference of causes. 14. Number of judges who may give judgment, 15. Sheriffs to provide rooms, etc., for court. 16. Court may be adjourned to places other than those designated by law. § 11.—[Lts jurisdiction.|—The Court of Appeals shall have exclusive jurisdiction to review upon appeal every actual determination hereafter made at a general term by the Supreme Court, or by the Superior Court of the city of New York, or the Court of Common Pleas for the city and county of New York, or the Superior Court of the city of Buffalo, in the fol- lowing cases, and no other: 1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment. 2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken, and when such order grants a new trial; but no appeal to the Court of Appeals, from an order granting a new trial, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, if the Court of Appeals shall determine that no error was committed in granting the new trial, they shall render judg- ment absolute upon the right of the appellant; and after the 8 THE CODE OF PROCEDURE. proceedings are remitted to the court from which the appeal was taken, any assessment of damages or other proceedings to render the judgment effectual, may be there had, in cases where such subsequent proceedings are requisite. 3. Ina final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment. But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the Marine Court of the city of New York, or in an assistant justice’s court of that city, or in a justice’s court of any of the cities of this State, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions discontinued before a justice of the peace, and prosecuted in another court, pursuant to sections sixty and sixty-eight of this code. [Laws of 80th Session, Chap. 723, §1; April 17, 1857.) § 12.—[May reverse or modify judgment or order appealed Jrom.j—The Court of Appeals may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be re- mitted to the court below, to be enforced according to law. § 13.—[Zerms of the court.|—There shall be four terms of the Court of Appeals in each year, to be held at the capitol, in the city of Albany, on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the last Tuesday of September, and continue for as long a period as the public interests may require. But the judges of said court may, in their discretion, appoint one of said terms in each year to be held in the city of New York. Additional terms shall be appointed and held at the same place by the court when the public interests require it. The court may, by general rules, provide what causes shall have a preference on the calendar. On a second, and each subsequent appeal to the Court of Appeals, the cause shall be placed on the calendar as of the time of filing the return on the first appeal. § 14.—[Number of judges who may give judgment.|—The concurrence of five judges is necessary to pronounce a judg- ment. If five do not concur, the case must be re-heard. But no more than two re-hearings shall be had, and if, on the ACT CONCERNING APPEALS. 9 second re-hearing, five judges do not concur, the judgment shall be affirmed. § 15.—[Sherif’s to provide rooms, ete., for court.|—If at a term of the Court of Appeals, proper and convenient rooms, both for the consultation of the judges and the holding of the court, with furniture, attendants, fuel, lights, and stationery, suitable and sufficient for the transaction of its business, be not provided for it, in the place where by law the court may be held, the court may order the sheriff of the county to make such provision, and the expense incurred by him in carrying the order into effect, shall be a county charge. § 16.—[Court may be adjourned to places other than those designated by law.]—The Court of Appeals may be held in other buildings than those designated by law as places for holding courts, and at a different place in the same city from that at which it is appointed to be held. Any one or more of the judges may adjourn the court, with the like effect as if all were present. “AN ACT “ ConceRniInG APPEALS.” Passed April 3, 1854. “8 1. In all cases where regular and valid appeals were taken to the Court of Appeals from orders of the Supreme Court granting new trials in causes pending therein, pursuant to the eleventh section of the Code of Procedure, as amended by the act passed on the tenth day of July, eighteen hundred and fifty- one, the Court of Appeals shall proceed to hear and determine such appeals, anything contained in the act further amending the Code of Procedure, passed on the sixteenth day of April, eighteen hundred and fifty-two, to the contrary notwithstanding; provided, however, that such appeals were taken before the said last mentioned act took effect as a law. “89. This act shall take effect immediately.” [Laws of TTth Session, Chap. 135.] 10 THE CODE OF PROCEDURE. TITLE III. OF THE SUPREME COURT, CIRCUIT COURTS, AND COURTS OF OYER AND TERMINER. Secrion 17. Existing statutory provisions, as to terms and business of the cour:s repealed, and order of Supreme Court fixing the terms, etc., abrogated. 18. General terms prescribed. 19. Number of judges to give judgment. 20. Special terms, Circuit Courts, and Courts of Oyer and Terminer, prescribed. 21. Circuit Courts and Oyer and Terminer held together. 22, Designation of times and places of holding courts; how made. 28. Extraordinary general and special terms, and Oyer and Terminer how appointed. 24. Places of holding the courts. 25. Publication of appointment thereof. 26. When judges not assigned may hold the courts. 27. Duties of judges as to business out of court. 28. Rooms, fuel, etc. ; how furnished, § 17.—[Beisting statutory provisions as to terms and business of the courts repealed, an order of Supreme Court fixing terms, etc., abrogated.|—All statutes now in force, providing for the designation of the times and places of holding the general and special terms of the Supreme Court, and the Circuit Courts and Courts of Oyer and Terminer, and of the judges who shall hold the same, are repealed, from and after the first day of July, one thousand eight hundred and forty-eight; and the order of the Sapreme Court, adopted July fourteen, one thousand eight hundred and forty-seven, prescribing the times and places of holding the general and special terms of the court, and the Cir- cuit Courts and Courts of Oyer and Terminer, during the residue of the year one thousand eight hundred and forty-seven, and for the years one thousand eight hundred and forty-eight, and one thousand eight hundred and forty-nine, and assigning the business and duties thereof to the several judges of the court is, from and after the first day of July, one thousand eight hundred and forty-eight, abrogated; and the provisions of this title are substituted in place thereof. § 18.—[ General terms prescribed.]—At least four general terms of the Supreme Court shall be held annually in each THE CODE OF PROCEDURE. ll judicial district, and as many more as the judges in such dis- trict shall appoint, at such times and places as a majority of the judges of such district shall appoint. § 19.—[Wumber of judges to give judgment.]—The concur- rence of a majority of the judges holding a general term, shall be necessary to pronounce a judgment. If a majority do not concur, the case shall be re-heard. § 20.—[Special terms, Circuit Courts, and Courts of Oyer and Terminer, prescribed.|—There shall be at least two terms of the Circuit Court and Court of Oyer and Terminer held annually in each of the counties of this State, and as many more terms thereof, and as many special terms as the judges of each judicial district shall appoint therein, but at least one special term shall be held annually in each of said counties. Fulton and Hamilton shall be considered one county for the purposes of this section. § 21. [Circuit Courts and Courts of Oyer and Terminer held together.|—Circuit Courts, and Courts of Oyer and Termi- ner shall be held at the same places, and commenced on the same day. § 22. [Designation of times and places of holding courts, how made.|—The governor shall, on or before the first day of May, one thousand eight hundred and forty-eight, by appointment in writing, designate the times and places of holding the gene- ral and special terms, Circuit Courts, and Courts of Oyer and Terminer, and the judges by whom they shall be held; which appointment shall take effect on the first day of July there- after, and shall continue until the thirty-first day of December, one thousand eight hundred and forty-nine. The judges of the Supreme Court of each district shall, in like manner, at least one month before the expiration of that time, appoint the times and places of holding those courts for two years, com- mencing on the first day of January, one thousand eight hun- dred and fifty, and so on, for every two succeeding years, in their respective districts. § 23. [Extraordinary general and special terms and Oyer and Terminer how appointed.|—The governor may also appoint extraordinary general and special terms, Circuit Courts, and Courts of Oyer and Terminer whenever, in his judgment, the. public good shall require it. § 24. [Places of holding courts.|—The places appointed with- 12 THE CODE OF PROCEDURE. in the several counties, for holding the general and special terms, Circuit Courts, and Courts of Oyer and Terminer, shall be those designated by statute for holding County or Circuit Courts. Ifa room for holding the court in such place shall not be provided by the supervisors, it may be held in any room provided for that purpose, by the sheriff, as prescribed by sec- tion twenty-eight. General and special terms of the Supreme or County Courts and Circuit Courts and Courts of Oyer and Terminer, may be adjourned to be held on any future day, by an entry to be made in the minutes of the court; and juries may be drawn and summoned for an adjourned Circuit or County Court, or an adjourned Court of Oyer and Terminer, and causes may be noticed for trial at an adjourned Circuit or County Court, in the same manner as if such courts were held by original appoint- ment. § 25. [Publication of appointments thereof.]—Every appoint- ment so made, shall be immediately transmitted to the Secre- tary of State, who shall cause it to be published in the newspaper, printed at Albany, in which legal notices are re- quired to be inserted, at least once in each week, for three weeks before the holding of any court in pursuance thereof. The expense of the publication shall be paid out of the treasury of the State. § 26.—[ When judges not assigned may hold the courts.]—In ‘ease of the inability, for any cause, of a judge assigned for that purpose, to hold a special term or Circuit Court, or sit at a gene- ral term, or preside at a Court of Oyer and Terminer, any other judge may do so. § 27.—[Duties of judges as to business out of courts.}—The judges shall at all reasonable times, when not engaged in hold- ing court, transact such other business as may be done out of court. Every proceeding commenced before one of the judges, in the first judicial district, may be continued before another, with the same effect as if commenced before him. § 28.—[ Rooms, fuel, etc., how furnished.|—The supervisors cof the several counties shall provide the courts appointed to be held therein, with rooms, attendants, fuel, lights, and stationery, guitable and sufficient for the transaction of their business. If the supervisors neglect, the court may order the sheriff to do so; and the expense incurred by him in carrying the order in- THE CODE OF PROCEDURE. 13 to effect, when certified by the court, shall be a county charge. {The provisions of this section, “shall apply to the Court of Common Pleas‘for the city and county of New York, and the Superior Court and Marine Court of the said city ; and the said courts shall appoint the officers necessary to attend said courts, whose salaries shall be fixed by the board of supervisors and paid out of the city treasury.”] [Laws of 76th Session, Chap. 529; July 13, 1853.] TITLE IV. OF THE COUNTY COURTS. Szcrion 29. Repeal of existing statutes defining their jurisdiction. 80. Their jurisdiction. 81. General terms, when held. Notice tobe published. 82. Jurors, how drawn and summoned. § 29.—[ Repeal of existing statutes defining their jurisdic- tion.|—All statutes now in force, conferring or defining the jurisdiction of the county courts, so far as they conflict with this act, are repealed ; and those courts shall have no other juris- diction than that provided in the next section. But the repeal contained in this section shall not affect any proceedings now pending in those courts. § 30.—[ Their jurisdiction.|—The County Court has juris- diction in the following special cases, but has no original civil jurisdiction except in such cases: 1. Civil actions in which the relief demanded is the recovery of a sum of money not exceeding five hundred dollars, or the recovery of the possession of personal property not exceeding in value five hundred dollars, and in which all the defendants are residents of the county in which the action is brought, at the time of its commencement: subject to the right of the Supreme Court upon special motion for good cause shown to remove any such action to the Supreme Court before trial. 2. The exclusive power to review in the first instance, ajudg- ment rendered in a civil action by a Justice’s Court in the county, or by a Justice’s Court in cities, and to affirm, reverse, or modify such judgment: 3. The foreclosure or satisfaction of a mortgage, and the sale 14 THE CODE OF PROCEDURE. of mortgaged premises situated within the county, and the col- lection of any deficiency on the mortgage remaining unpaid, after the sale of the imortgaged premises : 4. The partition of real property situated within the county : 5. The admeasurement of dower in land situated within the county : 6. The sale, mortgage, or other disposition of the real pro- perty situated within the county, of an infant or person of unsound mind: 7. To compel the specific performance, by an infant, heir, or other person, of a contract made by a party who shall have died before the performance thereof: 8. The care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard, residing within the county: 9. The mortgage or sale of the real property situated within the county, of a religious corporation, and the disposition of the proceeds thereof: 10. To exercise the power and authority heretofore vested in such Courts of Common Pleas, over judgments rendered by justices of the peace, transcripts of which have been filed in the offices of the county clerks in such counties. 11. To exercise all the powers and jurisdiction conferred by statute upon the late Courts of Common Pleas of the county, or the judges or any judge thereof, respecting ferries, fisheries, turnpike roads, wrecks, physicians, habitual drunkards, im- prisoned, insolvent, absent, concealed, or non-resident debtors, jail liberties, the removal of occupants from State lands, the laying out of railroads through Indian lands, and upon appeal from the determination of commissioners of highways, and all other powers and jurisdiction conferred by statute, which has not been repealed, on the late Court of Common Pleas of the county, or on the County Court, since the late Courts of Com- mon Pleas were abolished, except in the trial and determination of civil actions; and to prescribe the manner of exercising such jurisdiction, when the provisions of any statute are inconsistent with the organization of the County Court. 12. To remit fines and forfeited recognizances in the same cases and like manner as such power was given by law to Courts of Common Pleas. But the first subdivision of this settion shall not apply to the county courts of the counties of Kings and Erie, THE CODE OF PROCEDURE. 15 13. To grant new trials, or affirm, modify, or reverse judg- ments in actions tried in such court upon exceptions, or case made subject to an appeal to the Supreme Court; but in any action or proceeding pending in the county court, in which the county judge is, for any cause, incapable of acting, it shall be his duty to make a certificate of such fact, and file the same in the office of the clerk of such county court, and thereupon jurisdiction of such action or proceeding shall be vested in the Supreme Court, and such further proceedings shall be had therein, according to the practice of such court, as might have been had'in the County Court, if such cause or matter had re- mained therein; but all such matters shall be heard or tried in the first instance at a Special Term or Circuit Court, held in a county where such action or proceeding is instituted. § 81—[General Terms, when held.|—The County Court is always oven for the transaction of any business for which no notice is required to be given to an opposing party. At least two terms in each county for the trial of issues of law or fact, and as many more as the county judge shall appoint, shall be held in each year at the places in the counties respectively de- signated by statute for holding county or circuit courts, on such days as the county judge shall, from time to time, appoint, and may continue as long as the court deem necessary. Notice of such appointment shall be published in the State paper at least four weeks before any such term, and also in a newspaper, if any, printed in the county; so many of such terms as the county judge shall designate for that purpose, in such notice, may be held for the trial of issues of law, and hear- ing and decision of motions and other proceedings at which no jury shall be required to attend. § 32.—[ Jurors, how drawn and summoned.]—JSurors for the county courts and courts of sessions shall be drawn from the jury box of the county, and summoned in the same manner as for the trial of issues at a circuit court. 16 THE CODE OF PROCEDURE. TITLE V. OF THE SUPERIOR COURT AND COURT OF COMMON PLEAS IN THE CITY OF NEW YORK, AND THE MAYORS’ AND RECORDERS’ COURTS IN OTHER CITIES. Sction 33. Jurisdiction of the courts named in this title. 84. Court of Common Pleas for New York has power to review judgments of the Marine and Justices’ Courts. 85. General and special terms of the Superior Court and Common Pleas to be appointed. 86. By whom held. 87. Judgments, where given. 38. Concurrence of two judges necessary. 89. Criers, how appointed. Salaries, how fixed. 40. Superior Court, of whom to consist. 41. Three justices of Superior Court to be elected. 42. How voted for. 43. How classified. 44. Expiration of terms and vacancies, how filled. 45. Powers of judges and their salaries. 46. Terms of Superior Court, and by whom held. 47. Certain civil suits may be transferred from the Supreme to the Supe- rior Court. 48. Jurisdiction of Superior Court in such cases. 49. Judges to hear for two years, suits transferred from Supreme Court. 50. Appeal to the Court of Appeals. 61. Section 28 applied to Superior Court. § 33.—[ Their jurisdiction.]—The jurisdiction of the Superior Court of the city of New York, of the court of Common Pleas for the city and county of New York, of the Mayors’ courts of cities, and of the Recorders’ courts of cities, shall extend to the following actions : 1. To the actions enumerated in sections one hundred and twenty-three and one hundred and twenty-four, when the cause of action shall have arisen, or the subject of the action shall be situated, within those cities respectively ; 2. To all other actions where all the defendants reside, or are personally served with the summons within those cities respect- ively, or where one or more of several defendants, jointly liable on contract, reside or are personally served with the summons, within those cities respectively, except in the case of Mayors’ and Recorders’ courts of cities, which courts shall only have jurisdiction where all the defendants reside within the cities in THE CODE OF PROCEDURE. Li which such courts are respectively situated. The Supreme Court may remove into that court any action brought under this subdivision, and pending in the Superior Court, or Court of Common Pleas for the city and county of New York, and may change the place of trial therein, as if such actien had been commenced in the Supreme Court ; such order for removal and for change of place of trial to be made in the Supreme Court upon motion and on filing a certified copy of such order in the office of the clerk of the Superior Court, or of the Court of Common Pleas, such cause shall be deemed to be removed into the Supreme Court, which shall proceed therein, as if the same had originally been commenced there ; and the clerk with whom such order is filed, must forthwith deliver to the clerk of the county in which, by such order, the trial is ordered to be had, to be filed in his office, all process, pleadings, and proceed- ings relating to such cause. And any action or proceeding pending in any mayor’s or recorder’s court, inwhich the judge is for any cause incapable of acting, may by such court be transferred to the county court of the county, and thereupon the papers therein on file in the mayor’s or recorder’s court shall be transmitted to the county court, which shall thenceforth have jurisdiction of such action or proceeding. [Laws of T5th Session, Chap. 392; April 16, 1852.] 3. To actions against corporations, created under the laws of this State, and transacting their general business, or keeping an office for the transaction of business, within those cities, re- spectively, or established by law thereiu, or created by or under the laws of any other State, government, or country, for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed, or delivered within the State, or upon any cause of action arising therein. § 34.—[Common Pleas in New York to review judgments of Marine and Justices’ Courts.|\—The Court of Common Pleas for the city and county of New York shall also have power to review the judgments of the Marine Court of the city of New York, and of the justices’ courts in that city. § 85.—[ Terms of Superior Court and Common Pleas in New York.|—The Superior Court of the city of New York, and the Court of Common Pleas for the city and county of New York, shall, within twenty days, appoint general and special terms of those courts respectively, and prescribe the duration thereof; and 2 18 THE CODE OF PROCEDURE. they may, from time to time, respectively, alter such appoint- ments ; and hereafter no fee shall be paid for any service of a judge of either of those courts. § 36.—[ By whom held.]—A general term shall be held by at least two of the judges of those courts respectively, and a special term by a single judge. § 87.—[ Judgments, where given.|—Judgments upon appeal shall be given at the general term; all others, at the special term. § 38.—[ Concurrence of two judges necessary.|—The concur- rence of two judges shall be necessary to pronounce a judg- ment atthe general term. If two do not concur, the appeal shall be re-heard. § 89.—[Criers, how appointed.]—A crier shall be appointed by the Superior Court of the city of New York, and by the Court of Common Pleas for the city and county of New-York re- spectively, to hold his office during the pleasure of the court. He shall receive a salary to be fixed by the supervisors of the city and county of New York, and paid out of the county treasury. § 40.—[Superior Court, of whom to consist.}—The Superior Court of the city of New York shall from the first day of May, one thousand eight hundred and forty-nine, consist of six justices. § 41.—-[ Three justices of Superior Court to be elected.|—Three justices of such Superior Court, in addition to the justices now holding office, shall be elected by the electors of the city and county of New York, at the annual charter election to be held in that city on the second Tuesday of April, one thousand eight hundred and forty-nine. § 42.—[ How voted for.]}—Such justices shall be voted for together on one ballot, which shall be distinct from any other ballot at the same election, and deposited in a separate box, marked “Superior Court.” The votes shall be canvassed and certified in the same manner as votes for the recorder of the city of New York, and a certificate thereof shall be tiled with the Secretary of State. § 43.—[ How classified. |—The justices so elected shall, imme- diately after the votes are canvassed, be classified by lot, to be publicly drawn by the register and clerk of the city and county of New York, in the presence of the mayor or recorder of the THE CODE OF PROCEDURE. 19 city of New York, and the certificate of such drawing and classi- fication shall be signed by such register and clerk, and by the attending mayor or recorder, and filed in the offices of the re- gister and clerk. The classes shall be numbered first, second, and third, according to the term of service of each; the first class being that which has the shortest time to serve. The term of offices of each of such justices shall commence on the first day of May, one thousand eight hundred and forty-nine, and the term of the justice of the first class shall expire on the thirty-first day of December, one thousand eight hundred and fifty-one; of the justice of the second class, on the thirty-first day of December, one thousand eight hundred and fifty-three ; and of the justice of the third class, on the thirty-first day of December, one thousand eight hundred and fifty-five. § 44.—[Expirations of terms and vacancies, how filled.]— After the expiration of the terms of office under such classifica- tion, the term of office of all the justices of the Superior Court of the city of New York shall be six years; and any vacancy occurring in the offices created by this title, shall be filled in the manner prescribed for filling vacancies in the offices of the present justices. § 45.—[Powers of judges, and their salaries.|—The justices elected pursuant to this title, subject to the provisions contained in section forty-nine, shall have the same powers, and per- form the same duties, in all respects, as the present justices of such Superior Court, and shall receive the same salaries, paya- ble in like manner. § 46.—[Terms of Superior Court, and by whom held.]—A general term of the Superior Court may be held by any two of the six justices thereof, and a special term by any one of them; and general and special terms, one or more of them, may be held at the same time. § 47.—[ Certain civil suits may be transferred from Supreme Court to the Superior Court.|—All civil suits at issue at the time of the passage of this act, that from and after the first of May, 1849, shall be placed upon the calendar of the Supreme Court at any general or special term thereof, to be held in the city of New York, and which shall be in readiness for hearing on questions of law only, or are equity cases, may by an order of that court, or of the judge holding such special term, be transferred to the said Superior Court of the city of New York, 20 THE CODE OF PROCEDURE. and to be heard at the general terms thereof, hereinafter pro- vided for. § 48.—[Jurisdiction of Superior Court in such cases.}—The said Superior Court shall have jurisdiction of every suit so transferred to it, and may exercise the same powers in respect to every such suit, and any proceedings therein, as the Supreme Court might have exercised, if the suit had remained in that court. § 49.—[ Judges to hear for two years suits transferred from Supreme Court.|—It shall be the special duty of the three jus- tices to be elected under the provisions of this title, and of their successors, to devote their time and labors, for the term of two years, from the first of May, one thousand eight hundred and forty-nine, to the hearing and determination of the suits trans- ferred from the Supreme Court, and for that purpose they, or any two of them, shall hold a general term of the said Superior Court, of at least two weeks in duration, in each month of the year, except the month of August. [2epealed, Laws 1851, ch. 2.] § 50.—[_ Appeal to Court of Appeals.|—Appeals from the judgments of the Superior Court in such suits may be taken to the Court of Appeals, in the same manner as from the judg- ments of the Superior Court in actions originally commenced therein. § 51.—[ Section 28 applied to the Superior Court.]|—The pro- visions of section twenty-eight of this act shall apply to the said Superior Court. Section 52. 53. 54. 55. 66, 57. 58. 59. 60. 61. 62. 63. 64. Roxe 1. me oo bo ORM TMN 10. 11. 12. 13. 14 15. 16. THE CODE OF PROCEDURE. 2] TITLE VI. OF THE COURTS OF JUSTICES OF THE PEACE. Repeal of certain existing provisions, Jurisdiction of these courts. Jurisdiction in civil actions limited, Answer of title to land. Undertaking therein. Suit before justice to be discontinued. Costs, Proceedings, if undertaking not given. The same. New action in Supreme Court; pleadings therein. Costs of action in Supreme Court. Proceedings where several causes of action, and answer of title as to one. Docketing justices’ judgments, and effect thereof. Rules in Justices’ Courts. The pleadings. . Pleadings, how put in. . Complaint. . Answer. . Pleadings, what to contain. . Demurrer. Proceedings in demurrer. . Plaintiff to prove his case, if defendant do not appear. . Proceedings inaction on account, or instrument for the payment of money only. Variance, when disregarded. Amending pleadings. Execution, when issuable and returnable. Execution on justices’ judgment docketed, Requiring party to exhibit his account. Certain provisions applicable to these courts. Offer to allow judgment. § 52.—[ Repeal of certain euisting provisions.|—The provi- sions contained in sections two, three, and four, of the article of the Revised Statutes, entitled “Of the jurisdiction of Jus- tices’ Courts,” as amended by sections one and two, of the act concerning justices’ courts, passed May 14, 1840, and the pro- visions contained in sections 59 to 66 of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace. 8 53.—[Jurisdiction of these courts.|—Justices of the peace 22 THE CODE OF PROCEDURE. shall have civil jurisdiction in the following actions, and no other: 1. An action arising on contract for the recovery of money only, if the sum claimed do not exceed one hundred dol- lars ; : 2. An action for damages for an injury to the person, or to real property, or for taking, detaining, or injuring personal property, if the damages claimed do not exceed one hundred dollars ; 3. An action for a penalty not exceeding one hundred dol- lars ; 4, An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not ex- ceed one hundred dollars ; 5. An action upon a bond, conditioned for the payment of money, not exceeding one hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due. Where the payments are to be made by installments, an action may be brought for each installment as it shall become due; 6. An action upon a surety bond taken by them, though the penalty or amount claimed exceed one hundred dollars ; 7, An action on a judgment rendered in a court of a justice of the peace, or of a justice’s or other inferior court in a city where such action is not prohibited by section 71; 8. To take and enter judgment on the confession of a de- fendant where the amount confessed shall not exceed two hundred and fifty dollars, in the manner prescribed by article eight, title four, chapter two, of part three of the Revised Statutes ; 9. An action for damages for fraud in the sale, purchase, or exchange of personal property, if the damages claimed do not exceed one hundred dollars. 10. An action to recover the possession of personal property claimed, the value of which, as stated in the affidavit of the plaintiff, his agent, or attorney, shall not exceed the sum of one hundred dollars. a. The plaintiff in such action, at the time of issuing the summons, but not afterward, may claim the immediate delivery of such property as hereinafter provided. b. Before any process shall be issued in an action to recover THE CODE OF PROCEDURE. 23 the possession of personal property, the plaintiff, his agent, or attorney, shall make proof by affidavit, showing: 1. That the plaintiff is the owner, or entitled to immediate possession, of the property claimed, particularly describing the same ; 2. That such property is wrongfully withheld or detained by the defendant ; 8. The cause of such detention or withholding thereof, according to the best knowledge, information, and belief of the person making the affidavit. 4. That said personal property has not been taken for any tax, fine, or assessment, pursuant to statute, or seized by virtue’ of an execution or attachment against the property of said plaintiff; or if so seized, that it is exempt from such seizure by statute ; 5. The actual value of said property. e. On receipt of such affidavit, and an undertaking, in writing, executed by one or more sufficient sureties, to be approved by the Justice of the Peace before whom such an action is commenced, to the effect that they are bound in double the value of such property, as stated in said affidavit for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same, to be disposed of according to law; and the said justice shall at the same time issue a summons directed to the defend- ant, and requiring him to appear before said justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action. d. The constable to whom said affidavit, indorsement, and summons shall be delivered, shall forthwith take the property 24 THE CODE OF PROCEDURE. described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if he ean be found in said county; if not found, to the agent of the defendant in whose possession said property shall be found ; if neither can be found, by leaving such copies at the usual place of abode of the defendant, with some person of suitable age and discretion; and shall forthwith make a return of his pro- ceedings thereon, and the manner of serving the same, to the justice who issued the said summons. e. The defendant may at any time after such service, and at least two days before the return day of said summons, serve upon plaintiff, or constable who made such service, a notice in writing that he excepts to sureties in said bond or undertaking; and if he fail to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plain- tiff give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judg- ment for defendant’s costs and disbursements. Jj. At any time before the return day of said summons, the said defendant may, if he has not excepted to plaintiff’s sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property, as stated in plaintitt’s affidavit, for the delivery thereof to said plaintiff if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to gaid plaintiff. g. The qualification of sureties and their justification under this act, shall be the same as provided in sections one hundred and ninety-four and one hundred and ninety-five of the Code, in respect to bail on arrest in the Supreme Court. A. Sections two hundred and fourteen, two hundred and fifteen, and two hundred and sixteen of the Code, shall apply THE CODE OF PROCEDURE. 25 to proceedings and actions brought under this act, substituting the word constable for the word sheriff whenever it occurs in either of said sections. z The actions so commenced shall be tried in all respects as other actions are tried in justices’ courts. j- In all actions for the recovery of the possession of per- sonal property, as herein provided, if the property shall not have been delivered to plaintiff, or the defendant by answer shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements. k. If it shall appear by the return of a constable that he had taken the property described in the plaintiff’s affidavit, and that defendant cannot be found, and has no Jast place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a per- sonal service. ?. For the indorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit. [Laws of 83d Session, Chap. 131, March 30, 1860.] § 54.—[ Jurisdiction in civil actions limited.J|—But no jus- tice of the peace shall have cognizance of a civil action, 1. In which the people of this State are a party, excepting for penalties not exceeding one hundred dollars ; 2. Nor where the title to real property shall come in ques- tion, as provided by sections 55 to 62, both inclusive ; 8. Nor of a civil action for an assault, battery, false impri- sonment, libel, slander, malicious prosecution, criminal conver- sation, or seduction ; 4, Norof a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the jus- tice, shall exceed four hundred dollars ; 5. Nor of an action against an executor or administrator, as such. § 55.—[Answer of title to land.|—In every action brought in a court of a justice of the peace where the title to real pro- perty shall come in question, the defendant may, either with or without other matter of defence, set forth in his answer, any 26 THE CODE OF PROCEDURE. matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his at- torney, and delivered to the justice. The justice shall there- upon countersign the same, and deliver it to the plaintiff. § 56.—[ Undertaking thereon.|—At the time of answering, the defendant shall deliver to the justice a written undertaking executed by at least one sufficient surety, and approved by the justice, to the effect, that if the plaintiff shall within twenty days thereafter deposit with the justice a summons and com- plaint in an action in the Supreme Court for the same cause, the defendant will, within twenty days after such deposit, give an admission in writing of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars. § 57.—[Suit before justice to be discontinued—Costs.|—Upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause inthe Supreme Court. If nosuch action be brought within thirty days after the delivery of the undertaking, the defendant’s costs before the justice may be recovered of the plaintiff. [Laws 1858, ch. 306.] § 58.—[ Proceedings, of undertaking not given.|—If the un- dertaking be not delivered to the justice, he shall have juris- diction of the cause, and shall proceed therein; and the de- fendant shall be precluded, in his defence, from drawing the title in question. § 59.—[ The same.]—If, however, it appear on the trial, from the plaintifi’s own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action, and render judgment against the plaintiff for the costs. § 60.—[New action in Supreme Court.|—When a suit before a justice shall be discontinued by the delivery of an answer and undertaking, as provided in sections fifty-five, fifty-six, and THE CODE OF PROCEDURE. 27 fifty-seven, the plaintiff may prosecute an action for the same cause in the Supreme Court, and shall complain for the same cause of action only on which he relied before the justice; and the answer of the defendant shall set up the same defence only which he made before the justice. § 61.—[Costs of action in Supreme Court.|—If the judgment in the Supreme Court be for the plaintiff, he shall recover costs ; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial. § 62.—[Proceedings where several causes of action, and an- swer of title as to one.]—If, in an action before a justice, the plaintiff have several causes of action, to one of which the de- fence of title to real property shall be interposed, and as to such cause, the defendant shall answer and deliver an undertaking, as provided in sections fifty-five and fifty-six, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the Supreme Court. As to the other causes of action, the justice may continue his proceedings. [Zaws 1858, ch. 306.] All actions pending in any County Court on the seventh day of May, eighteen hundred and fifty-eight, in all cases in which a plea of title was interposed in actions originally commenced in a justice’s court, are transferred to and vested in the Su- preme Court, with full power and jurisdiction to proceed therein, as if commenced in said Supreme Court, by reason of a plea of title having been interposed in a Justices’ Court in like cases. [Laws 1860, ch. 459.] § 63.—[Docketing justices’ judgments, and effect thereof.|—A. justice of the peace, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon, and entered in the docket; and, from that time, the judgment shall be a judgment of the County Court. A certi- fied transcript of such judgment may be filed and docketed in the clerk’s office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered, except that it shall be a lien, only from the time of 28 THE CODE OF PROQEDURE. filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, here- after docketed, shall be alien upon, or enforced against real property. § 64.—[Rules in Justices’ courts.|—The following rules shall be observed in the courts of justices of the peace: 1. The pleading. The pleadings in these courts are— 1. The complaint by the plaintiff ; 2. The answer by the defendant. 2. Pleadings, how put in. The pleadings may be oral, or in writing; if oral, the sub- stance of them shall be entered by the justice in his docket; if in writing, they shall be filed by him, and a reference to them shall be made in the docket. 8. Complaint. The complaint shall state, in a plain and direct manner, the facts constituting the cause of action. 4, Answer. The answer may contain a denial of the complaint, or of any part thereof, and also notice, in a plain and direct manner, of any facts constituting a defence. 5. Pleadings, what to contain. Pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended. 6. Demurrer. Either party may demur to a pleading of his adversary, or any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or de- fence, although it be taken as true. THE CODE OF PROCEDURE. 29 7. Proceedings on demurrer. If the court deem the objection well founded, it shall order the pleading to be amended, and, if the party refuse to amend, the defective pleading shall be disregarded. 8. Plaintiff to prove his case if defendant do not appear. In case a defendant does not appear and answer, the plaintiff cannot recover, without proving his case. 9. Proceedings in action on account, or instrument for payment of money only. In an action or defence, founded upon an account or an in- strument for the payment of money only, it shall be sufficient fora party to deliver the account or instrument to the court, and to state, that there is due to him thereon from the adverse party a specitied sum, which he claims to recover or set off. 10. Variance, when disregarded. A variance between the proof on the trial, and the allega- tions in a pleading, shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby. 11. Amending pleadings. The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, when by such amendment substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amend- ment, an adjournment shall be granted. The court may also, in its discretion, require as a condition of an amendment the payment of costs to the adverse party. 12. Execution, when issuable and returnable. Execution may be issued on a judgment heretofore or here- after rendered in a justice’s court, at any time within five 30 THE CODE OF PROCEDURE. years after the rendition thereof, and shall be returnable sixty days from the date of the same. 13. Execution on justices’ judgment docketed. If the judgment be docketed with the county clerk, the exe- cution shall be issued by him to the sheriff of the county, and have the same effect, and be executed in the same manner as other executions and judgments of the County Court, except as provided in section 63. 14. Requiring party to exhibit his account. The court may, at the joining of issue, require either party, at the request of the other, at that or some other specified time, to exhibit his account on demand, or state the nature thereof as far forth as may be in his power, and in case of his detault preclude him from giving evidence of such parts there- of as shall not have been so exhibited or stated. 15. Certain provisions applicable to these courts. The provisions of this act, respecting forms of action, parties to actions, the rules of evidence, the times of commencing ac- tions, and the service of process upon corporations, shall apply to these courts. [Laws of 75th Session, Chap. 292; April 16, 1852.] 16. Offer to allow judgment. The defendant may, on the return of process, and before answering, make an offer in writing to allow judgment to be taken against him for an amount to be stated in such offer, with costs. The plaintiff shall thereupon, and before any other proceedings shall be had in the action, determine whether he will accept or reject such offer. If he accept the offer, and give notice thereof in writing, the justice shall file the offer and the acceptance thereof, and render judgment accordingly. If notice of acceptance. be not given, and if the plaintiff fail to obtain judgment for a greater amount, exclusive of costs, than has been specified in the offer, he shall not recover costs, but shall pay to the defendant his costs accruing subsequent to the offer. [Laws of 83d Session, Chap. 459; April 16, 1860.] THE CODE OF PROCEDURE. 31 TITLE VII. OF JUSTICES’ AND OTHER INFERIOR COURTS IN CITIES. Cuaprter I. The Marine Court of the City of New York. II. The Justices’ Courts in the City of New York. III. The Justices’ Courts of cities. IV. General provisions. Cuapter I, THE MARINE COURT OF THE CITY OF NEW YORK. Section 65.—[lis Jurisdiction. ] The Marine Court of the city of New York shall have juris- diction in the following cases, and no other : 1. In actions similar to those in which courts of justices of the peace have jurisdiction, as provided by sections 53 and 54. 2. In an action upon the charter or a by-law of the corpora- tion of the city of New York, where the penalty or forfeiture shall exceed twenty-five dollars, and not exceed one hundred dollars. 3. In an action between a person belonging to a vessel in the merchant service, and the owner, master, or commander thereof, demanding compensation for the performance, or dam- ages for the violation of a contract for services on board such vessel, during a voyage performed in whole or in part, or in- tended to be performed, by such vessel, though the sum de- manded exceed one hundred dollars. 4. In an action by or against any person belonging to or on board of a vessel in the merchant service, for an assault and battery, or false imprisonment, committed on board such ves- sel upon the high seas, or in a place without the United States, of which the ordinary courts of law of this State have jurisdic- tion, though the damages demanded exceed one hundred dol- lars. But nothing in this or the last preceding subdivision of this section, shall give the court power to proceed in any of the cases therein referred to, as a Court of Admirality or mari- time jurisdiction. 32 THE CODE OF PROCEDURE. Cuapter II. THE JUSTICES’ COURTS IN THK CITY OF NEW YORK. Section 66.—[ Their jurisdiction. } The Assistant Justices’ Courts in the city of New York shall hereafter be styled the Justices’ Courts in the city of New York, and shall have jurisdiction in the following cases: 1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54. 2. In an action upon the charter or a by-law of the corpora- tion of the city of New York, where the penalty or forfeiture shall not exceed one hundred dollars. Cuaprer III. THE JUSTICES’ COURTS OF CITIES. Section 67.—[Their jurisdiction. ] The Justices’ Courts of cities shall have jurisdiction in the following cases, and no other: 1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54. 2. In an action upon the charter or by-laws of the corpo- rations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars. Cuapter LV. GENERAL PROVISIONS. Section 68.—[Sections 55 to 64 applied to the courts embraced in thes title. ] The provisions of sections fifty-five to sixty-four, both in- clusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect, and the THE CODE OF PROCEDURE. 33 mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts em- braced in this title; except that, after the discontinuance of the actions in the inferior court upon an answer of title, the new action may be brought either in the Supreme Court, or in any other court having jurisdiction thereof, and except, also, that in the city and county of New York, a judgment for twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner as and be deemed a judgment of the Court of Common Pleas for the city and county of New York. 34 TITLE I, IL. Hl. Iv. Vv. VI. VII. VIII. Ix. . Or THe Costs. XI. XII. XIII. XIV. XV. THE CODE OF PROCEDURE. PART 11. OF CIVIL ACTIONS. Or turin Form. Or tHE Time or CoMMENCING THEM, Or tHe Parrtizs, Or tae Puace or TRIAL. Or THE Manner oF CoMMENCING THEM. Or tne Pieapines. Or tHe ProvistonaL REMEDIES. Or tus TriaL aND JUDGMENT. Or THe EXECUTION OF THE JUDGMENT. Or APPEALS. Or tue MiscrLuangous PROCEEDINGS. Actions In Particutar CasEs, Provisions Re.atine To Existing Sorts. GeNERAL Provisions. TITLE I. OF THE FORM OF CIVIL ACTIONS. Sxction 69. Distinction between actions at law and suits in equity, and forms of such actions and suits, abolished. 70. Parties to an action, how designated. 71. Actions on judgments, when and how to be brought. ‘72. Feigned issues abolished, and order for trial submitted. § 69.—[Distinction between actions at law and suits in equity, and forms of such actions and suits, abolished.|—The distine- tion between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished ; and there shall be in this State, hereafter, but one form of ac- tion, for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. § 70.—[Parties to an action, how designated.|—In such ac- tion, the party complaining shall be known as the plaintiff, and the adverse party as the defendant. § 71.—[ Actions on judgment, when and how to be brought.|— No action shall be brought upon a judgment rendered in any THE CODE OF PROCEDURE. 35 court of this State, except a court of a justice of the peace, between the same parties, without leave of the court, for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed. § 72.—[Peigned issues abolished, and order for trial substi- tuted.J|—Feigned issues are abolished; and instead thereof, in the cases where the power now exists to order a feigned issue, or when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly, the question of fact to be tried, and such order shall be the only authority necessary for a trial. TITLE II. OF THE TIME OF COMMENCING OIVIL ACTIONS. Caaprzr I. Actions in general. II. Actions for the recovery of real property. III. Actions, other than for the recovery of real property. 1V. General provisions. Cuapteg I. THE TIME OF COMMENCING ACTIONS IN GENERAL. Szction 73. Repeal of existing limitations, 74. Time of commencing civil actions. § 73.—[Leepeal of existing limitations.|—The provisions con- tained in the chapter of the Revised Statutes, entitled “of actions and the times of commencing them,” are repealed, and the provisions of this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where the right of action has already accrued ; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form. 36 THE CODE OF PROCEDURE. § 74.—[Time for commencing civil actions.]—Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute, and in the cases mentioned in section seventy-three. But the objection that the action was not commenced within the time limited, can only be taken by answer. Cuapter II. THE TIME OF COMMENCING ACTIONS FOR THE RECOVERY OF REAL PROPERTY. Szorron 75. When the people will not sue. 16. When action cannot be brought by grantee from the State. 77. When actions by the people or their grantees to be brought within twenty years. 78. Seisin within twenty years, when necessary in action for real pro- perty. 79. Seisin within twenty years, when necessary in action or defence founded on title to or rents of real property. 80. Action must be commenced within one year after entry, or within twenty years after right of entry. 81. Possession, when resumed. Occupation deemed under legal title, unless adverse. 82. Occupation under written instrument or judgment, when deemed adverse. 83. What constitutes adverse possession, under written instrument or judgment. 84. Premises actually occupied, under claim of title, deemed to be held adversely. 85. What constitutes adverse possession under claim of title not written. 86. Relation of landlord and tenant, as affecting adverse possession. 87. Right of possession not affected by descent cast, 88. Certain disabilities excluded from time to commence actions. § 75.—[ When the people will not sue.]—The people of this State will not sue any person for, or in respect to any real property, or the issue or profits thereof, by reason of the right or title of the people to the same, unless, 1. Such right or title shall have accrued within forty years before any action or other proceeding for the same shall be commenced ; or unless, 2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years. THE CODE OF PROCEDURE. aL § 76.—[ When action cannot be brought by grantee from the States.—No action shall be brought for, or in respect to, real ‘property, by any person claiming by virtue of letters patent, or grants from the people of this State, unless the same might have been commenced by the people as herein specified, in case such patent or grant had not been issued or made. §77.—[ When action by the people or their grantees to be brought within twenty years.}—When letters patent or grants of real property shall have been issued or made by the people of this State, and the same shall be declared void by the de- termination, of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mis- take, or ignorance of a material fact, or wrongful detaining, or defective title, in such case, an action for the recovery of the premises so conveyed, may be brought either by the people of this State, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within twenty years after such determination was made; but not after that period. § 78.—[Seisin within twenty years, when necessary in action Sor real property.|—No action for the recovery of real proper- ty, or for the recovery of the possession thereof, shall be main- tained unless it appear that the plaintiff, his ancestor, pre- decessor, or grantor, was seised or possessed of the premises in question, within twenty years before the commencement of such action. § 79.—[Seisin within twenty years, when necessary in action or defence founded on title to or rents of real property.|—No cause of action or defence to an action founded upon the title to real property, or to rents or services out of the same, shall be effectual, unless it appear that the person prosecuting the action, or making the defence, or under whose title the action is prosecuted or the defence is made, or the ancestor, prede- cessor, or grantor of such person, was seised or possessed of the premises in question, within twenty years before the commit- ting of the act in respect to which such action is prosecuted or defence made. § 80.—[ Action must be commenced within one year after entry, or within twenty years after right of entry.]—No entry upon real estate shall be deemed sufficient or valid as a claim, unless an action be commenced thereupon within one year after the making of such entry, and within twenty years from 38 THE CODE OF PROCEDURE. the time when the right to make such entry descended or ac- crued. § 81.—[ Possession, when presumed. Occupation deemed under legal title, unless adverse.}|—In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises, by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for twenty years before the commencement of such action. § 82.—[ Occupation under written instrument or judgment, when deemed adverse.|—Whenever it shall appear that the oc- cupant, or those under whom he claims, entered into the pos- session of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court; and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises, under such claim, for twenty years, the pre- mises so included shall be deemed to have been held adversely, except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. § 83.—[ What constitutes adverse possession, under written instrument or judgment.|—For the purpose of constituting an adverse possession, by any person claiming a title founded up- on a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases : 1. Where it has been usually cultivated or improved ; 2. Where it has been protected by a substantial inclosure ; 8. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, for the purpose of hus- bandry, or the ordinary use of the occupant; 4. Where a known farm or a single lot has been partly im- proved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have THE CODE OF PROCEDURE. 39 been occupied for the same length of time as the part improved and cultivated. — § 84.—[Premises actually occupied, under claim of title deemed to be held adversely.|—W here it shall appear that there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the pre- mises so actually occupied, and no other, shall be deemed to have been held adversely. § 85.—[ What constitutes adverse possession under claim of tatle, not written. |—For the purpose of constituting an adverse possession, by a person claiming title not founded upon a writ- ten instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial inclosure ; 2. Where it has been usually cultivated or improved. § 86.—[ Relation of landlord and tenant, as affecting adverse possession.|—Wheneyver the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy ; or where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent; notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods herein limited. § 87.—[ Right of possession not affected by descent cast.J\— The right of a person to the possession of any real property, shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property. § 88.—[Certain disabilities excluded from time to commence action.|—If a person entitled to commence any action for the recovery of real property, or to make an entry or defence founded on the title to real property, or to rents or services out of the same, be at the time such title shall first descend or ac- crue either : 1. Within the age of twenty-one years; or, 2. Insane; or, 40 THE CODE OF PROCEDURE. 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; or, 4. A married woman ; The time, during which such disability shall continue, shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defence; but such action may be commenced, or entry or defence made, after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced, or entry or defence made, after that period. Caaprter III. THE TIME OF COMMENCING ACTIONS OTHER THAN FOR THE RECOV- ERY OF REAL PROPERTY. Section 89. Periods of limitation prescribed. 90. Within twenty years. 91. Within six years. 92, Within three years. 93. Within two years, 94, Within one year. 95. When cause of action accrued, in an action upon a current account. 96. Actions for penalties, etc., by any person who will sue, when to be brought. 97. Actions for relief, not before provided for. 98. Actions by the people, subject to the same limitation. § 89.—[Periods of limitation preseribed.|—The periods pre- scribed in section seventy-four for the commencement of ac- tions other than for the recovery of real property, shall be as follows: § 90. Within twenty years: 1, An action upon a judgment or decree of any court of the United States, or of any State or territory within the United States. 2. An action upon a sealed instrument. § 91. Within six years: 1. An action upon a contract, obligation, or liability, express or implied ; excepting those mentioned in section ninety. THE CODE OF PROCEDURE. 41 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for trespass upon real property. 4. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property. 5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated. 6. An action for relief, on the ground of fraud; in cases which heretofore were solely cognizable by the Court of Chan- cery; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party, of the facts constituting the fraud. § 92. Within three years: 1. An action against a sheriff, coroner, or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty ; including the non-payment of money collected upon an execution. But this section shall not apply to an action for an escape. 2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this State, except where the statute imposing it prescribes a different limitation. § 93. Within two years: 1. An action for libel, slander, assault, battery, or false im- prisonment. 2. An action upon a statute, for a forfeiture or penalty to the people of this State. § 94. Within one year: 1. An action against a sheriff or other officer, for the escape of a prisoner, arrested or imprisoned on civil process. § 95.—[ When cause of action accrued in an action upon a current account.]—In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. § 96.—[ Actions for penalties, ete., by any person who will sué.]—An action upon a statute for a penalty or forfeiture, 42 THE CODE OF PROCEDURE. given in whole or in part to any person who will prosecute for the same, mnst be commenced within one year after the com- mission of the offence; and if the action be not commenced within the year by a private party, it may be commenced within two years thereafter, in behalf of the people of this State, by the attorney-general or the district attorney of the county where the offence was committed. § 97.—[ Actions for relief, not before provided for.}—An action for relief, not hereinbefore provided for, must be com- menced within ten years after the cause of action shall have accrued. § 98.—[ Actions by the people subject to the same limitation.J— The limitations prescribed in this chapter shall apply to actions brought in the name of the people of this State, or for their benefit, in the same manner as to actions by private parties. Cuarter IY. GENERAL PROVISIONS AS TO THE TIME OF COMMENCING ACTIONS. Szction 99. When action deemed to have been commenced. 160. Exception, where defendant is out of the State. 101. Exception, as to persons under disabilities, 102. Provision, where person entitled dies before the limitation expires. 103. In suits by aliens, time of war to be deducted. 104. Provision, where judgment has been reversed. 105. Time of stay of action by injunction or statutory prohibition to be deducted. 166. Disability must exist when right of action accrued. 107. Where two or more disabilities, limitation does not attach till all removed. 108. This title not applicable to bills, etc., of corporations, or to bank- notes, 109. Nor to actions against directors or stockholders of moneyed corpora- tions or banking associations. Limitations in such cases pre- scribed. 110. Acknowledgment or new promise must be in writing. § 99.—[ When action deemed to have been commenced.]—An action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest, with him. An attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be THE CODE OF PROCEDURE. 43 actually served, to the sheriff or other officer of the county, in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff, or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt must be followed by the first publication of the sum- mons, or the service thereof, within sixty days. § 100.—[ Exception, where defendant is out of the State.]—If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited after the return of such person into this State; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. § 101.—[_ Exceptions, as to persons under disabilities.]—If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either: 1, Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution under _ the sentence of a criminal court, for a term less than his natural life; or, 4, A married woman ; The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought, cannot be extended more than five years by any such disability, except infancy, nor can it be so extended in any case longer than one year after the disability ceases.—[Laws of 75th Session, Chap. 392; Apri 16th, 1852.] § 102.—[ Provision, where person entitled dies before limita- tzon expires.]—If a person entitled to bring an action die be- fore the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. If a person against 44 THE CODE OF PROCEDURE. whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrator, after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration. § 103.—[Zn actions by aliens, time of war to be deducted.}— . When a person shall be an alien subject or citizen of a country at war with the United States, the time of the continuance of the war shall not be part of the period limited for the com- mencement of the action. § 104.—[ Provisions, where judgment has been reversed.|—If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives, may commence a new ac- tion within one year after the reversal. § 105.—[Time of stay by injunction or statutory prohibition to be deducted.|—When the commencement of an action shall be stayed by injunction, or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. § 106.—[Disability must exist when right of action accrued.] —No person shall avail himself of a disability unless it existed when his right of action accrued. § 107.—[ Where several disabilities, all must be removed.J— When two or more disabilities shall co-exist, at the time the right of action accrues, the limitation shall not attach until they all be removed. § 108.—[ This title not applicable to bills, ete., of corporations or to bank notes.|—This title shall not affect actions to enforce the payment of bills, notes, or other evidences of debt issued by moneyed corporations, or issued or put in circulation as money. § 109.—[Wor to actions against directors, etc., of moneyed cor- porations or banking associations. Limitation in such cases prescribed.|—This title shall not affect actions against direc- tors or stockholders of a moneyed corporation, or banking asso- ciations, to recover a penalty or forfeiture imposed, or to en- force a liability created by law; but such actions must be brought within six years after the discovery, by the aggrieved THE CODE OF PROCEDURE. 45 party, of the facts upon which the penalty or forfeiture at- tached, or the liability was created. § 110.—[Acknowledgment or new promise must be made in writing.|—No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be con- tained in some writing signed by the party to be charged thereby ; but this section shall not alter the effect of any pay- ment of principal or interest. TITLE II. OF THE PARTIES TO CIVIL ACTIONS. Section 111. Action to be in the name of the real party in interest. 112. Assignment of a thing in action not to prejudice a defence. 113, Executor or trustee may sue without the persons beneficially inte- rested. 114. When married woman is party, her husband to be joined, except, ete. 115. Infant to appear by guardian. 116. Guardian, how appointed. 117. Who may be joined as plaintiffs. 118. Who may be joined as defendants. 119. Parties united in interest, when to be joined. When one or more may sue or defend for the whole. 120, Plaintiff may sue in one action the different parties to commercial paper. 121. Action, when not to abate by death, marriage, or other disability, etc. Proceedings in such case. 122. Court when to decide controversy, or to order other parties to be brought in. § 111.—[Action to be in the name of real party in interest.} —Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. § 112.—[Assignment of a thing in action not to prejudice a defence.|—In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment; but this section shall not apply to a nego- tiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due. \ 46 THE CODE OF PROCEDURE. § 113.—[ Executor, etc., or trustee, may sue without persons beneficially interested.|—An executor or administrator, a trus- tee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. § 114.—[Married women.|}—When a married woman is a party her husband must be joined with her, except that— 1. When the action concerns her separate property, she may sue alone. 9, When the action is between herself and her husband, she may sue or be sued alone; and in no case need she pro- secute or defend by a guardian or next friend. [Laws of 80th Session, Chap. 723, § 2; April 17, 1857.] An Acr concerning the Rights and Liabilities of Husband and Wife. Passed March 20, 1860. Sscrion 1. Married women may hold property, collect rents, etc. 2. A married woman may dispose of her separate property. 3. Consent of husband necessary in conveying property. 4. County Court may grant power to any married woman to convey property. . Court to determine whether notice shall be given. . In case of disability, etc., of husband. . Married woman may sue and be sued. . No bargain of a married woman carrying on trade shall be binding on her husband. 9. Children. 10. Decease of husband or wife. 11. Ibid. DTIraan The People of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1. The property, both real and personal, which any married woman now owns, as her sole and separate property ; that which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or services, carried on or performed on her sole or separate MARRIED WOMEN’S ACT. 47 account ; that which a woman married in this State owns at the time of her marriage, and the rents, issues and proceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, col- lected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts'as may have been contracted for the support of herself or her children, by her as his agent. Src. 2. A married woman may bargain, sell, assign and trans- fer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account, and the earnings of any married woman, from her, trade business, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name. Sxc. 8. Any married woman possessed of real estate as her separate property, may bargain, sell and convey such property, and enter into any contract in reference to the same, but no such conveyance or contract shall be valid without the assent, in writing, of her husband, except as hereinafter provided. Sec. 4. In case any married woman possessed of separate real property, as aforesaid, may desire to sell or convey the same, or to make any contract in relation thereto, and shall be unable to procure the assent of her husband, as in the preceding sec- tion provided, in consequence of his refusal, absence, insanity, or other disability, such married woman may apply to the County Court in the county where she shall at the time reside, for leave to make such sale, conveyance or contract, without the assent of her husband. Sec. 5. Such application may be made by petition, verified by her, and setting forth the grounds of such application. If the husband be a resident of the county, and not under disability, from insanity or other cause, a copy of said petition shall be served upon him, with a notice of the time when the same will be presented to the said court, at least ten days before such application. In all other cases the County Court to which such application shall be made, shall, in its discretion, determine whether any notice shall be given, and if any, the mode and manner of giving it. Ssc. 6. If it shall satisfactorily appear to such conrt, upon such application, that the husband of such applicant has willfully 48 MARRIED WOMEN’S ACT. abandoned his said wife, and lives separate and apart from her, or that he is insane, or imprisoned as a convict in any State prison, or that he is an habitual drunkard, or that he is in any way disabled from making a contract, or that he refuses to give his consent, without good cause therefor, then such court shall “cause an order to be entered upon its records, authorizing such married woman to sell and convey her real estate, or contract in regard thereto, without the assent of her husband, with the same effect as though such conveyance or contract had been made with his assent. Sec. 7. Any married woman may, while married, sue and be sued in all matters having relation to her property which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest, or the gift of any person except her husband, in the same manner as if she were sole. And any married woman may bring and maintain an action in her own name, for damages, against any person or body corpo- rate, for any injury to her person or character, the same as if she were sole ; and the money received upon the settlement of any such action, or recovered upon a judgment, shall be her sole and separate property. Szc. 8. No bargain or contract made by any married woman, in respect to her sole and separate property, or any property which may hereafter come to her by descent, devise, bequest, or gift’ of any person except her husband, and no bargain or contract entered into by any married woman in or about the carrying on of any trade or business under the statutes of this State, shall be binding upon her husband, or render him or his property in any way liable therefor. Sec. 9. Every married woman is hereby constituted and de- clared to be the joint guardian of her children, with her hus- band, with equal powers, rights and duties in regard to them, with the husband. Src. 10. At the decease of husband or wife, leaving no minor child or children, the survivor shall hold, possess and enjoy a life estate in one-third of all the real estate of which the hus- band or wife died seized. Sec. 11. At the decease of the husband or wife intestate, leav- ing minor child or children, the survivor shall hold, possess and enjoy all the real estate of which the husband or wife died seized, and all the rents, issues and profits thereof during the THE CODE OF PROCEDURE. 49 minority of the youngest child, and one-third thereof during his or her natural life. § 115.—[Infant to appear by guardian.}—When an infant is a party, he must appear by guardian, who may be appoint- ed by the court in which the action is prosecuted, or by a judge thereof, or a county judge. § 116—[Guardian, how appointed.]|—The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years ; or if under that age, upon the application of his general or testamentary guar- dian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides. 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a rela- tive or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this State; if he has none, then to the infant himself, if over fourteen years of age and within the State, or if under that age, and within the State, to the person with whom such infant resides. [Laws of 75th Ses- sion, Chap. 392; April 16, 1852.] § 117.—[ Who may be joined as plaintiffs. |—All persons hav- ing an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. § 118.—[ Who may be joined as defendants.|}—Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. § 119.—[Parties united in interest, when to be joined. 4 50 THE CODE OF PROCEDURE. When one or more may sue or defend for the whole.|—Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be ob- tained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the par- ties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole. § 120.—[ Plaintiff may sue in one action different parties to commercial paper.|—Persons severally liable upon the same obligation or instrument, including the parties to bills of ex- change and promissory notes may, all or any of them, be in- cluded in the same action, at the option of the plaintiff. § 121.—[Action, when not to abate by death, marriage, or other disability. Proceedings in such case.|—No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disa- bility of a party, the court, on motion, at any time within one year thereafter, or afterward on a supplemental complaint, may allow the action to be continued by or against his repre- sentative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. After a ver- dict shall be rendered in any! action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. [Laws of 80th Session, Chap. 723, § 38; April 17, 1857.] § 122.—[ Court when to decide controversy, or to order other parties to be brought in.]—The court may determine any con- troversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject there- THE CODE OF PROCEDURE. 51 of, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. [Lnterpleader order.|—A defendant, against whom an action is pending upon a contract, or for specific real or personal pro- perty, may at any time before answer, upon affidavit that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt or pro- perty, upon due notice to such person, and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property, or its value, to such person as the court may direct ; and the court may, in its discretion, make the order. TITLE IV. OF THE PLACE OF TRIAL OF CIVIL ACTIONS. Section 123. Certain actions to be tried where the subject or some part thereof is situated. 124. Other actions where the cause, or some part thereof arose. 125. Other actions, according to the residence of the parties. 126. Place of trial, how changed. § 123.—[ Certain actions to be tried where subject or some part thereof is situated.]|—Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by statute. 1. For the recovery of real property, or of an estate or inter- est therein, or for the determination, in any form, of such right or interest ; and for injuries to real property : 2. For the partition of real property : 3. For the foreclosure of a mortgage of real property : 4. For the recovery of personal property, distrained for any cause. § 124.—[Other actions, where cause or some part thereof arose.|—Actions for the following causes must be tried in the county where the cause or some part thereof arose, subject to the like power of the court, to change the place of trial in the cases provided by statute: 52 THE CODE OF PROCEDURE. 1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence com- mitted on a lake, river, or other stream of water situated in two or more counties, the action may be brought. in any county bordering on such lake, river, or stream, and opposite to the place where the offence was committed : 2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his oftice, or against a person, who by his command or in his aid, shall do anything touching the duties of such officer. § 125.—[ Other actions according to residence of the parties. } —In all other cases, the action shall be tried in the county in which the parties, or any of them, shall reside at the com- mencement of the action; or if none of the parties shall reside in the State, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute. § 126.—[ Action may be tried in any county, unless defend- ant demand trial in proper county.|—If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expire, demand, in writing, that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section. [Place of trial, how changed.|—The court may change the place of trial in the following cases : 1. When the county designated for that purpose in the com- plaint is not the proper county : 2. When there is reason to believe that an impartial trial cannot be had therein : 3. When the convenience of witnesses and the ends of jus- tice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the par- ties, in writing, duly filed, or order of the court, and the papers shall be filed or transferred accordingly. THE CODE OF PROCEDURE. 53 TITLE V. OF THE MANNER OF COMMENCING CIVIL ACTIONS. . Section 127. Actions, how commenced. 128. Summons, requisites of. 129. Notice to be inserted in certain actions. 130. Complaint need not be served with summons. In such case wh to be stated in summons and proceedings thereon. 181 Defendant unreasonably defending, when to pay costs. 132. Notice of pendency of action affecting title te real property. 133. Summons, by whom served. 134. Summons, how served and returned. 135. Publication, when defendant cannot be found. 186. Proceedings, where there are several defendants, and part only served, 187. When service deemed made in case of publication. 188. Service of summons, how proved. 139. When jurisdiction of action acquired. 8 127.—[ Actions how commenced.|—Civil actions in the courts of record of this State shall be commenced by the ser- vice of a summons. § 128.—[Summons, requisites of.|—The summons shall be subscribed by the plaintiff, or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is sub- scribed to the summons, at a place within the State, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service. § 129.—[Wotice to be inserted in certain actions.|—The plain- tiff shall also insert in the summons a notice, in substance as follows : 1. Inan action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint, in twenty days after the service of the summons. 9. In other actions, that if the defendant shall fail to answer the complaint within twenty days after the service of the sum- mons, the plaintiff will apply to the court for the relief demanded in the complaint. § 130.—[Complaint need not be served with summons. In 54 THE CODE OF PROCEDURE. such case what to be stated in summons, and proceedings there- on.|—A copy of the complaint need not be served with the summons. In such case, the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and in person, or by attorney, demands in writing a copy of the complaint, specifying a place within the State where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly, and after such service, the defendant has twenty days to answer, but only one copy need be served on the same attorney. § 181.—[Defendant unreasonably defending, when to pay costs.|—In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant with the sammons a notice subseribed by the plaintiff or his attor- ney, setting forth the general object of the action, a brief de- seription of the property affected by it, if it affects specific real ‘or personal property, and that no personal claim is made against such defendant ; in which case no copy of the complaint need be served on such defendant unless within the time for answer- ing he shall, in writing, demand the same. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff. § 132.—[Wotice of pendency of action affecting title to real property.\—In an action affecting the title to real property, the plaintiff at the time of filing the complaint, or at any time afterward, or whenever a warrant of attachment under chapter four of title seven, part second, of this Code shall be issued, or at any time afterward, the plaintiff, if the same be intended to affect real estate, may file with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county affect- ed thereby; and if the action be for the foreclosure of a mort- gage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing only shall the pendency of the action be con- structive notice to a purchaser or incumbrancer of the property affected thereby. And every person whose conveyance or jncumbranee is subsequently executed or subsequently record- THE CODE OF PROCEDURE. 55 ed, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice to the same extent as if he were made a party to the action. § 133.—[Summons, by whom served.|—The summons may be served by the sheriff of the county where the defendant may be found, or by any other person not a party to the action. The service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the sum- mons, may, at his option, by an indorsement on the summons, fix a time for the service thereof, and the service shall then be made accordingly. § 184.—-[Summons, how served.|—The summons shall be served by delivering a copy thereof as follows : 1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing agent thereof; but such service can be made, in respect to a foreign corporation, only when it has pro- perty within this State, or the cause of action arose therein, or where such service shall be made within this State, personally upon the president, secretary, or treasurer thereof. 2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed. 3. If against a person judicially declared to be of unsound mind or incapable of conducting his own affairs in conse- quence of habitual drunkenness, and for whom a committee has been appointed, to such committee and to the defendant personally. 4. In all other cases to the defendant personally. § 135.—[Publication when defendant cannot be found.]— Where the person, on whom the service of the summons is to be made, cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, or of the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant, in respect to whoin the service is to be made, or that he is a proper party to an 56 THE CODE OF PROCEDURE. action relating to real property in this State, such court or judge may grant an order that the service be made by the publication of a summons in either of the following cases : 1. Where the defendant is a foreign corporation, has property within the State, or the cause of action arose therein ; 2. Where the defendant, being a resident of this State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; 3. Where he is not a resident of this State, but has property therein, and the court has jurisdiction of the subject of the. action ; 4. Where the subject of the action is real or personal pro- perty in this State, and the defendant has, or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein ; 5. Where the action is fur divorce, in the cases prescribed by law. The order must direct the publication to be made in two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge must also direct a copy of the summons and complaint to be forthwith deposited in the post-office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with reason- able diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and com- plaint out of the State is eqnivalent to publication and deposit in the post-office. The defendant against whom publication is ordered, or his representatives, on application and sufficient cause shown, at any time before judgment, must be allowed to defend the action ; and except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as may be just ; and if the defence be successful, and the judgment or THE CODE OF PROCEDURE. 57 any part thereof, have been collected or otherwise enforced, such restitution may thereupon be compelled asthe court directs ; but the title to property sold under such judgment to a pur- chaser in good faith, shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons, as published, must state the time and place of such filing. In, actions for the foreclosure of mortgages on real estate already instituted or hereafter to be instituted, if any party or parties, having any interest in or lien upon such mortgaged pre- mises, are unknown to the plaintiff, and the residence of such party or parties cannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear by affidavit to the court, or to a justice thereof, or to the county judge of the county where the trial is to be had; such court, justice, or county judge, may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week, successively, in the State paper, and ina newspaper printed in the county where the premises are situated, which publication shall be equivalent to a personal service on such unknown party or parties. § 136.—[_Proceedings where there are several defendants, and part only served.|—Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows : 1. If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct ; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants ’ served ; or 2. If the action be against defendants,severally liable, he may proceed against the defendants served in the same manner as if they were the only defendants ; 3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plain- tiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them alone. 58 THE CODE OF PROCEDURE. § 1387.—[ When service deemed made in case of publication.] —In the cases mentioned in section 135, the service of the sum- mons shall be deemed complete, at the expiration of the time prescribed by the order for publication. § 188.—[Service of summons, how proved.|—Proof of the ser- vice of the summons, and of the complaint or notice, if any, accompanying the same, must be as follows: 1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, his affidavit thereof; or, 3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affida- vit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited ; or 4, 'The written admission of the defendant. In case of service, otherwise than by publication, the certifi- cate, affidavit, or admission must state the time and place of the service. § 139.—[ When jurisdiction of action acquired.\—Froi the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equi- valent to personal service of the summons upon him. An Acr to facilitate the service of Process in certain cases. Passed June 30, 1853. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Src. 1. [Process, how to be served.]|—Whenever it shall satis- factorily appear to any court, or any judge of the Supreme Court, or any county judge, by the return or affidavit of any sheriff, deputy sheriff, or constable authorized to serve or execute any process or paper for the commencement, or in the prosecution, of any action or proceeding, that proper and diligent effort has been made to serve any such process or paper on any defendant in any such action, residing in this State, and that such defendant cannot be found, or if found, avoids or evades such service, so that the same cannot be made personally, by such proper diligence and effort, such court or judge may, by THE CODE OF PROCEDURE. 59 order, direct the service of any summons, supcena, order, notice or other process or paper to be made by leaving a copy thereof at the residence of the person to be served, with some person of proper age, if admittance can be obtained, and such proper person found, who will receive the same; and if admittance cannot be obtained, or any such proper person found, who will receive the same, by affixing the same to the outer or other door of said residence, and by putting another copy thereof, properly folded or enveloped, and directed to the person to be served, at his place of residence, into the post-office in the town or city where such defendant resides, and paying the postage thereon. On filing with the clerk of the county where such defendant resides, or the county in which the complaint in ahy such action is by law to be filed, an affidavit showing service according to such order, such sum- mons, supeena, order, notice, or other process or paper, shall be deemed served, and the same proceedings may be taken thereon as if the same had been served by delivery to such defendant personally or otherwise, as by law now required ; but the court may, upon any application by them deemed reasonable, at any time, permit any defendant to appear and defend, or have such other relief, in any action or proceeding founded on any such service, as the nature of the case may require. [Laws of T6th Session, Chap. 511.] The 62d session of the Legislature passed “ An act in rela- tion to the Seventh Day Baptists,” which prohibited the ser- vice of process upon such persons on Saturday. [See Laws 1839, ch. 367.] This act was repealed at the 70th session. [Zaws 1847, ch. 349.] 60 THE CODE OF PROCEDURE. TITLE VI. OF THE PLEADINGS IN CIVIL ACTIONS. Carrer I. The complaint. Il. The demurrer. III. The answer. IV. The reply. V. General rules of pleading. VI. Mistakes in pleading and amendments. Cuarter I. * THE COMPLAINT. Section 140. Forms of pleading abolished. 141. First pleading to be complaint. 142. Complaint, what to contain. § 140.—[Porms of Pleading abolished.|—-All the forms of pleading heretofore existing, are abolished; and hereafter, the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be de- termined, are those prescribed by this act. [Laws of 75th Session, Chap. 392; April 16, 1852.] § 141.—LPirst pleading to be complaint.|—The first pleading on the part of the plaintiff is the complaint. § 142.—[ Complaint, what to contain.|—The complaint shall contain : 1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. 8. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated. THE CODE OF PROCEDURE. 61 Cuarter II. THE DEMURRER. Sxcrion 143. Defendant to demur or answer. 144, When the defendant may demur, 145. Demurrer must specify grounds of objection to complaint. 146. How to proceed if complaint be amended. 147, Objection not appearing on complaint, may be taken by answer. 148. Objection, when deemed waived. § 148.—[Defendant to demur or answer.]—The ouly plead- ing on the part of the defendant is either a demurrer or an answer. It must be served within twenty days after the ser- vice of the copy of the complaint. § 144.—[ When the defendant may demur.]—The defendant may demur to the complaint, when it shall appear upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action ; or, 2. That, the plaintiff has not legal capacity to sue ; or, 8. That there is another action pending between the same parties, for the same cause 5 or, 4. That there is a defect of parties, plaintiff or defendant ; or, 5. That several causes of action have been improperly united ; or, 6. That the complaint does not state facts sufficient to con- stitute a cause of action. § 145.—[Demurrer must specify grounds of objection to com- plaint.|—The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do so, it may be disre- garded. It may be taken to the whole complaint, or to any uf the alleged causes of action stated therein. § 146.—[ How to proceed if complaint be amended.]—If the complaint be amended, a copy thereof must be served on the defendant, who must answer it within twenty days, or the plaintiff, upon filing with the clerk on proof of the service, and of the defendant’s omission, may proceed to obtain judgment, as provided by section 246; but where an application to the court for judgment is necessary, eight days’ notice thereof must be given to the defendant. 62 THE CODE OF PROCEDURE. § 147.—[Objection not appearing on face of complaint, may be taken by answer.J—When any of the matters enumerated in section 144 do not appear upon the face of the complaint, the objection may be taken by answer. § 148.—[ Objection, when deemed waived.]—If no such objec- tion be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. Caapter III. THE ANSWER. Sgction 149. Answer, what to contain. 150. May set forth as many defences and counter-claims as exist. 151. Demurrer as to some causes of action, and answer as to others. 152. Sham defences to be stricken out. § 149.—[ Answer, what to contain.|}—The answer of the de- fendant must contain : , 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any know- ledge or information thereof sufficient to form a belief: 2. A statement of any new matter consisting of a defence or counter-claim, in ordinary and concise language, without repe- tition. [Laws of Tith Session, Chap. 392; April 16, 1852.] § 150.—[Counter-claim. Several defences.|}—The counter- claim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action ; 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action; The defendant may set forth by answer as many defences - and counter-claims as he may have, whether they be such as THE CODE OF PROCEDURE. 63 have been heretofore denominated legal or equitable, or both, They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished. [Laws of T5th Session, Chap. 392; Apra 16, 1852.] § 151.—[Demurrer as to some causes of action, and answer as to others.}—The defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue. § 152.—[Sham defences to be stricken out.|—Sham and irrele- vant answers and defences may be stricken out on motion, and upon such terms as the court may in their discretion impose. Cuarter IV. THE REPLY. Section 153. Reply, when to be put in, and what to contain. 154. When defendant may move for judgment upon an answer. 155. Demurrer to reply. § 153.—LReply, when to be put in, and what to contain.J— When the answer contains new matter, constituting a counter- claim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation con- troverted by him, or any knowledge or information thereof suf- ficient to form a belief; and he may allege, in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defence to such new matter in the answer; and the plaintiff may, in all cases, demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defence; and the plaintiff may demur to one or more of such defences or counter- claims, and reply to the residue of the counter-claims. And in other cases, when an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant’s motion, require a reply to such new matter; and in that case, the reply shall be subject to the same rules as a reply to a counter-claim. § 154.—[ When defendant may move for judgment upon an answer.|—If the answer contain a statement of new matter constituting a defence, and the plaintiff fail to reply or demur 64 THE CODE OF PROCEDURE. thereto within the time prescribed by law, the defendant may move on a notice of not less than ten days for such judgment, as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued. § 155.—[Demurrer to reply.|—If a reply of the plaintiff to any defence set up by the answer of the defendant be insufii- cient, the defendant may demur thereto, and shall state the grounds thereof. Cuaprer V. GENERAL RULES OF PLEADING. Szcrron 156. Pleadings to be subscribed. 157. Verification of pleadings. 158. How to state an account in pleading. 159. Pleadings to We liberally construed. 160. Irrelevant or redundant matter. Indefinite pleading. 161. Jurisdiction, how pleaded. 162. Conditions precedent. Instrument for payment of money. 163. Private statutes, how to be pleaded. 164. Libel and slander, how stated in complaint, 165, Answer in such cases. 166. In actions to recover property distrained for damage, answer need not set forth the title. 167. What causes of action may be joined in the same complaint. 168. Allegation not denied ; when to be deemed true. § 156.—[ Pleadings to be subscribed.]—Every pleading in a court of record must be subscribed by the party, or his attor- ney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. § 157.—[ Verification of pleadings.|—The verification must be to the effect, that the same is true to the knowledge of the person making it, except as to those matters stated on informa- tion and belief, and as to those matters he believes it to be true, and must be by the affidavit of the party, or if there be several parties united in interest, and pleading together, by one at least of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the agent or attorney, if the action or defence be founded upon a written instrument for the payment of money only, and such THE CODE OF PROCEDURE. 65 instrument be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the per- sonal knowledge of the agent or attorney. When the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; and when the State, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts. The verification may be omitted when an admission of the truth of the allegation might subject the party to prosecution for felony. And no pleading can be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading. An Act in relation to pleadings in courts of record. Section 1. The verification of any pleading, in any court of record in this state, may be omitted in all cases where the party called upon to verify would be privileged from testifying as a witness to the truth of any matter denied by such plead- ing. [Laws 1854, ch. 75.] § 158.—[ How to state an account in pleading.|—It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded trom giving evidence thereof. The court, or a judge thereof, or a county judge, may order a further account when the one delivered is defective: and the court may in all cases order a bill of particu- lars of the claim of either party to be furnished. §159.—[Pleadings to be liberally construed.|—In the con- struction of a pleading, for the purpose of determining its ~ effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. § 160.—[Irrelevant or redundant matter. Indefinite plead- ing.]—If irrelevant or redundant matter be inserted in a plead- ing, it may be stricken out, on motion of any person aggrieved 5 66 THE CODE OF PROCEDURE. thereby. And when the allegations of a pleading are so in- definite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain, by amendment. § 161.—[Jurisdiction, how pleaded.J|—In pleading a judg- ment, or other determination of a court, or officer of special jurisdiction, it shall not be necessary to state the facts confer- ring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction. § 162.—[ Conditions precedent. Instrument for payment of money.|—In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts, showing such performance ; but it may be stated generally, that the party duly performed all the conditions on his part ; and if such allega- tion be controverted, the party pleading shall be bound to estab- lish, on the trial, the facts showing such performance. In an action or defence, founded upon an instrument, for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims. § 163.—[ Private statutes, how to be pleaded.]—In pleading a private statute, or a right derived therefrom, it shall be suf- cient to refer to such statute by its title and the day of its pas- sage, and the court shall thereupon take judicial notice thereof. § 164.—[ Libel and slander, how stated in complaint.|—In an action for libel or slander, it shall not be necessary to state in the complaint, any extrinsic facts, for the purpose of showing the application to the plaintiff, of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, that the same was published or spoken concern- ing the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken. § 165.—[LAnswer an such cases.]|—In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any miti- gating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evi- dence the mitigating circumstances. THE CODE OF PROCEDURE. 67 § 166.—[Ln actions to recover property distrained for dam- age, answer need not set forth the ttle.|--In an action to reco- ver the possession of property distrained doing damage, an answer that the defendant or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property. § 167.—[ What causes of action may be joined in the same complaint.|—The plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of : J. The same transaction, or transactions connected with the same subject of action ; 2. Contract, express or implied; or, 3. Injuries, with or without force, to person and property, or either ; or, 4. Injuries to character ; or, 5. Claims to recover real property, with or without damages. for the withholding thereof, and the rents and profits of the. same ; or, 6. Claims # recover personal property, with or without damages for the withholding thereof; or, 7. Claims against a trustee, by virtue of a contract, or by operation of law. But the causes of action, so united, must all belong to one of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated. [Laws of T5th Session, Chap. 392; April 16th, 1852.] § 168.—[ Allegation not denied, when to be deemed true.J— Every material allegation of the complaint, not controverted. by the answer, as prescribed in section one hundred and forty-. nine; and every material allegation of new matter in the answer, constituting a counter-claim, not controverted by the reply, as prescribed in section one hundred and fifty-three, shall, for the purposes of the action, be taken as true. But the alle- gation of new matter in the answer, not relating to a counter- claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. [Laws of 75th Session, Chap. 392; April 16th, 1852.] 68 THE CODE OF PROCEDURE. Cuartrer VI. MISTAKES IN PLEADING, AND AMENDMENTS. Srcrion 169. Material variances, how provided for. 170. Immaterial variances, how provided for. 171. What to be deemed a variance. 172. Amendments of course. 173, The court may amend any pleading, process, or proceeding. 174. Enlargement of time. 175. Suing a party by a fictitious name, when allowed. 176. No error or defect to be regarded, unless it affect substantial rights. 177. Supplemental complaint, answer, and reply. ‘s § 169.—[Material variances, how provided for.|—No vari- ance between the allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just. § 170.—L/mmaterial variances, how provided for.|—W here the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evi- dence, or may order an immediate amendment, without costs. § 171.—{ What to be deemed a variance.|—Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or par- ticulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof. § 172.—[Amendments of course.|—Any pleading may be once amended by the party of course, without costs, and with- out prejudice to the proceedings already had at any time within twenty days after it is served, or at any time before the period for answering it expires; or it can be so amended at any time within twenty days after the service of the answer or de- murrer to such pleading, unless it be made to appear to the court that it was done for the purpose of delay, and the plain- tiff or defendant will thereby lose the benefit of a circuit or THE CODE OF PROCEDURE. 69 term for which the cause is or may be noticed ; and if it appear to the court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the court may seem just. In such case a copy of the amended pleading must be served on the adverse party. After the de- cision of a demurrer, either at a general or special term, the court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over upon such terms as may be just. If the demurrer be allowed for the cause mentioned in the fifth subdivision of section one hun- dred and forty-four, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determina- tion of the causes of action therein mentioned. § 173.—[ The court may amend any pleading, process, or pro- ceeding.|—The court may, before or after judgment, in further- ance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defence, by con- forming the pleading or proceeding to the facts proved. [Zaws of 5th Session, Chap. 392, April 16, 1852.] § 174.—[ Enlargement of time.]—The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made or other act to be done after the time limited by this act, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omission in any pro- ceeding ; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, the court may in like manner and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto. 175.—[Suing a party by a fictitious name, when allowed.J— When the plaintiff shall be ignorant of the name of a defend- ant, such defendant may be designated in any pleading or pro- 70 THE CODE OF PROCEDURE. ceeding, by any name; and when his true name shall be dis- covered, the pleading or proceeding may be amended accord- ingly. § 176.—LWo error or defect to be regarded, unless wt affect substantial rights.|—The court shall, in every stage of an ac- tion, disregard any error or defect in the pleadings or proceed- ings, which shall not affect the substantial rights of the adverse party ; and no judgment shall be reversed or affected by reason of such error or defect. § 177.—[Supplemental complaint, answer, or reply.|-—The plaintiff and defendant respectively may be allowed, on mo- tion, to make a supplemental complaint, answer, or reply, al- leging facts material to the case, occurring after the former com- plaint, answer, or reply, or of which the party was ignorant when his former pleading was made. THE CODE OF PROCEDURE. 71 TITLE VII. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. CuapteR I, Arrest and bail. II. Claim and delivery of personal property. II. Injunction. iB IV. Attachment, V. Provisional remedies. Carrer I. ARREST AND BAIL. Section 178. No person to be arrested, except as prescribed by this act. 179. Cases in which defendant may be arrested. 180. Order for arrest, by whom made. 181. Affidavit to obtain order. To what actions this chapter applicable. 182. Security by plaintiff, before order for arrest. 183. Order when made, and its form. 184, Affidavit and order to be delivered to sheriff, and copy to de- fendants. 185. Arrest, how made. 186. Defendant to be discharged on bail or deposit. 187. Bail how given. 188. 189. 190. Bail, how proceeded against. 191. Bail, how exonerated. 192. Delivery of undertaking to plaintiff, and its acceptance or rejection by him. 193. Notice of justification. New undertaking, if other bail. 194. Qualifications of bail. 195. 196. 197. Deposit of money with sheriff, 198. Payment of money into court by sheriff. 199. Substituting bail for deposit. 200. Money deposited, how applied or disposed of. 201. Sheriff, when liable as bail; and his discharge from liability. 202. Proceedings on judgment against sheriff. 208. Bail liable to sheriff, 204. Motion to vacate order of arrest, or reduce bail. 205. Affidavits on motion. ; Surrender of defendant. t Justification and allowance of bail. § 178.—[Wo person to be arrested, except as prescribed by this act.|—No person shall be arrested in a civil action except as 72 THE CODE OF PROCEDURE. prescribed by this act; but this provision shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, or any act amending the same, nor shall it apply to proceedings for contempts. §$179.—[ Cases in which defendant may be arrested.|—The defendant may be arrested, as hereinafter prescribed, in the following cases : 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the State, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property : 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudu- lently misapplied, by a public officer, or by an attorney, solici- tor or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a pro- fessional employment : 3. In an action to recover the possession of personal property unjustly detained, where the property, or any part thereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof : 4, When the defendant has been guilty of a fraud, in con- tracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought : 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action, except for a willful injury to person, character or property. §$180.—[Order for arrest, by whom made.J—An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought, or from a county judge. THE CODE OF PROCEDURE. 73 § 181.—[_Afidavit to obtain order.|—The order may be made, where it shall appear to the judge by the affidavit of the plain- tiff, or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179. [Zo what actions this chapter ts applicable.|—The provisions of this chapter shall apply to all actions included within the provisions of section 179, which shall have been commenced since the thirtieth day of June, one thousand eight hundred and forty-eight, and in which judgment shall not have been obtained. § 182.—[Security by plaintiff before order of arrest.|—Before making the order, the judge shall require a written undertak- ing on the part of the plaintiff, with or without sureties, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars. If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking, over all his debts and liabilities. §183.—[ Order, when made, and its form.]—The order may be made to accompany the summons, or at any time afterward, before judgment. It shall require the sheriff of the county, where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or indorsed. § 184.—[ Affidavit and order to be delivered to sheriff, and copy to defendant.|—The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof. §185.—[ Arrest, how made.J|—The sheriff shall execute the order by arresting the defendant and keeping him in custody, until discharged by law; and may call the power of the country to his aid, in the execution of the arrest, as in case of process. § 186.—[ Defendant to be discharged on bail or deposit.J— The defendant at any time before execution, shall be dis- 74 THE CODE OF PROCEDURE. charged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as pro- vided in this chapter. § 187.—[ Bail, how given.]—The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations, to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211. § 188.—[Surrender of defendant.|—At any time before a failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or he may surrender him- self to the sheriff of the county where he was arrested, in the following manner : 1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a cer- tificate in writing, acknowledge the surrender ; 2. Upon the production of a copy of the undertaking and sheriff’s certificate, a judge of the court, or county judge, may, upon a notice to the plaintiff of eight days, with a copy of the certificate, order that the bail be exonerated ; and on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision 3 of section 179, so as to discharge the bail from an undertaking given to the effect provided by section 211. § 189.—[ The same.]—For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. § 190.—[ Bail, how proceeded against.|—In case of failure to comply with the undertaking, the bail may be proceeded against by action only. § 191.—[Bazl, how exonerated.|—The bail may be exone- rated, either by the death of the defendant or his imprisonment in a State prison, or by his legal discharge from the obligation ' THE CODE OF PROCEDURE. 76 to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court. § 192.—[ Delivery of undertaking to plaintiff, and its recep- tion or rejection by him.J|—Within the time limited for that purpose the sheriff shall deliver the order of arrest to the plain- tiff or attorney by whom it is subscribed, with his return indorsed, and a certified copy of the undertaking of the bail. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability. § 193.—[Wotice of justification. New undertaking, if other bazt.|—On the receipt of such notice, the sheriff or defendant may, within ten days thereafter, give to the plaintiff or attorney by whom the order of arrest is subscribed, notice of the justifi- cation of the same, or other bail (specifying the places of resi- dence and occupation of the latter), before a judge of the court, or county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter. In case other bail be given, there shall be a new undertaking, in the form prescribed in section one hundred and eighty- seven. » §194.—[ Qualifications of bail.|—The qualifications of bail must be as follows: 1. Each of them must be a resident and householder or free- holder, within the State: 2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution, but the judge, or a justice of the peace on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. § 195.—[ Justification of bail.]—For the purpose of justifica- tion, each of the bail shall attend before the judge, or a justice of the peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or justice of the peace, in his discretion, may think proper. The exami- ‘ 76 THE CODE OF PROCEDURE. nation shall be reduced to writing, and subscribed by the bail, if required by the plaintiff. § 196.—[_Allowance of bail.|—If the judge or justice of the peace find the bail sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall thereupon be exonerated from liability. § 197.—[Depostt of money with the sheriff.|—The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit and the defendant shall be discharged out of custody. § 198.—[ Payment of money into court by the sheriff.\—The sheriff shall, within four days after the deposit, pay the same into court; and shall take from the officer receiving the same, two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff to collect the sum deposited, as in other cases of delinquency. § 199.—[Substituting bail for deposit.|—If money be depos- ited, as provided in the last two sections, bail may be given and justified upon notice, as prescribed in section 193, any time before judgment; and thereupon the judge before whom the justification is had, shall direct, in the order of allowance, that the money deposited be refunded by the sheriff to the defen- dant, and it shall be refunded accordingly. § 200.—[Money deposited, how applied or disposed of \— Where money shall have been so deposited, if it remain on de- posit at the time of an order or judgment for the payment of money to the plaintiff, the clerk shall, under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unap- lied. § 201.—[Sheriff, when liable as bail, and his discharge from liability. |—If, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liability, by the giving THE CODE OF PROCEDURE. 77 and justification of bail as provided in sections 193, 194, 195, and 196, at any time before process against the person of the defendant, to enforce an order or judgment in the action. § 202.—[ Proceedings on judgment against sheriff.]—If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same proceedings may be had on the official bond of the sheriff, to collect the deficiency, as in other cases of delinquency. § 203.—[ Bail liable to sheriff.]|—The bail taken upon the arrest shall, unless they justify, or other bail be given or justified, be liable to the sheriff, by action, for damages which he may sustain by reason of such omission. § 204.—[Motion to vacate order of arrest or reduce bail.|— A defendant arrested, may, at any time before judgment, apply on motion, to vacate the order of arrest, or to reduce the amount of bail. § 205.—[ A fiidavits on motion.]—If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made. Cuarter II. CLAIM AND DELIVERY OF PERSONAL PROPERTY. Section 206. Delivery of personal property, when it may be claimed, 207. Affidavit and its requisites, 208. Requisition to sheriff to take and deliver the property. 209. Security on the part of the plaintiff. Service on defendant. 210. Exception to sureties, and proceedings thereon, or on failure to except. 211. Defendant, when entitled to re-delivery. 212. Justification of defendant’s sureties. 218. Qualification and justification of sureties. 214. Property, how taken when concealed in building or inclosure. 215. Property, how kept. 216. Claim of property by third person. 217. Notice and affidavit, when and where to be filed. § 206.—[Delwery of personal property, when it may be claimed.]—The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, 78 THE CODE OF PROCEDURE. or at any time before answer, claim the immediate delivery of such property as provided in this chapter. § 207._[ Affidavit, and its requisites.|—Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing, 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the posses- sion thereof, by virtue of a special property therein, the facts in respect to which shall be set forth; 2. That the property is wrongfully detained by the defen- dant ; 8. The alleged cause of the detention thereof, according to his best knowledge, information and belief ; 4, That the same has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution or at- tachment against the property of the plaintiff; or if so seized, that it is, by statute, exempt from such seizure; and, 5. The actual value of the property. § 208.—[ Requisition to sheriff’ to take and deliver property. ] —The plaintiff may, thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant, and deliver it to the plaintiff. § 209.—[Security on the part of the plaintiff. Service on de- Jendant.\—Upon the receipt of the affidavit and notice, with a written undertaking, executed by one or more sufficient sureties, approved by the sheriff, to the effect that they are bound, in double the value of the property as stated in the affidavit, for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the pay- ment to him of such sum as may, for any cause, be recovered against the plaintiff, the sheriff shall forthwith take the proper- ty described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall, also, without delay, serve on the defendant a copy of the afti- davit, notice, and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose pos- session the property is taken; or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion. § 210.—[ Exception to sureties, and proceedings thereon, or on THE CODE OF PROCEDURE. "9 Juilure to ewcept.|—The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice in like manner as upon bail on arrest. And the sheriff shall be responsible for the sufficiency, of the sureties until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify. Ifthe defendant except to the sureties, he cannot reclaim the property as provided in the next section. § 211.—[Defendant, when entitled to re-delivery.J—At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plain- tiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sure- ties, to the effect that they are bound, in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within three days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff except as provided in section 216. § 212.—[ Justification of defendant’s sureties.|—The defend- ant’s sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify before a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justification the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the defendant’s sureties, until they justify, or until justification is completed or expressly waived, and may retain the property until that time, but if they, or others in their place, fail to justify at the time and place appointed, he shall deliver the property to the plaintiff. § 213.—[Qualvfications and justification of sureties.|—The qualifications of sureties and their justification, shall be as are prescribed by sections 194 and 195, in respect to bail upon an order of arrest. § 214.—[Property, how taken when concealed in building or 80 THE CODE OF PROCEDURE. incloswre.]—If the property, or any part thereof, be concealed in a building or inclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession ; and if necessary he may call to his aid the power of his county. § 215.—[ Property, how kept.|—When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same. § 216.—[ Claim of property by third person.]—If the pro- perty taken be claimed by any other person than the defend- ant or his agent, and such person shall make affidavit of his title thereto and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff; the sheriff shall not be bound to keep the property, or deliver it to the plaintiff unless the plaintiff, on demand of him or his agent, shall indemnify the sheriff against such claim, by an undertaking, executed by two sufficient sureties accom- panied by their affidavits, that they are each worth double the value of the property as specitied in the affidavit of the plain- tiff, and freeholders and householders of the county. And no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless made as aforesaid, and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity. § 217.—[Wotice and affidavit, when and where to be filed.J— The sheriff shall file the notice and affidavit, with his proceed- ings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property men- tioned therein. YHE CODE OF PROCEDURE. Sl Ouaerer LIT. INS UNCTION. Section 218 Writ of injunction abolished, and erder substituted. 219. Injunction, in what cases granted. 220. At what time i¢-may be granted. 221. Netice, when required. YTemporary injunction. 222, Security upon injunction. Damages, how ascertained. 22%, Gréer to shew cause why injunction should not be granted. 224, Secunity upon injunction te suspend business of corporation. 225. Motion to vacate or medify injunction. 226. Affidavits, on motion. § 218.—[ Writ of injunction abolished, and order substituted.| —The writ of injunction as a provisional remedy is abolished ; and an injunction, by order, is substituted therefor. The erder may be made by the court in which the actien is brought, or by a judge thereof, or by a county judge, in the cases provided in the next section; and when made by a judge, may be enforced as the order of the court. § 219.—[Injunction, in what cases granted.|—Where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commissien or continuance of some act the commission er continuance of which, during the litigation, would produce injury to the plaintiff, er when, during the liti- gation, it shall appear that the defendant is deing, or threatens, or is abeut to do, er proeuring or suffering some act to be dene in violation of the plaintiff’s rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted, to restrain such act. And where, during the pendency of an action, it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his ereditors, a temporary injunction may be granted te restrain such removal or dispecition. § 220. At what time it may be granted.]—The injunction may be granted at the time of commencing the action, or at any time afterward, before judgment, upon its sppeering satis- factorily to the court or judge, by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. 6 82 . THE CODE OF PROCEDURE. A copy of the affidavit must be served with the injunc- tion. § 221.—[ Notice, when required. Temporary injunction.\— An injunction shall not be allowed, after the defendant shall have answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained, until the decision of the court or judge, granting or refusing the injunction. § 222.—[Securtty upon injunction. Damages, how ascer- tained.|—Where no provision is made by statute as to security upon an injunction, the court or judge shall require a written undertaking, on the part of the plaintiff, with or without sure- ties, to the effect that the plaintiff will pay to the party enjoined, such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the court shall direct. § 223.—[ Order to show cause why injunction should not be granted. |—If the court or judge deem it proper that the defend- ant, or any of several defendants, should be heard before grant- ing the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may in the mean time be restrained. ; § 224.—[ Security, upon injunction to suspend business of cor- poration.|—An injunction to suspend the general and ordinary business of a corporation, shall not be granted, except by the court or a judge thereof. Nor shall it be granted, without due notice of the application therefor, to the proper officers of the corporation, except where the people of this state are a party to the proceedings, and except in proceedings to enforce the liability of stockholders in corporations and associations for banking purposes, after the first day of January, one thousand eight hundred and fifty, as such proceedings are or shall be provided by law, unless the plaintiff shall give a written under- taking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the under- taking, which such corporation may sustain by reason of the injunction, if the court shall finally decide that the plaintiff THE CODE OF PROCEDURE. 83 was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the court shall direct. § 225.—[ Motion to vacate or modify injunction.|—If the in- junction be granted by a judge of the court, or by a county judge, without notice, the defendant, at any time before the trial, may apply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The appli- cation may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits on the part of the defendant, with or without the answer. § 296.—[ Affidavits, on motion.J—If the application be made upon affidavits on the part of the defendant, but not other- wise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted. Cuapter IV. ATTACHMENT. 4 tor wo Section 227. Property of foreign corporations, and of non-resident or absconding or concealed defendants, may be attached. 228, Warrant, by whom granted. 229. In what cases warrant may be granted. 230. Security on obtaining warrant. 231. Warrant, to whom directed, and what to require. 232. Mode of proceeding in executing warrant. 233. Proceeding in case of perishable property or vessels. 234. Interest in corporations or associations, liable to attachment. 235. Attachment, how executed on property incapable of manual de- livery. 236. Certificate of defendant’s interest to be furnished by corporation. 237. Judgment, how satisfied. 288. When action to recover notes, etc., of defendant may be prosecuted by plaintiff in the action in which the attachment issued. 239. Bond to sheriff on attachment, how disposed of, on judgment for defendant. 240. Discharge of attachment and return of property, or its proceeds, to defendant, on his appearance in action. 241, Undertaking on the part of the defendant. 242. When sheriff to return warrant and proceedings thereon. 248. Sheriff’s fees. § 227.—[ Actions against corporations, non-residents, etc.\— In an action for the recovery of money, against a corporation created by or under the laws of any other state, government, 84 THE CODE OF PROCEDURE. or country, or against a defendant who is not a resident of this state, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to re- move any of his or its property from this state, or has assigned, disposed of or secreted, or is about to assign, dispose of, or secrete any of his or its property with intent to defraud credi- tors, as hereinafter mentioned, the plaintiff, at the time of issu- ing the summons, or at any time afterward, may have the property of such defendant or corporation attached in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover. [Laws of 80th Session, Chap. 728, § 6; April 17, 1857.] § 228.—[ Warrant, by whom granted.]—A warrant of attach- ment must be obtained from a judge of the court in which the action is brought, or from a county judge. § 229.—[ In what cases warrant may be issued.|—The warrant may be issued whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the de- fendant is either a foreign corporation, or net a resident of this state, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keep himself concealed therein with the like intent, or that such corpora- tion or person has removed, or is about to remove, any of his or its property from this state with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his or its property, with the like intent, whether such defendant be a resident of this state or not. It shall be the duty of the plaintif# procuring such warrant, within ten days after the issuing thereof, to cause the affidavits - on which the same was granted, to be filed in the office of the clerk of the county in which the action is to be tried. § 230.—[Securtty on obtaining warrant.|—Before issuing the warrant, the judge shall require a written undertaking on the part of the plaintiff, with sufficient surety, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain, by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars. THE CODE OF PROCEDURE. 85 § 231.—[ Warrant, to whom directed, and what te require.j— The warrant shall be directed to the sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defend- ant within his county, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, together with costs and expenses. The amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time to the sheriffs of dif- ferent counties. § 232.—[ Mode of proceeding in executing warrant.|—The sheriff to whom such} warrant of attachment is directed and delivered, shall proceed thereon in all respects in the manner required of him by law in case of attachments against absent debtors, shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action, and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the defendant. The sheriff may also take such legal proceedings, either in his own name or in the name of such defendant, as may be necessary for that purpose, and dis- continue the same at such times and on such terms as the court or judge may direct. § 233.—[ Proceedings in case of perishable property or ves- sels.|—If any property so seized shall be perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consists of a vessel, or of any share or interest therein, the same proceedings shall be had in all respects as are provided by law upon attachment against absent debtors. § 234.—[Interest in corporations or associations, liable to at- tachment.|—The rights or shares which such defendant may have in the stock of any association or corporation, together with the interest, and profits thereon, and all other property in this state of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution. § 235.—[ Attachment, how executed on property incapable of manual delivery.|—The execution of the attachment upon any such rights, shares, or any debts or other property incapable of manual delivery to the sheriff, shall be made by leaving a cer- tified copy of the warrant of attachment with the president or 86 THE CODE OF PROCEDURE. other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or indi- vidual holding such property, with a notice showing the pro- perty levied on. § 236.—[ Certificate of defendant’s interest to be furnished by corporations.|—Whenever the sheriff shall with a warrant of attachment, or execution against the defendant, apply to such officer, debtor, or individual, for the purpose of attaching or levying upon such property, such officers, debtor, or individual shall furnish with a certificate under his hand designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any in- cumbrance thereon, or the amount and description of the pro- erty held by such association, corporation, or individual, for the benefit of, or debt owing to the defendant. If such officer, debtor, or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath concerning the same, and obedience to such orders, may be enforced by attachment. § 237.—[Judgment, how satisfied.|—In case judgment be en- tered for the plaintiff, in such action, the sheriff shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose ; 1. By paying over to such plaintiff the proceeds of all sales of perishable property, and of any vessel, or share or interest in any vessel sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy such judg- ment 5 2. If any balance remain due, and an execution shall have been issued on such judgment, he shall proceed to sell under such execution so much of the attached property, real or per- sonal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands; and in case of the sale of any rights or shares in the stock of a corporation or association, the sheriff shall execute to the purchaser a certificate of sale thereof, and the purchaser shall thereupon have all the rights and privileges in respect thereto which were had by such de- fendant ; 3. If any of the attached property belonging to the defend- ant shall have passed out of the hands of the sheriff without THE CODE OF PROCEDURE. 87 having been sold or converted into money, such sheriff shall re-possess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the attachment ; and any person who shall willfully conceal or with- hold such property from the sheriff, shall be liable to double damages at the suit of the party injured ; 4. Until the judgment against the defendant shall be paid, the sheriff may proceed to collect the notes and other evi- dences of debt, and the debts that may have been seized or attached under the warrant of attachment, and to prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment. At the expiration of six months from the docketing of the judgment, the court shall have power, upon the petition of the plaintiff, accompanied by an affidavit, setting forth fully all the proceedings which have been had by the sheriff since the service of the attachment, the property attached and the disposition thereot, and also the affidavit of the sheriff that he has used diligence and endeavored to collect the evidences of debt in his hands so attached, and that there remains uncollected of the same any part or portion thereof, to order the sheriff to sell the same, upon such terms and in such manner as shall be deemed proper. Notice of such application shall be given to the de- fendant or his attorney, if the defendant shall have appeared in the action. In case the summons has not been personally served on the defendant, the court shall make such rule or order as to the service of notice, and the time of service, as shall be deemed just. When the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall de- liver over to the defendant the residue of the attached pro- perty, or the proceeds thereof. § 238.—[ When action to recover notes, etc., of defendant, nay be prosecuted by plaintiff in the action in which the at- tachment issued.|—The actions herein authorized to be brought by the sheriff may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two suflicient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs, and expenses on account thereof, not exceeding two hundred and fifty dollars in any one action. Such sureties 88 THE CODE OF PROCEDURE. shall, in all cases, when required by the sheriff, justify, by making an affidavit that each is a householder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities. § 239.—[ Bond to sheriff on attachment, how disposed of on judgment for defendant.|—If the foreign corporation, or absent or absconding or concealed defendant, reeover judgment against the plaintiff in sueh aetion, any bond taken by the sheriff, exeept such as are mentioned in the last section, al} the proceeds of sales and moneys collected by him, and all the property attached remaining im his hands, shall be delivered by him to the defendant or his agent on request, and the war- rant shall be discharged, and the property released therefrom. § 240.—[Diseharge of attachment, and return of property or its proceeds to defendant on his appearance im action.J— Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same; and if the same be granted, all the proceeds of sales, and moneys eolleeted by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant or his agent, and released from the attachment. § 241.—[ Undertaking on part of the defendant.|—Upon such applieation the defendant shall deliver to the court or officer an undertaking, executed by at least two sureties, who are residents and frecholders, or householders, in this State, ap- proved by such court or officer, to the effeet that the sureties will, on demand, pay to the plaintiff’ the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified im the undertaking, which shall be at Jeast double the amount elaimed by the plaintiff in his complaint. If it shall appear by affidavit that the pro- perty attached be less than the amount elaimed by the plaintiff, the court or officer issuing the attachment may or der the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. And in all eases the de- fendant may move to discharge the attachment as m the case of other provisional remedies. [Laws of 80th Session, Chap. 728, § 8; April 17th, 1857.] § 242.—[ When pene to return warrant, and proceedings thereon.|—When the warrant shall be fully executed or dis- THE CODE OF PROCEDURE. 89 charged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought. § 243.—[Sheriff’s fees.]—The sheriff shall be entitled to the same fees and compensation for services, and the same disburse- ments under this title, as are allowed by law for like services and disbursements under the provisions of chapter five, title one, and part two of the Revised Statutes. Cuarrer V. PROVISIONAL REMEDIES. Section 244, Powers of court as to receivers, deposit of money, etc., in court, and other provisional remedies. § 244.—[ Powers of courts as to receivers, deposit of money, and other provisional remedies.|\—A receiver may be ap- pointed : 1. Before judgment, on the application of either partv, when he establishes an apparent right to property which is the sub- ject of the action, and which is in the possession of an adverse party, and the property, or its rents and profits, are in danger of being lost or materially injured or impaired, except in cases where judgment upon failure to answer may be had without application to the court. 2. After judgment, to carry the judgment into effect. 3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satis- faction of the judgment. 4. In the cases provided in this Code, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights, and in like cases of the property within this State of foreign corporations. 5. In such other cases as are now provided by law or may be in accordance with the existing practice, except as otherwise provided in this act. When it is admitted by’ the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the 90 THE CODE OF PROCEDURE. subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court. Whenever, in the exercise of its authority, a court shall have ordered the deposit, delivery, or conveyance of money or other property, and the order is disobeyed, the court, besides punish- ing the disobedience, as for contempt, may make an order, re- quiring the sheriff to take the money or property, and deposit, deliver or convey it, in conformity with the direction of the court. When the answer of the defendant, expressly or by not de- nying, admits part of the plaintiff’s claim to be just, the court on motion may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy. [Laws of 75th Session, Chap. 892; April 16, 1852. Laws of 80th Session, Chap. 123,§ 9; Apri 17, 1857.) TITLE VIII. OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. Cuapter I. Judgment upon failure to answer. II. Issues and the mode of trial. III. Trial by Jury. IV. Trial by the Court. V. Trial by referees. VI. The manner of entering judgment. Caapter I. } JUDGMENT UPON FAILURE TO ANSWER. Secrion 245. Judgment, what. 246. Judgment on failure of defendant to answer. 247. Judgment on frivolous demurrer, answer, or reply. § 245.—[Sudgment, what.|—A judgment is the final deter- mination of the rights of the parties in the action. § 246.—[ Judgment on failure of defendant to answer.]— Judgment may be had, if the defendant fail to answer the complaint, as follows : 1. In any action arising on contract, for the recovery of THE CODE OF PROCEDURE. 91 money only, the plaintiff may file with the clerk, proof of per- sonal service of the summons and complaint, on one or more of the defendants, or of the summons, according to the pro- visions of section 130, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defend- ants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon: and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appear- ance in the action, he shall be entitled to five days’ notice of the time and place of such assessment. Where the defendant shall by his answer in any such action admit the plaintiff’s claim, but shall set up a counter-claim, amounting to less than the plaintiff’s claim, judgment may be had by the plaintiff for the excess of said claim, over the said counter-claim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admit- ting such counter-claim, which statement shall be annexed to the part of the judgment roll. 2. In other actions the plaintiff may, upon the like proof, apply to the court, after the expiration of the time for answer- ing, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding there- of, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a refer- ence as above provided. If the defendant give notice of ap- pearance in the action before the expiration of the time for answering, he shall be entitled to eight days’ notice of the time and place of application to the court for the relief demanded by the complaint. 92 THE CODE OF PROCEDURE. | 3. In actions where the service of the summons was by pub- lication, the plaintiff may, in like manner, apply for judgment and the court must thereupon require proof to be made of the demand mentioned in the complaint; and if the defendant be not a resident of the state, must require the plaintiff, or his agent, to be examined on oath respecting any payments that have been made to the plaintiff or to any one for his use, on account of such demand, and may render judgment for the amount which heis entitled to recover. Before rendering judg- ment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the ac- tion, and shall succeed in such defence. § 247.—[ Judgment on frivolous demurrer, answer or reply.] —TIf a demurrer, answer, or reply be frivolous, the party pre- judiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accord- ingly. Cuaprer II. ISSUES AND THE MODE OF TRIAL. Srcrton 248. The different kinds of issues. ‘ 249, Issue of law. 250. Issue of fact. 251. On issues of both law and fact, the issue of law to be first tried. 252, Trial, what. 253. Issues, how to be tried. 254. The same. 255. All issues to be tried before a single judge, etc. 256. Either party may give notice of trial. Note of issue. 257. Order of disposing of issues on the calendar. § 248.—[The different kinds of tssues.|—Issnes arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds : 1. Of law; and, THE CODE OF PROCEDURE. 93 2. Of fact. § 249.—[Issue of law.J—An issue of law arises, 1. Upon a demurrer to the complaint, answer, or reply, or to some part thereof. § 250.—[Lssue of fact.]—An issue of fact arises, 1. Upon a material allegation in the complaint controverted by the answer; or, 2. Upon new matter in the answer controverted by the reply ; or, 83. Upon new matter in the reply, except an issue of law is joined thereon. § 251.—[On dssues of both law and fact, the issue of law to be Jjirst tried. |—Issues, both of law and of fact, may arise upon different parts of the pleadings in the same action. In such eases, the issues of law must be first tried unless the court other wise direct. § 252.—[ Zrial, defined.|—A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact. [Laws of 75th Session, Chap. 892; Apri 16, 1852. § 253.—[Zssues, how to be tried.J—An issue of law must be tried by the eourt, unless it be referred, as provided in sections two hundred and seventy and two hundred and seventy one. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section two hundred and sixty-six, or a reference be ordered as provided in sections two hundred and seventy and two hundred and seventy-one. [Laws of 75th Session, Chap. 392; April 16, 1852.] § 254.[The same.]—Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271. § 255.—LAW issues of fact, to be tried by a single judge.J— All issues of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact in the Supreme Court must be tried at a circuit court when the trial is by jury, otherwise at a circuit court or special term as the court may by its rules prescribe. Issues of law must be tried 94 THE CODE OF PROCEDURE. at the Circuit Court or special term, and shall, unless the court otherwise direct, have preference on the calendar. Laws of 15th Session, Chap. 392; April 16, 1852. § 256.—[Wotice of trial and note of isswe.}—At any time after issue, and at least fourteen days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk at least eight days before the court with a note of the issue containing the title of the action, the names of the attorneys, and the time when the last pleading was served ; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue. In the first judicial district there need be but one notice of trial and one note of issue from either party, and the action shall then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. In the same district the courts may direct the employment of a stenographer, in such cases as appear to them to require it, and may order the expense occasioned thereby to be paid by the parties, not exceeding, however, $5 a day to each party. § 257.—[ Order of disposing of issues on the calendar.|—The issues on the calendar shall be disposed of in the following order; unless for the convenience of parties, or the dispatch ot business, the court shall otherwise direct : 1. Issues of fact to be tried by a jury; 2. Issues of fact to be tried by the court; 3. Issues of law. THE CODE OF PROCEDURE. 95 Cuarter III. TRIAL BY JURY. Section 258. Either party may bring issue to trial. 259. Plaintiff to furnish court with copy summons, pleadings, etc. 260. General and special verdicts defined. 261. Verdict in action for recovery of specific personal property, when in action for recovery of money only, or real property, jury may render either general or special verdict; and when court may direct special finding. 262. On special finding, with general verdict, former to control. 263. In actions for recovery of money only, jury to assess damages. 264. Entry of verdict and judgment. Review of trial. 265. Motions for new trial, etc. § 258.—[Hither party may bring issue to trial.|—Either party giving the notice, may bring the issue to trial, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will thereby be promoted. § 259.—[Plaintif’ to furnish court with copy of summons, pleadings, etc.|}—When the issue shall be brought to trial by the plaintiff, he shall furnish the court with a copy of the sum- mons and pleadings with the offer of defendant, if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to fur- nish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant. § 260.—[ General and special verdicts defined.|—A general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defend- ant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. § 261.—[ Verdict in action for recovery of specific personal property.|—In an action for the recovery of specific personal property, if the property have not been delivered to the plain- tiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be 96 THE CODE OF PROCEDURE. in favor of the plaintiff, or if. they find in favor of the defend- ant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the com- plaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such prop- erty. { When in action for recovery of money only, or real property, jury may render either general or special verdict, and when court may direct special finding.]—In every action for the recovery of money only, or specific real property, the jury, in their dis- cretion, may render a general or special verdict. In all other eases the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases may in- struct them, if they render a general verdict, to find upon par- ticular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes. § 262.—[ On special finding with general verdict, former to control.|—Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. § 263.—[Ln actions for the recovery of money only, jury to assess damages.|—When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set-off for the recovery of money is established, beyond the amount of the plaintiff’s claim as established, the jury must also assess the amount of the recovery ; they may also, under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff’s de- mand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accord- ingly. § 264.—[ Entry of the verdict.|—Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and wit-— nesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. If a different direction be not given by the court, the clerk THE CODE OF PROCEDURE. 97 must enter judgment in conformity with the verdict. If an exception be taken, it may be reduced to writing at the time, or entered in the judge’s minutes, and afterwards settled as provided by the rules of the court, and then stated in writing in a case, or separately, with so much of the evidence as may be material to the questions to be raised, but need not. be sealed or signed, nor need a bill of exceptions be made. If the exceptions be in the first instance stated in a case, and it be afterward necessary to separate them, the separation may be made under the direction of the court, or a judge thereof. The judge who tries the cause may, in his discretion, enter- tain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evi- dence, or for excessive damages; but such motion in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or circuit at which the trial is had. When such motion is heard, and decided upon the minutes of the judge, and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be had. [Laws of 75th Session, Chap. 392 ; Apr 16, 1852.] § 265.—[Dotions for new trials.|—A motion for a new trial, on @ case or exceptions, or otherwise, and an application for judgment on a special verdict or case reserved for argu- ment er further consideration, must in the first instance be heard and decided at the circuit or special term, except that when exceptions: are taken, the judge trying the cause may, at the trial, direct them to be heard in the first instance at the general term, and the judgment in the mean time suspended ; and in that case they must be there heard in the first instance, and judgment there given. And when upon a trial the case presents only questions of law, the judge may direct a verdict, subject to the epinion of the court at the general term, and in that case the application for judgment must be made at the general term. Every judgment rendered upon a verdict taken, subject to the opinion of the court at a general term, may be reviewed by the Court of Appeals in the same manner and with the like effect as if exceptions had been duly taken at the pro- per time; provided it shall appear by the return that questions of law were involved in the rendition of the judgment. [Zaws _ & 80th Session, Chap. 723, $10; April 16, 1857.] @ 98 THE CODE OF PROCEDURE. Cuarter IV, TRIAL BY THE COURT. Section 266. Trial by jury, how waived. 267. On trial by the court, judgment to be given in twenty days. 268. Exceptions, how and when taken. 7 269. Proceedings upon judgment on issue of law. § 266.—[Trial by jury, how waived.J—Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court, in other actions, in the manner following: 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent, in open court entered in the minutes. § 267. [On trial by the court, judgment to be given in twenty days.|—Upon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain astatement of the facts found and the conclusions of law, separately ; and upon a trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such de- cision shall be filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the de- cision shall be entered accordingly. § 268.—[Kcceptions, how and when taken.]—For the pur- poses of an appeal, either party may except to a decision on a matter of law arising upon such trial, within ten days after notice in writing of the judgment, in the same manner and with the same effect, as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment, or within sueh time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge in settling the case must briefly specify the facts found by him, and his conclusions of law. But the questions whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section, the questions of law in every stage of the appeal, and the THE CODE OF PROCEDURE. 99 questions of fact upon the appeal to the general term of the same court, as prescribed in section three hundred and forty- eight. No finding of facts by the General Term shall be required for the purpose of review in the Court of Appeals; and if the judgment be reversed at the General Term, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal; and in that case, the ques- tion whether the judgment should have been reversed either upon questions of fact or of Jaw, shall be open to review in the Court of Appeals. The provisions of this section, and also of section two hun- dred and seventy-two, as they are hereby amended, shall apply to appeals now pending, as well as to those hereafter brought. § 269.—[ Proceedings upon judgment on issue of law.J}—On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two sub- divisions of section two hundred and forty-six, upon the failure of the defendant to answer, where the summons was personally served. If judgment be for the defendant, upon an issue of law, and if taking of an account, or the proof cf any fact be necessary to enable the court to complete the judgment, a reference or assessment by jury may be ordered, as in that section provided. Cuarrer V. TRIAL BY REFEREES. SECTION . All issues referable by consent. 0 71. When reference may be compulsorily ordered. 72. Report to stand as decision of the court. 73. Referees, how chosen. § 270.—[ All issues referable by consent.|—All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties. § 271.—[ When reference may be compulsorily ordered. J— Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: 100 THE CODE OF PROCEDURE. 1. Where the trial of an issue of fact shall require the ex- amination of a long account on either side; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved there- in; Or, 2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or, 3. Where a question of fact, other than upon the plead- ings, shall arise, upon motion or otherwise, in any stage of the action. § 272.—[ Trial by referees.|—The trial by referees shall be condueted in the same manner and on similar notice as a trial by the court. They shall have the same power to grant ad- journments and to allow amendments to any pleadings and to’ the summons as the court upon such trial, upon the same terms and with the like effect. They shall have the same power to preserve order and punish all violations thereof upon such trial, and to compel the attendance of witnesses before them, by attachment, and to punish them as for a contempt for non-at- tendance or refusal to be sworn or testify, as is possessed by the court. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, and with like effect in all respects, as in cases of appeal under section 268; and °- they may in like manner settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report shall have the effect of a special verdict. ‘When the case on appeal shall have been heard and decided at the general term, upon the report of the referee and excep- tions, without a case containing the evidence, the decision may be reviewed in like manner on appeal to the Court of Appeals. If the judgment be reversed at the general term and a new trial ordered, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal; and in that case, the question whether the judgment should have been reversed either upon questions of fact or of law, shall be open to review in the Court of Appeals. THE CODE OF PROCEDURE. 101 § 273.—[ Referees, how chosen.J—In all cases of reference, the parties, except when an infant may be a party, may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly ; and, if the parties do not agree, the court shall appoint one or more referees, not ex- ceeding three, who shall be free from exception. Cuapter VI. MANNER OF ENTERING JUDGMENT. Section 274, Judgment may be for or against any of the parties. 275. The relief to be awarded to the plaintiff. 276. Rate of damages where damages are recoverable. 277. Judgment in action for recovery of personal property. 278. Judgment upon issue of law or of fact, to be upon direction of a single judge, or on report of referees, subject to review at general term. 279. Clerk to keep a judgment book. 280. Judgment to be entered in judgment book. 281. Judgment roll. 282. Judgment, in what cases and how to be docketed. § 274.—[Judgment may be for or against either of the par- ties.|—Judgment may be given for or against one.or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the complaint with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to pro- ceed in the cause against the defendant or defendants served. [Laws of 75th Session Chap. 392; April 16, 1852.] § 275.—[The relief to be awarded to the plaintiff.|—The re- lief granted to the plaintiff, if there be no answer, cannot ex- ceed that which he shall have demanded in his complaint ; but in any other case, the court may grant him any relief con- sistent with the case made by the complaint and embraced within the issue. 102 THE CODE OF PROCEDURE. § 276.—[Late of damages, where damages are recoverable.|— Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action. § 277.—[Judgment in action for recovery of personal pro- perty.}—In an action to recover the possession of personal pro- perty, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and with- holding the same. § 278.—[ Judgment upon issues how entered.|—Judgment upon an issue of law, of fact, or upon confession, or upon failure to answer, (except where the clerk is authorized to enter the same by the first subdivision of section two hundred and forty-six, and by section three hundred and eighty-four, and except where it may be given at the general term, as provided in section two hundred and sixty-five,) shall in the first instance be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as herein provided. [Zaws of 75th Session, Chap. 392; April 16, 1852.] § 279.—[Clerk to keep a judgment book.|—The clerk shall keep among the records of the court, a book for the entry of judgments, to be called the “ judgment-book.” § 280.—[Judgment to be entered in judgment-book.|—The judgment shall be entered in the judgment-book, and shall specify clearly the relief granted, or other determination of the action. § 281.—[Judgment-roll.|— Unless the party or his attorney shall furnish a judgment roll, the clerk, immediately after entering the judgment, shall attach together, and file the following papers, which shall constitute the judgment roll; 1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, aud that no answer has been received, the report, if any, and a copy of the jndgment. THE CODE OF PROCEDURE. 103 2. In all other cases the summons, pleadings or copies, thereof, and a copy of the judgment, with any verdict or re- port, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment. [Laws of T5th Session, Chup. 892; April 16, 1852.] ’ § 282.—[ Judgment, in what cases and how to be docketed.\— On filing a judgment roll upon a judgment, directing in whole or in part the payment of money, it may be docketed with the clerk of the county where it was rendered, and in any other county, upon the filing with the clerk thereof a transcript of the original “ docket,” and_ shall be a lien on the real property in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of docketing thereof, in the county in which such real estate is situated, or which he shall acquire at any time thereafter for ten years from the time of docketing the same in the county where it was rendered. But whenever an appeal from any judgment shall be pending, .and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected as provided in the Code, the court in which such judgment was recovered may on special motion, after notice to the person owning the judg- ment, in such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment that the same is “secured on appeal,” and thereupon it shall cease during the pending of the appeal to be a lien on the real pro- perty of the judgment debtor as against purchasers and mort- gagees in good faith. 104 THE CODE OF PROCEDURE. TITLE IX. OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. Carter J. The execution. II. Proceedings supplementary to the execution. Cuapter I. THE EXECUTION. Section 283. Execution within five years, of course, as prescribed by this title. 284. After five years, to be issued by leave of court. Leave, how obtained. When unnecessary. Execution on judgment of justices’ or other inferior courts when docketed, how issued. 285. Other judgments, how enforced. 286. The different kinds of execution. 28%, To what counties execution may be issued. 288. Execution against the person, in what cases, and when. 289. Form of the execution. 290. To be returnable in sixty days. 291. Existing laws relating to execution continued, until otherwise pro- vided. § 283.—[Erecution within five years, of course as prescribed by this trtle.|—Writs of execution for the enforcement of judg- ments as now used, are modified in conformity to this title, and the party in whose favor judgment has been heretofore or shall hereafter be given, may at any time within five years after the entry of judgment, proceed to enforce the same as prescribed by this title. § 284.—[ After five years, to be issued by leave of court.) —After the lapse of five years from the entry of judgment, an execution can be issued only by leave of the court, upon motion with personal notice to the adverse party, unless he be absent or non-resident, or cannot be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given, unless it be established by the oath of the party, or other satisfactory proof that the judgment or some part there- of remains unsatisfied and due. But the leave shall not be necessary when execution has been issued on the judgment within the five years, and returned unsatisfied in whole or in part. THE CODE OF PROCEDURE, 105 [Zeave, how obtained. Execution on judgment of justices’ or other inferior courts when docketed, how issued.]|—When judgment shall have been rendered in a court of justice of the peace, or in a justice’s or.other inferior court in a city, and docketed in the office of the clerk of the county, the applica- tion for leave to issue execution must be to the county court of the county where the judgment was rendered, or in the city and county of New-York, to the Court of Common Pleas of that city and county. § 285.—[ Other judgments, how enforeed.]—Where a judg- ment requires the payment of money or the delivery of real or personal property, the same may be enforced in those re- spects by execution, as provggled in this title. Where it requires the performance of any other act, a certified copy of the judg- ment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced. If he re- fuse, he may be punished by the court as for a contempt. § 286. [Lhe different kinds of execution.]—There shall be three kinds of execution; one against the property of the judgment debtor, another against his person, and the third for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same. They shall be deemed the process of the court, but they need not be sealed nor subscribed, except as prescribed in section 289. § 287.—| Executions issue to what counties.}—When the execution is against the property of the judgment debtor, it may be issued to the sheriff of any county where judgment is docketed. When it requires the delivery of real or personal property, it must be issued to the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Real property, adjudged to be ‘sold, must be sold in the county where it lies, by the sheriff of the county, or by a referee appointed by the court for that purpose, and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and in- terests of the parties adjudged to be sold. [Zaws of Tith Ses- sion, Chap. 892; April 16th, 1852.] § 288. [Hxecution against the person, in what cascs and when.|—If the action be one in which the defendant might 106 THE CODE OF PROCEDURE. have been arrested, as provided in section 179 and section 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part. § 289.—[Form of the ewecution.|—The execution must be directed to the sheriff, or coroner, when the sheriff is a party or interested, subscribed by the party issuing it, or his attorney, and must intelligibly refer to the judgment, stating the court, the county where the judgment roll or transcript is filed, the names of the parties, the amount of the judgment, if it be for money, and the amount actually due thereon, and the time of docketing in the county to which ghe execution is issued, and shall require the officer substantially as follows : 1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the per- sonal property of such debtor; and if suflicient personal pro- perty cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter: 2. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property, or trustees, it shall require the officer to satisfy the judgment out of such property: 3. If it be against the person of the judgment debtor, it shall require the officer to arrest such debtor, and commit him to the jail of the county until he shall pay the judgment, or be discharged according to law: 4, If it be for the delivery of the possession of real or per- sonal property, it shall require the officer to deliver the posses- sion of the saine, particularly describing it, to the party entitled thereto, and may, at the same time, require the officer to satisfy any costs, damages, or rents and profits, recovered by. the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein, if a de- livery thereof cannot be had; and if sufficient personal prop- erty cannot be found, then out of the real property belonging to him on the day when the judgment was docketed, or at any time thereafter, and shall, in that respect, be deemed an execu- tion against property. THE CODE OF PROCEDURE. 107 § 290.—[ Lo be returnable in siaty days.]—The execution shall be returnable within sixty days after its receipt by the officer to the clerk with whom the record of judgment is filed. § 291.—[ Evisting laws relating to execution continued until otherwise provided. |—Until otherwise provided by the legisla- ture, the existing provision of law not in conflict with this chapter, relating to executions, and their incidents, the property liable to sale on execution, the sale and redemption thereot, the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed in this chapter. Carrer II. PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION.. Section 292. When execution returned unsatisfied, order for discovery of pro- perty allowed. Also when judgment debtor refuses to apply property to satisfy judgment. Manner of proceeding to examine judgment debtor. 293. Any debtor may pay execution against his creditor. 294, Examination of debtors of judgment debtor, or of those having property belonging to him. 295, Witnesses required to testify. 296. Compelling party or witness to attend. Examinations, when to be on oath. 297. Judge may order property to be applied on execution. 298. Judge may appoint receiver, and prohibit transfer, etc., of property. 299. Proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor. 300. Reference may be ordered. 301. Costs of proceedings. 302. Disobedience of order, how punished. § 292.—[ When execution returned unsatisfied, order for dis- covery of property allowed. Also, when judgment debtor re- Suses to apply property to satisfy judgment. Manner of pro- ceeding to examine judgment debtor.|—(1.) When an execution against property of the judgment debtor, or of any one of the several debtors in the same judgment, issued to the sheriff of the county where he resides, or if he do not reside in the state, to the sheriff of the county where a judgment roll, or a tran- script of a justice’s judgment, for twenty-five dollars or upwards, exclusive of costs, is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return 108 THE CODE OF PROCEDURE. made, is entitled to an order from a judge of the court, or a county judge of the county to which the execution was issued, or a judge of the Court of Common Pleas for the city and county of New York, when the execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property, before such judge, at a time and place specified in the order, within the county to which the execution was issued. (2.) After the issuing of an execution against property, and upon proof by affidavit, of a party or otherwise, to the satisfaction of the court, or a judge thereof, or county judge, or any judge of the Court of Common Pleas for the city and county of New York, that any judgment debtor, residing in the county where such judge or officer re- sides, has property, which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same: and such pro- ceedings may thereupon be had for the application of the pro- perty of the judgment debtor toward the satisfaction of the judgment as are provided upon the return of an execution. Whenever it shall satisfactorily appear, by affidavit, to a justice of the Supreme Court, that such county judge, or judge of said Court of Common Pleas, is incapacitated from acting in any of the proceedings whatever, herein authorized, from any cause or causes whatsoever, such justice of the Supreme Court shall have the same powers and authority, in all cases whatever, as are herein conferred upon him as to cases of judgments in the Supreme Court. (3.) On an examination under this section, either party may examine witnesses in his behalf, and the judg- ment debtor may be examined in the same manner as a wit- ness. (4.) Instead of the order requiring the attendance of the judgment debtor, the judge may, upon proof by afiidavit or otherwise, to his satisfaction, that there is danger of the debtor’s leaving the state, or concealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be, to arrest him and bring him before such judge. Upon being brought before the judge, he may be examined on oath; and if it then appears that there is danger of the debtor’s leaving the state, and that he has pro- perty which he has unjustly refused to apply to such judgment, THE CODE OF PROCEDURE. 109 ordered to enter into an undertaking with one or more sureties, that he will from time to time attend before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispuse of any portion of his property, not exempt from execution. In default of entering into such undertaking, he may be committed to prison, by warrant of the judge, as for acontempt. (5.) No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evi- dence against him in any criminal proceeding or prosecution. § 293.—[Any debtor may pay execution against his creditor.] —After the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff’s receipt shall be a suffi- cient discharge for the amount so paid. § 294.—[Hzamination of dgbtors of judgment debtor, or of those having property belonging to him.J|—After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon an affidavit, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding ten dollars, the judge may by an order require such person or corporation, or any officer or member thereof, to appear at a specified time and place, and answer concerning the same. The judge may also, in his discretion, require notice of such proceeding to be given to any party to the action, in such manner as may seem to him proper. § 295.—[ Wetnesses required to testify.]—Witnesses may be required to appear and testify on any proceedings under this chapter, in the same manner as upon the trial of an issue. § 296.—[ Compelling party or witnesses to attend. FExamina- tions, when to be on oath.|—The party or witness may be required to attend before the judge, or before a referee, appointed by the court or judge; if before a referee, the examination shall be taken by the referee, and certified by the judge. All ex- aminations and answers betore a judge or referee, under this chapter, shall be on oath, except that when a corporation answers, the answer shall be on the oath of an officer thereof. § 297.—[ Judge may order property to be applicd on execu- 110 THE CODE OF PROCEDURE. tcon.]—The judge may order any property of the judgment debtor, not exempt from execution, in the hands either of him- self or any other person, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, except that the earnings of the debtor for his personal services, at any time within sixty days next preceding the order, cannot be so applied, when it is made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of family supported wholly or tel by his labor. § 298.—[ Judge may appoint receiver and prohibit transfer, etc., of property.J—The judge may also by order appoint a receiver of the property of the judgment debtor, in the same manner and with the like authority as if the appointment was made by the court according to section 244. But before the appointment of such receiver, the judge shall ascertain, if prac- ticable, by the oath of the party, or otherwise, whether any other supplementary proceedings are pending against the judg- ment debtor; and if such prgceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in re- lation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The judge may also by order forbid a transfer or other disposition of the property of the judgment debtor not exempt from execution, and any interference therewith. § 299.—[Proceedings upon claim of another party to pro- perty, or on denial of indebtedness to judgment debtor.|—If it appear that a person or corporation, alleged to have property of the judgment debtor, or indebted to him, claims an interest in the property, adverse to him, or denies the debt, such in- terest or debt shall be recoverable only in an action against such person or corporation by the receiver; but the judge may, by order, forbid a transfer or other disposition of such property or interest, till a sufficient opportunity be given to the receiver to commence the action, and prosecute the same to judgment and execution; but such order may be modified or dissolved, by the judge granting the same, at any time, on such security as he shall direct ; § 800.—[Leference may be ordered.J}—The judge may in his discretion order a reference to areferee agreed upon by the par- ties, or appointed by him to report the evidence or the facts, and THE CODE OF PROCEDURE. 111 may in his discretion appoint such referee in the first order, or at any time. [Laws of 80th Session, Chap. 723, § 12; April 17, 1857.) § 301.—[ Costs of proceeding.|—The judge may allow to the judgment creditor, or to any party so examined, whether a party to the action or not, witnesses’ fees and disbursements, and a fixed sum in addition, not exceeding thirty dollars, as costs. § 802.—[Disobedience of order, how punished.J—It any person, party, or witness, disobey an order of the judge or re- feree duly served, such person, party, or witness may be pun- ished by the judge as for a contempt. And in all cases of commitment under this chapter, or the act to abolish imprison- ment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonmont, by the court or judge commit- ting him, or the court in which the judgment was rendered, on such terms as may be just. TITLE X. OF THE COSTS IN CIVIL ACTIONS. Section 303. Fee bill abolished. Allowances given, termed costs. 304. When allowed, of course, to plaintiff. 805. When allowed to defendant. 806. When allowed to either party in the discretion of the court. 307. Amount of costs allowed. 808. Allowance, in addition, of a percentage on the recovery or claim 309. Percentage; how computed. 810. Interest on verdict or report, when allowed. 311. Costs, how to be inserted in judgment. 812. Clerk’s fees. 813. Referee’s fees. 314. Costs on postponement of trial. 315. Costs on a motion. 316, Costs against infant plaintiff. 317. Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue, 318. Costs on review of a decision of an inferior court in a special pro- ceeding. 319, 320. Costs in actions by the people. 321. Costs against assignee of cause of action, after action brought. 322. Costs on a settlement. § 803.—[Kee bill abolished. Allowance given, termed costs.] 112 THE CODE OF PROCEDURE. —All statutes establishing or regulating the costs or fees of attorneys, solicitors, and counsel in civil actions, and all ex- isting rules and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agree- ment, express or implied, of the parties. But there may be allowed to the prevailing party, upon the judgment, certain sums, by way of indemnity for his expenses in the action— which allowances are in this act termed costs. § 304.—[ When allowed, of course, to plaintiff.|—Costs shall be allowed, of course, to the plaintiff, upon a recovery, in the following cases: 1. In an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial ; 2. In an action to recover the possession of personal property ; 3. In the actions of which, according to section 54, a court of a justice of the peace has no jurisdiction. 4. In an action for the recovery of money, where the plain- tiff shall recover fifty dollars or more. But in an action for assault, battery, false imprisonment, libel, slander, malicions prosecution, criminal conversation, or seduction, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages. And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers, also, property, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court or referee, by whom the action is tried. When several actions shall be brought on one bond, recog- nizance, promissory note, bill of exchange, or other instru- ment in writing, or in any other case, for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs other than disburse- ments shall be allowed to the plaintiff in more than one of such actions, which shall be at his election, provided that the party or parties proceeded against in such other action or actions, shall, at the time of the commencement of the previous action or actions, have been within this state, and not secreted. THE CODE OF PROCEDURE. 113 § 305.—[ When allowed to defendant.|—Costs shall be al- lowed, of course, to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein. § 306.—[ When allowed to either party in the discretion of the court.|—In other actions costs may be allowed or not, in the discretion of the court. In all actions where: there are several defendants, not united in interest, and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them. In the following cases the costs of an appeal shall be in the discretion of the court. 1. When a new trial shall be ordered. 2. When a judgment shall be affirmed in part and reversed in part. § 807.—[ Costs to be allowed.]—-When allowed, costs shall be as follows : 1. To the plaintiff for all proceedings before notice of trial, (including judgment when rendered :) In an action where judgment upon failure to answer may be had without application to the court, ten dollars; in an action where judgment can only be taken on application to the court, fifteen dollars; and two dollars for each additional defendant upon whom process shall have been served, except in actions for the foreclosure of a mortgage, the allowance for additional defendants is limited to ten such defendants, and in other cases to five such defendants. 2. ‘To the defendant for all proceedings before notice of trial, ten dollars. 3. To either party for all subsequent proceedings before trial, ten dollars. 4. To either party for oe trial of an issue of law, fifteen dollars; for every trial of an issue of fact, twenty dollars. 5. To either party on appeal, except to the Court of Appeals, and except appeals in the cases mentioned in section three hundred and forty-nine,.before argument fifteen dollars; for argument thirty dollars; and the same costs shall be allowed to either party before argument, and for argument on applica- tion for judgment, upon special verdict, or upon verdict sub- ject to the opinion of the court as for a new trial on a case 8 114 THE CODE OF PROCEDURE. made, and in cases where exceptions are ordered to be heard, in the first instance, at a general term, under the provisions of section two hundred and sixty-five. 6. To either party on appeal to the Court of Appeals, before arguinent, twenty-five dollars; for argument, fifty dollars; and when a judgment is affirmed, the court may, in its discretion, also award damages for a delay, not exceeding ten per cent. upon the amount-of the judgment. 7. To either party, for every circuit or term not exceeding five circuits, and five special, and five general terms, at which the cause is necessarily on the calendar, and is not reached or postponed, ten dollars. But in an action hereafter brought to recover dower, before admeasurement of real property aliened by the husband, the plaintiff shall not recover costs, unless it appear that the dower was demanded before the commencement of the action, and was refused. The same costs shall be allowed to the plaintiff in proceed- ings under chapter two, title twelve of the second part of this Code as upon the commencement of an action. § 808.—[Percentage to be allowed plaintiff.J|—In addition to these allowances there shall be allowed to the plaintiff upon the recovery of judgment by him in any action for the partition of real property, or for the foreclosure of a mortgage, or in which a warrant of attachment has been issued for an adjudication upon a will or other instrument in writing, and in proceedings to compel the determination of claims to real property, the sum of ten per cent., on the recovery as in the next section prescribed, for any amount not exceeding two hundred dollars ; an additional sum of five per cent., for any additional amount not exceeding four hundred dollars, and an additional sum of two per cent., for any additional amount not exceeding one thousand dollars. § 809.—[Rule of computation.|—These rates shall be esti- mated upon the value of the property claimed or attached or affected by the adjudication upon the will or other instrument, or sought to be partitioned, or the amount found due upon the mortgage in an action for foreclosure.. And whenever it shall be necessary to apply to the court for an order enforcing the payment of an installment falling due after judgment in an action for foreclosure, the plaintiff shall be entitled to the rate of allowance in the last section prescribed, but to no more in THE CODE OF PROCEDURE. 115 the aggregate than if the whole amount of the mortgage had been due when judgment was entered. Such amount of value must be determined by the court or by the commissioners in case of actual partition. In difficult and extraordinary cases, when a trial has been had, except in any of thé actions or proceedings specified in section three hundred and eight, the court may also, in its discretion, make a further allowance to any party, not exceed- ing five per cent., upon the amount of the recovery or claim, or subject matter involved. § 310.—[Interest on verdict or report, when allowed.]—When the judgment is for the recovery of money, interest from the time of the verdict or report, until judgment be finally entered, shall be computed by the clerk, and added to the costs of the party entitled thereto. § 811.—[Duty of clerks as to costs.|—The clerk shall insert in the entry of judgment, on the application of the prevailing party, upon five days’ notice to the other, except when the attorneys reside in the same city, village, or town, and then upon two days’ notice, the sum of the allowances for costs as provided by this Code, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensa- tion of commissioners in taking depositions, the fees of referees, and the expenses of printing the papers for any hearing when required by a rule of the court. The disbursements shall be stated in detail, and verified by affidavit. A copy of the items of the costs and disbursements shall be served with a notice of adjustment. [Laws of 80th Sesston, Chap. 723, § 16; April 17, 1857.] § 312.—[Clerk’s fees.]|—The clerk shall receive, On every trial, from the party bringing it on, one dollar; on entering a judgment by filing transcript, six cents: On entering judgment, fifty cents; except in courts where the clerks are salaried officers, and in stich courts one dollar. He shall receive no other fee for any services whatever in a civil action, except for copies of papers, at the rate of five cents for every hundred words. § 313.—[Referee’s fees.|—The fees of referees shall be three dollars to each for every day spent i in the business of the refer- ence; but the parties may agree in writing upon any other rate of compensation. 116 THE CODE OF PROCEDURE. § 814.—[ Costs on postponement of trial.|—When an appli- cation shall be made to a court or referees, to postpone a trial, the payment to the adverse party of asum not exceeding ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement. § 315.—[ Costs on motions.J|—Costs may be allowed on a motion in the discretion of the court or judge, not exceeding ten dollars, and may be absolute, or directed to abide the event of the action. [Laws of 80th Session, Chap. 723, $17; Apri 17, 1857.] § 316.—[Costs against infant pilaintif.]—When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor, and pay- ment thereof may be enforced by attachment. § 817.—[Costs by or against executors, administrators, trustees, etc.|—In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be reco- vered, as in an action by and against a person prosecuting or defending in his own right, but such costs shall be charge- able only upon or collected of the estate, fund, or party repre- sented unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defence. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section forty-one, of title three, chapter six of the second part of the Revised Statutes; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disburse- ments, to be taxed according to law. And the court may in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs. [Laws of 75th Session, Chap. 392; Apri 16, 1852.] § 318.—[ Costs on review of a decision of inferior court in a special proceeding.|—When the decision of a court of inferior jurisdiction, in a special proceeding, shall be brought before the Supreme Court for review, such proceeding shall, for all purposes of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into the Su- THE CODE OF PROCEDURE. 117 preme Court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case. § 819.—[ Costs in actions by the people.|—In all civil actions prosecuted in the name of the people of this state, by an officer duly authorized for that purpose, the people shall be liable for costs in the same cases and to the same extent as private parties. If a private person be joined with the people as plaintiff, he shall be liable in the first instance for the defend- ant’s costs; which shall not be recovered of the people till after execution issued therefor against such private party, and re- turned unsatisfied. § 320.—[ The same.|—In an action prosecuted in the name of the people of this state for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation, or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the people. § 321.—[ Costs against assignee of cause of action after action brought.]—In actions, in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be en- forced by attachment. , § 322.—[ Costs on a settlement.|—Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum. shall be demanded from the defendant as costs, than at the rates prescribed by that section. 118 THE CODE OF PROCEDURE. TITLE XI. OF APPEALS IN CIVIL ACTIONS. Cuaprer I. Appeals in general. II. Appeals to the Court of Appeals, TI. Appeals to the Supreme Court from an inferior court. TV. Appeals in the Supreme Court, and the Superior Court, and the Court of Common Pleas of the city of New York, from a single judge to the general term. V. Appeal to the Court of Common Pleas for the city and county of New York, or to a county court from an inferior court. x Cuarrter I. APPEALS IN GENERAL. Sacriow 323. Writs of error abolished, and appeals substituted. 324. Orders made out of court, how vacated or modified. 325. Who may appeal. 826. Parties, how designated on appeal. 327. Appeal, how made. 328. Clerk to transmit papers to appellate court, 329. Intermediate orders affecting the judgment, may be reviewed on the appeal, 330. Judgment on appeal. 331. Certain appeals to be within sixty days; others within two years. 332. Other appeals within thirty days. § 323.—[ Writs of error abolished, and appeals substituted.) —Writs of error in civil actions, as they have heretofore ex- isted, are abolished, and the only mode of reviewing a judg- ment or order in a civil action, shall be that prescribed by this title. § 824.—[ Orders made out of court, how vacated or modified.] —An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. § 825.—[ Who may appeal.|—Any party aggrieved may ap- peal in the cases prescribed in this title. § 326.—[Parties, how designated on appeal.|—The party ap- pealing shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal. THE CODE OF PROCEDURE. 119 § 327.—[Appeal, how made.]—An appeal must be made by the service of a notice in writing, on the adverse party, and on the clerk, with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof. Whena party shall give in good faith, notice of appeal from a judgment or order, and shall omit, through mis- take, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just. § 328.—[ Clerk to transmit papers to appellate court.|—Upon the appeal allowed by the second and third chapters of this title being perfected, the clerk with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith trans- mit to the appellate court a certified copy of the notice of ap- peal and of the judgment-roll; or, if the appeal be from an order, or any part thereof, a certified copy of such order, and of the papers upon which the order was granted. § 829.—[Intermediate orders affecting the judgment may be reviewed on the appeal.|—Upon an appeal from a judgment, the court may review any intermediate order involving the merits, and necessarily affecting the judgment. § 330.—[ Judgment on appeal.|—Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment. § 331.—[Certain appeals within sixty days; within two years.|—The appeal to the court of appeals under subdivision two, of section eleven of this code, must be taken within sixty days after written notice of the order shall have been given to the party appealing; every other appeal allowed by the second and third chapters of this title must be taken within two years after the judgment shall be perfected by filing the judgment-roll. § 332.—[Other appeals within thirty days.|—The appeal allowed by the fourth chapter of this title must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing. 120 ACTS CONCERNING APPEALS. An Act in relation to special proceedings. Passed April 15, 1854. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Sucrion 1. An appeal may be taken to the general term of the Supreme Court or the Superior Court, or Court of Common Pleas of the city of New York, from any judgment, order or final determination made at a special term of @ither of said courts in any special proceedings therein; such an appeal, however, shall not stay the proceedings unless the court or a judge thereof, so order, which order may be upon such terms as to security or otherwise, as may be just; such security not to exceed the amount required on an appeal to the Court of Appeals. Sec. 2. Sections three hundred and twenty-seven, three hun- dred and twenty-nine, three hundred and thirty, and three hundred and thirty-two of the Code of Procedure shall apply to appeals in special proceedings. Sc. 3. In special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions; and all appeals heretofore had or taken, and undetermined in special proceedings, shall be as valid and effectual as though had or taken under the provisions of this act. Sec. 4. This act shall take effect immediately —[Zaws of T7th Session, Chap. 270.] Aw Act in relation to preferred causes in the Supreme Court and Court of Appeals. Passed April 5, 1860. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Actions in which executors and administrators are sole plaintiffs or sole defendants, shall have a preference in the Court of Appeals and in the Supreme Court, at the general term thereof, over all actions except in criminal cases, and may be moved out of their order on the calendar. THE CODE OF PROCEDURE. 121 Seo. 2. Appeals which prevent the issuing of letters testamen- tary or of general administration, shall also have a preference for hearing inthe Court of Appeals and in the Supreme Court, over all actions except criminal cases, and may be moved out of their order accordingly. Sec. 8. This act shall take effect immediately. Cyarter II. APPEAL TO THE COURT OF APPEALS. Szction 333. In what cases. 334, On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived. 385. On judgment for money, security to stay execution. 336. If judgment be to deliver documents, they must be deposited. 387. If to execute conveyance, it must be executed and deposited. 388. Security where judgment is to deliver property, or for a sale ° mortgaged premises. 889. Stay of proceedings upon security given. 340. Undertakings may be in one instrument, or several. 341. Security to be approved and to justify. 842. Perishable property may be sold, notwithstanding appeal. 343. Undertaking must be filed. § 833.—[Jn what cases.|—An appeal may be taken to the Court of Appeals in the cases mentioned in section eleven. When any of the courts mentioned therein shall, at general term, render judgment upon a verdict taken subject to the opinion of the court, the questions or conclusions of law, ie gether with a concise statement of the facts upon which thley arose, shall be prepared by and under the direction of the court, and shall be filed with the judgment-roll, and be deemed a part thereof; for the purposes of a review in the Court of Appeals. [Laws of 80¢h Session, Chap. 723, § 19; April 17, 1857.] The provisions of the last preceding section shall apply to any judgment therein mentioned that has been heretofore rendered, and upon which an appeal has been brought and is now pending, or upon which an appeal shall hereafter be brought. When the return has already been filed with the clerk of the Court of Appeals, such statement shall be filed with him, and be deemed a part of such return. [Laws of 80th Session, Chap. 728, § 20; April 17, 1857.] 122 THE CODE OF PROCEDURE. § 334.—[On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless wamwed.|—To render an appeal effectual for any purpose, a written undertaking must be executed, on the part of the appellant, by at least two sureties, to the effect, that the ap- pellant will pay. all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars; or that sum must be deposited with the clerk, with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking or deposit may be waived by a written consent on the part of the respondent. § 335.—[On judgment for money, security to stay emecu- tion.]—If the appeal be from a judgment directing the pay- ment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant, by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judg- ment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal. Whenever it shall be made satisfactorily to appear to the court that since the execution of the undertaking, the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed with costs. § 8386.—[1f judgment be to deliver documents, they must be deposited.|—If the judgment appealed from direct the assign- ment or delivery of documents or personal property, the exe- cution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into, on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge shall direct, to the effect that the appellant will obey the order of the appellate court, upon the appeal. § 3837.--[/f to execute conveyance, it must be executed and THE CODE OF PROCEDURE. 123 deposited.|—If the judgment appealed from direct the execu- tion of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal, until the instru- ment shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court. § 338.—[Security where judgment is to deliver property, or for a sale of mortgaged premises.|—If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless a written undertaking be executed on the part of the appellant, with two sureties, to the effect, that during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon; and that if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the under- taking shall also provide for the payment of such deficiency. § 339.—[Stay of proceedings, upon security given.|—When- ever an appeal is perfected as provided by sections three hun- dred and thirty-five, three hundred and thirty-six, three hun- dred and thirty-seven and three hundred and thirty-eight, it stays all further proceedings in the court below, upon the judg- ment appealed from, or upon the matter embraced therein ; but the court below may proceed upon any other matter in- cluded in the action, and not affected by the judgment appealed from. And the court below may, in its discretion, dispense with or limit the security required by sections three hundred and thirty-five, three hundred and thirty-six and three hundred and thirty-eight; when the appellant is an executor, adminis- trator, trustee or other person acting in another’s right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections three hun- dred and thirty-six, three hundred an1 thirty-seven and three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum. § 340.—[ Undertakings may be in one instrument or several.) 124 THE CODE OF PROCEDURE. --The undertakings prescribed by sections 334, 335, 336 and 338, may be in one instrument, or several, at the option of the appellant ; and a copy, including the names and residence of the sureties, must be served on the adverse party, with the notice of appeal, unless a deposit is made as provided in section 334, and notice thereof given. § 3841.—[Security to be approved and to justify.|—An under- taking upon an appeal shall be of no effect, unless it be accom- panied by the affidavit of the sureties, that they are each worth double the amount specified therein. The respondent may, however, except to the sufficiency of the sureties, within ten days after the notice of the appeal; and unless they or other sureties justify before a judge of the court below, or a county judge, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days. § 342.—[ Perishable property may be sold, notwithstanding appeal.|—In the cases not provided for in sections 335, 336, 337, 338, and 339, the perfecting of an appeal, by giving the under- taking mentioned in section 334, shall stay proceedings in the court below, upon the judgment appealed from, except that where it directs the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof to be. deposited or invested, to abide the judgment of the appel- late court. § 843.—[ Undertaking must be filed.|—The undertaking must be filed with the clerk with whom the judgment or order ap- pealed from was entered. ‘Aw Acr to relieve municipal corporations from giving secur- ity on appeal, and to relieve them from payment of costs in certain cases. Passed April 12, 1859. The people of the State of New York, represented in Senate and Assembly, do enact as follows : Section 1, All appeals by municipal corporations from the judgment or decree of any court of this State, shall be valid to stay proceedings on such judgment or decree, without security or undertaking being given, unless the court in which such THE CODE OF PROCEDURE. 125 judgment or decree is rendered shall otherwise direct; and in such case an undertaking executed in their official capacity, by either the mayor, comptroller or counsel to the corporation, in the name and on the behalf of said corporation, shall be valid for purpose of such appeal, and shall bind’ said corporation to the performance of the conditions of said undertaking. Src. 2. No costs, fees, disbursements or allowance shall be recovered or inserted in any judgment against municipal cor- porations, unless the claim upon which such judgment is founded shall have been presented for payment to the chief fiscal officer of said corporation, before the commencement of an action thereon. Ssc. 3. This act shall take effect immediately. Cuarter III. APPEAL TO THE SUPREME COURT FROM AN INFERIOR COURT. Section 844. In what cases. 345. Security must be given, as upon appeal to the Court of Appeals. 346. Appeal, where heard. . 847. Judgment on appeal, where entered and docketed. § 844.—[In what cases.]—An appeal may be taken to the Supreme Court, from the judgment rendered by a county court, or by the Mayor’s courts, or the Recorder’s courts of cities. An appeal also may be taken to the Supreme Court from any order affecting a substantial right, made by a county court, or a county judge, in any action or proceeding, and such appeal shall be heard on a copy of the paper from which the order appealed from was made. § 845.—[Security must be given, as upon appeal to Court of Appeals.|—Security must be given upon such appeal, in the same manner and to the same extent as upon an appeal to the Court of Appeals. § 846.—[Appeal, where heard.]—Appeals in the Supreme Court shall be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county, except that-where the judgment or order was entered in the city and county of New York, the appeal shall be heard in the first district. 126 THE CODE OF PROCEDURE. § 847.—[ Judgment on appeal, where entered and docketed.\— Judgment upon the appeal shall be entered and docketed with the clerk in whose office the judgment-roll is filed. When the appeal is heard in a county other than that where the judg- ment-roll is filed, or is not from a judgment of a county court, the judgment upon the appeal shall be certified to the clerk with whom the roll is filed, to be there entered and docketed. Cuarter IV. APPEALS IN THE SUPREME COURT, AND THE SUPERIOR COURT AND COURT OF COMMON PLEAS OF THE CITY OF NEW YORK, FROM A SINGLE JUDGE, TO THE GENERAL TERM. Section 348, Appeals from circuits and special terms to same courts at general term. Security on appeal. 349. Orders by a single judge, may be appealed from in certain cases. 850. Orders at chambers to be entered before appeal. § 848.—[Appeals to general term of the Supreme Court. Security on appeal.|—In the Supreme Court, the Superior Court of the city of New York, and the Court of Common Pleas for the city and county of New York, an appeal upon the law may be taken to the general term from a judgment entered upcn the report of referees or the direction of a single judge of the same court in all cases, and upon the fact, when the trial is by the court or referees. Such an appeal however, does not stay the proceedings, unless security be given as upon an appeal to the Court of Appeals, and such security be re- newed, as in cases required by section 335, on motion to the court at special term ; or unless the court, or a judge thereof, so order, which order may be made on such terms, as to secu- rity, or otherwise, as may be just ; such security not to exceed the amount required on an appeal to the Court of Appeals. In the Supreme Court, the appeal must be heard in the same man- ner as if it were an appeal from an inferior court. § 349.—[Judges’ orders may be appealed from in certain cases.]—An appeal may in like manner and within the same time be taken from an order made at a special term or by a single judge of the same court, or a county or a special county judge, in any stage of the action, including proceedings sup- THE CODE OF PROCEDURE. 137 plementary to the execution, and may be thereupon reviewed in the following cases : 1. When the order grants or refuses, continues or modifies, @ provisional remedy ; 2. When it grants or refuses a new trial, or when it sustains or overrules a demurrer ; 3. When it involves the merits of the action, or some part thereof, or affects a substantial right ; 4, When the order in effect determines the action, and pre- vents a judgment from which an appeal may be taken; 5. When the order is made upon a summary application in an action after judgment, and affects a substantial right. [Laws of 75th Session, Chap. 892; April 16, 1852.] § 850.—[Orders at chambers, to be entered, before appeal.|— The last section shall include an order made out of court upon notice; but in such case the order must be first entered with the clerk. And for the purpose of an appeal, any party affected by such order may require it to be entered with the clerk, and it shall be entered accordingly. 128 THE CODE OF PROCEDURE. Cuarter V. APPEAL TO THE COURT OF COMMON PLEAS FOR THE CITY AND COUNTY OF NEW YORK, OR TO A COUNTY COURT, FROM AN INFE- RIOR COURT. Secrion 351. Existing laws repealed, and this chapter substituted. 352. By what courts judgments to be reviewed. 353. Time to appeal. 354. Manner of appealing. 355. Security to stay execution. 356. Form of undertaking. 357. Execution, how stayed. 358. In case of death of justice, undertaking to be filed. 859. In that case, notice how served. 360. Return when and how made, and compelled. 361. How made if justice be out of office. 362. Further return may be ordered, 363. If justice be dead; insane, or absent from state, witnesses to be examined. If in another county, return may be compelled. 364, Hearing, upon return. Dismissing appeal if not brought on. 865. To be heard on original papers. 366. Judgment, how given. 367. Judgment-roll on appeal. 868. Costs, how awarded. 869. Ordering restitytion. 870. Setting off costs and recovery. 871. The costs on appeal. § 851.—[ Existing laws repealed, and this chapter substi- tuted.|—All statutes, now in force, providing for the review of judgments in civil cases, rendered by courts of justices of the peace, by the Marine Court of the city of New York, by the justices’ courts in the city of New York, by the Municipal Court of the city of Brooklyn, and by the justices’ courts of cities, and regulating the practice in relation to such review, are repealed; and hereafter, the only mode of reviewing such judgments shall be an appeal, as prescribed by this chapter. § 352.—[ By what courts judgments to be reviewed.|—When the judgment shall have been rendered by the general term of the Marine Court of the city of New York, or by a justice of the justices’ courts of that city, the appeal shall be to the Court of Common Pleas for the city and county of New York, and when rendered by any of the other courts enumerated in the last section, to the county court of the county where the judg- THE CODE OF PROCEDURE. 129 ment was rendered. The appeal from the general term of the Marine Court prescribed herein, shall be from an actual deter- mination at such general term only, and shall be taken within twenty days after judgment by such general term. [Laws of 80th Session, Chap. 728, § 21; April 17, 1857.] § 353.—[ Time to appeal.]—The appellant shall, within twenty days after judgment, serve a notice of appeal stating the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, and the defend- ant did not appear, he shall have twenty days, after personal notice of the judgment, to serve the notice of appeal provided for in this and the next section. [Laws of 'T5th Session, Chap. 892; April 16th, 1852.] § 854.—[ Manner of appealing.|—The notice of appeal must within the same time be served on the justice personally, if living and within the county, or on his clerk, if there be one, and on the respondent, personally, or by leaving it at his resi- dence, with some person of suitable age and discretion; or in case the respondent is not a resident of such county, or cannot, after due diligence, be found therein, in the same manner on the attorney or agent, if any, who is a resident of such county, who appeared for the respondent on the trial; and if neither the respondent nor such agent or attorney can be found in the county, the notice may be served on the respondent by leaving it with the clerk of the appellate court, and the appellant must, at the time of the service of the notice of appeal on the justice, or on his clerk, as herein provided, (except in cases of appeals from the district courts in the city of New York, and the gen- eral term of the Marine Court of the city of New York,) pay to such justice or clerk the costs of the action, included in the judgment, together with two dollars, costs of the return, which shall be included in the judgment for costs on reversal. In all cases of appeal from the general term of the Marine Court of the city of New York, and from the district courts in the city of New York, to the court of common pleas for the city and county of New York, the appellant shall, at the time of the service of the notice of appeal, pay to the clerk of the marine court, or to the justice or clerk of the district court, two dol- lars, as costs of the return to such court of common pleas, which costs, so paid, shall be included in the judgment for costs, in case the judgment of the court below shall be reversed ; 9 130 THE CODE OF PROCEDURE. and the appellant shall also execute, on the appeal, a written undertaking on his part, with one or more sufficient sureties, to the effect that the appellant will pay all costs, disburse- ments, and extra costs, awarded against him in the court below, if such judgment shall be affirmed by the appellate court, on such appeal, together with all costs and damages which may be awarded against him thereon; such sureties to justify in double the amount specified in the undertaking; such under- taking and the sufficiency of the sureties to be approved by the justice of the court below, or one of the judges of the court of common pleas, or the appellant may deposit, with the clerk of the court of common pleas, the costs, disbursements, and extra costs, included in the judgment in the court below, and the sum of fifteen dollars, to meet any costs that may be awarded against him in such appeal; and such appeal from the general term of the marine court and the district court shall be ineffectual, unless within the time specified for bringing the appeal, the appellant execute such undertaking or make such deposit ; the undertaking, when executed and approved, to be filed with the clerk of the court of common pleas; the amount so deposited shall be repaid by said clerk, to the appellant, if he succeed on the appeal; and in case the judgment be affirmed, the said clerk shall, after execution is issued, pay over the amount so deposited, to the respondent, which shall be credited on the execution issued on the judgment of affirm- ance, to the extent thereof, and the balance, if any, on the execution issued on the judgment appealed from. § 355.—[Security to stay execution.|—If the appellant desire a stay of execution of the judgment, he shall give security as provided in the next section. § 356.—[Form of undertaking.|—The security shall be a written undertaking, executed by one or more sufficient sure- ties, approved by the county judge, or by the court below, to the effect that if judgment be rendered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied. § 357.—[ Execution, how stayed.]—The delivery of the under- taking to the court below shall stay the issuing of execution ; or if it have been issued, the service of a copy of the under- taking, certified by the court below, upon the officer holding the execution, shall stay further proceedings thereon. THE CODE OF PROCEDURE. 131 § 358.—[Ln case of death of justice, undertaking to be filed. |— Where, by reason of the death of a justice of the peace, or his removal from the county or any other cause, the undertaking on the appeal, cannot be delivered to him, it shall be filed with the clerk of the appellate court, and notice thereof given to the respondent, or his attorney or agent, as provided in section three hundred and fifty-four, it shall, thereupon, have tlic same effect as if delivered to the justice. § 3859.—[Wotice how served, when justice ts dead or absent.] —When by reason of the death of a justice of the peace, or his absence from the county, or any other cause, the notice of ap- peal cannot be served as provided by section three hundred and fifty-three, it may be served by leaving the same with the clerk of thecounty. [Laws of 75th Session, Chap. 892; April 16, 1852.] § 360.—[ Return when and how made, and compelled.|—The court below shall, thereupon, after ten days and within thirty days after the service of the notice of appeal, make a return to the appellate court of the testimony, proceedings and judgment, and file the same, in the appellate court, and may be compelled to do so by attachment. But no justice of the peace shall be bound to make a return, unless the fee prescribed by the last section of this chapter be paid on service of the notice of appeal. [Laws of Tith Session, Chap. 392; April 16, 1852.] § 361.—[How made if justice be out of office.|—When a justice of the peace, by whom a judgment appealed from was rendered, shall have gone out of office before a return is ordered, he shall, nevertheless, make a return, in the same manner, and with the like effect as if he were still in office. § 862.—[ Amended returns.]|—If the return be defective, the appellate court may direct a further or amended return as often as may be necessary, and may compel a compliance with its order by attachment; and the court shall always be deemed open for these purposes. [Laws of 80th Session, Chap. 723, § 23; April 17, 1857.] § 863.—L/f justice be dead, insane, or absent from State, witnesses to be examined. If in another county return may be compelled.|—If a justice of the peace whose judgment is ap- pealed from, shall die, become insane, or remove from the State, the appellate court may examine witnesses, on oath, to the facts 132 THE CODE OF PROCEDURE. and circumstances of the trial or judgment, and determine the appeal, as if the facts had been returned by the justice. If he shall have removed to another county within the State, the ap- pellate court may compel him to make the return as if he were still within the county where the judgment was rendered. § 864.—[ Hearing, upon return. Dismissing appeal, of not brought on.|—If a return be made, the appeal may be brought to a hearing at a general term of the appellate court, upon a notice by either party, of not less than eight days. It shall be placed upon the calendar, and continue thereon without further notice until finally disposed of; but if neither party bring it toa hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same, by special order, for cause shown. § 365.—[ To be heard on original papers—The appeal shall be heard on the original papers; and no copy thereof need be furnished for the use of the court. , § 366.—[LJudgment how given.]-—-Upon the hearing of the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects, which do not affect the merits. In giving judgment, the court may affirm or reverse the judgment of the court below in whole or in part, and as to any or all the parties, and for errors of lawor fact. If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the alleged error in fact on affidavits, and may in its discretion inquire into and determine the same upon exami- nation of the witnesses. If the defendant failed to appear before the justice, and it is shown by the affidavits served, or other- wise, that manifest injustice has been done, and the defendant satisfactorily excuses his default, the court may in its discretion get aside or suspend judgment, and order a new trial before the same or any other justice, at such time and place, and on such terms as the court may deem proper. The parties must appear before the justice according to the order of the court, and the same proceedings must thereupon be had in the action, as on the return of asummons personally served. § 367.—[Judgment-roll on appeal.|—To every judgment upon an appeal there shall be annexed the return on which it was heard, which shall be filed with the clerk of the court, and shall THE CODE OF PROCEDURE. 133 constitute the judgment-roll. [Zaws of 75th Session, Chap. 392; April 16, 1852.] § 368.—[ Costs, how awarded.|—If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party. § 369.—[ Restitution.]—If the judgment below, or any part thereof, be paid or collected, and the judgment be afterward reversed, the appellate court shall order the amount paid or collected to be restored, with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days, and if the order shall be made before the judgment is entered, the amount may be included in the judg- ment. [Laws of 80th Session, Chap. 723, § 24; April 17, 1857.] § 370.—[Setting off costs and recovery.|—If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance. § 871.—[ The costs on appeal.|—The following fees and costs, and no other except fees of officers and disbursements, shall be allowed on appeals : To the appellant on reversal, fifteen dollars. To the respondent on affirmance, twelve dollars. To a justice of the peace, for his return, two dollars. If the judgment appealed from be reversed in part, and affirmed as to the residue, the amount of costs allowed to either ' party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as pro- vided by section three hundred and sixty-four, no costs shall be allowed to either party. 134 THE CODE OF PROCEDURE. TITLE XII. OF THE MISCELLANEOUS PROCEEDINGS IN CIVIL ACTIONS, AND GENERAL PROVISIONS. Cuaprer I. Submitting a controversy without action, II. Proceedings against joint debtors, heirs, legatees, devisees, and ten- ants holding under a judgment debtor. III. Confession of judgment without action. IV. Offers of the defendant to compromise the whole or a part of the action. V. Admission or inspection of writings. VI. Examination of parties. VIL. Examination of witnesses. VIII. Motions and orders. IX. Entitling affidavits. X. Computation of time. XI. Notices, and filing and service of papers. XII. Duties of sheriffs and coroners. XIII. Accountability of guardians. XIV. Powers of referees. XY. Miscellaneous provisions. Carter I. SUBMITTING A CONTROVERSY WITHOUT ACTION. Section 372. Controversy, how submitted without action. 373. Judgment on, as in other cases, but without costs. 874, Judgment may be enforced or appealed from, as in an action. § 872.—[ Controversy, how submitted without action.|—Par- ties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same, to any court which would have juris- diction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon as if an action were depending. § 373.—[LJudgment on, as in other cases, but without costs.]— Judgment shall be entered in the judgment book as in other cases, but without costs, for any proceeding prior to notice of THE CODE OF PROCEDURE. 135 trial. The case, the submission, and a copy of the judgment, shall constitute the judgment-roll. § 874.—[Judgment may be enforced or appealed from, as in an action.|\—The judgment may be enforced in the same man- ner as if it had been rendered in an action, and shall be subject to appeal in like manner. — Cuarter II. PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, DEVISEES, LEGATEES AND TENANTS HOLDING UNDER A JUDGMENT DEBTOR. Section 375. Parties not summoned in action on joint contract, may be summoned after judgment. 376. If judgment debtor die, his representatives may be summoned. 877. Form of summons. 878. To be accompanied by affidavit of amount due. $79. Party summoned may answer and defend. 380. Subsequent pleadings and proceedin gs same asin an action. 381. Answer and reply to be verified as in an action. § 375.—[Parties not summoned in wppen on joint contract, may be summoned after judgment.|—When a judgment shall be recovered against one or more of several persons, jointly indebted upon a contract, by proceeding as provided in sec- tion one hundred and thirty-six, those who are not originally sum- moned to answer the complaint, may be summoned to show cause why they should not be found by the judgment, in the same manner as if they had been originally summoned. § 376.—L/f judgment debtor die, his representatives may be summoned.|—In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or the tenants of real property, owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of ad- ministration upon the estate of the testator or intestate, be sum- moned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respec- tively, and the personal representatives of adeceased judgment debtor may be so summoned, at any time within one year after their appointment. § 377.—L_Form of summons.]—The summons provided in the last two sections, shall be subscribed by the judgment creditor, his representatives or attorney; shall describe the judgment, 136 THE CODE OF PROCEDURE. and require the person summoned to show cause, within twenty days after the service of the summons; and shall be served in like manner as the original summons. § 378.—[Zo be accompanied by affidavit of amount due.|— The summons shall be accompanied by an aftidavit of the per- son subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon. , § 879.—[ Party summoned may answer and defend.|—Upon such summons, the party summoned may answer within the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently; and in addition thereto, if he be proceeded against according to section three hundred and seventy-five, he may make the same defence which he might have originally made to the action, except the statute of limitations. § 380.—[Subsequent pleadings and proceedings same as in an action.|—The party issuing the summons may demur or reply to the answer, and the party summoned may demur to the reply, and the issues may be tried and judgment may be given the same manner as in an action, and enforced by execution, or the application of the property charged to the payment of the judgment, may be compelled by attachment, if necessary. § 881.—[Answer and reply to be verified as in an action.|— The answer and reply thall be verified in the like cases and manner, and be subject to the same rules as the answer and réply in an action. Cuapter III. CONFESSION OF JUDGMENT WITHOUT ACTION. Section 382. Judgment may be confessed for debt due or contingent liability. 383. Statement in writing, and form thereof. 384. Filing same, and entering judgment. § 382.—[Judgment may be confessed for debt due or contin- gent liability.|—A judgment by confession may be entered without action, either for money due or to become due, or to gecure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter. § 383.—[Statement in writing, and form thereof.\—A state- THE CODE OF PROCEDURE, 137 ment in writing must be made, signed by the defendant and verified by his oath, to the following effect : 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly dune, or to become due. 8. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts consti- tuting the liability, and must show that the sum confessed therefor does not exceed the same. § 884.—LPiling same and entering judgment.|—The state- ment may be filed with a county clerk, or with a clerk of the’ Superior Court of the city of New York, who shall indorse upon it and enter in the judgment-book a judgment of the Su- preme or said Superior Court for the amount confessed, with five dollars costs, together with disbursements. The statement and affidavit, with the judgment indorsed, shall thenceforth become the judgment-roll. Executions may be issued and enforced thereon in the same manner astupon judgments in other cases in such courts. When the debt for which the judg- ment is recovered is not all due or is payable in installments, and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have indorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment with interest and costs, which amount shall be stated’ with interest thereon and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the installments thereafter to become due; and whenever any further installments become due, execution may, in like manner, be issued for the collec- tion and enforcement of the same. 138 THE CODE OF PROCEDURE. Cuapter IV. OFFERS OF THE DEFENDANT TO COMPROMISE THE WHOLE OR A PART OF THE ACTION. Section 885. Defendant may serve offer to compromise and the proceedings thereon. ' 386. Defendant may offer to liquidate damages conditionally. 387. Effect of acceptance or refusal of offer. § 885.—[Defendant may serve offer to compromise, and the procecdings thereon.|—The defendant may at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him, for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing within ten days, he may file the summons, complaint, and offer, with an affidavit of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of accept- ance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but must pay the defendant’s costs, from the time of the offer. § 386.—[Defendant may offer to liquidate damages condi- tionally.|—In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fail in his defence, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, wath or before the notice of trial, and on the trial have a verdict, the damages shall be assessed aueordinely, § 887.—[Lifect of acceptance or refusal of offer.J—If the plaintiff do not accept the offer, he shall prove his damages as if it had not been made, and shall not be permitted to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial. THE CODE OF PROCEDURE. 139 CuarTer V. ADMISSION OR INSPECTION OF WRITINGS. Section 888. A party may be required to admit a paper to be genuine, or pay expenses of proving it. Inspection and copy of books, papers, and documents, how obtained. § 888.—[Lnspection and copy of books, papers, and docu- ments, how obtained.|—Kither party may exhibit to the other, or to his attorney, at any time before the trial, any paper, material to the action, and request an admission in writing of its genuineness. If the adverse party or his attorhey fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterward put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascer- tained at the trial, shall be paid by the party refusing the admission ; unless it appear to the satisfaction of the court that there were good reasons for the refusal. The court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of any books, papers and documents in his possession or under his control, containing evidence relating to the merits of the action, or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both. 140 THE CODE OF PROCEDURE. Carter VI. EXAMINATION OF PARTIES. Szorion 389. Actions for discovery abolished. 890. A party may examine his adversary as a witness on the trial. 891. Such examination algo allowed before trial. Proceedings therefor. 392. Party how compelled to attend. 393. Testimony of party may be rebutted. 394. Effect of refusal to testify. 895. Testimony by a party not responsive to the inquiries may be re- butted by the oath of the party calling him. 896. Persons for whom action is brought or defended may be examined. 897. Examinations of co-plaintiff or co-defendant. a § 389.—[Action for discovery ‘abolished.]|—No action to obtain discovery under oath, in aid of the prosecution or de- fence of another action, shall be allowed, nor shall any ex- amination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter. § 390.—[A party may examine his adversary as a witness on the trial.|—A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same manner, and subject to the same rules of examina- tion, as any other witness to testify, either at the trial, or con- ditionally, or upon commission. 391.—[Such examination also allowed before trial. Pro- ceedings therefor.|—The examination, instead of being had at the trial as provided in the last section, may be had, at any time before the trial, at the option of the party claiming it, before a judge of the court or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served mn a summons for his attendance. § 392. —[Party, how compelled to attend. The party to be examined, as in the last section provided, may be compelled to attend in the same manner as a witness who is to be ex- amined conditionally; and the examination shall be taken THE CODE OF PROCEDURE. 141 and filed by the judge in like manner, and may be read by either party on the trial. §$ 393.—[ Testimony of party may be rebutted.|—The exami- nation of the party thus taken may be rebutted by adverse testimony. § 394.—[Efect of refusal to testify.]—If a party refuse to attend and testify as in the last four sections provided, he may be punished as for a contempt, and his complaint, answer, or reply may be stricken out. § 895.—[ Testimony by a party not responsive to the inguiries, may be rebutted by the oath of the party calling him.]|—A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or dis- charge when his answers would charge himself, such adverse party may offer himself, as a witness on his own behalf, in re- spect to such new matter, and shall be so received. § 396.—[Persons for whom action is brought or defended, may be ecamined.|—A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner and subject to the same rules of examination, as if he were named as a party. § 397.—[ Examination of co-party.|—A party may be exam- ined on behalf of his co-plaintiff or of a co-defendant, as to any matter in which he is not jointly interested or liable, with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be com- pelled to attend in the same manner as at the instance of an ad- verse party, but the examination thus taken shall not be used in the behalf of the party examined. And whenever in the case mentioned in sections three hundred and ninety and three hun- dred and ninety-one, one of several plaintiffs or defendants, who are joint contractors, or are united in interest is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action or defence, and shall be so received. [Laws of 75th Session, Chap. 392; April 16th, 1852.] t 142, THE CODE OF PROCEDURE. Cuarter VII. EXAMINATION OF WITNESSES. Section 898. No witness to be excluded by reason of interest. 399. Parties may be examined as witnesses in certain cases. § 898.—[ Wo witness to be excluded by reason of interest.|— No person offered as a witness shall be excluded by reason of his interest in the event of the action. § 399.—[ Parties may be examined as witnesses im certain cases.|—A party to an action, or special proceeding including proceedings in Surrogate’s Courts, and proceedings for the sum- mary recovery of the possession of land, may be examined as a witness on his own behalf or in behalf of any other party, in the same manner, and subject to the same rules of examina- tion, as any other witness, except that a party shall not be exam- ined against parties who are representatives of a deceased person, in respect to any transactions had personally between the deceased person and the witness; and except, also, that neither husband nor wife shall be required to disclose any communica- tion made by one to the other. Carter VIII. MOTIONS AND ORDERS. Ssction 400. Definition of an order. 401. Definition of a motion. Motions, how and where made. 402. When notice is necessary, it must be eight days before hearing. 403. In actions in Supreme Court, county judge may act at chambers. His orders, how reviewed. 404. In absence, etc., of judge at chambers, motion may be transferred by him to another judge. 405. Enlarging time for proceeding in an action. § 400.—[Definition of an order.|—Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. § 401.—[Motion, what is, how and where made.J—1. An application for an order is a motion. 2. Motions may be made in the first judicial district, to a judge or justice out of court, except for a new trial on the merits. THE CODE OF PROCEDURE. 143 3. Orders made out of court, without notice, may be made by any judge of the court, in any part of the State; and they may also be made by a county judge of the county where the action is triable, or by the county judge of the county in which the attorney for the moving party resides, except to stay pro- ceedings after verdict. 4. Motions upon notice must be made within the district in which the action is triable, or in a county adjoining that in which it is triable; except that where the action is triable in the first judicial district, the motion must be made therein, and no motion upon notice can be made in the first judicial district, in an action triable elsewhere. 5. In all the districts, a motion to vacate or modify a pro- visional remedy, and an appeal from an order allowing a pro- visional remedy, shall have preference over all other motions. 6. No order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except on previous notice to the adverse party. § 402.—[ When notice is necessary, tt must be eight days be- Sore hearing.|--When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing; but the court or judge may, by an order to show cause, pre- scribe a shorter time. § 403.—[Zn actions in Supreme Court, county judge may act at chambers. His orders, how reviewed.]—In an action in the Supreme Court, a county judge, in addition to the powers conferred npon him by this act, may exercise, within his county, the powers of a judge of the Supreme Court at cham- bers, according to the existing practice, except as otherwise provided in this act. And in all cases where an order is made by a county judge, it may be reviewed in the same manner as if it had been made by a judge of the Supreme Court. § 404.—[In absence, ete., of judge at chambers, motion may be transferred by him to another judge.|—When notice of a motion is given, or an order to show cause is returnable before a judge out of court, and at the time fixed for the motion he is absent, or unable to hear it, the same may be transferred, by his order, to some other judge, before whom the motion might originally have been made. § 405.—[ Enlarging time for proceeding in an action.|—The time within which any proceeding in an action must be had, 144 THE CODE OF PROCEDURE. after its commencement, except the time within which an ap- peal must be taken, may be enlarged, upon an affidavit show- ing grounds therefor, by a judge of the court, or if the action be in the Supreme Court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. Cuapter IX. ENTITLING AFFIDAVITS. Section 406. Affidavits defectively entitled valid. § 406.—[ Affidavits defectively entitled valid.J—It shall not be necessary to entitle an affidavit in the action; but an affida- vit made without a title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly enti- tled, if it intelligibly refer to the action or proceeding in which it is made. Cuaprer X. COMPUTATION OF TIME. Section 407. Time, how computed. § 407.—[ Time, how computed.|—The time within which an act is to be done, as herein provided, shall be computed, by excluding the first day, and including the last. If the last day be Sunday, it shall be excluded: a THE CODE OF PROCEDURE. 145 Caarter XI. NOTICES, AND FILING AND SERVICE OF PAPERS. Seorron a bx otices and other papers, how served on party or attorney. ee When, and how served by mail. 412. Double time when served by mail. 413, Eight days’ notice of motion, etc., before court or judge, when personally served. 414, Where papers need not be served on defendant. 415. Service of papers where party resides out of the State. 416. Summons and pleadings to be filed within ten days after service. 417. Service, where party appears by attorney. 418. This chapter not to apply to summons or process, orto papers to bring party into contempt. § 408.—[Wotices and other papers, how served on party or attorney. |—Notices shall be in writing; and notices and other papers may be served on the party or attorney, in the manner prescribed in the next three sections, where not otherwise provided by this act. § 409.—[The same.]—The service may be personal, or by delivery to the party or attorney on whom the service is re- quired to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof: or when there is no per- son in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or if it be not open, so as to admit of such ser- vice, then by leaving it at the attorney’s residence, with some person of suitable age and discretion. 2. If upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. § 410.—[ When and how served by mail.|—Service by mail may be made, where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail. § 411.—[The same.]—In case of service by mail, the paper 10 146 THE CODE OF PROCEDURE. must be deposited in the post-office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. § 412.—[Double time when served by mail.|—Where the service is by mail, it shall be double the time required in cases of personal service, except service of notice of trial, which may be made sixteen days before the day of trial, including the day of service. § 413.—[ Bight days’ notice of motion, etc., before court or judge, when personally served.|—Notice of a motion, or other proceeding, before a court or judge, when personally served, shall be given at least eight days before the time appointed therefor. § 414.—[ Where papers need not be served on defendant.J— Where a defendant shall not have demurred or answered, ser- vice of notice or papers, in the ordinary proceedings in an action, need not be made upon him, unless he be imprisoned for want of bail, but shall be made upon him or his attorney, if notice of appearance in the action has been given. 415.—[Service of papers where party resides out of the State.|—Where a plaintiff or a defendant who has demurred or answered, or gives notice of appearance, resides out of the State, and has no attorney in the action, the service may be made by mail, if his residence be known; if not known, on the clerk for the party. § 416.—[Summons and pleadings to be filed within ten days after service.|—The summons, and the several pleadings in an action, shall be filed with the clerk within ten days after the service thereof, respectively, or the adverse party, on proof of the omission, shall be entitled, without notice, to an order from a judge that the same may be filed within a time to be specified in the order, or:be deemed abandoned. § 417.—[Service, where party appears by attorney.]—Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney instead of the party. § 418.—[ This chapter not to apply to summons or process, or to papers to bring party into contempt.J]—The provisions of this chapter shall not apply to the service of a summons or other process, or of any paper to bring a party into contempt. THE CODE OF PROCEDURE. 147 Cuarter XII. DUTIES OF SHERIFFS AND CORONERS. Section 419. Duty of sheriff and coroner in serving and executing process, and how enforced. § 419.—[Duty of sheriff and coroner in serving or executing process, and how enforced.|—Whenever, pursuant to this act, the sheriff may be required to serve or execute any summons, order or judgment, or to do any other act, he shall be bound to do so in like manner as upon process issued to him, and shall be equally liable in all respects for neglect of duty; and if the sheriff be a party, the coroner shall be bound to perform the service, as he is now bound to execute process, where the sheriff is a party; and all the provisions of this act relat- ing to sheriffs shall apply to coroners when the sheriff is a party. Cuapter XIII. ACCOUNTABILITY OF GUARDIANS. Secrion 420. Guardians not to receive property until security given. § 420.—[Guardians not to receive property until security giwen.|—No guardian appointed for an infant shall be per- mitted to receive property of the infant, until he shall have given sufficient security, approved by a judge of the court or a county judge, to account for and apply the same, under the direction of the court. Cuaarrer XIV. POWERS OF REFEREES. Sgction 421. Referees authorized to administer oaths, and to exercise powers now vested in referees by law. ~ § 421.—[ Authorized to administer oaths, and to exercise powers now vested in referees by law.]—Every referee, ap- pointed pursuant to this act, shall have power to adminster 148 THE CODE OF PROCEDURE. oaths, in any proceeding before him, and shall have generally the powers now vested in a referee by law. CuarTer XV. MISCELLANEOUS PROVISIONS. Section 422. Papers lost or withheld, how supplied. 423, Where undertakings to be filed. 424, Judgment on bond and warrant of attorney, executed before July 1, 1848. 425. Time for publication of notices how computed. 426. Laws of other States and Governments, how proved. i § 422.—[Papers lost or withheld, how supplied.J—If an original pleading or paper be lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original. § 423.—[ Where undertakings to be filed.|—The various under- takings required to be given by this act must be filed with the clerk of the court, unless the court expressly provides for a different disposition thereof, except that the undertakings provided for by the chapter on the claim and delivery of personal property, shall, after the justification of the sureties, be delivered by the sheriff to the parties respectively for whose benefit they are taken. § 424.—[ Judgment on bond and warrant of attorney, executed before July 1, 1848.]—Upon any bond and warrant of attor- ney, executed and delivered before the first day of July, 1848, judgment may be entered’ in the manner provided by sections 382, 383, and 384, upon the plaintiffs filing such bond and warrant of attorney, and a statement signed and verified by himself, in the form prescribed by section 382. § 425.—[ Time for publication of notices, how computed.|— The time for publication of legal notices shall be computed so as to exclude the first day of publication, and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publi- cation. § 426.—[Laws of other States and Governments, how proved.} —Printed copies in volumes of statutes, code, or other written law, enacted by any other State, or territory, or foreign gov- THE CODE OF PROCEDURE. 149 ernment, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evi- dence of the existing law in the courts and judicial tribunals of such State, territory, or government, shall be admitted by the courts and officers of this State, on all occasions, as pre- sumptive evidence of such laws. The unwritten or common law of any other State, or territory, or foreign government, may be proved as facts by parol evidence ; and the books of reports of cases adjudged in their courts may also be admitted as pre- sumptive evidence of such law. TITLE XIII. ACTIONS IN PARTICULAR CASES. Carter I. Actions against foreign corporations. II. Actions in place of scire facias, quo warranto, and of informations in the nature of quo warranto. TI. Actions for the partition of real property. IV. Actions to determine conflicting claims to real property, and for waste and nuisance. V. General provisions relating to actions concerning real property. Cuarter I. ACTIONS AGAINST FOREIGN CORPORATIONS. Section 427. Where and by whom brought. § 427.—[ Where and by whom brought.]—An action against a corporation, created by, or under the laws of any other State, government, or country, may be brought in the Supreme Court, the Superior Court of the city of New York, or the Court of Common Pleas for the city and county of New York, in the following cases: 1. By a resident of this State, for any cause of action. 2. By a plaintiff not a resident of this State, when the cause of action shall have arisen or the subject of the action shall be situated within this State. 150 THE CODE OF PROCEDURE. Cuarrer II. ACTIONS IN PLAGE OF S8CIRE FACIAS, QUO WARRANTO, AND OF INFORMATION IN THE NATURE OF QUO WARRANTO. Sxcrion 428. Seire facias, and quo warranto abolished and this chapter substi- tuted. 429, Action may be brought by Attorney-General to vacate a charter by direction of Legislature. 430. Action to annul a corporation when and how brought by Attorney- General, by leave of Supreme Court. 431, Leave, how obtained. 432. Action upon information or complaint, of course. 433. Action, when and how brought to vacate letters patent. 434. Relator, when to be joined as plaintiff. 435. Complaint and arrest of defendant in action for usurping an office. 436. Judgment in such action. 437. Assumption of office, etc., by relator, when judgment is in his favor- 438. Proceedings against defendant on refusal to deliver books or papers. 439. Damages, how recovered. 440. One action against several persons claiming office or franchise. 441. Penalty for usurping office or franchise, how awarded. 442, Judgment of forfeiture against a corporation. 448. Costs against corporation, or persons claiming to be such, how col- lected. 404, Restraining corporation and appointment of receiver. 445. Copy of judgment-roll against. corporation, where to be filed. 446. Entry of judgment relating to letters patent in records of commis- sioners of land office. 447. Actions for forfeiture of property to the people. § 428.—[Scire factas and quo warranto abolished, and this chapter substituted.|—The writ of sctre facias, the writ of guo warranto, and proceedings by information in the nature of quo warranto, are abolished, and the remedies heretofore attainable in those forms, may be obtained by civil actions, under the provisions of this chapter. But any proceeding heretofore commenced, or judgment rendered, or right acquired, shall not be affected by such abolition. § 429.—[ Action may be brought by Attorney-General to va- cate a charter by direction of Legislature.|—An action may be brought by the Attorney-General, in the name of the peo- ple of this State, whenever the Legislature shall so direct, against a corporation, for the purpose of vacating or annulling the act of incorporation, or an act renewing its corporate ex- THE CODE OF PROCEDURE. 151 istence, on the ground that such act or renewal was procured, upon some fraudulent suggestion or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent. § 430.—[Action to annul a corporation, when and how brought by Attorney-General, by leave of Supreme Court.]—An action may be brought by the Attorney-General, in the name of the people of this State, on leave granted by the Supreme Court, or a judge thereof, for the purpose of vacating the charter or annulling the existence of a corporation, other than municipal, whenever such corporation shall, 1. Offend against any of the provisions of the act or acts creating, altering, or renewing such corporation ; or 2. Violate the provisions of any law, by which such corpo- ration shall have forfeited its charter, by abuse of its powers; or, 3. Whenever it shall have forfeited its privileges or fran- chises, by failure to exercise its powers ; or, 4, Whenever it shall have done or omitted any act, which amounts to a surrender of its corporate rights, privileges, and franchises: or, 5. Whenever it shall exercise a franchise or privilege not conferred upon it by law. And it shall be the duty of the Attorney-General, whenever he shall have reason to believe, that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted, to bring the action in every case of public interest, and also in every other case in which satis- factory security shall be given, to indemnify the people of this State, against the costs and expenses to be incurred thereby. § 431.—[Leave, how obtained.|—Leave to bring the action may be granted, upon the application of the Attorney-Gene- ral; and the court or judge may, at discretion, direct notice of such application to be given to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto. § 482.—[ Action upon information or complaint, of course.J— An action may be brought by the Attorney-General in the name of the people of this State, upon his own information, or upon the complaint of any private party, against the parties offending in the following cases: 152 THE CODE OF PROCEDURE. 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State; or, 2. When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office ; or, 3. When any association or number of persons shall act within this State as a corporation, without being duly incorpo- rated. § 4383.—[ Action, when and how brought, to vacate letters patent.|—An action may be brought by the Attorney-General, in the name of the people of this State, for the purpose of vacating or annulling letters patent, granted by the people of this State, in the following cases : 1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by a person to whom the same were issued or made, or with his consent or know- ledge; or, 2. When he shall have reason to believe that such letters patent were issued through mistake, or in ignorance of a ma- terial fact; or, .8. When he shall have reason to believe that the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions on wnich the letters pa- tent were granted, or have, by any other means, forfeited the interest acquired under the same. § 434.—[Relator, when to be joined as plaintiff?.|—When an action shall be brought by the Attorney-General, by virtue of this chapter, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the people, as plaintiff. § 485.—[ Complaint and arrest of defendant in action for usurping an ofice.|—Whenever such action shall be brought against a person for usurping an office, the Attorney-General, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto, and in such case, upon proof by affidavit, that the defendant has received fees or emoluments belonging to the office, and by THE CODE OF PROCEDURE. 153 means or his usurpation thereof, an order may be granted by a judge of the Supreme Court, for the arrest of such defendant, and holding him to bail, and thereupon he shall be arrested and held to bail, in the manner and with the same effect, and sub- ject to the same rights and liabilities, as in other civil actions, where the defendant is subject to arrest. § 436.—[ Judgment in such action.]—In every such case, judgment shall be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall re- quire. § 437.—[ Assumption of office, etc., by relator when judg-. ment is in his favor.j—If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be re- quired by law, to take upon himself the execution of the office, and it shall be his duty, immediately thereafter, to demand of the defendant in the action, all the books and papers in his custody or within his power, belonging to the office from which he shall have been excluded. § 488.—[Proceedings against defendant on refusal to deliver books or papers.|—If the defendant shall refuse or neglect to deliver over such books or papers, pursuant to the demand, he shall be deemed guilty of a misdemeanor, and the same proceedings shall be had, and with the same effect, to compel delivery of such books and papers as are prescribed in article five, title six, chapter six, of the first part of the Revised Sta- tutes. § 439.—[_Damages, how recovered.]—If judgment be ren- dered upon the right of the person so alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded. § 440.—[One action against several persons claiming office or Sranchise.|—Where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try'their respective rights to such office or franchise. a § 441.—[ Penalty for usurping office or franchise, how awarded.] 154 THE CODE OF PROCEDURE. When a defendant, whether a natural person or a corporation, against whom such action shall have been brought, shall be adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise or privilege, judg- ment shall be rendered, that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars, which fine, when collected, shall be paid into the treasury of the State. § 442._[ Judgment of forfecture against a corporation.]—If it shall be adjudged that a corporation, against which an action shall have been brought, pursuant to this chapter, has by neg- lect, abuse, or surrender, forfeited its corporate rights, privi- leges and franchises, judgment shall be rendered, that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved. § 443.—[ Costs against corporation or persons claiming to be such, how collected.|—If judgment be rendered in such action against a corporation, or against persons claiming to be a cor- poration, the court may cause the costs therein to be collected, by execution against the persons claiming to be a corporation, or by attachment or process against the directors or other offi- cers of such corporation. § 444.—[ Restraining corporation, and appointment of re- ceiver.|}—When such judgment shall be rendered against a corporation, the court shall have the same power to restrain the corporation, to appoint a receiver of its property, and to take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the Revised Statutes; and it shall be the duty of the Attorney-General, immediately after the rendition of such judgment, to institute proceedings for that purpose. § 445.—[Copy of judgment-roll against corporation where to be filed.]—Upon the rendition of such judgment against a cor- poration, or for the vacating or annulliug of letters patent, it shall be the duty of the Attorney-General, to cause a copy of the judgment-roll to be forthwith filed in the office of the Secretary of State. § 446.—[Entry of judgment relating to letters patent in re- cords of commissioners of land office.|}—Such Secretary shall THE CODE OF PROCEDURE. 165 thereupon, if the record relates to letters patent, make an entry in the records of the commissioners of the land office, of the substance and effect of such judgment, and of the time when- the record thereof was docketed, and the real property granted by such letters patent, may thereafter be disposed of by such commissioners, in the same manner as if such letters patent had never been issued. § 447.—[ Actions for forfeiture of property to the people.|— Whenever by the provisions of law, any property, real or per- sonal, shall be forfeited to the people of this State, or to any officer for their use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer, in the Supreme Court. Cuarter III. ACTION FOR THE PARTITION OF REAL PROPERTY. Secrion 448. Provisions of Revised Statutes, applicable to actions for partition. § 448.—[ Provisions of Revised Statutes applicable to actions Sor partition.|—The provisions of the Revised Statutes relating to the partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form. Cuaprer IV. ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND FOR WASTE AND NUISANCE. Section 449. Action to determine claims to real property, how prosecuted. 450. Action of waste, abolished. Waste, how remediable. 451. Provisions of Revised Statutes applicable to actions for waste under this act. 452. When judgment of forfeiture and eviction to be given. 453. Writ of nuisance abolished. 454. Remedy for injuries heretofore remediable by writ of nuisance. § 449.—[ Actions to determine claims to real property, how prosecuted.|—Proceedings to compel the determination of claims to real property, pursuant to the provisions of the Re- 156 THE CODE OF PROCEDURE. vised Statutes, may be prosecuted by action under this act, without regard to the forms of the proceedings as they are prescribed by those statutes. § 450.—Action of waste abolished. Waste, how remediable.] —The action of waste is abolished, but any proceeding hereto- fore commenced, or judgment rendered, or right acquired, shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises. § 451.—[ Provisions of Revised Statutes applicable to action for waste under this act.|—The provisions of the Revised Sta- tutes relating to the action of waste shall apply to an action for waste, brought under this act, without regard to the form of the action, so far as the same can be so applied. § 452.—[ When judgment of forfeiture and eviction to be given.|—Judgment of forfeiture and eviction shall only be given, in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in rever- sion shall be adjudged inthe action to be equal to the value of the tenant’s estate, or unexpired term, or to have been done in malice. § 453.—[ Writ of nuisance abolished.]--The writ of nuisance is abolished; but any proceeding heretofore commenced, or any judgment rendered, or right acquired, shall not be affecte d thereby. * § 454.—[ Remedy for injuries heretofore remediable by writ of nuisance.|—Injuries heretofore remediable by writ of nui- sance, are subjects of action, as other injuries, and in such action there may be judgment for damages, or for the removal of the nuisance, or both. Caapter V. GENZRAL PROVISIONS RELATING TO ACTIONS CONCERNING REAL PROPERTY. Secrion 455. Provisions of Revised Statutes applicable thereto. § %55.—[Provisions of Revised Statutes applicable thereto. ] —The general provisions of the Revised Statutes relating to THE CODE OF PROCEDURE. 157 actions concerning real property shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form. TITLE XIV. PROVISIONS RELATING TO EXISTING SUITS. Section 456. Appeal from order at a special term, on a summary application after judgment. 457. Writ of error in all cases abolished. Appeal substituted. 458. Execution when issuable on a judgment docketed before July 1, 1848. 459. Future proceedings, Code to control. 460. Appeals from final decrees by a single judge in Supreme Court, in suits in equity pending on July 1, 1847, when to be taken. 461. Issues of fact in County Court or Common Pleas before July 1, 1848, how tried. § 456.—[Appeal from order at a special term, on summary application after judgment.|—The appeal, mentioned in sec- tion nine of the act to facilitate the determination of existing suits in the courts of this State, may also be taken, from an order made at a special term, on a summary application in an action after judgment, when such order involves the merits of the application, or some part thereof. § 457.—[ Wret of error in all case abolished. Appeal substi- tuted.J—No writ of error shall be hereafter issued, in any case whatever. Wherever a right now exists to have a review of a judgment rendered, or order or decree made before the first day of July, 1848, such review can only be had upon an ap- peal taken in the manner provided by this act, and all ap- peals heretofore taken from such judgments, orders or decrees under the provisions of the Code of Procedure, which are still pending in an appellate court, and not dismissed, shall be valid and effectual. But this section shall not extend the right of review, to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued. § 458.—[Evecution when issuable on a judgment docketed before July 1, 1848.]—An execution may be issued without leave of the court upon a judgment docketed before the first day of July, 1848, or now or hereafter to be rendered in an 158 THE CODE OF PROCEDURE. action pending on that day, at any time within five years after rendering of the judgment. § 459.—[Puture proceedings, Code to control.] The pro- visions of this act apply to future proceedings in actions or suits heretofore commenced and now pending as follows: 1. If there have been no pleading therein, to the pleadings and all subsequent proceedings ; 2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent pro- ceedings ; 3. After a judgment or order, to the proceedings to enforce, vacate, modify or reverse it, including the costs of an appeal. Whenever the judges of the Supreme Court in any district find that the court, at any term or circuit, has not been, or will not be able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if neces- sary, appoint extraordinary terms aud circuits for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold courts accordingly. § 460.—LAppeals from final decrees, by a single judge in equity suits pending on July 1, 1847, when and how taken.]—An ap- peal may be taken from any final decree entered upon tle di- rection of a single judge, in any suit in equity pending in the Supreme Court, on the first day of July, one thousand eight hundred and forty-seven, at any time before the first day of - November, one thousand eight hundred and fifty-two. But this provision shall not apply to cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith has been, or shall have been made within thirty days after notice of the entry of such decree. Such appeal shall be taken in the manner provided in sections three hun- dred and twenty-seven, and three hundred and forty-eight. In all cases of appeal to the, Court of Appeals, in actions which were originally commenced in the late Court of Chan- cery of this State, the Court of Appeals shall review the cause upon the facts and the law, without any statement or spécifica- tion of facts found, or any exception taken at the trial of any or either of them. And it shall be, and is hereby declared to be the duty of the Court of Appeals, in any and all such cases, THE CODE OF PROCEDURE. 159 to review the whole matter upon the evidence as well as the law. § 461.—[Lssue of fact in county court or Common Pleas, before July 1, 1848, how tried.|—An issue of fact joined in a county court, or Court of Common Pleas, before the first day of July, one thousand eight hundred and forty-eight, or then pending in that court on appeal, shall be tried by a jury, unless the parties otherwise agree. TITLE XV. GENERAL PROVISIONS. Section 462. Definition of ‘ real property.” 463. Definition of “ personal property.” 564. Definition of “ property.” 465. Definition of “ district.” 466. Definition of ‘ clerk.” 467. Rule of strict construction of statutes inapplicable to this act. 468. Statutory provisions inconsistent with this act repealed. 469. Rules and practice inconsistent with this act abrogated. 470. Judges of Snpreme Court to make general rules. 471. This act not to affect certain proceedings and statutory provisions. 472. Certain parts of revised and other statutes not repealed. 473. This act, when to take effect. § 462.—[Definition of “real property.”|—The words “ real property,” as used in this act are co-extensive with lands, tene- ments and hereditaments. § 463.—[Definition of “ Personal property.”|—The words ‘* personal property,” as used in this act, include money, goods, chattels, things in action, and evidences of debt. § 464.—[Definition of “property,” |—The word “ property,” as used in this act, includes property real and personal. § 465.—[ Definition of “district.”|—The word “ district,” as used in this act, signifies judicial district, except when other- wise specified. § 466.—[Detinition of “ clerk.”|—The word “ clerk,” as used in this act, signifies the clerk of the court where the action is pending, and in the Supreme Court, the clerk of the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified. § 467.—[Lule of strict construction of statutes, inapplicable 160 THE CODE OF PROCEDURE. to thes act.|—The rule of common law, that statutes in deroga- tion of that law are to be strictly construed, has no application to this act. § 468.—[Statutory provisions inconsistent with this act re- pealed.|—All statutory provisions inconsistent with this act, are repealed ; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed. And all rights of action given or secured by existing laws, may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the enforcement or protection of a right, or the redress or preven- tion of a wrong, cannot be had under this act, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice. § 469.—[ Rules .and practice inconsistent with this act abro- gated.|—The present rules and practice of the courts, in civil actions, inconsistent with this act, are abrogated; but where consistent with this act, they shall continue in force subject to the power of the respective courts to relax, modify, or alter the same. § 470.—[ Judges of what court to make rules, and when.]—The judges of the Supreme Court, of the Superior Court of the city of New York, and of the Court of Common Pleas for the city and county of New York, shall meet in general session at the capitol in the city of Albany, on the first Wednesday in Au- gust one thousand eight hundred and fifty-two, and every two years thereafter, and at such sessions shall revise their general rules and make such amendments thereto, and such further rules not inconsistent with this Code, as may be necessary to carry it into full effect. The rules so made shall govern the Supreme Court, the Superior Court of the city of New York, the Court of Common Pleas for the city and county of New York, and the county courts so far as the same may be appli- cable. [Laws of 75th Session, Chap. 892; April 16, 1852.] § 471.—[ This act not to affect certain proceedings and statu- tory provisions.|—Until the legislature shall otherwise pro- vide, the second part of this act shall not affect proceedings upon mandamus, or prohibition; nor appeals from surrogates’ courts; nor any special statutory remedy not heretofore ob- tained by action; nor any existing statutory provisions relating to actions, not inconsistent with this act, and in substance ap- THE CODE OF PROCEDURE. 161 plicable to the actions hereby provided; nor any proceedings provided for by chapter five of the second part of the Revised Statutes, or by the sixth and eighth titles of chapter five of the third part of those statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when in consequence of any such proceedings, a civil action shall be brought, such action shall be conducted in conformity to this act; and except also, that where any particular pro- vision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed. (Laws of 75th Session, Chap. 392; April 16, 1852.] § 472.—[ Certain parts of revised and other statutes not re- pealed.|—N othing in this act contained shall be taken to repeal section twenty-three of article two of title five of chapter six, part third of the Revised Statutes, or to repeal an act to extend the exemption of household furniture and working tools from distress for rent and sale under execution, passed April 11, 1842. § 4£73.—[ This act, when to take effect.|—This.act shall take effect on the first day of July, 1848; except that sections twenty-two, twenty-three, twenty-four and twenty-five shall take effect immediately. “Aw Act to extend the provisions of the Code of Procedure to Sorfeited recognizances. Passed April 9, 1855. The People of the State of New York, represented in Senate and Assembly, do enact as follows : § 1. All the provisions of the Code of Procedure are hereby applied to all recognizances forfeited in any court of general sessions of the peace, or of oyer and terminer, in any of the counties of this State. § 2. All laws or parts of laws, or provisions of statutes, in anywise conflicting with such application of the provisions of the Code of Procedure to the said forfeited recognizances, are hereby repealed. § 3. In no case whatsoever, upon proceedings upon forfeited 11 162 ADDITIONAL LAWS recognizances, shall any fees or costs whatsoever be chargeable to the Mayor, Commonalty, Aldermen, or Supervisors of the city and county of New York, by the officer prosecuting the same. § 4. This act shall take effect immediately. [Laws of 78th Session, Chap. 202.] The portion of the Revised Statutes, which, by § 471, it is declared that the second part,of the Code shall not affect, are the following: REVISED STATUTES, PART IL CuaprTer V. OF TITLE TO PROPERTY, REAL AND PERSONAL, TRANSMITTED OR ACQUIRED BY SPECIAL PROVISIONS OF LAW. TitLe I. Of the assignment of the estates of non-resident, absconding, insolvent, or imprisoned debtors. II. Of the custody and disposition of the estates of idiots, lunatics, persons of unsound mind, and drunkards. TITLE I. OF THE ASSIGNMENT OF THE ESTATES OF NON-RESIDENT, ABSCOND- ING, INSOLVENT, OR IMPRISONED DEBTORS. Art. 1. Of attachments against absconding, concealed, and non-resident debtors. Arr. 2. Of attachments against debtors confined for crimes. : Arr. 8, Of voluntary assignments, made pursuant to the application of an in- solvent and his creditors, Arr, 4, Of proceedings by creditors, to compel assignments by debtors imprisoned on execution in civil causes. Arr, 5. Of voluntary assignments by an insolvent, for the purpose of exonerat- ing his person from imprisonment. Art. 6. Of voluntary assignments by a debtor imprisoned in execution in civil causes. Arr. 17, General provisions applicable to proceedings under the several preceding articles, or some of them. Art. 8. Of the powers, duties and obligations of trustees and assignees under this title. [Arr 9. Provisions respecting assignees under former insolvent laws. ] [Arr. 10. Provisions of the ‘tact to abolish imprisonment for debt and to punish fraudulent debtors,” passed April 26, 1831, other than those which relate to justices’ courts. ] RELATIVE TO PRACTICE. 163 REVISED STATUTES, PART III. Cuarrer V. TITLE VI. OF TRESPASS ON LANDS. TITLE VIII. PROCEEDINGS TO DISCOVER THE DEATH OF PERSONS, UPON WHOSE LIVES ANY PARTICULAR ESTATE MAY DEPEND. Cuapter VIII. OF PROCEEDINGS IN SPECIAL CASES. Tirtz 1. Of the bringing and maintaining of suits by poor persons. Titte 938. Of suits by and against executors and administrators, and against heirs, devisees and legatees. Titte 4. Of proceedings’ by and against corporations, and public bodies having certain corporate powers, and by and against officers representing them. Tirte 5. Of suits against sheriffs, surrogates and other officers, on their official bonds. Titte 6. Of actions for penalties and forfeitures; and provisions for the collec- tion and remission of forfeited recognizances, and fines imposed by courts. Titte 7. Of proceedings for the admeasurement of dower. Titte 8. Of proceedings for the collection of demands against ships and vessels. Titte 9. Of proceedings for the recovery of rent and of demised premises. TitLe 10. Summary proceedings to recover the possession of land in certain cases. Titte 11. Of distraining cattle and other chattels doing damage, and of dis- training in other cases, TirLe 13. Of proceedings as for contempts, to enforce civil remedies, and to pro- tect the rights of parties in civil actions. Tirte 14. Of arbitrations. Titte 15. Of the foreclosure of mortgages by advertisement. Tire 16. Of proceedings for the draining of swamps, marshes, and other low lands. Tirte 17. General miscellaneous provisions concerning suits and proceedings in civil cases. [In the jirst and second editions of the Revised Statutes, Chapter VIII. of Part III. contains but seventeen titles ; but in the third edition of the Revised Statutes, prepared by the revisers themselves, and published in 1846, they bave added the following: “(Tite XVIII. Provisions for the better security of mechanics and others erecting buildings and furnishing materials therefor in the several cities of this State, and in certain villages.]” Now, although this third edition of the Revised Statutes was in existence previous to the original enactment of the ‘‘ Code 164 SUITS PENDING AT of Procedure ” (April 12, 1848), yet it may be doubted whether § 471 (originally § 890), was intended to include in its mention of ‘Chapter VIII.” more than the original seventeen titles. In what is known as the fourth edition of the Revised Statutes (by Denio and Tracy), published in 1852, the Title XVIII. in the reviser's third edition is omitted, and the following substituted in its stead: “ [Tire XVIII. Proceedings to change the names of persons.]’ This certainly cannot be meant as a title of Chapter XVIII., recognized by § 471 of the Code of Procedure.] Cuapter IX. Titte 1. Of the writs of habeas corpus and certiorari, in certain cases. AN ACT TO AMEND AN ACT ENTITLED ‘AN ACT TO FACILITATE THE DETER- MINATION OF EXISTING SUITS IN THE COURTS OF THIS STATE.” Passed April 11, 1849. The People of the State of New York, represented in Senate and Assembly, do enact as follows : The act entitled “An Act to facilitate the determination of existing suits in the courts of this State,” passed April 12, 1848, is hereby amended so as to read as follows : § 1. The act to simplify and abridge the practice, pleadings and proceedings of the courts of this State, passed April 12, 1848, and amended at the present session of the Legislature, is herein designated as the “ Code of Procedure.” TITLE I. PROVISIONS RELATING TO THE COURTS IN GENERAL. Cuarrer I. Sections of the Code of Procedure referred to and applied to existing suits. II. Other provisions relating to existing suits. Cuapter J. SECTIONS OF THE CODE OF PROCEDURE REFERRED TO AND APPLIED TO EXISTING SUITS. § 2. The provisions of the Code of Procedure, contained in the following sections thereof, are hereby applied, so far as the same are applicable, to future proceedings in civil suits, whether at law or in equity, pending on the first day of July, 1848, as follows: THE ENACTMENT OF THE CODE. 165 1. Sections seventy-two, one hundred and twenty-one, one hundred and sixty-nine to one hundred and seventy-six, both inclusive, three hundred and fifteen and three hundred and eighty-eight, to proceedings in actions in the Supreme Court, in the county courts, in the Superior Court of the city of New York, in the Court of Common Pleas for the city of New York, in the Mayors’ courts of the cities of Albany, Hudson, Troy and Rochester, and in the Recorders’ courts in the cities of Buffalo and Utica. 2. Sections two hundred and ninety-two to three hundred and two, both inclusive, to executions on a judgment or decree in any of those courts, hereafter issued, against any person to the sheriff of the county where he resides, or if he reside out of the State, to the sheriff of the county where the record of judgment is filed or the decree enrolled ; the word “judgment” in these sections being taken to include a decree. 3. Sections three hundred and twenty-three to three hun- dred and thirty-one, both inclusive, three hundred and thirty- three to three hundred and forty-seven, both inclusive, and three hundred and fifty-one to three hundred and seventy-one, both inclusive, to the review of judgments, decrees, and final orders, from which no writ of error or appeal shall have been already taken, the word “judgment” being taken to include a decree, and “judgment-roll” to include the record of judg- ment and enrollment of decree. 4. Sections three hundred and ninety to three hundred and ninety-nine, both inclusive, four hundred and six to four hun- dred and fifteen, both inclusive, four hundred and seventeen and four hundred and eighteen, to proceedings in actions in all the courts of civil jurisdiction in the State. 5. Section four hundred and two, to non-enumerated mo- tions in the courts mentioned in the first subdivision of this section. Cuapter II. OTHER PROVISIONS RELATING TO EXISTING SUITS. § 3.—[Suits referred by consent. Reference to take testi- mony.j—Any suit in equity now pending in the Supreme Court, or which may be there pending before the first day of July next, or any issue therein, whether of fact or of law, or both, may be referred upon the written consent of the 166 SUITS PENDING AT parties concerned ; and upon the like consent, a reference may be ordered to take testimony, or to report facts, or to execute any order or decree. §4.—[ Reference when directed by court.|}—Where the parties do not consent, as in the last section mentioned, the court may, upon the application of either, or of its own motion, direct a reference in such suit, in the following cases : 1. Where the determination of an issue of fact shall require the examination of a long account on either side; in which case the reference may be to hear and decide the whole issue, or to report upon any specific question of fact involved there- in, or, 2. Where the taking of an account shall be necessary for the information of the court, before decree, or for carrying an order or decree into effect ; or, 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the suit. § 5.—[Report of Referee to stand as decision.]—The report of the referee or referees upon the whole cause, or upon the whole of any issue therein, shall stand as the decision of the court, in the same manner as if the cause or issue had been determined by the court at a special term, and may be re- viewed in like manner. § 6.—[Leferees, how appointed.]|—The referee or referees shall be appointed in the manner provided in section two hundred and seventy-three, of the Code of Procedure, and shall have the powers specified in section four hundred and twenty- one, and the compensation specified in section three hundred and thirteen, of that Code. § 7.—[Rehearing. Security to be given. Notice of rehear- ing.|—No rehearing shall take place at a general term of the Supreme Court, of an order or decree made at a special term, unless the same involve the merits of the suit or proceeding or some part thereof. And further proceedings upon the order or decree shall not be stayed, unless security be given in the same manner, and to the same extent, as would be required if an appeal were taken to the Court of Appeals from the same order or decree, made, or confirmed at a general term. Nor shall such rehearing be had, unless notice of the same be given within ten days after notice of the order or decree reheard, with the security thus required. § 8.—[ What notice necessary.|—No petition for a rehearing THE ENACTMENT OF THE CODE. 167 need be made. Instead thereof, it shall only be necessary to serve a notice in writing on the adverse party and on the clerk with whom the order or decree to be reheard is entered, stating the application for a rehearing of such order or decree, or some specified part thereof. § 9.—[Appeal from an order.]—Any party aggrieved by an order made at a special term of the Supreme Court, in an action at law, or in a special proceeding, when it involves the merits of the action or special proceeding, or some part thereof, may appeal therefrom to the court at a general term; where, upon such appeal, the order may be reversed, affirmed or modified, according to law. § 10.—[ Appeal, how made.|—The appeal in the last section mentioned, may be made, by the service of a notice in writing, on the adverse party, and on the clerk with whom the order is entered, stating the appeal from the same, or some specified part thereof. But no such appeal shall be taken, unless a judge of the Supreme Court certify, that, in his opinion, it is proper that the question arising on the appeal should be decided at the general term. TITLE IL. PROVISIONS RELATING TO COURTS IN THE FIRST JUDICIAL DISTRICT. §11—[General term of Supreme Court, how continued.J— The general term of the Supreme Court, appointed to be held in the first judicial district, on the first Monday of April, eighteen hundred and forty-eight, shall be continued from the first Monday of each month to the third Saturday thereafter, until and including the third Saturday after the first Monday of July, eighteen hundred and forty-eight, or until all the cases on the calendar be sooner heard, or a sufficient opportunity be given for the hearing thereof. § 12.—[Special terms and Circuit Courts, how continued.] —The special terms and circuit courts appointed to be held in the first judicial district at any time hereafter, before the first day of July, eighteen hundred and forty-eight, shall be respec- tively continued from the first Monday of each month to the third Saturday thereafter, until and including the third Satur- day after the first Monday of July, eighteen hundred and forty- eight, or until all the cases ready thereat for hearing or trial be sooner heard, or otherwise disposed of. 168 SUITS PENDING, ETC. § 18.—[ General and special terms in first district.|—In ad- dition to the courts already required by law, there shall be held on the first Monday of September, eighteen hundred and forty- eight, a general and special term of the Supreme Court, and a circuit court in the first judicial district by such judges as the governor shall, by appointment in writing, designate ; which terms and circuit court shall be exclusively devoted to the determination of suits and proceedings in the Supreme Court commenced before the first day of July, eighteen hundred and forty-eight. § 14—[Zerms, how long continued.|—The terms and circuit court, mentioned in the last section, shall each be continued in each month, except October and January, from the first Mon- day to the third Saturday thereafter, inclusive, until the fourth Saturday in February, eighteen hundred and forty-nine, or until the suits and proceedings mentioned in the last section, ready for hearing at such courts, shall be sooner determined. § 15.—[ln case of disability, governor may assign other judges.|—If the judges assigned to hold such general or special terms or circuit courts, or any of them, be unable, by reason of sickness, or judicial engagements elsewhere, to sit until the close thereof, the governor shall assign other judges, not actually engaged in holding court, to take their places respec- tively. § 16.—[ When cause passed, how placed on the calendar.|— When a cause, placed upon the calendar of a court of record in the city of New York, shall be regularly called and passed, without a postponement by the court for good cause shown, it shall thenceforth take its place on the same or any future calen- dar, as if the date of the issue were the time when it was thus passed. § 17.—[Party to state, date of tssue.|—In the case men- tioned in the last section it shall be the duty of the party plac- ing a cause upon the calendar, for a subsequent term, to state the date of the issue, as above prescribed ; and if he omit to do so, by reason whereof the issue retains its priority on the calendar, the court on the application of the adverse party, or of its own motion, may strike the cause from the calendar. § 18.—[Act takes effect immediately.|—This act shall take effect immediately, except that section two shall take effect at the same time with the Code of Procedure. RULES OF COURT. RULES OF THE COURT OF APPEAIS, AS AMENDED JANUARY, 1858—JUNE, 1860. Rote I.—When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal, and the judgment roll. When the appeal is from such an order as is mentioned in the eleventh section of the Code of Procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order. Roz IL.—The appellant shall cause the proper return to be made and filed with the clerk of this court, within twenty days after the appeal shall be perfected. If he fail to do so, the respondent may, by notice in writing, require such return to be filed within ten days after service of the notice; and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal; and on an affida- vit proving when the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk, dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal. Rots III.—if the return made by the clerk of the court below shall be defective, either party may, on an affidavit spe- 170 RULES OF THE COURT OF APPEALS. cifying the defect, apply to one of the judges of this court for an order that the clerk make a further return without delay. Rutz IV.—The attorneys and guardians ad litem of the respective parties in the court below, shall be deemed the attorneys and guardians of the same parties respectively in this court, until others shall be retained or appointed, and notice thereof shall be served to the adverse party. Rots V.—In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return of the clerk, and the reasons of the court below for its judgment, or an affidavit that the same cannot be procured. If the case is voluminous, an index to the pleadings, exhibits, depositions, and other principal matters shall be added. Every opinion in the cause, at special term as well as at general term, relating to the questions involved in the appeal, is included by the foregoing provision. Rote VI.—All cases and points, and all other papers fur- nished to the court in calendar causes, shall be printed on white writing-paper, with a margin on the outer edge of the leaf not less than one and a half inch wide. The printed page, exclu- sive of any marginal note or reference, shall be seven inches long, and three and a half inches wide. The folio, numbering from the commencement to the end of the case, shall be printed on the outer margin of the page. Small pica, solid, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers men- tioned in this rule shall be allowed as a disbursement in a cause, unless the requirements of the preceding sentence shall be shown by affidavit to have been complied with, in all papers printed after August 1, 1857. Route VII.—Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the case on the attorney of the adverse party. If he fail to do so, the respond- ent may, by notice in writing, require the service of such copies within ten days after the service of the notice; and if the copies be not served in pursuance of such notice, the appel- lant shall be deemed to have waived the appeal; and on an affidavit proving the default, and the service of such notice, the RULES OF THE COURT OF APPEALS. 171 respondent may enter an order with the clerk, dismissing the appeal for want of prosecution, with costs; and the court below may thereupon proceed as though there had been no appeal. Rote VIII.—Either party may bring on the argument on a notice of eight days; which notice, except in criminal cases, shall be for the first day of the term. A copy of the notice, specifying the judicial district in which the cause originated, shall be furnished to the clerk eight days before the first day of the term. The clerk shall make a calendar of the causes thus noticed, arranging them in the order in which the returns were filed, specifying the judicial district in which the causes originated respectively. Copies of the calendar for the use of the judges, and six other copies to be delivered to the clerk, shall be printed, in like manner as cases and points are directed to be printed. Rorz [X.—At the commencement of the argument the ap- pellant shall furnish a printed copy of the case to each of the judges, and shall deliver six other copies to the clerk. Each party shall at the same time furnish to each of the judges a printed copy of the points on which he intends to rely, with a reference to the authority which he intends to cite; and shall deliver six other copies to the clerk, and three copies to the counsel of the adverse party. The cases, points, and calendars delivered to the clerk shall be disposed of as follows; one copy of each shall be kept by the clerk with the records of the court, one copy shall be de- posited in the State library, one copy shall be deposited in each branch of the library of the court of appeals, one copy shall be deposited in the library of the New York Law Institute, and one copy shall be delivered to the reporter. Rure X.—In all cases each party shall briefly state, upon his printed points, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. And the court will not hear an extended dis- cussion upon any mere question of fact. Rore XI.—The party who has noticed and placed the cause on the calendar for argument, may take judgment of aflirmance 172 RULES OF THE COURT OF APPEALS. or reversal, as the case may be, if the other party shall neglect to appear and argue the cause, or shall neglect to furnish and deliver cases or points as required by the Ninth and Tenth Rules. Route XIE.—In the argument of calendar causes and motions, only one counsel will be heard on each side, unless the court shall otherwise direct. Rory XIII.—Criminal cases shall have a preference, and may be moved, on behalf of the people, out of their order on the calendar. Rutz XIV.—Causes which have not been exchanged may be submitted at any time in term on printed arguments. Ex- changed causes cannot be submitted until reached upon the calendar. Rote XV.—Motions will be heard on the morning of the first day, and on the morning of each following Tuesday and Friday during the term, before taking up a calendar. Where notice has been given of a motion, if no one shall appear to oppose, it will be granted as of course. If a motion be not made on the day for which it has been noticed, the opposing party will be entitled, on applying to the court at the close of the motions for that day, to a rule denying the motion, with costs. Rots XVI.—The remittitur shall contain a copy of the judg- ment of this court, and the return made by the clerk of the court below; and shall be sealed with the seal, and signed by the clerk, of this court. Route XVII.—When a decree or order shall be affirmed or reversed by the default of either party, the remittitur shall not be sent to the court below, unless this court shall otherwise direct, until ten days after notice of the affirmance or reversal shall have been served on the attorney of the party in default. Service of the notice shall be proved to the clerk by affidavit, or by the written admission of the attorney on whom it was served. Rote XVII.—The time prescribed by these rules for doing any act may be enlarged by the court or by either of the judges RULES OF THE COURT OF APPEALS. 173 thereof; and either of the judges may make orders to stay proceed- ings, which when served with papers and notice of motion, shall stay the proceedings according to the terms of the order. Any order may be revoked or modified by the judge who made it, or, in case of his absence or inability to act, by either of the other judges. Rore XIX.—These rules shall take effect on the first day of July next; from which time all former rules are abrogated, except so far as it may be necessary to follow them upon appeals and writs of error which shall be then pending. Rourze XX.—Ten causes only will be called on any day, but after such call causes ready on both sides will be heard in their order. Any cause which is regularly called and passed without postponement by the court for good cause shown, at the time of the call, will be placed on all subsequent calendars as if the return had been filed on the day when it was so passed. Causes upon the calendar may be exchanged one for another of course, on filing with the clerk in court a note of the proposed exchange with the numbers of the causes, signed by the respec- tive attorneys or counsel. Upon all subsequent calendars, each of said causes will take the place due to the date of the filing of the return in the other. Any cause, except the first ten upon the calendar, may be struck therefrom before it is reached, of course and without prejudice, by the clerk in court, on consent of the parties who placed the same upon the calendar, at any time during the first week of the term. Rore XX1.—The clerk must keep a memorandum of such exchanged and passed causes, and place them, upon all subse- quent calendars, in accordance with the foregoing provisions. Rules VI., X., XX., and XIL, with a notice that “14 copies of cases and points are required,” must be printed on the first leaf of the calendar. Rote XXIJI.—In the argument of a cause, not more than two hours shall be occupied by each counsel, except by the express permission of the court. Rutz XXII —According to existing laws, causes which are preferred take their preference in the following order: 1. Criminal actions. 174 RULES OF THE COURT OF APPEALS. 2. Cases of probate, in which the appeal prevents the issuing of letters testamentary or of general administration. 3. Appeals in which the sole plaintiffs or defendants are executors or administrators. 4. All other preferred cases. Any party claiming a preference must so state in his notice of argument to the opposite party, and to the clerk, and he must also state the ground of such preference, so as to show to which of the above classes the case belongs. In making up the calendar, the clerk will place the preferred canses at the head in the order above prescribed. A preferred cause being once passed without reservation, will take its place in subsequent calendars without preference. CaLenDAR Practice. Established January, 1854; as amended March, 1859. 1. No reservation will be made of any of the first thirty causes unless on account of sickness, or an engagement else- where in the actual trial, or argument of another cause, com- menced before the term of this court; or other inevitable necessity, to be shown by affidavit. Other causes may be reserved, upon reasonable cause being shown; but if such reservation is not made before the day on which the cause is liable to be called, stronger grounds will be required than when the application is made at an earlier period. 2, Causes reserved, may be reserved either generally for the fourth week of term, or for an earlier day certain, at the elec- tion of counsel. 3. Those causes reserved for a day certain, will not be taken up until the ten causes in order for that day have been called. 4, In the fourth week, reserved causes will be first in order, and will be called before the calendar is taken up. 5. Reserved causes, when in order to be called, have priority among each other according to their calendar number. 6. Default may be taken in them, and they will, if passed, go down upon future calendars as if passed in the regular call. 4“. The call in the fourth week will include all reserved causes which have not been previously called; but no reserved cause, RULES OF THE COURT OF APPEALS. 175 whether reserved generally or for a particular day, will be called before its number is reached on the regular call of the calendar. Miscellaneous Practice at the Terms of the Court, not included in the Rules. (7 How. 240.) All the terms are held at the capitol, in the city of Albany. Four argument terms in a year. The court opens at ten o'clock, A. M., on the first Tuesday of January, fourth Tuesday of March, third Tuesday of June, and the last Tuesday of September. A term for consultation and decisions, to finish up the year’s business, is held in the latter part of December in each year. The chief judge has control of the calendar. All propositions in reference to the arrangement or disposition of causes should be addressed to him. (The other members of the court are usually consulted.) Causes struck off under the rule are not included in the ten called each day under the rule. The clerk publishes in the newspapers at Albany, all the proceedings of the court each day, during the term. A cause, when ready on both sides, may be submitted upon printed arguments and points, on any day during the term. When causes are decided at the close of each term, the opinions are delivered to the reporter—not to the clerk. In cases of motions, the opinions are usually left with the clerk among the motion papers. Tuesdays and Fridays of each week are motion days. The court usually adjourns for the term on Friday of the fourth week. Causes argued or submitted are usually decided at the close of the next succeeding term, n RULES OF PRACTICE. IN GENERAL SESSION OF THE JUSTICES OF THE SUPREME COURT, OF THE SUPERIOR COURT OF THE CITY OF NEW YORK, AND OF THE COURT OF COMMON PLEAS FOR THE CITY AND COUNTY OF NEW YORK, At the Capitol in the City of Albany, August 4, 1858. [Code of 1852, § 470.] N.B.—The numbers in (parenthesis) are the numbers of the rules of 1854. The numbers in [brackets] are those of 1849, unless otherwise stated. Orperen, that the following Rules shall commence and take effect on the first day of October next: Ros I. (amended.)—#vramination of Attorneys. Applicants for admission to practice as attorneys and coun- sellors of this court, who are entitled to examination, shall be examined in open court; the examination shall be had at gene- ral term, and shall commence on the first Wednesday of the second and fourth general terms which shall be held in the several judicial districts in each year, and at no other time or place, and no private examination shall be permitted. Rote II. (am’d.)\—Admission of Attorneys. To entitle an applicant to an examination, he must prove to the court: RULES OF PRACTICE. 177 1. That he is a citizen of the United States, and that he is twenty-one years of age, and a resident of the district in which he applies, which proof may be made by his own affidavit of the fact. 2. The evidence of good moral character shall be the certifi- cate of a reputable counsellor of this court, or of some other reputable person known to the court; but such certificate shall not be deemed conclusive evidence, and the court must be satisfied on the point, after a full examination and inquiry. 3. Such applicant must sustain a satisfactory examination upon the law of real and personal property, contracts, partner- ship, negotiable paper, principal and agent, principal and surety, insurance, executors and administrators, bailments, cor- porations, personal rights, domestic relations, wills, equity juris- prudence, pleadings, practice and evidence. 4, Applicants for admission from other States shall conform to the foregoing rules, unless they produce a certiticate from a judge of the highest court of original jurisdiction in the State from which they come, to the effect that for three years, imme- diately preceding, they have practised as attorneys or coun- sellors in such court, and that they are in good standing as such attorneys or counsellors. 5. Applicants admitted shall sign a roll, and subscribe and take the constitutional oath of office. Rore II. (am’d.)\— Where papers shall be filed. Special motion papers to be filed within ten days. Papers shall be filed in the county specified in the complaint as the place of trial, or in the county to which the place of trial has been changed. And in case the place of trial is changed, for the reason that the proper county is not specified, the papers on file at the time of the order making such change, shall be transferred to the county specified in such order, and all other papers in the cause shall be filed in the county so specified. When the affidavits and papers upon a non-enumerated motion are required by law to be filed, and the order to be entered in a county other than that in which the motion is made, the clerk shall deliver to the party prevailing in the motion, unless the court shall otherwise direct, a certified copy of the rongh minutes, showing what papers were used or read, 12 178 RULES OF PRACTICE. together with the affidavits and papers used or read upon such motion, with a note of the decision thereon, or the order directed to be entered, properly certified. And it shall be the duty of the party to whom such papers are delivered, to cause the same to be filed, and the proper order entered in the proper county within ten days thereafter; or in default thereof, he shall lose the benefit of the said order. Rote IV. (new.)— Undertakings and affidawits to be filed. It shall be the duty of the plaintiff’s attorney forthwith to file with the clerk of the proper county, all undertakings given upon procuring an order of arrest, an injunction order, or an attachment, with the approval of the justice or judge taking the same indorsed thereon; and in case such undertakings shall not be filed within five days after the order for arrest or injunction, or the attachment, has been granted, the defendant shall be at liberty to move the court to vacate the proceed- ings for irregularity, with costs, as if no undertaking had been given. It shall also be the duty of the attorney to file within the same time, and under the like penalty, the affidavits upon which an injunction or attachment has been granted, and also the affidavit upon which an order for the service of a summons by publication, or an order for a substituted service of a sum- mons has been granted, together with the order for such service. Rote V. (83.) [89.]—Bail to justify in county where defend- ant was arrested or the baal reside. Whenever bail are required to justify, they shall justify within the county where the defendant shall have been arrested, or where the bail reside. Rote VI. (71 am’d.)\—Personal sureties to justify in all cases —All seewrities to be proved or acknowledged. Whenever a justice, or other officer, approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal sureties to justify, or, if the ‘security offered is by way of mortgage on real estate, to require proof of the value of such estate. And all bonds and under- takings, and other securities in writing, shall be duly proved, or acknowledged in like manner as deeds of real estate, before the same shall be received or filed. RULES OF PRACTICE. 179 Rute VII. (88.) [New in 1852].—Afidavits on arrest to be Jiled. The sheriff shall file with the clerk the affidavits on which an arrest is made, within ten days after the arrest. Rote VIII. (6).—How return by sheriff is compelled. At any time after the day when it is the duty of the sheriff, or other officer, to return, deliver, or file any process, under- taking, order, or other paper, by the provisions of the Code of Procedure, any party entitled to have such act done, may serve on the officer a notice to return, deliver or file such process, undertaking, order, or other paper, as the case may be, within ten days, or show cause, at a special term, to be designated in said notice, why an attachment should not issue against him. Rue IX. (4 am’d.)— What books to be kept by clerks. The several clerks of this court shall keep in their respective offices, in addition to the “ judgment book,” required to be kept by section two hundred and seventy-nine of the Code of Pro- cedure, a book properly indexed, in which shall be entered the title of all civil actions and special proceedings, with proper en- tries under each, denoting the papers filed and the orders made, and the steps taken therein, with the dates of the several pro- ceedings; an index of all undertakings filed in the office, stating in appropriate columns the title of the cause or proceeding in which it is given, with a general statement of its condition,‘or a reference to the statute under which it is given; the date when and before whom acknowledged or proved, by whom approved, and when filed, with a statement of any disposition or order made of or concerning it; and such other books, properly indexed, as may be necessary to enter the minutes of the court, docket judgments, enter orders and all other necessary matters and proceedings; and such other books as the courts of the respective districts, at a general term, may direct. Judgments shall only be filed and entered, or docketed, in the offices of the clerks of the courts of this State, within the hours during which, by law, they are required to keep open their respective offices for the transaction of business. Roe X. (5 am’d.)\—Attorney’s name and residence to be endorsed on papers served. On process or papers to be served, the attorney, besides sub- 180 RULES OF PRACTICE. scribing or indorsing his name, shall add thereto his place of business; and if he shall neglect to do so, papers may be served on him at his place of residence, through the mail, by directing them according to the best information which can conveniently be obtained concerning his residence. This rule shall apply to a party who prosecutes or defends in person, whether he be an attorney or not. Rote XI. (7 am’d.\—Wotice of appearance or retainer deemed an appearance. Service of notice of an appearance or retainer generally, by an attorney for the defendant, shall in all cases be deemed an appearance. And the plaintiff, on filing such notice, at any time thereafter, with proof of service thereof, may have the appearance of the defendant entered, as of the time when such notice was served. Rore XII. (New.)—Attorneys, how changed. An attorney may be changed by consent, or upon cause shown, and upon such terms as shall be just, upon the appli- cation of the client; by the order of a justice of the court, and not otherwise. Rote XII. (87.) [40.]—Agreements relative to proceedings must be in writing, or be entered as orders. No private agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel. Rutz XIV. (8 am’d.)\— When discovery compelled of books, papers and documents. Applications may be made in the manner provided by law, to compel the production and discovery of books, papers, and documents relating to the merits of any civil action pending in this court, or of any defence in such action, in the following cases : 1. By the plaintiff, to compel the discovery of books, papers or documents in the possession or under the control of the de- fendant, which may be necessary to enable the plaintiff to RULES OF PRACTICE. 181 frame his complaint, or to answer any pleading of the de- fendant. 2. The plaintiff may be compelled to make the like discovery of books, papers, or documents, when the same shall be neces- sary to enable the defendant to answer any pleading of the plaintiff. 3. Either party may be compelled to make discovery, as pro- vided by section three hundred and eighty-eight of the Code. Roe XV. (9 am’d.)—Application how to be made. The moving papers upon the application for such discovery, shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers and documents whereof discovery is sought, are not in the possession nor under the control of the party applying therefor. The party applying shall show to the satisfaction of the court, or judge, the materiality and necessity of the discovery sought, and the particular information which he requires. Rote XVI. (10 am’d.) [10]— What order for discovery shall contain. The order for granting the discovery shall specify the mode in which the same is to be made, which may be either by re- quiring the party to deliver sworn copies of the matters to be discovered, or, by requiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed in the order. The order shall also specify the time within which the discovery is to be made. And when papers are required to be deposited, the order shall specify the time that the deposit shall continue; and shall also declare the consequences of an omission to comply with the same, and the court at any special term, upon proof of the default, may of course grant a rule absolute, giving effect to such order; either by nonsuiting the plaintiff, striking out the defendant’s answer, debarring him from a particular defence, excluding the paper from being given in evidence, or punishing the party in default as for a contempt, as the order for the dis- covery may require. Rute XVII. (11.) (11.]—-Order to be a stay of proceedings. The order directing the discovery of books, papers or docu- ments, shall operate as a stay of all other proceedings in the 182 RULES OF PRACTICE. cause, until such order shall have been complied with or vaca- ted; and the party obtaining such order, after the same shall be complied with or vacated, shall have the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. But the justice, in grant- ing the order, may limit its effect, by declaring how far it shall operate as a stay of proceedings. Route XVIIL. (84.) [90.]—Form of affidavit of serving sum- mons, etc., when not done by sheriff. Where the service of the summons, and of the complaint, or notice, if any, accompanying the same, shall be made by any other person than the sheriff, it shall be necessary for such per- son to state in his affidavit of service when, and at what par- ticular place, he served the same, and that he knew the person served to be the person mentioned and described in the sum- mons as defendant therein ; and also to state, in his affidavit, whether he left with the defendant such copy, as well as deli- vered it to him. Roe XIX. (86.) [New in 1852.]—Separate causes of action or grounds of defence to be numbered. In all cases of more than one distinct cause of action, defence, counter-claim or reply, the same shall not only be separately stated, but plainly numbered. Roe XX. (41 am’d.) [44.]—/olios to be numbered—Plead- ings to be legibly written. The attorney, or other officer of the court, who draws any pleading, deposition, affidavit, case, bill of exceptions, report, or other paper, or enters any judgment exceeding two folios in length, shall distinctly number and mark each folio in the mar- gin thereof; and all copies, either for the parties or the court, shall be numbered or marked in the margin, so as to conform to the original draft or entry, and to each other, and shall be indorsed with the title of the cause. And all the pleadings aud other proceedings, and copies thereof, shall be fairly and legibly written ; and if not so written, and folioed, and indorsed, as aforesaid, the clerks shall not file such as-‘may be offered to them for that purpose; nor will the court hear any motion or application founded thereon. The party upon whom the paper is served shall be deemed to have waived the objection, unless, RULES OF PRACTICE. 183 within twenty-four hours after the receipt thereof, he returns such papers to the party serving the same, with a statement of the particular objection to its receipt. Roie XXI. (86.) [39.]—How advice of counsel to be stated mn an affidavit. Whenever it shall be necessary, in any affidavit, to swear to the advice of counsel, the party shall, in addition to what has usually been inserted, swear that he has fully and fairly stated the case to his counsel, and shall give the name and place of residence of such counsel. Route XXII. (20 am’d.)—LZatension of time to answer ; restric- tions on. No order extending the time to answer or demur to a com- plaint shall be granted, unless the party applying for such order shall present to the justice or judge to whom the applica- tion shall be made, an affidavit of merits, or an affidavit of the attorney or counsel retained to defend the action, that, from the statement of the case in the action made to him by the de- fendant, he verily believes that the defendant has a good and substantial defence, upon the merits, to the cause of action set forth in the complaint, or to some part thereof. And if any extension of time to answer or demur has been granted, by stipulation or order, the fact shall be stated in the affidavit. Rore XXIII. (82 am’d.) [88.]— Where an order has been refused, or granted upon terms, no subsequent application to another justice. If any application for an order be made to any judge or justice, and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application, upon the same state of facts, shall be made to any other judge or justice ; and if, upon such subsequent application, any order be made, it shall be revoked; and in this affidavit for such order, the party shall state whether any promeus application for such order has been made. Rote XXIV. (85 am’d.) [91.]— Where judgment on failure to answer may be applied for. When the plaintiff in the action is entitled to judgment, upon 184 RULES OF PRACTICE. the failure of the defendant to answer the complaint, and the relief demanded requires application to be made to the court, such application may be made at any special term, in the dis- trict embracing the county in which the action is triable, or in an adjoining county; such application may also be made at a circuit court in the county in which the action is triable. But when a reference or writ of inquiry shall be ordered, the same shall be executed in the county in which the action is triable, unless the court shall otherwise order. Rote XXV. (new.)—Judgment against absentees not served with process— Undertaking to be given. In actions for the recovery of money only, when the sum- mons has been served by publication, under section one hun- dred and thirty-five of the Code, no judgment shall be entered, unless the plaintiff, at the time of making the application for judgment, shall show by affidavit that an attachment has been issued in the action, and levied upon property belonging to the defendant, which affidavit shall contain a specific description of such property, and a statement of its value, and shall be attached to and filed with the affidavits of publication; nor unless the plaintiff shall, at the same time, produce and file with the clerk an undertaking, with two sureties to be approved by the court, that the plaintiff will abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment, to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his represen- tatives shall apply, and be admitted, to defend the action, and shall succeed in such defence. Rote XXVI. (20 of 1852.\— When plaintiff may stipulate, ete. Whenever the plaintiff shall have neglected to bring his cause to trial according to the practice of the court, and the same shall not have been noticed by the defendant, the plaintiff may, if he has not before stipulated, tender a stipulation, and offer to pay the costs to which the defendant is entitled up to that time. Rorn XXVII. (21 of 1852.)\—Dismissal of complaint for not bringing cause to trial. Whenever an issue of fact shall have been joined, in any RULES OF PRACTICE. 185 action, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant may move for the dismissal of the complaint, with costs. If it is made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court shall permit the plaintiff, on payment of costs, to bring the said action to trial at the next court where the same is triable. Roure XXVIII. (21.)—Lssues of fact, trial of, by court. Issues of fact to be tried by the court, may be tried at the circuit or special term. Rute XXIX. (12.)\— When inquest may be taken. Inquests may be taken in actions, out of their order on the calendar, in cases in which they were heretofore allowed at the opening of the court, on any day after the first day of the court, provided the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served. Rove XXX. (13 am’d.) [18, £2.]—Limitations as to counsel on treal. On the trial of issues of fact, one counsel only on each side shall examine or cross-examine a witness, and one counsel only on each side shall sum up the cause, and during such examina- tion the examining counsel shall stand, and the testimony, if taken down in writing, shall be written by some person other than the examining counsel; but the justice who holds the court may otherwise order, or dispense with this require- ment. No counsel shall occupy more than one hour in summing up, unless by permission of the court. Rore XXXI. (23.) [26.J—Plaintiff need not be called on receiving verdict. It shall not be necessary to call the plaintiff, when the jury retnrn to the bar to deliver their verdict; and the plaintiff shall have no right to submit to a nonsuit, after the jury have gone from the bar to consider of their verdict. 186 RULES OF PRACTICE. Rore XXXII. (22 am’d.) [25.]—Plaintiff may submit to a nonsuit or dismissal before referees—Form of report—Pro- ceedings on special references. On a hearing before referees, the plaintiff may submit to a nonsuit or dismissal of his complaint, or may be nonsuited, or his complaint be dismissed, in like manner as upon a trial, at any time before the cause has been finally submitted to the referees for their decision. In which case the referees shall report according to the fact, and judgment may thereupon be perfected by the defendant. Upon a trial by referees, they shall, in their decision and final report, state the facts found by them and their conclusions of law separately ; a copy of which shall be served with notice of the judgment, and the time within which exceptions may be taken to the report shall be computed from the time of such service. In references other than for the trial of the issues in an action, upon the coming in of the report of the referee, the same shall be filed, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause, or proceeding, and the said report shall become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing the same. If exceptions are filed and served within such time, the same may be brought to a hearing at any special term thereafter, on the notice of any party interested therein. Rove XXXII. (69 am’d.) [74.J]—DManner of settling issues— Issues in divorce cases to be settled—Review of trial of feigned issues and of special references. In cases where the trial of issues of fact is not provided for in section two hundred and fifty-three of the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific questions of fact involved therein, be tried by a jury. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, and in proper form to be incorporated in the order; and the court or judge may settle the issues, or may refer it to a referee to settle RULES OF PRACTICE. 187 the issues. Such issues must be settled in the form prescribed in section seventy-two of the Code of Procedure. In all actions for a divorce, when issue is joined by the pleadings, upon the question of adultery, such issue shall not be tried by a jury until the issue to be tried shall be settled in like manner as in other actions, where issues arising out of the pleadings are required to be settled. When any specific questions of fact involved in an action, or any question of fact not put in issue, is ordered to be tried by a jury, as a substitute for a feigned issue, and has been tried, or a reference other than of the whole issue has been ordered under section three hundred and seventy-one of the Code anda trial had, if either party shall desire to apply for a new trial, on the ground of any error of the judge or referee, or on the ground that the verdict or report is against evidence, (except when the judge directs such motion to be. made upon his minutes, at the same term or court at which the issues are tried,) a case or exceptions shall be made, or a case containing exceptions, as the case may require, which case or exceptions shall be served and settled in the manner prescribed by the rules of court for the settlement of cases and exceptions in other cases. Such motions shall be made in the first instance at special term; and if neither party moves for a new trial in such case, they shall be deemed to have acquiesced in the decision of the judge or referee, and the verdict of the jury or report of the referee; and the same shall not be questioned upon the final hearing of the cause, or in any subsequent pro- ceeding therein. Rove XXXIV. (15 am’d.) (15, 17, 18, 19.]—Making and set- tling w case, bill of exceptions, etc. Whenever it shall be intended to move for a new trial, (except for irregularity, surprise, or upon the minutes of the judge,) or to review by appeal, or otherwise, a trial by a jury, by the court, or by referees, a case or exceptions, or case con- taining exceptions, as may be proper and the party may elect, shall be prepared by the party intending to make the motion, or to review the trial, and a copy thereof shall be served on the opposite party within ten days after the trial, if by a jury, or after written notice of the filing of the decision or report, if the trial be by the court or by referees; and the party served may 188 RULES OF PRACTICE. within ten days thereafter propose amendments thereto and serve a copy on the party proposing the case or exceptions, who may then within four days thereafter serve the opposite party with a notice, that the case or exceptions with the pro- posed amendments will be submitted at a time and place to be specified in the notice, to the justice or referee before whom the cause was tried, for settlement. The justice or referee shall thereupon correct and settle the case, as he shall deem to con- sist with the truth of the facts. The time for settling the case must be specified in the notice, and it shall not be less than four nor more than twenty days after service of such notice. The lines of the case shall be so numbered that each copy shall correspond. Cases reserved for argument, and special verdicts, shall be settled in the same manner. Rore XXXYV. (16.) [16.]—Light to make a case how waived, and when case deemed settled. If the party shall omit to make a case within the time above limited, he shall be deemed to have waived his right thereto ; and when a case is made, and the parties shall omit, within the several times above limited, the one party to propose amend- ments, and the other to notify an appearance before the justice or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed. Rove XXXVI. (24 am’d.)—Exceptions to contain no irrele- vant evidence. Exceptions shall only contain so much of the evidence as may be necessary to present the questions of law upon which the same were taken on the trial; and it shall be the duty of the justice, upon settlement, to strike out all the evidence and other matters which shall not have been necessarily in- serted. Whenever amendments are proposed to a case or exceptions, the party proposing such case or exceptions shall, before sub- mitting the same to the judge or justice for settlement, mark upon the several amendments his proposed allowance or dis- allowance thereof. RULES OF PRACTICE. 189 Rote XXXVII. 17 am’d.) [19.]—Eicceptions or case to be Jiled. Where a party makes a case or exceptions, he shall procure the same to be filed within ten days after the same shall be set- tled, or it shall be deemed abandoned. And on filing affidavit that such case or exceptions has not been filed, and showing the time of the settlement thereof, and that more than ten days has elapsed from the time of such set- tlement, an order of course may be entered, declaring the same abandoned, and the party may proceed as if no case or excep- tions had been made. Rote XXXVI. (new.)—Settlement of facts after judgment preparatory to appeal to court of appeals. A party desiring to appeal to the court of appeals, in an action tried by the court or referees, may have the facts upon which the decision of the general term was based, settled for the purposes of such appeal ; and for the purpose of such settle- ment the party shall, within twenty days after the notice of the judgment, propose and serve upon the opposite party such a statement of the facts as he deems proper. The party upon whom such statement is served may, within twenty days after such service, prepare such amendments to the statement as he may deem proper, which amendments shall be in writing and served on the moving party. The party pre- paring the original statement, may give eight days’ notice that the statements and amendments will be presented for settle- ment to the justice who delivered the opinion in the case, or, if no opinion was delivered, to the presiding justice of the court. Such justice shall settle the facts, and upon the statement, as settled by him, he shall indorse an order that the statement be attached to the judgment roll. Route XX XIX. (25 am’d.) (28.]—Wotices of argument or of motion, and defaults thereon—Order to show cause to be granted only on special cause shown. All questions for argument, and all motions, shall be brought before the court on a notice, or when a notice less than eight days is prescribed by the judge or court, under section four hundred and two of the Code, by an order to show cause; and if the opposite party shall not appear to oppose, the party mak- 190 RULES OF PRACTICE. ing the motion or obtaining the order, shall be entitled to the rule or judgment moved for, on proof of due service of the notice or order and papers required to be served by him, unless the court shall otherwise direct. Such order to show cause shall only be granted when a spe- cial reason for a notice less than eight days appears on the papers presented, and the party shall, in his affidavit, state the present condition of the action, and whether at issue, and the time appointed for holding the next circuit in the county where the action is triable. The order shall also (except in the first ‘judicial district) be returnable only before the judge who grants it, or at a special term appointed to be held in the district in which such judge resides. No order served after the action shall have been noticed for trial, if served within ten days of the circuit, shall have the effect to stay the proceedings in the action unless made at the circuit where such action is to be tried, or by the judge who is appointed or is to hold such circuit. And when the motion is for irregularity, the notice or order shall specify the irregularity complained of. This rule, so far as it permits a judgment by default, or by the consent of the adverse party, shall not extend to a complaint for a divorce. Rote XL. (27 am’d.) [80.]—Znumerated motions—LNon-enu- merated motions. Enumerated motions are, motions arising on special verdict ; issues of law; cases ; exceptions ; appeals from orders sustaining or overruling demurrers; appeals from an inferior court; and appeals by virtue of section three hundred and forty-eight of the Code. Non-enumerated motions include all other questions submit- ted to the court, and shall be heard at special term, except when otherwise directed by law. Contested motions shall not be noticed or bronght to a hear- ing at any special term held at the same time and place with a circuit, except in actions upon the calendar for trial at such circuit, and in which the hearing of the motion is necessary to the disposal of the cause, and except also that, in counties in which no special term distinct from a circuit is appointed | to be held, motions in actions triable in any such county” RULES OF PRACTICE. 191 may be noticed and brought on at the time of holding the cir- cuit and special term in the county in which such actions are triable. Rure XLI. (34 am’d.) [87.)—TZime for filing notes of assue. Notes of issue for the general term shall be filed eight days before the commencement of the court at which the causes may be noticed. The clerk shall prepare a calendar for the general term, and cause the same to be printed for each of the justices holding the court. Appeals shall be placed on the calendar, according to the date of the service of the notice of appeal; and other cases as of the time when the question to be reviewed arose. Rove XLII. (28.)—Enumerated motions noticed for the first day of term. Enumerated motions shall be noticed for the first day of term by either party. The papers to be furnished on such motions shall be a copy of the pleadings, when the question arises on the pleadings, or any part thereof, or of such parts only as relate to the question raised by the demurrer; a copy of the special verdict, return, or other papers on which the question arises, and the party whose duty it is to furnish the papers shall serve a copy on the opposite party, except upon trial of issnes at law, at least eight days before the time the matter may be noticed for argu- ment. Ifthe party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and notice of motion, thut the cause be struck from the calendar (whichever party may have noticed it for argument), and that judgment be rendered in his favor; provided, how- ever, that in mortgage and partition cases, where the plaintiff's rights are not contested, no copies of pleadings need be fur- nished to the court. The papers shall be furnished by the plaintiff, when the question arises on special verdict, and by the party demurring, in cases of demurrer, and in all other cases by the party mak- ing the motion. 192 RULES OF PRACTICE. Rute XLII. (29 am’d.) [32.]— What papers to be furnished on appeal, and by whom. . When an appeal is noticed for a general term, in cases em- braced in chapter three of title eleven of the Code, and of sec- tion three hundred and forty-eight of the Code, the appellant shall furnish the papers for the court, which consist of a copy of the judgment roll, together with a case, stating the time of the commencement of the suit, and of the service of the re- spective pleadings, the names of the original parties in full, the change of parties if any has taken place, pending the suit, to which shall be added the opinion of the court below, or an affidavit that no opinion in writing was given, or if given, thata copy could not be procured. At the commencement of the argu- ment the appellant shall furnish a printed copy of the papers to each of the judges, together with a printed copy of the points on which he intends to rely, with a reference to the authori- ties which he intends to cite; and he shall also deliver to the attorney of the adverse party, at least eight days before the first day of the term, three printed copies of the said papers. And at the commencement of the argument, each party shall serve upon his adversary, a printed copy of his points and authorities on which he intends to rely. In case the appellant neglects so to furnish to the adverse party the said number of copies of the papers, the latter shall be entitled to move, on affidavit and notice of motion, for the earliest practicable day in term for hearing non-enumerated motions, that the cause be stricken from the calendar, (whichever party may have noticed it for argument,) and that judgment be rendered in his favor. When a case is agreed upon by the parties according to section three hundred and seventy-two of*the Code, the plaintiff shall furnish the necessary papers for argument, duly printed, as in cases of appeal. Roe XLIV. (77.) [82.J—Appeals from surrogates decision, how taken. On an appeal to this court from the order, sentence or decree of asurrogate’s court, the party appealing shall file a petition of appeal, addressed to this court, with the clerk of the county in which the order, sentence or decree appealed from was made, within fifteen days after the appeal is entered in the court below, or the appeal shall be considered as waived ; and any RULES OF PRACTICE. 193 party interested in the proceedings in the court below may thereupon apply to this court, ex parte, to dismiss the appeal with costs. The petition of appeal shall briefly state the gene- ral nature of the proceedings, and of the sentence, order or decree appealed from, and shall specify the part or parts thereof complained of as erroneous ; except where the whole sentence, order or decree is alleged to be erroneous, in which case it shall be sufficient to state that the same and every part thereof is erroneous. And where the appeal is from a sentence or decree on the settlement of the accounts of an executor, administrator, or guardian, if the appellant wishes to review the decision as to the allowance or rejection of any particular items of the account, such items shall be specified in the petition of appeal ; or the allowance or disallowance of any such items shall not be considered a sufficient ground for reversing or modifying the sentence or decree appealed from. The respondent, in his answer to the petition of appeal in such cases, may also specify any items in the account, as to which he supposes the sentence or decree is erroneous, as against him and in favor of the appel- lant. And upon the hearing of the parties upon such appeal, the sentence or decree may be modified as to any such items, in the same manner as if a cross-appeal had been brought by such respondent. The appellant may have an order of course, that the respondent in the petition of appeal answer the same within twenty days after the service of a copy of the petition of appeal and notice of the order, or that the appellant be heard ex parte. And where the respondent is an adult, upon filing an affidavit of such service upon the attorney of the respondent, if he has appeared either in this court, or in the court below by an attorney of this court, or upon the surrogate if he has not ap- peared by such attorney, and that no answer to the petition of appeal has been received, the appellant may have an order of course that the appeal be heard ex parte as against such res- pondent. Where the respondent is a minor, if he does not pro- cure a guardian ad litem upon the appeal to be appointed within twenty days after the filing of the petition of appeal, the appellant may apply to a justice of this court, ex parte, for the appointment of such guardian. And if the minor has appeared by his guardian ad litem in this court, the appellant may have an order of course that the guardian ad litem of the respondent 13 194 RULES OF PRACTICE. answer the petition of appeal within twenty days after service of a copy thereof and notice of the order, or that an attachment issue against such guardian. When a petition of appeal is filed, if it has not been served on the adverse party, the respondent may have an order of course, that the appellant deliver a copy of the petition of appeal to the attorney, or to the gnardian ad litem of the respondent, within ten days after the service of notice of such order, or that the appeal be dismissed ; and if the same is not delivered within the time limited by such order, the respondent, upon due notice to the adverse party, may apply at a special term to dismiss the appeal with costs. Upon the hearing of any such appeal as is referred to in this rule, it shall be the duty of the appellant to furnish the court with a copy of the petition of appeal, and of the answer thereto, if an answer has been received, and a copy of the proceedings below, includ- ing a copy of the appeal as entered. Rote XLV. (81 am’d.) [81.|—Leading facts to be stated on points. In all enumerated motions, each party shall briefly state upon his printed points, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found; and the court will not hear an extended dis- cussion on a mere question of fact. Rorze XLVI. (80.) [33.]—How cases, points, etc., to be printed. The cases and points, and all other papers furnished to this court at a general term in calendar causes, shall be printed on white writing paper, with a margin on the outer edge of the leaf, not less than one and a half inch wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long and three and a half inches wide. The folio, num- bering from the commencement to the end of the papers, shall be printed on the outer margin of the page. Rory XLVII, (42 am’d.)—Certiorari to remove interlocutory proceedings, when heard. Every case on certiorari to subordinate courts, tribunals or magistrates, may be brought to a hearing by either party, upon the usual notice of argument; and shall be entitled to prefer- ence, on the morning of any day during the first week of term. RULES OF PRACTICE. 195 Rote XLVIIIL. (33 am’d.) [36.]—On what days in general term, non-enumerated motions will be heard. Non-enumerated motions made in term time, at a general term, will be heard on the first day, and Thursday of the first week, and Friday of the second week of the term, immediately -after the opening of the court on that day. Except in the first judicial district, a party attending pursuant to notice, to oppose a non-enumerated motion, if the same shall not be made on the day for which it is noticed, may, at the close of that order of business, take a rule against the party giving the notice, for costs for attending to oppose. Motions in criminal cases may be heard on any day in term. Rute XLIX. (32.) [85.]—Non-enwmerated motions, except in 1st district, to be noticed for the first day of the term, or excuse to be shown. Non-enumerated motions, except in the first district, shall be noticed for the first day of the term or sitting of the court, ac- companied with copies of the affidavits and papers on which the same shall be made; and the notice shall not be for a later day, unless sufficient cause be shown (and contained in the afii- davits served), for not giving notice for the first day. Rute L. (40.) (43.]—Motions for irrelevancy, redundancy, or uncertainty of pleadings. Motions to strike out of any pleading, matter alleged to be irrelevant or redundant, and motions to correct a pleading, on the ground of its being ‘‘so indefinite or uncertain, that the precise nature of the charge or defence is not apparent,” must be noticed, before demurring or answering the pleading, and within twenty days from the service thereof. Rote LI. (new.)—Pleadings on return to mandamus, ete. The return to a writ of mandamus, or of prohibition, having been filed, the party making such return may serve a notice upon the relator, requiring him to demur or plead thereto within twenty days after such service; and if no plea or demur- rer to such return be interposed within that time, either party may notice the matter for a hearing at the next or any subsequent special term at which the same may, according to the practice of the court, be heard as a non-enumerated 196 RULES OF PRACTICE. motion, and the same shall be heard and disposed of on the said return. Rots LIL (81.) [86.]—Additional allowances to be applied Jor to the court giving the judgment. Applications for an additional allowance under the provi- sions of the three hundred and ninth section of the Code of Procedure, can only be made to the court before which the trial is had, or the judgment rendered. Route LUI. (87.) [New in 1852.|—Application for justice to amend his return on appeal. On appeals from a justice’s judgment, where the county court has not jurisdiction, by reason of relationship, etc., a notice of motion for an order to compel the justice to amend his return, may be given in twenty days after the date of the certificate of the county judge, and not after that time. Rots LIV. (14 am’d.) [14.]—earing of counsel. At the hearing of causes at a general or special term, not more than one counsel shall be heard, on each side, and then not more than one hour each, except when the court shall otherwise order. Rote LY. (26.) [29.]—Counsel to indorse his name on proof of notice. When a rule is obtained, either at a general or special term, by default, the counsel obtaining the same shall indorse his name, as counsel, on the paper containing the proof of notice; and the clerk, in entering the rule, shall specify the name of such counsel. Rore LVI. (88.) [41.]—Orders granted on petitions need not recite contents—May be docketed as judgments in certain cases. Orders granted on petitions, or relating thereto, shall refer to such petitions by the names and descriptions of the peti- tioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. Any order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of RULES OF PRACTICE. 197 any party interested, be enrolled and docketed, as other judg- ments. Rove LVII. (35 am’d.) [38.])—Zime for complying with orders. In all cases where a motion shall be granted, on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party whose duty it shall be to comply therewith, shall have twenty days for that purpose, unless otherwise directed in the order. But, where costs to be adjusted are to be paid, the party shall have fifteen days to comply with the rule, after the costs shall have been adjusted by the clerk on notice, unless otherwise ordered. Rous LVI. (£4 am’d.) [£7.]— When order to stay, with view to change venue, granted—Lfect of order — When tt may be revoked—Lotice of revocation to be given. No order to stay proceedings for the purpose of moving to change the place of trial shall be granted, unless it shall appear, from the papers, that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined. Such order shall not stay the plaintiff from taking any step, except subpcenaing witnesses for the trial, without a special clause to that effect. On presenting to and filing with the officer granting the order, an affidavit, showing such facts as will entitle the plaintiff, according to the settled prac- tice of the court, to retain the place of trial, the officer shall revoke the order to stay proceedings; and the plaintiff shall give immediate notice of such revocation to the defendant’s attorney. Ruts LIX. (45.) [48.]—Afidavits for change of venue. In addition to what has usually been stated in affidavits con- cerning venue, either party may state the nature of the contro- versy, and show how his witnesses are material; and may also show where the cause of action or the defence, or both of them, arose; and those facts will be taken into consideration by the court, in fixing the place for trial. 198 RULES OF PRACTICE. Roe LX. (53 am’d.) [56.J— Who may be appointed guar- dians ad Vitem—Limitation of rule. No person shall be appointed guardian ad litem, either on the application of the infant or otherwise, unless he be the general guardian of such infant, or is fully competent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. And no person shall be appointed such guardian, who is not of sufficient ability to answer to the infant, for any damage which may be sustained by his negligence or misconduct in the defence or prosecution of the suit. This rule shall not apply to actions for the recovery of money only, or of specific real or personal property, as specified in section two hundred and fifty-three of the Code. Rois LXI. (52.) [55.J—Duty of guardian ad litem. It shall be the duty of every attorney or officer of this court, to act as the guardian of any infant defendant, in any suit or proceeding against him, whenever appointed for that purpose by an order of this court. And it shall be the duty of such guardian to examine into the circumstances of the case, so far as to enable him to make the proper defence, when necessary for the protection of the rights of the infant; and he shall be entitled to such compensation for his services, as the court may deem reasonable. Rore LXI. (54 am’d.) [58.]—Guardian not to receive pro- perty unless he has given security. No guardian ad litem for an infant party, unless he has given security to the infant according to law, shall, as such guardian, receive any money or property belonging to such infant, or which may be awarded to him in the suit, except such costs and expenses as may be allowed by the court, to the guardian, out of the fund, or recovered by the infant in the suit. Neither shall the general guardian of an infant receive any part of the proceeds of a sale of real property belonging to such infant, sold under a decree, judgment, or order of the court, until the guardian has given such further security for the faithful discharge of his trust as the court may direct. RULES OF PRACTICE. 199 Rove LXIII. (57.) [61.]--How general guardian may be appointed. For the purpose of having a general guardian appointed, the infant, if of the age of fourteen years or upward or some rela- tive or friend, if the infant is under fourteen, may present a petition to the court, stating the age and residence of the infant, and the name and residence of the person proposed or nominated as guardian, and the relationship, if any, which such person bears to the infant, and the nature, situation and value of the infant’s estate. Rutz LXIV. (58.) [62.]—Court may ascertain age of infant by inspection and examination. Upon presenting the petition, the court shall, by inspection or otherwise, ascertain the age of the infant, and if of the age of fourteen years or upward, shall examine him as to his voluntary nomination of a suitable and proper person as guardian ; if under fourteen, shall ascertain who is entitled to the guardianship, and shall name a competent and proper person as guardian. The court shall also ascertain the amount of the personal property, and the gross amount or value of the rents and profits of the real estate of the infant during his minority, and shall also ascertain the sufficiency of the security offered by the guardian. Rure LXV. (55 am’d.) [59.]—Security required of general guardian. The security to be given by the general guardian of an infant, shall be a bond, in a penalty of double the amount of the personal estate of his ward, and of the gross amount or value of the rents and profits of the real estate, during his minority, together with at least two sufficient sureties, each of whom shall be worth the amount specified in the penalty of the bond, over and above all debts; or, instead of personal security, the guardian may give security by way of mortgage on unincumbered real property, of the value of the penalty of his own bond only. But the court, in its discretion, may vary the security, where, from special circumstances, it may be found for the interest of the infant; and may direct the prin- cipal of the estate, or any part thereof, to be invested in the stocks of the State of New York or of the United States, or 200 RULES OF PRACTICE. with the New York Life Insurance and Trust Company, the United States Trust Company, or on bond and mortgage, for, the benetit of the infant, and that the interest or income thereof, only, be received by the guardian. Route LXVI. (60.) [64.]—Application for appointment of special guardian. ,An infant, by his general guardian, if he has any, and if there is none, by his next friend, may present a petition, stating the age and residence of the infant, the situation and value of his real and personal estate, the situation, value and annual income of the real estate proposed to be sold, and the particular reasons which render a sale of the premises neces- sary or proper; and praying that a guardian may be appointed to sell the same. The petition shall also state the name and residence of the person proposed as such guardian, the relation- ship, if any, which he bears to the infant, and the security pro- posed to be given; and the petition shall be accompanied by affidavits of disinterested persons, or other proofs verifying the material facts and circumstances alleged in the petition. And if the infant is of the age of fourteen, be shall join in the application. Rune LXVIL. (61 am’d.) [65.J—Reference ordered to ascer- tain truth of petition—And value of dower, if any—Certificate of security filed—Contents of report. If it satisfactorily appears that there is reasonable gr jun for the application, an order may be entered, appointing a guar- dian for the purposes of the application, on his executing and — filing with the clerk the requisite security, approved of as to its form and manner of execution by a justice of this court or a county judge, signified by his approbation indorsed thereon, and directing a reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, or any and what part thereof, would be beneficial to the infant, and the particular reasons therefor; and to ascertain the value of the property proposed to be sold, and of each separate lot or parcel thereof, and the terms and conditions upon which it should be sold; and whether the infant is in absolute need of any and what part of the proceeds of the sale for his support and maintenance, over and above the income thereof, and his RULES OF PRACTICE, 201 other property, together with what he might earn by his own exertions. And if there is any person entitled to dower in the premises, who is willing to join in the sale, also to ascertain the value of her life estate in the premises, on the principle of life annuities. But no proceedings shall be had upon such reference, until the guardian produces a certificate to the clerk, that the requisite security has been duly proved, or acknowledged, and filed agreeably to the order of the court; and which certificate shall contain the name of the officer by whom it was approved, and shall be annexed to the report. The said report shall contain in itself a statement of the parti- cular reasons which, in the opinion of the referee, render a sale of the premises necessary or proper, and of all the facts required to be ascertained and reported, and shall not refer to the peti- tion or affidavits for such statements. Rute LXVIIL. (59.) [63.]—Seourity required of special guar- dian. The security required on a sale of the real estate of an infant, shall be a bond of the guardian, with two sufficient sureties, in a penalty of double the value of the premises, including the interest on such value during the minority of the infant, each of which sureties shall be worth the penalty of the bond, over and above all debts; or a similar bond of the guardian only, secured by a mortgage on unincumbered real estate, of the value of the penalty of such bond. Roure LXTX.7(62.) [66.J— When proceeds must be brought into court. If the proceeds of the sale exceed five hundred dollars, and the guardian has not given security by mortgage upon real estate, he shall bring the proceeds into court, or invest the same under the direction of the court, for the use of the infant; and the guardian shall only be entitled to receive so much of the interest or income thereof, from time to time, as may be neces- sary for the support and maintenance of the infant, without the order of the court. If the infant’s interest in the property does not exceed one thousand dollars, the whole costs, including dis- bursements, shall not exceed twenty-five dollars. And where several infants are interested in the same premises as tenants in common, the application in behalf of all shall be joined in the 202 RULES OF PRACTICE. same petition, althongh they may have several general guar- dians; and there shall be but one reference to ascertain the propriety of a sale as to all, and but one bill of costs shall be allowed. Rote LXX. (56 am’d.) [60.]—Certain moneys not to be paid to general guardian except on real security—Form of applica- tion for such moneys. No moneys arising from the sale of the real estate of an infant, on a mortgage or partition sale, or under any decree, judgment or order of court, shall be paid over to his general guardian, except so much thereof, or of the interest or income, from time to time, as may be necessary for his support or maintenance ; unless such guardian has previously given sufficient security on unincumbered real estate, to account to the infant for the same, in the usual form. No order shall be made for the payment of any such moneys to any person claiming the same, except upon petition, accom- panied by a certified copy of the order in pursuance of which the money was brought into court, together with a statement of the county treasurer, city chamberlain, or other depository of the money, showing the present state and amount of the funds, separating the principal and interest, and showing the amount of each, and the court may take such proof of the truth of the matters stated in the petition as shall be deemed proper, or may refer the same to asuitable referee, to take proof and report thereon. Rote LXXI. (46 am’d.) [49.]—Order of reference to compute amount due on mortgage—In what cases proof of facts to be also taken—Application for judgment at a special term—P roof of filing notice of lis pendens. If, in an action to foreclose a mortgage, the defendant fails to answer within the time allowed for that purpose, or the right of the plaintiff as stated in the complaint is admitted by the answer, the plaintiff may have an order referring it to the clerk, or to some suitable person as referee, to compute the amount due to the plaintiff, and to such of the defendants as are prior encumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels, if the whole amount secured by the mortgage has not become RULES OF PRACTICE. 203 due. If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absen- tees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent on oath, as to any payments which have been made, and to com- pute the amount due on the mortgage, preparatory to the appli- cation for judgment of foreclosure and sale. Where no answer is put in by the defendant, within the time allowed for that purpose, or any answer denying any material facts of the complaint, the plaintiff, after the cause is in readi- ness for trial, as to all the defendants, may apply for judgment, at any special term, upon due notice to such of the defendants as have appeared in the action, and without putting the cause on the calendar. The plaintiff in such case, when he moves for judgment, must show, by affidavit or otherwise, whether any of the defendants who have not appeared are absentees ; and, if so, he must produce the report as to the proof of the facts and circumstances stated in ‘the complaint, and of the examination of the plaintiff or his agent, on oath, as to any payments which have been made. And in all foreclosure cases the plaintiff, when he moves for judgment, must show by affidavit, or by the | certificate of the clerk of the county in which the mortgaged premises are situated, that a notice of the pendency of the action containing the names of the parties thereto, the object of the action, and a description of the property in that county affected thereby, the date of the mortgage, and the time and place of recording the same, has been filed at least twenty days before such application for judgment, and at or after the time of filing the complaint, as required by section one hundred and thirty- two of the Code of Procedure. Roe LXXII. (47 am’d.) [50.J—Porm of judgment for sale of mortgaged PARSE) of surplus moneys—Leferee, who may be. In every judgment for the sale of mortgaged premises, the description and particular boundaries of the property to be sold, so far, at least, as the same can be ascertained from the mortgage, shall be inserted. And, unless otherwise specially ordered by the court, the judgment shall direct that the mort- gaged premises, or so much thereof as may be sufficient to raise 204 RULES OF PRACTICE. the amount due to the plaintiff, for principal, interest, and costs, and which may be sold separately without material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee, and that the plaintiff, or any other party, may become a purchaser on such sale; that the sheriff or referee execute a deed to the purchaser; that out of the proceeds of the sale, he pay to the plaintiff, or his attorney, the amount of his debt, interest, and costs, or so much as the purchase money will pay of the same, and that he take the receipt of the plaintiff, or his attorney, for the amount so paid, and file the same with his report of sale; and that the purchaser -at such sale be let into possession of the premises, on production of the deed. All surplus moneys arising from the sale of mortgaged pre- mises, under any judgment, shall be paid by the sheriff or referee making the sale, within five days after the same shall be received and be ascertainable ; in the city of New York to the chamberlain of the said city, and in other counties to the treasurer thereof, unless otherwise specially directed, subject to the fur- ther order of the court; and every judgment in foreclosure shall contain such directions, except where other provisions are specially made by the court. No report of sale shall be filed © or confirmed, unless accompanied with a proper voucher for the surplus moneys, and showing that they have been paid over, deposited or disposed of in pursuance of the judgment. The referee to be appointed in foreclosure cases shall be selected by the court, and the court shall not appoint as such referee a person nominated by the party to the action, or his counsel. Rory LXXIIIL (51.) [54.J— Where lands to be sold in the city of New York—WNotice how published. Where lands in the city of New York are sold under a decree, order, or judgment of any court, they shall be sold at public vendue, at the Merchant’s Exchange, between twelve o’clock at noon and three in the afternoon, unless otherwise specially directed. The notice of the sale of lands, lying in any of the cities of this State in which a daily paper is printed, except where a different notice is required by law, or by the order of the court, shall be published in one or more of the daily papers of that city, for three weeks immediately previous to the time RULES OF PRACTICE. 205 of sale, at least twice in each week. When lands in any other part of the State are directed to be sold at auction, notice of the sale shall be given for the same time and in the same man- ner as is required by law, on sales of real estate by sheriffs on execution. Rore LXXIV. (50.) [53.]— When sheriff to sell in parcels. Where mortgaged premises or other real estate directed to be sold, consist of several distinct lots or parcels, which can be sold separately, without diminishing the value thereof on such sale, it shall be the duty of the sheriff, or other person conduct- ing the sale, to sell the same in separate lots or parcels, unless otherwise specially directed by the court. But if the sheriff or other person is satisfied the property will produce a greater price if sold together than it will in separate lots or parcels, he may sell it together, unless otherwise directed in the order of sale. Rute LXXV. (49.) [52.])—Mortgage must be filed or re- corded before deed executed. Whenever a sheriff or referee sells mortgaged premises, under a decree or order, or judgment of the court, it shall be the duty of the plaintiff, before a deed is executed to the pur- chaser, to file such mortgage in the office of the clerk, unless such mortgage has been duly proved or acknowledged, so as to entitle the same to be recorded; in which case, if it has not been already done, it shall be the duty of the plaintiff to cause the same to be recorded, at full length, in the county or coun- ties where the lands so sold are situated, before a deed is exe- cuted to the purchaser on the sale; the expense of which filing or recording, and the entry thereof, shall be allowed in the taxation of costs; and if filed with the clerk, he shall enter in the minutes the filing of such mortgage, and the time of filing. But this rule shall not extend to any case where the mortgage appears, by the pleadings or proof in the suit commenced thereon, to have been lost or destroyed. Rove LXXVI. (48.) [51.]—Claimant may apply for surplus moneys—Order of reference. On filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, upon filing with the clerk where the report of sale is filed, a notice, stating that he is entitled to such surplus 206 RULES OF PRACTICE. moneys or some part thereof, and the nature and extent of his claim, may have an order of reference, to ascertain and report the amount due to him, or to any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon; to the end that, on the coming in and confirmation of the report on such reference, such further order may be made for the distribution of such surplus moneys as may be just. Every party who appeared in the cause, or who shall have filed such notice with the clerk, previous to the entry of the order of reference, shall be entitled to service of a notice of the application for the reference, and to attend on such reference, and to the usual notices of subsequent proceed- ings relative to such surplus. But if such claimant has not appeared, or made his claim by an attorney of this court, the notice may be served by putting the same into the post-office, directed to the claimant at his place of residence, as stated in the notice of his claim. Rote LXXVII. (72.) [77.]—All lands held in common to be embraced in one suit for partition. Where several tracts or parcels of land lying within this State are owned by the same persons in common, no separate action for the partition of a part thereof only shall be brought, without the consent of all the parties interested therein; and if brought without such consent, the share of the plaintiff may be charged with the whole costs of the proceeding. And when infants are interested, the petition shall state whether or not the parties own any other lands in common. Roure LXXVIIL. (73.) [78.]— When reference as to title where there is no defence. Where the rights and interests of the several parties, as stated in the complaint, are not denied or controverted, if any of the defendants are infants or absentees, or unknown, the plaintiff, on an affidavit of the fact, and notice to such of the ‘parties as have appeared, may apply at a special term for an order of reference, to take proof of the plaintiff’s title and interest in the premises, and of the several matters set forth in the bill or petition; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held. RULES OF PRACTIOS. 207 Rove LXXIX. (74.) [79.]—Directions in order of reference where sale is necessary in partition— When referce to report incumbrances on the whole premises. Where the whole premises, of which partition is sought, are so circuinstanced that a partition thereof cannot be made without great prejudice to the owners, due regard being had to the power of the court to decree compensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to produce such equality, or where any lot or separate parcel of the premises, which will exceed in value the share to which either of the tenants in common may be entitled, is so cireumstanced, the plaintiff, upon stating the fact in the affidavit which is to be filed for the purpose of ob- taining an order of reference under the next preceding rule, may have a further provision inserted in such order of refe- rence, directing the officer, or person to whom it is referred, to inquire and report whether the whole premises, or any lot or separate parcel thereof, are so circumstanced that an actual partition cannot be made; and that if he arrives at the conclu- sion that the sale of the whole premises or of any lot or separate parcel thereof will be necessary, that he specify the same in his report, together with the reasons which render a sale necessary ; and, in such a case, that he also ascertain and report whether any creditor, not a party to the suit, has a specific lien, by mortgage, devise or otherwise, upon the undivided share or interest of any of the parties, in that portion of the premises which it is necessary to sell; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incumbrance, by judgment or decree; and that he ascertain and report the amount due to any party to the suit who has either a general or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and who shall appear and establish his claim on such reference. He shall also, if requested by the parties who appear before him on such refe- rence, ascertain and report the amount due to any creditor, not a party to the suit, which is either a specific or general lien or incumbrance upon all the shares or interests of the parties in 208 RULES OF PRACTICE. the premises to be sold, and which would remain as an incum- brance thereon in the hands of the purchaser; to the end that such directions may be given in relation to the same, in the decree for the sale of the premises, as shall be most bene- ficial to all the parties interested in the proceeds thereof on such scale. Rutz LXXX. (new.)—Order to stay sale in foreclosure and partition cases, only granted on notice. No order to stay a sale under a judgment in partition, or for the foreclosure of a mortgage, shall be granted or made by a judge out of court, except upon a notice of at least two days to the plaintiff’s attorney. Rote LXXXI. [78 am’d.) [83.]—All moneys brought into court to be paid to county treasurer— Where to be deposited. All moneys brought into court by order of this, or any other court, shall be paid to the county treasurer of the county in which the action is triable, unless the court shall otherwise direct. And all bonds, mortgages and other securities upon real estate, heretofore required to be taken in the name of the clerk of the court of appeals, shall, except as otherwise provided by law, be taken to the treasurer of the county where such fund belongs, or such other county treasurer as this court shall direct. And all moneys received by the county treasurer, under and by virtue of any law vesting him with the funds, or securities belonging to any of the suitors, in any court of this State, shall be deposited by the said county treasurer, in his name of office, in the New York Life Insurance and Trnst Com- pany, the United States Trust Company, or in such bank, or trust company, as the court for the district shall from time to time direct as a deposit bank, unless the order or jndg- ment under which such moneys are brought into court, shall direct such moneys to be deposited in some other bank or com- pany. Rute LXXXII. (79.) [84.]—ZZow accounts of county trea- surer shall be kept. The accounts of the county treasurers, with respect to moneys or securities, received by them under the foregoing rule, or by virtue of any order of any court of this State, with the banks RULES OF PRACTICE. 209 and other companies, in which moneys are directed to be depo- sited, shall be kept in such manner, that in the cash books of the banks and other companies, and in the bank books of the said treasurers, it shall appear in what particular suit, or on what account, the several items of money credited, or charged, were deposited, or paid out. The said county treasnrer shall, at the first general term of this court, for the district in which such treasurer resides, in each year, make a report to said court, containing a statement of his accounts, and of the funds and securities under his control, on the first day of January, which statement shall show the amount in his hands, unin- vested, aud the times when received, and the suit or matter in which the same was paid in, constituting the balance in deposit in banks, and other companies; and also all stocks, bonds and mortgages and other investments, for the benelit of suitors or otherwise. The court to which such report shall be made, shall cause the same to be examined by some suitable and proper person, to be appointed by them. The person so appointed shall forthwith proceed to examine the account and statement, with the acconnts in banks and in other companies, and with the accounts and securities in the office of such treasurer. He shall have the power to suminon witnesses before him, if necessary, to be examined with respect to such accounts. He shall report whether such accounts have been correctly kept, and are truly stated; and shall, on or before the first day of the next ensuing general term in such district, deliver to the court of such district, by which he shall be appointed, or one of the justices thereof, his report upon the matters so referred. Roure LAXXIII. (80 am’d.) [85.]—Orders for moneys to be puid out of court, how drawn. Orders upon the banks or other companies for the payment of moneys out of court, shall be made payable to the order of the person entitled thereto, or of his attorney duly authorized, and shall specify in what particular suit or on what account the money is to be paid out, and the time when the order authorizing such payment was made. When moneys are depo- sited in the New York Life Insurance and Trust Company, or the United States Trust Company, to the credit of the county treasurer, the entry of such deposit, both in the books of the company and in the accounts of the county treasurer with the 14 210 RULES OF PRACTICE. company, shall contain a short reference to the title of the cause or matter in which such deposit is directed to be made; and specifying also the time from which the interest or accumula- tion on such deposit is to commence, where it does not com- mence from the date of such deposit. The secretary of the company shall transmit to the justices holding the first general term, for the first district, in January in each year, a statement of the accounts of the said county treasurer; and to the jus- tices holding the first general term in the other districts, a statement of the accounts of the county treasurer in each dis- trict; showing the amounts standing to his credit on the first day of January, including the interest, or accumulation, on the sums deposited to the credit of each canse or matter. In every draft upon the Trust Company by the county treasurer, for moneys deposited with the said company, or for the interest or accumulation on such moneys, the title of the cause or matter on account of which the draft is made, and the date of the order authorizing such draft, shall be stated; and the draft shall be made payable to the order of the person or persons entitled to the money, or of his or their attorney, who is named in the order of the court authorizing such draft. Aud to authorize the payee or indorsee of such draft to receive the money thereon from the Trust Company, the same shall be accompanied by a certified copy of the order of the court authorizing such draft, countersigned by the justice by whom such order was made. But where periodical payments are directed to be made out of a fund deposited with such company, the delivery to the secre- tary of the company of one copy of the order authorizing the several paytnents, shall be sufficient to authorize the payment of subsequent drafts in pursuance of such order. Rure LXXXIV. (75.) [80.]—LHow gross sum, in payment of life estates, to be ascertained. Whenever a party, as a tenant for life, or by the courtesy, or in dower, is entitled to the annual interest or income of any sum paid into court and invested in permanent securities, such party shall be charged with the expense of investing such sum, and of receiving and paying over the interest or income thereof ; but if such party is willing, and consents to accept a gross sum in lieu of such annual interest or income for life, the same shall be estimated according to the then value of an annuity of six RULES OF PRACTICE. 211 per cent on the principal sum, during the probable life of such person, according to the Portsmouth or Northampton tables. Rore LXXXV. (63.) [67.]— Commissioners’ fees on executing commission of lunacy— When committee may pay taxed costs. On the execution of a commission of lunacy, etc., the com- missioners, for every day they are necessarily employed in hearing the testimony and taking the inquisition, shall be en- titled to the same allowance which is made by law to commis- sioners to make partition or admeasure dower. And for draw- ing the inquisition and process and serving notices, when no attorney is employed, they shall have the fees to which an attorney would be entitled for the same services. The com- mittee of a lunatic, idiot, or drunkard, may pay to the peti- tioner on whose application the commission was issued, or to his attorney, the costs and expenses of the application, and of the subsequent proceedings thereon, including the appoint- ment of the committee, and without an order of the court for the payment thereof, when the bill of such costs and expenses has been duly taxed and filed with the clerk, in whose office the appointment of such committee is entered; provided the whole amount of such costs and expenses does not exceed fifty dollars. But where the.costs and expenses exceed fifty dollars, the committee shall not be at liberty to pay the same out of the estate in his hands, without a special order of the court direct- ing such payment. Rute LXXXVI. (64 am’d.) [68.]—Action for divorce or separation— Who may be appointed referee— What averments in complaint for divorce. When an action is brought to obtain a divorce or separation, or to declare a marriage contract void, if the defendant fail to answer the complaint, or if the facts charged in the complaint are not denied in the answer, the court, to which application is made for judgment, shall order a reference, to take proof of all the material facts charged in the complaint. The court shall, in no case, order the reference to a referee nominated by either party. And, when the action is for a divorce on the ground of adultery, unless it be averred in the complaint that the adul- 212 RULES OF PRACTICE. tery charged was committed without the consent, connivance, privity, or procurement of the plaintiff—that five years lad not elapsed since the discovery of the fact that such adultery had been committed—and that the plaintiff has not voluntarily co- habited with the defendant since such discovery—and also where, at the time of the offence charged, the defendant was living in adulterous intercourse with the person with whom the offence is alleged to have been committed—that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff; and the complaint containing such averments be verified by the oath of the plain- tiff, in the manner prescribed by the one hundred and fifty- seventh section of the Code, judgment shall not be rendered for the relief demanded, until the plaintifi’s affidavit be produced, stating the above facts. Rute LXXXVIL. (65.) [69.]—Order of reference, how ob- tained in suit to annul marriage. To obtain an order of reference, if the complaint seeks to annul a marriage on the ground that the party was under the age of legal consent, an affidavit must be produced showing that the parties thereto have not freely cobabited for any time as husband and wife, after the plaintiff had attained the age of consent. If the complaint seeks to annul the marriage, on the ground that the plaintiff’s consent was obtained by force or fraud, the plaintiff must show by affidavit that there has been no voluntary cohabitation between the parties as man and wife ; and, if it seeks to annul a marriage, on the ground that the plaintiff was a lunatic, an affidavit must be produced, showing that the lunacy still continues: or the plaintiff must show by his affidavit, that the parties have not cohabited as husband and wife, after the plaintiff was restored to his reason. Rote LXXXVIII. (66.) (70.]— When plaintiff may be exam- ined on reference. On a reference to take proof of the facts charged in a com- plaint for separation, or limited divorce, the examination of the plaintiff on oath may be taken, as to any cruel or inhuman treatment, alleged in the complaint, which took place, when no witnesses were present who are competent to testify to the facts on such reference. RULES OF PRACTICE. 213 Rote LXXXIX. (67.) [72.]—Defence in action for diworee. The defendant, in the answer, may set up the adultery of the plaintiff, or any other matter which would be a bar to a divorce, separation, or the annulling of a marriage contract; and if an issue is taken thereon, it shall be tried at the same time, and in the same manner, as other issues of fact in the cause. Rorz XC. (68 am’d.) [73.J—How husband may question legi- timacy of children. On a complaint filed by a husband for a divorce, if he wishes to question the legitimacy of any of the children of his wife, the allegation that they are or that he believes them to be illegitimate, shall be distinctly made in the complaint. If a reference is ordered, proofs shall be taken upon the question of legitimacy, as well as upon the other matters stated in the com- plaint ; and if the issue is tried by a jury, an issue on the ques- tion of legitimacy of the children shall be awarded and tried at the same time. Ruts XCI. (70 am’d.) [75.]—Wo sentence of nullity or decree Sor divorce by default—No copy of pleadings or testimony to be furnished except to the party or his counsel—Judgments in actions for divorce not to be entered by consent. No sentence or decree of nullity declaring void a marriage contract, or decree for a divorce, or for a separation or limited divorce, shall be made of course by the default of the defendant ; or in consequence of any neglect to appear at the hearing of the cause, or by consent. And every such cause shall be heard after the trial of the issue, or upon the coming in of the proofs, at a special term of the court; but where no person appears on the part of the defendants, the details of the evidence in adul- tery causes shall not be read in public. but shall be submitted in open court. No officer of this court, with whom the proceed- ings in an adultery cause are filed, or before whom the testimony is taken, nor any clerk of such officer, either before or after the termination of the suit, shall permit a copy of any of the plead- ings or testimony, or of the substance of the details thereof, to be taken by any other person than a party, or the attorney or counsel of a party, who has appeared in the cause, without a special order of the court. No judgment in an action for a divorce shall be entered except upon the special direction of the court. 214 RULES OF PRACTICE. Rore XCII. (76 am’d.) [81.]—Powers and duties of receiver of debtor's estate. Every receiver of the property and effects of the debtor shall, unless restricted by the special order of the court, have general power and authority to sue for and collect all the debts, demands and rents belonging to such debtor, and to compro- mise and settle such as are unsafe and of a doubtful character. He may also sue in the name of a debtor, where it is necessary or proper for him to do so; and he may apply for and obtain an order of course that the tenants of any real estate belonging to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver, and pay their rents to him. He shall also be permitted to make leases, from time to time, as may be necessary, for terms not exceeding one year. And it shall be his duty, without any unreasonable delay, to convert all the personal estate and effects into money; but he shall not sell any real estate of the debtor, without the special order of the court, until after judgment in the cause. He is not to be allowed for the costs of any suit brought by him against an insolvent from whom he is unable to collect his costs, unless such suit is brought by order of the court, or by the consent of all persons interested in the funds in his hands. But he may, by leave of the court, sell such desperate debts, and all other doubtful claims to personal property, at public auction, giving at least ten days’ public notice of the time and place of such sale. Rore XCIII. (89.) [92.]—Practice in actions commenced before 1st July, 1848—In cases not provided for by statute or these rules. All actions depending on the first day of July, 1848, may be conducted according to the rules of the Supreme Court, adopted in July, 1847, so far as the same are applicable. In cases where no provision is made by statute, or by these rules, the proceedings shall be according to the customary practice, as it has heretofore existed in the Court of Chancery and Supreme Court, in cases not provided for by statute, or the written rules of the court. These rules shall take effect on the first day of October, 1858. APPENDIX TO RULE LXXXIY. 215 APPENDIX TO RULE LXXXIV. ANNUITY TABLE. A table corresponding with the Northampton tables referred to in the LXXXITVth Rule, showing the value of an annuity of one dollar, at six per cent., on asingle life, at any age from one year to ninety-four inclusive. No. of years’ No. of years’ No. of years’ No, of years’ purchase the |/ age, | Purchasethe |/ age, | purchase the Age, | Purchase the annuity is annuity is annuity is annuiiy ig worth. worth, worth, worth, Age. 10.107 || 25 | 12.063 || 49 | 9.563 73 | 4.781 11.724 || 26 | 11.992 || 50 | 9.417 7 4.565 12.3848 || 27 | 11.917 || 51 | 9.278 75 | 4.354 12.769 || 28 | 11.841 || 52) 9.129 76 | 4.154 . 12.962 |) 29 | 11.763 || 53 | 8.980 77 | 8.952 18.156 | 30 | 11.682 | 54 | 8.827 78 | 3.742 13.275 || 81 | 11.598 || 55 | 8.670 79 | 3.514 13.337 || 82 | 11.512 || 56 | 8.509 80 | 3.281 13.335 || 83 | 11.423 || 57 | 8.348 81 | 3.156 10 | 13.285 |) 84 | 11.331 || 58 | 8.178 82 | 2.926 11 | 18.212 |) 35 | 11.236 | 59 | 7.999 83 | 2.713 12 | 13.180 || 86 | 11.187 || 60 | 7.820 84 | 2.551 13 | 13.044 || 87 | 11.085 || 61 | 7.637 85 | 2.402 14 | 12.953 || 88 | 10.929 || 62 | 7.449 86 | 2.266 15 | 12.857 || 89 | 10.819 || 63 | 7.253 87 | 2.138 16 | 12.755 || 40 | 10.705 || 64 | 7.052 88 | 2.031 17 | 12.655 | 41 | 10.589 | 65 | 6.841 89 | 1.882 18 | 12.562 || 42 | 10.473 | 66 | 6.625 , | 90 | 1.689 19 | 12.477 | 48 | 10.356 || 67 | 6.405 9L | 1.422 20 | 12.398 | 44 | 10.235 || 68 | 6.179 92 | 1.186 21) 12.829 || 45 | 10.110 || 69 | 5.949 93 806 22 | 12.255 || 46 9.980 || 70 | 5.716 ot 518 23 | 12.200 || 47 9.846 || 71 | 5.479 24 } 12.1382 || 48 9.707 || 72 | 5.241 WamTRDorP whe 216 RULES FOR COMPUTING AN ANNUITY. RULES FOR COMPUTING THE VALUE OF THE LIFE ESTATE OR ANNUITY. Calculate the interest at six per cent for one year, upon the sum to the income of which the person is entitled. Multiply this interest by the number of years’ purchase set opposite the person’s age in the table, and the product is the gross value of the life estate of such person in said sum. EXAMPLES. Suppose a widow’s age is 87; and she is entitled to dower in real estate, $350.75 One-third of this is $116.91. Interest on $116.91, one year at six per cent. (as fixed by Rule LAXXIV.), is $7.01. The number of years’ purchase which an annuity of one dollar is worth, at the age of 87, as appears by the table, is 11 years, and ;235 parts of a year, which, multiplied by $7.01, the income for one year, gives $77.35, and a fraction, as the gross value of her right of dower. Suppose a man whose age is 50, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum, at six per cent., is $540. The number of years’ purchase which an annuity of one dollar is worth, at the age of 50, as per table, is 944% parts of a year, which multiplied by $540, the value of one year, gives $5,085.18 as the gross value of his life estate in the premises, or the proceeds thereof. Norr.—The values in this table are calculated on the supposition that the annuities are payable yearly ; if payable half yearly, one-fifth of a year’s purchase should be added to those values. For the rule to compute the present value of an inchoate or contingent right of dower, vide Jackson v. Edwards, 7 Paige, 408; McKean’s Pr. Int. Tables, 25, § 4; Hendry’s Ann. Tables, 87, prob. 4. Supreme Court, Grenrrat Term. New Yorx, April 14th, 1856. Rules in regard to Moneys awarded to Unknown Owners. 1. Whenever any person shall claim any money awarded to unknown owners on the opening, widening, altering, improving, RULES OF THE SUPREME COURT. alt or laying out of any street, avenue, square, or public place, he shall cause notice of his intention to apply to the court for such moneys, to be published in one of the daily newspapers in this city, at least once a week for four weeks ; and shall serve notice of such intention on the Mayor of the city, and the Counsel to Corporation of the city, at least fourteen days before such appli- cation. The court at special term, or the judge at chambers may hear the application, and may hear the proofs or refer the matter to a referee to hear and examine into the matter, and to report the substance of the proofs, with his opinion. The appli- cant shall furnish to the court or referee an abstract of title for at least twenty years prior to the award, and carried down to the time of the examination; and also produce the originals or verified copies of all deeds and wills referred to in the abstract, unless the court or judge, on proof that the same cannot be furnished, shall authorize other proof to be received in place of such originals or copies; and shall also furnish a certificate of search for mortgages and conveyances against the persons named in the abstract of title, made by a searcher in the Re- gister’s office, or by some other person experienced in making such searches, and shall furnish his own affidavit, or that of his agent, or of some other person likely to be acquainted with the truth, to the effect that, according to his best knowledge, infor- mation, and belief, there were no mortgages, conveyances, judgments, or liens of any kind on the property to which the award was made, at the time of the award, and of the payment of the money to the officer then holding the money for the un- known owners, except such liens (if any) as may be specially mentioned in such affidavit. The maps of awards and assess- ments, or extracts from them, so far as relates to the lots in question, shall also be produced to the court, or judge, or referee. Whenever any money shall be paid to the clerk or to the cham- berlain or county treasurer, for unknown owners, such oflicer shall enter in his books of account a memorandum showing the title of the matter in which payment is made, and the number of the lot or lots on the map of awards or assessments to which the award is made. 2. No application will be heard in regard to the disposition of moneys awarded to unknown owners, until such moneys shall have been actually paid. 3. Every petition for the payment of such moneys shall be 218 RULES OF THE SUPREME COURT. verified under oath ; shall set forth a statement of the title and the grounds of the claim; and shall also state the names and residences of all persons, if any, whom the petitioner knows, or has been informed, or believes, to be claimants of such moneys or of any part thereof, or in any manner or in any degree interested or claiming to be interested therein. 4, Ten counsellors at law, to be named by the presiding jus- tice, with the concurrence of one or more of the other judges, shall be appointed referees, to one of whom such application shall be referred; and no application shall be referred except to one of the persons so to be named. 5. The referee, before proceeding in the reference, shall require proof of the service of notice of the reference upon all persons named in the petition as interested, or as claimants, and if upon the reference, the referee shall consider that other persons should be notified, he shall require notices to be served upon them. If any such persons are infants, guardians must be appointed as in ordinary actions; and if any are absent, non- resident, or cannot be found, special application must be made to the court for direction in the premises. 6. The referee shall require a full and complete abstract of the title to be furnished to him, and which he shall verify for such length of time as he may deem advisable, together with full, complete, and original returns of searches for mortgages, conveyances, and all other liens whatever, affecting the title of the property, and such affidavits also as he may deem proper. And he shall annex to and return with his report, all such papers, together with the proofs of service of notices upon adverse claimants, and all testimony taken before him. 7. Notice of hearing, upon the report of the referee, shall be served upon all persons who appeared upon the reference, and proof shall be furnished to the court of the service of such notice. [The foregoing rules as to ‘unknown owners” were not made at a convocation of the judges as provided in section four hundred and seventy of the Code, and are not therefore “ general rules.” (In the Matter of the Bowery, 19 Barb. 591.) Nor were they published as required by Laws of 1847, ch. 470. Nor were they con- curred in or recognized by all the judges of the first district. ] "RULES OF THE SUPREME COURT. 219 Supreme Covrt, First Disrrict. Rules as to Terms and Calendars. Special Terms are held every Saturday for special motions. The Saturday special-motion terms will be held, when the special terms are not in session, by the judge assigned to sit in cham- bers during the month. The judge sitting at chambers will, at the same time, hold special term for any ex-parte business, and for such litigated business as he shall expressly permit. All issues of fact already joined, and triable in the city of New York, will be noticed to the clerk, and be put on the calendar for the ensuing January circuit. During the first week of that circuit, motions to correct the calendar may be made. After that week, the calendar will remain unchanged, and continue the calendar for every successive circuit, until all the causes on it shall be tried—each circuit beginning on the calen- dar where the immediately preceding circuit left off. Fifteen causes a day, and no more, will be called at general and special terms, and before each judge at circuit, unless other- wise specially ordered. No cause will be set down for a particular day at a circuit, unless sworn off when called, on account of the absence of a witness, and on pity ment of costs. If the trial of a cause shall not be moved by either party when called in its order on the circuit calendar, it will go to the foot of the calendar, and not be called again until it shall be reached in that place. . All new issues will be noticed for the first day of the next circuit, after the same shall be joined, and be put in their order at the foot of the permanent calendar. After the first week of each circuit (during which motions to correct the calendar may be made), the calendar of the causes which may have gone down at the previous circuit, and the new issues, will be entered as part and in continuation of the permanent calendar; and so on, from court to court, until the end of the year. These regulations do not affect the question of noticing the 220 RULES OF THE SUPREME COURT. causes for trial to the opposite party, from court to court, as the statute may require. Supreme Courr—General Term. Before Ton. Judges Roosnvetr, CLerKe, and SurHeRLAND. Ordered—W henever a consent is filed with the clerk of this court for the substitution of an attorney or the discoutinuance of an action, the clerk may enter in the minutes of the court the substitution of the attorney or the discontinuance of the action, without any order of the judge therefor. After the October term of 1859, all motions at special term at chambers must be noticed for the first and third Mondays in each term, and for no other time. Such motions will be heard in order on those and the succeeding days, unless otherwise ordered by the judge holding the term, until disposed of. Mo- tions must be noticed for twelve o'clock, noon. Z%-parte busi- ness will be attended to between ten and twelve o’clock each day. SproraLn Crrovrr CaLenpaR. “ At any circuit, until further order, any causes belonging to either of the two following classes may be placed on a special ctrcurt calendar, unless the trial is likely to occupy more than one hour. Ist. Where the action is on gontract, and the answer merely denies the allegations in the complaint, without setting up any new matter. 2d. Where the action is on contract, and new matter is set up in the answer, and there shall be reason to believe that the defence is made only for the purposes of delay. To entitle the cause to be placed on such calendar, the plain- tiff’s attorney must give notice four days before any Monday in the circuit, that he will move on such Monday to have the cause placed on such calendar; and the motion will be heard on such Monday, and, if granted, the cause may be heard on the follow- ing Friday. RULES OF THE SUPREME COURT. 221 If the motion be founded on the belief that the defence is for delay, affidavits must be served at the time of notice. The plaintiff's attorney must also deliver to the clerk of the circuit a like notice, also four days before such Friday, con- taining also the number of the cause on the general circuit calendar. , The same motion may be made, on any day, before the judge at chambers, on notice of four days. If the cause shall actually oceupy more than one hour on the trial, the trial may be suspended at the discretion of the court, and the cause be put down at the foot of the calendar. When a cause, placed upon a calendar of a court of record in the city of New York, chall be regularly called and passed, without a postponement by the court for good cause shown, it shall thenceforth take its place, on the same or any future calendar, as if the date of the issue were the time when it was thus passed. (Laws of 1849, p. 708, s. 16). In the case mentioned in the last section, it shall be the duty of the party placing a cause upon the calendar for a subsequent term, to state the date of the issue, as above prescribed ; and if he omit to do so, by reason whereof the issue retains its priority on the calendar, the court, on the application of the adverse party, or of its own motion, may strike the cause from the calendar. (ld. s. 17.) Supreme Covrr—New Yorx Crry. Spectan Term, March 27, 1857. No order will be entered upon a litigated motion, except on consent, or at least one day’s notice to the opposite. party. ADDITIONAL RULES. 1. Hereafter no causes will be reserved generally, after they are placed on the day-calendar. 2. No cause on the day-calendar will be passed, except where the counsel is actually engaged in the trial of a cause in another 222 RULES OF THE SUPREME COURT. court in the city, or in the court of appeals; and then only until such an engagement is discharged, or upon proof of the absence of a witness duly subpcenaed. 3. The calendar will only be called regularly in its order. 4. Causes will only be put off for the term on appellant showing a good excuse for not proceeding to trial, when reached on the day calendar. 5. Set-down causes to be placed at foot of the day-calendar. 6. Parties by consent may apply to the clerk and have any cause reserved generally before it is placed on the day-calendar, and may, on filing with the clerk a like consent, have the same placed on the day-calendar. 7. Hereafter no note of issue for the general term will be received or filed by the clerk, unless it shall appear distinctly on the face thereof, whether the same belongs to the class of enumerated or non-enumerated motions. Supreme Court, Seconp Disrricr. Lules adopted Jan. 13, 1852. The following rules, to be observed in the Second Judicial District, are adopted, in regard to the order of business and allowances to be made under section three hundred and eight of the Code of Procedure : 1. Issues of law shall be first tried and decided at a special term. 2. At the general terms of thie court, ten causes only will be called in each successive day during the term. They will be called and heard in the order in which they stand upon the calendar, and no cause will be reserved, or set down for hearing : out of the order herein prescribed. 8. Two hours and no more is given to the counsel on each: side for the argument of causes at the general and special terms, unless the court, upon special application at the commencement of the argument, shall otherwise direct. 4. In actions tried at the circuit or the special term, applica- tions for additional allowances, under section 308 of the Code, must be made to the justice who heard the cause, unless he is out of the State, or unable to attend to business from ill health, RULES OF THE SUPREME COURT. 223 or out of office. And in actions heard before referees, the application must be made in the judicial district where the action is pending. Such allowances will be made whenever there has been a trial, and the parties have appeared and liti- gated the questions in controversy. 5. No allowance shall exceed the sum of $100, unless due notice of the time and place of making application therefor be first given to the adverse party, nor unless it shall appear to the justice who shall hear such application, that the litigation in respect to which the allowance is claimed, has been unrea- sonably or unfairly conducted by the party to be charged with such allowance. 6. In actions for the foreclosure of mortgages, where the defendants do not exceed five in number, the allowance shall not, when added to the costs given to the plaintiff under section three hundred and seven of the Code, exceed the sum of $40. And in cases where there are more than five defendants, such allowance shall not, when added to the costs given to the plaintiff under section three hundred and seven of the Code, exceed in amount the costs heretofore given to the solicitor for the complainant under the first section of the act of the 25th of May, 1841, to amend the act to reduce the expenses of foreclos- ing mortgages in the court of chancery. 7. A printed copy of these rules shall be annexed to every calendar of causes hereafter made up for trial at the circuit, and for hearing and argument at the general and special terms of the court, by the clerks who furnish such calendars. These rules are modified by the amendment to the Code in 1857. Lule adopted 20th Feb’y, 1857. Ordered—That orders to show cause on non-enumerated motions will not hereafter be granted, except upon aftidavit, showing the necessity of making the time of notice shorter than is required by the Code. ‘The attention of the profession is particularly directed to this rule. It will be strictly enforced throughout the district. 224 RULES OF THE SUPREME COURT. Orprr or Business ror nuarina Non-encomeratep Mortons at Sprcrau Term, Krnes Counry. 1. Ex parte motions. 2. Motions to modify, and discharge provisional remedies. 3 Applications for judgment, and other motions on notice in foreclosure and partition cases. 4. Applications for judgment, on notice in other cases for want of an answer, or on account of frivolousness of demurrer, answer or reply. 5. Motions in proceedings against persons brought up by attachment. 6. Motions for commissions and discovery of books and papers, and for the examination of parties. 7. Motions to change the place of trials. 8. Motious to open defaults. 9. Motions to strike out sham and irrelevant pleadings, to strike out irrelevant or redundant matters, and to make a plead- ing definite and certain by amendment. 10. Motions for allowance of injunction. 11. Other motions. SUPERIOR COURT OF THE CITY OF NEW YORK. ; RULES.—Apoptep January 18, 1851. Roz I.—The general and special terms of the court will be held on the first Mondays of January, February, March, April, May, June, October, November, and December in each year, and will continue until the last Saturday of such months re- spectively. Rote IL.—At the general terms, the court will hear appeals, enumerated motions, and causes transferred from the Supreme Court, pursuant to the act of 1848, which have not heretofore been heard. The general term will open at eleven o’clock, a.m. Roz Ul.—The special term will consist of a trial term, held by two justices, severally, aud a term held by one justice, which will be designated the special term. For the trial term the clerk will prepare a calendar, containing the issues of fact to be tried by a jury. Such calendar will be called and regu- lated by the justice holding the principal trial court. The other justice at the trial term will aid him in the side court, as heretofore practised. The trial term will open at ten o'clock, a.m. Rute IV.—For the special term the clerk will prepare a calendar, containing first, the issues of law noticed for argument at such term; and second all issues of fact noticed for trial, which are designated on the notes of issues as causes not requir- ing to be tried by a jury, by section two hundred and fifty three of the Code of Procedure, or in which a jury trial is waived. The special term will open at ten o’clock, a.m., and 15 226 RULES OF THE SUPERIOR COURT. the first hour will be devoted to the giving of judgment in un- defended causes, and the hearing of litigated non-enumerated motions. The calendar will be taken up each day at eleven o’clock, a.m. Rote V. (as amended October, 1858).—Non-enumerated mo- tions will be heard by one the justices at the special-term room and the chambers, daily at 10 a.m., throughout the year— except on New Year’s day, Good Friday, the fourth of July, the day of the annual election, Thanksgiving-day, and Christmas. For such motions, and for the purpose of hearing any ex parte applications, either in an action or otherwise, which are required by law to be made in open court, and for the purpose of mak- ing all necessary orders thereon, and giving judgment in causes under chapter first, of title eight, of the second part of the Code, a special term will be held every day during the year, at ten o'clock a.m., except on the days above named; and as many special terms for such purposes may be held at the same time as there shall be justices of the court attending to hold the same. Rois VI.—The justices designated to hold the general terms will attend at chambers daily, during their respective terms, from ten to eleven a.m., to dispose of ex parte applications, and of non-enumerated motions in which all the parties are present or represented. All applications for ex parte orders, and for judgments upon failure to answer, during the general terms, must be made before eleven o’clock, a.m. Rote VII. (as am’d. October, 1858).—Appeals from all orders made on non-enumerated motions, will be heard on each Satur- day during the general terms, at eleven o’clock, a.m. Such appeals may be noticed for that time. Appeals from orders sustaining or overruling demurrers will also be then heard, and will be heard in their order on the general term calendar. Rouse VIII.—A party intending to move toset aside a verdict as against the evidence, must obtain from the justice who tried the cause, an order staying the proceedings for that purpose. Such a motion will not be entertained unless the stay of proceedings be obtained and served within four days after the entry of the judgment by the clerk, or before the insertion of the costs by the clerk in the entry of the judgment. The court, by order, RULES OF THE SUPERIOR COURT. 227 may permit the judgment to be entered and collected, without prejudice to a motion to set aside the verdict; and may impose such terms on each party in Trae thereof, as to the court may seem meet. Roe IX. The party moving to set aside a verdict as against evidence, must prepare a case, and procure the same to be set- ° tled in the usual manner. If the party making the case intends to appeal from the judgment, when entered on the verdict, be- cause of errors of law alleged to have occurred at the trial, or in the direction for judgment, he must present such alleged errors in the case made for setting aside the verdict. If the errors com- plained of were excepted to in due season, when they occurred, the case may be turned into a bill of exceptions, as of course, in the event of the application to set aside the verdict being denied. Rorze X.—The motion to set aside the verdict on the case when settled, must be brought on, on the usual notice, at the special term. No alleged errors of law, presented by such case, will be considered at the special term, unless by the express directions of the justice before whom the cause was tried. Rote XI.—If either party appeal from an order of a justice, granting or refusing a new trial on such case, the appeal may be brought on before the general term, on the usual notice. If the order refuse a new trial, and there be alleged errors of law contained in the case on which the motion was made, the appeal from the judgment in respect to such errors of law must be brought on and argued at the same time with the appeal from the order refusing a new trial, at the special term. Rute XII.—The costs on an appeal to the general term from a judgment, as well as from an order granting or refusing a motion to set aside a verdict as against evidence, when allowed by the court, shall be the costs prescribed in subdivision six of section three hundred and seven of the amended Code, together with the expenses specified in section three hundred and eleven. But where an appeal from such order is heard at the same time with an appeal from the judgment in the cause, the court may, in its discretion, give costs on the former appeal, as if it were a motion at special term. Rote XIII.—The party who moves for a re-hearing, or review 228 RULES OF THE SUPERIOR COURT. of a cause or matter decided by a referee or referees, shall pro- cure and furnish to the court a special report of the referee or referees, setting forth distinctly the facts found on the reference, and his or their decision upon the points of law arising in the cause, Rutz XIV.—The foregoing rules shall take effect immediately, and all existing rules inconsistent with the same are hereby repealed. ADDITIONAL RULE.—Anvorrep Decemper, 1851, Makce 6, 1852. Ordered,—That all notes of issue hereafter filed with the clerk, in causes which have once been on the calendar for trial or argument, shall specify the number of the cause on the last preceding calendar on which it was entered, and the date on such calendar. And every note of issue shall state whether the cause is to be placed on the calendar of the general term, the special term, or the trial term. No cause shall be entered by the clerk on either calendar, unless the note of issue conforms to this rule. ADDITIONAL RULE.—Apoprep Marcu 19, 1853. Ordered,—That all notes of issue hereafter, for the general, special and trial terms of this court, must be filed with the clerk eight days before the commencement of the first day of the succeeding term. ADDITIONAL RULE.—Apoprep Marca 10, 1855. Ordered,—That when a cause is placed on a day-calendar for trial, the plaintiff may, at the opening of the court each day, take an inquest therein, in any case the court will consent to try without the intervention of a jury, though an affidavit of merits may have been filed, unless the defendant shall appear and state that a defence is intended to be made. RULES OF THE SUPERIOR COURT. 229 ADDITIONAL RULE.— Art. 5.—Appearance by Attorney. Every person of full age and sound mind may appear by attorney, in every action or plea by or against him, in any court ; or may appear and conduct his case in person. (3 2. 8. (5th ed.) 467, § 20; [2 dd. 276.}) But no person may appear on the record in person, whilst he has an attorney in the cause. (Zdid.) A party appearing in person is entitled to the same costs as if he employed an attorney. (Zdid. § 22.) A married woman cannot appoint an attorney, but must appear in person. (Bergman v. Howell, 3 Abb. 329; Phillips v. Burr, 4 Duer, 113.) Art. 6.—Powers of Courts of Record. In addition to the powers conferred on them respectively, courts of record may “1. Issue process of subpcena requiring the attendance of any witness residing or being in any part of this State, to testify in any matter or cause pending in such court ; “9, Administer oaths to witnesses in any such matter or cause, and in all other cases in which it may be necessary in the exercise of the powers and duties of such courts ; “3. Devise and make such new writs and forms of proceed- ings as may be necessary to carry into effect the powers and jurisdiction possessed by them.” (3 &. S. (5th ed.) 468, § 1; [2 id. 2'76.]) It may be doubted whether this provision includes add courts of record, or only those named in the original Revised Sta- tutes, viz., Chancery, Supreme Court, Common Pleas, and Mayor’s Courts. As most of these powers are expressly con- ferred on the other courts, in the statutes creating them, the question may be of little importance. Art. 7.—Discontinuances and Irregularities. No process or proceeding is to be discontinued in “any of the said courts” (see last article), by reason of a vacancy in the office of any or all the judges, but their successors may hear the 246 THE COURTS OF RECORD. Irregularities, Contempt of court. same, as if it had commenced before them. (3 2. S. (5th ed.) 469, § 25 [2 dd. 277.]) Nor by reason of any court of record failing to meet at the time appointed, but such process or proceeding shall be return- able or continued at: the next term, upon the same notice, if any, that was required at the term which failed. (Lbid. § 3.) Adjournments.|—No omission to adjourn the court from day to day, previous to the final adjournment, vitiates any proceed- ing in any court of record. (did. § 4.) “The adjournment of any court before the expiration of its term, shall not affect the teste, return or service of any writs issued prior or subsequent to such adjournment.” (dad. § 5.) Art. 8.—Contempt of Court. Every court of record has power to punish as for a criminal contempt, the following acts, and no others: “1. Disorderly, contemptuous, or insolent behavior, commit- ted during its sitting, in immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. “2. Any breach of the peace, noise, or other disturbance, directly tending to interrupt its proceedings. “3. Willful disobedience of any process or order, lawfully issued or made by it. ; “4, Resistance willfully offered by any person to the law- ful order or process of the court. “5. The contumacious and unlawful refusal of any person to be sworn as a witness, and when so sworn, the like refusal to answer any legal and proper interrogatory. “6. The publication of a false or grossly inaccurate report of its proceedings. “ But no court can punish as a contempt, the publication of true, full, and fair reports of any trial, argument, proceeding, or decision, had in such court.” (8 R. &. (5th ed.) 469, § 8; [2 2d. 278.]) THE COURTS OF RECORD. 247 Punishment of contempt. The Court of Appeals. Such contempt may be punished by a fine of $250, and imprisonment for 30 days, with an additional term of 30 days in case the fine is unpaid; or by a smaller sum or shorter term, at the discretion of the court. (Jdzd. § 9.) Courts of record have also power to punish, as for contempt, any neglect or violation of duty, by which the rights of a suitor may be prejudiced, in certain cases specified by statute. (See 38 R. S. (5th ed.) 849 ; [2 ed. 534.)) For illustrations of such cases, see People v. Compton, 1 Duer, 512, affirmed sub nom. People v. Sturtevant, 5 Seld. 263 (overruling in effect Milhau v. Sharp, 15 Barb. 224); Livingston v. Fitzgerald, 2 Barb. 396; Coddington v. Webb, 4 Sand. 639. Cuarter II. THE COURT OF APPEALS. ArTIcLE 1. Organization of the court. 2. Officers of the court. 8. Its jurisdiction. 4. Its powers. 5. Judgment. 6. Terms. . Rules and Calendars. Art. 1.—Organization of the Court. The Court of Appeals is the highest court in the State except the court for the trial of impeachments, whose jurisdic- tion is of course limited, and which has met but once since the Constitution of 1846 was adopted, viz., in 1853. The Constitution provides that this court shall consist of eight judges; four chosen by the people for eight years, and four to be taken from those justices of the Supreme Court having the shortest time to serve. (Const. Art. vi. § 2.) By the judiciary act of 1847, the Supreme Court justices of the 1st, 8d, 5th and 7th districts, having the shortest time to serve, sit in the Court of Appeals for 1860, and the justices 248 THE COURT OF APPEALS. Chief judge. When judges should not sit. Officers. of the 2d, 4th, 6th and 8th districts sit in 1861, and so on, for every alternate year. (1 R. S. (5th ed.) 887, § 5; Laws 1847, ch, 280.) Chief Judge.|—The judge having the shortest time to serve, is the chief judge of the court. (1 2. 8. (5th ed.) 386; Laws 1847, ch. 280, § 5.) Quorum.J—Six judges constitute aquorum. (3 Jz. S. (5th ed.) 260; Laws 1847, ch. 280, § 6. Held constitutional, Oakley v. Aspinwall, 3'Coms. 569.) When a Judge should not sit.]—Judges of the Court of Appeals should take part indeciding appeals from their own decisions in inferior courts. (Péerce v. Delamater, 1 Coms. 17, overruling 8 &.S. (5th ed.) 465, § 3, [2 id. 275.]) But the rules of interest, consanguinity, and affinity, apply in all respects to judges of this court. (Oakley v. Aspinwall, 3 Coms. 547. See ante, p. 241.) Arr. 2.— Officers of the Court. Clerk.|—The clerk of this court is elected by the people, for a term of three years. He is ew-oficto clerk of the Supreme Court. His office must be kept at Albany. (Const. Art. 6, § 19.) The clerk appoints a deputy, who performs the duties of his office in his absence. (8 2. S. (5th ed.) 409; Laws 1847, ch. QTT, § 12.) eporter.|—An officer, called “The State Reporter,” is appointed for three years, by the Governor, Lieut.-Governor, and Attorney-General. (3 &.S. (5th ed.) 262; Laws 1848, ch. 294.) The decisions of this’ court are, of course, the authoritative exposition of law in the State. The reporters, thus far, have been Messrs. G. F. Comstock (Coms.), H. R. Selden (Seld.), F. Kernan (Kern.), and E. P. Smith (N. Y.) These reports are now published under the title of “New York Reports.” THE COURT OF APPEALS. 249 From what courts appeals lie. In what cases. Art. 3.—Jurisdiction of the Court. Courts from which appeal lies.|—This court has “ exclusive jurisdiction to review upon appeal every actwal determina- tion” made at a general term by 1. The Supreme Court. 2. The Superior Court of the city of New York. 3. The Court of Common Pleas for the city and county of New York. 4. The Superior Court of the city of Buffalo. (Ante, p. 7, § 11.) Appeals to the Court of Appeals are not allowed “in an action originally commenced 1. In a court of a justice of the peace, or 2. In a justice’s court of any of the cities of this State, or 3. In the Marine Court of the city of New York, or 4. In an assistant justice’s court of that city, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered.” (Ante, p. 8, § 11.) a “The foregoing prohibition shall not extend to actions discon- tinued before a justice of the peace, and prosecuted in another court, pursuant to sections 60 and 68 of this Code.” (Ante, p. 8, § 11) All cases pending in the late court for the correction of errors on the first of July, 1847, were transferred to this court by the Constitution. (Const. Art. 6, § 25; Laws 1847, ch. 280, § 12.) In what cases.|—The Court of Appeals has jurisdiction over appeals in the following cases, and no other: I. (1.) In a judgment in an action commenced therein, or brought there from another court; (2.) And upon the appeal from such judgment to review any intermediate order involving the merits, and necessarily affecting the judgment. II. In an order affecting a substantial right, made in such action (1.) When such order in effect determines the action, and prevents a judgment from which an appeal might be taken. 250 THE COURT OF APPEALS. Jurisdiction. Powers. Judgment. (2.) And when such order grants a new trial ; (3.) But no appeal to the Court of Appeals, from an order granting a new trial, shall be effectual for any pur- pose, unless the notice of appeal contain an assent on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. (4.) Upon every appeal from an order granting a new trial, if the Court of Appeals shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant ; (5.) And after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages, or other proceedings to render the judg- ment effectual, may be there had, in cases where such subsequent proceedings are requisite. III. In a final order affecting a substantial right made (1.) In aspecial proceeding, or (2.) Upon a summary application, in an action after judg- ment.” (Ante, p. 7, 8, § 11.) Art. 4.—Powers of the Court. “The Court of Appeals may reverse, affirm, or modify, the judgment or order appealed from, in whole or in part, and as to any or all of the parties.” (Ante, p. 8, § 12.) “ Tts judgment shall be remitted to the court below, to be en- forced according to law.” (Zdzd.) Art. 5.—Judgment. “The concurrence of five judges is necessary to pronounce a judgment.” (Ante, p. 8, § 14.) “Tf five do not concur the case must be reheard.” (Zdid.) “ But’ no more than two rehearings shall be had, and if, on the second rehearing, five judges do not concur, the judgment shall be affirmed.” (Jdid.) An affirmance under this section, for want of the concurrence of five judges, does not settle the law for any future case of the same kind. (forse v. Goold, 1 Kern. 285; People v. Mayor THE COURT OF APPEALS. | 251 Decision of motions. Terms. Rules. of New York, 25 Wend. 252; iting v. Bank of U.S, 11 Wheat. 78. But where a judgment is pronounced in open court, before a full bench, without dissent, it cannot be questioned on the ground of any private differences of opinion among the judges. (Mason v. Jones, 8 Coms. 875; and see Oakley v. Aspinwall, ad. 557.) Motions may be decided by a majority of the judges present, six being a quorum. (Oakley v. Aspinwall, 3 Coms. 569.) Art. 6.—TZerms of the Court. There are four terms held every year, on the first Tuesday of January, the fourth Tnesday of March, the third Tuesday of June, and the last Tuesday of September, and continued for as long a period as the public interests may require. (Ante, p. 8, 613, Additional terms shall be appointed and held by the court when the public interest requires it. (Zdzd.) And a term for consultation and decisions only is held in December every year. (See 7 How. 240.) Where held.|—The terms of the court are all held in the capitol, in the city of Albany, except that the court may appoint one term to be held in the city of New York. (Ante, p. 8, § 13.) But the court may meet at any building, and may order the sheriff to appoint rooms and all other necessaries. (Ante, p. 9, §§ 15, 16.) Adjournment.|—Any one judge may adjourn the court. (Ante, p. 9, § 16.) Art. 7.—Rules and Calendars. Eules.j|—The court has power to make rules not inconsistent with the Code. (Ante, p. 160, § 469.) But no such rule is of any force until it has been published once a week for three weeks in the State paper at Albany. (8 R. 8S. (5th ed.) 262; Laws 1847, ch. 470, § 4.) Calendars.|—“ The court may, by general rules, provide what 252 THE COURT OF APPEALS. Calendars, Supreme Court. causes shall have a preference on the calendar.” (Ante, p. 8, § 13.) Criminal causes have a preference, on motion of the people. (Ante, p.172; Rule 13, Court of Appeals.) And civil causes, in which the people are a party, and the attorney-general the attorney of record, have a preference in all courts of this State. (Zaws 1858, ch. 87, § 1.) But such preference will not be had; unless the attorney for the State give notice, at the time of service of notice of trial or argument, of the day on which he shall move the trial or hear- ing of the cause. (L7d.) “Tn case the same shall not be moved by the attorney for the State on such day, the defendant shall have the right to move the trial or argument of the action.” (Zdid.) “‘ And the trial or argument shall not be moved out of its order on any other day than the day specified in such notice, unless the court shall otherwise direct.” (Zdzd.) For other preferred causes, see ante, pp. 173, 174. Second Appeals.|—“ On a second, and each subsequent appeal to this court, the cause shall be placed upon the calen- dar as of the time of filing the return on the first appeal.” (Ante, p. 8, § 13.) Caaprter III. THE SUPREME COURT. ArticLe 1. Organization of the court. 2. Officers. 8. Jurisdiction. 4, Powers of the court. 5. Powers of Judges out of court. 6. Supreme court Commissioners. 4. Circuits, 8. Terms. 9. Rules and Calendars. 10. Appeals. Art. 1.—Organization of the Court. The present Constitution made a vast change in the structure and nature of this court, which, however, in reality brought it THE SUPREME COURT. 253 Organization of the court. Constitutional provisions. back as nearly as might be to the original standard of 1691, in proportion to the number of population and extent of territory of the State. Originally this court consisted of one chief justice and four associate justices, and so remained from 1691 to 1828, when the Constitution of 1821 went into effect, diminishing the whole number of justices to three, but authorizing the legislature to divide the State into circuits, which was done, and eight circuit judges appointed, appeals being taken from them to the Su- preme Court. (Laws 1823, p. 209.) It is somewhat remarkable that this court was originally organized for a temporary period only, and was continued and made permanent by ordinance of the governor and council of the colony, without any proper legislative authority, and that the only real foundation for the existence of the court for 150 years lay in the general consent of the people, so far as can now be ascertained. (See Simith’s History of New York; Graham on Jurisdiction ; 2 Revised Laws, Appendix, p. 11.) The Constitution of 1777 simply recognized the existence of the court, by confining the term of the judges to their attainment of the age of 60 years, and prescribing their duties in some special cases. The Constitution of 1821 referred to it in a similar manner, omitting all definitions of its jurisdiction. The Revised Statutes prescribed that the Supreme Court should possess the powers and exercise the jurisdiction which belonged to the Supreme Court of the colony of New York, with such modifications as were imposed by law. (2 2. S. (1st ed.) 196, § 1; and see “ Jurisdiction,” post, p. 259.) The present Constitution, adopted in 1846, provides that ‘there shall be a Supreme Court, having general jurisdiction in law and equity.” (Const. Art. 6, § 3.) The Supreme Court now consists of thirty-three judges, elected by the people fora term of eight years each. The State is divided into eight judicial districts, of which the city of New York must always be one, each district electing four judges, except New York city, which elects five. (Const. Art. 6, §4; Laws 1852, ch, 374.) As will be seen hereafter, under the head of “ circuits,” these 254 THE SUPREME COURT. Organization of the court. Officers. districts are kept so distinct that there may properly be said to be eight separate Supreme Courts in the State, having tosome extent concurrent jurisdiction. It will be seen by referring to the debates in the Convention, that the disadvantages of this state of things were considered, but that it was on the whole judged better than to have causes in such enormous arrears as was then alleged to be the case. (See Constitutional Debates, p, 482, etc.) In each judicial district, the justice who has the shortest time to serve, not being called to serve in the Court of Appeals, is the presiding justice. (38 2. S. (5th ed.) 887, § 7; Laws 1847, ch. 280.) The justices of this court having the shortest time to serve are required to serve one year in the Court of Appeals—one half of them one year, and the other half the next. (3 &. S. (5th ed.) 887, § 5, Laws 1847, ch. 280.) There are other statutory provisions that do not fall within the scope of this work, as they are only necessary to be com- plied with by justices of the court, and we are not aware that any advantage can be taken at the bar on account of judicial neglect of them. Art. 2.—Officers of the Court. The general duties of officers of this court, in common with similar officers of other courts, are considered elsewhere, so far as isconsistent with the limits imposed upon this work. (See chap. 10.) The officers of this court are 1. The Clerks. 2. The Criers. 3. Reporters. 4, Attorneys and Counsellors, Sheriffs, Coroners, Commissioners of Deeds, and Notaries Public, are to a certain extent officers of this as of all other courts of record. 1. Clerks. The clerk of the Court of Appeals is ew-oficio clerk of the Supreme Court. THE SUPREME COURT. 255 Clerks, Criers. Reporters. Clerks of the various counties are ex-officio clerks of the court for their respective counties. (Const. Art. 6, § 19.) Deputy Clerk.|—Every county clerk must appoint a deputy, who performs his duties in his absence. When the clerk is out of his county, he has no power to do any official act. The deputy must then be resorted to. Office Hours.\—The clerk of the county of New York must keep his office open from 9 a.m. to 4 P.M. All other county clerks, from 9 to 12 a.m. and from 2 to 5 pat. (3 BR. 8 (5th ed.) 475, § 42 [2 id. 285.]) Papers may be filed and business done, out of these hours, but no priority will be gained thereby, e. g., papers filed after time in the evening must stand on record as of nine the next morning, and two or more documents filed before 9 4.m. must be placed on an equal footing, as if filed simultaneously. ( War- dell v. Mason, 10 Wend. 573.) Judgments may not be entered or docketed out of legal office hours. (Ante p. 179; Rule 9, Supreme Court.) 2. Criers. The county judge of each county appoints a crier for all courts of record in such county. (8 2. S. (5th ed.) 479, § 73 ; Laws 1855, ch. 580.) 3. Reporters. The reporter of the court was formerly appointed by the Lieut.-Governor, chancellor and chief justice, but his office ceased on the adoption of the Constitution of 1846. Oliver L. Barbour, Esq., formerly the official chancery reporter, has reported the decisions of the court ever since, with much ability, and has now issued more volumes than any of his official prede- cessors. But it is worthy of note that in the U.S. Circuit Court, it was lately held that regular reporters for publication were guase officers of the court, and should be exempted from jury duty. (Case of A. J. Graham, not reported.) : 256 THE SUPREME COURT. Officers, Attorneys and counsellors, 4. Attorneys and Counsellors. \ Before the adoption of the new Constitution, a period of seven years’ study was an indispensable pre- reunite to admission to practise as an attorney, and three years’ practice further ensued before attaining the degree of counsellor. The Constitution, however, declares that “any male citizen of the age of 21 years, of good moral character, and who pos- sesses the requisite qualifications of learning and ability, shall be entitled to admission to practise in all the courts of this State.” (Const. Art. 6, § 8.) The Legislature, under this provision, conferred power upon the Supreme Court to admit and to regulate attorneys for all the courts. (Laws 1847, ch. 280, § 75.) The court has accordingly provided that candidates for admis- sion shall be examined in open court, on the first Wednesday of the second and fourth general. terms of each judicial district (usually May and November). (Ante, p.176; Rule 1, Supreme Court.) Preliminary Requisites.]}—To entitle an applicant to an examination, he must prove to the court: 1. That he is a citizen of the United States ; 2. That he is 21 years of age; _ 3. That he is a resident of the district in which he applies. These facts may be proved by his own affidavit. He must give a certificate of a reputable counsellor of the court, or some other reputable person known to the court, to show his good moral character. But this certificate is not con- clusive. (Ante, p. 176; Rule 2, Supreme Court.) Exeamination.|—Applicants must sustain a satisfactory exami- nation upon the law of 1. Real and personal property. 9. Wills. 2. Contracts. 10. Bailments. 8. Partnership. 11. Corporations. 4, Negotiable papers. 12. Personal rights. 5. Principal and agent. 13. Domestic relations. 6. Principal and surety. 14. Equity jurisprudence. 7. Insurance. 15. Pleadings and practice. 8. Executors and administrators, 16. Evidence. (Jd¢d.) THE SUPREME COURT, 257 Admission of attorneys. Diplomas of law schools. Applicants from other States must conform to these rules, unless they produce a certificate from a judge of the highest court of original jurisdiction in the State from which they come, to the effect that for three years, immediately preceding, they have practised as attorneys and counsellors in such court, and are in good standing as such. (Zbid.) Oath of ofice.|—Applicants admitted must sign a roll, and subscribe and take the constitutional oath of office. (Ldzd.) It is usual to take a diploma from the clerk, signed by the presiding justice, for which the clerk charges liberally, but this is not a matter of necessity. After being admitted by this court, attorneys are competent to practise in any court of the State, without further license. (Laws 1847, ch. 280, § 75.) Other modes of admission.|—No other court has power to admit any person to practise as an attorney in it. (Latter of Brewer, 3 Wow. 169.) The legislature in 1847 enacted, that “any person of good moral character, although not admitted as an attorney, may manage, prosecute, or defend a suit for any other person, pro- vided he is specially authorized for that purpose by the party for whom he appears, in writing, or by personal nomination in open court.” (Laws 1847, p. 647, ch. 470, § 46.) This provision has been declared unconstitutional by WiLLaRD and Epwarps, J.J., with the concurrence of all the judges of the Supreme Court in the first district. (d/Koan v. Devries, 3 Barb. 196; Bullard v. Van Tassel, 3 How. 402.) If it is constitutional, such special appointment can be made only upon satisfactory evidence to the court of the.good moral character of the appointee, and upon the order of the court duly made thereon. (Roy v. Harley, 1 Duer, 637.) The legislature of 1860 authorized the committees of exami- nation in the law schools of the New York University and Columbia College to grant diplomas for admission to practise as attorneys and counsellors in any court of this State. (Laws 1860, pp. 310, 342; chaps. 187, 202.) These Jaws have recently been held constitutional by the 17 258 THE SUPREME COURT. Attorneys. Their conduct. Change of attorney. court of appeals. (Cooper's case, N. Y. Trans. Nov. 16, 1860; reversing Matter of the graduates of the New York University, 31 Barb. 353.) Regulations for conduct.|—The conduct of attorneys and counsellors is regulated by many decisions of the courts, and by some statutory provisions, which we shall notice very briefly. Deceit or collusion, with intent to deceive the court or any party, is a misdemeanor. (3 RB. S. (5th ed.) 477, § 55 [2 ad. 286.}) Willful delay in prosecuting a suit and false charges are pun- ishable with treble damages. (bid. § 56.) An attorney lending the use of his name to a person not a partner or clerk with him, incurs a penalty of $50. (Lid. § 57.) Purchasing things in action, with intent to sue upon them, is a misdemeanor. (8 &.S. (5th ed.) 478, § 565 [2 id. 288.]) So is the lending money to procure suits. (Zdzd. § 59.) The constitutionality of these laws was sustained in People v. Wallbridge, 6 Cow. 517; 3 Wend. 120. Whether they (so far as champerty and maintenance are concerned), are abolished by the Code, guery. (Barry v. Whit- ney, 1 Code Rep. N. 8. 102.) The courts have certainly the power to revise any arrange- ment made between the attorney and client that savors of fraud or oppression. (Ldzd.) Duties to clients.|—Attorneys are bound to use proper care and judgment in conducting suits. They are also bound to the utmost good faith with their clients, and are not allowed to change sides in a cause, nor to abandon it after commencing in it, (unless their clients persistently refuse to pay their disburse- ments), nor to use information received from a client, to his detriment. They may be compelled on motion to pay over money belonging toa client, and obtained by them in a pro- fessional capacity. (See Grant's Case, 8 Abb. 357 ; People v. Wilson, 5 Johns. 368.) Change of attorney.|—“ An attorney may be changed by consent, or upon cause shown, and upon such terms as shall be just, upon the application of the client; by the order of a THE SUPREME COURT. 259 Attorneys. Jurisdiction. _ Justice of the court, and not otherwise.” (Ante, p. 180; Rule Supreme Court.) Stipulations.]—Stipulations between attorneys and parties are not binding unless in writing. (Ante, p. 180; Lule 18, Supreme Court.) Lien for costs.|—The attorney’s lien for costs is not abolished by the Code. (Rooney v. Second Av. &. R. 18 N. Y. 368.) And he has a lien against all parties having notice, for the amount agreed upon by his client. (Zdid.) The general rules which govern attorneys are so fully and ably laid down in the third edition of Graham’s Practice, that we shall omit them here, and refer our readers to that work for full information. These rules are very little altered by the Code, as will be seen under the head of arrest and bail, and the decisions cited above. Art. 3.—Jurisdiction of the Coure. x Supp. 1. General jurisdiction. 2. Where it has no jurisdiction. . Jurisdiction in special cases. . Equitable jurisdiction. . Appellate jurisdiction. ob oO Susp. 1.--General Jurisdiction. This court has “ general jurisdiction in law and equity.” (Const. Art. 6, § 3.) Its jurisdiction will always be presumed until the contrary appears ; (whereas an inferior court must show jurisdiction affirmatively.) (Bloom v. Burdick, 1 Hill, 139; approved Wright v. Douglass, 10 Barb. 110.) It possesses all the powers and jurisdiction of the old Supreme Court of the colony of New York, with such exceptions and additions as are prescribed by statute. (38 2. S. (5th ed.) 277; [2 2d. 196.]) The jurisdiction of the old Supreme Court was as exten- sive as that of the English courts of King’s Bench, Common Pleas, and Exchequer, extending to all civil and criminal cases. (Ordinance Aprit 3, 1704; Colonial Act, Mov. 11, 1692 ; 2 R. 8. 1818, Appendix, 13.) 260 THE SUPREME COURT. Jurisdiction. Where the court has no jurisdiction. The court has now all the jurisdiction and powers of the late court of chancery, as it existed in 1847. (8 2. S. (5th ed.) 278 ; Laws 1847, ch. 280, § 16.) And having all the powers of both these courts. it may set aside a decree of Chancery, (or, it is presumed, a judgment of the late Supreme Court,) for irregularity or other cause. (Sher- man v. Felt, 2 Coms. 186.) The court has, therefore, complete and original jurisdiction of all actions, real and personal, arising within the State, and of all transitory actions, wherever the cause of action may have arisen. (Grahams Pr. [8d ed.] 310; see however, the excep- tions mentioned below.) Supp. 2.— Where the Supreme Court has no jurisdiction. It has no jurisdiction in a suit to restrain the infringement of a patent. Consent will not give jurisdiction in such case. (Dudley v. Mayhew, 3 Comst. 9.) Nor in any action upon a rizht conferred by a statute, where the statute provides a remedy through other courts, not naming this, although not expressly excluding it. (Lbid.) The United States Congress cannot compel any state court to exercise jurisdiction in any case. (1 Ment’s Com. 402.) This court, like every other state court, has no jurisdiction of suits against ambassadors, consuls, etc., from foreign coun- tries. (Brightly’s U. 8. Digest, 230, 861; LAct 24th Sept. 1789.]) Nor of actions against another State. (/d. 861.) Nor of offences against the United States. (dd. 127, 231.) Nor of cases of admiralty or maritime jurisdiction. (d. 230.) But it has jurisdiction over a question of salvage, under certain circumstances. (Buher v. Hoag, 8 Seld. 563; Cashmere v. De Wolf, 2 Sand. 879; overruling Frith v. Crowell, 5 Barb. 209.) Nor of seizures under the United States revenue laws, except where the common law is competent to give a remedy. (The terms of the act are rather obscure.) (Brightly’s Digest, 230; see comments in 1 Aent’s Com. 372.) It has no jurisdiction in actions against foreign corporations, except in full conformity to the provisions of the statute (here- after noticed, under the head of “ Parties.” Chap. xxi.) (See Cumberland Coal Co. v. Sherman, 8 Abb. 243; 30 Barb. 159.) THE SUPREME COURT. 261 Jurisdiction. Special proceedings. Nor in an action to recover damages for a willful injury to the person, committed in another State, both parties being then citizens of that State. (JZolony v. Dows, 8 Abb. 3263 overrul- ing Walls v. Thomas, 2 Bibb, 458; Smith v. Bull, 17 Wend. 322.) Nor in actions relating to real estate in another State. ( Watts v. Kinney, 6 Hill, 82; Doulson v. Matthews, 4 T. R. 503 ; Liv- ingston v. Jefferson, 1 Brockenb. 203.) Consent cannot confer jurisdiction, where the law gives no cognizance of the case. (Dudley v. Mayhew, 3 Coms. 9.) Subp. 8.—Jurisdiction of the Court in special cases and proceedings. In addition to its general jurisdiction of actions, this court has jurisdiction in a number of cases prescribed by statute, of which a brief account will be given, although this work, relat- ing only to the practice in civil actions, will not give details under this head. This court, then, has jurisdiction, with power to act in a sum- - mary manner in cases proper for the issue of the following writs : Mandamus; Prohibition and consultation ; Habeas corpus ; Certiorari ; Quo warranto ; . Scire facias. It has jurisdiction by statute over the following proceedings : Ad quod damnum ; writ of; Arbitrations ; Assignments by prisoners ; Attachments against certain absent debtors ; Corporations ; elections in ; Deceased persons; claims against ; Dower ; admeasurement of ; Forfeitures to the State ; Removal of inferior judges and clerks ; Ships and vessels ; proceedings against. @ Se oo bo SOO Ee Ge HS 09 RO me Mandamus.|—This writ is of an extremely powerful nature, 262 THE SUPREME COURT. Jurisdiction. Mandamus. and is one of the most important prerogatives of this court, which it possesses exclusively, deriving it from the laws and ordinances before referred to, giving it the powers of the King’s Bench in England. The court has power by means of this writ to compel the per- formance of any duties devolved by law upon any public officer, or a corporation or its officers, or a private individual acting in a quasi public character. Thus, an inferior court may be compelled to try a cause or to decide it, but cannot be compelled to render judgment according to the views of the Supreme Court, or to revise judg- ment when rendered. (People v. Judges of Dutchess C. P. 20 Wend. 659; Judges Oneida C. P. v. The People, 18 zd. 92, [citing 4 Bacon’s Abr. 510]; Griffith v. Cochrane, 5 Binney, 103 ; County Ct. of Warren v. Daniel, 2 Bibb, 573; Life & Fire Ins. Co. of N. ¥.v. Adams, 9 Peters, 602, 605; 11 Curtis, 484; U.S. v. Lawrence, 1 Curtis, 84; 3 Dallas, 53; The Hing v. Justices of Monmouthshire, 7 Dow]. & Ryl. 339; and many other cases.) So a board of supervisors can be compelled to andit a claim against the county. (Boyce v. Supervisors of Cayuga, 20 Barb, 294; People v. Supervisors of Columbia, 10 Wend. 263.) But not to allow a specific sum on a claim in the nature of quantum merut. (full v. Supervisors of Oneida, 19 Johns. 263; Walson v. Supervisors of Albany, 12 Johns. 415; People v. Supervisors of NV. ¥.1 Will, 867.) And in general the writ will be granted to enforce ministerial duties, but not to control judicial action, or coerce the lawful discretion of any officer. (See cases above cited.) It is a general rule, that mandamus will lie whenever there is a specific duty imposed, and no other remedy given for its enforcement. (See Mex v. Wyndham, 1 Cowp. 878; Rew v. Nottingham Waterworks, 6 Ad. & El. 870; Napier v. Poe, 12 Ga. 170; He-parte Nelson, 1 Cow. 423 ; Hull v. Supervisors of Oneida, 19 Johns. 262; The King v. Archbishop of Canter- bury, 15 East, 186; Rea v. Barker, 3 Burr. 1267.) . But this rule is subject to numerous exceptions, and, indeed, is denied to be a rule at all. (People v. Judges of Dutchess C. P., 20 Wend. 662; Judges Oneida C. P. v. The People, 18 THE SUPREME COURT. 263 Jurisdiction. Prohibition. Certiorari. id. 97; see Wélson v. Supervisors of Albany, 12 Johns. 414; Rex v. Justices of Wilts, 2 Chitty, 259.) It is a rule of much broader application, and generally stated as being unqualified, that a mandamus cannot be granted where any other remedy exists. (People v. Stevens, 5 Hill, 629; People v. Judges of Dutchess C. P. 20 Wend. 662; see cases collected in Angell & Ames on Corporations, [2d ed.] 577 ; and 4 Bacon’s Abr. 506. They are very numerous.) A state court cannot issue a mandamus to an officer of the United States. (McClung v. Silliman, 5 Curtis, 184; 6 Wheaton, 598.) The statutory provisions on this subject are contained in 3 R. 8. (5th ed.) 898 ; [2 7d. 586.] Prohibiteon.|—This court can restrain inferior courts from taking cognizance of matters of which they have not jurisdic- tion, or proceeding judicially in them. (Quimbo Appo v. The People, 20 N. Y. 540; People v. Gen’l Sessions of N. ¥.,3 Barb. 146; Zx-parte Brandlacht, 2 Hill, 368 ; People v. Tomp- kins Sessions, 19 Wend. 154; Grant v. Gould, 2 Hen. Blacks. 69, 100.) If the writ of prohibition be denied, a writ of consultation, directing the court below to proceed, is awarded. (3 2.8. (5th ed.) 899; [2 dd. 588.}) Habeas Corpus.|—This court, its justices, and any officers authorized to perform the duties of its justices out of court, have jurisdiction and power to inquire into the cause of the impri- sonment or detention of any person, in the manner prescribed by law. (See 3 &. S. (5th ed.) ; 883, [2 2d. 563.]) Certiorari.|—This writ is also one of the prerogatives of the court, and is a substitute, in the discretion of the court, for the writ of habeas corpus. (See 3 RB. S. (5th ed.) 883, [2 id. 563.]) This writ is also extensively used by way of appeal, and for- merly it was the only mode of reviewing decisions in courts not of record. The court held in 1804, that by analogy from the practice in the King’s Bench, it had jurisdiction, and might award a cer- 264 THE SUPREME COURT. Jurisdiction. Certiorari. Quo warranto. tiorari both to inferior courts and to persons invested by the legislature with power to decide on the property or rights of the citizen. ( Lawton v. Com’rs of Cambridge, 2 Caines, 181.) And this power remains, even where the court below is expressly authorized “finally to hear and determine.” (Z bid. ; tex v. Jukes, 8 T. R. 544.) It cannot be taken away without express words. (Jeew v. Jukes, 8 T. R. 545.) But a statute forbidding the removal of any “ order, matter, or thing,” was held sufficient to take away the right of certzo- rari. (The King v. Justices of Middlesex, 8 Dowl. & Kyl. 117.) This writ will not be allowed when there is adequate remedy by appeal. (Wood v. Randall, 5 Hill, 269; People v. Covert, 1 Hill, 675.) The right of appeal does not, however, take away absolutely the right to this writ. It will be allowed where there is a pal- pable usurpation of power, and the party is injured. (Wood v. Randall, 5 Hill, 269; Comstock v. Porter, 5 Wend. 98.) Statutory writ.|—The Revised Statues provide a writ of certe- orarz in certain cases, which is essentially different from the com- mon law writ hitherto spoken of. (See 3 &#. 8. (5th ed.) 89, 902; ad. 617, 671, 672; id. 834, 839; id. 883-890; 1 2d. 889; 1 2d. 599.) Quo warranto.|—This ancient and time-honored writ, which is in England the peculiar prerogative of the King’s Bench, was abolished by the Code, and a remedy by action substituted. (Ante, p. 150, § 428.) Proceedings in the nature of guo warranto are regulated in the same manner. (Jdzd.) It is presumed however that the Supreme Court has still exclusive jurisdiction of such actions. An action of this nature may be brought by the attorney- general against any person usurping a public office, or franchise, or an office in a corporation legally formed ; or when a public officer has forfeited office ; or when any number of persons act as a corporation, without authority of law. (Anie, p. 151, § 432.) THE SUPREME COURT. 265 Jurisdiction. Statutory proceedings. So an action may be brought against a corporation other than municipal, to vacate its charter in certain cases, for violation of law, or non-user of its privileges. (Ante, p. 151, § 480.) Scire facias.]—This writ, both asa public and private remedy, is entirely abolished by the Code and a remedy by action sub- stituted. (Ante, p. 150, § 498; Alden v. Clark, 11 How. 213 ; Ca- meron Vv. Young, 6 id. 872; Catskill Bk. v. Sanford, 4 id. 101.) An action of this nature may be brought by the attorney- general, to vacate letters patent granted by the people of this State, obtained through fraud or mistake, or which are forfeited by the patentee. (Ante, p. 152, § 433.) Other special proceedings.|—The jurisdiction of this court extends also to the following proceedings provided by statute. Ad quod damnum ; or Appraisal of property taken by the State.]|—Whenever the governor of the State is authorized by law to take possession of real estate for the use of the people of the State, and is unable to agree with the owners upon the value, he is directed by law to apply to the Supreme Court for a writ of inquiry of damages. (8 Z2. S. (5th ed.) 900; [2 td. 589.) The same proceedings are directed, in the case of private lands ceded by the legislature to the United States. (Zdzd. 901.) Arbitrations.|—This court has no peculiar jurisdiction of arbitrations. They may be made under the auspices, and entered as the judgment of any court of record. (3 J?. S. (5th ed.) 855 ; [2 ad. 541.]) Attachments against absent debtors, etc.]—This court has jurisdiction (but not exclusive,) of applications for attachments against the property of absconding, concealed, or non-resident debtors, and also of applications for the discharge of an insol- vent from his debts, for the exemption of a debtor from arrest, and for the compelling an assignment by a debtor, under the provisions of the Revised Statutes relative to these subjects. (3 R. 8S. (5th ed.) 109 ; [2 id. 35]; and see Arts. 1-6 of Title 1, chap. 5, part 2, same vol.) 266 THE SUPREME COURT. Ji urisdiction. Special proceedings. Equitable jurisdiction. _Elections in Corporations.|—This court has exclusive juris diction in summary proceedings to determine the validity o elections in moneyed corporations. (2 2. S. (5th ed.) 525, § 50; [1 2d. 598.]) Claims against deceased persons.|—Provision is made by law for the reference of disputed claims against the estates of de- ceased persons, to three referees appointed by the surrogate, and whose report is to be made to the Supreme Court (or county court, dt seems, according to the selection of the parties), and is subject to review by that court. (8 &. S. (5th ed.) 175, [2 ad. 89.]) Dower.|—Any widow may apply to this court (or the county court, or the surrogate of the county), for admeasurement of dower in the manner prescribed by law. (8 #. S. (5th ed.) 791, [2 zd. 488.]) Forfeitures.|—Whenever any property is legally forfeited to the State, an action for its recovery must be brought in this court, (and it seems, in this court only.) (Ante, p. 155, § 447.) Removal of inferior judges and clerks.|—This court at gene- ral term has power to remove justices of the peace, and judges and clerks of inferior courts not of record, after giving them due notice and opportunity to be heard in their defence, upon causes assigned in the order. (3 B.S. (Sth ed.) 292; Laws 1847, ch. 280, § 25; Const. Art. 6, §17.) Ships and vessels.|—A summary method of collecting claims against vessels on account of work done, materials or provisions furnished, wharfage and watching, is provided in the Revised Statutes, and placed under the jurisdiction of this court, (con- _veniently with the Superior Courtin New York city.) @ 2.8. (5th ed.) 795; [2 ad. 493.]) Subp. 4.—Equitable Jurisdiction. This court has now all the powers of the late court of Chan- cery, and the whole jurisdiction of that court is transferred to this. (Laws 1847, ch. 280.) In all courts of this State, an “equitable defence” may be interposed to a claim at law, and thus compared with the for- THE SUPREME COURT. 267 Jurisdiction. Corporations. mer system, all courts may be said to have an equitable juris- diction. (See Dobson v. Pearce, 2 Kern. 156; Crary v. Good- man, id. 266.) So all courts of record may grant an injunction in proper cases, where the action is otherwise within their jurisdiction, though this writ was peculiarly within the province of Chan- cery. (See Ante, p. 81, §§ 218-226.) But the peculiar jurisdiction exercised by Chancery over cor- porations, trusts and trustees, the property of married women, and the persons and property of infants, lunatics, idiots, and habitual drunkards, has passed exclusively to the Supreme Court, except in the cases where such jurisdiction is expressly conferred by statute on other courts, as it is in most of these cases, upon the county courts and the New York common pleas, where the parties reside within the county, and upon some of the city courts where the parties reside within such cities. (See Ante, p. 14, § 80; m. 10, § 33; and post, chaps. v., vi., ix.) The principal branches of the equitable jurisdiction of this court may be classified as follows: 1. Corporations (including banks and associations.) 2. Infants. .* 3. Married women. 4, Lunatics, idiots, and drunkards. 5. Trusts and trustees. 6. Usury ; discovery of (almost obsolete.) Corporations.|—All corporations created under the laws of this State are subject to visitation, examination, and (in the cases prescribed by law), correction, or even dissolution, by this court. (See 3 #. 8S. (5th ed.) 578, 762; [2 id. 462]; Ante, p. 151, § 430.) Visitatorial powers.—The court has jurisdiction over directors, managers, trustees, or other officers of corporations ; 1. To compel them to account for their official management of funds and property committed to their charge; 2. To decree and compel payment by them, to the corpora- tion or its creditors, of moneys, or the value of property lost or misappropriated by them in violation of their official duty. 268 THE SUPREME COURT. Jurisdiction. Corporations. 3. To suspend them from office for abuse of trust; 4. To remove them from office for gross misconduct; 5. To order new elections to fill the vacancies thereby occa- sioned ; 6. In case all the electing body be removed, to report to the governor, who, with the consent of the senate, may fill the vacancies 5 7. To set aside illegal and corrupt alienations of property made by such officers to persons knowing the purpose with which such alienation was made ; 8. To restrain or prevent such alienations when there is good reason to apprehend them. (3 &. S&S. (5th ed.) 762; [2 dd. 462.]) This jurisdiction is exercised “as in ordinary cases, on bill and petition,” (now upon action in the usual form), at the instance of the attorney-general, or a creditor, or director, trustee or similar officer of the corporation itself. (Zbzd. 763.) Banks.—Upon application of creditors or shareholders of any banking association formed under the general banking law, having claims or shares to the amount of $1000, this court may appoint areferee to examine and report upon all the affairs of such bank. (2 22. S. (5th ed.) 561, §199; Laws 1838, ch. 260.) Restraint of corporations.—This court has power to restrain corporations from transcending their right, supon an action being commenced by the attorney-general. (3 2. S. (5th ed.) 762; [2 ed. 462.]) Elections in corporations.—The power which the court has in these cases has been already mentioned. (Ante, p. 266.) It was not derived from Chancery, but from the old Supreme Court. Dissolution of corporations.—This may be the voluntary act of the corporation, in which case it should apply to this court, which has exclusive jurisdiction. (8 2. 8. (5th ed.) 768; [2 ad. 467.}) Or it may be involuntary, in cases prescribed by law, as in insolvency, and acts or omissions equivalent to insolvency. These cases are also within the jurisdiction of this court only. THE SUPREME COURT. 269 Jurisdiction. Corporations, Infante. (3 #. S. (5th ed.) 765-6; [2 id. 465]; 2 zd. 588, 563, 583; Laws 1849, ch, 226.) So the attorney-general may bring an action to annul the existence of a corporation. He must have leave to do so granted by a judge of this court, although the statute does not say that the action must be brought in it; but it would seem from this that it must. (Ande, p. 151, § 480.) ‘Proceedings after dissolution — Bank stockholders.—This court has also exclusive jurisdiction of proceedings after dis- solution, against the stockholders of banking associations, who are individually liable. (2 2. 8. (5th ed.) 585; Laws 1849, ch. 226, § 14 and infra; 3 B.S. (5th ed.) 765-6; [2 2d. 465.]) Infants.|—The jurisdiction of Chancery over the persons and estates of infants was established long before the settlement of this country, and has been constantly exercised in this State. (Willard’s Hy. Jur. 617; see Eyre v. Countess of Shaftes- bury, 2 Peere Williams, 118; Cary v. Bertie, 2 Vern. 342.) And the Supreme Court is now the general guardian of all infants. (People v. Porter, 1 Duer, 711.) Custody of children.-The old Supreme Court had juris- diction of this matter, upon a writ of habeas corpus. But the chancellor had a concurrent jurisdiction, and could use a larger discretion in disposing of the child, if properly applied to. (See People v. Mercein,8 Paige, 55; Me Waldron, 13 Johns. 491; 3 B.S. (5th ed.) 241; [2 id. 148.}) Guardians.—This court also derives from chancery a gene- ral power over guardians, and can appoint, remove, or other- wise control them. (v-parte Crumb, 2 Johns. Ch. R. 489; le Andrews, 1 id. 99; Eyre v. Countess of Shaftesbury, 2 Peere Williams, 107; Beaufort v. Berty, 1 id. 704.) Estates-—The court has power to order a sale of the real estate of infants in certain cases. (3 2. &. (5th ed.) 275 ; [2 id. 195.}) It may also appropriate a portion of rents, profits, interest, 270 THE SUPREME COURT. Jurisdiction. Lunatics. Trusts. etc., accumulating for the benefit of an infant, to his support or education. (Jbid. 13, 76; [1 td. 726, 774.]) Married women.|—Courts of equity had a peculiar regard to the interests of married women, but the changes which have been effected in the statute law on this subject in this and some other States, make it unnecessary to define the jurisdic- tion of the court in this respect. Lunatics.|—It has always been held, that the King of Eng- land, as pater patria, had the care and direction of the affairs of lunatics, idiots, infants, and in general of all who were unable to take care of themselves. (See Hyre v. Countess of Shaftes- bury, 2 Peere Williams, 118; Cary v. Bertie, 2 Vern. 342; Beverley’s case, 4 Coke’s Rep. 126.) This jurisdiction of the king was exercised through chan- cery. (Hyre v. Countees of Shaftesbury; Cary v. Bertie, supra.) The Court of Chancery in this state had the same powers as that in England, (@ &. S. 173, § 36 ;) but its jurisdiction over lunatics, ete., was defined by statute, and these limitations are of course now applicable to the Supreme Court. (See 3 2. S. (5th ed.) 134; [2 id. 52]; ad. 895. Trusts.|—The jurisdiction of chancery was always extended in a peculiar manner over trusts, which were not binding in law, but which the chancellor undertook to enforce, as bind- ing in equity and good conscience. (The history of the rise and progress of uses and trusts is briefly but ably reviewed in 4 Kent’s Com. 292.) The court has extensive powers over the management of trusts, and can remove any trustee for cause, allow trustees to resign, and appoint trustees to fill vacancies. (8 2. S. (5th ed.) 22; [1 2d. 730.]) Ithad this jurisdiction, independent of statute. (People v. Norton, 5 Seld. 178.) And if a trust exists without a trustee, the court will appoint a trustee for its execution. (De Peyster v. Clendining, 8 Paige, 310; Hing v. Donnelly, 5 id. 47.) THE SUPREME COURT. 271 Jurisdiction, Appeals. Powers. Susp. 5.—Appellate Jurisdiction. This court has jurisdiction over all appeals from judgments rendered by the county courts, mayors’ and recorders’ courts of cities, the city court of Brooklyn, and surrogates’ courts. (Ante, p. 125, § 344; 3 PR. S. (5th ed.) 560, 349, 905.) In special proceedings, the appellate jurisdiction of this court is exercised by means either of the common law or statutory writ of certiorari. (See 3 B.S. (5th ed.) 834, 839, 902; [2 ad. 510, 516, 602.]) Removal of causes from inferior courts.|—This court may transfer into itself any transitory action pending in the New York Superior Court, or Court of Common Pleas, by order, upon motion. (Ante, p. 17, § 33.) Or any action or proceeding pending in a county court, or a mayor’s or recorder’s court of a city, where the judge of such court is for any cause incapable of acting. (Ante, pp. 15, 17, 88 30, 33.) Or any transitory action pending in the Superior Court of Buffalo, when, if the action were brought in the Supreme Court, the defendant might claim a change of place of trial. (3 R. S. (5th ed.) 835; Laws 1854, ch. 96, § 15.) Or certain specified actions pending in a mayor’s court, by writ of certiorari. (3 B.S. (5th ed.) 671; [2 zd. 389.]) Arr. 4.— Powers of the Court. It is unnecessary to give any detailed account in this place of the powers of this court. Its powers upon different proceed- ings will appear in connection with such proceedings, and in general it has power by its officers to enforce obedience to its commands within its jurisdiction, according to the method pro- vided by statute or the practice of the courts of law and equity in each case. It has all the powers of the chief courts of both law and equity in England, as they existed before the Revolution, ex- cept as modified in particular cases by statute. It has ample power to enforce the law by punishment or pre- vention, by means of its judgments and executions or injunctions, 272 THE SUPREME COURT. Powers of the court. Powers of the judges. together with the summary power to punish any contempt given to courts of record generally. Art. 5.—Powers of Justices out of Court. A justice of the court, when holding court, has all the powers belonging to the Supreme Court. except those which . are expressly confined to the court at general term, and three justices at special term would of course have no more power than one. But for convenience and dispatch, many powers have also been conferred on the justices when out of court, or as it is com- monly termed, at chambers, although it is to be remembered that a justice can perform most of these acts anywhere, and a writ of habeas corpus is often granted at a private house, or a stay of execution granted at a hotel out of the district, (as in Mary Hartung’s case, 1859). Therules of court, however, sometimes require motions to be made at chambers, which otherwise might be made elsewhere. The Code requires the justices of this court, at all reasonable times, when not engaged in holding court, to transact such business as may’ be done out of court. (Ante, p. 12, § 27.) A justice of this court, when acting out of court, is an officer of limited jurisdiction. He may do just what the legislature authorizes him to do, and no more. (Bangs v. Selden, 18 How. 376.) Where a judge out of court has no power.|—A justice out of court cannot collaterally review the decision of a court of com- petent jurisdiction, even on a question of its jurisdiction. (People v. Orser, 12 How. 550.) Norcan he review the order (even if made ex-parte), of another judge of this court. (Cayuga Bank v. Warfield, 18 How. 440.) Nor can he set aside, or grant an indefinite stay of proceed- ings before another judge of any court. (Bank of Genesee v. Spencer, 15 How. 14.) At most, he can only grant a stay until application can be- made to the special term. (Jdd.) “No order to stay proceedings for a longer time than 20 THE SUPREME COURT. 273 Powers. z When a judge out of court has no power. days, shall be granted by a judge out of court, except upon previous notice to the adverse party.” (Ante, p. 143, § 401.) An order granted in violation of this rule is of course irregu- lar, and perhaps a nullity. (See Hasbrouck v. Ehrich, 7 Abb. 80.) The judge has no right to stay proceedings absolutely for twenty days, when the object of the stay can be attained in less time. Ie should grant the stay only until application can be made for relief. (Chubbuck v. Morrison, 6 How. 870; see Bank of Genesee v. Spencer, 15 id. 14.) On the other hand, he cannot grant a stay until an appeal is decided, or other matter done, without regard to time, even though (sembde) such fimitation might probably fall within twenty days. (Steam Nav. Co. v. Weed, 8 How. 503; see Lot- timer v. Lord, 4 KE. D, Smith, 188.) The judge cannot stay proceedings on ex-parte applications more than twenty days altogether; and cannot grant two or more successive delays of twenty days each. (Sales v. Woodin, 8 How. 349; Anon., 5 Sand. 656; overruling Langdon v. Wilkes, 1 Code Rep. N.S. 10.) He cannot extend the time to make a case after it has expired. That can only be done by the court. (Doty v. Brown, 8 How. 876; see Hawkins v. Dutchess Steam Co. 7 Cow. 468.) The place of trial cannot be changed by a judge in cham- bers. (Schenck v. M’Hve, 4 How. 248.) Orders to show cause cannot be made by a judge out of court, returnable before any other judge or before the court. (Z/as- brouck v. Ehrich, 7 Abb. 81; erritt v. Slocum. 6 How. 350.) No judge has power to tax costs, unless expressly authorized in the order granting them. (Van Schaick v. Winne, 8 How. 6. us judge in chambers cannot grant an extra allowance under § 309 of the Code. (Ztule 52, Supreme Court ; Mann v. Tyler, 6 How. 236; and see ante, p. 114, § 309.) A judge in chambers cannot grant a judgment in any case except upon a frivolous pleading. (Aymar v. Chace, 12 Barb. 801; Ante, p. 92, § 247.) He cannot grant a common-law writ of certiorari. (Lt seems 18 274 THE SUPREME COURT. Powers of the judges. Contempts, First district. that he can grant astatutory writ.) (@ardner v. Com’rs of War- ren, 10 How. 181; Starr v. Trustees of Rochester, 6 Wend. 565.) Where a judge out of court has power.J—To grant judgment ona frivolous answer, demurrer, or reply. (Ante, p. 92, § 247.) He may grant such judgment with conditions, and allow the defendant to plead on terms. (Wetherspoon v.Van Dolar, 15 How. 266.) To grant an order of arrest, an attachment, an injunction, an order for examination on supplementary proceedings, and, in general, he has jurisdiction in all the interlocutory proceedings in an action. (See Ante, pp. 72, 81, 84, 107, §§ 180, 218, 228, 292.) Contempt.|—Whether the court can punish contempt to a judge out of court, is a disputed question. It was held that the judge only could punish contempt of his orders, in Shepherd v. Dean, 3 Abb. 424; 13 How, 173; Wicker v. Dresser, 14 How. 470; Re Smethurst, 2 Sand. 724; 3 Code Rep. 55. It was held contra, that the court could punish in all cases, and the judge, as such, only in those cases prescribed by statute. (Wicker v. Dresser, 4 Abb. 93; 18 How. 331.) A middle course is taken in another decision, which holds that the judge can grant an attachment for contempt, return- able before himself, whether in or out of court. (Dresser v. Van Pelt, 15 How. 26.) Practice in the First Judicial District.|\—The practice in the city of New York is different from that of the rest of the state, judges in chambers there being expressly authorized to hear all motions, except for a new trial on the merits. (Ante, p. 142, § 401; See Main v. Pope, 16 How. 271.) And 7 seems, that an order made at chambers in New York, js always made in court. (Main v. Pope, 16 How. 272; and see Disbrow v. Folger, 5 Abb. 53.) So an extra allowance may be granted by a judge in cham- bers in that city. (Zdid.) Or a motion to open a judgment, and allow a defence to be putin. (Lowber v. Mayor of N. ¥., 5 Abb. 827.) THE SUPREME COURT. 275 Powers of the judges. Powers of county judges. th He may appoint a guardian ad litem. (Disbrow v. Folger, 5 Abb. 53.) But he cannot grant judgment, except on a frivolous plead- ing. (Aymar v. Chace, 12 Barb. 301.) “Every proceeding commenced before one of the judges in the first judicial district, may be continued before another, with the same effect as if commenced before him.” (Ante, p. 12, § 27.) The meaning of this clause is, that such proceedings may be continued before any judge, competent to have commenced it. (Dresser v. Van Pelt, 15 How. 28.) L2eview.]—In all cases, the orders of a justice out of court granted ex parte, are subject to review by himself, in or out of court, or by any other justice in court, on motion to vacate or modify his order. (See Ante, p. 118, § 324.) Orders granted out of court wpon notice, must be reviewed by appeal to the general term, after being entered by the clerk. (Ante, p. 127, § 350.) Arr. 6.—Supreme Court Commissioners. Until July 1, 1847, a number of officers, under the name of Supreme Court Commissioners, performed most of the duties of judges in chambers. This office was abolished by the Constitution of 1846, but the legislature has conferred the same powers upon the judges of inferior courts of record, as follows: 1. County judges may exercise within their counties all the powers of a justice (of this court) out of court, in any action pending in this court, except to stay proceedings after verdict. (Ante, p. 142, 88 401, 403.) A referee’s report is not a verdict. (Otis v. Spencer, 8 How. 172.) They may appoint a guardian ad litem for an infant party to an action brought in this or any other court. (Ante, p. 49, § 115.) They may order a further account on a Dill of particulars. (Ante, p. 65, § 158.) 276 THE SUPREME COURT. Powers of judges of other courts in the Supreme Court. They have jurisdiction in proceedings supplementary to execution upon a judgment in any court. (Ante, p. 108, § 292.) But they cannot stay such proceedings when once com- menced before them. (Bank of Genesee v. Spencer, 15 How. 412.) 2. Justices of the Superior Court of the city of New York may exercise the powers of a justice of the Supreme Court at chambers. (3 £2. S. (5th ed.) 359.) 3. Judges of the Court of Common Pleas of the same city have the same powers. (Zbid. 309.) 4, Justices of the Superior Court of Buffalo have also the same powers. (/bid. 336.) 5. So have the @ecorders of Albany, Hudson, Troy, and Oswego. ( Lbid. 320, 321, 323, 347.) 6. And the etty judge of Brooklyn. (ldzd. 352.) 7. And local officers elected to discharge the duties of county judge or surrogate. (Seymour v. Mercer, 18 How. 565.) Constitutionality of these laws.]—It has been held that the legislature has no power to clothe any officers except county judges with the powers and duties of a Supreme Court com- missioner, or justice out of court. (Griffin v. Griffith, 6 Tow. 428.) A later decision conceded this power to the legislature, except as concerning proceedings of a judicial nature, (such as proceedings supplementary to execution), in an action com- menced in the Supreme Court. (Cushman v. Johnson, 13 How. 495.) In the first case, a stay of proceedings by the Recorder of Troy was treated as an absolute nullity ; in the second, an order for supplementary proceedings before the city judge of Brook- lyn was vacated. (See cases.) But these decisions have been overruled, and these laws declared constitutional by the Court of Appeals; (three judges dissenting.) And it is decided that these powers may be con- ferred on any judicial officer. (2Zayner v. James, 17 N.Y. 316.) It is held, that the words of the statute giving such officers the “powers of a justice of the Supreme Court at chambers,” THE SUPREME COURT. 277 Circuits. Districts. Terms, do not include jurisdiction over supplementary proceedings. (Cushman v. Johnson, 13 How. 499.) e Art. 7.—Circuits. The circuit court was formerly more distinct from the Su- preme Court than it is now, as there was then a circuit judge for each circuit, who did not sit in the Supreme Court, whereas it is now held exclusively by judges of this court. Circuit courts are held at least twice a year in every county, for the trial of issues of fact, especially such as are to be tried by jury. Issues of law may be tried in circuit or in special term. Jury trials can only be held inthe circuit. (Ante, p. 98, § 255.) The circuit can be held only by a single judge. (Laws 1847, ch. 280; ante, p. 93, § 255.) The cirenit court may be adjourned by an entry in the min- utes, and causes may be noticed for the adjourned circuit (Ante, p. 12, § 24.) The present circuit courts retain all the powers and jurisdic- tion of the old circuit courts, and are subject to the same laws. (Laws 1847, ch. 280, § 22.) Hardly any step except to try, refer, and grant a new trial on the judge’s minutes, can be taken at the circuit. (Semble, Mann v. Tyler, 6 Wow. 236; 1 Code Rep. N. 8. 383.) But application for judgment upon failure to answer, may be made at the circuit. (Ante, p. 184; Lule 24, Supreme Court.) Districts.|—The State is divided into eight judicial districts, after the pattern of the eight circuits which were established. under the Constitution of 1821. The judges of each district _ make the circuit of that district only, except when appointed by the governor, or chief judge of the Court of Appeals, to serve in another district. The circuit courts are appointed biennially by the judges of each district. The governor can appoint extra circuits. (Ante, p- 11, 8§ 22, 23.) Art. 8.—Terms. General Terms.]—At least four general terms arc held in each 278 THE SUPREME COURT. Terms. General Terms. Special Terms. district annually, and more may be appointed by the judges. (Ante p. 10, § 18.) Three judges are necessary to hold a general term. * Presiding justice.|—The judge having the shortest time to serve, and not drafted into the Court of Appeals, is the pre- siding judge. (8 &. S. (5th ed.) 887, § 7; Laws 1847, ch. 280.) Judgment.|—A majority of the general term must concur, in order to render judgment. If a majority do not concur, the case must be reheard. (Ante, p. 11, § 19.) Jurisdiction.|—The general term is not confined to an appellate jurisdiction. None of its ancient powers are taken from it, and it may now make an original order in any case in which it formerly might have done so. The general term will not act in most cases in which the special term can act, but it is from expediency alone, and for the sake of dispatch, that it refuses. The general term ordered a bill of costs to be retaxed, and its power to do so was sustained. (Anon., 10 How. 355, 360.) It can grant an injunctien. (Drake v. Hudson R. R., 2 Code Rep. 67.) Special terms.j—The judges of each district appoint the special terms, but at least one must be held during the year in every county. (Ante, p. 11, § 20.) A special term is usually held by one judge, but more may join in itupon the request of the judge appointed to hold it. This is done occasionally to save a repetition of the argument before the general term, and secure a prompt decision of the question by a full court. (See Davis v. Mayor of N. ¥.,1 Duer, 451.) But an issue of fact must be tried by a single judge. (Ante, p. 98, § 255.) Jurisdiction and powers.|—The special term may try issues of fact, when triable by the court, and issues of law. (Ante, p. 93, § 255; p. 185, Lule 28, Supreme Court.) THE SUPREME COURT. 279 Terms. Special Terms. Rules. Non-enumerated motions are always to be heard in the special term, unless otherwise directed by law. (Ante, p. 190, Rule 40, Supreme Court.) _ The special term can hear every question, except upon appeal, that can come before the general term. (Jason v. Jones, 1 Code Rep. N. 8. 339.) It has even quashed a certiorari allowed ew parte at general term. (Ldzd.) It can open a default taken at the general term. (Ayres v. Covill, 9 How. 575.) And it can relieve against a judgment or order taken irregu- larly at the general term, where the point was not before the court. (Semble, ibid. See Corning v. Powers, 9 How. 56.) It can correct the form of a judgment of the general term. (De Agreda v. Mantel, 1 Abb. 183.) But the special term cannot (or at any rate should not) in any way reconsider the actual adjudications of the general term. (Corning v. Powers, 9 How. 56 ; and see Ayres v. Covill, id. 575.) It cannot dismiss an appeal to the general term. (Harris v. Clark, 10 How. 419; Barnum v. Seneca Co. Bank, 6 id. 82.) Nor can it set aside a judgment entered on the report of a referee, on any ground relating to the merits. (Danav. Lowe, 3 Kern. 308.) , There is but one Supreme Court, and whether in special or general term, it has the same powers, except as to appeals. (Mason v. Jones, 1 Code Rep. N.S. 338; see Ayres v. Covill, 9 How. 575; Corning v. Powers, id. 56; Gracie v. Freeland, 1 Coms. 228; Anon., 10 How. 360.) But the legislature may prescribe limits to the power of either. (Griffin v. Griffith, 6 How. 4381; Mason v. Jones, 1 Code Rep. N. S. 338.) It seems, however, that the legislature cannot empower a special term to decide an appeal from another special term. (Gracie v. Freeland, 1 Coms. 228.) Art. 9.—Rules and Calendars. The judges of the Supreme Court, with those of the Superior Court and Court of Common Pleas of New York city, meet in 280 THE SUPREME COURT. Rules. Calendars, Short causes. general session at the Capitol in Albany biennially on the first Wednesday of August (1860, 1862, etc.), to revise the rules of court. These rules, so far as applicable, govern all these courts, and also the county courts. (Ante, p. 160, § 470.) These rules must be published for three weeks in the State paper at Albany, before taking effect. (Laws 1847, ch. 470, § 4.) Use of the rules.|—The rules are not to be used for purposes of oppression, or to decide the case upon technicalities. (JLich- lethwaite v. Rhodes, 1 Barb. 57.) Special rules in the districts.|—The judges of the first and second districts have issued rules for practice in those districts, but their authority is denied, and no judge is bound by them, although they are generally followed by the voluntary action of the judges. (See He Bowery, 19 Barb. 591.) Calendar.J—The clerk prepares the calendar (under the general control of the court) from notes of issue filed by either party to an action, at least eight days before the court. (Ante, p. 94, § 256.) Issues on the calendar are disposed of in the following order, unless otherwise directed by the court: 1. Issues of fact to be tried by a jury. 2. Issues of fact to be tried by the court. 3. Issues of law. (Ante, p. 94, § 257.) Special order in First District.|—A special calendar for the trial of short causes is provided in the first judicial district. The plaintiff may move, upon four days’ notice, either in the circuit on any Monday, or in chambers on any day, to place a cause on this calendar, where— 1. The trial is not likely to oceupy more than one hour ; 2. The action is on contract, and i. The answer consists of a mere denial, with no new matter; or, ii. New matter is set up, and there is reasonto believe that the defence is only made for delay. If the motion is founded on the belief that the defence is for THE SUPREME COURT. 281 Calendars. Motions. Appeals. delay, affidavits setting forth the reasons of such belief must be served with the notice. If the motion is granted, the cause will be placed on the ca- lendar for the following Friday, on serving a similar notice on the clerk of the circuit four days before, containing the number of the cause on the general circuit calendar. If the cause actually occupy more than an hour on trial, the trial may be suspended at the discretion of the court, and the cause be put down at the foot of the calendar. (Ante, p. 220.) For sundry other rules regarding the calendars in the first and second judicial districts, see ante, p. 221, 222. Enumerated motions.|—These are, Motions arising on special verdict. Issues of law. Cases. Exceptions. Appeals from orders on demurrers. Appeals from an inferior courte Appeals from the special term or circuit. (Ante, p- 190; Lule 40, Supreme Court.) Non-enumerated motions include all other questions sub- mitted to the court, and must be heard at special term, unless otherwise directed by law. (Zbid.) PEO HE SO) NOE Art. 10.—Appeals. From this court.|—In the proper cases, an appeal lies from a generalterm of this court to the Court of Appeals. (Ante, pty 3 Vs} To this court.|—For an account of the appellate jurisdiction of the court, see the preceding article on “jurisdiction,” Ante, p. O71. 282 THE SUPERIOR. COURT. Organization of the Court, Officers. Cuaprter IY. THE SUPERIOR COURT OF THE CITY OF NEW YORK. Arr. 1. Organization of the court. pe 2. Officers of the court. 8. Jurisdiction. 4. Powers. 5. Terms, 6. Removal of causes into Supreme Court, 4. Appeals. Arr. 1.—Organization of the Court. This court was established in 1828, by act of legislature, and consisted of three justices. (Laws 1828, ch. 137, p. 141.) The constitution of 1846 recognizes its existence, and declares that it shall remain, with the same powers and jurisdiction as it then had, “until otherwise directed by the legislature.” (Const. Art. xiv. § 12.) The legislature is also empowered to give a peculiar organi- zation and jurisdiction to local courts in New York and Buffalo. (Const. Art. vi. § 14.) The legislature has also control over the time and manner of election of the judges of such courts. (Const. Art. vi. § 18.) Under these constitutional provisions, the legislature increased the number of justices of this court on May 1, 1849, to six, of whom two go out every odd year, (1859, 1861, etc.), and all of whom are elected by the electors of the city of New York, for a term of six years. (Ante, p. 18, §§ 40 to 45.) Each justice receives a salary of $5,000 per annum. No fees are to be paid to a justice for any service. (See Ante, p. 18, § 35.) ‘ Arr. 2.—Offcers of the Court. Clerks.|—The court has power to appoint a clerk, who has an office in the City Hall. (8 2. S. (5th ed.) 358 ; Laws 1828, ch. 187, § 9.) Crier.j—It also appoints a crier. (Ante, p. 18, § 39.) Attorneys, when admitted by the Supreme Court, have all the privileges of this court. ‘ THE SUPERIOR COURT. 283 Jurisdiction, Concurrent with Common Pleas. Art. 3.—Jurisdiction of the Court. Concurrent with Common Pleas.|—The Superior Court and the court of Common Pleas of the city of New York have juris- diction in the following cases : I. In the following actions, where the cause of action has arisen, or the subject of the action is situated, within the city of New York: (1.) For the recovery of real property ; (2.) Or of an estate or interest therein ; (3.) For the determination in any form of a right or interest in real property 5 (4.) For injuries to real property ; (5.) For the partition of real property ; (6.) For the foreclosure of a mortgage of real property ; (7.) For the recovery of personal property distrained for any cause ; (8.) For the recovery of a penalty or forfeiture imposed by statute ; (9.) Against a public officer, or person specially appointed to execute his duties, for an act done by him in vir- tue of his office ; (10.) Against a person who, by his command or in his aid, shall do anything touching the duties of such officer. (Ante, p. 16, 51, §§ 33, 123, 124.) | IL. In all other actions, (1.) Where aid the defendants reside, or are personally served with the summons, in the city of New York; (2.) Where one or more of several defendants, jorntly Leable on contract, reside, or are served as above, in said city. III. In actions against (1.) Corporations created under the laws of this State, and transacting their general business, or keeping an office for the transaction of business, within the city of New York, or established by law therein ; (2.) Corporations created by, or under, the laws of any other State, government, or country ; 284 THE SUPERIOR COURT. Jurisdiction, Concurrent. Presumed. i. For the recovery of any debt or damages, whether liquidated or not, arising upon contract made, ex- ecuted or delivered within this State, or ii, Upon any cause of action arising in this State. (Ante, Dp. 17; § 33.) The Code, in another place, provides that actions against foreign corporations may be brought in the Superior Court, or ' Common Pleas, 1. By a resident of this State, for any cause of action. 2. By a non-resident, when the cause of action has arisen, or the subject of the action is situated within this State. (Ante, p. 149, § 427.) Jurisdiction presumed.|—The jurisdiction of these courts will probably be presumed, until the contrary appears. (See Hart v. Seiwas, 21 Wend. 48.) These courts have jurisdiction of the action mentioned in Subdivision I. above, without regard to the residence of the parties. (Porter v. Lord, 4 Abb. 43; 4 Duer, 682; Varian v, Stevens, 2 Duer, 635; Wéchols v. Romaine, 9 How. 512 ) And whenever the court has jurisdiction, viz., under Subd. I. or II. 2, supra, summons may be served in any part of the State. (Porter v. Lord, 4 Abb. 48; 4 Duer, 682; but see Laws 1828, ch. 187, § 13; 3 B.S. (5th ed.) 358.) Where the court has jurisdiction over the action, a volun- tary appearance of the defendant, without service of summons, will give jurisdiction of the person. (Watson v. Cabot Bank, 5 Sand. 428 ; said to be affirmed in Court of Appeals, 4 Duer, 606 ; and see Smith v. Dipeer, 2 Code Rep. 70.) Where one of several defendants, not jointly liable, is served with summons within the city, the plaintiff may serve the others, if he can, or discontinue as against them, at any time before trial. (McKenzie v. Hackstaff, 2 E. D. Smith, 75. fe Superior Court (and, therefore, 7 seems the Court of Com- mon Pleas) has jurisdiction of an action brought against the corporate authorities of New York city, in which an injunction is asked restraining such authorities from granting a privilege, (as the right to construct a railroad), and may grant such THE SUPERIOR COURT. 285 Jurisdiction. Peculiar. Where it has not jurisdiction. injunction. (People v. Sturtevant, 5 Seld. 263; affirming 8. C. sub nom. Davis v. Mayor of N. Y.,1 Duer, 451.) These courts have jurisdiction of divorce suits, where the defendant resides in the city of New York. (forrest v. For- rest, 6 Duer, 114.) They have jurisdiction, concurrent with the U. 8. Court, and the Supreme Court, of a question of salvage. (Baker v. Hoag 3 Seld. 563; Cashmere v. De Wolf, 2 Sand. 879; Cashmere v. Crowell, 1 Sand. 715.) Jurisdiction peculiar to this court.]—Certain suits pending in 1849, in the Supreme Court, (first district), were allowed to be transferred to this court, and it has complete jurisdiction over every such suit. (Ante, . 19, 20, 8§ 47, 48.) This court has concurrent jurisdiction with the Supreme Court, in summary proceedings against ships and vessels. (8 R. &. (5th ed.) 796; [2 id. 494.) Where it has no jurisdiction.|—This court has not jurisdic- tion over proceedings for the dissolution of a corporation. (Brahe v. Pythagoras Assoc’n, 4 Duer, 658 ; and semble, Aaé- tenstroth v. Astor Bank, 2 id. 632.) Nor over the appointment of a receiver to wind up a foreign corporation. (Day v. U. 8. Car Spring Co. 2 Duer, 608.) Nor over a commission of lunacy. (d/atter of Brown, 1 Abb. 108.) Nor to compel the attendance of witnesses under a commis- sion from a foreign court. (Semble, Jfatter of Jay, 5 Sand. 674.) Nor, in general, has the court any jurisdiction not expressly conferred by statute. (Zdzd.) And the court will not sanction any attempt to bring parties into its jurisdiction by fraud and misrepresentation, but will set the process aside. (Curpenter v. Spooner, 2 Sand. 717; 3 Code Rep. 23; 2 id. 140; and see Goupil v. Simonson, 38 Abb. 47+.) Arr. 4.—Powers of the Court. This court has the same power to compel a discovery of papers, ete., by parties to an action, as the Supreme Court. ? 286 THE SUPERIOR COURT. Powers of the court. Of the judges. Terms. (Gould v. McOarthy,.1 Kern. 580; Moore v. Pentz, 2 Sand. 664; 3 Fe. S. (5th ed.) 293, § 60; [2 zd. 199; ] Laws 1841, ch. 38.) It has power to subpoena witnesses in any part of the State. (3 B.S. (5th ed.) 358 ; Laws 1828, ch. 187, § 14, p. 141.) And to summon any witness within the county to make a deposition upon a motion or other proceeding. (3 2. S. (5th ed.) 361; Laws 1840, ch. 276, § 3.) Powers of the judges.|—-The justices of this court may perform ‘all the duties which justices of the Supreme Court out of term may perform. (3 &#. S. (5th ed.) 859; Laws 1828, ch. 187, § 23.) Any justice may hold a special term, and has substantially the same powers, as far as non-ennmerated motions are con- cerned, inchambers. (Laws 1830, p.18; Laws 1828, p. 141.) They may issue attachments against the property of abscond- ing, concealed, or non-resident debtors, under tke provisions of the Revised Statutes. (Renard v. Hargous, 3 Kern. 259; affirming 8. C. 2 Duer, 540.) They may issue writs of habeas corpus, and perform other acts, as Supreme Court commissioners, though that office is abolished. (Jdid. ; Laws 1847, ch. 255,§ 7; 2 &. 8. (1st ed.) 280, 281; see People v. Lemmon, 5 Sand. 681; 3 &. S. (5th ed.) 883, [2 zd. 564.) Such special proceedings are subject to the review of the Supreme Court, at general term, and not to that of the Superior Court. (See People v. Lemmon, 26 Barb. 270.). Arr. 5.—Terms of the Court. The court has power to appoint its terms, and does so every year. (Ante, p. 17, § 35.) A general term may be held by any éwo justices, and a special term by any one. (Ante, p. 19, § 46.) One or more general and special terms may be held at the same time. (Jd¢d.) The supervisors should provide rooms, etc., but the court may order the sheriff to do so, in case of neglect. (Ante, p. 20, § 51, p. 18, § 28.) THE SUPERIOR COURT. aT. Terms, Removal of causes. Appeals, Judgments, how given.]—JS udgments upon appeal are given at general term, all others, at special term. (Ante, p. 18, § 37.) The concurrence of two judges is necessary to a decision at general term. (Ante, p. 18, § 38.) If two do not concur, the appeal must be reheard. (Jdid.) » Arr. 6.—LRenoval of causes into the Supreme Court. js. The Supreme Court may remove into that court any action brought under subd. 2 of § 33, ante, p. 16,) and pending in the Superior Court, (or Court of Common Pleas) for the city and county of New York, and may change the place of trial therein, as if such action had been commenced in the Supreme Court. (Ante, p. 17, § 33.) Such order for removal and change of place of trial is to be made upon motion in the Supreme Court. (JZdzd.) On filing a certified copy of such order in the office of the clerk of the Superior Court (or Common Pleas), such cause shall be deemed to be removed as aforesaid. (Ldid.) The clerk must then forthwith deliver to the clerk of the county in which the trial is ordered to be had, all process, pleadings, or proceedings relating to such cause, to be filed in his office. (Z07d.) Removal, under this provision, is discretionary with the Supreme Court, and the court must see good reason for making the change. (Campbell v. Butler, 4 Abb. 55.) Arr. 7.—Appeals. Appeals from the general term of this court are taken direct tothe Court of Appeals. (Ante, p. T, § 11, p. 20, § 50.) There are no appeals from any inferior court to this court. The action of a justice of this court, sitting as a Supreme Court commissioner, should be reviewed by certiorari in the Supreme Court. (3 &. S. (5th ed.) 892, § 85; [2 zd. 573.]) 288 THE COURT OF COMMON PLEAS. f, Organization of the court. History. Cuaptrer V. THE COURT OF COMMON PLEAS OF TUE CITY AND COUNTY OF NEW YORK. Ant, 1. Organization of the court. . Officers of the court. . Jurisdiction. . Powers. . Terms. . Removal of causes into Supreme Court. . Appeals. TAanprwnw re Arr. 1—Organization of the Court. This court isthe oldest judicial tribunal in the State, being traceable back to the Dutch court of the schout, burgomasters, and schepens, established in 1653. In 1665, under the English government, its name was changed to the ‘“ Mayor’s Court,” with the mayor, aldermen and sheriff for judges. In 1821, its name was changed to the “ Court of Commop Pleas,” and a “first judge ” appointed, who was authorized to hold the court without the mayor, alderman, or recorder, although these officers still retained the right of sitting in it. (The recorder was substituted for the sheriff in 1730.) Two associate judges were appointed successively in 1834 and 1839. By the Constitution of 1846, no change was made in the organization of this court, but it was directed that the judges should be elected by the people of the city for six years. The court therefore consists at present of one first judge and two associate judges; and it is worthy of remark, that this court and the county courts are the only ones in the State whose members are legally entitled “ jwdges’—all others being “justeces.” First judge.—The court has power to appoint one of the judges first judge. (Laws 1847, ch. 255, § 6.) Salaries.—Each judge receives a salary of $5000 per annum. No fee is paid to any of the judges for any service. (See Ante, p. 18, § 35.) THE COURT OF COMMON PLEAS. 289 Officers, Jurisdiction. Supplementary proceedings. Art. 2.—Officers of the Court. Clerk.|—The court has power to appoint its own clerk. (8 B.S. (5th ed.) 818; Laws 1854, ch. 198.) Crier, etc.|—It has power to appoint all other officers necessary for its attendance, including a crier. (8 2. S. (5th ed.) 318; Laws 1853, ch. 529 ; see Ante, p. 18, § 39.) Attorneys.|—The attorneys of the Supreme Court have the same power to practise in this court. Arr. 3.—Jurisdiction of the Court. The original jurisdiction of this court is, toa great extent, concurrent with that of the Superior Court, and is: fully set forth, so far as that is the case, ante, p. 283. But in addition to this extensive jurisdiction, this court has all the powers and jurisdiction of the county courts, (which are fully described post, chap. ix. p. 302.) (3 R. S. (5th ed.) 318, §$ 81; Zaws 1854, ch. 198.) And all its powers and jurisdiction prior to the Code, are confirmed to it. (Zdzd.) It has jurisdiction and power to remit fines and forfeited recognizances, and to correct and discharge dockets of liens and judgments entered upon recognizances in the manner pre- scribed by law. (Jbid., and see Laws 1845, ch. 229.) Mechanics liens.|}—Except where the amount claimed is less than one hundred dollars, this court has exclusive jurisdic- tion of proceedings upon liens against real estate in the city and county of New York. (3 &.S. (5th ed.) 812; Laws 1851, ch. 513, § 4.) Supplementary proceedings.|—This court has jurisdiction in proceedings supplementary to execution on a judgment ren- dered in the marine or a district court of New York city; or on a judgment of any court when execution is issued to that city and county. (Ante, p. 108, § 292.) 19 290 THE COURT OF COMMON PLEAS. Jurisdiction. Powers. : Terms. Judgments of inferior courts.|—Atter transcripts of judg- ments in the marine court, or district courts of the city of New York, have been filed in the office of the county clerk, this court has control over such judgments, and can order a set-off between them. (Hayden v. M’ Dermott, 9 Abb. 14.) Appellate jurisdiction.|—This court has exclusive jurisdiction over appeals from the marine court, or district courts of New York city. Its decision thereupon is final. (Ante, p. 128, §§ 351, 352, and see p. 8, § 11.) Jurisdiction presumed.|—The jurisdiction of this court will always be presumed. (art v. Seiwas, 21 Wend. 48; oot v. Stevens, 17 id. 483.) Art. 4.—Powers of the Court and Judges. Discovery.|—This court has the same power to compel a dis- covery of books and papers within its jurisdiction as the Su- preme Court. (Laws 1841, ch. 38, § 1.) Subpena.|—There is an old law, not embodied in the Revised Statutes, but not expressly repealed by them, authorizing this court to send writs of subpcena into any part of the State. (Greenleaf’s Laws 1789, p. 262.) Depositions.|—It may enforce the attendance of any person within the county to make a deposition on a motion or other proceeding. (Laws 1840, ch. 276.) Chambers.]—The judges of this court in chambers have the same powers as those of the Superior Court. (8 2. 8. (5th ed.) 309.) These powers are substantially those of a judge at special term. See Laws 1830, p. 18; see ante, p. 285. Art. 5.—Terms of the Court. The court appoints its own terms from time to time. (Ante, p- 17, § 35.) THE COURT OF COMMON PLEAS. 291 Terms. Removal of causes. Appeals. A general term is held by two or more of the judges, and a special term by one. (Ante, p. 18, § 36.) Rooms.J|—The supervisors should provide rooms and other accommodations, but if they neglect to do so, the court may order the sheriff to provide the same. (Ante, p. 12, § 28.) Judgments.|—Judgments upon appeal are given at general term; all others at special term. (Ante, p. 17, §-87.) Two judges must concur in rendering a decision at general term. (Ante, p. 18, § 38.) If two do not concur, the appeal must be reheard. (Ante, p. 18, § 38.) Art. 6.—Removal of causes to the Supreme Court. The Supreme Court may remove into itself any action brought under subdivision 2 of § 33 of the Code (ante, p. 16) in this court, and may change the place of trial, as if such action had been commenced in the Supreme Court. (Ante, p. 17, § 33.) For further details under this head, see ante, p. 287. , Art. 7.—Appeals. An appeal lies (in the cases prescribed by law), from the general term of this court, to the Court of Appeals exclusively. (Ante, p. 7, § 11.) The decisions of a judge of this court, sitting as a Supreme Court commissioner, however, are reviewable upon certiorari, before the Supreme Court in general term. (3 Lz. S. (5th ed.) 892 ; [2 id. 573.]) Appeals to this court.|—Appeals from the Marine and district courts of the city of New York, lie exclusively to the general term of this court. (Ante, p. 128, §§ 851, 352.) 292 THE SUPERIOR COURT OF BUFFALO. Organization. Officers. Cuartrer VI. THE SUPERIOR ‘COURT OF THE CITY OF BUFFALO, . 1. Organization of the court. 2. Officers of the court. 8. Jurisdiction. 4. Powers. 5. Terms. 6. Removal of causes into or from the Supreme Court. q: Appeals. Art. 1.—Organization of the Court. This court was established by an act of the legislature in 1854, reorganizing the Recorder’s Court of Buffalo, providing for the election of three judges in place of the recorder, and changing its name to the “Superior Court.” (3 2. S. (5th ed.) 832 ; Laws 1854, ch. 96.) _ This act was constitutional. (International Bank v. Bradley, 19 N. Y. 245, 253.) The court is now composed of three justices, chosen by the electors of the city of Buffalo, and holding office for eight years. (3 B.S. (5th ed.) 832; Laws 1854, ch. 96.) Salaries.|—Each justice receives an annual salary of $3,000. No fees are to be paid to any justice of the court for any official service. (3 2. S. (5th ed.) 833; Laws 1854, ch. 96.) Not to practise.|—The justices may not practise in any court of this State or the United States. (Zdid.) Art. 2.—Officers of the Court. Clerk.|—The court appoints its own clerk, who receives the same fees as the clerks of the Supreme Court. (3 2.8. (5th ed.) 383 ; Laws 1854, ch. 96.) Crier.j—It also appoints a crier. (Zbid.) Sheriff and Constables.|—The sheriff of Erie County, and as many constables as he summons by order of the court, must attend the terms of the court. (Zd¢d.) THE SUPERIOR COURT OF BUFFALO. 293 Officers. Jurisdiction, Attorneys.|—Attorneys admitted by the Supreme Court may practise in this court. Arr. 3.—Jurisdiction of the Court. The jurisdiction of this court is in all cases to be presumed. (3 BR. S. (5th ed.) 332; Laws 1854, ch. 96; International Bank v. Bradley, 19 N. Y. 253.) It has jurisdiction in the following actions and proceedings, where the cause of action arises, or the subject thereof is situate in the city of Buffalo: 1. For the recovery of real property, or of any estate or interest therein; or for the determination in any form of any such right or interest, or claim thereto; and for injuries to real property and chattels real ; 2. For the partition of real property ; 3. For the foreclosure of mortgages of real property and chattels real ; 4. For the admeasurement of dower ; 5. For the sale, mortgage, or other disposition of real property of an infant or person of unsound mind, ete. ; 6. To compel a specific performance by an infant heir, or other person, of a contract respecting real property and chat- tels real ; 7. For the mortgage or sale by a religious corporation of its real property, and the application of the proceeds thereof; 8. For the recovery of a penalty or forfeiture ; 9. For the recovery of personal property distrained for any cause ; ° 10. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue or under color of his office, or against a person who, by ,his command or in his aid, does anything touching the duties of the office. Also, in all other civil actions, whether the cause arise, or the subject-matter be situate, in the city of Buffalo or not: 1. In an action on contract, when the defendant, or when one or more of several defendants, resides or is personally served with summons, or occupies a tenement for business in that city ; or when the contract was made in that city ; 294 THE SUPERIOR COURT OF BUFFALO. Jurisdiction. Appeals. Lunatics, 2. In an action for any other cause, when the defendants pro- ceeded against reside, or occupy a tenement for business, in that city, or are personally served with summons therein ; 3. In an action arising on contract, or against common car- riers upon the custom or duty, when all the defendants reside out of the State, but one or more of them has property in that city ; 4. When the defendant is a corporation, created under the laws of this State, and transacts its general business, or keeps an office, or has an agency established for the transaction of business, or is established by law in that city ; 5. When the defendant is a foreign corporation, and has pro- perty in that city, or an agency established therein ; 6. When the action or proceeding is against the city of Buf- falo or its officers. ¢ It has also concurrent jurisdiction with the Supreme Court, in said city, of all common laws and statutory writs, (such as mandamus, habeas corpus, ete., etc.,) and of remedies’ now obtainable by action on such writs as are abolished, and of all special proceedings. It has exclusive jurisdiction of all actions discontinued in a justice’s court of said city, on account of the title to real estate being involved. (3 R. S. (5th ed.) 833, 834; Laws 1854, ch. 96; Laws 1857, ch. 361.) Appellate jurisdiction.|—Appeals from the justices’ courts in Buffalo are taken to the Erie county court, and from thence to the general term of this court exclusively. (8 B.S. (5th ed.) 836; Laws 1854, ch. 96.) Criminal jurisdiction.]—This court has jurisdiction in crimi- nal cases, which it is unnecessary to define here. (Jdzd.) Summons.|—In all cases where the jurisdiction of the court is not made to depend upon the service of summons within the city of Buffalo, the summons may be served in any part of the State. (8 2. 8. (5th ed.) 835; Laws 1854, ch. 96.) Lunatics, etc.}—This court has the care and custody of all idiots, lunatics, persons of unsound mind, and habitual drunk- THE SUPERIOR COURT OF BUFFALO. 295 Jurisdiction. Powers. Terms. ards, residing in Buffalo, and of their real and personal estate. (3 B.S. (5th ed.) 334; Laws 1854, ch. 96.) Effect of judyments, etc.|—Judgments of this court may be docketed in any county, with the same effect as judgments of the Supreme Court. (Zbid. p. 336.) Arr. 4.—Powers of the Court and the Justices. The court, or any judge thereof, may issue writs of subpena, attachments for contempts, and all other writs and process, to any county of the State. (8 &. S. (5th ed.) 335; Laws 1854, ch. 96.) This court has the same powers as the Supreme Court to enforce all its processes, orders and judgments, and to grant new trials and rehearings. (Jdzd.) Powers of the justices.|—Each of the justices has the same powers as a justice of the Supreme Court at chambers, and also the powers possessed by the Recorder of Buffalo, on De- cember 1, 1846. (Zdzd:) Arr. 5.—TZerms. Number of terms.}—Four general and six special terms are to be held every year. The court may prescribe the times of holding them. (3 2. S. (5th ed.) 336; Laws 1854, ch. 96.) . General terms.|—A general term may be held by two jus- tices. (Ld¢d.) All issues of law must be tried at general term. (Zé2d.) The concurrence of two justices is necessary to pronounce judgment, and if two do not concur, the case must be reheard. (Lbid.) Special terms.)\—A special term is held by one justice. (Zbid.) Issues of fact are tried at special term. (JZdzd.) Arr. 6.—Removal of causes into or from the Supreme Court. Transfer into the Supreme Court.|—Transitory actions, in which, if they were in the Supreme Court, it would change 296 THE SUPERIOR COURT OF BUFFALO. Removal of causes. Appeals. the place of trial to some other county than Erie, may be removed by order of that court, out of this court into that. (3 &. S. (5th ed.) 385; Laws 1854, ch. 96.) No other actions may be so removed. (Jbid.) A justice of the Supreme Court, or of this court, may stay proceedings in any action pending in this court, for the purpose of allowing a motion for removal to be made. (Jdd.) Such stay may be revoked in the discretion of the justice granting it. (ld2d.) On filing the order for removal with the clerk of this court, the action is deemed removed, and such clerk must imme- diately transfer all documents connected with the action to the clerk of the county where the action is to be tried. (Jbid.) Transfer into this court.|—Any action pending in the Su- preme Court may be transferred into this court, by filing with the county clerk the written consent of the attorneys on both sides. (Jbzd.) The clerk must enter an order of course, and transmit to the clerk of this court a certified copy of such order, with all docu- ments pertaining to the action. (Jbid.) Thereupon this court acquires complete jurisdiction. (Zd¢d.) (From this it may be inferred, that if in accomplishing this transfer, the aid of any court becomes necessary, the Supreme Court must be applied to, and not the Superior Court.) ‘ Art. 7.—Appeals. Appeals from the general term of this court lie exclusively to the Court of Appeals. (8 R. S. (5th ed.) 335; Laws 1854, ch. 96.) Appeals from the special term are taken to the general term, as in the Supreme Court. (Zdzd.) Appeals from a justice’s court in Buffalo lie first to the Erie county court, and from thence to this court. (Lbid. p. 336.) THE MAYORS’ AND RECORDERS’ COURTS. 297 Organization. Jurisdiction. Cuarter VII. THE MAYORS’ AND RECORDERS’ COURTS OF CITIES. ARTICLE 1. Organization of these courts. 8. Powers of the Recorders. 4, Removal of causes into the Supreme Court or County Court. 5. Appeals. Art. 1.—Organization of these Courts. These courts, though all originating in the common model, the Dutch burgomaster’s court, afterward called the Mayor’s court, are nevertheless differently organized in different cities. The cities must, therefore, be considered separately, so far at least as they differ in this respect. Albany—Troy—Hudson.]—In each of these cities, a “ May- or’s Court” is established, consisting of the Mayor, Recorder, and Aldermen of the city. (3 £. S. (5¢A ed.) 317, 320, 321; (2 A.B, [furat. | § 36. Commission to take Testimony on @ Motion. The People of the State of Mets Pork, to LM. fend M, NJ Esq., greeting: Wurrras, in a certain motion now pending in MOTIONS AND ORDERS. 405 Procuring testimony. In the Superior Court, ete. our Supreme Court, it appears to the justices thereof, that J. R. of the [town of Watervliet, in the county of Albany], has refused voluntarily to make his deposition to the facts in the premises: We therefore hereby empower you [or either of you] to take the testimony of ‘the said J. R., and require you diligently to examine him [touching the premises, or, on the interrogatories hereto annexed], first administering to him an oath well and truly to testify in the premises, [or, to answer the gaid interrogatories}, and after the same has been reduced to writing signed by you [or any one of you], and the said J. R., return the same, with this commission, to our justices of the ' Supreme Court, with all convenient speed, inclosed under your seals [or the seal of any one of you]. Wirness, the Hon. [Henry Hogeboom], one of the justices of our Supreme Court, at the [city of Albany], the... . day of © Shara ite’ one thousand eight hundred and sixty... . vara Clerk. Hamitton Hazzis, > Attorney. . 2. In the Superior Court and Court of Common Pleas. of the city of New York.j—In these courts, a summons may be issued by the court, requiring a witness to appear before a judge thereof to make his deposition. (3 £2. S. (5th ed.) 361; Laws 1840, ch. 276.) Obedience to such summons may be enforced in the same manner as in the case of a subpoena; (as to which, see next vol- ume.) (Lbid.) Sls Summons to appear and testify. [Title of Cause.] To W. B.: You are hereby summoned to appear before the Hon. [Charles P. Daly], one of the judges of this court, at chambers, 406 MOTIONS AND ORDERS. Procuring testimony. Motions in court. Motions out of court. in the City Hall, in the city of New York, to make your deposi- tion upon a motion pending before the said judge in the above entitled action. And hereof fail not at your peril. Wrrvess, the Hon. [Coartzus P. Daty, first judge of the Court of Common Pleas for the city and county] of New York. N. Jarvis, Clerk. Epuunp J. Porter, Attorney. Art. 7.—Dotions, when made in Court. Special or non-enumerated motions are heard at special term, unless otherwise provided by law. (Ante, p. 190, ule 40, Su- preme Court.) Attwhat term.|—Contested motions may not be noticed or brought to a hearing at any special term held at the same time and place with a circuit, except 1. In actions upon the calendar for trial at such circuit, and in which the hearing of the motion is necessary to the disposal of the cause; or 2. In counties in which no special term distinct from a cir- cuit is appointed to be held; motions in actions triable in any such county may be noticed and brought on at the time of hold- ing the circuit and special term therein. (GAn‘e, p. 190, Rule 40, Supreme Court.) Art. 8.—Motions before a Judge out of Court. Orders made out of court, without notice, may be made by any judge of the court in which the action is pending, in any part of the State. (Ande, p. 148, § 401; Dann v. Tyler, 6 How. 236.) It is unnecessary to attempt, in this place, to specify all the motions which may or may not be brought before a judge ont of court, as in treating of each particular motion made in the course of an action, we shall be careful to mention where it must be made. MOTIONS AND ORDERS. 407 Motions out of court. County judges. County in which to move. After the court. has made an order, a further order by a judge on the same matter, is irregular. (Stansbury v. Durell, 1 Johns. Cas. 396.) A judge sitting in court may make any order which he is authorized to make out of court. (Dresser v. Van Pelt, 15 How. 26; Matter of Knickerbocker Bk.,19 Barb. 603; but see Harris v. Clark, 10 How. 425.) County judges.|\—Ex parte orders may also be made in an action brought in any court, by the county judge of 1. The county where the action is triable; or, 2. The county in which the attorney for the moving party resides, except to stay proceedings after verdict. (Ante, p. 142, § 401.) The report of a referee is not a verdict, within the meaning of this section. (Odes v. Spencer, 8 How. 172.) A county judge has all the powers within his own county, of a supreme court judge at chambers, and may exercise the same in an action in the Supreme Court. (Ante, p. 148, § 403.) Other officers acting as judges at chambers.|—A number of local officers are empowered to act as judges out of court in an _ action in the Supreme Court. For a list of these, see ante, p. 275. Arr. 9.—County in which to move. Ex parte motions.|—Motions not requiring notice may be made before a judge of the court in any county. If before a county judge, they must be made in the county where the action is triable, or in that in which the moving attorney re- sides. (Ante, p. 143, § 401.) Motions upon notice|}—must be made within the judicial district in which the action is triable, or in a county adjoining that in which it is triable. (This does not apply to the Ist dis- trict, as to which, see post, p. 409.) (Ante, p. 148, § 401.) The county “in which the action ts triable” is the county specified in the complaint for that purpose, unless the place of trial has been changed by order of the court. (Bangs v. Sel- den, 18 How. 171, 879; Askins v. Hearns, 3 Abb. 185; Chub- 408 MOTIONS AND ORDERS. County in which to move. Motions in first district. buck v. Morrison, 6 How. 368; see Gould v. Chapin, 4 id. 185. Peebles v. Rogers, 5 How. 214, is overruled.) It was held in Gould v. Chapin, supra, that even when the place of trial was changed, the county named in the complaint remained the one in which motions were to be made, but if this decision was ever correct, it is at any rate obsolete now. (See ante, p. 52, § 126.) When a reference is ordered to a referee residing in another county, the place of trial is not thereby changed. (Wheeler v. Muitland, 12 How. 35.) When the complaint is not served or filed, the county in which the summons states that it will be filed is the proper county for a motion. (Davison v. Powell, 138 How. 288 ; John- son v. Bryan, Code Rep. N. 8. 46.) Where no county is named in the complaint, a motion may be made in any district within which it might properly be tried. (Hotchkiss v. Crocker, 15 How. 836; disapproving of the above cases.) It is not necessary to show in the moving papers that the motion is made in the proper county, if it is made before the court. (Mewcomb v. Seed, 14 How. 103 ; overruling Schermer- horn v. Devlin, 1 Code Rep. 13; see Blackmar v. Van In- wager, 5 Tow. 369.) But it is otherwise, when the. motion is made at chambers. (Dodge v. Lose, 1 Code Rep. 123; approved, Vewcomd v. Reed, 14 How. 102.) Whether an order of the court granted upon motion out of the proper county, is void,—gwery ? (Held that it is, Harris v. Clark, 10 How. 424; Mewcomb v. Reed, 14 How. 102; but see contra, Blackmar v. Van Inwager, 5 How. 368; Geller v. Hoyt, Tid. 267; and see Wells v. Jones, 2 Abb. 25.) An order granted by a county judge or judge at chambers, out of the proper county, is void. (Hddy v. Howlett, 2 Code Rep. 76.) Art. 10.—WMotions in First Judicial District. 1. In the Supreme Court—Before whom.}—Motions may be made in this district, before any judge out of court, except for a new trial on its merits. (Ante, p. 142, § 401.) - MOTIONS AND ORDERS. 409 Motions in first district. In the N. Y. Superior Court. A motion at the chambers of the Supreme Court is made “in court,” as a special term is always held at chambers, in this district. (Main v. Pope, 16 How. 272.) Motions which are required by any statute to be made én court, may be made, in the Ist district, before a judge out of court. (Disbrow v. Lolger, 5 Abb. 53.) Motion upon notice.|—All motions upon notice, in actions triable in this district, must be made therein, and no such mo- tion can be made therein in an action triable elsewhere. (Ante, p. 148, § 401; see Harris v. Clark, 10 How. 415; Canal Bank v. Harris, 10 How. 192; 19 Barb. 587.) This section does not apply to an application for a sepersedeas, under 38 2. S. (5th ed.) 8713 [2 zd. 556.] (Wells v. Jones, 2 Abb. 20.) Motions standing over.|—A1] motions in this district that are not heard on the day for which they are noticed, by reason of the inability of the judge at chambers to hear the same, stand over as a matter of course until the next day, unless a different disposition is made of them by order or consent. (dZathis v. Vail, 10 How. 459.) 2. In the Superior Court.]—Several special terms may be held at the same time, in this court. (Ante, p. 226, Rule 5, Superior Court.) When counsel on both sides attend, they may go together before any one of the judges holding a special term. (Codd v. Lackey, 12 How. 202; 4 Duer, 673.) But in order to take au order by default, application must be made, in ¢erm time, to the judge sitting in the special term room, and in vacation, to the judge sitting in the regular cham- bers, which are at that time held in the general term room. (Cobb v. Lackey, 12 How. 202; 4 Duer, 673.) It seems, that the parties should be publicly called, before an order is granted by default. (Zbzd.) Ex parte motions may of course be made before any of the judges. (Ldzd.) 410 MOTIONS AND ORDERS. Notice of motion. Length of notice. For what time. Arr. 11.—Wotice of Motion. All questions for argument, and all motions, must be brought before the court on a notice, or an order to show cause. (Ante, p. 189, Rule 39, Supreme Ct.) Wiens there is no adverse party having any interest in the subject of the motion, however, notice is not required. (Dfatter of Patterson, 4 Haw. 36.) Length of notice required.J]—“ When a notice of a motion is necessary, it must be, served eight days before the time appointed for the hearing.” (Ante, p. 148, § 402; p. 146, § 413. There are certain motions upon which a longer or shorter notice is required. But these will be mentioned elsewhere under their appropriate heads. In all cases, when notice of a motion is served by mail, double the usual time must be allowed. (Ante, p. 146, § 412.) For what time to be noticed.|—Except in the 1st district, motions must be noticed for the first day of the term or sitting of the court. (Ante, p. 195, Rule 49, Supreme Ct.) But the motion may be noticed for a later day, if a sufficient cause exists for not noticing it for the first day, and such cause is shown in the affidavits served,—but not otherwise. (Anze, p. 195, Rule 49, Supreme Ct.) Where a motion was regularly noticed for a special term in one county, which was unexpectedly adjourned without the motion being heard; and thereupon the motion was noticed for a day later than the first, at a special term in another county— held, that the excuse was sufficient. (Whipple v. Williams, 4 How. 28.) : Contested motions must not be noticed or brought to a hear- ing at any special term held at the same time and place with a circuit, except in actions upon the calendar for trial at such circuit, and in which the hearing of the motion is necessary to the disposal of the cause; and except also that, in counties in which no special term distinct from a circuit is appointed to be held, motions in actions triable in such county may be noticed and brought on at such term. (Ante, p. 190, Rule 40, Supreme Ct.) MOTIONS AND ORDERS. 411 Notice of motion, Stating grounds. General relief. Entitling notice.|}—Whether a notice must be entitled in the cause, guery? (See Bowman v. Sheldon, 5 Sand. 658 ; Blake v. Locy, 6 How. 109; Clickman v. Clickman, 1 Coms. 611; 1 Code Rep. 98.) It is certainly best to entitle it. Stating grounds of motion.}—The grounds upon which the motion is based should distinctly appear, either in the notice itself, or in the affidavits served. (lis v. Jones, 6 How. 297; Bowman v. Sheldon, 5 Sand. 660.) When the motion is for irregularity, the notice must specify the irregularity complained of. (Ante, p. 190, Rule 39, Su- preme Ct. See Baater v. Arnold, 9 How. 448; Loche v. Ward, 7 How. 416.) “ Other and further relief.” |—It is usual to insert in the notice a clause for “such other order or relief as the court may grant.” But though relief is often granted upon such a notice, the practice was disapproved by Capy, J. (Mfann v. Brooks, 7 How. 457; see Shear v. Hart, 3 How. 75.) The practice is, however, well settled. Thus, on a notice of motion to set aside a summons, and “for such other order as the court may grant,” the complaint was set aside, instead. (Boington v. Lapham, 14 How. 361.) A mandamus having been applied for, a certiorart was allowed, under this clause. (People v. Turner, 1 Cal. 156.) So on application for the dissolution of an injunction, a new party was joined. (Martin v. Kanouse, 2 Abb. 390.) On a motion to set aside a summons, an attachment was set aside. (Zravis v. Tobias, 7 How. 93.) Costs will not be granted under this clause. (WVorthrop v. Van Deusen, 3 Code Rep. 140; Mann v. King, 18 Vesey 297.) No relief can be granted under it, except such as would be justified by the facts set forth in the moving papers. (Bellin- ger v. Martindale, 8 How. 115; see Shear v. Hart, 3 id. 75.) Upon a prayer for “such other order as might be just,” a judgment cannot be granted. (Darrow v. Miller, 5 How. 251. Asking too much.|—The moving party should never give 412 MOTIONS AND ORDERS. Notice of motion. Costs. Irregularity. Form of notice. notice that he will ask for more relief than he believes himself entitled to, as-if any material part of the relief applied for is denied, he will be refused costs of motion, although his motion may be in the main successful. (Corbin v. George, 2 Abb. 468; Penfield v. White, 8 How. 88; Steam Nav. Co. v. Weed, 8 How. 50; Whipple v. Willéams, 4 How. 81; Bates v. Loo- mis, 5 Wend. 78.) Asking for costs.|\—I¢ seems, that unless costs are asked for in the notice, they cannot be granted at the hearing. (Zown of Guilford v. Cornell, 4 Abb. 225 ; Saratoga R. R. v. McCoy, 9 How. 841; Mann v. King, 18 Ves. 297; but see contra, Butler v. Gardener, 12 Beav. 526; Clark v. Jaques, 11 Beav. 623.) But if costs are asked upon a motion, which is not a proper subject for costs, and such motion is denied, the mover will be charged with costs. (Weeks v. Southwick, 12 How. 170.) Countermanding notice.|—After a notice has been served, although it be countermanded, yet the opposing party has a right to appear at the time appointed, and have the motion dis- missed with costs. (Bates v. James, 1 Duer, 668.) Lrregularity.]—N otices of motions to set aside any proceeding for irregularity, must specify the irregularity complained of. (Ante, p. 190, Rule 39, Supreme Court.) And no objection on this ground, that is not so specified, will be regarded at the hearing. (Bawter v. Arnold, 9 How. 448.) All motions for irregularity must be made within one year after entry of judgment. (3 &. S. (5th ed.) 637; (2 id. 359]; Van Benthuysen v. Lyle, 8 How. 312; Whitney v. Kenyon, 7 How. 459.) § 38. Notice of Motion (general form.) [Title of Cause.] Take notice, that on [state the papers on which the motion is founded], a motion will be made [at a special term of this court, to be held at ....., or, before Hon. ..... )» a jus- MOTIONS AND ORDERS. 413 Notice of motion. : Order to show cause. tice of. . . . court, atchambersin..... j,on the... . day Of see ae 18.., at. ..o’clock in the forenoon of that day, for [state object of sieation| or for such other order or relief as may be just, [with costs of motion]. Dated the....dayof...... ‘ Yours, ete., W. W. Nortsrop, To G. H. Fisuzr, Esq., [Plaintiffs] Attorney. [Defendant's] Attorney. / ‘ It was formerly usual to insert after the time fixed for the motion, the clause “or as soon thereafter as counsel can be heard,” but even under the old practice this was unnecessary. Art. 12.— Order to show Cause. In some cases, where immediate relief is needed, it is usual to obtain an order to show cause why such relief should not be granted. Sueh an order is either made returnable at an earlier day than would be allowed upon a notice; or, it includes a stay of proceedings, or it grants the relief desired until the hearing. Orders staying proceedings will be separately considered in the next article, Order shortening time.J|—“ The court or judge may, by an order to show cause, prescribe a shorter time” than eight days’ notice. (Ante, p. 148, § 402.) This order can be sranted only when a special reason for short notice appears on the papers presented, and the applicant must, in his affidavit, state the present condition of the action, —whether it is at issue,—and the time appointed for holding the next cireuit in the county where the action is triable. (Ante, p. 189, Rule 39, Supreme Ct.) It seems, that the time for notice of motion for judgment on a frivolous answer or demurrer, cannot be shortened by an order to show cause. (Lefferts v. Snedeker, 1 Abb. 41.) 414 MOTIONS AND ORDERS. Order to show cause. Affidavit. How returnable. § 39. A fidavit to obtain Order to show Cause. [Zitle of Cause.] County or [Kines]: A. B., the [plaintiff] above named, being duly sworn, says: [stafe the special reason Sor desiring to shorten the time of notice.] That issue [was joined in this action on the 10th of May, 1860, or, has not yet been joined,] and the cause [has been noticed for trial by both parties for the first Monday of October next], that the place of trial is in [Kings] county, and the next circuit in said county will be held on the [said first Mon- day of October] next. [ Surat. ] A.B. When returnable.|—By rule of the N. Y. Common Pleas, an order to show cause must be returnable on the first day of a special term, unless special reason to the contrary is shown by affidavit. (Ante, p. 232.) In effect, the same thing is required by the 39th and 49th rules of the Supreme Court, taken together. (Ante, pp. 190, 195.) Where returnable.|—Except in the first judicial district, every order to show cause must be returnable before the judge who grants it, or at a special term appointed to be held in the district in which such judge resides. (Ante, p. 190, Rule 39, Supreme Ct.) - It has been Ae/d that an order to show cause, returnable at special term, can be granted only at special term; and that an order made by a judge out of court must, invariably, be returnable before the same judge. (Hasbrouck v. Ehrich, % Abb. 81; Merritt v. Slocum, 6 How. 350.) But this construe- tion is not sustained by Rule 39, supra. MOTIONS AND ORDERS. 415 Order to show cause. By court. ‘By a judge. § 40. Order to show Cause ;—by the Court. Supreme Coorr. AE ; | At a special term held at the [City : Hall] in the [city of Brooklyn], on agenist the .... Hay Ol 62.5.4 ho PS ky C. D. \ Present: Hon. Jamus Emort, Justice. On reading and filing the affidavit of A. B., and on motion of C. Frost, counsel for [plaintiff] : OxvereD: 1. That the [defendant] show cause ata special term of this court, to be held at the [City Hall] in the [city of Brooklyn], on the....dayof....... , 18 .., at 10 o'clock in the forenoon, why [state the relief desired by the moving party|, with costs of motion. 2. That a copy of this order, and of the affidavit upon which it is granted, be served upon the attorney for the [defendant], at least [five] days before the time above specified for showing cause herein. CW, T., Carvin Frost, Attorney. Clerk. § 41. Order to show Cause ;—by a Judge. Supreme Court. Bie JB against C.D. [As in § 40, to the words “show cause”’] before me, [07, at a special term etc. as in § 40,] at chambers in the [City Hall, ete. as in § 40, to the end.] James Emorr. Dated the... . day of 416 MOTIONS AND ORDERS. Stay of proceedings. By court. Bya judge. Arr. 18.—Stay of Proceedings pending Motion. It is often necessary, or expedient, to stay all proceedings on the part of the opposing party, until a motion for some relief can be made. This power is inherent in the court, but is also conferred by statute upon judges out of court,with certain limitations. And for the sake of convenience, it is far more usual to apply to the judges out of court, than to a special term. The court may grant a stay of proceedings, without notice to the opposing party, and for any length of time. The restric- tions hereafter mentioned, do not apply to orders made ¢ an court. (Harris v. Clark, 10 How. 421.) The following rule, however, seems to apply to orders in court as well as ont of court: ‘“‘ Vo order served after the action shall have been noticed for trial, if served within ten days of the circuit, shall have the effect to stay the proceedings in the action, unless made at the circuit where such action is to be tried, or by the judge who is appointed or is to hold such circuit.” (Ante, p. 190, Rule 89, Supreme Ct.) Stay by a judge out of court.|—“ No order to stay proceed- ings for a longer time than twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party.” (Ante, p. 148, § 401.) A judge has not power to grant a stay for even twenty days, except for the purpose of affording opportunity for some further proceeding. An order staying proceedings therefore, unaccom- panied by a notice of motion, is a nullity, and may be disre- garded. (Sales v. Woodin, 8 How. 350; Schenck v. Ke, 4 How. 248 ; Loosevelt v. Fulton, 5 Cow. 439; see Bank of Gen- esce V. Socn 15 How. 15.) Even when a notice of motion is served, an absolute stay for twenty days, without regard to the time within which the mo- tion can be made, is, if not void, clearly irregular. The stay should be limited to such time as will enable “the moving party to obtain his desired relief, and no longer. (Sales v. 1 oodin, 8 How. 850; Chubbuck v. Morrison, 6 How. 870.) 43 MOTIONS AND ORDERS. ALT Orders staying proceedings. Erroneous orders. Jt seems, that no order staying proceedings should be granted by a judge that does not ¢ terms limit its operation to at most 20 days. (Lottimer v. Lord, 4 E. D. Smith, 188 ; Steam Naw. Co. v. Weed, 8 How. 50.) Successive orders.|—When a judge at chambers has granted an order staying proceedings for 20 days, neither he nor any other judge out of court can grant a second order, upon the same state of facts, prolonging the stay. (Anon., 5 Sand. 656; Millis v. Thursby, 11 How. 115; Sales v. Woodin, 8 How. 350; overruling Langdon v. Wilkes, 1 Code Rep. N.S. 11.) Erroneous order, how treated.|—An order staying proceed- ings must be obeyed, although improperly granted, or fraudu- lently obtained. (Harris v. Clark, 10 How. 426; Gould v. Loot, 4 Hill, 556.) But if granted by a court or judge not having jurisdiction, - it may be disregarded. (Harris v. Clark, 10 How. 424; Spen- cer v. Barber, 5 Hill, 570.) Lt seems, that an ex parte order by a judge, staying proceed- ings more than 20 days, may be disregarded. (L/asbrouck v. Ehrich, Abb. 80; Bangs v. Selden, 13 How. 374; Sales v. Woodin, 8 How. 3850 ; Huff v. Bennett, 2 Code Rep. 139.) So, if the stay be absolute, and unaccompanied by any notice - of motion. (Sales v. Woodin, 8 How. 350; Schenck v. MW’ Rie, 4 How. 248; but see Hempstead v. Hempstead, 7 How. 9, contra.) If merely irregular, the party aggrieved should move to va- cate the order fora stay. (Hempstead v. Hempstead, 7 How. 8.) What is “a stay of proceedings.”|—Subd. 6 of § 401 of the Code—and therefore this article—reter only to a general stay of proceedings. An order enlarging the time for answering, for making a case, etc., is not within the meaning of this article. (Huff v. Bennett, 2 Code Rep. 139; Wéleock v. Curtis, 1 id. 96; see Adams v. Sage, 13 How. 18; Thompson v. Blanchard, 1 Code Rep. 105.) tt 27 ~ 418 MOTIONS AND ORDERS. Service of moving papers. Time of service. Arr. 14.—Service of Moving Papers. Copies of all the-affidavits or other papers upon which the motion is founded, must be served upon the adverse party. But copies of papers in the possession of the adverse party need not be served. Thus, where the motion is made wholly or partly on the pleadings, of which copies were previously served, it is not necessary to serve fresh copies. (Mewhury v. Newbury, 6 How. 182; Washington Ins. Co. v. Slee, 1 Hoff. Ch. Pr. 492; see Vun Benthuysen v. Stevens, 14 How. 71.) No papers can be read in favor of the motion, at the hear- ing, that have not been served the same length of time before the hearing as was required for the notice. (Holmes v. Wil- liams, 8 Caines, 126; Jackson vy. Viseher, 2 Johns. Cas. 105.) If new facts come to the knowledge of the mowing party, he should serve supplemental affidavits, and postpone the motion to the next non-enumerated day. (Bergen v. Boerwin, 2 Caines, 258.) Papers that have been served on the adverse party, more than eight days before the motion, though not at the same time with the notice, may be read at the hearing, if the notice intelligibly refer to such papers. (Van Benthuysen v. Stevens, 14 How. 71.) Papers that are in possession of the adverse party at the time of noticing a motion, may be used at the hearing in support of it, no matter Aow he received them. (Jbid.) Erroneous coptes.|—Clerical errors, that do not mislead, will not vitiate a copy of an affidavit. (See Graham v. JL Coun, 5 How. 853; Livingston v. Cheetham, 2 Johns. 479.) Time of scrvice.|—All papers must be served at least eight days before the hearing, unless the time is shortened by an order to show cause. (Ante, p. 148, § 402.) The same rule applies to supplemental affidavits. (I vJvox v. Howland, 6 Cow. 576.) Mode of service.|—See next chapter. On order staying proceedings.|—It is not necessary to serve \ MOTIONS AND ORDERS. ; 419 Preparation to oppose. The hearing. copies of the affidavits upon which a stay of proceedings pend- ing a motion has been granted. (Harris v. Clark, 10 How. 422; Langdon v. Wilkes, Code Rep. N. 8. 10.) Arr. 15.—Preparation to Oppose. After the notice or order to show cause has been served, the adverse party must of course prepare to oppose the motion, if he has any objection to it. But if he does not object to it, he may sometimes gave costs by offering to consent that the order desired by his opponent may be entered without costs. In case of opposition, the defensive party should consider 1. The defects, if any, in his opponent’s proceedings : 2. His own defence upon the merits. For objections of the first class must be raised first upon the hearing, or they will be considered waived. (Lain v. Pope, 16 How. 271; Loosevelt v. Dean, 3 Caines, 105.) And they must be raised at the hearing, if in any way prac- ticable. Thus, if a notice of motion is served within less than eivht days of the time set for hearing, the opposing party should attend, and raise the objection there. (J/ain v. Pope, 16 How. 271.) In order to resist upon the merits, affidavits should be pre- pared in the usual manner. If there is not time to do so within the period allowed by the notice, application should be made upon affidavit for a postponement of the hearing, show- ing some reason why the papers cannot be prepared in time. (Jackson v. Ferguson, 8 Caines, 127.) It is not necessary to serve copies of the affidavits upon the moving party. Arr. 16.—The Hearing. It is the duty of the party who gave the notice, or obtained the order to show cause, to bring on the motion. And his counsel is entitled to open and close the argument. The party “ showing cause ” against a motion, is not the moving party. (NW. ¥. & Harlem R. R. v. Mayor of N. ¥., 1 Hilton, 568.) The argument is oral, and except by permission of the court, 420 MOTIONS AND ORDERS. The hearing. Amendments. only one counsel can be heard on each side, and for only one hour each. (Ante, p. 196, Rule 54, Supreme Court.) When heard.J—At special term or chambers, a portion of every day is set apart for special motions—usually from 10 to 12 o’clock, but this is regulated at the discretion of each judge, and notice is generally posted up. At general terms of the Supreme Court, the first day, the first Thursday, and the second Friday, are set apart for non- enumerated motions, to be heard immediately after the open- ing of the court. (Ante, p. 195, Rule 48, Supreme Court.) Motions having preference.|—Motions to vacate or modify a provisional remedy, and appeals from orders allowing provi- sional remedies, have preference over all other motions. (Ante, p. 148, § 401.) . Pa Motions at chambers.—Transfer.J—* When notice of a motion is given, oran order to show cause is returnable, before a judge out of court, and at the time fixed for the motion he is absent, or unable to hear it, the same may be transferred, by his order, to some other jase before whom the motion might originally have been made.” (Ante, p. 143, § 404.) This is unnecessary in the first district, as motions in such cases may be heard by any judge at chambers, or if not heard, stand over tothe next day. (See Mathis v. Vail, 10 How. 458.) Preliminary objections.|—Before proceeding to argue the motion upon its merits, the opposing party should raise all ob- jections of a technical character which he perceives, as such objections will not be heard after argument on the merits. (Roosevelt v. Dean, 3 Caines, 105; and see Main v. Pope, 16 How. 271.) Amendments.|—An opposing party is sometimes allowed to amend a defect in his papers or proceedings at the hearing, without being put to a separate motion for the purpose. But the justice of the amendment must be clear. (Gracie v. Shel- don, 3 Barb. 2345; see LHees v. Snell, 8 How. 187, note.) Such amendment is usually allowed on payment of costs. (See Hees v. Snell, supra; ante, p. 69, § 174.) ye MOTIONS AND ORDERS. 421 The hearing. Reference. Granting order. Oral examination.]|—A court or judge has no power to “require either party on a motion to submit to an oral examina- tion in any way other than upon a reference or special issue awarded for the purpose. (Meyer v. Lent, 7 Abb. 231.) Art. 17.—LReference on a Motion. If the affidavits presented are not sufficiently clear or full to enable the court (or judge) to determine the motion, a reference or an issue of fact should be ordered. (Meyer v. Lent, 7 Abb. 231; see ante, p. 99, § 271; see also Pendleton v. Weed, 17 N. Y. 72; Barron v. Sanford, 14 How. 445; 6 Abb. 322, note.) In all the above cases, a reference was ordered. Such ques- tions are now seldom or never sent to a jury. A reference should not be ordered merely because the affida- vits conflict. The judge should decide upon the affidavits, if he can do so. (Stelle v. Palmer, 7 Abb. 182.) The court cannot require the parties to submit to an oral examination before it, on a motion. (Mfeyer v. Lent, 7 Abb. 231.) For the mode of ordering and executing a reference, see post, “ REFERENCE.” Art. 18.—Granting an Order. Extent of relief.|—The court cannot give an order for more relief than is asked in the notice, but it can grant any appro- priate order under a prayer for “other or further relief.” (Martin v. Kanouse, 2 Abb. 392; People v. Turner, 1 Cal. 152; see Mann v. Brooks, 7 How. 457.) Time when order takes effect.|\—The court never allows a party to be prejudiced by its own delay. Therefore, if after argument, the court reserves its decision, its order, whenever it may be actually granted, will date and take effect from the day when the motion was made. (Clapp v. Graves, 9 Abb. 21; Wellson v. Henderson, 15 How. 90.) Unless a stay of proceedings is granted, either party may proceed, pending the decision, as if no such motion had been 499 MOTIONS AND ORDERS. Granting order. Entitling. Form of order. made. But this will be done at the party’s own risk. If any proceeding is taken, which could not have been taken had the final decision of the court been announced at the hearing, it will be set aside as irregular, with costs. (Wéllson v. Len- derson, 15 How. 90.) Entitling an order.|—Where the judge who grants the order would have jurisdiction out of court, the entitling of the same as in special term does not make it void, although the court, as such, would have no jurisdiction. (Dresser v. Van Pelt, 15 How. 26; Anickerbocker Bank, 19 Barb. 603; but see Harris v. Clark, 10 How. 425, contra.) The following are examples of the formal parts of an order, when granted. § 42. Order by a Court. Supreme Court. At aspecial term held at Boe wees on the... 2. day. of oa: 060t«U YS lg TS. ay BE-tHe ae ssl 8 against in the [city of Albany]. C. D. | Present, Hon. [ Henry Hocrzoom], Justice. On reading and filing notice of this motion, [o7, order to show cause, granted by this court onthe... .dayof..... 1, and [the affidavit of A. B. in support of the motion, and of C. D. in opposition thereto, and upon all the pleadings and pro- ceedings in this cause, as the case may be], and on motion of J. L. M’Kown, counsel for the [plaintitf], after hearing H. S. M Call, counsel for the [defendant], opposed ; Orverep: That [set forth the objects of the order] with [ten dollars] costs. J. L. J. L. M’Kown, Clerk. Attorney. MOTIONS AND ORDERS. 433 Form of order. Denying motion. § 43. Order by a Judge at Chambers. Supreme Court. Bs against O. D. J [As tn § 42, to the signatures.| H. Hocrsoom. Dated at [Albany], the Sein Or xe a ew 18. Specifying papers.J|—The order should mention all the affida- vits or other papers, which have been read at the hearing. (See ante, p. 229.) Arr. 19.—Denying an Order. The following is a general form for an order denying a motion: Z § 44. Order denying Motion. [Title and caption as in § 42, or § 43.) On reading and filing [as tm § 42 to the word “ opposed”) on motion of counsel for [defendant], ordered, that the motion [to change the place of trial, on whatever the motion may be], be denied, with [ten dollars] costs, [payable by the plaintiff.] [Signed as in § 42, or § 43.] Affirmative relief. |—It is irregular to grant affirmative relief to an opposing party, upon statements in his papers which the f 424 MOTIONS AND ORDERS. ~ Proceedings on default. Proof of service. moving party has had no opportunity to answer. (Gracie v. Sheldon, 3 Barb. 234.) Art. 20.—Proceedings on Default. Default of opposing party.|—If the adverse party does not appear at the hearing, the moving party is entitled to the relief asked in his notice of motion, on proof of due service of the notice or order to show cause, and of such other papers as are required to be served by him, unless the court shall otherwise direct. (Ante, p. 189, Rule 39, Supreme Ct.) But the moving party cannot have any relief not asked for in the notice or order. (Vorthrop v. Van Deusen, 3 Code Rep. 140.) Nor will the court allow any party to gain, by the default of an opponent, an indirect advantage over other suitors of the court. Thus, the Court of Appeals refused to grant, upon default, an order giving a substantial preference upon the calendar. (€rain v. Rowley, 4 How. 79.) If a motion is noticed for a day out of term, by mistake, the mover must attend upon that day, and cannot take a default upon the first day of the ensuing term. (Vernovy v. Tawney, 3 How. 359.) Proof of service.|}—The service of the moving papers must be proved, before a default can be taken. (Ante, p. 189, Rule 39, Supreme Ct.) If the service, or proof of it, be insufficient, the motion will be denied. (Jackson v. Giles, 3 Caines, 88.) Service of the moving papers should be proved by an affida- vit or admission. § 465. Afidanit of Service of Papers on @ Motion. [Title of Cause.] County or [Kines]: F. G. being duly sworn, says: that [he is a clerk in the office of E. F., plaintiff's attorney, and that] on the..... day Of js) ae ace 18 . ., he served [a notice MOTIONS AND ORDERS. 425 Proof of service. Admission. Order by default. of motion, of which the within is a copy, or, a copy of the order hereto annexed], with the [affidavits] also annexed, upon G. H. Esq. the [defendant’s] attorney, at his [office, No. iad dicey Ube nee st., Brooklyn. ] [Jurat.] F. G. For avariety of forms of affidavits of service, see next chapter. It is usual, and saves much unnecessary trouble, to obtain an admission of service, which should be indorsed on the back of the notice or order. § 46. Admission of Service. (Brooklyn, May 1, 1860.] Dueservice of the within [notice of motion, or, order to show cause], and of the [affidavits] annexed, is hereby admitted. G. H. [Defendant's] Attorney. By admitting due service, the attorney or party signing is debarred from showing that the papers were not served in time. (Struver v. Ocean Ins. Co., 9 Abb. 277.) The order in case of default will vary but slightly in its terms from the usual form. It may be substantially as follows: § 47. Order granted by default. - [Title and caption as in § 42 or § 43.] On reading and filing [notice of motion, or, order to show cause, returnable this day,] and affidavit [or admission] of due service of same upon the [defendant’s attorney] with the [affidavits] read upon this motion, and upon the [affidavits of 426 MOTIONS AND ORDERS. Proceedings on default. Default of mover. A. B. and E. F., and also upon the pleadings in this cause ]; on motion of E. F., of counsel for [plaintiff,] no one appearing to oppose— Oxperep, that ete. [Signed as in § 42 or § 48.) Default of moving party.|—Except in the first district, a party attending pursuant to notice, to oppose a non-enumerated motion, if the same shall not be made on the day for which it is noticed, may, at the close of that order of business, take a rule against the party giving the notice for costs for attending to oppose. (Ante, p. 195, Rule 48, Supreme Ct.) After notice of a motion has been given, a countermand of it will not deprive the opposing party of his right to attend and take a rule for costs. (Bates v. James, 1 Duer, 668.) § 48. Order dismissing Motion by Default. [ Title of Cause.] [ Caption. ] On reading and filing notice of motion for [o7, an order to show cause, returnable] this day, served by the [plaintiff’s at- torney,] and such motion not having been made according to the 48th rule of [this] court ; on motion of G. H. of counsel for [defendant,] the motion to [state object of motion briefly,] is dis- missed, with [ten dollars] costs, to be paid by the [plaintiff.] [Signatures as in § 42, or § 43.) General rules in case of default.|—When a rule is obtained by default, the counsel obtaining it must indorse his name as counsel, on the paper containing the proof of notice; and the clerk, in entering the rule, must specify the name of such coun- sel. (Ante, p. 196, Lule 55, Supreme Ct.) ; MOTIONS AND ORDERS. 427 Relief from default. Entry of order. Lelief from default.\—The court may, inits diseretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from an order taken against him through his surprise, mistake, inadvertence, or excusable neglect. (Ante, p. 69, § 174.) Such an application should be made on notice, and upon affidavits clearly setting forth the grounds upon which relief is asked. The order will of course be in a conditional form; as to which, see post, p. 429. The motion may be renewed, upon affidavits excusing the default. (Bowman v. Sheldon, 5 Sand. 659.) But it is more regular, and much safer, to get the default opened, and proceed on the original motion. (Zdcd.) Art. 21.—Eniry of Order. It is the duty of the prevailing party to draw up and enter the order with the clerk. (Savage v. Felyea, 3 How. 277; Whitney v. Belden, 4 Paige, 140; see Hoffman v. Tredwelt, 5 Paige, 82.) Neither party can have any benefit from a decision of the court, until it is entered. (Whitney v. Lelden, 4 Paige, 141.) If the party who ought to enter the order omits to do so within twenty-four hours, any other interested party may do it. (Whitney v. Belden, 4 Paige, 141.) Orders out of court.|\—An order granted by a judge out of court on notice, should be entered with the clerk. (Ante, p. 127, § 850; Savage v. Lelyea, 8 How. 277.) The opposing party may require such an order to be entered for the purpose of appealing. (Ante, p. 127, § 350.) The Code does not state how this requirement is to be en- forced, but we presume that the opposing party may enter it himself. (Whdiney v. Belden, 4 Paige, 141.) An order made out of court, without notice, need not be en- tered. (Savage v. Lvelyea, 8 How. 278.) Settling terms of order.|—If the order is special in its pro- 428 : MOTIONS AND ORDERS. Entry of order. Filing papers. visions, a draft copy should be submitted to the adverse party, that he may propose amendments. (Whitney v. Belden, 4 Paige, 141.) If the party entitled to draw up the order does not do so cor- rectly, the adverse party should apply to have it conformed to the decision. (Hunt v. Wallis, 6 Paige, 375.) Settling costs.|—The order should settle the amount of costs allowed, or designate some officer to settle the amount. Other- wise no costs can be obtained. (Van Schaick v. Winne, 8 How. 6; Wellis v. De Forest, 6 id. 415; Mitchell v. Westervelt, 6 id. 268, 8311; Lucas v. Johnson, 6 id. 123; Savage v. Darrow, 4id.75; DMarrison v. Ide, 4id. 305; 38 Code Rep. 28; see Laws of 1840, p. 333, § 15.) Service of order.|—A copy of the order, or a written notice of its entry, must be served on the adverse party, in order to limit his right to appeal. (Tyler v. Stemmons, 6 Paige, 132; Jenkins v. Wild, 14 Wend. 545.) Until served, the moving party can take no advantage by the order. (Jackson v. Wilson, 9 Johns. 265.) Art. 22.—Filing Papers. It is the duty of the attorneys on both sides to file with the clerk the papers used by them on a motion. (Savage v. Relyea, 3 How. 276; Anon., 5 Cow. 13.) This is required by positive rule in the N. Y. Superior Court. (See ante, p. 229.) The court will, upon a mere suggestion that the papers are not filed, order the attorney in default to file them. (Anon, 5 Cow. 13.) In what county.|—The papers must be filed in the county which is specified in the complaint, or directed by the court, to be the place of trial. (Ante, p. 177, Rule 8, Supreme Ct.) When the motion is made in another county, the clerk must deliver to the prevailing party, unless the court otherwise direct, a certified copy of the rough minutes, showing what papers were used or read, together with the affidavits and MOTIONS AND ORDERS. 429 Filing papers. ; Conditional orders. papers used or read upon such motion, with a note of the deci- sion thereon, or the order directed to be entered, properly certified. And the party to whom the same are delivered must file them, and enter the proper order in the proper county within ten days thereafter, or he will lose the benefit of the order. (Ante, p. 177, Rule 3, Supreme Ct.) Arr. 23.—Conditional Orders. An order granting a favor is frequently accompanied with a condition, that the party obtaining it shall do certain things, or submit to certain terms. The most common terms are payment of costs, but stipulations are often required, as to accept short notice of trial—to abstain from bringing an action—to com- mence one—to submit to a reference, etc., etc. Terms discretionary.|—Such terms are discretionary with the court or judge granting the order, and cannot be appealed from. (Gale v. Vernon, 4 Sand. 709.) If a stipulation is required, which the party knows he will not be able to fulfill, he should nevertheless sign it, and upon any motion by his opponent to enforce it, should state his excuse. (ale v. Vernon, 4 Sand. 709.) Lorm of conditional order.|—In order to have the effect of a condition precedent, the order should direct or allow certain things to be done, on payment of costs, etc. (Sturtevant v. Foairman, 4 Sand. 674.) An order allowing a party to amend, and requiring him to pay costs, without using the words “on payment,” or anything equivalent thereto, is not a conditional order. Such party would have an absolute right to amend, and 7 seems, the opposite party would be absolutely entitled to the costs, to be collected in the usual manner. (Ldid.) Time for complying with terms.|—Unless the order prescribe a different time, the party whose duty itis to pay costs or do any other act under the condition, has twenty days allowed him for the purpose. (Ante, p. 197, ule 57, Supreme Ct.) This time runs from the date of the order, and not from the 430 MOTIONS AND’ ORDERS. Conditional orders. Renewing motion. time when it is served upon the party to whom the favor is allowed. (Willink v. Renwick, 22 Wend. 609.) The time for compliance with a condition is not enlarged by an appeal from the order. (Ferry v. Bank of Cent. V. Y¥., 9 Abb. 103; see Ford v. David, 1 Bosw. 594.) Mode of complying.|—The party to whom a favor is granted, on payment of costs, must seek out the opposite party, and ten- der the costs, if the amount is fixed, or offer to do so upon set- tlement in the mode appointed by the order. (Hoffman v. Tredwell, 5 Paige, 83; Pugsley v. Van Alen, 8 Johns. 272; and see Delehanty v. Hoffman, 1 How. 7.) A mistake on this point will be excused on only very strin- gent terms. (See Delehanty v. Hoffman, 1 How. 7.) Arr 24.—Renewing Motion. If any application for an order be made to any judge or justice, and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application upon the same state of facts, may be made to any other judge or justice. (Ante, p. 183, Rule 23, Supreme Ct.; Cazneau v. Bryant, 4 Abb. 103; Bowman v. Sheldon, 5 Sand. 657; Bel- linger v. Martindale, 8 How. 113; Wéllet v. Fayerweather, 1 Barb. 73; Dolifus v. Frosch, 5 Hill, 493; Allen v. Gibbs, 12 Wend. 202.) If upon such subsequent application any order be made, it will be revoked. (Ante, p. 183, Rule 23, Supreme Ct.) Under special circumstances, such an order may be allowed to stand, upon payment of costs. (Dolifus v. Frosch, 5 Hill, 495.) What 4s the same “ state of facts.”|—The discovery of new evidence in support of the matter previously urged, gives no right to renew a motion. (Hof'man v. Livingston, 1 Johns. Ch. Rep. 211.) ‘ “New matter,” is something which has happened, or come to the knowledge of the moving party, since the decision of the previous motion. (Wellet v. Fayerweather, 1 Barb. 733 see Cazneau v. Bryant, 4 Abb. 403.) MOTIONS AND ORDERS. 431 Leave to renew. Order granting leave. Leave to renew.|—If upon a motion being denied, the mov- ing party finds that the merits have not been fully shown at the hearing, he should ask for leave to renew, to be inserted in the order denying his motion. (Cazneau v. Bryant, 4 Abb. 403; Afitchell v. Allen, 12 Wend. 290.) Such a request is generally granted, and sometimes such leave is inserted without being asked for. (Jfitchell v. Allen, 12 Wend. 290.) If such leave has not been granted, an application should be made to the court which may grant leave. (Semble, Bellin- ger v. Martindale, 8 How. 115; Dollifus v. Frosch, 5 Hill, 494; Lfitchell v. Allen, 12 Wend. 290.) Leave to renew cannot be granted by a judge out of court. (Dolifus v. Frosch, 5 Hill, 495.) Leave to renew “is always granted, if, in the circumstances of the opposition, there is anything to excite suspicion of un- fairness, or a belief that the party moving is taken by sur- prise.” (dfitchell v. Allen, 12 Wend. 290.) Application for leave to renew should be made to a special term upon the usual notice, and upon an affidavit stating the party's excuse, whatever it may be. If granted, the order may be as follows ; § 49. Order granting leave to renew Lotion. [As in § 42, to the words “ordered that”] the [plaintiff] have leave to renew the motion for [a change of the place of trial, or whatever the case may be], made before [this court, or, Hon. R. W. Peckham, a justice of this court], on the. ... day Of 20s % , 18. ., upon the same or any other facts; on giving [the usual] notice of motion, [and paying... .. dol- lars costs] to [defendant’s attorney]. J. L., J. L. M’Kown, Clerk. Attorney. 432 MOTIONS AND ORDERS. Renewing motion. Vacating orders. Liffect of accepting leave to renew.J—By availing himself of leave given to renew, the moving party loses his right to appeal from the original decision. (Peel v. Elliott, 16 How. 483; Woblev. Prescott, 4 E. D. Smith, 140.) “The appeal cannot be heard, although it was taken before the motion was renewed. (Zdid.) ’ Renewal without leave.}—None of the preceding remarks have any application to a motion renewed upon a different state of facts from that which existed, or was known to the moving party, at the first hearing; (no laches being imputable to him.) (Cazneau v. Bryant, 4 Abb. 404.) If a motion be denied by default, the mover may renew it upon affidavits excusing his default. But it is by no means the safest course, as such a motion is regarded as a new one, and if the time within which it must be brought is limited by law, it will be of no avail to show that the original motion was brought in time. (Bowman v. Sheldon, 5 Sand. 660, 661.) Under special circumstances, an order upon a motion impro- perly renewed without leave, was allowed to stand, upon pay- ment of costs. (Dollfus v. Frosch, 5 Hill, 495.) Affidavit on renewal.|}—Upon renewing a motion as a mat- ter of right, the moving party must state in his affidavit the _, fact of his previous application. (Ante, p. 183, Rule 23, Su- preme Court.) : Art. 25.— Vacating an Order. Orders out of court.|—An order made out of court, without notice to the adverse party, may be vacated or modified, 1. By the judge who made it, without notice ; 2. By the court, upon notice. (Ante p. 118, § 324.) In regard to orders made out of court wpon notice, there are two apparently contradictory decisions. On the one hand, it was Acld in general term, that such orders could not be appealed from, but must be reached by a motion to vacate, at special term. (Bank of Genesee v. Spencer, 15 Tow. 14.) On the other hand, it was held by Harris, J., that such MOTIONS AND ORDERS. 433 Vacating orders. Orders of the court. Void orders. orders could be reversed or modified on appeal, and in no other way. (Lollet v. Weed, 8 How. 361; and see Bank of Genesee v. Spencer, supra.) We are thus compelled to express our own opinion, which is this: That such orders as are mentioned in § 349 of the Code, (ante, p. 126,) when made by a judge out of court upon notice, should be appealed from, as they may be (ante, p. 127, § 350 ), and not vacated upon motion. That all other orders, granted out of court, should be remedied, if erroneous, by a motion at special term to vacate them. Orders in court.|—Ié seems, that a motion may be made, upon leave, to vacate the order of the court, denying a motion. But it cannot be made without obtaining leave. (Mitchell v. Allen, 12 Wend. 290; Standard v. Williams, 10 id. 600.) The order of a court, if void, may be vacated. (M/arris v. Clark, 10 How. 424.) Vacating order denying motion.|}—When a motion has been denied, the moving party may obtain leave to move to vacate the order denying his motion on showing good cause. But he cannot move without leave. (Mitchell v. Allen, 12 Wend. 290; Standard v. Williams, 10 id. 600.) Void orders.|—A party aggrieved by an order of a court granted without jurisdiction, is entitled to have it vacated, though it is absolutely void. (Harris v. Clark, 10 low. 424.) So, if it purport to be the order of a court, though in reality granted by a judge out of court. (Bedell v. Powell, 3 Code Rep. 63.) ; It seems, that it is wholly unnecessary to move to vacate an order of a judge out of court, when void; and where such an application was made, demanding costs of motion, the moving party was charged with costs. (/Zunt v. Wallis, 6 Paige, 374.) The proper way to treat a void order isto disregard it. (Lcd) 28 434 NOTICES AND PAPERS: Formal requirements. - Subscription. Folios. Cuarter XIX. NOTICES AND PAPERS—THEIR FILING AND SERVICE. ARTICLE 1. Formal requirements of notices and other papers. On whom papers must be served. . Personal service. . Service by mail. . Computation of time. . Enlargement of time. . Proof of service. . Irregularities in service. . Papers to be filed. ODF ARON Art. 1.—Formal requirements of Notices and other Papers. Notices must be in writing. (Ante, p. 145, § 408.) They must be entitled in the proper court. (Clickman v. Clickman, 1 N. Y. [1 Coms.] 611; 3 How. 366; see Bowman v. Sheldon, 5 Sand. 658.) On all papers served, the attorney or party must subscribe or indorse his name and place of business. (Ante, p. 179, Lule 10, Supreme Ct.) If he omit to state his place of business, papers may be served on him at his place of residence, according to the best information that can be obtained of the same. (Ante, p. 180, Leule 10, Supreme Ct.) A notice that is not subscribed or indorsed with the name of the party or attorney serving it, is a nullity. (Yorks v. Peck, 17 How. 192.) The following rules apply to all papers in an action, includ- ing pleadings, affidavits, judgments, etc. 1. They must, if exceeding in any case two hundred words in length, be folioed, by marking each hundredth word in the text, and distinctly numbering the same in the margin; and every copy must be marked and numbered to correspond. [In practice, it is not necessary to be particular to mark precisely the hundredth word. It is sufficient to mark the folios at regular intervals of about that number of words. ] 2. All copies, either for the parties or the court, must be in- dorsed with the title of the cause. THEIR FILING AND SERVICE. 435 Formal requirements. On whom served. 3. All papers used in an action, whether as originals or copies, must be fairly and legibly written. 4. If these rules are not complied with, the clerk will not file papers thus defective, nor will the court hear any motion founded thereon. 5. When papers, defective in any of the above respects, are served upon a party, he must return them within twenty- four hours after their receipt with a statement of the particular objection made to them, or he will be deemed to have waived it. (Ante, p. 182, Rule 20, Supreme Court.) This rule settles some conflicting special term decisions to which it is not now necessary to refer. Art. 2.—On whom papers must be served. Notices and papers in the course of an action need not be served at all upon a defendant who has not appeared nor been imprisoned. (Ante, p. 146, § 414.) After his appearance, they must be served on him or his attorney. (Lbid.; see Hewitt v. Howell, 8 How. 347.) When a party has an attorney in the action, papers must be served upon the attorney, instead of the party. (Ante, p. 146, § 417.) “ Attorney” here means an attorney at law. ( Weir v. Slocum, 3 How. 398.) A notice of appeal which was served on the party, and not on the attorney, was Aeld insufficient. (Zripp v. De Bow, 5 How. 114.) Where two attorneys carried on business as partners in the name of one only, service on either was held good, though made out of the office. (Lansing v. I’ Killup, 7 Cow. 416.) After an attorney has left the State, his name cannot be used, even by his general partner, for the purpose of closing up the business. (Chautauque Co. Bank v. Risley, 6 Hill, 376.) Notices cannot therefore be served on an attorney who has become a non-resident. (Semble, Diefendorf v. House, 9 How. 244.) Where an attorney dies or ceases to act as such, the party for whom he acted must be notified to appoint another in such é 436 NOTICES AND PAPERS : : On whom served. g Personal service. manner as the court may direct, at least thirty days before any proceedings can be had against him. (3 22. S. (5th ed.) 477; [2 ¢d. 287.}) : If such party omit to comply with snch notice, papers in the cause must be served upon him personally. (Jewell v. Schouten, iN. Ys [2 Coms.]} 244.) Non-resident party.|—Where a non-resident party, who has appeared in the action, has no attorney, papers may be served on him by mail, if his residence is known ;—if not known, on the clerk for the party. (Ante, p. 146, § 415.) Arr. 8.—Personal Service. Service may be personal, that is, by delivery to the party or ‘the attorney on whom it is required to be made; or it may be as follows: I. If upon an attorney, it may be made during his absence from his office, (1.) By leaving the paper with his clerk therein, or with a person having charge thereof; or, (2.) When there is no person in the office, by leaving it, between the hours of 6 a.m. and 9 P.M., in a conspi- cuous place in the office ; or, (3.) If it be not so open as to admit of such service, then by leaving it at the attorney’s residence, with some person of suitable age and diseretion : If. Hf, upon a party, it may be made by leaving the paper at his residence between 6 a.m. and 9 Pp. M., with some person of suitable age and diseretion. (Ante, p. 145, § 409.) If the attorney’s office is found locked, service made by un- locking the door without permission, is bad. (Livingston v. Comstack, 1 How. 253; Ounpbell v. Spencer, id. 200.) Where service of a paper being required to be made by a certain day, it was taken first to the attorney’s office and then to his house, within lawful hours, on that day, but neither was found open,—service on the following day was held good, (Halooner v. Moppetl, 2 Code Rep. 71.) A service, which though technically correct, is overreaching THEIR FILING AND SERVICE. 437 Personal service. Service by mail. and oppressive, will not be sustained. (Whipple v. Welltams, 4 How. 30; Smith v. Bowen, 2 Wend. 245; see Bulkley v. Buitkley, 6 Abb. 807; Taylor v. Corbierc, 8 How. 386.) Service of any paper on a Sunday, is void. (Led v. Park, 20 Johns. 140.) To what papers this article ts applecable.j—This article has no application to the service of a summons, of process, or of any paper on which proceedings for contempt may be founded. (Ante, p. 146, § 418.) . It does not apply to a provisional remedy. (Becker v. Hager, 8 How. 69.) Arr. 4.—Service by Mail. When allowed.J}—Service by mail may be made, where the, person making the service, and the person on whom it is to be made, reside in different places, between which there is a regular communication by mail. (Ante, p. 145, § 410.) The “ person making the service” means the attorney, when one is employed, and not the party to the action, nor a person employed by the attorney. (Schenck v. M? Hie, 4 How. 247.) It is essential that there should be a regular communication by mail between the two places. (Schenck v. I? Hie, 4 How. 247.) How made.|—The paper must be deposited in the post- office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. (Ante, p. 145, § 411.) It must be placed in the post-office nearest to which the attorney serving it resides. (Schenck v. Df? Hie, 4 How. 247.) < Under somewhat similar provisions, it has been held that if a paper is put in an envelope, such envelope must be sealed. (Rathbone v. Clarke, 9 Abb. 69, note.) When an attorney has served papers with his address in- dorsed, all papers must be mailed to that address. (Jowell v. MM Cormick, 5 How. 339.) It is Aeld, that it is not necessary to address to the street and number given by an attorney, residing in a city. (Oothout v. 438 NOTICES AND PAPERS : * Service by mail. Prepayment. Time. ' Rhinelander, 10 How. 460; but see ante, p. 190, Lule 10, Su- preme Court.) Under the present law, all postage on letters must be pre- paid, or they will not go. Posting an unpaid letter is now an absolute nullity. The entire postage must be paid. It is usual to forward letters on which partial payment is made; but the person to whom a notice, ete., is mailed, paid only in part, is not bound to take it, and such service is not good. (Brass v. Nicholson, 1 How. 158; Anon., 1 Hill, 217.) An attorney is not bound to receive a letter charged with postage, though he may have reason to believe, from its exter- nal appearance or otherwise, that it contains law papers. (Anon., 19 Wend. 87.) It seems, that the attorney may return the letter to the post- man, after taking it in his hand, and looking at the postmark. (Clark v. McFarland, 10 Wend. 6386.) But if he take and open it, and upon finding that it contains a notice that he does not wish to receive, returns it on the ex- cuse of non-payment, the service is sufficient, although the postage was not paid. (Clark v. McFarland, 10 Wend. 635.) Yet, in another case, where the attorney received a paper, and paid the postage charged, but returned it immediately to the opposite party, his conduct seems to have been treated as regular, and the service as bad. (Van Benthuysen v. Lyle, 8 How. 312.) Time of mailing.|—When any time is fixed for proceeding after service of any paper, double the usual time must be al- lowed, if such paper is served by mail, except in the case of notices of trial, which may be served by mail sixteen days be- fore the day of trial, including the day of service. (Ante, p. 146, § 412.) Thus, where a complaint is served by mail, forty days must be allowed for an answer; and when notice of a motion is served by mail, it must be made sixteen days before the mo- tion, etc., ete. When a notice of judgment is served by mail, the party on THEIR FILING AND SERVICE. 439 Service by mail. Time, When complete. whom it isso served has double the usual time within which he may appeal. (Dorion v. Lewis, 7 How. 133.) When a party is limited to a certain day for the service of any paper, he may put it in the post-office on that day, and the service is good, although it may be certain that it will not reach the opposite party on the same day. (Oothout v. Rhinelander, 10 How. 460; Radcliff v. Van Benthuysen, 3 How. 67; and see below.) It may be posted at any time on that day, without regard to the time at which the mail leaves, at any rate, between 6 a.m. and 9pm. (Woble v. Trotter, 4 How. 322; overruling Maher v. Comstocks, 1 How. 87.) An order extending time to answer, served by mail on the last day of the time to answer, is well served, and if before its arri- val, judgment has been taken as for default, it is irregular. (Schuchardt v. Ltoth, 10 Abb. 203.) , When service by mail 1s complete.|—When a paper is depo- sited in the proper post-office, correctly addressed, and all the postage paid, service is complete, and the party to whom it is addressed takes all the risk of delay or failure of the mail. (Schuchardt v. Loth, 10 Abb. 203; Oothout v. Rhinelander, 10 How. 460; Crittenden v. Adams, 5 How. 310; Code Rep. N.8. 21; Van Horne v. Montgomery, 5 How. 239; Lawler v. Saratoga Ins. Co., 2 Code Rep. 114; Gibson v. Murdock, 1 Code Rep. 103; Radcliffe v. Van Benthuysen, 3 How. 68; Brown v. Briggs, 1 Wow. 152; Jacobs v. Hooker, 1 Barb. 71; see Schenck v. M’ Hie, 4 How. 248; Anon., 1 Hill, 217.) In case of irregular service by mail, if the paper is neverthe- less actually received, and that fact is proved, the service will be held good, but will date of the day on which it was actually received. (Peebles v. Rogers, 5 How. 210.) To what papers this article 1s applicable.|—This article does not apply to the service of a summons, or of process, or of any paper to bring a party into contempt. (Ante, p. 146, § 418; see Becker v. Hager, 8 How. 69.) 440 NOTICES AND PAPERS : Computation of time. Sundays, when reckoned. Art. 5.—Computation of Time. The time within which any act is to be done is computed by excluding the first day, and including the last. If the last day be Sunday, it is excluded. (Ante, p. 144, § 407.) Fractions of a day are not reckoned in computing legal time. (Judd v. Fulton, 4 How. 299; Cornell v. Moulton, 3 Denio, 15; Columbia Turnpike v. Haywood, 10 Wend. 423.) When a statute or rule requires any act to be done “after thirty days” from a certain time, such act cannot be done until the thirty-first day. (Judd v. Fulton, 4 How. 299; Com’t Bank v. ves, 2 Hill, 355.) When an act is required to be performed within a certain time, ¢. g., thirty days after some other act, it may be done at any time on the thirtieth day, without regard to the time of day upon which the pregedent act was performed. (Cornell v. Moulton, 3 Denio, 15.) Sunday, when reckoned.|—It is well settled in this State, that Sunday must be reckoned when it is an intermediate day ; (except on a two days’ notice, as to which, see enfra.) (Taylor v. Corbiere, 8 How. 386; King v. Dowdall, 2 Sand. 132; Easton v. Chamberlin, 3 How. 418; and so held in AL’Lntosh v. Great Western I. £.,1 Hare, 330.) But it has been held that a two days’ notice given on Satur- day for Monday, was not good. (Whipple v. Walliams, 4 How. 28; Rose v. M Gregor, 12 Mees. & Wel. 518; Wardle v. Ack- land, 2 Dowl. P. C. 30; Grosjean v. Manning, 2 Cromp. & Jer. 635; Maxwell v. Phillips, 6 Vesey, 146.) And where astatute limited certain proceedings to two days, held that Sunday must be excluded. (Anon., 2 Hill, 375.) But these decisions have been disapproved in a later case. (Taylor v. Corliere, 8 How. 386.) And the question is said to have been decided contra, in a general term of the N. Y. Com. Pleas. (See Voorhies’ Code, [6th ed.] 4489.) At any rate, if an oppressive or fraudulent use is made of the intervention of Sunday,—e. g., by serving a notice late on Satur- day fora proceeding early on Monday morning, with intent to obtain an advantage; such proceeding will be set aside. (See THEIR FILING AND SERVICE. 441 Computation of time. Enlargement of time. Taylor v. Corbiere, 8 How. 386; Whipple v. Willcams, 4 How. 30.) Time for publication of notices.|—The time for publication of legal notices is computed so as to exclude the first day of publication, and to include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publication. (Ante, p. 148, § 425.) Art. 6.—Enlargement of Time. 1. By a judge:\—“ The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or if the action be in the Supreme Court, by a county judge.” (Ante, p. 143, § 405.) The affidavit, or a copy thereof, must be served, with a copy of the order, or the order may be disregarded. (Ante, p. 148, § 405.) This section does not apply to an order of the court, nor does it limit the powers of the court. (Haase v. Vew York Cen- | tral R. R., 14 How. 485; Zraver v. Silvernail, 2 Code Rep. 97; and see Pry v. Bennett, (Hoffman, J.,] 7 Abb. 366.) It seems, that it does not apply to an order enlarging time to make a case or prepare exceptions, granted by the judge who tried the cause, upon his own knowledge of the facts. (Thompson v. Blanchard, 1 Code Rep. 105.) It does not apply to an order staying proceedings merely. (Langdon v. Wilkes, Code Rep. N. 8. 11.) This section does not give a judge power to allow an act to be done, by an order granted after the time for performance has expired. Relief should be then obtained from the court. (See ante, p. 69, § 174; Sheldon v. Wood, 14 How. 19.) 2. By the court.|—The court may, in its discretion and on such terms as may be just, allow any act to be done, after the time limited by the Code, or may, by an order, enlarge such time. (Ante, p. 69, § 174.) Under this pfovision, the court may allow exceptions to be 449 NOTICES AND PAPERS : Enlargement of time. Proof of service. filed nune pro tunc, after the time for doing so has expired. (Sheldon v. Wood, 14 How. 19.) Computation of time under order or consent enlarging i. ]— If the order or consent allow so many days’ “ further time ” or “additional time,” the days so allowed must be added to the time which the party applying for it had, independently of the order. (Semble, Schenck v. IW’ Kie, 4 How. 247; Lane v. Parsons, 5 Dowl. P. C. 861; Aspinwall v. Smyth, 2 J. B. Moore, 655; 8 Taunt. 592; and see Lefevre v. Molineux, 6 Dowl. P. C. 153; Zrinder v. Smedley, 3 Dowl. P. C. 89.) If the order simply gives so many days’ “time to plead,” etc., without using the word “further ” or anything equivalent thereto, the time will run from the date of the order, and not from the expiration of the legal time to which the party was entitled as of right. (Zane v. Parsons, 5 Dowl. P. C. 361; Simpson v. Cooper, 2 Scott, 840.) Art. 7.—Proof of Service. Affidavit of service.|\—In ordinary proceedings, as upon motions and summary applications, an affidavit of service in due form and manner, is sufficient proof of the fact. And service of a notice may now be proved upon the trial of an action, or in any judicial proceeding by an afiidavit of service, on first proving that the person making such affidavit is dead or insane. (Laws 1858, ch. 244, p. 394.) In any case, an affidavit of service is only presumptive proof, and may be repelled by proof that such service was not actually made. (Laws 1858, ch. 244; see Bulkley v. Bulkley, 6 Abb. 807; Van Rensselaer v. Chadwick, 7 How. 297.) An affidavit of service must of course be made by the person who made the service. An affidavit by A. that he saw B. serve C., would unquestionably be insufficient, unless in a very special case,—as for example, where B. had been injured or become incapacitated, after service, and before he had time to make the affidavit. Where a clerk had left the State after making service and indorsing a memorandum of the same; an afiidavit by the attorney, that he was informed by the clerk, and believed that THEIR FILING AND SERVICE. 443 Proof of service. Forms of affidavits. he had made such service, was held sufficient. (Jackson v. Howd, 3 Caines, 131.), § 50. Affidavit of Personal Service on a Party. [Substantially as upon service of summons, § 25.] § 51. Affidavit of Personal Service on the Attorney. [Title of Cause.] County or [Monror]: A. B. of said County, being duly sworn, says; that on the....dayof....... , 18 .., he served a [notice of motion of which the within is a copy, and copies of the affidavits annexed] on [James L. Angle, Esq.] attorney for the [plaintiff], by delivering the same to him per- sonally. [Jurat.] A. B. § 52. Affidavit of Service on Clerk in Office. [As in § 51, to the words “the same to”] the clerk of said attorney, then being in his office, [No....... st.] in the [city of Rochester], [the said attorney being absent from the same]. [Jurat.] A. B. It is not necessary to state that the attorney was absent. Service on the clerk is good, though the attorney be present. (Jackson v. Yale, 1 Cow. 215.) An affidavit of service on a clerk must state that the clerk was in the office of the attorney at the time. (Paddock v. Beebe, 2 Johns. Cas. 117 ; Jackson v. Giles, 8 Caines, 88.) 444 NOTICES AND PAPERS : ’ Proof of service. Affidavit of service by mail. Admission. But it need not state the name of theclerk. (Zvemper v. Wright, 2 Caines, 102.) § 538. Affidavit of Service by Mait. [Title of Cause.] County or [Monroz]: A. B. being duly sworn, says: 1. That he is clerk to [John W. Stebbins,] Esq., attorney for the [plaintiff] in this action, and resides in the city of [Ro- chester]. 2. That the said [John W. Stebbins, Esq., also] resides in the {said city]. 3. That, as deponent is informed and believes, [Gordon L. Ford, Esq.,] attorney for the [defendant], resides in [Brook- lyn]. [When the places are obscure, it may be well to state: 4. That there is a regular (dally, or otherwise,) communication by mail between the said places. ] _ 4. [or,5.] That onthe .... dayof...... , 18 . ., depo- nent served [a notice of which the within is a copy, ete., etc.] on said attorney for [defendant], by putting the same in the post-office at [Rochester] aforesaid, properly folded and ad- dressed to him at [No ...... street, Brooklyn] aforesaid, ’ and paying [six] cents postage theréon. ‘ A. B. [Jurat.] Admission of service.J—It is customary, and preferable, to obtain an admission of service from the attorney, which is in- dorsed upon a copy of the paper served, to the following effect : ‘THEIR FILING AND SERVICE. 445 Zé Proof of service. Irregular service. Filing papers. § 54. Admission of Service. 1 admit due service of a copy of the within. - ‘ James L. Anaun, Plaintiff’s Attorney. \ An admission of “ due service,’ is a waiver of want of full notice, though it be affirmatively shown that the service was not made in time. (Struver v. Ocean Ins. Co., 9 Abb. 27; Talman v. Barnes, 12 Wend. 228.) A mere admission of “service” does not have such an effect. It concedes the manner to have been correct, but not the time. (Lrancis v. Sitts, 2 Hill, 363.) The court will presume the signature of the attorney to an admission, to be genuine, until the contrary is shown. (See Ripley v. Burgess, 2 Hill, 361.) Art. 8.—Irregular Service. Irregularities in the manner of service, like dll other mere irregularities, are waived by retaining the paper served, or acting upon it. (See Georgia Lumber Co. v. Strong, 8 How. 246; see also Hunter v. Lester, 10 Abb. 263; Alyers v. Over- ton, 2 Abb. 344.) A paper improperly served should be promptly returned, with a statement of the reasons for so doing. (See Wilkin v. Gilman, 13 How. 225.) Tt may be returned at any time within twenty-four hours after service. (See J? Gown v. Leavenworth, 3 Code Rep. 151; 2K. D. Smith, 31; compare Sabin v. Johnson, T Cow. 421.) Arr. 9.—Papers to be filed. All papers used before the court in an action must be filed with the clerk of the court. Thus, the summons and pleadings must be filed. (Ante, p. 146, § 416.) All the papers used on a motion are required, by a rule in * f 446 NOTICES AND PAPERS. Filing papers. Order to file. Filing under orders. the Superior Court of New York city, to be filed; and the practice is the same in other courts. (See ante, p. 229, Rules Superior Court.) . If the summons and pleadings are not filed as above required, within ten days after their service, the adverse party may, upon proof of the omission, obtain an ez parte order from a judge that the same be filed within a specified time, or be deemed abandoned. (Ante, p. 146, § 416.) The court will permit a party to file a pleading after the time limited in an order, if the omission be explained, e. ¢., where a copy was filed instead of the original. (Short v. May, 2 Sand. 639.) The party who is required by an order to file a pleading, is not bound to give the adverse party notice of having done so. (Douoy v. Hoyt, Code Rep. N. 8. 286.) OF PARTIES PLAINTIFF. 447 Parties. Actions by real party in interest. TITLE VL PARTIES. CuapTerR XX. Parties Plaintiff. XXI. Parties Defendant. XXII. Parties under Disabilities. XXIII. Change of Parties. Cuarter XX. OF PARTIES PLAINTIFF. AxticLe 1. Action to be brought in the name of the real party in interest. 2. Who is the real party in interest. 8. Assignment of things in action. 4. Instances of assignable causes of action. 5. Instances of causes of action not assignable. 6. How assignment may be made. 7. Consideration for assignment. 8. What is conveyed in an assignment. 9. Splitting causes of action by assignment. 10. Set-off against assignec. 11. Persons specially empowered to sue. 12. Who may be joined as plaintiffs. 13. Who must be joined. 14. Who must not be joined. 15. Remedy of defendant against error. Art. 1.—Action to be brought in the name of the Real Party im Interest. The defendant has a right to satisfy himself that he is sued by a real plaintiff, and that the action is bond fide. For this pur- pose the court will, in proper cases, order the plaintiff's attor- ney to show his client’s residence, and his own authority to sue. (See Winety-nine Plaintiffs v. Vanderbilt, 4 Duer, 632; 1 Abb. 193; Worton v. Smith, 6 J. B. Moore, 110; Johnson vy. Birley, 5 Barn. & Ald. 540.) In actions of ejectment, a written authority is required by statute. (38 &. S. (5th ed.) 593; [2 id. 805.] See Howard v. Howard, 11 How. 80.) “Every action must be prosecuted in the name of the real party in interest,” except as follows: (Ante, p. 45, § 111.) 448 OF PARTIES PLAINTIFF. Actions by party in interest. Who is the real party in interest. 1. “ An executor or administrator, 2. A trustee of an express trust, or 38. A person expressly authorized by statute, may sue, with- out joining with him the person for whose benetit the action is prosecuted.” (Ante, p. 46, § 113.) “A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.” (Lbid.) The Code has substantially adopted the old equity rule in relation to parties. (Corning v. Greene, 23 Barb. 44; Secor v. _ Keller, 4 Sand. 419; Brownson v. Gifford, 8 How. 395 ; Hollen- beck v. Van Valkenburg, 5 id. 284; Wallace v. Eaton, id. 100.) Art. 2.— Who is the real Party in Interest. Possession.|—Possession, without title, is still sufficient to give an “interest,” as against all but the real owner. (Pad- dock v. Wing, 16 How. 547; and see Palmer v. Aldridge, 16 Barb. 134; Whitney v. Wright, 15 Wend. 171; Jackson v. Harder, 4 Sohns. 211; Jackson v. Hazen, 2 Johns. 24.) And ¢iéle, as the right to the amount due upon a note, is held sufficient to maintain a suit, without possession. (Selden v. Pringle, 17 Barb. 468; Smith v. I? Clure, 5 East, 477.) Possession of a negotiable bill or note is primd facie evidence of title. (James v. Chalmers, 6 N. Y. [2 Seld.] 2143; affirming 8. ©. 5 Sand. 52; Mottram v. Mills, 1 Sand. 40; Smith v. Schanck, 18 Barb. 345.) Nor is this presumption repelled by showing that it came into the hands of the holder after it was due. (James v. Chalmers, 6 N. Y. [2 Seld.] 214 ; Smith v. Schanck, 18 Barb. 345.) Possession of a non-negotiable note gives no presumption of title. (Barrick v. Austin, 21 Barb. 242.) The holder of a negotiable instrument, who has purchased it in good faith, is the real party in interest, although he has only agreed to pay for it after its collection. (Cuméngs v. Dorris, 3 Bosw. 560.) But if such ‘purchaser have agreed, in case he does not recover and pay for it, that he will return it to the seller, the : OF PARTIES PLAINTIFF. 449 Who is the party in interest. " Assignment of things in action. latter is the real party in interest. (Ailmore v. Culver, 24 Barb. 656.) Agent.|—Where a contract is made by an agent, purely and avowedly “as agent for A. B.,” an action upon such contract must be brought by the principal, and cannot be maintained by the agent for the benefit of such principal. (Consederant v. Brisbane, 2 Bosw. 471. Reversed, however, in Court of Appeals. See N. Y. Zrans., Dec. 31, 1860.) Where an agent makes a contract in his own name, without referring in the contract to his principal, the latter is the real party in interest, and may sue in his own name. (Van Lien v. Byrnes, 1 Hilton, 139 ; Erickson v. Compton, 6 How. 471; Lane vy. Columbus Te Co., "9 Code Rep. 65.) Or the action may be brought by the agent. (Morgan v. Leeid, 7 Abb. 215.) Covenant.|—The proper person to sue for a breach of cove- nant by a lessee, is the landlord at the time the covenant was broken, even though he afterward parted with his right to the property. (Beach v. Barons, 13 Barb. 315.) Agreement to pay a third person.J}—Where A. purchased property at auction from B., and agreed with B. that he would pay the auctioneer’s fee, Aeld that the auctioneer could sue A. therefor. (Muller v. Maxwell, 2 Bosw. 859; see Lawrence v. Lox, 20 N. Y. 268.) Nuisance.|—An action for a public nuisance must be brought by the attorney-general. (Davis v. Mayor of N. Y.,14 N. Y. 526; 2 Duer, 667; and cases cited.) Unless it occasion special injury to some private person, who may then sue alone. (Lbid.; Milhaw v. Sharp, T Abb. 220; Wetmore v. Story, 3 id. 294; "Soli v. De Held, 2 Sim. N.S. 151; Ady.-Gen. v. Lorbes, 9 Myl. & Cr. 129.) Art. 3.—Assignment of things in Action. The Code does not “ authorize the assignment of a thing in action not arising out of contract.” (Ante, p. 45, § 111.) It gives no authority to assign any right of aétion which was not assignable before. (Hodgman v. Western R. R., 7 How. 29 450 OF PARTIES PLAINTIFF. Assignment of things in action. , Assignable causes of action. 493; Purple v. Hudson R. R. Co., 4.Duer, 74; 1 Abb. 33; Thurman v. Wells, 18 Barb. 500.) And actions for personal injuries die with the person, and are not assignable. (Jb¢d. ; and see Zabriskic v. Smith, 13 N. Y. [8 Kern.] 333.) Those rights of action which would, on the death of the party, pass to his executor, are of course assignable. (Butler v. WV. Y. and Erie R. R., 22 Barb. 110; Hodgman v. West. Le. L., 7 How. 493; Purple v. Hudson R. R., 4 Duer, 74; 1 Abb. 33; Hoyt v. Thompson, 5 N. Y. [1 Seld.] 347, per Paice, J.) Causes of action in tort, where the action is brought for damage to the estate, and not for personal suffering, may be assigned. (Ldzd. ; and see I.’ Kee v. Judd, 12 N.Y. [2 Kern.] 622; Hoyt v. Thompson, 5 N.Y. [1 Seld.] 847; Hall v. Lobin- son, 2.N. Y. [2 Coms.] 298.) Arr. 4.—Lnstances.of Causes of Action assignable. A claim against a carrier, for loss of, or injury to goods, or ne- gligence in delivery. ( Waldron v. Willard, 17 N. Y.466 ; Sinith v. WV. H.R. R.Co.16 How. 277; 28 Barb. 605; Poy v. Troy and Boston R. &., 24 Barb. 382. Thurman v. Wells, 18 Barb. 500, contra, is overruled. See M‘Kee v. Judd, 12 N. Y. [2 Kern.] 622. See also Stanton v. Leland, 4 E. D. Smith, 90.) A claim for compensation for causing the death of a person by wrongful act, where the next of kin or administrators may sue. (Quin v. Moore, 15 N. Y. 435; see Doedt v. Wiswall, 15 How. 145.) A claim upon a policy of life insurance made in favor of the insured himself. (St. John v. Amer. Ins. Co., 12 N. Y. [8 Kern.] 31.) ‘ A claim on a policy of fire insurance. (Jowlerv. V. ¥. In- demnity Ins. Co., 23 Barb. 151; and see DMellen v. Hamilton Ins. Co., 17 N. Y. 609.) A claim against an innkeeper for money stolen from his guest. (Stanton v. Leland, 4 E. D. Smith, 90.) Unliquidated damages on a breach of contract. (Monahan y. Story, 2 E. D. Smith, 393; Munson v. Réley, id. 180.) An unfulfilled contract for service and delivery of goods. (Field v. Mayor of N. ¥., 6 N. Y. (2 Seld.] 179.) OF PARTIES PLAINTIFF. . 451 Assignable causes of action. Non-assignable causes. A claim on guarantee. (Simali v. Sloan, 1 Bosw. 355.) And a claim on contract is assignable, although mixed with charges of fraud. (Brady v. Bissell, 1 Abb. 76; French v. White, 5 Duer, 254.) A claim for services, not legally enforceable at the time of the assignment, but subsequently paid under a special act of Congress. (Afilnor v. Metz, 14 Curtis U. 8. 261; 16 Peters, 221.) A claim for an illegal capture. (Couch v. Delaplaine, 2 N.Y. [2 Coms.] 897; Comegys v. Vasse, 1 Peters, 193.) A claim for money lost at play. (d/eech v. Stoner, 19 N. Y. 29; overruling Weyburn v. White, 22 Barb. 82.) A claim to recover an overpayment, made under fraudulent representations. (Sheldon v. Wood, 2 Bosw. 275.) It has been doubted whether a claim for 4 balance of ac- count, due on the settlement of partnership affairs, is assign- able ; (so at least says the head-note to Spring v. Baker, 1 Hilton, 526, though we think the language of the court refers to the statement of the claim, and not to its assignability). There does not seem to be any reason or precedent against its assigna- bility. (See Marguand v. NV. ¥. Manuf’g Co., 17 Johns. 525.) A claim for the conversion of personal property is assign- able. ( Whittaker v. Merrill, 30 Barb. 390; Waldron v. Wil- lard, 17 N. Y. 466; Mf‘ Kee v. Judd, 12 N. Y. (2 Kern.] 622.) Art. 5.—Causes of Action not assignable. An action for a simple tort and special injury to the person. (Purple v. Hudson R. R. Co., 4 Duer, T£; 1 Abb. 33.) For false representations causing loss. (Zabriskie v. Smith, 13 N. Y. [8 Kern.] 322; Hyslop v. Roundall, 11 How. 97; 4 Duer, 660. But see Haight v. Hayt, 19 N. Y. 464.) § _For breach of promise of marriage. (See Zabriskie v. Smith, 13 N. Y. [8 Kern.] 333.) To cancel notes, etc., on the ground of usury.. (Boughton v. Smith, 26 Barb. 635.) A right resting in courtesy is not assignable. (Jfunsell v. Lewis, 4 Hill, 642.) A debtor cannot sell claims against himself. (Van Scoter v. Lefferts, 11 Barb. 140.) 452 OF PARTIES PLAINTIFF. How assignment may be made. Consideration. Arr. 6.—How Assignment may be made. Things in action may be assigned by writing without seal, or even orally, by delivery. (Waldron v. Baker, 4 E.D. Smith, 440 ; Hastings v. M’ Kinley, 1 id. 277; Hinkle vy. Wanzer, 17 How. U. 8. 368; Horner v. Wood, 15 Barb. 371; Lord v. Stuart, 19 Johns. 344; Briggs v. Dorr, id. 95; Dawson v. Cole, 16 id. 54; Runyon v. Mersereau, 11 id. 538.) As to assignments, which although loosely drawn, have been held sufticient, see Waldron v. Willard, 17 N. Y. 466; I’ Kee v. Judd, 12 N.Y. [2 Kern.] 622; Aylesworth v. Brown, 10 Barb. 170; People v. Fleming, 4 Denio, 141; Dickenson v. Phillips, 1 Barb. 458. An assignment with the name in blank is good, and the re- ceiver of such assignment may fill in a third person’s name, and deliver tohim. (Waldron v. Baker, 4 E. D. Smith, 440.) Production of the assignment on trial, after due proof of its execution, is sufficient evidence of its delivery to the plaintiff (Story v. Bishop, 4E. D. Smith, 423.) Arr. 7.—Consideration for Assignment. The assignee of a thing in action is. not usually obliged to show any consideration for the assignment. The assignor might give it away if he chose, and the assignee would have a perfect right to sue upon it. (Richardson v. Mead, 27 Barb. 178; Afills v. Fox, 4 E. D. Smith, 223; Beach v. Raymond, 2 id. 500; Clark v. Downing, 1 id..406; Burtnett y. Guunne, 2 Abb. 81; Arthur v. Brooks, 14 Barb. 535.) , But if the defence is such as would defeat the original holder, or any one except a purchaser for value, then proof of consi- deration is of course essential. (See James v. Chalmers, 5 Sand. 52; 6 N. Y. [2 Seld.] 214; Brisbane v. Pratt, 4 Denio, 63.) So, if it be alleged that the assignment is a mere sham, and that the suit is prosecuted for the benefit of the pretended assignor, evidence that there was no consideration may be use- ful in connection with other matter, but is of no avail by it- self. (Burtnett v. Geynne, 2 Abb. 81; and see Bell v. Drew, 4 E. D. Smith, 62 ; Killmore v. Culver, 94 Barb. 686.) OF PARTIES PLAINTIFF. 453 What passes by assignment. Assignment pending suit. Art. 8.— What is conveyed in an Assignment. The assignment of a debt carries with it, as an incident, all collateral securities held by the assignor, although not specified. (Parmelee v. Dann, 23 Barb. 463; Jackson v. Blodgett, 5 Cow. 206; Pattison v. Hull, 9 Cow. 747; Curtis v. Tyler, 9 Paige, 485; Langdon v. Buel, 9 Wend. 84; LHenderson v. Lerrod, 10 Sme. & M. 633.) An assignment of a judgment gives the assignee a right to sue upon an undertaking given in course of the action. (Bow- doin v. Coleman, 3 Abb. 481; 6 Duer, 182.) As to the effect of an assignment of an undertaking in a cause, see Morange v. Mudge, 6 Abb. 243. An assignment of stock in a corporation, passes the growing profits. (Hane v. Bloodgood, 7 Johns. Ch. Rep. 108.) The assignor of a note impliedly warrants that the note is valid, and binding on the makers. (Hrwin v. Downs, 15 N. Y. 575.) So, in an assignment of a judgment—that it is due and un- satisfied. (Hurness v. Herguson, 15 N. Y. 439; Lile v. Hop- kins, 12 Sme. & M. 301.) The assignment of a chattel after conversion does not pass the claim for the conversion. (Duell v. Cudlipp, 1 Hilton, 166; see Waldron v. Willard, 17 N. Y. 467.) Assignment pending suit.\—A plaintiff who has no cause of action against a defendant when he commences his action, cannot maintain his action and recover, by purchasing, after issue joined, the cause of action described in the complaint. (Garrigue v. Loescher, 3 Bosw. 584.) Where a cause of action is assigned after suit is actually commenced, the assignee, if he continues the action, will be liable to the defendant for all costs of the suit. (Mfiller v. Franklin, 20 Wend. 630 ; Jordan v. Sherwood, 10 id. 622.) He will be liable for the costs, in the same manner as if he were a party, and payment may be enforced by attachment. (Ante, p. 117, § 321.) 454 OF PARTIES PLAINTIFF. Splitting causes of action, Re-assignment. Set-off. Arr. 9.—Splitting causes of Action by Assignment. A thing in action may be split up in assignments to various parties, and each one can sue for his claim. (/ield v. Mayor of N. Y., 6 N.Y. [2 Seld.] 179; Cook v. Genesee Ins. Co., 8 How. 514.) It seems, however, that the defendant may insist upon hav- ing all the assignees joined in one action. (Cook v. Genesce Ins. Co., 8 How. 514.) But if a judgment has been obtained against him by one assignee, he is estopped, in an action by another, from insisting that the former should be a party. (did.) (The “splitting process” has been used extensively against the city of New York, in order to multiply costs, but Davtss, J., strongly condemned it, and said that the city law officers could have stopped it if they had objected. The suits generally went by default.) It was formerly held that a single cause of action could not be split up into several actions without the debtor’s assent. (See Mandeville v. Welch, 5 Wheat. 288 ; Love v. Pairfield, 13 Mo. 304.) In an action at Zaw, under the old practice, a single cause of action could not be assigned to different parties, so that they could maintain separate actions. (Med v. Mayor of NV. ¥., 6 N.Y. [2 Seld.] 188; Mandeville v. Welch, 5 Wheat. 288.) Whether a judgment could be assigned in parts—query ? (Compare More v. Trumpbour, 5 Cow. 488, and Love v. Fair- _ field, 13 Mo. 306.) Re-assignment.|—The return of a written assignment by the assignee to the assignor, with the mutual understanding that it is thereby cancelled and void, is a sufficient re-assignment to the latter. (Ball v. Larkin, 3 KE. D. Smith, 555.) Arr. 10.—Set-off against Assignee. “Tn the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of, or before notice of the assignment.” (Ante, p. 45, § 112.) “ But this section shall not apply to a negotiable promissory OF PARTIES PLAINTIFF. 455 Set-off against assignee. Persons authorized to sue. note or bill of exchange, transferred in good faith, and upon good consideration, before due.” (Zbid.) The Code does not change the law of set-off contained in the Revised Statutes. (Beckwith v. Union Bank, 4 Sand. 610; affirmed, 9 N. Y. [5 Seld.] 211.) And where a claim, liquidated in amount, is assigned in good faith, and for a full consideration, the defendant cannot set off a valid claim against the assignor which was not actually due when the assignment was made. (Jdéd. ; see also Watt v. Mayor of N. ¥.,1 Sand. 23; Wells v. Stewart, 3 Barb. 40; Solomon v. Holt, 3 E. D. Smith, 139.) An assignee for the benefit of creditors is not a purchaser, and anything may be set. off against him, that could be set off against the assignor. (J/aas v. Goodman, 2 Hilton, 280; and see Van Heusen v. Radcliff’, 17 N. Y. 584; overruling Keep v. Brown, 2 Duer, 78.) Admissions of assignor.]—The admissions of an assignor, made before assigninent, cannot prejudice the assignee. (Zou- sley vBarry, 16 N.Y. 500; Booth v. Swezey, 8 N. Y. [4 Seld.] 278.) Still less,if made after assignment. (Hanna v. Curtis, 1 Barb. Ch. Rep. 263; Garland v. Harrison, 17 Missouri, 289.) Arr. 11.—Persons specially empowered to sue. Certain persons, corporations, governments, etc., are specially empowered to sue in the courts of this State, in the same cases as natural persons; of which a number of instances are given below: I. Who may sue on their own behalf.j—1. Corporations un- der the laws of this State. (Constitution, Art. viii. § 3.) 2. Corporations of another State or country, wpon giving secu- rity for costs of suit. (8 B.S. (5th ed.) 755.) 8. Foreign governments, whether monarchies or republics. (Rep. of Meuico v. De Arangoiz, 5 Duer, 635.) 4. Towns of this State. (1 2. S. (5th ed.) 813 ; [337.]) 5. The Seneca Indians. (Act of May 8, 1845. Seneca Na- tion v. Tyler, 14 How. 109.) 456. OF PARTIES PLAINTIFF. Persons specially empowered to suc. Executors. Trustees. 6. Informers, under any penal statute giving the penalty to informers. (3 72. 8. (5th ed.) 783; [2 zd. 481.]) 7. Boards of health, as such, cannot sue or be sued. (People v. Supervisors of Monroe, 18 Barb. 569.) II. Who may sue on behalf of others.\—The following per- sons may sue, withont joing with them the person for whose benefit the action is prosecuted. Executors, etc.}—Executors and administrators. (Ante, p. 46, § 113.) An executor or administrator can sue, either in his own name, or as executor, upon a note given to him on account of a debt due his testator. (Merritt v. Seaman, 6 N. Y. [2 Seld.] 168; Mowry v. Adams, 14 Mass. 327; Bright v. Currie, 5 Sand. 433.) So, for a claim accruing to the estate after death of the tes- tator or intestate. (/bid.; People v. Judges of Albany, 9 Wend. 491; and see Patchen v. Wilson, 4 Hill, 57.) Indeed, it would seem most proper for the executor, etc., to sue in his own name. (Bright v. Currie, 5 Sand. 487; Tal- mage v. Chappell, 16 Mass. 73; Biddle v. Wilkins, 1 Peters, 692. th he will be liable for costs, although he professes to sue only as “executor.” (People v. Judges of Albany, 9 Wend. 491; Barker v. Baker, 5 Cow. 268.) Under the laws of 1847 and 1849, giving a cause of action to the “personal representatives” of any person killed by the wrongful act:of another, the executors or administrators have the right of action. (Safford v. Drew, 3 Duer, 634; and semble, Quin v. Moore, 15 N.Y. 482.) "Executors, in bringing an action, need not join with them co-executors who have not qualified. (3 R. S. (5th ed.) 201; Laws 1888, ch. 149; see Moore v. Willett, 2 Hilton, 522.) Trustees.|—Trustees of an express trust, including a person with whom, or in whose name, a contract is made for the benefit of another. (Ante, p. 46, § 1138.) The people of the State, when bonds are given to them for e OF PARTIES PLAINTIFF, 457 Persons specially empowered to sue. Trustees. the benefit of others, are trustees of an express trust. (People v. orton, 9 N. Y. [5 Seld.] 179.) But a bond given by an executor, administrator, or guardian, may be assigned by order of the surrogate, upon default of such executor, etc., to comply with a decree of the surrogate for pay- ment of money to the party interested; who may prosecute thereon without joining the people with him. (3 2. 8. (5th ed.) 866, §19; Baggott v. Boulger, 2 Duer, 160; see People v. Laws, 3 Abb. 452.) But the surrogate “ may cause to be prosecuted” the bond of an executor or administrator, for non-performance of a decree. (3 B.S. (5th ed.) 204, § 19; Laws 1880, ch. 320, § 23.) And in such case, the suit should be brought in the name of the people. (People v. Laws, 3 Abb. 452; affirmed, 4 id. 292.) factors or agents doing business for others in their own names, are trustees of an express trust. (organ v. [teid, 7 © Abb. 219; Rowland v. Phalen, 1 Bosw. 563; Grinnell v. Schmidt, 2 Sand. 710 ; 8 Code Rep. 21.) But brokers, who do not guarantee sales, nor advance on the goods sold, are not. (White v. Chouteau, 10 Barb. 208.) Nor the consignee or indorsee of a bill of lading, who is not the owner or shipper of the goods. (Semble, Dows.v. Codd, 12. Barb. 310.) An auctioneer, who sells goods for a third person in his own name, is a trustee, etc., and may sue in his own name upon the contract of sale. This was the rule before the Code. (Ahinturn v. Main, 7 N. Y. [8 Seld.] 224; Bogart v. O’Re- gan, 1E. D. Smith, 590.) An assignee for the benefit of creditors is trustee of an express trust, and may sue without joining such creditors. (Mellen v. Hamilton Ins. Co., 5 Duer, 101; see Lewis v. Graham, 4 Abb. 108.) ~The nominal proprietor of a bank, who has in reality asso- ciates interested with him, but who conducts the whole busi- ness in his own name, is a trustee within the meaning of § 113 of the Code. (Burbank v. Beach, 15 Barb. 331.) A piece of land was conveyed to several persons by name, as “Trustees of the H. Baptist Society,” but the society was never incorporated. Several persons claiming to be the present 458 OF PARTIES PLAINTIFF. Persons specially empowered to sue. By statute. trustees, and successors of the others, brought ejectment for the land. Held, that they could not recover. The original trus- tees, or the society itself, were the only parties authorized to sue. (Bundy v. Birdsall, 29 Barb. 31.) Where one person deposits money of his own and of other persons for an illegal purpose, (a wager), he can only sue for his own money. (uckman v. Pitcher, 20 N. Y.9; aff’g 18 Barb. 556.) A person duly authorized by a foreign corporation to sue for it, under the laws of its own country, may maintain an action on its behalf in this State, in his own name. Jt seems, that he is trustee of an express trust. (Dyers v. Machado, 6 Abb. 201, 204; see Peel v. Hiliott, 7 id. 433.) Receivers, and committees of lunatics, ete.,] appointed by the Supreme Court, may sue in their own names, for any debt. claim, or demand transferred to them, or to the possession or control of which they are entitled as such receiver,ete. (3 2. S. (5th ed.) 185, §11; Laws 1845, ch. 112, § 2; see Davis v. Carpenter, 12 How. 287.) And tt seems that receivers and committees are “ trustees of an express trust.” (Person v. Warren, 14 Barb. 494; Davis v. Carpenter, 12 How. 287; see Smith v. Woodruff, 6 Abb. 65.) In cases before the Code, it was held that in every instance, except those specially named in the Law of 1845, supra, the action must be bronght in the name of the lunatic, ete., by his next friend. (McKillip v. McHillip, 8 Barb. 552.) See further under head of “ Receivers,” chap. xxxi. post. Persons authorized by statute.|—Any person authorized by statute, whether passed before or since the Code, may sue with- out joining those whom he represents. (Ante, p. 46, § 113.) Counties of the State must sue and be sued in the name of the Board of Supervisors. (2 72. S. [5th ed.] 846 [364]; 3 ¢d. 774; [2 ¢d. 473 ;] and see Hill v. Bd. of Sup. Livingston Co., 12 N. Y. [2 Kern.] 54, 63.) “ Actions may be brought by the” following persons, “ upon any contract lawfully made with them or tdisir predecessors in their official character; to enforce any liability, or any duty enjoined by law, to such officers, or the body which they re- OF PARTIES PLAINTIFF. 459 Persons specially empowered to sue. Associations, present; to recover any penalties or forfeitures given to” the same ; “and to recover damages for any injuries done to the property or rights of ” the same. The supervisors of a county ; . The loan officers and commissioners of loans of a county ; . County superintendents of the poor ; . Supervisors of towns ; . Town overseers of the poor ; . Town school commissioners 5 . Town commissioners of highways; . Trustees of gospel and school lots. (3 2. S. (5th ed.) 774 ; [2 dd. 473.) These officers must sue in their own names, annexing their office, e. g., “ John Smith, as supervisor of the town of Smith- field,” and not “The supervisor of the town of S.” merely. (Supervisor of Galway v. Stinson, 4 Hill, 186; Com’rs of Cort- landville v. Peck, 5 id. 216; and see Gould v. Glass, 19 Barb. 184; Hill v. B’d of Super. of Livingston Co., 12 N.Y. [2 Kern.] 63.) This section has no application to suits against these officers. (Per Atten, J., in Ct. of Appeals, and per Supreme Ct. 8th dist., Hill v. Bd. of Sup. of Livingston Co.,12 N.Y. [2 Kern.] 54, 63. See post, p. 466.) — Any joint stock company or association, consisting of seven or more members, may sue and be sued in the name of the President or Treasurer for the time being, and the suit may be continued by or against his successor in office. (3 &. S. (5th ed.) 777 ; Laws 1849, ch. 258.) This provision is extended to “any company or association composed of not less than seven persons who are owners of, or have an interest in, any property, right of action, or demand, jointly or in common ; or who may be liable to any action on account of such ownership or interest.” (3 2.8. (5th ed.) 7785 Laws 1851, ch. 455.) These provisions were held to apply to unincorporated associ- ations, formed without legislative authority. (Tibbetts v. Blood, 91 Barb. 654; W. Y. Marbled Iron Works v. Smith, 4 Duer, 374; butsee query, Austin v. Searing, 16 N. Y. 117, 125. See also "Masterson v. Botts, 4 Abb. 180.) _RDADBoaP wb 460 OF PARTIES PLAINTIFF. Persons specially empowered tovsie: Who may be joined. Banks, (and it would seem, all corporations,) may sue either under this provision, or in their corporate name. (Hust Liver Bank v. Judah, 10 How. 135. But see W. Y. Mar. Iron Works v. Smith, 4 Duer, 374, contra.) But an individual banker, carrying on business under a cor- porate name, is not a corporation. He should sue in his own proper name. (Codd v. Rathbone, 19 N.Y. 40; see Bank of Havana v. Magee, 20 N. Y. 355; 7 Abb. 134.) General partners in a limited partnership may sue as if there were no other partners. (3 22. S. (5th ed.) 63, $14; [1 zd. 766.]) Sheriffs, in proceedings upon attachment under § 232 of the Code, may sue in their own name. (Ante, p. 85.) Action for penalties.|—1. Under the Excise law of 1857, actions must be brought in the naine of the “Board of Com- missioners of Excise,” and not in the names of the persons composing such board. (8 2. S..(5th ed.) 944, § 23; Laws 1857, ch. 628, § 22; Pomroy v. Sperry, 16 How. 211; Board of Excise v. Doherty, id. 46.) 2. Under the Port Warden act of 1857, in the “name and title” of the Wardens. (2 BR. S. (5ch ed.) 448, § 85; Laws 1857, ch. 405.) 3. Under the Pilotage law, in the name of the “ Board of Commissioners of Pilots.” (2 J. S. (5th. ed.) 489, § 78.) 4. Under the Harbor Master’s act of 1860, in the name of the captain of the port. (Laws 1860, p. 756; ch. 436.) Art. 12.— Who may be joined as Plaintiffs. “All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plain- tiffs, except as otherwise provided in this title.” (Ante, p. 49, § 117.) . This section assimilates the practice to that which before existed in the courts of equity. (Loomis v. Brown, 16 Barb. 333 ; see Secor v. Heller, 4 Duer, 419.) Injunction bond.|—Where several persons sustained dam- ages to unequal amounts in consequence of an injunction, which OF PARTIES PLAINTIFF. 461 Who may be joined. Creditors. Co-tenants. had been obtained on one bond for the security of all—held, that they might sue together on the bond, and each recover his special damage. (Loomis v. Brown, 16 Barb. 3383.) Nuisance.|\—Several persons having separate tenements, injured by a common nuisance, may join in an action to restrain such nuisance. (Peck v. Eder, 3 Sand. 126; Murray v. Hay, 1 Barb. Ch. Rep. 62; Reed v. Gifford, Wopk. 419; see con- tra, Hudson v. Madison, 12 Sim. 416; overruled in Murray v. Hay.) Lt seems, that in a case of public nuisance, the attorney-gen- eral may join private persons with him, who are aggrieved, though not.specially injured. (Davis v. Mayor of NV. ¥.,1 Duer, 667 ; [but see S. C. 14 N. Y. 526;] semble, Adt’y Gen. v. Forbes, 2 Myl. & Cr. 123.) Certainly, such joinder may be allowed, if the private suitors have sustained special damage. (See Soltaw v. De Held, 2 Sim. N. 8. 151.) Creditor’s action.|—Several judgment creditors may unite in one “creditor’s bill.” (Lentilhon v. Moffat, 1 Edw. 456 ; Diz v. Briggs, 9 Paige, 595; Brinkerhoff v. Brown, 6 Johns. Ch. Rep. 151; and see d/uwrray v. Hay, 1 Barb. Ch. Rep. 62.) And several creditors, each having a judgment for ess than $100, may unite in one action for more than that amount, so as to bring the claim within the statute. (Dix v. Briggs, 9 Paige, 596.) And several creditors of a corporation, having a common interest inthe relief sought, may unite in one action. (Conro vy. Port Henry Iron Co., 12 Barb. 28.) Tenants in convmon.|—In an action for trespass on land, the tenants in common may be joined as plaintiffs. (Van Deusen vy. Young, 29 Barb. 9.) So they may join for rent ; but they are not obliged to do so. (Jones v. Felch, 3 Bosw. 64.) Numerous parties in interest.]—(1.) “ When the question is one of a common or general interest of many persons, or, (2.) when the parties are very numerous, and it may be impracti 462 ‘OF PARTIES PLAINTIFF. ‘Who may be joined. Suing on behalf of others.’ Who must join. cable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” (Ante, p. 50, § 119.) It has been strongly intimated that the last clause of this sec- tion refers only to actions of an equitable nature. (Per Duzr, J., Habicht v. Pemberton, 4 Sand. 659.) To enable a single plaintiff to maintain a suit on behalf of others, it is not sufficient to allege that they are so numerous that it would be impracticable to bring them into court, but it must be made to appear that if they were all in court, they could maintain the suit. (abicht v. Pemberton, 4 Sand. 657.) And if the plaintiff sues on behalf of an unincorporated com- pany, the agreement by which they are united should be set forth, and the authority of the plaintiff of record to sue. (Ld¢d.) It is the general rule, in actions for injunctions, that all per- sons interested in the subject matter of the controversy must be made parties. (Smith v. Lockwood, 1 Code Rep. N. 8. 320.) But where such persons would be very numerous, one person can bring the action, stating at the outset that he sues for him- self and all others interested, so that the others may come in at any time, and acquire interest in and control over the suit. (Ibid. ; UM’ Kenzie v. DL Amoureaux, 11 How. 517; and see Roosevelt v. Varnum, 12 How. 469; Smith v. Lockwood, 18 Barb. 218; also Bouton v. City of Brooklyn, 15 Barb. 375.) The number must be so great that it would not be merely inconvenient, but really impracticable to name them all. (Kirk v. Young, 2 Abb. 458.) Thirty fwe held an insufficient number for this purpose. (Lbid.) Art. 13.— Who must be joined as Plaintiffs. ‘Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants,” (Ante, p. 50, § 119.) “ But if the consent of any one who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint.” (Zd2d.) Assignor and assignee.|—It seems, that where a bond has been assigned as collateral security for a debt—the assignment to be OF PARTIES PLAINTIFF. 463 Who must-be joined. Partners. Claimants on trust fund. void when the debt is paid,—the assignor is a necessary party to an action brought by the assignee on the bond. ( Western Bank v. Sherwood, 29 Barb. 387.) Partners.|—In actions brought for the benefit of a partner- ship, all the partners, whether published or dormant, (special partners excepted—see below); must be parties. (Secor v. Keller, 4 Duer, 419; overruling the old practice contra ; see Clark v. Miller, 4 Wend. 629 ; Clarkson v. Carter, 8 Cow. 843 Leveck v. Shaftoe, 2 Esp. 468 ; ditchell v. Dall, 2 Varr. & Gill. 171.) But the general partners in a limited partnership under the Revised Statutes, may sue without joining their special partners. (R. 8, (5th ed.) 63, § 14; [1 éd. 766.]) Partners in two firms.|—Where one person is a partner in two separate firms, one of which sues the other, he may elect to be either plaintiff or defendant, and the other partners may sue or defend without him. (Cole v. Reynolds, 18 N. Y. 76.) Tenants in common.|—In an action for unlawfully taking or converting personal property, all tenants in common must join. (Rice v. Hollenbeck, 19 Barb. 665.) So, in an action for trespass upon, or nuisance to land. (Sem- ble, Rice v. Hollenbeck, 19 Barb. 665; and see Decker v. Liv- ingston, 15 Johns. 481; Austin v. Hall, 13 id. 286.) Claimants on a trust fund.|—In an action against a trustee for a distributive share of a fund, which he is bound to distribute to different persons in unequal proportions, and the propor- tionate share of each has not been ascertained, all who are interested in the distribution are necessary parties to the action. (Semble, Gen. Afut. Ins. Co. v. Benson, 5 Duer, 176.) But, when such share is ascertained, each claimant may sue alone. (bed. Smith v. Snow, 3 Madd. 10.) So he may sue alone in an action for breach of trust as to the whole fund. (Perry v. Knott, 5 Beav. 293.) Harbor-masters.|-—In an action for an account of fees received by one harber-master for the benefit of all—all the other har- 464 OF PARTIES PLAINTIFF. Who must be joined. Who must not be joined. bor-masters must join as s plaintiffs. (Dean v. Chamberlin, 6 Duer, 691.) Actions for an injunction.|—In general, all persons interested in obtaining an injunction, must be made parties to an action having such injunetion for its object. (Smith v. Lockwood, 1 Code Rep. N.S. 320.) See ante, p. 461. For the exception to this rule, see p. 465. Creditors’ action.|—It seems, that in an action brought to enforce and carry out an assignment for the benefit of creditors, they must all join, or if one sues, he should do so on behalf af himself and all who are interested with him. (Bank of British North America v. Suydam, 6 How. 380; Wakeman v. Gro- ver, 4 Paige, 32.) Loreclosure of mortgage.|—Where a mortgage is assigned merely as security for a debt, the assignor is a necessary party to an action for foreclosure. (Or. or Errors, Johnson v. Hart, 3 Johns. Cas, 322.) If the assignor guaranteed the amount of the mortgage, he may be fade a party, either plaintiff or defendant. (Bristol v. Dorgan, 8 Edw. Ch.-R. 142.) But he is not a necessary party. (Western Reserve Bank v. Potter, Clarke, 437.) An unconditional assignor of a mortgage is never a necessary party. (Ward v. Van Bokkelen, 2 Paige, 295; Whitney v. MW Kinney, 7 Johns. Ch. R. 146.) Partition.J}—The wife of the plaintiff ought to be joined with him in an action for partition. (/?ipple v. Gilborn, 8 How. 460; compare Tanner v. Niles, 1 Barb. 563.) Agr. 14.— Who must not be joined. It seems, that not only nominal parties, but persons having a merely speculative interest in the matter in controversy, should be excluded from the action. (People v. Mayor of NV. ¥., 10 Abb. 114.) Hectment.|—Therefore, in an action of ejectment, a lessor . and lessee should not join as plaintiffs. (Zbid.) OF PARTIES PLAINTIFF. 4690 Who may join. Remedy against error. Commissioners of highways.|\—Commissioners of highways in two towns cannot unite as plaintiffs to bring an action for a penalty for encroachment on a highway running between such towns. (Bradley v. Blair, 17 Barb. 481.) For their right of action is given exclusively by statute, and each town has property in half the highway. The statute does not allow them to sue jointly. (lbid. ; and see 2 2. S. (5th ed.) 416, 400; [1 ¢d. 526, 516.]) Libel.|—A company of persons not partners, nor having any common pecuniary interest (¢. g. a hose company), cannot join in an action for libel. (@iraud v. Beach, 3 E. D..Smith, 344.) Property.|—A suit for the recovery of property cannot be maintained by two or more plaintiffs who are neither joint owners nor partners. (Walrod v. Bennett, 6 Barb. 145; but see Peabody v. Washington Ins. Co., 20 Barb. 340; Gre- gory v. Oaksmith, 12 How. 184; which seem contra.) * Arr. 15.—Defendant’s Remedy in case of Error. Where the action is not brought in the name of the real party in interest, the defendant’s remedy is, 1. If this is apparent on the face of the complaint, demur- rer. (Ante, p. 61, § 144; Palmer v. Smedley, 6 Abb. 205; Nelson v. Eaton, 7 id. 8305; reversing 8. O.,15 How. 305; but see Myers v. Machado, 6 Abb. 198, the only difference being as to the ground of demurrer.) 2. If not thus apparent, then the objection should be raised. by answer and in terms. (Ante, p. 62, § 147; Jackson v. Whe- don, 1 E. D. Smith, 1425; and semble, Westervelt v. Alcoch, 3 id. 243.) ‘ As to misjoinder or non-joinder of plaintiffs : 1. For non-joinder, demurrer lies, if the defect is apparent on the face of complaint. (Ante, p. 61, § 144, subd. 4.) 2. But not for misjoinder, or excess of plaintiffs. (Pea- body v. Washington Ins. Co., 20 Barb. 342; Gregory v. Oak- smith, 12 How. 184; but see Walrod v. Bennett, 6 Barb. 144.) Tf the defect is not apparent on the complaint, the objection 30 466 OF PARTIES PLAINTIFF. Remedy against error. Who should be made defendants. should be taken by answer, and the complaint will be dis- missed with costs. (Ante, p. 62, § 147; Secor v. Keller, 4 Duer, 416.) But where the defect is manifest on the face of the com- plaint, the objection cannot be raised by answer. ((assett v. Crocker, 10 Abb. 133.) A defect of this kind not objected to by demurrer or answer, is waived. (Van Deusen v. Young, 29 Barb. 9.) Where a plaintiff who ought to sue on behalf’ of himself and others, snes in his own name alone, the objection may be raised for the first time on the trial. (Greene v. Breck, 10 Abb. 48.) Cuarter X XI. OF PARTIES DEFENDANT. ARTICLE 1. Who should be made defendant. 2. Joinder of defendants, when optional. 8. Joinder, when necessary, or not allowable. 4, Joinder in special instances. 5. Defendant’s remedy against error. - Art. 1.— Who should be made Defendants. ' No State Court has jurisdiction of suits against 1. Another State ; 2. A foreign ambassador, or other minister or his domestic servants 5 3. A consul or vice-consul (in any civil cases); and of course no such party should be made a defendant. (Constitution of U.8., Art. 3, § 2; Laws of United States, 1789, ch. 20.) But although a foreign government cannot be sued for the purpose of enforcing any remedy, yet it may be made a de fendant with a view to give it an opportunity to appear, and enable the court to decide the action intelligently. (Manning v. State of Nicaragua et al., 14 How. 517.) This decision was made upon an action to which a state owt of the United States was sought to be made a party, and per- haps it should be confined-to such. (See Const. U. 8, Art. 3, § 2.) a OF PARTIES DEFENDANT. 467 Who should be made defendants. Joinder, when optional. Counties should be sued in the name of their board of super- visors. (1 2. S. (5th ed.) 846, [864.]) And it is said to be proper to bring the action against “ The Board of Supervisors of the county of ..... ,” rather than to name the individuals composing the board. (Per Auten, J., sustaining general term of court below, 2 Kern. 63.) Joint stock companies and associations, consisting of seven or more associates, may sue and be sued in the name of the president or treasurer, This includes any company or association, of not less than seven persons, who are owners, of or have an interest in, any property, right of action, or demand, jointly, or in common, or who may be liable to any action on account of such ownership or interest. (8 B.S. (5th ed.) TTT, T7835 Laws 1849, ch. 258 ; Laws 1851, ch. 455.) Banking associations formed under the general law, may be sued in the name of their president. (2 2. S. (5tA ed.) 560, § 195 ; Laws 1888, ch. 260, § 22.) A person named as defendant in the complaint, but not served with process, is not a party to the action. (fobinson v. Frost, 14 Barb. 540; Hust River Bh. v. Cutting, 1 Bosw. 636.) Dower.]—A widow’s action of ejectment for dower must be brought against the actual occupant of the Jand of which she is dowable, and not against the tenant of the freehold. (Aldicott y. Mosier, 3 Seld. 205.) Ejectment.|—The actual occupant of the premises claimed, must be made defendant. (3 &. S. (5th ed.) 592; (2 cd. 304.]) But if the premises are not actually occupied, then any per- son exercising acts of ownership, or claiming title or interest therein. (Zdid.) Art. 2.—Joinder of Defendants—when optional. “‘ Any person may be made a defendant 1. Who has, or claims, an interest in the controversy, adverse to the plaintiff, or 2. Who is a necessary party to a complete determination or settlement of the questions involved therein.” (Ante, p. 49, § 118.) 468 OF PARTIES DEFENDANT. Joinder, when optional, Joinder, when necessary. It has been said, that this rule does not authorize the joining of defendants, against one of whom there is a legal claim, and against another only an equitable claim. (Serpen, J., Voorhis v. Child’s Ex’r, 17 N. Y. 360.) But Judge Sxxpsw’s views of the Code have not generally been sustained, and probably this expression of opinion was not approved by the court. (See 8. C. p. 362; and 17 N. Y. 275.) Where several defendants have separate interests, but all founded upon one basis, and depending upon one central point in the case, they may be joined. (WV. Haven &. R. v. Schuyler, 17 N. Y. 603; Fellows v. Fellows, 4 Cow. 703.) Lt seems, that in equitable actions it is not only the right, but the duty of the plaintiff, to join such persons as are described in the above section, as defendants. (Voorhies v. Baxter, 1 Abb. 45; 18 Barb. 592.) Persons jointly and severally Jiable may be sued together, or separately, at the plaintiff’s option. (Anys v. Donnithorne, 2 Burr. 1190; Eccleston v. Clipsham, 1 Saund. 153.) “If the consent of any one, who should be joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof’ being stated in the complaint.” (Ante, p. 50, § 119.) When in an action between two firms, a person who is a partuer in both, refuses to join as plaintiff, he may be made a defendant. (Cole v. ‘Reynolds, 18 N. Y. 76.) When a person who should join as a plaintiff, is made a de- fendant, the reason thereof must be stated in the complaint. (Young v. VW. Y. & Liverpool Steamship Co., 10 Abb. 229.) ‘ Art. 3.—Joinder of Defendants—when necessary, and when improper. 1. Who must be jotned.|—Those parties to the action who are united in interest, must be joined, as plaintiffs or defendants. (Ante, p. 50, § 119.) When any parties are necessary to a complete determination of the controversy, they should be joined, as the court cannot proceed without them. (See ante, p. 50, § 122 ; Shaver v. Brain- ard, 29 Barb. 25.) All persons jointly liable on contract must be made defend- . OF PARTIES DEFENDANT. 469 Joinder of defendants. Rules of joinder. ants in an action on the contract. ( Wooster v. Chamberlin, 28 Barb. 604 ; Slocum v. Hooker, 13 Barb. 542. Few direct au- thorities can be found, as the principle was settled in Slings- by’s case, 5 Coke, 18.) The same rule applies to joint owners of land, or other pro- perty, forming the subject of the suit. 2 Who cannot be joined.]—With the exception of the cases specified in § 119 of the Code, persons severally and not jointly . Hable, cannot be joined as defendants. (Leroy v. Shaw, 2 Duer, 626; Phalén v. Dingee, 4 E. D. Smith, 379; Allen v. Fosgate, 11 How. 218.) Art. 4.—Application of the Rules of Joinder to particular instances. Bills, notes, and written instruments.|—A special exception is made by the Code to the general rules of joinder, and “ persons severally liable upon the same obligation or instrument, in- cluding the parties to bills of exchange and promissory notes, may all, or any of them, be included in the same action, at the option of the plaintiff. (Ante, p. 50, § 120.) This section does not make such defendants jointly liable, nor joint debtors. (Kelsey v. Bradbury, 21 Barb. 540; Alfred v. Watkins, 1 Code Rep. N. 8. 343.) A guaranty, written on the back of a note, is not the “ same ob- ligation ” as the note. The two are entirely distinct. (Brews- ter vy. Stlence, 4 Seld. 215; and see Draper v. Snow, 20 N. Y. 881; Church v. Brown, 29 Barb. 389.) And therefore, the guarantor of a promissory note, cannot be sued in the same action with the maker, although the guaranty is written upon the note. (Adlen v. Fosgate, 11 How. 218.) And so, where a lease and a guaranty are executed on the same piece of paper, the lessee and his surety cannot be united in one action. (Phalen v. Dingee, 4 EH. D. Smith, 379 ; and see De Ridder v. Schermerhorn, 10 Barb. 638.) An indorser of a note, who pays it, cannot join two or more prior indorsers in one action. (Barker v. Cassidy, 16 Barb. 181.) Such an action is not founded upon the note, but upon 470 OF PARTIES DEFENDANT. Rules of joinder. Assignor and assignee. Creditor’s action. “money paid to the use” of the maker on prior indorsers. (Ibid.) Bonds.|—§ 120 of the Code (quoted in “‘ 227s and notes,” ante.) applies to a replevin bond. (Brainard v. Jones, 11 How. 569.) Assignor and assignee.|\—(See Creditor’s action, infra.)\— In an action to set aside a mortgage as usurious,—the mort- gage having been assigned with collusion between the assignor and assignee, for the purpose of defeating the plaintiff’s claim,— both may be joined as defendants. (WVéles v. Randall, 2 Code Rep. 31.) Jt seems, that a defendant sued by an assignee cannot, asa matter of right, insist upon having the assignor joined as a de- fendant, for the purpose of concluding him by the result of the action. (freeman v. Newton, 3 E. D. Smith, 250.) But if it appeared necessary, the court would have power to add such party, and in a proper case would do so. (Jbid. ; see | Western Bank v. Sherwood, 29 Barb. 387.) Breach of trust.|—In an action against trustees, for breach of trust, a person not a trustee, who is a party to the breach of trust, may be joined, or not, at the option of the plaintiff. (Bateman v. Margerison, 6 Hare, 499.) Creditor’s action.|—In a creditor’s action, brought to recover for his benefit the equitable interests of his debtor in a trust fund, the judgment debtor must be joined with the trustees as a defendant. (Vanderpoel v. Van Valkenburgh, 2 Seld. 190 ; see Bateman v. Margerison, 6 Hare, 496; Bedford v. Gates, 4 Younge & Coll. Exch. 21; Kimber v. Ensworth, 1 Hare, 293.) So in an action to set aside a judgment-debtor’s conveyance, he must be joined as a defendant. (Shaver v. Brainard, 29 Barb. 25.) And where the creditor seeks to set aside a mortgage, tho assignee of such mortgage must be made a defendant, although absent from the State. (Gray v. Schenck, 4 Coms. 461.) But in an action to set aside a conveyance made by an assig- nee for benefit of creditors, on the ground that the assignment OF PARTIES DEFENDANT. _ 471 Rules of joinder. Creditor’s action. Ejectment. was void, the assignee is not a necessary party. (Jessup v. Hulse, 29 Barb. 589.) But in an action to set aside an assignment for the benefit of creditors, it is not necessary to make all the creditors defendants. The assignees are presumed to represent them. (Bank of British N. A. v. Suydam, 6 How. 880; Wakeman v. Grover, 4 Paige, 33.) Where several persons have a common interest centering in the point at issue in the cause—as where they separately, but at the same time, receive fraudulent conveyances of property, they may be joined as defendants. (/edlows v. Fellows, 4 Cow. 703; approved, V. H. RB. R. Co. v. Schuyler, 17 N.Y. 607 ; see Jacét v. Boyle, 18 How. 106.) But not when such conveyances are made at widely distant times, and such common fraud or common interest cannot exist. (Reed v. Stryker, 6 Abb. 112.) Ejectment.|—“ I think the rule as to making parties defend- dant, in an action to recover the possession of land, is now changed,” and that all persons claiming title may be made defendants, as well as the persons in actual possession. (Parker, J., Waldorphv. Bortle, 4 Wow. 359; and see Fosgate v. Herki- ° mer Mfg. Co., 12 Barb. 359 ; 8. C. 2 Kern. 583.) But it certainly is not necessary to do so. (Van Buren v. Cockburn, 14 Barb. 121.) Persons having a joint possession of the land, may be joined as defendants. (8 2. S. (5th ed.) 594; [2 2d. 807.]) And per- sons occupying different rooms in a house were Aedd within this section. Their interests in the buclding were several, but their possession of the land was joint. (Pearce v. Colden, 8 Barb. 526.) Where the land on which a church is built is the subject of the action, the church corporation, and not the trustees, or other officers, or members of the church, should be made defendant. (Lucas v. Johnson, 8 Barb. 244.) In an action of ejectment, where the court was also prayed to set aside a conveyance made during infancy, held that two separate grantees could not be joined as defendants in one action. (Voorhies v. Voorhies, 24 Barb. 152.) 472 OF PARTIES DEFENDANT. , Rules of joinder. Executors. Foreclosure. A railroad company, who have simply laid rails on a public highway, are not occupants, so that ejectment could lie against them. (Redfield v. Utica and Syracuse R. R. 25 Barb. 54.) Ejectment for dower.|—This action must be brought against the actual occupant of the land, and not against the tenant of the freehold. (ZUlicott v. Mosier, 3 Seld. 205.) Executors.|—In an action against an executor for a legacy, alleged by the executor to have been paid to a stranger, in trust for the plaintiff—such stranger need not be joined as a ‘defendant. (@leason v. Thayer, 24 Barb. 82.) _Executors who have not qualified, need not be joined with those who have, either as plaintiffs or defendants. (3 2. S. (5th ed.) 201; Laws 1838, ch. 149.) In an action against the executor of an executor, (the latter having made himself personally responsible to the legatees,) brought by one legatee, held that the representative of the residuary legatees was a necessary party defendant. (Zheo- logical Sem. v. Kellogg, 16 N. Y. 96.) Foreclosure of mortgage.|—The owner of the equity of re- demption is a necessary party to a foreclosure suit. (Larmers’ L. and T. Co. v. Dickson, 9 Abb. 64; Hall v. Nelson, 23 Barb. | 88; 14 How. 32; Meed v. Marble, 10 Paige, 409.) And where the deed of conveyance was not registered at the commencement of the suit, nor when the “dis pendens” wae filed, Aeld nevertheless that the deed having been executed before, the same rule applied. (lizd.; approved, Griswold vy. Fowler, 6 Abb. 120.) A purchaser of the premises at a sheriff’s sale before the action is commenced, is a necessary party, though his deed be not recorded until after the commencement of the action. (Mew Ye ork Life Insurance and Trust Co. v. Bailey, 3 Edw. 417.) When the mortgagor has entered into a written contract to convey the equity of redemption, it is proper, though not abso- lutely necessary, that the grantee should be made a party to a foreclosure suit. (Crooke v. O’ Higgins, 14 How. 154; see Bank of Orleans v. Flagg, 3 Barb. Ch. R. 316.) wi OF PARTIES DEFENDANT. ATS Rules of joinder. Foreclosure. Heirs. A mortgagor, whose equity of redemption has been sold on execution, is a necessary party, until the time allowed him to redeem under the execution has expired. (Hallock v. Smith, 4 Johns. Ch. R. 650.) The mortgagor’s wife is a necessary party, in order to bar her dower, and secure her interest in the surplus. (J/dls v. Van Voorhis, 20 N. Y. 412; 10 Abb. 158; Denton v. Nanny, 8 Barb. 623.) This rule is equally applicable to the wife of the grantee of a mortgagor, and to the case of a mortgage fo™purchase money. (Mills v. Van Voorhis, 20 N. Y. 421; 10 Abb. 153; 23 Barb. 125; overruling Cunningham v. Knight, 1 Barb. 399.) Where the equity of redemption is conveyed to the trustees of a corporation, for its use, the trustees are neither necessary nor proper parties. If there are no words of trust used in the conveyance, the case would be otherwise. (Case v. Price, 9 Abb. 113.) A person claiming adversely to the mortgagor’s title, and prior to the mortgage, cannot be joined as defendant in a fore- closure suit, for the purpose of settling title. (Corning v. Smith, 2 Seld. 84; Eagle Fire Co. v. Lent, 6 Paige, 637.) All incumbrancers existing at the commencement of the action, are necessary parties. (Znsworth v. Lambert, 4 Johns. Ch. R. 605; Haines v. Beach, 8 id. 461.) But an incumbrancer who becomes such pending suit, is not entitled to redeem, and need not be made a party. (Cook v. Mancius, 5 Johns. Ch. R. 89; see Loomis v. Stuyvesant, 10 Paige, 490; People’s Bank v. Hamilton’ Manufacturing Company, 10 Paige, 481.) We suppose that this rule is applicable only when a notice of the pendency of the action has been filed. (See Bishop of Winchester v. Paine, 11 Ves. 197.) Fraudulent Stock—Cancellation of.|—A corporation may bring ag action against the holders of spurious certificates of stock, in the nature of a bill to quiet title, and unite them all as defendants. (WV. Haven &. R. v. Schuyler, 17 N. Y. 609.) Heirs of Intestate.|\—Where several heirs are sued for debts of an intestate, they must be joined. (8 R. S. (5th ed.) 751; AT4 OF PARTIES DEFENDANT. Rules of joinder, Master and servant. Partition. Laws 1837, ch. 460, § 73; and see Kellogg v. Olmsted, 6 How. 488 ; Stuart v. Kissam, 11 Barb. 283.) Master and servant.|—Master and servant may be joined as defendants, in an action to recover damages for the negligence . of the servant. (Montfort v. Hughes, 3 E. D. Smith, 591; see Wright v. Wilcox, 19 Wend. 343; Michael v. Alestree, 2 Levinz, 172.) But not in an action for wilful injury by the servant. (Wright v. Wilcox, 19 Wend. 345.) When a collision oceurs through the negligence of (servants of) two different railroad companies, both can be joined as defend- ants in one action. (Colegrove v. WV. Y. & Harlem R. R.,6 Duer, 408 ; affirmed 20 N. Y. 492.) Partition.J}—All tenants in common are indispensable parties to an action for partition. (Burhans v. Burhans, 2 Barb. Ch. R. 407.) 3 it seems, that all persons should be made parties who have, in any way, or upon any contingency, any interest in the pre- mises. (Lipple v. Gilborn, 8 How. 460.) The wife of a defendant must be made a party, to bar hei dower. (Green v. Putnam, 1 Barb. 506; see Ripple v. Gil born, 8 How. 460.) Lt seems, that if a defendant marries pending suit, and after a lis pendens has been filed, his wife need not be made a party. (Jackson v. Hdwards, 7 Paige, 403.) Judgment-creditors or other incumbrancers are not proper parties. (Sebring v. Mersereau, [Cr. or Errors,] 9 Cow. 344: affirming 8. C., Hopk. 501; Harwood v. Kirby. 1 Paige, 471: Wotten v. Copeland, 7 Johns. Ch. R. 141; see Van Arsdale v. Drake, 2 Barb. 599.) And where land has been conveyed upon a trust unanthor- ized by the Revised Statutes, the trustee has no title, and need not be madea party. The cestwi gue trust is the proper party, having the whole title. (Braker v. Devereaux, 8 Paige, 518.) Partners.|—Where a lease was made to a firm, who after- ward dissolved partnership, and divided the premises between themselves, each separately occupying a part, the lessor never- OF PARTIES DEFENDANT. 475 t Rules of joinder. Partners. Principal and surety. theless could maintain an action against them jointly for the rent of the whole. (Hurlbut v. Post, 1 Bosw. 28.) “ Sleeping Partners.”|—Actions against a firm having a special partner (under the statute) may be conducted as if there were no such partner. (3 2. S. (5th ed.) 63; [1 td. 766.]) And a plaintiff is not obliged to join a secret partner as de- fendant with the acknowledged partners unless he knew such person to be a partner at the time the contract (if any,) upon which the action is founded, was made. (Brown v. Birdsall, 29 Barb. 550; Hurlbut v. Post, 1 Bosw. 28; Dry Dock Co. v. Treadwell, 19 Wend. 526.) Partner in two firms.j—Where one person is a partner in two firms, an action at law cannot be maintained by one of these firms against the other, even on asimple money demand. (Englis v. Furniss, 4 E. D. Smith, 599; and see Cole v. Rey- nolds, 18 N. Y. 74.) Such a claim can only be enforced in equity, and will be de- cided upon equitable principles. (Zd7d.) But it is not necessary that the action should be for equitable relief, or that the court should proceed according to the forms of equity where the complaint sets forth a legal cause of action, and the defence interposed is of a purely legal nature. (Cole v. Reynolds, 18 N. Y. 74.) Deceased partner.|—The personal representatives of a de- ceased partner cannot be joined with the surviving partners as defendants, unless it be expressly averred in the complaint that such survivors are insolvent. ( Voorhis v. Child, 17 N. Y. 354; afirming 8. C. sub non. Voorhies v. Baxter, 1 Abb. 453; 18 Barb. 592; LMoorehouse v. Ballou, 16 Barb. 289; Hegyins v. Freeman, 2 Duer, 650. The case of Ricart v. Townsend, 6 How. 460, is in effect overruled.) Principal and surety.J—cannot be joined as defendants, where their contracts are separate, although made at the saine time, and on the same piece of paper. (Allen v. osgate, 11 How. 219; De Lidder v. Schermerhorn, 10 Barb. 638 ; Phalen v. Dingee, 4 E. D. Smith, 379; see Draper v. Snow, ‘ 476 OF PARTIES DEFENDANT. Rules of joinder. Receiver. Transferees. 20 N. Y. 881; Brewster v. Silence, 4 Seld. 207; Church v. Brown, 29 Barb. 489; [reversed in Ct. of Appeals, on another ground, see 21 N. Y.]) feceiver.|—In an action against an insolvent, for whose pro- perty a receiver has been appointed, on a simple money demand, the receiver should not be joined as a defendant, unless there is some cause of action against him as such. (Arnold v. Suffolk Bank, 28 Barb. 426.) ' In an action affecting real estate assigned to such receiver, he should be joined. (Gere v. Dibble, 17 How. 34; and see Arnold v. Suffolk Bank, 28 Barb. 426.) \ Sherif’ and deputy.|—It is finally settled that the sheriff may be joined with his deputy, in an action for illegal taking, if the former in any way interferes, although not present at the actual taking. (Waterbury v. Westervelt, 5 Seld. 598.) And it is held that he may be joined, even though he does not interfere in any way. (Hing v. Orser, 4 Duer, 437.) There is no doubt that the sheriff is personally liable for all the acts of his deputy. (Waterbury v. Westervelt, 5 Seld. 602.) Stockholders.|—In actions brought to enforce the personal liability of stockholders in an insolvent joint stock company, all of them may be joined. (8 &. S. (5th ed.) T7T ; Laws 1849, ch. 358.) If they are not joined, only one action can proceed at atime. (Lb¢d.) Stockholders in manufacturing companies are jointly and severally liable for debts due to the employees of such compa- nies. (2 2.8. (5th ed.) 662; Laws 1848, ch. 40.) Slander.|—Two or more persons cannot be joined as defen- dants in an action for slanderous words spoken. (Forsyth v. Edmiston, 2 Abb. 481.) It is otherwise in the case of a libel. (Zhomas v. Rumsey, 6 Johns. 30.) Tort.|—In general, defendants in an action of tort may be sued jointly or separately. (Low v. Mumford, 14 Johns. 426.) Trans ferees.|\—Where an agent, in violation of his trust, transferred bonds, notes, etc. to several parties, at different OF PARTIES DEFENDANT. ATT Rules of joinder. Transferees. Vendees. Remedy against error. times, and without complicity between the several transferees ; —held, that such transferees could not be joined in one action to recover the securities. (Leaington It. R. v. Goodman, 5 Abb. 493; 25 Barb. 469; but see V. Y.and WV. H.R. £&. v. Schuyler, 17 N. Y. 592.) But the agent might, at the plaintiff’s option, be joined with each transferee, in the separate actions against each. (ldid. ; and see Bailey v. Inglee, 2 Paige, 279.) Trustees of an express trust|—may be sued as well as sue, without joining the cestue que trust. (Ante, p. 46, § 113, as construed in Mead v. Mitchell, 5 Abb. 106.) Vendor and mortgagee.|—Where an estate is sold with war- ranty, which is found to be incumbered with a mortgage, the satisfaction of which is disputed, the purchaser may and should join both his vendor and the owner of the mortgage as defendants in an action to have it satisfied of record, and for payment of any amount found to be due, by the vendor. ( Wandle v. Turney, 5 Duer, 661.) In an action for specific performance of a sale, the prior mortgagees cannot be joined as defendants, in order to secure the purchaser from a possible injury on their part that can be sufticiently guarded against whenever attempted. (Chapman vy. Draper, 10 How. 368.) Vendor and vendee.|—After a contract is entered into for the sale of land, equity regards the vendee as the beneficial owner of the land, and the vendor as his trustee. In an action of waste, therefore, the vendee, though not the actual occupant, must be joined as a defendant. (Kidd v. Dennison, 6 Barb. 9.) Art. 5.—Defendants’ Remedy against Error. In cases where it is necessary for other persons to be joined, the defendants must demur, if the defect is manifest in the com- plaint. (Ante, p. 61, § 144.) If this defect exists in fact, but does not appear on the face of the complaint, the defendants should raise the objection by answer. (Ante, p. 62, § 147.) When it is desirable for the defendants to have others joined 478 OF PERSONS UNDER DISABILITIES. Remedy against misjoinder. Married women. with them, but not being essential to a proper judgment in the case, there is no ground for demurrer,—they should apply to the court to add, in its discretion, the names of such persons as defendants. (Ante, p. 69, §173; Crookev. O’ Higgins, 14 How. 154.) CuarTer XXII. OF PERSONS UNDER DISABILITIES. Articte 1. Married women. . Infants. Guardian ad litem for infant plaintiff. . Guardian ad litem for infant defendant. . Persons of unsound mind. ¢ om & pp Arr. 1.—Actions by and against Married Women. General rules. . When husband and wife should join. . When the wife should appear alone. Susp. 1. 2, 3 4, When the husband should appear alone. 5 6 . Married women to appear in person. . Married infants. Susp. 1. General rules. When a married woman is a party her husband must be joined with her, except that— 1. When the action concerns her separate property, she may sue alone. 2. When the action is between herself and her husband, she may sue or be sued alone, and in no case need she prosecute or defend by a guardian or next friend. (Anite, p. 46, § 114.) A married woman may sue and be sued in respect to her separate property, in the same manner as if she were single. (Ante, p. 48; Laws 1860, ch. 90.) She may sue in the same manner for any injury to her per- son or character. (Zdid.) Supp. 2. When husband and wife should join. The Code having adopted, substantially, the rules of equity in relation to parties, the question whether or not a wife should be joined with her husband, must be determined by the settled OF PERSONS UNDER DISABILITIES. 479 Married women. Husband to join. Husband not to join. practice of courts of equity. (Brownson v. Gifford, 8 How. 395; and see Ackley v. Tarbow, 29 Barb. 517.) But query, under the law of 1860. If the husband have a joint interest with his wife, he must be a party in an action brought by her. (Semble, Smit v. Kearney, 9 How. 468.) Actions relating to real estate.|—In an action to recover real property, where the wife is owner, and the husband tenant by the curtesy initiate, both shouldj join as plaintiffs. (Zngraham v. Baldwin, 12 Barb. 9.) In an action for partition, a wife, having inchoate right of dower, must be joined with her husband as a plaintiff. (2?zp- ple v. Gilborn, 8 How. 456; Green v. Putnam, 1 Barb. 506.) In an action to foreclose a bond and mortgage, made by a husband and wife together upon the separate estate of the lat- ter, they are both necessary parties. (Conde v. Shepard, 4 How. 76.) See further, ante, pp. 473, 474. Tort.|—A husband and wife are properly joined as defend- ants in an action for a tortious injury to personal property com- mitted by the wife, although done without the husband’s know- ledge. (Marsh v. Potter, 30 Barb. 506; Matthews v. Fiestel, 2 E. D. Smith, 90.) Ante-nuptial debts.|—An action to recover an ante-nuptial debt of the wife, may be brought against husband and wife jointly, (but can only be enforced against the separate estate of the wife.) (Zaws 1853, p. 1057.) Supp. 3. When the wife should sue or be sued alone. Separate property.|—When the action concerns her separate property, she may sue or be sued alone. (Ante, p. 48, Laws 1860, ch. 90.) It appears, that the word “may,” above, should be construed “ must,” i.e., that an action relating to the separate estate of a married woman, must be brought by her without her hus- band. (Ackley v. Tarbox, 29 Barb. 517; Brownson v. Gifford, 8 How. 395; and see Smith v. Kearney, 9 How. 469; L/iil- man v. Lillman, 14 id. 456; but see contra, Rusher v. Morris 9 id. 266.) 480 OF PERSONS UNDER DISABILITIES. Married women, Husband not to join. Wife not to join. The wife has no option but to sue alone in such case. (Ackley v. Tarbox, 29 Barb. 517; Brownson v. Gifford,8 How. 895 ; over- ruling Van Buren v. Cockburn, 2 Code Rep. 63; Lusher v. “Morris, 9 How. 266.) Where a married woman, with her husband’s consent, lends money of her own, which has never been in her husband’s pos- session, she may sue alone upon a promissory note given for such loan. (Smart v. Comstock, 24 Barb. 411.) So a married woman may sue a carrier for the loss of her separate property, without joining her husband. (Spies v. Ac- cessory Transit Co., 5 Duer, 662.) She may sue alone to recover the possession of Jand leased to her, and occupied,for her separate use. (Darby v. Callaghan, 16 N. Y. 71.) She may sue alone for damages for any injuries to her person or character by any person or corporation. (Ante, p. 48, Laws 1860, ch. 90.) When the husband “ abjures the realm,” or is exiled, the wife may sue and be sued alone. (2 Hent’s Com. 154.) © And when the husband absolutely deserts his wife, and leaves the State, she may sue and be sued as a single woman in all cases. (See Chapman v. Lemon, 11 How. 238; Gregory v. Pierce, 4 Metcalf, 478.) Supp. 4. When the husband should sue or be sued alone. An action for trespass upon a house occupied by a married wo- man, and not averred to be her separate estate, must’ be main- tained by the husbandalone. (Dunderdale v. Grymes, 16 How. 198.) An action by a husband, to set aside a conveyance made to trustees for the benefit of his wife and children, should be brought by him alone, and not by husband and wife. (Grant v. Van Schoonhoven, 9 Paige, 255.) Wife's earnings.|—Until 1860, the earnings of a married woman belonged exclusively to her husband. And, therefore, the husband sued for them alone. (Dunderdale v. Grymes, 16 How. 197; Loudler v. Wernicki, 3 E. D. Smith, 310; Avo- gadro Vv. Bull, 3 FE. D. Smith, 385 ; Freeman v. Orser, 5 Duer, 477.) \ OF PERSONS UNDER DISABILITIES. 48] Married Women. How to appear. Infants. By chap. 90 of the laws of 1860, (ante, p. 46,) the. wife’s earnings are made her own property, and she is allowed to sue for them herself, but the earnings of any married woman due before the passage of that act, must still be sued for by the husband alone. Necessaries.|\—In an action brought to recover the price of necessaries furnished the wife, she should not be joined as defendant. The husband alone is liable. (Jain v. Stephens, 4 E. D. Smith, 86.) Susp. 5. Married Women to appear in person. A married woman cannot appear by attorney, but must plead in her own name. (Bergman v. Howell, 3 Abb. 330; Phillips v. Burr, 4 Duer, 113.) But her answer, though by attorney, cannot be treated as a nullity. It should be set aside on motion. (Bergman v. Howell, supra.) And by going to trial on the merits, the objection is waived. (Phillips v. Burr, supra.) Susp. 6. Married Infants. A married female infant, suing jointly with her husband, needs no guardian. (Cook v. Rawdon, 6 How. 234.) Whether she needs one in any case, since the amendment to § 114 of the Code in 1857, query ? Art. -2.—Jnfants. Infants are protected with especial care by the courts, and as will be seen, a much stricter supervision is exercised over pro- ceedings in which they are concerned, than over ordinary actions, conducted by parties who are presumed to be able to take care of their own rights. The law presumes that an infant has not acquired sufficient strength of mind to guard himself from imposition; and the courts, following the policy of the law, exert themselves to pro- tect his rights,and to prevent the forms of justice being per- verted to his injury. 31 482 - OF PERSONS UNDER DISABILITIES. Infants. ee Their contracts. Rights and liabilities. ' The Supreme Court is the general guardian of all infants in this State, as the Chancellor is in England. (Wilcow v. Wil- cov, 14 N. Y. 578.) Infant's contracts.|—It is a familiar principle of law that an infant cannot be bound by his contracts, although the other party to the contract will be bound. And it is always held that his contracts are voidable only, and not void; and he may affirm them on coming of age. (2 Hent’s Com. 234.) Although Lord Mansfield professed himself unable to under- stand this doctrine, and was inclined to hold an infant’s con- tract void, (Burgess v. Merrill, 4 Taunt. 468) it is now well settled that whenever an infant’s contract may be for his benefit, it is only voidable, and he can enforce its performance _ onthe other party. (Slocwm v. Hooker, 13 Barb. 541; WV: Z. Ins. Co. v. Noyes, 82 N. H. 845; Whitney v. Dutch, 14 Mass. 457; Mason v. Dennison, 15 Wend. 65; Holt v. Ward, 2 Strange, 937.) Except where the rule of mutuality would require the judg- ment to enforce something on his part, when, as that could not be done, neither would equity permit him to maintain the suit. Thus he could not enforce a specific performance, because the court could not oblige him to fulfill his part of the agree- ment. (Flight v. Bolland, 4 Russ. 298.) Infant plaintiffs.;\—The right of an infant can be protected by action at any age, and even before he is actually born. (See Musgrave v. Perry, 2 Vern. 710; citing Lutterel’s case, Prec. Ch. 50.) And when an infant has any right to.real property, or to debt or damages, he may sue at any time, without waiting until he arrives at full age. (3 I. S. (5th ed.) T45 ; [2 dd. 445.]) ° Infant defendants.|—An infant is always liable for a tort. (Conklin v. Thompson, 29 Barb. 220; Fish v. Ferris, 5 Duer, 49; Campbell v. Stakes, 2 Wend. 144; Vasse v. Smith, 6 Cranch, 230; 2 Curtis, 381.) And not merely for actual injuries but for frauds, and con- OF PERSONS UNDER DISABILITIES. ' 483 Infants. When.made defendants. How to appear. structive torts. (Baxter v. Bush, 29 Vt. 465; 2 Hent’s Com. 340; Wallace v. Morss, 3 Hill, 392; Badger v. Phinney, 15 Mass. 359; Homer v. Thwing, 3 Pick. 494.) And though it has been held “ well settled,” that he is not liable edvélly, but only in a criminal prosecution, (People v. Kendall, 25 Wend. 399)—yet this distinction seems overruled. (See above cases ; and Oliver v. I’ Clellan, 21 Ala. 675.) An infant is not liable in damages for a breach of promise to marry. (Hamilton v. Lomax, 6 Abb. 142; Hunt v. Peake, 5 Cow. 475; Holt v. Ward, 2 Strange, 9377.) He is liable on his contract for necessaries, according to his station in life. (2 Kent's Com. 239; Swift v. Bennett, 10 Cush. [Mass.] 436.) Unless he has a guardian, when, as a general rule, he is not. (Hreeman v. Bridger, 4 Jones N. C. Law R. 1.) It seems, that an infant cannot be a party to a submission of a controversy without action. (J%sher v. Stilson, 9 Abb. 34.) When an infant must be made a defendant.|—When one of several joint debtors upon contract is an infant, he must be made a defendant. (Slocwm v. Hooker, 13 Barb. 536; reversing 8. C., 12 id. 568; 6 How. 167 ; Wamsley v. Lindenberger, 2 Rand. 478. Burgess v. Merrill, 4 Taunt. 468, is overruled.) The plaintiff may, as soon as he is satisfied of the fact of such infancy, apply to the court for leave to discontinue against the infant defendant, without costs, which motion may be granted in the discretion of the court. (Wellington v. Claason, 9 Abb. 177; Butler v. Morris, 1 Bosw. 829 ; Hx parte Nelson, 1 Cow. 417; and see Merchants’ Bh. v. Moore, 2 Johns. 295 ; Hart v. Story, 1 id. 142; Newton v. Harrall, 2 Lowndes, P. C. 139.) How to appear.|—An infant cannot appear in person, nor by attorney, nor yet by his general guardian. (See /7i/l v. Thac- ter, 8 How. 407; Zimmons v. Timmons, 6 Ind. 8; Lee v. Jenkins, 30 Miss. [1 Geo.] 592.) He must appear by a guardian specially appointed for the action—usually called a guardian ad litem. (Ante, p. 49, § 115.) He cannot appear, as formerly, by his “ next friend,” although such next friend be appointed by the court, and the difference 484 OF PERSONS UNDER DISABILITIES. Infants. : Guardian for infant plaintiff. between him and a guardian be purely in name. The terms of the Code require a guardian, and must be strictly pursued. (Hoftailing v. Teal, 11 How. 188; and see Hulbert v. Young, 13 id. 413.) Some books of practice under the Code are errone- ous in this respect. Judgment against infants.|—No judgment can be entered against an infant without the appointment of a guardian for him. (Kellogg v. Klock, 2 Code Rep. 28.) Nor can judgment be taken by default, without proof, whether a guardian is appointed or not. (Cost v. rose, 17 Ill. 278.) ‘ Art. 3.—@Guardian ad litem for Infant Plaintiff. Supp. 1. When guardian should be appointed. 2. How appointed. 3. Who should be appointed. 4. His powers, duties and responsibilities. 5. Control of the court over him. Susp. 1. When guardian should be appointed. The guardian must be appointed before the summons is zssued, not merely before it is served. (ill v. Thacter, 3 How. 407; 2B. &. (1st ed.) 446.) A guardian cannot be appointed for the submission of a con- troversy without action. (2isher v. Stilson, 9 Abb. 34.) A married woman, suing together with her husband, needs no guardian, although an infant. (Cook v. Rawdon, 6 How. 234.) Susp. 2. How appointed. By whom.j|—Except in partition suits, the guardian ad Litem may be appointed by the court, a judge thereof, or a county judge. (Ante, p. 49, § 115.) In an action for partition, a guardian can be appointed only by the court, (and not by a county judge), upon ten days’ notice to the general guardians. (38 &. S. (5th ed.) 603 ; [2 2d. 317]; Lyle v. Smith, 13 How. 106 ; and see Disbrow v. Folger, 5 Abb. 533 and ante, p. 155, § 448.) On whose application.|—If the infant is fourteen years of age, OF PERSONS UNDER DISABILITIES. 485 Guardian for infant plaintiff. Form of petition. or over, he must apply himself for the order. (Ante, p. 49, § 116.) If the infant is under the age of fourteen, the application should be made, 1. By his general or testamentary guardian, if he has any, or 2. By a relative or friend—notice being given to the guar- dian, if any; or if he has none, to the person with whom he resides. (Ante, p. 49, § 116.) The notice here required must be of at least eight days, if personally served, or sixteen days by mail. (Ante, p. 146, 88 413, 412.) § 5D. Petition for appointment of a Guardian ;—by an Infant per- sonally, in an Action for the recovery of money only, or of specific property. To the [Supreme] Court of the State of New York: [or: To Hon. W. H. Robertson, county judge of Westchester County, or otherwise. | The petition of John Smith respectfully shows: 1. That he resides in the....o0f..... 2. That he is between. ...and.... years old. [Or: That he is over 14 and under 21 years old.] 3. That one John Jones is indebted to him in the sum of bay a arene dollars, on a promissory note, dated the ...., 18 . . [Or state briefly any other cause of action. | 4. That your petitioner desires to commence an action in [this] court for the same. 5. That John Brown of ....... [merchant] is a compe- tent and responsible person for the office of guardian. Wherefore your petitioner prays that the said John Brown may be appointed his guardian for the purposes of the action aforesaid. . [ Date. ] Joun Siru. I consent to become the guardian of John Smith, for the pur- poses mentioned in the foregoing petition. [Date.] | Joun Brown. ¢ ‘ 486 OF PERSONS UNDER DISABILITIES. Guardian for infant plaintiff. Form of afidavit. § 56. : The like, in other Actions. '[As in § 55, to and including paragraph 4.] 5. That John Brown, [merchant], is your petitioner’s general guardian. [Or: That John Jenks, counsellor at law, is a com- petent person for the office of guardian, having no interest ad- verse to your petitioner, and being fully able to answer for any negligence. ] Wherefore [as in § 55.] [ Consent, as in § 55.] Thongh it is not expressly required by any rule, yet as in such cases, the judge is required to appoint persons with certain qualifications, it is better to present, at the outset, sufficient proof of such qualifications. An affidavit in sub- stantially the following form seems advisable. § 57. Affidavit of the Proposed Guardian. County oF ..... .: John Jenks, being duly sworn, says: 1. That he is an [attorney and counsellor at law,] residing in the [city] of .... 2. That he has no interests adverse to those of John Smith, the infant who desires to have him appointed as guardian. [3. That he is not connected in business with any attorney whose interests are adverse to those of the said infant.] 4, That he is worth ..... dollars over all his liabilities. [Jurat.] JouN JENKs. The third paragraph of the above is hardly necessary in the case of an infant plaintiff, but it will dono harm. - OF PERSONS UNDER DISABILITIES. A487 Guardian for infant plaintiff. Forms on appointment. § 58. Petition for Appointment of Guardian ;—by the General Guardian. To the Hon. A. Bo... . judgeof... « The petition of James Smith respectfully shows : 1. That John Smith, of the city [or town] of..... , and county of ..... , isunder.... years old, [state the aye of the infant at his next birthday.] 2. That your petitioner is his father [or otherwise. ] 3. That the said John [is entitled to the possession of certain lands now held by one John Jones; situated in the town of 4, That it is desirable that an action should be commenced in [this] court for the recovery of the same. 5. That John Jenks, of . . . ., [counsellor at law,] is a com- petent and responsible person for the office of guardian. [Jf the petitioner desires to be appointed himself, onvit this para- graph.] Wherefore your petitioner prays that [the said John Jenks, or if he proposes himself, he] may be appointed guardian of the said John Smith, for the purposes of this action. [ Date.] James SMiru. If the action be brought for an “equitable ” claim, the pre- ceding petition should be modified so as to contain the facts set forth in the affidavit, § 57; and it should, we think, be verified. § 59. Notice of Application by a Friend, to the General Guardian, or Person with whom the Infant resides. Taxes Norice, that I shall apply to Hon. A. B., a justice of the..... court,on the....dayof..... LB iy. of Bbst ass o'clock, at the..... , in the [city] of ...., for an order 488 OF PERSONS UNDER DISABILITIES. Guardian for infant plaintiff. Petition by friend. Order. , < appointing John Jenks guardian of John Smith, of whom you are general guardian, [o7, who resides with you,] for the pur- pose of bringing an action in the name of the said John Smith, _ against John Jones. Yours, etc. To Joun Srinus, Esq. James Brown. § 60. Petition oe Appointment of Guardian;—by a Friend. To the Hon... 1... , judge of..... The petition of James Brown respectfully shows : 1. That John Smith, of ..... , is under..... years old. 2. [State the cause of action briefly.] 3. That it is desirable that an action should be commenced in [this] court for the [recovery of] the same. 4. That the said John Smith has no general guardian. [Or-: That James Smith, of ..... , is the guardian of the said John Smith, but declines to commence an action for the said purpose, on the ground that....... or otherwise. ] 5. That [as in § 58 to the end.] James Brown. § 61. Order appointing a Guardian for Infant Plaintiff. On reading and filing the petition of A. B. [and the affida- vit of C. D.], dated the... .dayof..... 18... OrpereD: That John Jenks, of the city [or town] of ..... ; be appointed guardian of John Smith, an infant, for the pur- poses of an action to be commenced in the. .... court, against John Jones. [New Yorr, Oct. 1, 1860.] Cuas. P. Daty. The order, with the papers on which it was obtained, shou ld OF PERSONS UNDER DISABILITIES. 489 Guardian for infant plaintiff. Who should be appointed. be entered with the clerk, in the county where the trial is laid. (Ante, p. 177, Rule 8, Supreme Court.) It does not seem that any separate “notice” of the appoint- ment is necessary to be given to the defendant, (although so stated in some books of practice), for the mode of appointment moust be fully set forth in the complaint, which would appear to be sufficient notice. (See Hulbert v. Young, 18 How. 418 ; Stanley v. Chappell, 8 Cow. 235.) Supp. 8. Who should be appointed. The guardian of an infant plaintiff should in all cases be a responsible person. (Cookv. awdon, 6 How. 234.) For he is liable for costs. (Ante, p. 116, § 316.) And it is better that his responsibility should be shown aftir- matively in the petition. (Cook v. dawdon, 6 How. 234.) Lule in equitable actions.}—In all actions of an equitable nature, that is, in all except actions for the recovery of money only, or of specific real or personal property, the rules of court require that no one shall be appointed guardian, even upon the application of the infant, except either— 1. The general guardian ; or, 2. Some person fully competent to understand and protect his rights, having no adverse interests, and_not connected in business with the counsel for the adverse party. And every such guardian must be of sufficient ability to an- swer to the infant for any mismanagement of his suit. (Ante, p. 198, Lule 60, Supreme Court.) / Supp. 4. Powers, duties and responsibilities of guardians. The guardian ad lztem should prosecute the action faithfully, as if it were his own, and indeed he is not at liberty to admit or concede matters that he might and would if the cause were his own. (See Aldrich v. Lapham, 6 How. 130; Litchjield v. Burwell, 5 id. 841; James v. James, 4 Paige, 119.) It seems, that he has no power to submit a controversy with- out action. (/%sher v. Stilson, 9 Abb. 84.) He is responsible for the defendant’s costs, and payment may be enforced by attachment. (Ante, p.116, § 816; and see Mat- ter of Ryder, 11 Paige, 188.) 490 OF PERSONS UNDER DISABILITIES. ~ Guardian for infant plaintiff. For defendant. Security.]—Before the Revised Statutes, an irresponsible next friend (now guardian), was required to give security for costs. (fulton v. Rosevelt, 1 Paige, 178.) And 7 seems, that this might still be required. (Hill v. Thacter, 3 How. 409.) He is not required to give security to the infant until he claims money or property recovered in the action, other than costs and expenses. Then, before he can receive such money or property, he must do so. (Ante, p. 198, Rule 62, Supreme Court.) : Supp. 5. Control of the Court over Guardian. If the guardian ad litem does not faithfully prosecute the action, the infant may apply to have him removed. (£eusselt v. Sharpe, 1 Jac. & Walk. 462.) And if the infant does not wish to prosecute, and shows good reason, the guardian may be removed. (Gudld v. Cranston, 8 Cush. [Mass.] 506.) And on its appearing to the court by any means that he is unfaithful, it will remove him of its own motion. (Lztchfield v. Burwell, 5 How. 341; Ward v. Ward, 3 Merivale, 706.) « And the court will correct any errors of the guardian that in any way may come under its notice, even where he acted in good faith. (Lefevre v. Laraway, 22 Barb. 176.) Art. 4.—Guardian for Infant Defendant. Susp. 1, When to be appointed. 2. How to be appointed. 8. Who should be appointed. 4. His powers, duties, and responsibilities. 5. Control of the court over him. Susp. 1. When to be appointed. A guardian must be appointed for an infant defendant ' before judgment. (Kellogg v. Klock, 2 Code Rep. 28.) He may be appointed, on application of the infant, at any time during the action. (J/cConnell v. Adams, 1 Code Rep. N. 8. 114.) OF PERSONS UNDER DISABILITIES. 491 Guardian for infant defendant. How appointed. Appointment on appeal.|\—Where judgment is taken in a justice’s court against an infant, without any guardian being appointed, such infant may apply to the county court (Common Pleas) for the appointment of a guardian. (Moody v. Gleason, 7 Cow. 482; and see Mish v. Ferris, 3 E. D. Smith, 567.) But the application must not be made until the return is filed. (Mish v. Ferris, 3 E. D. Smith, 567.) It may then be made to the special term. (Jd7d.) Supp. 2. How to be appointed. Except in partition suits, the guardian is appointed by the court, a judge thereof, or a county judge, as follows: 1. If the infant defendant is fourteen years of age, he has twenty days allowed after service of the summons, during which he alone may apply for a guardian. 9. If he does not apply within twenty days, or if he is under fourteen years old, then the application may be made by any other party to the action, or by a relative or friend of the infant, after eight days’ notice (sixteen days, if by mail,) being given to the general or testamentary guardian, if within the State; or if there is none, then to the infant himself, if over fourteen years of age, and within the State; or if under that® age, and within the State, to the person with whom he resides. (Ante, p. 49, § 116; p. 146, §§ 413, 412.) . In partition suits, the guardian is appointed by the court only, upon ten days’ notice to the infant or his guardian. (8 R. S. (5th ed.) 603 ; [2 zd. 317.]) » Application by infant.|—The term of twenty days assigned for an infant over fourteen years old, to apply himself for a guardian, is intended only to prevent all others from so applying within that term. After that time, if no other authorized person has applied, the infant is still at liberty to apply himself. (McConnell v. Adams, 1 Code Rep. N. 8. 114.) Jt seems, that no guardian will be appointed for an infant over the age of 14, against such infant’s consent. (Z. B. v. E. @. B., 8 Abb. 46.) But this appears too broad an assertion, for a guardian may certainly be appointed on application of the plaintiff, after 492 OF PERSONS UNDER DISABILITIES. Guardian for infant defendant. Petition by infant. twenty days from service of summons; and if the infant could hinder the appointment of any guardian, no judgment could ever be taken against him. (ellogg v. Klock, 2 Code Rep. 28.) Probably all that the court meant by this statement was that one guardian ad litem could not be removed, and another appointed, against the will of the infant. § 62. Petition for the Appointment of a Guardian for an Infant defendant—by the Infant. Supreme Coort. Joun Suira | agt. ' James JONES. | J To the Hon. A.B... .. judge of..... The petition of James Jones respectfully shows : 1. That he is between. .... and. .... years old. 2. That he resides in the [city] of ..... 38. That an action has been commenced against him by the above named plaintiff, in the [Supreme] Court, for [state the re- lief demanded in the complaint.) 4. That John Jenksof..... , [counsellor at law,] is a com- pétent and responsible person for the office of guardian. Wherefore your petitioner prays that the said John Jenks may be appointed his guardian for the purposes of this action. [ Date. | James Jones. I consent to act as guardian according to the prayer of the foregoing petition. [Date.] Joun JENKs. OF PERSONS UNDER DISABILITIES. 493 Guardian for infant defendant. Affidavit. Petition, § 63. Affidanit to be used in “ equitable” Actions. [ZLitle of Cause.] County or ......: John Jenks, being duly sworn, says: 1. That he is a [state business,] residing in the city [or, town] 2. That he has no interest adverse to that of the above named defendant. 3. That he is not connected in business [o7, in any way] with the attorney or counsel of the above-named plaintiff. 4, That he is worth..... dollars over all his liabilities. [Jurat.} Joun JENKES. § 64. Petition for the Appointment of Guardian ; by the general Guardian. [Title of Cause. | To Hon Ae By 2 ea judge of »..5- The petition of William Jones respectfully shows : 1 That James Jones, of ..... ,is under the age of.... years. 2. That your petitioner is his general guardian. 3. That an action has been commenced against the said James, by the above named plaintiff, in the..... court, for [state the relief demanded in the complaint. ] 4, That Jobn Jenks, of. .... , [counsellor at law,] is a com- petent and responsible person for the office of guardian. [Jf the petitioner desires to be appointed himself, omit this para- graph.) Wherefore your petitioner prays that [he or] the said John Jenks may be appointed guardian of the said James Jones, for the purposes of this action. [Date.] Wiruram Jonzs. 494 OF PERSONS UNDER DISABILITIES. Guardian for infant defendant. Notice. Petition. § 65. Notice of Application for a Guardian—by another Party. [ Title of Cause.] Taxe Notices, that I shall apply to the Hon. A. B., county judgeof..... county, [ov, a justice of the..... court, | Lb eer save sd AT CHG aoe a Mets OF asa a 2 , on the... . day of ete eal 18 .., at ...o’clock, for an order appointing a guardian for the defendant in this action. Yours, ete., [ Date.] J. M. Ackuey, . Plaintiff’s Attorney. To Wituam Jonus, Esq., Guardian of the defendant. This notice must be served at least eight days, (in partition suits, ten days,) before the day named for the application.. The motion should then be made upon proof of service, and the fol- lowing petition : § 66. Petition for the Appointment of a Guardian for an Infant De- Jendant,—by the Plaintiff. [ Title of Cause.] To the Hon. A.B... . . judgeofi..... The petition of John Smith, the plaintiff in this action,res- pectfully shows: 1. That the defendant, James Jones, is undertheage of.... years. 2. That the summons in this action was duly served on him onthe. ...dayof... 18. . [Uf the defendant is over four- teen years old, this must be a date at least twenty days preceding the date of the petition. | 3. That no guardian has been appointed for the defendant, so far as your petitioner has any knowledge or information. OF PERSONS UNDER DISABILITIES. 495 ‘ Guardian for infant defendant. Who should be appointed. Wherefore your petitioner prays that a guardian may be ap- pointed for the said defendant, for the purposes of this action. . Joun Suara. [Date.] [ Verification.] | § 67. Order for the Appointment of a Guardian for an Infant De- Sendant. [Title of Cause.} On reading and filing a petition of the above named defend- ant [or, of William Jones, 07, of the above named plaintiff], dated the. ...dayof..... , 18 . ., [and also a copy of the notice of application, and affidavit of service of the same, or, after hearing counsel on both sides :] Orverep: That John Jenks, Esq., of ..... be appointed guardian of the defendant for the purposes of this action. [Date.] CO. P. Daty. Susp. 8. Who should be appointed. No person is to be appointed guardian ad litem, on the ap- plication of the infant or otherwise, unless he be either 1. The general guardian of the infant ; or, 2. One fully competent to understand and protect the infant’s rights, having no adverse interests, and no business connection with the adverse counsel. And every guardian ad litem must be of sufficient ability to answer to the infant for any mismanagement of the case. This rule is, however, only applicable to “ equitable actions ;” actions for the recovery of money only, or specific property, being excepted from its operation. (Ante, p. 198, Rule 60, Su- preme Court.) | The person most likely to protect the infant’s interests should be appointed guardian, or consulted in the selection of one. (Grant v. Van Schoonhoven, 9 Paige, 256.) The court never selects a guardian for an infant defendant 496 OF PERSONS UNDER DISABILITIES. Guardian for infant defendant. Powers and duties. who is nominated by the adverse party. (Knickerbacker v. De Freest, 2 Paige, 405.) And therefore the plaintiff when applying to have a guard- ian appointed for the defendant, should never undertake to name any person for the position. (Zd¢d.) Where an infant defendant is a married woman, it is usual to appoint her husband her guardian, unless he has adverse inter- ests. (1 Barb. Chan. Pr. 85.) Susp. 4. Powers, duties, and responsibilities of guardian. Duty to act.|—It is the duty of every attorney, or officer of . the court, to act as guardian for an infant defendant, whenever appointed as° such by the court. (Ante, p. 198, Rule 61, Su- preme Court.) Duty to ecamine case.]—It is the guardian’s duty to investi- gate the case, and make the proper defence. (L0zd.) He should ascertain from the infant and his friends, or other proper sources of information, what are the rights of his ward. (Semble, Knickerbacker v. De Freest, 2 Paige, 305.) Mode of answering.|—If the infant is a mere nominal party, or has no defence, and no equitable rights as against his co- defendants rendering a special answer necessary, the “ general answer,” submitting his rights to the court, will be sufficient. At least, this was the rule in chancery. (Jdéd.) But if necessary to bring the rights of the infant property before the court, it is the duty of the guardian to put ina “special answer.” (Zd2d.) General duties.|—If the infant has any substantial rights which may be affected by the action, or if the claim against him is of a doubtful nature, the guardian must attend to all the proceedings, and carefully forward and protect the rights of his ward. (Zdid.) Though the court will protect the rights of the infant, when- ever it can fairly perceive them, yet it is the special duty of the guardian to bring these rights directly under the notice of the court. (Zdid.) As arule, the courts do not approve of a pliant and over- accommodating disposition on the part of guardians toward the parties opposing their wards; and a course of conduct by OF PERSONS UNDER DISABILITIES. 497 Guardian for infant defendants, Admissions. Responsibility, which judgment against the infant is facilitated or hastened, is regarded with suspicion. (See Z. B.v. EL. C. B., 8 Abb. 44; Litchfield v. Burwell, 5 How. 341; Grant v. Van Schoonhoven, 9 Paige, 255.) Admissions by guardian.|—No judgment can be entered against an infant upon the admission of his guardian. (Litch- jidd v. Burwell, 5 How. 341; James v. James, 4 Paige, 119; Crain v. Parker, 1 Carter, [Ind.] 374; Cost v. Rose, 17 UL 276.) He cannot waive service of process on his ward. (Pugh v. Pugh, 9 Ind. 132; Lobbins v. Robbins, 2 Carter, [Ind.] 74; but see Varian v. Stevens, 2 Duer, 635.) Nor will the infant be prejudiced by any. errors or omissions in the guardian’s answer. (Bulkley v. Van Wyck, 5 Paige, 537; Lenow v. Notrebe, 1 Hemp. [U. 8.] 251.) Where an infant is defendant, consequently, everything that is necessary to establish the plaintifi’s rights against him, must be proved, although it be such matter as would be freely admit- ted by an adult defendant. (Zaton v. Tillinghast, 4 R. I. 276 ; Tuttle v. Garrett, 16 Il. 354; Wéelkinson v. Beal, 4 Madd. 408.) But admission may be made of facts clearly to the advantage of the infant. (Haton v. Tillinghast, 4 R. I. 276.) It has been said that infants were as much bound by the acts of their counsel as any one (Tillotson v. Hargrave, 3 Madd. 495 ;) but this view is not sustained by the later cases. (See Litchfield v. Burwell, 5 How. 341.) Responsibility of guardian.|—He is not responsible for the costs, unless specially charged by the court for some miscon- duct. (8.2. S. (5th ed.) 745; [2 zd. 447.]) He will be charged with the costs, if he makes an improper defence. (Hinde, 248.) The court may punish him for neglect of duty. (Semble, Knickerbacker v. De Freest, 2 Paige, 305.) And he is liable to his ward for all damage sustained by the latter in consequence of such neglect. (Zdid.) Supp. 5. Control of the court over guardian. The court will always, if possible, prevent an infant defend- 32 498 OF PERSONS UNDER DISABILITIES. 1 Guardian for infant defendant. Lunatics, etc. ant from being prejudiced by any act of his guardian. Thus it will not allow the answer put in by the guardian to be used to the injury of his ward. (Bennett v. Oliver, 7 Gill & Johns. 207.) It will correct errors of a guardian, and remove him if it has reason to think him unfit for his trust. (Seé ante, p. 490.) Arr. 5.—Persons of unsound Mind. 1. As plaintiffs. 2. As defendants. 1. As plaintiffs.|—Prior to 1845, all actions at law, and all in equity except of a single nature, hereafter specified, were brought in the name of the actual plaintiff, although a lunatic in charge of a committee. It was Aeld that the committee could not maintain an action in his own name for the benefit of the lunatic. (Lane v. Schermerhorn, 1 Hill, 97; Petrie v. Shoemaker, 24 Wend. 85; Gorham v. Gorham, 3 Barb. Ch. R. 24.) . The only exception to this rule was in an action in equity to set aside a deed, etc., of the lunatic obtained from him during lunacy. In such case the committee might sue without joining the lunatic, on the ground that the latter should not be com- pelled to stultify himself. (Ortley v. Messere, 7 Johns. Ch. R. 1389; At’y Gen. v. Parkhurst, 1 Ch. Cases, 112; and see Person v. Warren, 14 Barb. 488; Gorham v. Gorham, 3 Barb. Ch. R. 24.) Law of 1845.]—The legislature then authorized such com- mittees to “sue in their own names for any debt, claim, or de- mand transferred to them, or to the possession of which they are entitled” as such committees. (3 B.S. (5th ed.) 185; Laws 1845, ch. 112.) The committee need not state, in a complaint on a note given to the lunatic, that he sues as a committee—nor need he join the lunatic’s name as plaintiff. (Davis v. Carpenter, 12 How. 287.) In actions prior to the Code, it was Aeld that in every in- stance except the cases specially named in the act of 1845, the OF PERSONS UNDER DISABILITIES. 499 Lunatics, etc. Actions against. action must be brought in the name of the lunatic or idiot, by his next friend. (I’? Aillip v. WL? Killip, 8 Barb. 555.) The Code.|—It has been held at special term, (Tacearrt, J.) that the committee of a lunatic may sue in his own name un- der the Code, as a trustee of an express trust. But the action in that case could have been sustained on other grounds. (Per- son v. Warren, 14 Barb. 494; and see Davis v. Carpenter, 12, How. 288.) 2. As defendants.—Leave to sue.]|—Lunatics may be sued as other persons are, but as to the mode of commencing actions against them, see ante, p. 337. It seems that lunatics, not judicially declared to be such, must be sued as sane persons in all respects. (Heller v. Heller, 6 How. 194.) The proper course to pursue for enforcing a claim against a lunatic (judicially declared such), is as follows : The plaintiff should petition the Supreme Court for the pay- ment of his debt, and the court will either— 1. Order the committee to pay out of the lunatic’s estate, or, 2. Order a reference to settle the amount and justice of the claim, or, 3. Give the plaintiff leave to sue. (Stevens v. Cameron, 26 Barb. 172 ; Matter of Hopper, 5 Paige, 489 ; Soverhall v. Dick- son, 5 How. 112; and see Matter of Heller, 3 Paige, 199.) A lunatic may be made a defendant, but it is contempt of court to commence an action against him (after he has been judicially declared to be a lunatic), without leave of the court. (Crippen v. Culver, 13 Barb. 428.) But a judgment recovered in an action brought without leave, will not be void, nor even erroneous. (Jbid.; but see ; Robertson v. Lain, 19 Wend. 650; Matter of Hates, 3 Paige, 201. ie Supreme Court will, on application of the committee of a lunatic defendant, pending suit, set aside the complaint in an action brought without leave of any court. (Sternburg v. Schoolcraft, 2 Barb. 153.) 500 | CHANGE OF PARTIES. Abatement. Actions for wrongs. Civil death. Cuapter XXIII. CHANGE OF PARTIES—ABATEMENT AND REVIVOR. ARTICLE 1. Abatement of action. . Change of interest. . Continuance or revivor of action. . Addition of parties. . Interpleader. 2 oO mB ow bo Arr. 1.—Abatement of Action. Under the old practice, the death of a sole plaintiff or de- fendant abated the action, if it occurred before verdict or judgment. But the Code now provides that “no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue.” (Ante, p. 50, § 121.) (As to the mode of continuing such actions, see Arr. 3 of this chapter, post, p. 503.) Actions for wrongs.|——An action for wrongs, not surviving to the estate, is not included in the above rule, and will still be abated by the death of either sole party, except after verdict rendered, in which case the action may proceed as in other cases. (Ante, p. 50, § 121.) Civil death.|—Imprisonment in the State prison for life is equivalent to death, and abates an action as effectually. (@ra- ham v. Adams, 2 Johns. Cases, 408.) And it has since been /e/d, that such imprisonment for a term of years only has the same effect upon the action. (O’Brien v. Hagan, 1 Duer, 664.) it seems, that such limited imprisonment is not within the meaning of § 121 of the Code, and that as there can be no representatives of the prisoner, the suit must abate. (Jd¢d.) Corporations.]—The dissolution of a corporation does not abate suits brought in its favor. They may be continued in the name of the corporation as before, ar of its receiver or trustees. ABATEMENT AND REVIVOR. 501 Abatement of actions, Change of interest. (2 2. S. (5th ed.) 597; Laws 1832, ch. 295; and see V. Y. Mar- bled Iron Co. v. Smith, 4 Duer, 878; Larmers’ Bank v. Ely, 2N. Y. Leg. Obs. 274; Talmage v. Pell, 9 Paige, 410. Actions pending July 1, 1848.]—§ 121 of the Code, on which Arts. 1, 2, and 3, of this chapter, are substantially founded, was made applicable, by the legislature, to actions commenced before the Code. But Wittarp, J., denied the constitutionality of such retrospective application. (Vrooman v. Jones, 5 How. 369.) If, however, it be constitutional, yet its provisions being simply permissive, and § 122 not being made applicable to suits under the old practice, a change of parties cannot be made in such suits, without the consent of the person sought to be made a party. The old practice must be resorted to in such case. (Phillips v. Drake, 1 Code Rep. 63.) Court of Appeals.|—This section seems not to have been intended to apply to the Court of Appeals. (ZZastings v. M Kinley, 8 How. 175.) Art. 2.—Change of Interest pending Suit. In case of any transfer of interest not occasioned by the death, marriage, or other disability of the party, “the action shall be continued in the name of the original party ; or the court may allow the person to whom the transfer is made, to be substituted in the action.” (Ante, p. 50, § 121.) This substitution is a matter in the discretion of the court. (Banks v. Maher, 2 Bosw. 693; Ford v. David, 1 id. 601; Howard v. Taylor, 5 Duer, 605; 11 How. 380; Murray v. Gen. Mut. Ins. Co., 2 Duer, 607; Harris v. Bennett, 1 Code Rep. N. 8S. 203; 6 How. 220; Sheldon v. Hawens, 7 How. 268. a that an order of substitution will not be granted, unless sufficient reason is shown, and the rights of the opposing party will not be prejudiced. (Murray v. Gen. Mut. Ins. Co., 2 Duer, 607 ; and see all the last cited cases.) The court should not, upon application for such an order, examine the title of the assignor, when such title is disputed, 502 CHANGE OF PARTIES. ‘ Change of interest. Substitution of defendant. and put in issue for trial by jury in the case. (Banks v. Maher, 2 Bosw. 693; and see Wing v. Ketcham, 3 How. 385.) Whether the decision of the special term is appealable— , query? (Banks v. Maher, 2 Bosw. 693; Lord v. David, 1 id. 601; WGown v. Leavenworth, 2 EH. D. Smith, 27; and see Murray v. Gen. Ins. Co., 2 Duer, 607.) The court cannot, under this section, substitute a party who has the right to sue, for one who has not thé right, and had not when the action was commenced. (Last River Bank v. Cut- ting, 1 Bosw. 636.) An assignee of the cause of action, pending suit, who is sub- stituted for the plaintiff, ex parte, has no greater rights than his assignor, and his claim is subject to the same set-off, whether legal or equitable. (Zerry v. Roberts, 15 How. 65.) But the right to such set-off must have existed previously to the assignment. (Joberts v. Carter, 17 How. 347.) Substitution of defendant.|—In an action to recover real pro- perty, if the defendant dispose of the land pending suit, there is no occasion to substitute the grantee as defendant, since the plaintiff, if he obtain judgment, may dispossess any such grantee, without notice. (Moseley v. Albany V. R. &., 14 How. 74. ; an action for any ort in relation to real estate, the defen- dant’s grantee cannot be substituted for him, and made respon- sible for his torts. (Jbid.) In an action for partition, ¢¢ seems that the grantee of a defendant might be substituted for him. (See Hornfager v. Hornfager, 1 Code Rep. N. S. 180.) How motion should be made.|—The assignee should move for leave to be substituted as a party, upon notice to both parties to the action. (Howard v. Taylor, 5 Duer, 604 ; 11 How. 380.) Perhaps the assignor may make the motion, on notice to hig assignee and to all parties to the action. But he cannot move without such notice, and it is doubtful whether he'can at all. (Zbéd.) we ABATEMENT AND REVIVOR. 503 Continuance or revivor. After death of plaintiff. Arr. 3.—Continuance or Revivor of Action. “In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterward on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest ;’—if the cause of action survives or continues. (Ante, p. 50, § 121.) fe After a verdict shall be rendered in any action for a wrong such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.” (Ld¢d.) 1. After death of plaintiff.|—The executor or administrator of a deceased plaintiff may be substituted for such plaintiff, even against his own wish, on the motion of adefendant. (Ridgeway v. Bulkeley, 7 How. 269; butsee Williamson v. Moore, 5 Sand. 647.) In an action relating to real estate, the Aeirs should apply for an order of continuance, without joining the widow of the plaintiff. She has no interest in the land, until dower is actu- ally assigned her. (Ash v. Cook, 3 Abb. 389.) Upon this application, the court cannot look into the merits of the action. (Wing v. Ketcham, 3 How. 385.) Death of one of several plaintiffs.|\—Where one of several . plaintiffs dies, and the cause of action swrvives to the: others, the surviving plaintiffs should make a suggestion on the record, aud the action may proceed without further order, in the name of such survivors. (38 2. S. (5th ed.) 669 ; [2 dd. 386 ;] and see Taylor v. Church, 9 How. 190.) —_—__— § 68. Suggestion of Death. [Title of Cause.] C. D., one of the plaintiffs in this action, by [F. 8. Hoffman,] his attorney, hereby gives the court to understand that A. B., 504 CHANGE OF PARTIES. Continuance or revivor. Suggestion of death of plaintiff. one of the plaintiffs herein, died since the commencement of this action, to wit, onorabout the. ...dayof..... 718 23 and that the cause of action survives to him, the said C. D. F. 8. Horrman, [Date.] Attorney for C.D. This suggestion should be filed with the clerk, and a copy served on the defendant’s attorney. (3 &.S. (5th ed.) 868; [2 2d. 553.]) The defendant may plead to the suggestion if he desires to controvert it, within twenty days, in the same manner as if it were a new complaint. (Zdid.) If an issue of fact be joined thereupon, it must be tried, and judgment rendered thereon, as on other issues. (Zdd.) If a default be taken, or judgment upon demurrer or other- wise be rendered against the opposing party, a writ of inquiry must issue to ascertain the truth of the suggestion, unless other- wise ordered by the court. (Zd¢d.) The court may, and probably would in every case, order a reference of the question at issue. (See ante, p. 99, § 271, subd. 3.) Judgment may be given on such issue, as in any other case, and the plaintiff may be nonsuited in the same manner as in ordinary trials at law. (8 2. S. (5th ed.) 868 ; [2 dd. 553.]) § 69. Answer to Suggestion of Death. [Title of Cause.] : E. F., defendant in this action, answers to the suggestion of C. D., one of the plaintiffs herein, that the above named A. B. is not dead. E. J. Awpersoy, ; Defendants Attorney. The action cannot proceed in the name of both the living and dead parties, nor, 2 seems, without a suggestion on the record. ABATEMENT AND REVIVOR. 505 Continuance or revivor. Affidavit of death of plaintiff. And a judgment taken thus irregularly was set aside, no amendment being allowable. (Holmes v. Honie, 8 How. 384.) Where the cause of action continues, but does not survive to the remaining plaintiffs, the representatives of the deceased plaintiff must apply for an order admitting them to sue, under the provisions of § 121 of the Code. (See Williamson v. Moore, 5 Sand. 647.) The person applying for leave to continue the action, must show primd facie his succession to the title of the deceased plaintiff. (Sé¢. John v. Croe, 10 How. 257.) Forms.|—The following forms may be used on an application under § 121 of the Code, which forms the basis of this chapter. § 70. Affidavit of Death of a Plaintiff, and Appointment of Executors. [Title of Cause.] [Ciry anp] County or [New York]: [William Doe,] of [said] county, being duly sworn, says: 1. That this action was brought by the late [John Doe] to recover [one thousand dollars upon a promissory note for that amount, made by the defendant, and due on the. . . . day GE eee. a fae oil 2. That after this action was commenced, [and issue joined therein,] to wit,on the....dayof..... ,18.., the above named plaintiff [John Doe] died, after having made and pub- lished his last will and testament, in which he appointed this deponent his sole executor. 8. That on the.... dayof..... , 18 .., the surrogate of the [city and] county of [New York] duly issued letters testa- mentary to deponent, and he has entered upon the fulfillment of his duties as executor aforesaid. [Jurat.] Wuuum Dor. 506 CHANGE OF PARTIES. Continuance or revivor. Affidavits of death of plaintiff. Some forms, given in other works of this kind, give a state- ment of the object of the suit in greater detail than is laid down in the above, but it seems unnecessary to state more than enough to show that the cause of action is one which survives by law. : The affidavit must show primd facie, a succession of interest ‘to the party applying to be substituted. (St. John v. Croel, 10 How. 257.) It must also show the date of the death, with sufficient clear- ness to enable the court to see whether an order for continuance, or a supplemental complaint, is the proper remedy. (CierKg, J. ; Quackenbush v. Oliver, N. Y. Trans. Dec. 10, 1859.) § 71. Affidavit of Death of Plaintiff, and Appointment of Admin- astrators. [As an § 70 to the word “ died’’] intestate. 3. That afterward, to wit, on the. ...day of.:..., 18. ., administration of all the goods, chattels, and credits of said [John Doe] deceased, was granted by the surrogate of the [city and] county of [New York] to deponent and [Mary Doe.] 4, That deponent and said [Mary Doe] have given the secu- rity required by law, and have entered upon the duties of ad- ministration. § 72. Afidavit of Death of same—Succession of Devisees. [Same as § 70, to and including the words “will and testa- ment;”] in due form of law to pass real estate ; whereby he de- vised to this deponent all his right, title and interest in and to the real estate in question in this action. ABATEMENT AND REVIVOR. 507 Continuance or revivor. Motion for leave to continue. § 73. Afidavit of same—Succession of Heirs. [Same as §'71 to and including the'word “ intestate ;”] leav- ing this deponent his sole heir at law. § 74. Notice of Motion for leave to continue. [Zrtle of Cause.] Take notice that on the affidavit of which a copy is here- with served upon you, and upon the pleadings in this action, I shall apply to this court at a special term to be held at the ee eee in the city of ....44.,0n the... .day Ol xs cee» , at .... o'clock in the forenoon, for leave to continue this action, [or to serve a supplemental complaint] in the name of [William Doe, executor] of [John Doe] de- ceased, as plaintiff in his stead, and for such other order as the court may grant. Yours ete., J. E. Hapyert, [Date.] Att’y for above named executor. To J. E. Parsons, Esq. Defendant's Attorney. The affidavit and notice must be served at least eight days before the day named for the motion. The usual affidavit of service should be prepared ; see forms, ante, p. 443. 508 CHANGE OF PARTIES. Continuance or revivor. ‘ Order for continuance. § 75. Order continuing the Action in the name of Leepresentatives of Deceased Plaintiff. [Title of Cause.] [Caption.] On reading and filing the affidavit of [William Doe], and on motion of [J. E. Hadnett] counsel for the [executor] of [John Doe] deceased, plaintiff in this action, after hearing [J. E. Parsons] of counsel for defendant, Orverep: that this action be continued in the name and on behalf of [William Doe, executor] of the said [John Doe,] as plaintiff in his stead. If no one appears to oppose, the order should be in the fol- - lowing form. ; § 76. The like. [Title of Cause.] [ Caption. ] On reading and filing the affidavit of [William Doe], and also affidavit of due service of the same with notice of this mo- tion on the defendant’s attorney, and: no one appearing to oppose ; on motion of [J. E. Hadnett] counsel for the [executor] of [John Doe] deceased, Orverep : [as én § 75.] es Rule in equitable actions.|—If the representatives of a de- ceased plaintiff will not apply for a continuance, the surviving plaintiffs may make them defendants and proceed with the action. (2 2. S. (1st ed.) 185.) If the plaintiffs omit to do this, the defendant may petition for an order requiring the representatives of the deceased plaintiff to show cause why the action should not be revived ABATEMENT AND REVIVOR. 509 Continuance or revivor. In equitable actions. in their names, or the bill be dismissed as far as their interests are concerned. (2 2. S. (1st ed.) 185; Williamson v. Moore, 5 Sand. 649.) If no sufticient cause is shown against it, the court, upon reasonable proof of service, may order the action to be revived in such names, or that the complaint, as to such deceased plaintiff and his representatives, be dismissed with costs, or otherwise. (Ldzd.) Whether a defendant can, in any such case, obtain adequate relief under § 121 of the Code,—gquery ? ( Williamson v. Moore, 5 Sand. 649.) He certainly cannot, if the decease of the plaintiff in ques- tion took place more than a year before the application. (dzd.; but see Ridgeway v. Bulkley, 7 How. 269.) And it seems, therefore, that the provisions of the Revised Statutes, above cited, are still in force, although omitted in the latest editions. (Zb¢d.) § "7. Petition by Defendant to revive an Action after Plaintiff’s decease. [Title of Cause.] To the [Supreme] Court of the [State of New York]: The petition of [Richard Roe], the defendant above named, respectfully shows : 1. That [John Doe] the sole plaintiff [or one of the plaintiffs] in thig action, died, as your petitioner is informed and believes, on or about the. ...dayof...... ,18.. 2. That before his death, he made and published his last will and testament in which he appointed [William Doe] of the [city of New York] his sole executor. 3. That the said [William Doe] has duly proved the said will, has received letters testamentary from the surrogate of the [city and] county of [New York], and has undertaken the execution thereof. 510 CHANGE OF PARTIES. + Continuance or revivor. In equitable actions. 4, That the said [William Doe] has hitherto neglected to appear, or apply to the court for leave to appear, as plaintiff in the place and stead of said [John Doe] deceased. Your petitioner therefore prays that the court will order the said [William Doe] to show cause, at a certain day to be named in the order, why this action should not be revived in his name, or the complaint herein be dismissed with costs, to be collected from the estate of the deceased plaintiff. Ricuarp Ros. J. E. Parsons, Attorney. [ Verification as in § 33.] § 78. Order to show cause, upon the preceding Petition. [Title of Cause.) [ Caption.] On reading and filing the petition of [Richard Roe] defend- ant in this action, and on motion of [J. E. Parsons] attorney for said defendant, Orperep: That [William Doe] executor [or, administrator, etc.] of [John Doe], late plaintiff in this action, now deceased, show cause at a special term of the court to be held at... .. in the..... on the....day of..... , 18.., at the opening of court, why this action should not stdnd revived in his name as [executor] aforesaid, or why the complaint herein should not be dismissed with costs, so far as his interest as such executor is concerned, and why costs of this motion should not be granted. Joun Crancy, Clerk. This order must be served on the plaintiff’s attorney and the executors at least eight days before the time fixed for showing cause, as in- the case of other notices of motion. ABATEMENT AND REVIVOR. 511 if Continuance or revivor. In equitable actions. If the executors, etc., do not appear, proof of service must be made as in other cases, as to which see ante, p. 443. § 79. Order granting the Prayer of the Petition. [Zrtle of Cause.) [Caption.] On reading and filing affidavit of service on [William Doe, executor] of [John Doe] deceased, [a] plaintiff in this ac- tion, of a copy of an order made herein on the... . day Of-s aes last, requiring him to show cause before this court, on this day, why this action should not stand revived in his name, or the complaint be dismissed, so far as his interests as such executor are concerned; and the said [William Doe] not appearing to show cause [o”, and no cause being shown] to the contrary ; on motion of [J. E. Parsons], attorney for defendant, Orperep: That this action be and the same hereby is revived in the name of the said [William Doe] as [executor] aforesaid, [or, that the complaint herein be dismissed, so far as the inte- rest of such executor aforesaid is concerned, with costs, to be paid out of the estate of John Doe, deceased]; ..... dollars costs of this motion to abide the event. [Signature of clerk and attorney.] The preceding forms are given in conformity to the sugges- tion of the court in 5 Sand. 647, cited supra, which is further sustained by implication by the same learned judge in Aeene v. Lafarge, 1 Bosw. 671; 16 How. 377. - But in another case, the same object was attained under § 121 of the Code, although the plaintiff had died more than a year before the application. (eidgeway v. Bulkley, 7 How. 269.) 2. After death of defendant.|—An action in the nature of eject- 512 CHANGE OF PARTIES. Continuance or revivor. After death of defendant. ment is abated by the death of a sole defendant, and the heirs or successors to the possession cannot be substituted without their consent. (Mosely v. Mosely, 11 Abb. 105; see Putnam v. Van Beuren, 7 How. 81; Mosely v. Albany Northern h. R., 14 How. 73; but see contra, Waldorph v. Bortle, 4 id. 358.) An action in the nature of replevin is abated by the death of the sole defendant before verdict or judgment, and cannot be revived or continued. (Zlopkins v. Adams, 5 Abb. 351.) A cause of action given by statute for death by wrongful act, survives against the representatives of the defendant. (Yertore v. Wiswall, 16 How. 8; Doedt v. Wiswall, 15 id. 128; over- ruling Worton v. Wiswall, 14 id. 42.) As a general rule, an action for personal injury dies with the person. (Broom’s Legal Maxims, 428; Noy’s Maxims, 14.) Actions for wrongs to the property, rights, or interests of any person, survive to the representatives of either party. (3 2.8. (5th ed.) 746 ; [2 id. 447.]) An action for wrongful eviction of a lessee survives under this section. (Keene v. Lafarge, 1 Bosw. 672; 16 How. 378.) ——___—. § 80. Affidavit of Death of Defendant and appointment of Executors. [Title of Cause.] 1. [State cause of action, and stage which it has reached.] 2. That on or about the....day of ...... g EO ay [Richard Roe] the defendant herein, died, as deponent is in- formed and believes, having first made and published his last will and testament, in euch he appointed [James Roe] of the [city of New York] his executor. 3. That on or about the....day of ...... , 18. the surrogate of the [city and] ae of [New York] festiad letters testamentary to said [James Roe] who ther eupon under- took the fulfillment of his duties as such executor. [Jurat.] Joun Dos. ABATEMENT AND REVIVOR. 513 Continuance or revivor. Notice of motion. Order. In case of the appointment of administrators, etc., etc., forms can easily be constructed from the above and the forms hereto- fore given. § 81. Notice of Motion to continue Action against Representatives of deceased Defendant. [Zitle of Cause.] PLEAsE TAKE Notice, that [as in § 74, to the words “ continue this action”] against [James Roe] as executor [or administrator, etc.] of [Richard Roe] deceased in his place and stead, and for such other relief as may be just, with costs of motion. [Date.]} Taos. Darineron, Plaintiff’s Attorney. To E. F. Sazparp, Esq., Defendant's Attorney. To Jamus Rox, Esq., Executor. It is usual, when there are several surviving defendants, to give them notice of the application ; but unless they have some interest that may be affected by the order, it is not necessary. (Gordon v. Sterling, 18 How. 407.) § 82. Order to continue Action against Representatives of deceased Defendant. [Title of Cause.] [Caption.] On reading and filing affidavit of [John Doe] and on motion of [T. Darlington,] counsel for plaintiff, after hearing [E. F. Shepard,] counsel for the late defendant, and for [James Roe,] executor, OrverEp: That this action be continued against said [James Roe] as executor of [Richard Roe,] deceased, as defendant in the same, . . . dollars, costs of this motion, to abide the event of the action. 33 514 CHANGE OF PARTIES. Continuance or revivor. Petition for revivor. Serve the order in the same manner as the notice and affida- vits, unless an attorney appears for the executors, in which case the order may be served upon him. § 83. ‘Petition by one Executor of deceased Plaintiff (the others not having qualified,) for Revival of Action against Assignee of deceased Defendant. [Zrtle of Cause.] Lo the Supreme Court of the State of New York: The petition of A.B., acting executor of the last will and testament of J. B., deceased, respectfully shows : 1. That on or about the ....dayof..... ,18..,d.B. commenced an action in this court against F. C., for the settle- ment of partnership accounts, and for the recovery of moneys claimed by the said J. B. on the settlement of said accounts. 2. That said action was referred to P. T. R., Esq., to hear and determine the same; that it has been fully tried, and the report of the referee is now ready, being in favor of the plain- tiff, for the sum of. . . dollars, and interest. 3. That after the cause had been submitted to the referee for his decision, to wit, on the....dayof..... , 18. ., said J.B. died, having first made and published his last will and testament, whereby among other things he appointed your petitioner, and S. W.B., and A. W.B., executors of said will. 4. That your petitioner alone has qualified, and letters testa- mentary were issued to him on or about the .. .. day of... ., 18 . ., by the surrogate of the county of ..... ; that the other executors have not qualified, nor have letters testament- ary been granted to them; but with their consent your peti- tioner is sole acting executor of said J. B. 5. That after the cause was submitted to the referee for his decision, to wit, onthe....dayof.....,18.., F.C, the defendant in the above entitled action, died, leaving, as _your petitioner is informed and believes, no assets, nor any ABATEMENT AND REVIVOR. 515 Continuance or revivor. After death of defendant. will; nor has there been any administrator appointed for his estate. -6. That, as your petitioner is informed and believes, the said F.C., before his death, to wit, on the....dayof..... ; 18 . ., assigned all his property for the benefit of creditors to one J. W. F., who is the only representative of said C. or his estate. Wherefore your petitioner prays that the said action may be revived and continued by your petitioner as sole acting execu- tor of J. B., deceased, against J. W. F. as assignee of F. C., de- ceased ; and that your petitioner may have such other and fur- ther relief as to the court may seem just. A.B. { Date. ] [ Verification.] This form is taken from an actual precedent. It is doubtful, however, whether an action could be thus continued. No de- cision was made on the subject, and it may be desirable to test the question hereafter. When the plaintiff will not move.J—If a sole defendant die- before verdict, his representatives cannot have an order for con- tinuance or revival against them. The plaintiff has the sole option, in such case, of continuing the action or not. (Keene v. Lafarge, 1 Bosw. 672; 16 How. 378.) But they may move for an order discontinuing the action,. unless the plaintiff consent to an order of continuance against them. (lbid.) Where one of several defendants dies, and the cause of action: does not ‘survive, and the plaintiff does not procure an order: for revival, the court may order the action to stand revived, on: the petition of a surviving defendant, against the representatives of the deceased party. (2 #. S. 185.) In such case, the surviving defendant may proceed in the’same manner as a plaintiff, to compel them to appear and answer ;, and the court may, in its discretion, stay the action as against him, until such proceedings have been had. (Zdzd.) BoswortH, J., in Keene v. Lafarge, supra, seems to regard these provisions as still in force, but Wetus, J.,in Chapman v. 516 CHANGE OF PARTIES. Continuance or revivor. Addition of parties. Foster, 15 How. 242, says that a defendant in such case cannot take any such measures, though he does not allude to the Revised Statutes in his opinion. The best course appears to be, to move to dismiss the com- plaint, unless the plaintiff, within a limited time, will apply for leave to continue -the action in the manner pointed out hereto- fore. (See Chapman v. Foster, 15 How. 243.) Art. 4.—Addition of Parties. When necessary.|—“The court may determine any contro- versy between the parties before it, when it can be done with- out prejudice to the rights of others, or by saving their rights.” (Ante, p. 50, § 122.) “ But alien a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.” (Ante, p. 50, § 122.) The meaning of this section is, that if there are any persons, not parties, whose rights must be settled before the rights of the respective parties can be determined—such persons must be brought in. (Shaver v. Brainard, 29 Barb. 25; McMahon v. Harrison, 12 How. 45.) In an action to enforce specific performance of a contract made by three persons, jointly, with the plaintiff, all three must be served with process and brought before the court, or the trial cannot proceed, although the case has gone so far without objection. (Powell v. Finch, 5 Duer, 666.) Whenever it appears that the presence of other parties is ne- cessary to a complete determination, the court has no discre- tion. It must cause them to be brought in. (Shaver v. Brain- ard, 29 Barb. 25; Powell v. Finch, 5 Duer, 666; Davisv. Mayor of N. ¥., 2 Duer, 666 ; approved, Waring v. Waring, ‘3 Abb. 248.) And this may be done at any stage of the action. (Zdid. ; State of N. Y. v. Mayor of N. ¥., 3 Duer, 154.) _ But an entire change of parties on either side cannot be al- lowed. (Dento, J., Davis v. Mayor of N. ¥., 14 N. Y. 527.) Nor can an amendment be made by adding a party who has a right to sue, toa plaintiff who has noright. (Davis v. Mayor of N.Y., 14 N. Y. 527.) ? CHANGE OF PARTIES. SLT Addition of parties. Interpleader. When permissible.|— When, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment.” (Ante, p. 50, § 122.) This part of the section is held to apply only to actions for the recovery of specific property. (Zallman v. Hollister, 9 How. 509; Judd v. Young, 7 How. 79; and see Waring v. Waring, 8 Abb. 248.) Jt seems, that an action for partition is within the meaning of this clause. (Waring v. Waring, 3 Abb. 248.) In an action against a constable for the recovery of property seized upon execution$ the judgment-creditor is entitled to ap- pear asa defendant, under this clause. (Conklin v. Bishop, 3 Duer, 646.) Jt seems, that a new defendant will not be added against the will of the plaintiff when he is not a necessary party. (Sawyer v. Chambers, 11 Abb. 110.) When the application should be made.|—Before judgment. (Carswell v. Neville, 12 How. 445.) Art. 5.—Interpleader. The equitable remedy provided by the former “ bill of inter- pleader ” is not taken away by the Code. (Beck v. Stephani, 9 How. 197.) But a shorter method of attaining the same end is provided for the benefit of defendants against whom conflict- ing claims are made, when one or more of the claimants have actually commenced suit, as follows : “A defendant against whom an action is pending upon a contract, or for specific real or personal property, may, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due [eight days’] notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to 518 CHANGE OF PARTIES. Interpleader. When allowed. such person as the court may direct; and the court may in its discretion, make the order.” (Ante, p. 51, § 122.) This provision is substantially taken from the English statute 1 and 2 Wm. IV., c. 58, and many of the decisions of the Eng- lish courts under that statute are applicable to this. (Sherman v. Partridge, 1 Abb. 260; 4 Duer, 650.) It was not intended by the legislature to introduce new cases of interpleader, but merely to save defendants from the trouble of a formal action by a summary proceeding. (Lbid. ; Slaney v. Sidney, 14 Mees. & Wel. 801; 3 Dowl. & L. 250; see Welson v. Duncan, 11 Abb. 7.) But @ seems, that a bill of interpleader might be filed in some cases not cognizable under this provision. (See Wénfield v. Bacon, 24 Barb. 162.) This section may be arranged under consecutive heads, for a fuller understanding as follows : 1. Who may apply for the order.|—Only a defendant in an action pending. (See Beck v. Stephani, 9 How. 197.) Thongh a sheriff sued for taking goods cannot maintain a bill of interpleader, (Shaw v. Coster, 8 Paige, 345; Slingsby v. Boulton, 1 Ves. & Bea. 334;) yet he can have an order similar to that provided in § 122 of the Code, under the Eng- lish statute 1 and 2 Wm. IV.,¢. 58. (See Lea v. fossi, 11 Exch. 18.) 2. In what action.|—The order may be had in an action upon contract, or for specific property. (Ante, p. 517.) But in an action to recover tlte price of goods sold on con- tract, the purchaser cannot compel his vendor to interplead with a person claiming to own the goods. (Sherman v. Par- tredge, 1 Abb. 261; Slaney v. Sidney, 14 Mees. & Wel. 800; James v. Pritchard, 7 id. 216.) Under the English statute, it is Acld that this order cannot be granted in an action for work and labor, where two parties claim to have done the work, and to be entitled to the com- pensation. (Turner v. Mayor of Kendal, 2 Dowl. & Tis 197.) CHANGE OF PARTIES. 519 Interpleader. Affidavit. Facts to be stated. 3. At what stage of the action.]—The application must be made before answer. (Ante, p. 517.) It is presumed that when the time for answering is extended the time for making this application is extended also. 4, Application—how made.|—The order must be applied for upon an aflidavit of the defendant himself, (so the words of the Code zmply,) and notice to the parties interested. (Ante, p. 517.) 5. Substance of the affidavit, and necessary merits of the appli- cation.|—It must be shown that a claim is made by a person not a party to the action, to the debt or property in question. (Ante, p. 517.) It must appear that the defendant is ignorant of the rights of the opposing claimants. (Wélson v. Duncan, 11 Abb. 7; see Shaw v. Coster, 8 Paige, 347.) And if the affidavit clearly shows that one claimant is en- titled to the property in dispute, and the other is not, it is bad on its face. (Ldid.) The affidavit must distinctly deny all collusion with the out- side claimant. (Ante, p. 517; see Mitford's Hg. Pl. 143.) And collusion is severely punished in the English courts. (Dungey v. Angove, 2 Vesey, 303.) The officer of a corporation or society must swear that such corporation, etc., does not collude with the claimant, and not merely that Ae does not. (Bignold v. Audland, 11 Sim. 23.) No other question than the right of property must be in dis- pute. (Semble, Sherman v. Partridge, 1 Abb. 260; 4 Duer, 650; Chamberlain v. O’ Connor, 8 How. 46.) The defendant must not have incurred any personal liability to either claimant. (Patornz v. Campbell , 12 Mees. & Wel. 278; Crawshay v. Thornton; 2 Myl. & Craig, 19. See Dalton v. Midland Railway Co., 12 C. B. 458.) He must not have brought double claims upon himself by his own act. (lbid.; Fan v. Ward, 2 Mees. & Wel. 845.) Where a banker held a sum of money on deposit for A., to which B. with the consent of A., and C. without such consent, laid claim, and an attachment had been served on behalf of C. ; 520 CHANGE OF PARTIES. Interpleader. ; Cases in which allowed. held a proper’ case for interpleader. (Wilson v. Duncan, 8 Abb. 354; reversed on special grounds, 11 Abb. 3; and see Fletcher v. Troy Savings Bank, 14 How. 383.) If the banker had transferred the credit of the amount on his books from A. to B. before the attachment was served, 7 seems, his right to the order of interpleader would have been lost. ( Wilson v. Duncan, 8 Abb. 856; see Dalton v. Midland Rail- way COo., 12 C. B. 458; Crawshay v. Thornton, 2 Myl. & Craig, 1.) 6. Admissions necessarily made by the applicant.|—The appli- cant must admit that he has no title to the property, or objec- tion to paying the debt claimed. (Hoggart.v. Cutts, 1 Craig & Phil. 204.) That both claimants have title against him. (Slingsby v. Boulton, 1 Ves. & Bea. 334; and see Anderson v. Wilkinson, 10 Sme. & M. 601.) It does not appear to be necessary to make such admissions expressly in the affidavit. They are taken as conceded by the mere application. (See cases above.) 7. As tothe debt or property in dispute.|—It has been held, that the amount in dispute must be dzguidated, and that an order to interplead cannot be granted when there is any ques- tion as to the amount. (Patterson v. Perry, 14 How. 507; Chamberlain v. O’ Connor, 8 How. 46; and see Bender v. Sher- wood, 15 How. 258; Diplock v. Hammond, 2 Smale & Giff. 141, 145; 27 Eng. L. & E. 204.) But in another case, it was said that a reference or a special issue might be ordered to settle the amount, and an order of interpleader then be granted. (Sherman v. Partridge, 1 Abb. 262.) A stakeholder who claims to deduct anything for himself out of the fund, cannot have an interpleader order. (Mitchell v. Hayne, 2 Sim. & S. 63.) The conflicting claims must be to the same property. (See ante, p. 517.) And where one person claims the property, and another the contract price of such property, their demands are not identical, and they cannot be compelled to interplead. (Sherman v. Partridge, 1 Abb. 261; Slaney v. Sidney, 14 ‘CHANGE OF PARTIES. 521 Interpleader, Notice of motion. Mees. & Wel. 800; 3 Dowl. & Low. 250; James v. Pritch- ard, 8 Dowl. P. C. 890.) 8. Powers of the court.—The order.|—The court may, in its discretion, make an order substituting the outside claimant for the defaudané, and discharging him from lability to either party, on his depositing the “debt or property under the direc- tions of the court. (Ante, p. 517.) The court may further order that if the person thus substitut- ed shall not, within twenty days after service of acopy of the order and of the complaint, appear and defend the action, the deposit shall be paid over to the plaintiff. (Van Buskirk v. Roy, 8 How. 427; and see Fletcher v. Troy Bank, 14 id. 384.) 9. Appeal.]—An order to interplead is appealable. (Wilson v. Duncan, 11 Abb. 8.) The following forms have been prepared from an actual case, and contain all the essential parts of the papers upon which an order was granted. The facts of this case were, as will be per- ceived, that a corporation was sued for a transfer of several shares of its stock under an assignment by the stockholder, while the same shares were attached by the sheriff for a debt of the person in whose name they stood : § 84. Notice of Motion for Order to interplead. [Title of Cause.] PLEASE TAKE NOTICE, that upon the annexed affidavit, and on the complaint herein, the defendant will apply to this court, at a special term, to be held at the.........- )in th@sts. ced dG sie Of ee Sea eee ,on the. ... day of enters , 18 .., at... o'clock, in the . . . noon, for an order to substitute in his place, as defendant in this action, the sheriff of the county of ces hee se ws , and to dis- charge this defendant from liability, either to the said plaintiff or the said sheriff, concerning the property mentioned in the complaint, upon transferring the same to such person as the 522 CHANGE OF PARTIES. Interpleader. Affidavit. court may direct, or for such other relief as to the court may seem just. { Date.] Van Vorst & BEarDsLEE, Defendant's Attorneys. To Pierrepont & Sraniey, Plaintiff’s Attorneys. To roe SHERIFF OF...... § 85. Affidavit on Motion. [Title of Cause.] County or............: John Jones, of...... ‘ being duly sworn, says as follows : 1. That he is the treasurer of the defendant. 2. That the complaint herein was served on the... . day OF a aie Pie: tae Rae cere 8. That the defendant has not yet answered the same. 4, That onthe....dayof...... , 18 . ., the sheriff of the county of ........ , served upon deponent, as treasurer aforesaid, a copy of a warrant of attachment granted in an action in the Supreme Court, in favor of Benjamin Brown as plaintiff, against Daniel Down, as defendant, a copy of which is annexed, marked A, and also served a notice in writing, claiming delivery of the property mentioned in the complaint to him, by virtue of the said attachment; a copy of which notice is annexed, marked B. 5. That the said sheriff claims the said property, under the gaid attachment, as the property of the said Down, in satisfac- tion of any judgment to be obtained in the said action. 6. That on the service of the said warrant and notice, depo- nent delivered to the said sheriff, at his request, a certificate, of which a copy is annexed, marked C. 4, That the claim above mentioned is made without collusion between the defendant and claimants. 8. That the defendant is ready and willing to deliver the said property to such person as the court may direct, upon being discharged from liability to either claimant. CHANGE OF PARTIES. 523 Interpleader. Affidavit. Order. 9. The fifth allegation herein [and no other] is made upon information and belief. Joun JONES. Sworn before me, the .... day Ol ey ieee ge LS: a. x3 Cuas. Nerrieron, Commissioner of Deeds. [Annex Schedules A, B and C.] § 86. Order of Interpleader. At a special term, held atthe........ 9 ADEN ee as as Ole aides ced y of the... day of we ee.e ss 5 AB. 5 PRESENTS 04) Goal , Justice [Title of Cause.] On reading and filing notice of motion, with the affidavit of John Jones, dated the... dayOf.. ca. uss , 18. ., and schedules A, B and C, therein referred to; and on motion of H. C. Van Vorst, counsel for defendant, after hearing Wm. Stan- ley, counsel for plaintiff, and A. J. Vanderpoel, apansel for the sheriff of 60.4 ac es county; Orprrep: 1. That the defendant, upon the surrender to it of the certiiedie fo sa aa sees shares of its capital stock, is- sued to Daniel Down, on the....dayof....... 5 AB ass numbered 286, transfer the same number of shares to [name of recerver’. | 2. That the defendant pay to the said [recetver].......- dollars being the dividends due on the said stock, deducting dollars for the defendant’s costs in this action ; 3. That E. F., the sheriff of the county of ........ , be substituted as defendant in this action, in the place of the ee company ; 4, That on transfer and payment as aforesaid, the said company be discharged from all liability concerning 524 CHANGE OF PARTIES. Interpleader. Where actions should be tried. the property mentioned in the complaint, as well to the said sheriff as to the plaintiff ; 5. That the said [recetver] hold the said stock and dividends, and collect and hold future dividends thereon, in trust, subject to the further order or judgment of this court ; 6. That within twenty days after entry of this order, the plaintiff serve a copy of his complaint, amended as he may see fit, upon the defendant substituted as aforesaid ; 7. That if such defendant shall not, within twenty days after such service, answer the said complaint, the said stock shall be transferred and the said dividends paid to the plaintiff. TITLE VII. PLACE OF TRIAL. CuaprEeR XXIV. Where actions are to be tried. XXV. Changing place of trial. Cuarter XXIV. WHERE ACTIONS ARE TO BE TRIED. ARTICLE 1. Certain actions to be tried where the subject of the action is situated. 2. Other actions, where the cause of action arose. 3. Other actions, where the parties reside. 4, All actions triable in any county, unless demand made by de- fendant. Art. 1.—Certain Actions to be tried where the Subject of Action ts situated. “ Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by statute : J. i. For the recovery of real property, or, ii. Of an estate or interest therein, or, PLACE OF TRIAL. 525 _ Actions triable where subject situated. Where cause arose. il. For the determination in any form of such right or interest, and . - iv. For injuries to real property. 2. v. For the partition of real property. 3. vi. For the foreclosure of a mortgage of real property. 4. vii. For the recovery of personal property distrained for any cause.” (Ante, p. 51, § 123.) An action to set aside a conveyance of real estate as frau- dulent, falls under subd. I, of § 123, and the county within which such real estate is situated, is the proper place of trial. (Wood v. Hollister, 3 Abb. 14; see Mairs v. Remsen, 3 Code Rep. 1388.) The county where the land is situated, and not where the mortgage is delivered, or the money loaned, is the proper place of trial on a foreclosure suit. (Jiller v. Hall, 3 How. 325.) The defendant may demand that actions under this section shall be tried in the proper county, as a matter of right. (See Art. 4, post.) (Starks v. Bates, 12 How. 465.) But if he makes no such demand, the proceedings will be regular. (See Art. 4, post.) (Marsh v. Lowry, 16 How. 41; 26 Barb. 197.) This provision has no application to actions where the real estate, which is their subject, lies without the State. (Newton v. Bronson, 3 Kern. [18 N. Y.] 587; Mussina v. Belden, 6 Abb. 166.) Arr. 2.—Certain Actions to be tried where the Cause of Action arose. “ Actions for ‘the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial, in the cases provided by statute. 1. For the recovery of a penalty or forfeiture imposed by statute, except that When it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county (1.) Bordering on such lake, river, or stream, and 526 PLACE OF TRIAL. Actions triable where cause arose. Where parties reside. (2.) Opposite to the place where the offence was com- mitted. 2. Against a public officer, or a person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command, or in his aid, shall do anything touching the duties of such officer.” (Ante, p. 51, § 124.) The Revised Statutes provided that in a suit against a public officer, etc., if the trial was brought in a wrong county, the defendant might raise the objection on the trial, and should have judgment of discontinuance. (2 &. S. 353, 409.) Probably these provisions are repealed by the Code, but see Howland v. Willetts, 5 Sand. 219. Jt seenvs, that where the people of the State bring an action of the nature mentioned in this section (query, the preceding one also #) the place of trial must be conformed to its provisions. (The People v. Hays, 7 How. 250.) Where a public officer improperly performs an act which he was entitled to do in a proper manner, he can claim the benefit of this section. (Brown v. Smith, 24 Barb. 419.) But not if he bas no authority to perform such an act at all. (Lbid.) Art. 8.— Certain Actions to be tried where the Parties reside. In all other cases, the action shall be tried : “1. In the county in which the parties, or any of them, shall reside at the commencement of the action; or, 2. If none of the parties shall reside in the State—in any county which the plaintiff shall designate in his complaint ; Subject, however, to the power of the court to change the place of trial, in the cases provided by statute.” (Ante, p. 52, § 125.) The People.|—The people may sue, unless otherwise ex- pressly provided, in any county; .as they reside in every county.. (The People v. Cook, 6 How. 448; and see The Peo- ple v. Hays, 7 How. 250; At’y Genl. v. Churchill, 8 Th. & W.171; Comyn’s Dig. Prerog. D. 85; 16 Viner, 538.) Raittroads.]—A railroad corporation is a resident of every PLACE OF TRIAL. 527 Actions triable where parties reside. Triable in any county. county through which the road passes. (Belden v. WV. Y. and Harlem R. R., 15 How. 17; Sherwood v. Saratoga R. R., 15 Barb. 650 ; see Vermont R. R. v. Northern R. R., 6 How. 106 ; 1 Code Rep. N.S. 401.) Other corporations. |—Corporations are generally deemed residents of the county where their principal office is fixed. (Hubbard vy. National Pro. Ins. Co., 11 How. 151; Conroe v. Same, 10 id. 404.) Husband and wife.|—In an action for divorce on the ground of cruel and inhuman treatment, the trial may be had in the county where the plaintiff (the wife) resides, although her hus- band, the defendant, lives in another county. The rule of common law, that the domiciles of the husband and wife are identical, does not apply to such a case. ( Vence v. Vence, 15 How. 497, 576.) When the parties reside in different counties,] the trial should be held in the county where the cause of action arose, and the largest number of necessary witnesses reside. (Jordan v. Gar- rison, 6 How. 6.) Motion.|—Motions must be made in the judicial district of which the county named in the complaint is part—or in a county adjoining such county. (Bangs v. Selden, 13 How. 163, 374.) Art. 4.— All Actions triable in any County unless demand made by Defendant. “If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answer- ing expire, demand in writing that the trial be had in the pro- per county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section.” (See Ante, p. 52, § 126; see Marsh v. Lowry, 16 How. 41.) It would seem that this demand, and a motion upon it, if not 528 PLACE OF TRIAL. Demand for change to the proper county. complied with, may be made as for a matter of right. (See Starks v. Bates, 12 How. 465.) This demand must be made before the answer is served, even if the twenty days allowed by law have not expired... (ALi gan v. Brophy, 2 Code Rep. 118.) But the demand may be made at the same time that the answer is served. (Mais v. Remsen, 3 Code Rep. 138.) The demand does not of itself change the place of trial. (Zas- brouck v. M’ Adam, 4 How. 342 ; 3 Code Rep. 139.) § 87. Demand of Defendant for a Change of Place of Trial to the ‘proper County. Supreme Covrt. Joun SMITH against JAMES J ONES. PLEASE TAKE Notice that I hereby demand that the place of trial in this action be changed from the county of [Kings] to the county of [Oneida,] that being the proper county. Yours, etc., D. Gitmorz, Defendants Ait’y. To R. B. Dawson, Esq., Plaintif?’s Attorney. Serve this demand upon the plaintiffs attorney. If he con- sents to the change, both parties should join in the following: PLACE OF TRIAL. 529 Demand for change of place of trial. When change made. § 88. Consent to change the Place of Trial. [Title of Cause.] We hereby consent that the place of trial in this action be changed to the county of [Oneida.] R. B. Dawson, plaintiffs attorney. D. Gitmorz, defendant’s attorney. It would seem by the language of the Code,'§ 126, and of the court, in Marsh v. Lowry, 16 How. 41, that the entry of this con- sent with the clerk of the county first named in the complaint, should be sufficient warrant for the change. But an order may be obtained on the above consent, if deemed advisable. For the form of order, see post p. 545. For the proceedings in case the consent is refused, see the next chapter. 545. CaarTer XXY. CHANGING THE PLACE OF TRIAL. ArricLe 1. When a change may be made. 2. Change to the proper county. 3. Change on the ground that an impartial trial cannot be had. 4. Change for convenience of witnesses. 5. Proceedings on motion to change the place of trial. Art. 1.— When a Change may be made. “The court may change the place of trial in the following Cases : 1. When the county designated for that purpose in the com- plaint is not the proper county : 2. When there is reason to believe that an impartial trial can- not be had therein : 34 530 CHANGING THE PLACE OF TRIAL. When place of trial changed. Change for an impartial trial. 3. When the convenience of witnesses, and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trialis changed, unless otherwise provided by the consent of the parties in writing, duly filed, or order of the court; and the papers shall ‘be filed or transferred accordingly.” (Ante, p. 52, § 126.) Art. 2.—Change to the proper County. For the proceedings on demand for a change, see ante, p. 528. A motion under this head cannot be made, until a demand is served, and not complied with. (Vermont R. R. v. Northern &. R., 6 How. 107.) The motion must be made in the judicial district which in- cludes the county named in the complaint, or in a county adjoining such county. (Bangs v. Selden, 13 How. 379.) It may be made at any time before trial, or before judg- ment, if no trial is had, and before or after issue joined. A default in answering does not deprive the defendant of his right to make this motion. (Hubbard v. WV. P. Ins. Co., 11 How. 152.) Grounds for opposing.|—In ordinary cases, the plaintiff can- not resist a motion to change the place of trial to the proper county on the ground of convenience to witnesses. (Park v. Carnley, 7 How. 356 ; Moore v. Gardner, 5 id. 2438.) But if he gives notice of motion on that ground for the same time and place as those fixed by the defendant for his motion, the subject can be considered on both sides, but not otherwise. (Park v. Carnley, 7 How. 356; limiting Mason v. Brown, 6 id. 483.) Arr. 3.—Change on the ground that an impartial Trial cannot be had. No demand need be made prior to a motion under this head. (Hinchman v. Butler, 7 How. 464.) The courts do not grant a motion based on this ground, un- supported by anything further than the speculative opinions of any persons, however respectable. The facts and circum- CHANGING THE PLACE OF TRIAL. 531 Change for an impartial trial. For convenience of witnesses. stances must be set forth, and the inability of the party to ob- tain an unprejudiced court and jury clearly established. (People v. Wright, 5 How. 23; and cases cited.) And it has been said, that the court will not make a change until actual experiment has shown that a fair trial cannot be had. (Messenger v. Holmes, 12 Wend. 203; and see Patchin v. Sands, 10 Wend. 570; but see contra, People v. Webb, 1 Hill, 179; People v. Long Island R. L., 16 How. 106.) Where there were many defendants, all residing in one county, one of them being a justice of the Supreme Court, and others prominent lawyers, the plaintiff sought to have the place of trial laid in another county, but was denied. (Mew Jersey Zine Co. v. Blood, 8 Abb. 149.) But under the former judicial system, the fact that the cir- cuit judge of the district had been counsel for plaintiff, was held sufficient cause for a change of venue. (Van J?ensselaer v. Douglas, 2 Wend. 290.) Great public excitement, and the action of local authorities, indicating a foregone conclusion, were held in a recent case, : good cause for removal. (People v. Long Island R. R., 16 How. 113.) Arr. 4.—Change for convenience of Witnesses. No demand need be made prior to a motion under this head ; (see subd. 1.) (inchman v. Butler, 7 How. 464; Beardsley v. Dickerson, 4 id. 81.) This motion cannot be made until issue has been joined. ‘(Merrill v. Grinnell, 10 How. 82; and see Hubbard v. V. P. Ins. Co., 11 id. 152; Hinchman v. Butler, 7 id. 465; Beardsley v. Dickerson, 4 id. 81.) "Issue is joined when a reply is served, or the time for serv- ing it has expired. (Beardsley v. Dickerson, 4 How. 81.) The motion will be decided according to the preponderating number of necessary witnesses residing in the one county or the other. (Austin v. Hinkley, 18 How. 576; Anon., 1 Hill, 668.) Very little reliance will be placed upon allegations that cer- tain witnesses are materzal, without showing how they are ma- terial. (People v. Hayes, 7 How. 249.) 532 CHANGING THE PLACE OF TRIAL. Change for convenience of witnesses. Opposing motion. Grounds Jor opposing.|—The proper grounds of opposition should be found in the number and residence of the opposing witnesses, their relative value, etc. (Anon., 1 Hill, 669.) Or it may be shown that the motion is in fraud of the court, or for purposes of delay merely. (See Garbutt v. Bradner, 1 How. 122; Wallace v. Bond, 4 Hill, 536 ; Smith v. Prior, 9 Wend. 498.) If the plaintiff shows that he has a larger number of material witnesses residing in the county he has named as the place of trial, than the defendant has in the county he prefers, the mo- tion will be denied. (Austin v. Hinkley, 13 How. 576.) So, if the number on each side be equal, no change will be made. (Wood v. Bishop, 5 Cow. 414; and see Sherwood v. Steele, 12 Wend. 295.) But if the court: has good reason to believe that any of these witnesses are superfluous, it will disregard them in reckoning up the number. (Goodrich v. Vanderbilt, 7 How. 473; Jor- dan v. Garrison, 6 id. 7; Benedict v. Hibbard, 5 Hill, 509.) And Harris, J., said that affidavits of the number of neces- sary witnesses had become very unreliable, and that the courts would attach more importance to the nature and facts of the case, than to the alleged number of witnesses. (Barnard v. Wheeler, 8 How. 74.) Thus where twenty-two witnesses were named, and it appeared that they were all intended to prove the defendant’s handwrit- ing, they were disregarded. (Weed v. Halladay, 1 How. 73.) And where 78 witnesses were named as necessary in a com- mon action on contract, the court treated the affidavit as prima facie a trand. (Garbutt v. Bradner, 1 How. 122.) And in an action for obtaining goods under false pretences, 116 witnesses were sworn to; but it appearing that they were all to be called to prove the defendant’s good character, held a fraud upon the court. (Wallace v. Bond, + Hill, 536.) No regard will be paid to the convenience of any number of witnesses residing out of the State, as they may be examined on commission, and cannot be compelled to attend. (Wew Jersey Zine Co. v. Blood, 8 Abb. 148; Bk. of St. Albans v. Knickerbacker, 6 Wend. 541; Peet v. Billings, 2 id. 282; Can- field v. Lindley, 4 Cow. 582.) CHANGING THE PLACE OF TRIAL. doe Change for convenience of witnesses. Proceedings on motion. This rule will not be departed from even thongh the foreign witnesses promise to attend. (Bank of St. Albans v. Knicker- backer, 6 Wend. 541.) It will be presumed most convenient to witnesses to attend at the court-house in their own county, although they may live at a greater distance from it than from the court-house of the county named in the complaint. (People v. Wright, 5 How. 24; Hull v. Hull, 1 Hill, 671.) Lifect of stipulations.|—W here a plaintiff offers to stipulate not to give any evidence at the trial upon a certain point, wit- nesses produced on the part of the defendant, solely to rebut evidence on such point, will not be counted on this motion. (Smith v. Averill, 1 Barb. 28.) An offer to pay the expenses of the opposing witnesses is of no avail in resisting this motion. (Leathbone v. Harman, 4 Wend. 208; see Worthy v. Gilbert, 4 Johns. 492, contra.) If a circuit is about being held in the county to which the defendant seeks to change the venue, the plaintiff may offer to consent, on condition that defendant accepts short notice of trial. The defendant must accept this offer, or else show to the court that it was impossible to prepare for trial in the time allowed. (Smith v. Prior, 9 Wend. 498.) - Arr. 5.—Proceedings on Motion to change the Place of Trial. 1. Who may make the motion.}—The defendant only can make this motion. (Swartwout v. Payne, 16 Johns. 149.) The plaintiff may accomplish the same end by moving for, leave to amend the complaint. (Ld2d.) Or, within twenty days, he may amend his complaint of course, in this respect. (Ante, p. 68, § 172; Wakeman v. Sprague, 7 Cow. 165; see Wolverton v. Wells, 1 Hill, 374.) ) And if the defendant procures a change to the “proper county,” the plaintiff may move to change again, for con- venience of witnesses, ete. (Park v. Carnley, 7 How. 356; Moore v. Gardner, 5 How. 245; and see Wew Jersey Zine Oo. v. Blood, 8 Abb. 147.) Who must join.|—All the defendants must join in this 634 CHANGING THE PLACE OF TRIAL. Proceedings on motion. When made. Affidavits. motion, unless some of them have suffered a default. (Welling v. Sweet, 1 How. 156; Sailly v. Hutton, 6 Wend. 508; and see New Jersey Zine Co., v. Blood, 8 Abb. 149.) If one has suffered default, the others may move without him. (Chace v. Benham, 12 Wend. 200.) If process is served on part of the defendants only, they may of course move, for they are the sole defendants. (See Lobin- son v. Frost, 14 Barb. 540.) : And the denial of motion made by one defendant does not prejudice the right of a defendant subsequently served to move again. (New Jersey Zinc Co. v. Blood, 8 Abb. 149.) Any party to a promissory note or bill of exchange, sued jointly with another party to the same, may apply separately for this order. (Zaws 1841, ch. 282.) 2. At what time motion should be made.J}—A motion to change the place of trial to the proper county may be made before or after issue joined. (Hubbard v. VN. P. Ins. Co.,11 How. 152.) But a motion based upon the convenience of witnesses, or the impossibility of obtaining an impartial trial, cannot be made until after issue. (Merrill v. Grinnell, 10 How. 32; Ilartman v. Spencer, 5 id. 185; Mixer v. Kuhn, 4 id. 409; overruling Schenck v. IW Kie, 4 id. 248. See also Hubbard v. Nat. P. Ins. Co.,11 id. 152.) It should be made at the earliest practicable day after issue joined. (See ante, p. 197, Rule 58, Supreme Court.) If the motion is delayed, and thereby the plaintiff would lose a circuit by the change, it will be denied. (Chapin v. De Groff, 4 Cow. 554.) Or the defendant will be required to accept short notice of trial. (Smith v. Prior, 9 Wend. 498.) But if the loss of a circuit was inevitable, or the result of the plaintiff’s own act or delay, the mere fact of delay on the part of defendant is of no consequence. (Garlock v. Dunkle, 22 Wend. 616.) 3. The afidavit.|—The first step in the motion is the pre- paring of an affidavit. This must be made by the defendant himself, except under special circumstances, to be stated in the CHANGING THE PLACE OF TRIAL. 535 Proceedings on motion. Affidavit of merits. affidavit. (Scoté v. Gibbs, 2 Johns. Cas. 116; Mason v. Bidle- man, 1 How. 613 see Johnson v.. Lynch, 15 How. 199.) And all the defendants must sign and swear to it, or a reason must be stated for their failure todo so. (Welling v. Sweet, 1 How. 156.) An affidavit by the attorney, stating that the plaintiff had . confessed to him the facts on which the motion was based, held sufficient. (Lbid.) _ Afidavit f merits.|—It is necessary to swear to merits, and the forms hereafter given must be closely followed in this re- spect. Thus an affidavit of merits as to “the whole or some part of the plaintiff’s claim,” is insufficient. (Chemung Canal Bank v. Supervisors of Chemung, 1 How. 162.) And in England, slight variations have been held fatal. (See Page v. South, 7 Dowl. P. C. 412; Pringle v. Marsack, 1 Dowl. & Ryl. 155; Bower v. Kemp, 1 Cromp. & Jer. 288.) “Three things must distinctly appear in an affidavit of merits : 1. That the defendant has fully and fairly stated the case to his counsel, stating his name and residence: 2. That he is advised by his counsel that he has a good and substantial defence on the merits: 3. That he believes that he has such defence.” (Per Sit, J., Lynch v. Mosher, 4 How. 92; and see ante, p. 188, Rule 21, Supreme Court.) That the defendant has stated “Ads case in this cause,” in- stead of “ the case,” was held fatal. (Zilés v. Jones, 6 How. 297.) But “Ads case” and “this case,” held sufficient. (Brownell vy. Marsh, 22 Wend. 636.) “ His defence,” held insufficient. (Tompkins v. Acer, 10 How. 310; Rickards v. Swetzer, 3 How. 414; Richmond v. Cowles, 2 Hill, 359 ; Brownell v. Marsh, 22 Wend. 637.) “ The facts of the case,” held sufficient. (Jordan v. Garrison, 6 How. 8.) “ The facts of his case”—insufficient. (Litzhugh v. Truaz, 1 Hill, 644.) The omission of the words “fully and fairly” is fatal. (Cary 536 CHANGING THE PLACE OF TRIAL. Proceedings on motion. : Affidavits. v. Livermore, 2 How. 170; Bleecker v. Storms, 2 How. 161; Onondaga Co. Bank v. Shephovd, 19 Wend. 10.) And an affidavit that defendant has stated the case “ so far as it has come to his knowledge,” unaccompanied by any expla- nation, is insufficient. (Brown v. Tousey, 19 Wend. 617.) The omission of the words “on the merits” was formerly not material. (Briggs v. Briggs, 3 Johns. 449.) But as these words are now expressly required by Tale, the later English decisions are followed, holding the omission fatal. (Tompkins v. Acer, 10 How. 310; see ante, p. 183, Rule 21, Supreme Court ; Page v. South, 7 Dowl. P..C. 412.) To state that defendant is advised by counsel that he has a good defence, etc., ““ which he believes to be true,” or “as he believes, truly”—held insufficient. (Lynch v. Mosher, 4 How. 86; Brittan v. Peabody, 4 Hill, 61.) If the defendant is himself a counsellor, he need not swear to advice of counsel. And he need not allege that he is a coun- sellor. (Cromwell v. Van Rensselaer, 3 Cow. 346.) The affidavit must show what county is named in the com- plaint as the place of trial. (Bull v. Babbitt, 1 How. 184.) Affidavit on the ground of convenience of witnesses, etc. |— When the motion is based on this ground, the affidavit must state that “ deponent has fully and fairly disclosed to his counsel the facts which he expects to prove by each and every of the witnesses.” (Onondaga Bank v. Shepherd, 19 Wend. 10.) It must give the names of the witnesses. (Anon., 6 Cow. 389.) And their residence, showing the town or village, as well as county in which they live. ( Westbrook v. Merritt, 1 How. 193.) It must be shown that “each and every” of them is material to the defence, and that they are also necessary, so that the defendais cannot safely proceed: to trial: without “each and every” of them—both statements being under advice of counsel. (Constantine v. Dunham, 9 Wend. 431; 3 Anon., 3 id. 425; Sat- terlee v. Groot, 6 Cow. 333 see zd. 389.) The affidavit will hold good for one witness, without the words “cach and every,” but for no more. (Brown v. Peck, 10 Wend. 569.) CHANGING THE PLACE OF TRIAL. 537 Proceedings on motion. Affidavits on motion. § 89. Affidavit to change Place of Trial to the proper Coninty. Supreme Court. 4 Joun Smira du oe against JAMES JONES. | [Ones] County: James Jones, the above named defendant, being duly sworn, says: i. That this action is brought for... .asuv wae sean a oe , and that the county of [Kings] is designated in the complaint herein, as the place of trial ; 2. That this deponent resides in the [city of Utica] and county of [Oneida,] and resided there at the commencement of this action ; 3. That the plaintiff in this action resided then, and still re- sides in the [city and county of New York ;] “ 4. That ‘deponent has fully and fairly stated the case to[D. * Gilmore,] his counsel in this cause, who resides at. ...... in the county of ..... : 5. That deponent has a good and substantial defence on the merits in this cause, as he is advised by said counsel, and verily believes. [ Surat. ] James JoNnzEs. The words italicized in the above affidavit should be carefully followed. See the decisions already cited. § 90. Affidavit to change Place of Trial to secure an impartial Trial. [Zrtle of Cause.] [Uxster] County: James Jones, defendant in the above entit- led action, being duly sworn, says : 1. That he rosiiles d in the town of [Kingston,] county of [U1- ster] aforesaid ; 538 CHANGING THE PLACE OF TRIAL. Proceedings on motion. Affidavits on motion. 2. That the complaint in this cause was served on the... day of. @...,18..; 3. That issue was joined in the cause by the service of a [re-. ply, or answer,] on the... . day of... .+ pod Breese § 4. That deponent has fully and fairly stated the case to [F. L. Westbrook,] his counsel in this cause, who resides in [King- ston,] Ulster county aforesaid ; 5. That deponent has a good and substantial defence on the merits in this cause, as he is advised by his said counsel, and verily believes ; 6. That the county of [Ulster] is named in the complaint herein as the place of trial ; 7. That [here state the grounds of motion, and, if they do not appear upon the record, very fully and explicitly. | 8. That for these [as well as for other] reasons, deponent will not be able to obtain a fair and impartial trial of this action, as he is advised by his said counsel, and verily Believes. [Jf similar objections apply to any neighboring counties, they should be stated.] ' [Surat] James JoNEs. § ol. Affidavit to change Place of Trial for Convenience of Wit- nesses. [Turtle of Cause.] [Cayuea] County: James Jones, the above named defend- ant, being duly sworn, says: 1. That the complaint in this cause was served on the... . day of ss 62% 2s 5 18 2. That the place of trial named therein is the county of [Saratoga ;] 3. That issue was joined in this cause by the service of a [reply] on the....dayof...... py lSo es 4, That deponent has fully and fairly stated the caseto [Wm. Fosgate,] Azs counsel in this cause, who resides at [Auburn] zn the county of [Cayuga aforesaid ;] 5. That he has fully and fairly disclosed to his said counsel CHANGING THE PLACE OF TRIAL. 539 4 Proceedings on motion. Materiality of witnesses. the facts which he expects to prove by each and every of the wit- nesses hereinafter named ; 6. That deponent has @ good and substantial defence on the merits in this cause, as he rs advised by said counsel, and verily believes. 7. That J. K., L. M. and M. N., who reside in the city of [Auburn] and O. P. who resides in the town of [Summer Hill,] all in the county of [Cayuga,] are each and every of them mate- rial witnesses for the defence on the trial of this cause, as hers advised by his said counsel, and verily believes ; 8. That without the testimony of each and every of the said witnesses, deponent cannot safely proceed to the trial of this cause, as he is also advised by said counsel and verily believes. [Jurat.] Jas. JONES. (The words italicized abcve should be carefully followed, for reasons previously stated.) The above form is the old and well-established one, in use under the old' practice, and but slightly modified to meet the changes made by the Code. It is believed that it contains no statements that are not necessary, and which it would not be at least dangerous to omit, while it contains every statement that under ordinary circumstances, will be deemed absolutely necessary by the court. But it is in many cases highly expedient to insert more matter. For a rule of court allows either party to state the nature of the controversy, and show how his witnesses are material, also, where the cause of action or defence, or both, arose; and these facts will be taken into consideration by the court, in fixing the place of trial. (Ante, p. 197, Rule 59, Supreme Court.) If, therefore, there is anything in any of these facts that may affect the decision, it will be prudent for the defendant to anti- cipate it, and let it appear on his affidavit; or the plaintiff might bring it up in a more unpleasant shape in his counter- affidavit. : And the court now usually expects such a statement, and does not attach much weight to an affidavit that does not show how witnesses are material. (People v. Hayes, 7 How. 249.) t 540 CHANGING THE PLACE OF TRIAL. Proceedings on motion, Showing how witnesses are material. Unless, therefore, there are reasons which make it desirable to conceal the nature of the evidence from the plaintiff, it is best to comply with Rule 59, as it is done in the following form: § 92. Affidavit to change Place of Trial for the Convenience of Witnesses; stating the Circumstances of the Case. [ Title of Cause.] ‘ [Paragraphs 1 to 6 inclusive, as in § 91.] 7. That this action is brought for [the price of four thrashing machines delivered ‘to the defendant in the city of Auburn, Cayuga County.] 8. That the defence set up by deponent is [part payment, and a set-off on account of defects in the said machines. ] 9. That [deponent sold the said machines prior to the com- mencement of this action to A. B., C. D., and E. F., who reside in the town of Springport, Cayuga County.] 10. That deponent relies on the said A. B., C. D., and E. F., and on each of them, to prove that [the said machines were made of defective materials, and were unfit for the purpose for which they were sold.] 11. That deponent will not be able to prove these facts [otherwise than by his own evidence,] without the testimony of each and every of the said persons. 12. That each and every of the said persons is a material witness for the defence on the trial of this cause, as deponent is advised, ete. [as im § 91, to the end.] LExcusing delay.|—If this motion is not made promptly after issue is joined, the delay should be accounted for in the affda- vits. Unless this is done, no stay of proceedings can be obtained, and the motion may be otherwise prejudiced. (See ante, p. 197, Rule 58, Supreme Court.) This may be done by appending the reasons of delay to any of the preceding affidavits, according to the facts of the case, CHANGING THE PLACE OF TRIAL. 541 Proceedings on motion, Staying proceedings pending motion. 4. Staying proceedings pending the motion.]—If necessary the defendant may apply ex parte for an order to stay proceedings pending the motion. The application should be based upon the papers intended for use upon the principal motion, and may be made to any judge of the court, or person authorized to perform his duties out of court. This order will not be granted unless it shall appear from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue joined. (Ante, p. 197, Rule 58, Supreme Court.) It will not prevent the plaintiff from taking any step except subpeenaing witnesses for the trial, without a special clause to that effect. (Ante, p. 197, Rule 58, Supreme Court.) But he will proceed at his own risk. Thus, if the motion is made before an inquest taken, but not decided until afterward, the decision dates on the moving day, and the inquest will be set aside with costs, if the change of venue is granted. ( Wellson v. Henderson, 15 How. 90.) No order can be granted to stay proceedings for more than twenty days, nor for that time, without qualification. It must be limited also to the time when the motion shall be made, and until it shall be decided. (See ante, p. 416.) Service of the order for a stay|—must be accompanied with the papers on which it is founded, and a notice of the motion to change the place of trial, or it may be disregarded. At least, it is settled that the notice of motion is requisite, and under the former practice, the “papers” also were required. (Sales v. Woodin, 8 How. 350; Chubbuck v. Morrison, 6 id. 370; Kirby v. Cogswell, 1 Caines, 505.) As it is usual to obtain the stay upon the affidavits used on the principal motion, and which must be served with the notice of motion, this distinction is of little consequence. 5. Wotice of motion.}—The motion should be noticed for the first special term, and for the first day of term, unless sufficient cause be shown in the affidavit for deferring it to a later day. (Ante, p. 195, Rule 49, Supreme Court.) 542 CHANGING THE PLACE OF TRIAL. Proceedings on motion. Notice. Revoking stay of proceedings. At least eight days’ notice must be given, and the affidavits must be served with the notice. (Ante, p. 148, § 402; p. 195, Lule 49.) In the city of New York, the motion may be made before any judge out of court. (Anite, p. 142, § 401; and see Lakey v. Cogswell, 3 Code Rep. 116.) If, in any other county, a motion of this nature is noticed for hearing before a judge at chambers, the notice is a nullity. (Schenck v. I? Hie, 4 How. 248.) For form of notice, see ante, p. 412. 6. Revoking the stay of proceedings.]|—“ On presenting to, and filing with, the officer granting the order, an affidavit showing such facts as will entitle the plaintiff, according to the settled practice of the court, to retain the place of trial, the officer shall revoke the order to stay proceedings ; and the plain- tiff shall give immediate notice of such revocation to the de- fendant’s attorney. (Ante, p. 197, Rule 58, Supreme Court.) This application may be made upon the same affidavits as are used in opposing the motion to change the place of trial, as to which, see infra. § 93. Order revoking Stay of Proceedings. [Title of Cause.] The plaintiff in the above cause having presented and filed with me an affidavit, showing such facts as will entitle him to retain the place of trial in this cause, the order to stay pro- ceedings granted by me, onthe.... day of........,, 18 . ., is hereby revoked. [ Date. ] A. B. James, J. 7. Plaintifs affidavit to oppose changing the place of trial.] —This affidavit should be substantially in the same form as the defendant’s, except that it need not state that the plaintiff has merits. (ote to Brittan v. Peabody, 4 Hill, 69.) CHANGING THE PLACE OF TRIAL. 543 Proceedings on motion. Opposing motion. It should state positively and unqualifiedly, that the wit- nesses named in it are necessary. And such words as “ con- sidering the defence which deponent believes, the defendant intends setting up,” will render the affidavit insufficient. (Sherwood v. Steele, 12 Wend. 294.) § 94. Afidavit to oppose Motion to change Place of Trial for Con- ventence of Witnesses. [Title of Cause.] (Saratoea] Country: John Smith, the above named plain- tiff, being duly sworn, says : 1. That he has fully and fairly stated the case to [J. W. Crane,] his counsel in this case, who resides in the village of [Saratoga Springs, Saratoga] County. 2. That he has fully and fairly disclosed to his said counsel the facts which he expects to prove by each and every of the witnesses hereinafter named. 3. That S. T. of the town of [Half Moon] and T. W., W. T., J. 8., and N. L. of the town of [Waterford,] all residing in the county of [Saratoga aforesaid,] are each and every of them material witnesses for this deponent on the trial of this cause, as he is advised by said counsel, and verily believes. 4. That without the testimony of each and every of said wit- nesses, this deponent cannot safely proceed to the trial of this cause, as he is also advised by said counsel, and verily be- lieves. Joun Smits. (Jurat.] If the opposition is based upon other erounds than the mere preponderance of witnesses, as it may be, the facts should be stated after the manner of § 92, ante, p. 540. 8. Costs of the motion— When the motion is granted.|—On motions to change to the proper county 2 seems costs should 544 CHANGING THE PLACE OF TRIAL. Proceedings on motion. Costs of motion. be granted absolutely. (Hubbard v. Nat. P. Ins. Co., 11 How. 154; see Vew Jersey Zinc Co. v. Blood, 8 Abb. 150; Park v. Coane 7 How. 856; but see Porter v. Pilhury, 11 How. 241, contra.) On motions based upon other grounds, costs are given to abide the event of the action. (Zoll v. Cromwell, 12 How. 82; Goodrich v. Vanderbilt, 7 How. 476; Jordan v. Garrison, 6 id. 9.) Costs when motion is denied.|—If the motion is denied upon the merits, no costs will be allowed. (Semble, Austin v. Hinkley, 13 How. 576.) But if it is denied for defects in the moving papers, costs absolute are allowed. (lls v. Jones, 6 How. 298; Lynch, v. Mosher, 4 id. 92.) So, where the motion is manifestly intended for delay, and is therefore denied. (Adlbourne v. Fairchild, 12 Wend. 294.) Or if, for any other reason, it is treated as a fraud upon the court. (Wallace v. Bond, 4 Hill, 536.) Or if renewed without leave, on fresh affidavits. (Purdy v. Wardell, 10 Wend. 619.) Costs when motion is partly granted and partly denied.|— None granted on either side. (Hubbard v. Nat. P. Ins. Co. 11 How. 154; but see note to 4 Hill, 70.) Costs, as a condition of granting the motion.]}—When the cause had been noticed for trial, a motion to change the venue was granted on paying costs of the circuit, and of the motion, and on defendant accepting short notice of trial. (Carpenter v. Watrous, 5 Wend. 102.) Or on paying costs of preparing for trial, only. (Budd v. Malburn, 1 Cow. 47.) As it has been decided that under the Code, the place of trial cannot be changed (except to the “proper county,”) before issue, these decisions are probably only applicable to cases of delay, since notice of trial might be served simultaneously with joinder of issue. CHANGING THE PLACE OF TRIAL. 545 Proceedings on motion. Order. ‘How costs are allowed.|—Uniless costs are allowed, and the amount fixed, in the order, none can be allowed on the final taxation of costs in the suit. The rule was otherwise under the old practice. (Morrison v. Ide, 3 Code Rep. 28; see Gid- ney v. Spelman, 6 Wend. 525; Norton v. Lich, 20 Johns. 475.) § 95. Order changing Place of Trial. [Title of Cause.] [Caption.] On reading and filing notice of motion, and the affidavit of J. J., and on motion of [Nathan Comstock, jr.], counsel for defendant, after hearing [T. C. T. Buckley], counsel for plaintiff ; Orvrrep: that the place of trial in this action be changed from the county of ..... , to the county of ..... ; [ten] dollars costs of this motion, to abide the event of the action. J.C, Clerk. N. Comstock, jr. Attorney. 9. Service of the order.]—A copy of the order must be served on the plaintiff’s attorney. It must be certified; and a notice, or an uncertified copy, may be disregarded. (Heep v. Tyler, 4 Cow. 541.) Until the order is served, the plaintiff may proceed as if the place of trial were not changed. (Lzd.) 10. Subsequent proceedings.|—It is the duty of the clerk to transfer all papers filed with him to the county designated in the order; and all proceedings thereafter must be had in that county, except by consent in writing, or order of court. (Ante, p. 52, § 126; p. 177, Rule 3, Supreme Court.) If after the order has been entered, however, both parties proceed without objection in the original county, a judgment rendered therein is valid. (People v. Mather, 3 Wend. 481.) 35 546 ARREST AND BAIL. Arrest in general. TITLE VIII. PROVISIONAL REMEDIES. CHapterR XXVI. Arrest and Bail. XXVII. Ne Exeat. XXVIII. Requisition. XXIX. Attachment. XXX. Injunction. XXXI. Receivers. Caarrer XXXVI. ARREST AND BAIL. ARTICLE 1. Arrest in general. 2. Persons exempt from arrest. 3. Arrest a second time for same cause. 4, What are not causes of arrest. 5. When the defendant may be arrested. 6. Arrest on ground of non-residence or removal from the State. 7. Arrest for injuries. 8. Arrest for penalties—breach of promise—misconduct in office. 9. Arrest for money or property received in a fiduciary capacity. 10. Arrest for concealment or disposal of personal property claimed. 11. Arrest for fraud in regard to the subject of the action. 12. Arrest for attempting to defraud creditors. 13. By whom order of arrest may be granted. 14. Papers on which order may be granted. 15. Security by plaintiff. 16. The order of arrest. 17. The arrest. 18. Bail. 19. Proceedings upon the bail-bond. 20. Deposit with the sheriff. 21. Discharge by the sheriff. 22. Escape. 28. Rescue. 24, Recapture. 25. Vacating order of arrest, or reducing bail. 26. Liability of the sheriff, 27. Jail liberties. 28. Lunatic prisoners. Arr. 1.—Arrest in General. “No person shall be arrested in a civil action, except.as pre- scribed by this act.” (Ande, p. 71, § 178.) ARREST AND BAIL. 547 Arrest in general, Ne Exeat, Exemptions from arrest. ‘“‘ But this provision shall not affect the act to abolish im‘ prisonment for debt, etc., passed April. 26, 1831, or any act amending the same.” (Ante, p. 72, § 178.) “ Nor shall it apply to proceedings for contempts.” (Ante, p. 72, § 178.) Is the writ of ne eweat abolished by the Cude? Z/eld by tne N. Y. Superior Court, general term, that it is. (Muller v. Emeric, 2 Sand. 624.) But held by Supreme Court (gen. terms, I. and II. dists.), that it is not. (Horrest v. Forrest, 10 Barb. 48; Bushnell v. Bushnell, 7 How. 891, affirmed, 15 Barb. 399.) See We Exeat, post, chap. xxvii. Arr. 2.—Persons Hxempt from Arrest. The following persons are exempt from arrest on civil pro- cess. I. Members of either branch of Congress, in attendance upon the same, or going to or returning from the same. (Const. U.S., Art. L.§ 63 and see 2 John- son’s Cus. 222.) IL. Members of either branch of the State Legislature, (1.) During attendance at the session ; (2.) For 14 days previous to any session ; (8.) While going or returning, not exceeding 14 days each ; (4.) During any adjournment, not exceeding 14 days; (5.) While absent on leave of the house to which they belong; except on process issued in a suit for forfeiture, misdemeanor, or breach of trust in any office or place of public trust held by them. (1 L. S. (5th ed.) 455; [154.]) Ill. Officers of either branch of the State Legislature, while in actual attendance thereon. (1 2. S. (5th ed.) 455; [154.]) IV. Ambassadors or other public ministers, and their ser- vants, are exempt from all process in a State court. (Act of Congress, Apri 30, 1790.) (1.) All process against them is void. 548 ARREST AND BAIL Exemptions from‘ arrest. Ambassador’s servants. Consuls. ° (2.) Persons suing ont, or executing such process are liable to fine and imprisonment. (Act ef Cong. April 30, 1790.) (3.) If an ambassador’s servant be arrested, he should move for his discharge, upon an affidavit, set- ting forth— (a.) The capacity in which he was hired. (/Zolmes v. Gordon, Hard. 3; Widmore v. Alvarez, Fitzgerald, 200.) (b.) That he is a domestic servant of such ambas- sador. (Zoms v. Hammond, Barnes, 370; English v. Caballero, 3 Dow]. & Ryl. 25.) But secretaries are also privileged. (Hopkins v. De Robeck, 3 T. R. 79; Lriquet v. Bath, 3 Burr. 1478.) (c.) That he was such at the time of arrest. ( [Zeath- jield v. Chilton, 4 Burr. 2015.) (d.) That he performed the duties of his office. (fisher v. Begrez, 1 Dow]. P. C. 588.) (4.) The privilege belongs to the ambassador, and not to the servant, and if the former make no applica- tion, the court will not interfere, unless the lat- ter show a clear case of service or hiring. (fisher v. Begrez, 2 Dowl. P. C. 282 ; and see “ Consuls,” infra.) V. Consuls and Vice Consuls are also exempt from all “process ina state court. (Acts of 1789, ch. 20, § 9.) (1.) The fact that a consul is impleaded with a citizen upon joint contract gives no jurisdiction to a state court. (Valarino v. Thompson, 3 Seld. 576.) (2.) The consul cannot waive his privilege, it being really the privilege of the U.S. courts, and not his own. (Jbi¢d.) (3.) The State courts will put astop to the proceedings in any stage, on its being shown that they have no jurisdiction. (lbid.; Manhardt v. Soderstrom, 1 Binney, 138; Davis v. Packard, 7 Peters, 276 ; 8 id. 314.) ARREST AND BAIL. 549 Exemptions from arrest. Parties to suits. Witnesses. VI. Parties to suits, and witnesses. (1.) Parttes.|—Parties to suits are exempt, while at- tending, going to, and returning from court, to attend the trial or hearing of such suits. (Zurst’s Case, 4 Dall. 878; JL Neil’s Case, 3 Mass. 288 ; Anon., Lofft, 434; Walpole v. Alexander, 3 Doug. 45 ; Meekins v. Smith, 1 Wen. Blacks. 636.) Even if attending before the actual day of trial, if a bond fide attendance. (Childerston v. Barrett, 11 East, 439.) Or if attending before referees. (Clark v. Grant, 2 Wend. 257.) Or before arbitrators under a rule of the court or statute. (Z@andall v. Gurney, 3 Barn. & Ald. 252;1 Chit. Rep. 679; Webb v. Taylor, 1 Dowl. & L. 676; Sanford v. Chase, 3 Cow. 381. The cases are too numerous to quote.) But a defendant returning home from custody under a criminal charge, is not privileged: (Lucas v. Albee, 1 Denio, 666; Anon., 1 Dowl. P. C. 157; and see Willtams v. Bacon, 10 Wend. 636:) unless the criminal proceeding was in- vented for the purpose of bringing him within the jurisdiction of the court. (Zbzd.) (2.) Witnesses.|—By the common law, witnesses had all the privileges of parties to suits, including as well those who had not, as those who had sub- peenas. (Cole v. McClellan, 4 Hill, 60, note a; Norris v. Beach, 2 Johns. 294; DMeekins v. Smith, 1 Hen. Blacks. 636; Ardinge v. Flower, 8 T. R. 536.) But the Revised Statutes in providing for the pro- tection of witnesses, confine the privilege en- tirely to witnesses duly subpanaed. (38 R. 8. (5th ed.) 685; [2 zd. 402.]) And where a witness after testifying under a sub- poena, reappeared voluntarily to testify fur- ther, Aeld, that he was liable to arrest. (Harden- brook’s Case, 8 Abb. 417.) 550 ARREST AND BAIL. Exemptions from arrest. Attorneys. Soldiers. No person can be punished for such arrest, unless the party arrested make affidavit, (1.) That he has been duly subpeenaed, (2.) That he is not so subpcenaed by any collu- sion for the purpose of avoiding arrest. (8 B.S. (5th ed.) 685; [2 id. 402.]) VIL. (1.) Attorneys and counsellors, during the actual sit- ting of court, and when employed in some cause pending therein. (2.) Other officers of courts during the actual sitting of such courts, unless sued with any other per- son. (3 BR. S. (5th ed.) 480, § 74; [2 ad. 290.]) VIII. Soldiers and sailors in the U. 8. service.]|—All non- commissioned officers, musicians, seamen and mari- ners, artificers, and soldiers in the U.S. service, are exempt from arrest for any debt or contract. (1 Story’s Laws U. 8., 543, 709 ; 2 id. 835. See Barnes’ Rep. 95, 114.) (1.) And their bail will be exonerated upon applica- tion in time. (Robertson v. Patterson, 7 East, 405.) (2.) But not after proceedings on the bail-bond. (Bryan v. Woodward, 4 Taunt. 557.) (3.) But the bail may surrender such defendant in their discharge. (Bond v. Isaac, 1 Burr. 339.) IX. Persons belonging to the State militia are exempt from sunrise to sunset, on parade days. (1 &. S. (5th ed.) 742 ; [803.]) X. Voters on election day.]—If entitled to vote in the city or town where the election is held. (1 2. 8. (5th ed.) 418, § 3.) XI. Policemen.J—All persons holding office under the Metropolitan Police law of New York, Brooklyn, ete. (Laws 1857, ch. 569, §18; 2 PR. S. (5th ed.) p. 1011.) XII. Females in general.|—“ No female shall be arrested in any action, except for a willful injury to person character, or property.” (Ante, p. 72, § 179.) ARREST AND BAIL. 551 1 7 Exemptions from arrest. Females. Second arrest. A female cannot be arrested under subd. 5 of § 179, nor for any cause except willful injury, ete. The concealing or disposal of a piano is not an injury to it. (Tracy v. Leland, 2 Sand. 729.) The theft or embezzlement of railway shares and coupons, which were converted into money by the defendants, was held a willful injury to property, for which the female defendant could be held to bail, under $179 of the Code. (Northern Rail- way v. Charpentier, 3 Abb. 259.) A woman cannot be arrested for a breach of promise of marriage. (Siefke v. Tuppey, 3 Code Rep. 23.) XII. Married women.J—Married women are exempt from arrest under mesne process, in a// cases whatsoever. (Anon. 8 How. 134; 1 Duer, 613.) Sheriffs.|—A sheriff is not exempt as such, but is liable to arrest, as much as any private person. (hill v. Lott, 10 How. 46.) ' Arr. 8.—Arrest a Second Time for same Cause. As a general rule, a defendant cannot be arrested twice for the same cause of action. (Hernandez v. Carnobeli, 4 Duer, 644; 10 How. 449; Wells v. Gurney, 8 Barn. & Cr. 769; MW Clure v. Pringle, 18 Price,8; Cartwright v. Keely, 7 Taunt. 192; Housin v. Barrow, 6T. R. 218; Belifante v. Levy, 2 Strange, 1209; and see Schadle v. Chase, 16 How. 414.) The pineal application of this rule, in this State at all events, appears to be in the case of arrest under process from different courts. (See Hernandez v. Carnobelt, 10 How. 449; 4 Duer, 644; Schadle v. Chase, 16 How? 414.) But where a defendant is arrested under the process of a court which has not jurisdiction, he may be re-arrested under the process of the proper court. (Schadle v. Chase, 16 How. 414.) But we suppose he could not be arrested under the order of a court having jurisdiction, while still detained under the order of a court having none. For the latter order would be absolutely void, (Schade v. Chase, supra,) and it has been repeatedly held that a defendant egally arrested cannot be continued in prison under a legal 552 ARREST AND BAIL. Second arrest. When allowed. Third arrest. detainer for the same cause. (Attorney Gen. v. Cass, 11 Price, 345; Attorney Gen. v. Dorkings, 11 Price, 156; Barch v. Progen 1 Bos. & Pull. N. R. 135; Barlow v. Hal 2 Anstr. 461; Spence v. Stuart, 3 East, 89.) Where a plaintiff has been nonsuited on the ground of variance, he may arrest the defendant in a new suit. (Kear- ney v. King, 1 Chitty, 273.) It seems, that whenever the plaintiff has been unable to make the first arrest available, without faulty or vexatious conduct on his part, he will be allowed to arrest a second time. (Parke, B., Wells v. Gurney, 8 Barn. & Cr. 769; Kearney v. King, 1 Chitty, 276.) So if the defendant be discharged by reason of some act for which the plaintiff is not responsible,—e. g., an alteration of the order to arrest made by the sheriff’s officer, without the plain- tiff’s knowledge,—the arrest may be renewed. (/ousin v. Barrow, 6 T. R. 218.) And even where the arrest was vacated because of a mistake of the plaintiff’s attorney, a second arrest was allowed. (Peck v. Hosier, 14 Johns. 847 ; Molling v. Buckholtz,3 Maule & Sel. 153; White v. Gompertz, 5 Barn. & Ald. 905; 1 Dowl. & Ryl. 556; Wood v. Thompson, 5 Taunt. 851.) So if the defendant obtain his discharge by fraud, he may be re-arrested. (Cantellon v. Lreeman, 2 Dowl. P. C. 2; Puckford vy. Maawell, 6 T. R. 52; Olmins v. Delaney, 2 Strange, 1216.) And where the plaintiff, on the pressing application of the defendant’s wife, allowed the defendant to leave jail to attend to business, it was held that he had aright to re-arrest the defendant, without making a new affidavit. (Penfold v. Maz- well, 1 Chitty, 275, note.) But if the defendant be discharged by reason of laches on the part of the plaintiff, the latter cannot re-arrest him. (Imlay v. Ellefsen, 3 East, 309; Wheelwright v. Joseph, 5 Maule & Sel. 93.) Third arrest.|\—Whaether a third arrest for the same cause can be allowed for any reason whatever—query ? (Wells v. Gurney, 8 Barn, & Cr. 771.) ARREST AND BAIL. 553 What are not causes of arrest. What are. Art. 4.— What are not causes of Arrest. No person shall be arrested on any civil process or execution for the recovery of money due, 1. Upon any judgment founded on contract ; or, 2. Upon any contract, express or implied; or, 3. As damages for the non-performance of any contract ; but this provision does not extend to actions 1. On promises to marry ; 2. For fines and penalties ; 38. For money collected by any public officer ; 4, For any misconduct or neglect i. In office, ii. In any professional employment. (3 2B. S. (5th ed.) 126; Laws 1831, ch. 300.) No person shall be imprisoned for non-payment of interlocu- tory costs, or for contempt in not paying costs—except, 1. Attorneys, and other officers of court, when ordered to pay costs for misconduct as such ; and 2, Witnesses when ordered to pay costs on attachment for non attendance. (Ldid.) Arr. 5.— When the Defendant may be arrested. The defendant may be arrested, as hereinafter prescribed, in the following cases : J. In an action for the recovery of damages, on a cause of action not arising out of contract ; (1.) Where the defendant is not a resident of the State, (2.) Or is about to remove therefrom, (3.) For an injury to the person, (4.) Or injury to character, (5.) For injuring property, (6.) For wrongfully taking, detaining, or converting pro- perty. (Ante, p. 72, § 179.) II. In an action (1.) For a fine or penalty, (2.) On a promise to marry, 554 ARREST AND BAIL. When arrest allowed. Waiver of right to arrest. 3.) For money received, or property embezzled or fraudu- lently misapplied, by i. A public officer, ii. An attorney, solicitor, or counsellor, iii. An officer or agent of a corporation, or bank- ing association, in the course of his employment as such ; iv. Or by any factor, agent, broker or other per- son ina fiduciary capacity. (4.) For any misconduct or neglect 1. In office; or, 2. In a professional employment. (Ante, p. 72, § 179.) IIL. “In an action to recover the possession of personal pro- perty unjustly detained—where the property or any part thereof has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with the intent (1.) That it should not be so found, or taken, or, (2.) To deprive the plaintiff of the benefit thereof.” (Ante, — _p. 12,8179; and see also ante, p. 74, § 188, subd. 2, and p. 79, § 211.) IV. “ When the defendant has been guilty of a fraud, (1.) In contracting the debt or incurring the obligation for which the action is brought ; or, (2.) In concealing or disposing of the property for the tak- ing, detention, or conversion of which the action is brought.” (Ante, p. 72, § 179.) V. “ When the defendant has removed or disposed of his property, or is about to do so, with entent to defraud his creditors.” (Ante, p. 72, § 179.) Waiver of right to arrest.]—When a debt or obligation is fraudulently contracted, or for any other reason is such as to render the defendant liable to arrest,—the settlement of such debt upon new terms, and with additional consideration, waives the tort; and the defendant cannot be arrested in an action upon the new contract. (Alléance Ins. Co. v. Cleveland, 14 How. 408; Merchants’ Bank v. Dwight, 13 How. 366; but see Holbrook v. Homer, 6 How. 86.) ARREST AND BAIL. 555 When arrest allowed. Non-residents. Whether a defendant in an action upon a foreign judgment can be arrested, on the ground that the original debt was fraudulently contracted; or whether the judgment waives the fraud,—query? (See Peel v. Elliott, 7 Abb. 433 ; 28 Barb. 200. eld that he can be arrested, Wanzer v. De Baum, 1 E. D. Smith, 261; Code Rep. N. 8. 280; contra, see Goodrich v. Dunbar, 17 Barb. 644. See Suydam v. Barber, 18 N. Y. 468: Besley v. Palmer, 1 Hill, 482.) The English writ of extent (2 Tidd’s Pr. 1098,) is not a judg- ment,'and gives no cause of action here. Whatever, therefore, the effect of a judgment may be, the issuing of this writ does not preclude an arrest in an action brought in this State on the original debt. (Peel v. Elliott, 7 Abb. 483.) A judgment in this State is a bar to any arrest on the ground of fraud in cohtracting the original debt. (Af? Butt v. Hirsch, 4 Abb. 443.) Lifect of stay of proceedings.|—The usual order for a stay of proceedings after verdict, does not debar the plaintiff from arresting the defendant. (Lapeous v. Hart, 9 How. 541.) Joinder of causes of action.|—If two causes of action are joined, upon one of which, if.it stood alone, the defendant might be arrested, and upon the other he could not be,—he cannot be arrested upon either. (Lambert v. Snow, 9 Abb. 91.) Art. 6.—Arrest on the ground of Non-residence, or Ieemoval From the State. The defendant may be arrested, under the provisions of the Code, in an action for damages, on a cause of action, not arising out of contract, when he is not a resident of this State, or is about to remove therefrom. (Ante, p. 72, § 179.) What constitutes residence.|—Are residence and domicile synonymous ?—/Zeld that they are. (Crawford v. Wilson, 4 Barb. 505; see Chaine v. Wilson, 1 Bosw. 684; 8 Abb. 105; Hough- ton v. Ault, 8 Abb. 94, note; 16 How. 80. But see contra, Frost v. Brishin, 19 Wend, 14; Re Thompson, 1 Wend. 45; "see also Haggart v. Morgan, 1 Seld. 428; Thorndike v. City of 556 | ARREST AND BAIL. Arrest of non-resident or absconding debtors, Boston, 1 Mete. [Mass.] 245; Cadwallader v. Howell, 3 Har- rison, 144.) Residence means the home, in the ordinary acceptation of the term, and not the place of business, however frequently the party may visit the latter. (Chaine v. Wilson, 1 Bosw. 684 ; 8 Abb. 97, 105; Barry v. Bockover, 6 Abb. 374; Potter v. Kitchen, 6 Abb. 874, note ; Baché v. Lawrence, 17 How. 554; overruling Towner v. Church, 2 Abb. 299; and see Greaton v. Morgan, 8 Abb. 64.) A person doing business in this State, having a bank account here, and coming to his place of business daily, is nevertheless a non-resident, if his home—the abode of his family, if he has one, and lives with them, or the place where he habitually re- tires for rest and relaxation—is in another State. (Zdzd.) A merchant residing with his family, and doing business at Hornellsville, N. Y., who also owned real estate there, took a large part of his goods to Wisconsin to sell, and was absent nine or ten months, having opened a store there—leaving his family behind, and his store in Hornellsville in charge of a clerk. He was held to be a resident. (Hurlbut v. Seeley, 2 Abb. 188 ; but disapproved, Greaton v. Morgan, 8 Abb. 6+.) An immigrant from a foreign country, who has left his native land with no intention of returning, and who is living in this State without having formed an intention to reside else- where, is a resident, although he has not absulutely concluded to remain permanently in the State. (Hecdenbach v. Schland, 10 How. 477.) But a resident of another State of the Union, who comes here with his family, and is looking ont for business, but has not finally decided to stay, is a non-resident. (Burrows v. Miller, 4 How. 349.) The distinction between these two cases appears to be, that a foreign immigrant, under ordinary circumstances, has conclu- sively lost a residence, while an immigrant from a domestic State, may, and often does, come for a short time, and speedily return, without losing his old residence, or any of its rights. Residence depends greatly on the party’s intention. ( Visher v. Visher, 12 Barb. 640; De Bonneval v. De Bonneval, 1 Cur- teis, 856.) ARREST AND BAIL. 557 Arrest of non-resident or absconding debtors. But such an intention will be inferred from facts. Declara- tions of intention have more or less weight according to cir- cumstances, but will not be conclusive. (Chaine v. Wélson, 8 Abb. 78; 1 Bosw. 673; Jsham v. Gibbons, 1 Bradf. Surr. R. 91; Moore v. Budd, 4 Hagg. 346; Anderson v. Laneuville, 9 Moore P. C. C. 335.) Neither the fact of residence without the intention of re- maining, nor the intention to reside, without the fact, will suffice to give a residence. (Chaine v. Wilson, 8 Abb. 106; 1 Bosw. 685; Laneuville v. Anderson, 17 Jur. 511; affirmed, 9 Moore P. C. C. 835; Munro v. Munro, 7 Clark & Fin. 877; Cragie v. Lewin, 8 Curteis, 448; De Bonneval v. De Bonneval, 1 Curteis, 856.) A residence once acquired, continues until the party acquires another, both in fact and intention. (Chaine v. Wlson, 8 Abb. 106; 1 Bosw. 685; Burrows v. Miller, 4 How. 849; Munro v. Munro, 7 Clark & Fin. 877; Cragie v. Lewin, 3 Curteis, 448 ; De Bonneval v. De Bonneval, 1 Curteis, 856; Somerville v. Somerville, 5 Ves. 787; see Maxwell v. M’Clure, 24 Jur. 409.) The burden of proof lies upon the party who desires to show a change of residence or domicile. (Dawwell v. I’ Clure, 24 Jur. 407; Chaine v. Wilson, supra.) Non-resident—common carrier.|—It has been decided that an action against a common carrier for negligence or other breach of duty, is not an action upon contract, but in tort, and that in such an action a defendant could be arrested under the law of 1831, on ca. sa. (Burckle v. Hills, 4 How. 288.) We presume that a non-restdent common carrier might be arrested under the Code, but think that a res¢dent one could not be, as he could not be arrested by warrant under the law of 1831, and certainly could not be by virtue of the Code, nor could he be charged in execution. (See ante, p. 105, § 288.) Innkeeper.}—An innkeeper in whose house a guest has lost property, may be arrested at his suit, if the former is a non- resident, or about to leave the State. (Semble, People vy. Willett, 6 Abb. 87; 26 Barb. 78.) 558 ARREST AND BAIL. Arrest for injuries, To the person. To property. Arr. 7.—Arrest for Injuries. The defendant may be arrested in an action brought upon an injury to person or character, or for injuring, or wrongfully taking, detaining, or converting property. (Ante, p. 72, § 179.) It is needless to enumerate all the actions which fall under this head, assault and battery, rape, (see Koenig v. Wott, 8 Abb. 384), and similar personal injuries, libel and slander, and positive (not constructive) injuries to property, are of course included. We shall only notice a few points that are not so clear. Injuries to person.J|—Crim. con. is an injury to the person, and the injured husband may cause the arrest of the adulterer, in such an action. (Delamater v. Zeussell, 4 How. 234; 2 Code Rep. 147.) So is seduction, and the father or ‘“‘ master” can cause an arrest. (Zaylor v. North, 3 Code Rep. 9.) But the seduced female has no cause of action, other than for breach of promise of marriage, (as to which, see post, p. 559,) and of course she cannot have an order of arrest. (Hamilton v. Lomax, 6 Abb. 142.) Injury to property.}—The concealment or disposal of a piano, was held not an injury to property. It was only a con- version. (Lracy v. Leland, 2 Sand. 729.) So an innkeeper cannot be arrested at the suit of a guest who has lost property in his house, there being no proof that the innkeeper himself detained, or had converted them. It was neither an injury to, nor a conversion of property. (Peo- ple v. Willett, 6 Abb. 37; 26 Barb. 78.) But the robbery of railroad shares and coupons, and their conversion into money, is an injury to property, amounting to a destruction of the stock as such. (Worthern R. 2. v. Car- pentier, 8 Abb. 259; 8. C., 4 id. 48.) But we cannot forbear to observe, that the difference be- tween this case and that of Zracy v. Leland, 2 Sand. 729, which was differently decided, appears to us infinitesimal. The shares were still in existence, in somebody’s hands; if they could not be traced, neither, sometimes, can a piano. ARREST AND BAIL. 559 Arrest for injuries. For penalties, misconduct, etc. Wrongful detention of property.|—The defendant in an ac- tion of ejectment, may be arrested. (Merritt v. Carpenter, 30 Barb. 61; overruling Fullerton v. Fitzgerald, 10 How. 39; 18 Barb. 441,) This is the proper remedy, where the defendant has parted with the property before an action was brought or threatened. (Pike v. Lent, 4 Sand. 650; and ‘see Seymour v. Van Curen, 18 How. 95; Loberts v. Rania, 3 Sand. 709; 5 How. 327.) As to ae distinction between this sobdivieton (subd. 1 of § 179), and subd. 8 of the same section, see post, arts. 10 and 18. After arresting the defendant in an action’for damages caused by detention of property, the plaintiff cannot enforce a specific delivery of the property, under § 207 of the Code. (Chappell v. Skinner, 6 How. 338.) Arr. 8.—Arrest for Penalties—Breach of Promise of Mar- riage—Misconduct in Office, ete. The defendant may be arrested in an action for a fine or penalty, or on a promise to marry, or for any misconduct or neglect in office, or in a professional employment. (Ante, p. 72, § 179.) But a female cannot be arrested in an action for breach of promise. (Siefke v. Tuppey, 8 Code Rep. 23.) Where an attorney failed to pay over money collected for his client, it was held, under the law of 1831, to be misconduct in a professional employment. (Stage v. Stevens, 1 Denio, 267.) Such a case is now expressly provided for. (See newt page.) We presume that physicians and lawyers are the only classes of persons referred to in this part of the section. In an action against a physician for malpractice or neglect— against an attorney for a breach of confidence, or for careless- ness in conducting a cause, (actions rarely brought, and sel- dom successful,) we suppose the defendant could be arrested. There are no cases, however, bearing upon this point, reported since the enactment of the Code. 560 ‘ARREST AND BAIL. Arrest for money received in a fiduciary capacity. Arr. 9.—Arrest for Money or Property received in a Fiduciary Capacity. The defendant may be arrested in an action for money re- ceived, or property embezzled or fraudulently misapplied by him, 1. In the course of his employment as a public officer ; or, 2. As an attorney, solicitor, or counsellor ; or, 38. As an officer or agent of a corporation, or banking associ- ation ; or, 4. As a factor, agent, broker, or otherwise, in a fiduciary capacity. (Ante, p. 72, § 179.) By public officers.|—For a list of public officers, see 1 Z?. S. (5th ed.) 378. By an attorney.}—Where an attorney who received money from his client to pay to another person, being required by his client to return the money, refused to do so, under the honest belief that justice to other parties required him to retain it, he was held, nevertheless, liable to arrest. (Schadle v. Chase, 16 How. 414; and see Grant’s case, 8 Abb. 357.) An attorney of another State, who is delinquent, may be arrested here. (Yates v. Blodgett, 8 How. 278.) Officers of corporations.|—The directors of a corporation may be arrested at the suit of a stockholder, for damages caused by their fraudulent acts. (Crook v. Jewett, 12 How. 19; see Cross v. Sackett, 6 Abb. 247.) Fiduciary capacity.}—The text of the Code reads, in subd. 2 of § 179, substantially thus: “ The defendant may be arrested . . . . for money received . . . . by any factor, agent, broker, or other person in a fiduciary capacity.” Held, that factors, agents, and brokers are not liable to arrest for money received as such, in all cases, but only when it is received by them (as much as by others), in a fiduciary capacity. (Frost v. M?’ Carger, 14 Mow. 136; Stoll v. Hing, 8 How. 299; see Bussing v. Thompson, 15 How. 99; Angus v. Dunscombe, 8 How. 16; but see Burhans v. Casey, 4 Sand. 707.) ARREST AND BAIL. 561 © Arrest for misapplication of property received in a fiduciary capacity. Agents.]—An agent employed as collector, is liable to arrest for money that he has used himself. He takes such money in a “fiduciary capacity.” (Stoll v. King, 8 How. 298.) Where one is employed to sell goods as an agent, and to make weekly returns,—on suit for any default in payment, he is liable to arrest. (Zurner v. Thompson, 2 Abb. 444.) A. received a lot of fruit trees from B. under a written arrangement by which he was to deliver them to customers of B. and receive payment on delivery, which he did,—but claimed that he had lost the money. eld, that A. was an agent acting ina fiduciary capacity. Held further, that the court would not, on the order of arrest, go into the inquiry whether the money was really lost or embezzled. (Lrost v. I? Carger, 14 How. 131.) If A. receives money from B., to be paid immediately to C., he is liable to arrest upon failure to pay, as an agent of B. ina fiduciary capacity. (Burhans v. Casey, 4 Sand. 707.) Assignee.|—H. assigned a claim to M., on the condition that M. should sue for it and pay the proceeds to H. In an action by H. for such proceeds, held, that M. was liable to arrest. (Hail v. M’ Mahon, 10 Abb. 319.) Auctioneer.|—An auctioneer who receives goods for sale on commission, unquestionably acts in a fiduciary capacity. Where an auctioneer received goods for sale under an agree- ment that he should retain all he could make over a certain price, held, that he acted in a fiduciary capacity, and was liable to arrest upon failure to pay after sale. (Holbrook v. Homer, 6 How. 86; Code Rep. N. 8. 406.) Bankers.|—An ordinary banker does not act in a fiduciary capacity toward his depositors. (Bussing v. Thompson, 15 How. 97. ie Thompson, a broker, was employed by Bussing as a banker, receiving deposits, makimg such use of them as he pleased, paying drafts, and allowing interest on the current balance. This arrangement continued from November, 1855, until August, 1857. On the 15th of August, Thompson received a draft for $4,000 for collection’and deposit on account of 36 ‘ 562 . ARREST AND BAIL. Arrest for misapplication of property received in a fiduciary capacity. Bussing, due on the 25th. On. the 24th, Thompson knew that he was insolvent, and before collecting the draft, declared his intention to suspend payment, and did actually suspend imme- diately after collecting this amount. Held, upon these facts, that Thompson was entitled to treat this draft as part of his general assets, and was not liable to arrest upon any ground. (Bussing v. Thompson, 15 How. 97.) An agent of Bull, an Englishman, having collected a sum of money for his principal, placed it in bank to the credit of Melliss and Ayers, a lace goods importing firm, without their knowledge. Bull wrote to them, requesting them to remit this money “ by draft.” They remitted their own acceptance, payable in England at 60 days’ sight, which Bull refused to receive, and which was not paid at maturity, the firm having meanwhile failed during the panic of 1857. It was shown that they had no intention to defraud, and did not expect to fail, nevertheless it was held that they had taken charge of the money in a fidu- ciary capacity, and had no right to send their own acceptance for the amount. An order of arrest, which had been discharged, was accordingly restored in general term. [The above facts are not fully stated in the published report of the case, but are correctly given here.] (Bull v. Melliss, 9 Abb. 58.) Commission merchant.|—A merchant who receives goods to sell upon commission in trust that he will immediately account for the net proceeds, is liable to arrest in case of failure to pay thesame. (Schudder v. Shiells, 17 How. 420; see Goodrich v. Dunbar, 17 Barb. 646.) A commission merchant received merchandise from a corre- spondent for shipment to Europe, on which he advanced a certain amount, which he drew again from his European con- signee, to whom he shipped the merchandise for sale on com- mission, holding himself responsible for any deficiency. The net proceeds not covering the advances, he recovered the deficiency from his domestic correspondent, but failed to pay his consignee. Held, upon these facts, that he did not act as a trustee for his consignee, and could not be arrested. (Angus v. Duns- combe, 8 How. 14.) ARREST AND BAIL, 563 Fiduciary capacity. Arrest in action for chattels. y capacity \ Consignee.]—A ship’s consignee is not liable to arrest in an action brought by the owners to recover freight-inoney col- lected by him. (Goodrich v. Dunbar, 17 Barb. 644.) Factor.j—See Commission Merchant, supra. A factor who is furnished with money to purchase certain goods, and is ex- pressly forbidden to make any other use of it, acts in a fiduciary capacity. (Woble v. Prescott, 4 HE. D. Smith, 139.) Peddier.\—A. peddler of goods belonging to his employer, acts in a fiduciary capacity. (2idder v. Whitlock, 12 How. 208.) Arr. 10.—Arrest in Action for Chattels. The defendant may be arrested in an action brought to recover the possession of personal property unjustly detained, where he has concealed, removed or disposed of the property, or any part thereof, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. (Ante, p. 72, § 179.) This remedy can only be allowed under a combination of all the following circumstances: 1. The property must not only be concealed, but successfully concealed; or if disposed of, it must be in such hands that the sheriff cannot lawfully take it. (Mfwvey v. Davison, 8 How. 112.) 2. It must be concealed or disposed of with the intent above described. (See supra; see also Prke v. Lent, 4 Sand. 650; Roberts v. Randel, 3 Sand. 710; 5 How. 330. Van Neste v. Conover, 5 How. 148, if ever correct, is certainly superseded by the amendments of 1851.) 3. The action, as shown by the form of the complaint, must be for the recovery of the possession of property, and not for damages for its conversion. (Seymour v. Van Curen, 18 How. 94; Roberts v. Randel, 3 Sand. 710; 5 How. 330.) 4. The property must be in the defendant’s possession at the time the plaintiff moves in his action. It must have been con- cealed or disposed of under the knowledge, belief, or expecta- tion of the defendant that an action had been or would be . 564 ARREST AND BAIL. i Arrest in action for chattels. ‘ For fraud. commenced for the recovery of the possession thereof. (Pike v. Lent, 4Sand. 650; J2oberts v. Zande, 3 Sand.'710; 5 How. 330; Reimer v. Nagel, 1 E. D. Smith, 258; Code Rep. N.S. 219; see Merrick v. Suydam, Code Rep. N. 8. 212.) These circumstances are strongly insisted upon, as where they do not exist, the proper remedy is under subd. 1 of $179 of the Code; and there is a material ‘difference between the nature of the bail required under that-clause, and under this. (See Ante, p. 74, §$ 187, 188; p. 79, § 211.) Art. 11.—Arrest for Fraud. The defendant may be arrested when he has been guilty of a fraud, 1. In contracting the debt or incurring the obligation for which the action is brought, or, 2. In concealing or disposing of the property. for the taking, detention, or conversion of which, the action is brought. (Ante, p. 72, § 179.) As far as the second part of the above clause is concerned, it seems to us a mere repetition of a similar provision in subd. 1, of the same section, (ante, p. 72.) There are no decisions illustrating it. Obligation.|—This word, as here used, is intended to include all kinds of legal liabilities and duties, as well as ordinary con- ‘tracts. (Crandall v. Bryan, 5 Abb. 168; but see Sinzth v. Corbiere, 3 Bosw. 634, contra.) What is Fraud ?|—Constructive fraud, not involving moral guilt, cannot be made a basis for arrest. (Birchell v. Straus, 8 Abb. 57; Spies v. Joel, 1 Duer, 669; see Claflin v. Frank, 8 Abb. 412.) Fraudulent conduct, in order to constitute a ground of arrest, must have occurred, either in contracting the debt, etc., or in removing or disposing of property. (See Zsaacs v. Gorham, 1 Hilt. 481.) Any falsehood, told with intent to induce another to change his position and take a risk, is a fraud. (Murray v. Afann, 2 Exch. 541; Polhill v. Walter, 3 Barn. & Adol. 123; Corbett y. Brown, 8 Bing. 38.) * ARREST AND BAIL. 565 Arrest for fraud. Fraudulent statements. Lirwudulent representations.|—A_ false representation, made in order to obtain credit, is necessarily fraudulent. And where a defendant admits the falsehood of his statements, but denies that he did not mean to pay the debt when he made them, such denial is immaterial. (Whitcomd v. Salsman, 16 How. * 533; see Polhill v. Walter, 3 Barn. & Adol. 123; Corbett v. Brown, 8 Bing. 83.) Intent to defraud is inferred from actions, and not from sub- sequent declarations. (Wahztcomb v. Salsman, supra. See Morrison v. Garner, 7 Abb. 425; Lovell v. Martin, 11 Abb. 126.) But if the defendant really believed his statements at the time, although «nm fact they were untrue, he is not guilty of fraud. (Lerchell v. Straus, 8 Abb. 53; Gaffney v. Burton, 12 How. 518; see Polhill v. Walter, 3 Barn. & Adol. 124.) A defendant made the following statement to gain credit: “Tam perfectly good and responsible for all the goods I may purchase. I own, in Jersey City, the house and lots in which Iam living, aliich I value at between $5,000 and $6,000, and I consider this good and sufficient for any goods I may buy: ; I also one real estate in Williamsburgh, and I have other pro- perty.” Thirty-three days afterward, he made a general assignment, the schedule showing assets of $1,600, against debts of $2,800. Held, that the burden of proof lay upod him to show what had become of his property in that time, and that in the absence of explanation, his statements would be considered false and fraudulent. (Scudder v. Barnes, 16 How. 534. See also Wilmerding v. Mooney, 11 Abb. 283.) Where the defendant, knowing himself to be insolvent, in- duced the plaintiff to sell him goods upon his assurance that he “was good, and able to pay all that he should contract to pay,” Aeld, that the debt was fraudulently contracted, and the. defendant was held to bail. (Freeman v. Leland, 2 Abb. 479.) ° Fraudulent representations on a sale of land, are as good a cause of arrest, as on a sale of personal property. (Orandall v. Bryan, 5 Abb. 164.) Fraudulent misrepresentation as to the means of a third Pd 566 ARREST AND BAIL. Arrest for fraud, Fraudulent suppression of facts. _party is not a ground for arrest, unless the defendant is a non- resident, in which case he may be arrested under subd. 1 of section 179. (Smith v. Carbiere, 8 Bosw. 634; but see Cran- dall v. Bryan, supra.) Borrowing money upon a promise to use it for a certain pur- pose, and using it for an entirely different purpose, is a fraud, rendering the borrower liable to arrest. (Lovell v. Martin, 11 Abb. 126.) Fraudulent suppression of facts.|—“The law does not deny the possibility of an honest purchase of goods on credit, by an insolvent person, without a disclosure of the fact. He may have not only an intention of paying for them when the credit expires, but a reasonable expectation of being able to do so. The true point of inquiry in such cases is, whether there was a preconceived design not to pay for the goods.” (Hall v. Naylor, 18 N. Y. 590; 8. C., 6 Duer, 74; see Wichols v. Pinner, 18 N.Y. 299; Brown v. Montgomery, 20 N. Y. 292; Mitchell v. Worden, 20 Barb. 259.) If a purchaser conceals the fact of his insolvency, with a design of procuring goods and not paying for them, he is guilty of fraud. (Hall v. Naylor, 18 N. Y. 589; 6 Duer, 75; and see Morrison v. Garner, T Abb. 425.) This intention will be inferred from his acts, taken all toge- ther, although denied by him under oath. (Morrison v. Garner, 7 Abb. 425; and see Whitcomb v. Salsman, 16 How. 583.) It is proper evidence for this purpose, to show that the de- fendant, at the same time or thereabouts, made purchases upon suppression of the truth in one place, and upon misrepresenta- tion in another. (/7all v. Naylor, 18 NeY. 589; 6 Duer, 75.) A long course of dealings between two parties does not raise any implied trust that the buyer will communicate to the seller the fact of his insolvency. (Mfttchell v. Worden, 20 Barb. 259.) But it does raise a trust and duty on the part of the buyer to disclose to the seller, before purchasing more goods on credit, the fact (when such fact exists), of his open insolvency, and the breaking up of his business, by a general assignment or otherwise. (Mitchell v. Worden, 20 Barb. 260. See Brown v. Montgomery, 20, N. Y. 293.) ARREST AND BAIL. 567 4 Arrest for fraud, Agents or partners. Defrauding creditors. A banker, who was in the practice of selling his own bills of exchange on England, and buying other bills here to meet them, making his profit off the difference of exchange, was offered a large amount of such bills. After unusual delibera- tion, he proposed to buy them on credit, contrary to his usual custom, which was agreed to. He made no entry of the trans- action on his books, and instead of remitting the bills, accord- ing to his regular practice, he sold them in the market for cash. Just before the day on which he had agreed to pay the drawer, he failed. Heid, that in the absence of satisfactory explanation as to what had become of the proceeds of the bills—as to the amount of such proceeds—and as to the change of his cireum- stances in the interval, the purchase would be deemed frandn- lent; and an order of arrest was granted and affirmed. (Jfor- rison v. Garner, 7 Abb. 425.) It was held, in another State, that a purchase on credit, by a person clearly insolvent, was fraudulent. (Seligman v. Kalk- man, 8 Cal. 215.) See further, as to suppression of facts, Zapp v. Lee, 3 Bos. & Pul. 371. Fraud of agent.|—A principal cannot be arrested for the fraud of his agent, though committed for the benefit of the former, provided he has not been in complicity with such agent. (Claflin v. Frank, 8 Abb. 412.) Lraud of partner.|—One partner in a firm cannot be arrested for the fraud of another, in which he had no complicity, before or after the fact, although such fraud was committed for their joint benefit. (ZZanover Co. v. Sheldon, 9 Abb. 240; but see Townsend v. Bogert, N. Y. Trans. Dec. 22, 1860.) But if, after knowledge of the fraud, the other partners retain the property thereby acquired, they are all liable to arrest. (Anon., 6 Abb. 819, note.) Arr. 12.—Arrest for attempting to defraud Creditors. The defendant may be arrested, when he has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. (Ante, p. 72, § 179.) 568 ARREST AND BAIL. Arrest for defrauding creditors. Order, how obtained. \ The ¢ntent is the main point to be considered, and a removal or disposal of property, in a mode which the Jaw declares fraudulent, without regard to intention, may nevertheless in some cases be innocent infact, and when that is shown, the defendant cannot be held under arrest. (See Arauth v. Vial, 10 Abb. 189; Birchell v. Straus, 8 Abb. 57; Spies v. Joel, 1 Duer, 669.) Thus, where in an assignment made for the benefit of credi- tors, there are certain omissions which would be construed as fraudulent, and render it void, such omissions would not of themselves furnish a ground of arrest. (Bzrchell v. Straus, 8 Abb. 57; Spies v. Joel, 1 Duer, 669.) But where, after an assignment for the benefit of creditors, the assignor retained and sold part of the property assigned, the transaction was held fraudulent, and he was arrested. (IZ’ Butt v. Hirsch, 4 Abb. 441.) Where a judgment-debtor, being ed: by the deputy sheriff who levied the execution, that certain property was exempt, carried it openly into another State, Aeld, that whether it was so exempt or not, the debtor (not being at all acquainted with the law) was justified in doing so, at least as far as morality was concerned, and could not be arrested under the law of 1831, whose text is similar to this clause. (Arauth v. Vial, 10 Abb. 140.) Art. 13.—By whom the Order may be granted. An order for the arrest of the defendant must be obtained from 1. A judge of the court in which the action is brought, or, 9. A county judge. (Ante, p. 72, § 180.) The “county judge” here referred to, means the judge of the county where the action is triable. (See Chubbuck v. Alor- vison, 6 How. 867; Eddy v. Howlett, 2 Code Rep. 76.) A local officer elected to discharge the duties of surrogate, may grant an order of arrest, although there is a county judge in the county, not disqualified to act. (Seymour v. Mercer, 13 How. 565.) ARREST AND BAIL. 569 On what papers order granted. : Affidavit. — Art. 14.—Papers on which the Order may be granted. Affidavit.|—The order may be made, where it appears to the judge, by the affidavit of the plaintiff, or of any other person, that a‘sufticient cause of action exists, and that the case is one of those mentioned in section 179 (ante, p. 72). (Ante, p. 73, » § 181.) Showing cause of action.}—Everything necessary to show a cause of action must be set forth in the affidavit. (Adams v. Mills, 8 How. 222.) Thus, an affidavit which simply alleged that the defendant ~ had charged the plaintiff with theft, without stating that such charge was false, was held insufficient. (Adams v. Mills, 3 How. 222; but see Hunt v. Bennett, 19 N. Y. 173.) Showing ground of arrest.|—It is not enough to allege that “ the case is one of those mentioned in section 179.” The facts of the case must be set forth. (Pindar v. Black, 4 How. 95.) So it is not enough to state that “the defendant has removed or disposed of his property with intent to defraud his credi- tors.” (Hrost v. Willard, 9 Barb. 440.) So an affidavit in an action for malicious prosecution, must set forth the facts relied on as presumptive evidence of the want of probable cause. It is not sufficient to state in general terms the existence of malice, and the want of probable cause. ( Van- derpool v. Kissam, 4 Sand. 715.) _ But it is not necessary that the affidavit should make out every fact constituting the ground of arrest (¢. g. fraud), by as full proof as would be required upon a trial. (Crandall v. Bryan, 5 Abb. 162.) Non-residence.|—An affidavit that a defendant is a cztzzen of another State, is not equivalent to an averment that he is a non- resident of this State; for he may be a resident of this State, and yet acitizen of another. (I Kiernan v. Massingell, 6 ‘Sme. & Mar. 3877.) Removal from the State.|—An affidavit that the defendant is “ going out of the State,” is not sufficient. It should appear 570 ARREST AND BAIL. On what papers order granted. Affidavit, Complaint. that the removal is an actual change of residence, and not a mere visit. (Brophy v. Rodgers, 7 N.Y. Leg. Obs. 152.) Removal of property.|—It has been held, that an affidavit alleging the removal or disposal of property by the defendant, must aver that it was done secretly. Secrecy is an essential element of such fraud. (Anon., 2 Code Rep. 51; see Hrauth v. Vial, 10 Abb. 140.) Other allegations.|—It is not necessary to state that an action has been, or is about to be commenced. (Pindar v. Black, 4 How. 95.) If the name of the defendant is not known he may be in- dicated by any designation. (Ldid. ; see ante, p. 69, § 175.) Positiveness.|—The affidavit must set forth facts by positive averment, and not argumentatively. (Whitlock v. Roth, 10 Barb. 78; 5 How. 143; see Martin v. Vanderlip, 3 How. 269.) But it may be made upon information and belief, if the source of the information, and the facts upon which the belief is founded, are set forth. (Peel v. Elliott, 7 Abb. 487; Crandall v. Bryan, 5 Abb. 165; Whitlock v. Roth, 10 Barb. 78; 5 How. 1438.) When made upon information, it should state why the infor- mant did not make an affidavit himself. (Bell v. dfali, 11 How. 255.) It is exceedingly improper to swear positively to matters which are derived from the statements of others. (Union Bank v. Mott, 6 Abb. 818; Moore v. Calvert, 9 How. 475.) The complaint.|—An order of arrest is not to be procured on the complaint, and it is therefore entirely unnecessary that it should contain facts in support of such an order. (Corwin v. Freeland, 2 Seld. 563; reversing 8. C., 6 How. 241; and overruling Harris v. Cone, 10 How. 259. See Barker v. Rus- sell, 11 Barb. 303.) But the form of the complaint may affect the defendant’s liability to arrest. Thus, where a complaint prayed for dama- ges for conversion of property, held that the defendant could not be held to bail under subd. 8 of section 179; (ante, Art. 10, ARREST AND BAIL. BTL On what papers order granted. / ; Forms of affidavits. p- 563.) (Seymour v. Van Curen, 18 How. 95; Roberts v. Ran- del, 3 Sand. 710.) The complaint, if verified, may be considered an affidavit 5 and where an affidavit was insufficient alone, the complaint was resorted to to sustain it. (Zurner v. Thompson, 2 Abb. 444 ; Brady v. Bissell, 1 Abb. 76.) Wawer of defects.|—Putting in and perfecting bail waives all defects in the affidavit. (Stewart v. Howard, 15 Barb. 26.) Lorms.|—The form of an affidavit depends so much upon the actual state of facts, and these are so various and complex, that it would be impossible to give any forms for actual use. We give, however, a single form under each subdivision of sec. 179, merely as examples, to illustrate what we understand to be approved and desired by the courts, though often disregarded by the profession, in the haste with which such affidavits are usually prepared. It is not necessary to entitle the affidavit in any case, or to refer to the action, but it may be done. (See Pindar v. Black, 4 How. 95.) It certainly does no harm (see 7dzd.), especially as the order to arrest is not now the commencement of the action. For- merly it was irregular to entitle such an affidavit. Affidavits to be filed.|—The sheriff must file with the clerk the affidavits on which an arrest is made within ten days after the arrest. (Ante, p. 179, Rule 7, Supreme Court.) & 96. Affidavit for Arrest on the ground of Non-residence. [Title of Cause.] Country or [Rensserazr]: John Doe, being duly sworn, says: [1. That he is the plaintiff in the above entitled action, and resides in this county 3] 2. That on the Ist day of May last, the defendant, as a com- mon carrier between the city of Buffalo and the city of Troy, undertook, for a certain reward, to convey a certain bale 572 ARREST AND BAIL. On what papers order granted, Forms of affidavits. of cotton goods, of the value of one hundred dollars, from FT oy to Buffalo aforesaid, for this deponent ; 3. That depuasnt delivered the said goods to the sae but he has never delivered them at Buffalo, or elsewhere, as he agreed with deponent to do; 4, That the said defendant is preparing to remove with his family into the State of Massachusetts ; [o7, is not a resident of this State, but resides in the State of Massachusetts. ] [Jurat.] Joun Dos. § 97. Affidavit for Arrest for Personal Injury. County or [Catraraveus]: John Doe, of said county, being duly sworn, says: 1. That on the first day of May, 1860, Richard Roe, of the town of Olean, in said county, without any cause or provoca- tion, violently assaulted this deponent in said town, and beat him with a stick about the head and shoulders, whereby depo- nent was greatly injured, and was made insensible, and -has since been dangerously ill; to the damage of this deponent one thousand dollars; : [2. That deponent has commenced (07, is about to com- mence) an action against said Richard Roe, for the recovery of such damages, in the Supreme Court.] [Jurat.] Joun Dos. Note.+The second clause above is not material, but is usually inserted, and is desirable. § 98. Afidavit for Arrest, for Money received ina Fiduciary Capacity. County or [Kines]: John Doe of said county, being duly sworn, Says: 1. That on the first day of May, 1860, Richard Roe, of said ARREST AND BAIL. 513 On what papers order granted, Forms of affidavits. 1 county, being a note-broker, doing business in the city of New York, proposed to deponent to find a purchaser for a promis- sory note made by one John Denn, of the said city, payable to ' the order of deponent, for the sum of one thousand dollars ; 2. That at the request of said Richard Roe, deponent delivered to him the said note in trust, to sell the same for cash, as a broker aforesaid, and to return the proceeds thereof, imme- diately to this deponent, and for no other purpose whatever ; 3. That deponent did not sell the said note to said Richard Roe, nor did he deliver it to him in any other manner, or for any other purpose, than as a broker aforesaid ; 4. That the said Roe informed deponent, on the same day, that he had sold the said note for the sum of nine hundred and fifty dollars cash, but refused to state to whom he had sold it; 5. That the said Roe has neglected and refused to pay the said sum of nine hundred and fifty dollars, or any part thereof, to this deponent, although requested so to do, to the damage of deponent one thousand dollars : 6. That deponent has commenced, eéc., as in § 97.] [ Jura. ] Joun Doz. § 99. Affidavit for Arrest, in an action for Chattels. [Title of Cause. ] [Crry anv] County or [New Yors]: John Doe, of said county, being duly sworn, says: 1. That he is the plaintiff in this action, and brought the same to recover the possession of a piano belonging to him, and unjustly detained by the defendant ; 2. That to the certain knowledge of deponent, the said piano was, on the first day of May, 1860, in the possession of the defendant Richard Roe, at his house, No. 500 Rivington street, in said city 5 3. That upon that day, deponent applied to said Roe for the gaid piano, and being refused, told him that he should resort to law; and that said Roe then replied, that “ the sheriff would have a good time getting it,” or words to that effect. 574 ARREST AND BAIL. On what papers order granted. Forms of affidavits. 4. That, as appears by the sheriff’s return hereto annexed, said Roe has refused to deliver to him the said piano, and the’ sheriff has been unable to find the same. [Jurat.] Joan: Dos. The sheriff's return, and the papers used upon the original requisition upon him to seize the property, will supply all other necessary allegations. Indeed, it has been held that the sheriff’s return of “not found” is sufficient primd facie evidence of a fraudulent removal of the property, to warrant an arrest, and that it lies with the defendant to disprove the presumed illegality of the removal. (Manley v. Paterson, 8 Code Rep. 90.) § 100. Afidait for Arrest, for fraudulently contracted debt. County or [Erie]: John Doe, of said county, being duly sworn, says: 1. That on the first day of May, 1860 , one Richard Roe, of the city of Buffalo, in suid county, applied to deponent, desiring ‘to purchase certain goods from the firm of Doe, Denn, & Co., of which deponent is a partner, upon a credit of six months ; 2. That in order to induce deponent to grant such credit, the said Roe stated to him, that he, said Roe, was in good and sol- vent circumstances, having property in his store to the value of five thousand dollars, with debts due to him to the extent of twelve thousand dollars from good and solvent parties, and owing himself to other parties not over seven thousand dollars; and said Roe further stated repeatedly to deponent, that he, said Roe, was well able to pay for at least five thousand dollars’ worth of goods ; 3. That further to induce deponent and his co-partners to grant him the aforesaid credit, said Roe referred them to one Richard Fen, of said city, who, upon inquiry, assured deponent that said Roe was worth at least eight or ten thousand dollars clear, above all his debts and liabilities ; 4, That thereupon, relying upon the assurances of said Roe ARREST AND BAIL. 575 On what papers order granted..: Security by plaintiff. & Fen, but more especially upon those of said Roe, deponent and his co-partners sold him dry goods to the amount of three thousand seven hundred dollars, upon a credit of six months ; 5. That as soon as the said merchandise was delivered, the said Roe shipped the same to the city of New York in a clandestine manner, marking the same as if it had come from Cleveland, Ohio, and taking a bill of lading in the name of John Smith, a clerk in the office of said Richard Fen ; 6. That the said merchandise was sold by the firm of Hag- gerty & Co. in the city of New York, by public auction, as deponent is informed by said firm, and verily believes, and realized only two thousand six hundred dollars cash, which amount was paid by said firm to said John Smith, as appears more fully by their affidavit annexed ; 7. That the representations of said Richard Roe and Richard Fen, above-mentioned, were totally untrue; that said Roe had at no time more than two thousand dollars’ worth of goods in his store, and those, as deponent has since learned from his own statement, bought upon credit; that he had no bills due him, except a promissory note for five thousand dollars from said John Smith, who is a minor, of the age of nineteen years, or thereabouts ; 8. That on the tenth day of June, 1860, the said Roe made an assignment for the benefit of creditors, to Richard Fen, afore- said, declaring said Fen to be a creditor of his estate to the amount of seven thousand dollars, and preferring him over every other creditor to the full amount of such pretended debt; 9. That the schedule annexed to such assignment showed no property other than merchandise in store, valued at fifteen hun- dred dollars, and the aforesaid note of John Smith, a minor. [Jurat. | Joun Dox. Arr. 15.—Security to be given by Plaintiff. “Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with or without sure- ties, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defen- 576 ARREST AND BAIL. Security by plaintiff. Undertaking. dant, and all damages which he may sustain by reason of the arrest, not exceeding thesum specified in the undertaking, which shall be at least one hundred dollars.” (Ante, p. 78, § 182.) Sureties.|—It rests entirely in the discretion of the judge granting the order, to say whether sureties shall or shall not be required. (Courter v. M’Namara, 9 How. 255; Lichard- son v. Craig, 1 Duer, 666.) One surety is atic though the judge may require more. (Ward v. Whitney, 4 Seld. 446.) The plaintiff need not join.Jj—It seems to be settled, that when the undertaking is made by sureties, the plaintiff need not join. (Leffingwell v. Chave, 10 Abb. 475; 19 How. 60; Askins v. Hearns, 3 Abb. 188; Bellinger v. Gardner, 2 Abb. 441; Courter v. M’ Namara, 9 How. 255; overruling Lzch- ardson v. Craig, 1 Duer, 666.) The sureties must justify. (Ante, p. 178, Rule 6, Supreme Ct.) Without swreties.|— If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking, over all his debts and liabilities.” (Ante, p. 738, § 182.) When a foreign state is plaintiff, an undertaking by its resi- devt minister may be regarded as an undertaking by the plain- tiff. (Republic of Mexico v. Arrangois, 11 How. 6.) e L0ly Ondertaking on Arrest. [Title of Cause.] Wuerzas, the plaintiff is about to apply fare has applied] for ' an order to arrest the above named John Jones: Now THEREFORE, we, John Johnson, of. .... [merchant], and John Jenks, of. ...... [builder], undertake in the sum Of 4.5% eas dollars, that if the said defendant recover judg- ARREST AND BAIL. 577 Undertaking by plaintiff. Order of arrest. ment in this action, the plaintiff will pay all costs that may be awarded to the said defendant, and all damages which he may sustain by reason of his arrest in this action. Joun Jounson. Joan JENKs. [Atzany, January 1, 1861.] § 102. Justification and Acknowledgment. County oF... 6.3 : John Johnson and John Jenks, being duly sworn, severally say, each for himself: 1. That he is a resident and householder, [or freeholder] in this State ; 9. That he is worth. ..... dollars [double the sum speci- jied in the undertaking), over all his debts and liabilities, and exclusive of property exempt from execution. Joun Jounson. [Jurat.] Joun Jenxs. County oF. ....: : I certify that on this... .of..... 18 .., John Johnson and John Jenks personally appeared batere me and severally acknowledged that they executed the above undertaking. A. B., Commissioner of deeds. Undertaking to be filed.|—The undertaking must be filed with the clerk of the court. (Ante, p. 148, § 423.) If not filed within five days after the order is granted, the order itself will be set aside on motion, with costs. (Anée,. p. 178, Rule 4, Supreme Ct.) It is not necessary to serve any copy of the undertaking om the defendant. (Leopold v. Poppenheimer, 1 Code Rep. 39.) Art. 16.—TZhe Order of Arrest. 1. At what time order may be granted.|—“ The order may be: 37 578 ARREST AND BAIL. The order of arrest. Indorsement. made to accompany the summons, or at any time afterward, before judgment.” (Ante, p. 73, § 183.) By the “judgment” is meant a final judgment,—absolute, and not conditional. (Union Bank v. Mott, 8 Abb. 150; 9 id. 110.) So, where a default had been opened, the judgment standing as security merely, it was held no bar to an arrest. (dzd.) The order may be granted before the summons is served. (Dunaher v. Meyer, 1 Code Rep. 87.) 2. Form of the order.]—It should require the sheritf of the county where the defendant may be found, (1.) To arrest him forthwith ; (2.) To hold him to bail, in a specified sum; and (3.) To return the order, at a time and place to be therein mentioned, to the person subscribing or indorsing it. (Ante, p. 73, § 183.) It should be subscribed or indorsed by the plaintiff or his attorney. (Ldzd.) When returnable.|—It should of course not be made return- able on a Sunday. If it be, it is void, and under the former practice, could not be amended. (Stone v. Martin, 2 Denio, 185; Wright v. Jeffrey, 5 Cow. 208; Miller v. Gregory, 4 Cow. 504; Kenworthy v. Peppiat, 4 Barn. & Ald. 288; and see Gould v. Spencer, 5 Paige, 541.) Statutory fine or penalty.|—In actions given by statute for any penalty or forfeiture, a general reference to the statute must be indorsed on the order, in this form: “ According to the provisions of the statute regulating the rate of interest on money ” [o7, “ concerning sheriffs,” or what- ever the statute may be]; or in some other general terms re- ferring to such statute. (3 R.S. (5th ed.) 784; [2 éd. 482.]) An indorsement beginning “ According to the proceedings of the statute,” etc., held sufficient. (Andrews v. Harrington, 19 Barb. 344.) In an action under the excise law a reference to “ the act of ithe internal ‘police of the State,” held insufficient, as too in- definite. (Avery v. Slack, 17 Wend. 86.) The best plan is to refer to the chapter and title, and perhaps | ARREST AND BAIL. 579 | Order of arrest. The arrest. By whom made. How made. to the section, if possible. (Zdzd.; and see Perry v. Tynen, 21 Barb. 139.) ’ § 103. Order of Arrest. [Title of Cause.] Sw the Hame of the People of the State of Hew Pork : For the causes stated in the annexed affidavit : You are commManpep forthwith to arrest the above named John Jones, and to hold him to bailin the sumof........ dollars; and to return this order to A. J. Colvin, the plaintiff’s- attorney, at his office [No......... street, ] in the city [or, towns) Of g.ss5 2 ae 5 ON the 6 eaday Of 6. aa ou 18... Henry Hoeerzoom. [Atsany, January 1, 1861.] A. J. Corvin, Plaintiff’s Attorney. To rae SHERIFF OF THE CouNTY OF .......- Arr. 17.—The Arrest. 1. By whom made.|—The affidavit and order of arrest must be delivered to the sheriff.’ (Ante, p. 78, § 184.) \ The sheriff must immediately arrest the defendant, and keep him in custody until discharged by law. (Ante, p. 73, § 185.) He may call the power of the county to his aid, as in case of process. (Ante, p. 73, § 185.) Special deputy.|—The arrest may be made by a special deputy appointed for the purpose. The sheriff is not respon- sible to the plaintiff for the acts of such deputy. (See on this subject, ante, p. 309.) 2. How made.]—The arrest may be made without any actual touch by the sheriff. It is sufficient if the defendant submit to arrest, and accompany the officer. (Gold v. Bissell, 1 Wend. 215; and see Jeussen v. Lucas, 1 Carr. & Payne, 153.) But mere words, such as saying: “-You are my prisoner,” without touching the defendant, and when he does not submit, are not sufficient. (Mussen v. Lucas, 1 Carr. & Payne, 153.) 580 ARREST AND BAIL. The arrest. Fraudulent arrest. Detainer. Fraudulent arrest.|—The courts will not allow a defendant to be enticed by false representations into the sheriff’s bailiwick. If thus arrested, he will be discharged on motion. (Goupit v. Simonson, 3 Abb. 474.) So where the defendant, being a bond fide non-resident, is enticed within the jurisdiction of the court. (Stein v. Valken- huysen, 1 Ell., B. & Ell. 65; 27 Law Jour. [Q. B.] 236; and see Carpenter v. Spooner, 2 Code Rep. 140; 2 Sand. 717.) Detainer.|—When a defendant has been arrested at the suit of one party, he may be detained under an order of arrest obtained by another party, provided the first arrest was legal, -or that there was no collusion between the different plaintiffs. (Barclay v. Faber, 2 Barn. & Ald. 748; 1 Chitt. Rep. 579; see Collins v. Yewens, 10 Ad. & El. 570; Robinson v. Yewens, 7 Dowl. P. C. 877; 5 Mees. & Wel. 149; Callaway v. Bond, 1 Chitt. Rep. 580.) But if the defendant was illegally arrested, with the collusion of the sheriff, he cannot be detained under orders to arrest already in such sheriff’s hands. (Pearson v. Yewens, 7 Dowl. P. C0. 451; 7 Scott, 435; Collins v. Yewens, 10 Ad. & El. 570; Barratt v. Price, 9 Bing. 566; 1 Dowl. P. 0. 7253; Spence v. Stuart, 3 East, 89.) If a defendant be arrested without process, or under void pro- cess, he cannot be detained at the suit of the person by whose instigation he was so arrested, under a valid order of arrest. (Hx parte Scott, 9 Barn. & Cres. 446; Atty Gen. v. Cass, 11 Price, 345; At?y Gen. v. Dorkings, 11 Price, 156; Barlow y. Hall, 2 Anstr. 461.) So if he be arrested, while privileged from arrest, he cannot, upon being nominally discharged, be re-arrested, before he has had time to take any real advantage of his discharge. (Bar- ratt v. Price, 9 Bing. 566; 1 Dowl. P. C. 725; Spence v. Stuart, 3 East, 89.) So, if he be arrested under criminal process, used merely as a pretext, he cannot be detained under an order obtained by the instigator of such criminal proceedings. (Wélliams v. Bacon, 10 Wend. 636; Wells v. Gurney, 8 Barn. & Cres. 769.) But if the criminal charge was made in good faith, the defendant may be detained under an order of arrest in a civil ARREST AND BAIL. 581 The arrest, . Service of papers. Bail. action for the same cause, or any other. (Lucas v. Albee, 1 Denio, 667; Goodman v. London, 2 Dowl. P. C. 504; Anon., 1 Dowl. P. C. 157.) 3. When made.]—The arrest cannot be made on a Sunday, or if so made it is utterly void. (2 Z2. 8. (5th ed.) 935; [1 ed. 675.]) Nor on election days, so far as regards qualified electors. (1 id. (5th ed.) 418; Laws 1842, ch. 130.) 4. Service of papers.|—The sheriff, upon arresting the de- fendant, must deliver to him a copy of the affidavit and order of arrest. (Ante, p. 73, § 184.) The omission to serve a copy of the affidavit and order at the time of the arrest, does not entitle the defendant to a dis- charge. (Courter v. MU’ Namara, 9 How. 257; Keeler v. Belts, 3 Code Rep. 183.) . But he may move for an order to compel service of a copy, and the motion will be granted with costs. (Zdzd.) No copy of the undertaking need be served on the defendant. (Leopold v. Poppenheimer, 1 Code Rep. 39.) 5. Sheriff’s return.]—The sheriff must indorse his return on the order, and deliver it to the person subscribing the order within the time limited. (Ante, p. 75, § 192.) Arr. 18.— Bail. Scsp. 1. Of bail in general. 2. The undertaking. 8. Sheriff's return. 4. Excepting to bail. 5. Notice of justification. 6. Qualifications of bail. 4. Disqualifications. 8. Justification. Susp. 1. Of bail in general. With the arrest, the plaintiffs object in the present process is accomplished, and he ceases to act on the offensive. The next proceeding in order will therefore be on the part 582 ARREST AND BAIL. Bail. When bail may be given. Undertaking. of the defendant to obtain his discharge. This may be pro- cured as follows : 1. By giving bail ; 2. By making a deposit with the sheriff ; 3. By discharge of the sheriff without bail ; 4. By escape ; 5. By rescue ; 6. By motion to vacate order of arrest. Until 1858, it was necessary to make any motion to vacate the order of arrest before justification of bail. (Code, § 204.) But as the motion can now be made at any time before judg- ment, it would seem likely that the defendant would prefer to be on bail while the motion is pending. Putting in and perfecting bail was, before 1858, a waiver of all defects in the affidavit. (Stewart v. Howard, 15 Barb. 26.) Whether it is so now,—query ? The defendant, at any time before execution, must be dis- charged from arrest upon giving bail. (Ante, p. 73, § 186.) Supp. 2. Undertaking on bail. “The defendant may give bail, by causing a written under- taking to be executed by two or more sufficient bail, stating their places of residence and occupations, to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein.” (Ante, p. T4, § 187.) If the defendant be arrested for concealing property from the sheriff, etc., as per subd. 3 of § 179, (ante, p. 72,) the under- taking must aso bind the sureties in double the value of the property, as stated in the plaintiff's affidavit : 1. For the delivery of the property to the plaintiff, if so ad- judged ; 2. For the payment to him of such sum as may, for any cause, be recovered against the defendant. (Ante, pp. 74, 79, §§.187, 211. ARREST AND BAIL. 583 Bail. Forins of undertaking. Sheriff’s return. § 104. Undertaking of bail (under § 187). [ Tetle of Cause.] F Wuergas, the above named John Jones has been arrested in this action: Now, ruerrrorg, we, Benjamin Brown, of ...... [tailor], and Daniel Down, of ........ [grocer], undertake, in the SUM) Of gon eee eos dollars, that if the said Jones be dis- charged from arrest, he shall, at all times, render himself amen- able to the process of the court, during the pendency of this action, and to such as may be issued to enforce the judgment therein. . [Date.] [Stgnatures.] [Justification and acknowledgment as in § 102.] § 105. Ondertaking of Bail in an Action for Chattels (under § 187 and § 211.) [Title of Cause.] _ Wuernas, the above named John Jones has been arrested for ' the cause mentioned in the third subdivision of section 179 of the Code of Procedure: Now, THEREFORE, we [as tn § 104 to the end, and add: and also for the delivery of [describe the property], to the plaintiff, if such delivery be adjudged ; and for the payment to the plaintiff of such sum as may, for any cause, be recovered against the defendant in this action. i [ Date.] [Stgnatures.] [Justification and acknowledgment as in § 102.] Supp. 3. Sheriff's return. Within the time limited by the order, the sheriff must deli- ver the same to the person by whom it was subscribed, with his return indorsed, and a certified copy of the undertaking of bail. (Ante, p. 75, § 192.) 584 ARREST AND BAIL. Bail, Exception to bail. Notice of justification. This return may be enforced by atéachment, as to which, see next volume. . Susp. 4. Haception to bail. “The plaintiff, within ten days” after the return, “may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability.” (Ante, p. 75, § 192.) The plaintiff cannot treat bail as a nullity, ‘although he knows them to be disqualified. This was the settled rule in King’s Bench, and is recognized here, the practice in that court having been adopted as the foundation of practice in the New York Supreme Court prior to the Revised Statutes or Code. (See Miles v. Clarke, 2 Bosw. 710; King v. Sheriff of Surrey, 2 East, 181; Banter v. Levi, 1 Chitt. Rep. 713; Bed v. Gate, 1 Taunt. 162; Zhompson v. Roubell, 2 Doug. 466 a.) The rule in the English Common Pleas was otherwise. ( Wallace v. Arrowsmith, 2 Bos. & Pul. 49; OR v. Lug- gles, 1 id. 356.) § 106. Exception to Bail. [Title of Cause.] Taxe notice, that the plaintiff does not accept the bail offered by the defendant in this action. Yours, ete., Rozert Cocuray, Plaintiff's Attorney. To Toe SHerirr or THE County oF ..... Susp. 5. Notice of justification. “On the receipt of such notice ” (of exception to bail), “the sheriff or defendant may, within ten days thereafter, give to the plaintiff or attorney by whom the order of arrest is subscribed, notice of the justification of the same or other bail (specifying the places of residence and occupation of the ARREST AND BAIL. 585 Bail. Qualifications. latter), before a judge of the court, or county judge, at a specified time and place ;—the time to be not less than five nor more than ten days thereafter.” (Ante, p. 75, § 193.) In case other bail be given, there must be a new undertaking in the form heretofore prescribed. (ldid.; see ante, p. 582.) By giving notice of justification, the defendant waives all defects or irregnlarities in the notice of exception or its service. (Semble, 22ogers v. Mapleback, 1 Hen. Blacks. 106.) But it is not such a waiver as will support a rule on the sheriff to bring in the body. (Z6zd.) Further time to serve notice of justification may be obtained. (1 Tidd’s Practice, 272; ante, p. 148, § 405.) Supp. 6. Qualifications of bail. Former rules.}—Under the old practice, each of the bail must be, , 1. A freeholder or housekeeper ; 2. Liable to the ordinary process of the courts ; 3. Able to pay the amount. And it was held that an affidavit that the bail was a house- holder was insufficient. (Anon., 1 Dow]. P. C. 127; Gadblentz’s bail, 1 Har. & Wol. 111.) And each surety was required to justify in double the amount named in the writ. (Louis v. Mitchell, 2 Hill, 379.) But both these rulings are superseded by the provisions of the Code. (Ante, p. 75, § 194.) Present Rules.|\—Under the Code, each surety must be, 1. A resident within the State ; 9. A freeholder or householder within the State ; 3. Worth the amount specified in the order; exclusive of property exempt from execution: but 4, The judge or justice may allow more than two bail to justify each in a less amount, but making altogether an aggre- gate security equal to double the amount named in the order. (Ante, p. 75, § 194.) Under the jirst head, it may be noticed that it was formerly a good objection to “special bail,” (for which these provisions form a substitute, 15 Barb. 26), in a local court, that they did 586 ARREST AND BAIL. Bail. Qualifications. Disqualifications. not reside within its jurisdiction. (People v. V. Y. Com. Pleas, 19 Wend. 132.) But this objection would scarcely avail now, under the express words of the Code. Under the third head,—the species of property, upon which the bail justify, is not material. (8 Petersd. Abr.106.) But it must be in his own right. (Anon., 2 Chitt. Rep. 97.) Within the jurisdiction of the court; (Graham v. Anderson, 4 Maule & Selw. 871; Boddy v. Leyland, 4 Burr. 2526; Hughes v. Stirling, 11 Price, 158; but see Levy’s bail, 1 Chitt. Rep. 285; Welsford’s bail, 1 Chitt. Rep. 286, note.) And'in the county where the defendant is arrested or where the bail reside. (Ante, p. 178, Rule 5, Supreme Court.) New sureties.|—The court has no power to require new sureties, where the present ones have become insolvent since the undertaking was made. (Dudley v. Goodrich, 7 Abb. 28.) Supp. 7. Disgualifications for bail. The common law disqualifications of bail remain unaffected by the Code. (Miles v. Clar oe Bosw. 711; Wheeler v. Wilcox, 7 Abb. 73.) The following persons are therefore absolutely disqualified from acting as bail: 1. Judges of any of the courts. (Hurl of Leicester v. Mandy, 2 Sid. 31.) But justices of the peace are not disqualified. 2. Clerks of court. (Payne v. Fry, 1 Strange, 546; and see Dutton v. Welstead, 2 Chitt. R. 77.) 8. Attorneys of any court. (Miles v. Clarke, 2 Bosw. 709; Blankman v. Hiltiker, 1 N.Y. Leg. Obs. 188; Wheeler v. Wil- cox, 7 Abb. 73; Coster v. Watson, 15 Telit, 535 5 Craig v. Scott, 1 Wend. 25 ; see 1 Doug. 467.) But attorneys long out of practice are qualified. (Rew v. Sheriff of Surrey, 2 East, 182; Bell v. Gate, 1 Taunt. 162.) 4, Attorneys’ clerks, (except for their employers ; Dixon v. Edwards, 2 Anstr. 356). (Boulogne v. Vautrin, Cowp. 828; 1 Dong. 467; Laing v. Cundall, 1 Hen. Blacks. 76; Cornish v. Loss, 2 id. 350; Stoneham v. Pink, 3 Price, 263 ; and see Fenton v. Ruggles, 1 Bos. & Pul. 356; Redit v. Broomhead, 2 id. 564.) ARREST AND BAIL. 587 Bail. Who are disqualified. 5. Attorneys’ partners, though not attorneys. (Jlutter of Yates, 1 Dow]. & Ryl. 9.) 6. Any one indemnified by an attorney, whether in writing ornot. (Capon v. Dillamore, 1 Bing. 423; 8-J.B. Moore, 516 ; Greensill v. Hopley, 1 Bos. & Pul. 103.) Or perhaps, even expecting to be so indemnified. (Anon., 1 Dowl. P. C. 1.) 7. Any officer of any court. (Graham's Pr. [8d ed.] 574; and see Hawkins v. Magnall, 2 Doug. 466-7.) 8. Sheriffs or their officers. (Bazley v. Warden, 20 Johns. 129; Bolland v. Pritchard, 2 Wm. Blacks. 799; Doldern v. Feast, 2 Strange, 890.) : 9. Jailers, turnkeys, ete. (Daly v. Brooshoft, 2 Br. & B. 359; 5 Moore, 72; but see Mauikner v. Wise, 2 Bos. & Pul. 150.) 10. Persons indemnified by sheriff or officers. (1 Chzt. Archb. [7th ed.] 601; but see 1 Chitt. Rep. 714, note.) 11. Persons once rejected as bail. (8 Petersdorff’s Abr. 103; Sneil’s bail, 1 Chitt. Rep. 82; Monk's bail, id. 676; Pickard v. Dobson, 3 Dow]. & Ryl. 5; Laporte’s bail, 3 Dowl. P. C. 110, Te when such rejection arose from their being indemni- fied by an attorney, etc. ( v. Hallett, 1 Dow). & Ry1. 488.) 12. Persons of infamous character, where such infamy would disqualify them as witnesses. (tex v. Edwards, 4 T. R. 440.) But it is no objection that the bail is a gambling-house keeper. (1 Dowl. P. C. 160.) Ora brothel keeper. (3 Dowl. P. C. 820.) The court will look to sufficiency of property rather than to character. (3 Dowl. P. C. 320.) 13. Insolvent debtors. (Curtis v. Smith, 1 Chitt. Rep. 116; Smith v. Roberts, id. 9.) 14. Persons liable upon outstanding dishonored bills. (Anon., 1 Dowl. P. C. 183; Barnesdall v. Stretton, 2 Chitt. Rep. 79.) 15. Persons who have compromised their debts, but are again in debt. (8 Petersd. Abr. 111.) 16. Persons who profess ability, but unwillingness to pay their debts. (8 Petersd. Abr. 112.) 588 : ARREST AND BAIL. Bail. Disqualifications, Justification. 17. Persons who have asked time to settle a small demand. (Lbid.) 18. Persons in arrears for taxes. (Lewzs v. Thompson, 1 Chitt. Rep. 309.) But time was granted to pay them, where it appeared that the collector had acquiesced in delay. (Spurdens v. Mahoney, 1 Chitt. Rep. 809, note.) 19. A son who allowed his father to receive relief from the county. (Holm v. Booth, 2 Chitt. Rep. 78.) 20. A father who suffered his children to live in the work- house. (Anon., 2 Chitt. Rep. 77.) 21. Persons whose statements are unsatisfactory will be re- jected, as where “one did not know” whether he had been arrested within two years. (Mewman’s bail, 2 Chitt. Rep. 95.) Or “did not know ” in how many actions he had been bail. (Lofft, 72.) Or for what amount. (Lofft, 194.) Or whether or not he had been bail since his failure. (Ben- neti’s bail, 1 Chitt. Rep. 289.) Supp. 8. Justification of bail. “For the purpose of justification, each of the bail shall attend before the judge, or a justice of the peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or justice of the peace, in his dis- cretion, may think proper.” (Ante, p. 75, § 195.) “ The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff.” (Z6zd.) “Whenever bail are required to justify, they shall justify within the county where the defendant shall have been ar- rested, or where the bail resides.” (Ante, p. 178, Rule 5, Supreme Court, 1858.) “Tf the judge or justice of the peace find the bail sufficient, he shall 1, Annex the examination to the undertaking, 2. Indorse his allowance thereon, and 8. Cause them to be filed with the clerk ; And the sheriff shall thereupon be exonerated from liability.” (Ante, p. 76, § 196.) ARREST AND BAIL. 589 Bail. Proceedings on undertaking. Actions against bail. The allowance of bail has been set aside on motion, when obtained through gross fraud on the part of the bail, and wth knowledge in the defendant, or his attorney. (1 Chitt. Rep. 872; Gould v. Berry, id. 143; but see Stockham v. French, 1 Bing. 365 ; Englefield v. Stephens, 2 Dowl. P. C. 488.) But not when such fraud was committed without knowledge of the defendant or attorney. (Shee v. Abbott, 5 J. B. Moore, 321; 2 Br. & B. 619; A’ Becket v. , 5 Taunt. 776; and cases supra.) Rejection of one of the bail was usually a rejection of all, under the former practice, unless time was given. (Lewis v. Gadderer, 5 Barn. & Ald. 704.) Appeal.\—Provision was formerly made for appeal against allowance of bail (see Rule 12 of Supreme Court, 1846), but there seems to be none now. Art. 19.—Proceedings upon the Bail Bond. Susp. 1. Proceedings against bail. 2. Surrender of the defendant. 3. Exoneration of bail. Supp. 1. Proceedings against bail. “In case of failure to comply with the undertaking, the bail may be proceeded against by action only.” (Ante, p. 74, § 190.) Before commencing the action, the plaintiff should of course obtain an assignment of the bond from the sheriff, which should be indorsed on the bond, and may be in the following terms: § 107. Assignment of Bail-bond. I, [John Kelly], sheriff of the [city and] county of [New York] hereby assign the within undertaking of bail to [John Doe], the plaintiff within named, at his request, according to the statute. 590 ARREST AND BAIL. Proceedings on the undertaking. , Surrender. In witness whereof, I have hereunto set my hand and seal, Shi s 2 4. DAY OF So 4a , one thousand eight hundred and sixty . . d : Joan Ketiy, Sheriff. Sealed and delivered in the presence of E. F. Defences in such actton.]}—In an action on an undertaking of bail, the sureties cannot dispute the liability of their principal to arrest. (Gregory v. Levy, 12 Barb. 610; 7 How. 37; see Haggart v. Morgan, 5 N. Y. [1 Seld.] 428.) Susp. 2. Surrender of defendant, “ At any time before a failure to comply with the undertak- ing, the bail may surrender the defendant in their exoneratiun, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner: (1.) A certified copy of the undertaking of the bail shall be de- livered to the sheriff, who shall detain the defendant in his cus- tody thereon, as upon an order of arrest, and shall, by a certifi- cate in writing, acknowledge the surrender ; (2.) Upon the production of a copy of the undertaking and sherifi’s certificate, a judge of the court, or county judge, may, upon a notice to the plaintiff of eight days, with a copy of the certificate, order that the bail be exonerated ; and on filing the order and the papers used on said application, they shall be exonerated accordingly.” (Ante, p. 74, § 188.) “But this section shall not apply to an arrest for cause men- tioned in subdivision 8 of section 179, so as to discharge the bail from an undertaking given to the effect provided by sec- tion 211.” (Jdid.) This is a saving clause, by which persons arrested for concealing property from the sheriff, in an action for chattels, are not allowed to release their bail in any way except by payment of the claim. Bail who have not justified may surrender the defendant, They are liable to the sheriff on their bond. (Re Taylor, 7 How. 214.) ARREST AND BAIL. 591 4 Proceedings on the undertaking. Exoneration of bail. How bail may arrest defendant.|—“ For the purpose of sur- rendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, indorsed, on a certified copy of the undertak- ing, may empower any person of suitable age and discretion to doso. (Ante, p. 74, § 189.) Jt seems, that any one of the bail may surrender the defend- ant, and give authority for his arrest. (Per Humphrey, county judge, fe Taylor, 7 How. 214.) Susp. 3. Exoneration of bail. The bail may be exonerated by— (1.) The death of the defendant, or (2.) His imprisonment in a state prison, or (3.) His legal discharge from the obligation to render him- self amenable to the process, or (4.) His surrender to the sheriff of the county where he was arrested, in execution thereof, (i.) Within twenty days after the commencement of the action against the bail, or (ii.) Within such further time as may be granted by the court. (Ante, p. 75, § 191.) Exctension of time.|—The court has power to grant an exten- sion, by an order made after the twenty days have expired, as well as before. (Gilbert v. Bulkley, 1 Duer, 668.) Where an action is brought in the Supreme Court, upon an undertaking of bail given in another court, either court can grant an extension of time for surrender of the principal. (Sem- ble, Barker v. Fussell, 11 Barb. 308.) Proceedings on motion to exonerate bail.|—When the bail ‘seek exoneration on the ground of a surrender, they should obtain a certificate from the sheriff to the following effect : § 108. Acknowledgment of Surrender. I, [John Kelly], sheriff of the [city and] county of [New 592 ARREST AND BAIL. f Proceedings on the undertaking. Exoneration of bail. York], hereby acknowledge the surrender of [Richard Roe] the principal mentioned in the [within] undertaking, [or ¢f not indorsed on the undertaking, refer to it so as to identify a,] by A.B. and C. D., his sureties; to me made this... . day Of nd 5 18 6 Joun Ketry. If the exoneration be sought upon the ground of the defend- ant’s death, an affidavit of that fact should be made; if on either of the other grounds specified in section 191, a certified copy of the record should be procured. Such certificate, affidavit, etc., should be served on the plaintiif’s attorney, with the following notice of motion: § 109. Notice of Motion to exonerate Baal. {Title of Cause.] Take notice, that on the (certificate, or affidavit,] with a copy of which you are herewith served, I shall move before the Hons bee see Ss , [one of the justices of this court, or county judge of the county of ....... »Jonthe..... day of ....... next, at... . o'clock, in the forenoon, at [chambers in the City Hall] in the [city of New York,] to exonerate A. B. and C. D., the bail of the defendant in this action, from all further liability upon the undertaking of bail heretofore entered into by them, or for such other relief as may be just. o A. R. Dyert, Defendant’s Attorney. To W. R. Srarrorp, Esq., Plaintiff’s Attorney. ARREST AND BAIL. 593 T Exoneration of bail. Deposit with sheriff. § 110. _ Order Exonerating Bail. [Title of Cause.) On reading and filing the certificate of the sheriff of the [city and] county of [New York] showing that the defendant {Richard Roe] has been surrendered by his bail according to law, [or, on the affidavit hereto annexed, showing that the de- fendant Richard Roe is dead, etc. e¢c.], and also on a copy of the undertaking of bail given by A. B. and C. D., for the ap- pearance of said defendant under an order of arrest granted by [me] on the ....dayof....... 5 LS sy Orvrerrp: That the said A. B. and C. D. be wholly ex- onerated from all liability on account of the said undertaking. W. H. Lrowarn. - This order, with the papers used on the motion should be immediately filed with the @lerk of the court in which the action was brought. (Ante, p. 74, § 188.) Art. 20.—Deposit with the Sheriff. “The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order.” (Ante, p. 76, § 197.) “ The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged oat of custody.” (Lb¢d.) “The sheriff shall, within four days after the deposit, pay the same into court.” (Ante, p. 76, § 198.) * He “shall take from the officer receiving the same, two cer- tificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant.” (Anite, p. 76, 8 198.) 3 “ For any default in making such payment, the same pro- ceedings may be had on the official bond of the sheriff to col- lect the sum deposited as in other cases of delinquency.” (Ante, p. 16, § 198.) 38 594 ARREST AND BAIL. Deposit with sheriff. Substituting bail. Discharge by sheriff. Substituting bail for deposit.|— If money be deposited, as provided in the last two sections, bail may be given and justi- tied upon notice as prescribed in § 193, any time before judg- ment.” (Ante, p. 76, § 199.) ‘And thereupon the judge before whom the justification is had, shall direct in the order of allowance, that the money deposited be refunded by the sheriff to the defendant, and it shall be refunded accordingly.” (Ante, p. 76, § 199.) A defendant who was arrested, borrowed $500 of M., for the purpose of making a deposit with the sheriff. Subsequently he obtained bail, and the judge made the usual order for refunding, as above. Before the bail justified, however, the plaintiff had brought a second action, and obtained an attachment order from another judge, and attached the $500 in the hands of the clerk. M. sought to obtain the money as being his property, but the motion was denied, it being Aeld, that money loaned was the property of the borrower, and as such, liable in this case to attachment. (Salter v. Weiner, 6 Abb. 191.) This decision was reversed at general term, bas the grounds of the reversal were not stated. Where a person arrested while privileged from arrest, paid money into court to obtain his discharge, he was Aedd entitled, upon application to the court, to have the money restored to him absolutely. (Pitt v. Coombs, 4 Nev. & Man. 535.) Final disposal of deposit.|—‘‘ Where money shall have been so deposited, if it remain on deposit at the time of an order or judgment for the payment of money to the plaintiff, the clerk shall, under the direction of the court, apply the same in satis- faction thereof.” (Ante, p. 76, § 200.) . “After satisfying the judgment” he “shall refund the sur- plus, if any to the defendant.” (Zbzd.) “Ifthe judgment be in favor of the defendant, the clerk shall refund to him the whole sum deposited, and remaining unapplied.” (Ante, p. 76, § 200.) Art. 21.—Discharge by the Sheriff. The sheriff is bound tu discharge the defendant, upon receiving a written discharge from the plaintiff, or his attorney. ae ARREST AND BAIL. 595 Discharge by sheriff. Escape. (Gorham v. Gale, 7 Cow. 739 ; Martin v. Francis, 2 Barn. & Ald. 402; Zaylor v. Brander, 1 Esp. Rep. 45.) And if the plaintiff instruct a discharge, the sheriff cannot detain the defendant under a counter order from the attorney. (Martin v. Francis, 2 Barn. & Ald. 402.) The sheriff may discharge the defendant on his own respon- sibility, and will then be liable himself as bail. But it isa misdemeanor for him to take any reward for so doing. (3 &. &. (5th ed.) 736 ; [2 id. 437.]) Whether a deliberate, willful discharge might not be treated as contempt of court, query? (See Webbers v. Blunt, 19 Wend. 190.) If he do so discharge such defendant, he cannot recover from the latter anything paid by him on account of such liability. (Pitcher v. Bailey, 8 East, 171.) And a bond or security taken from the defendant, or any one on his behalf, to indemnity the sheriff for a discharge, is abso- lutely void. (Webbers v. Blunt, 19 Wend. 188; Dive v. Man- ingham, 1 Plowd. 62; see 8 &. S. (5th ed.) 476; [2 cd. 286.]}) Art. 22.—Escape. 4 An escape is either, 1. Negligent, or, 2. Voluntary. An escape is negligent, when it is made without the know- ledge or assent of the officer having custody of the person. It is voluntary, when the officer assents to it. (Lockwood v. Mercereau, 6 Abb. 208.) It seems, that an escape made while enjoying any liberty by permission of the sheriff, not authorized by law, is a voluntary escape. (Colby v. Sampson, 5 Mass. 312.) In this State, any prisoner on civil process may be suffered to go at large within the jail liberties, even without the bond usually required, (as to which see post, p. 605,) and if he escape from such limits, such escape will be “ neglagent” only. (Lockwood v. Mercereau, 6 Abb. 209; 3 B.S. (5th ed.) 734; [2 zd. 434.]) Taking the prisoner through another county, not lying on the 596 ARREST AND BAIL. Escape. Rescue. Recapture. i direct route, does not constitute a voluntary escape. (3 2. S. (5th ed.) 724; [2 ed. 4273] Boyton’s case, 8 Co. Rep. 44.) The importance of the distinction between negligent and voluntary escapes will be seen in treating the subject of Recap- ture, infra.. Arr. 23.—Rescue. At common law, if the defendant was rescued before he was actually imprisoned, the sheriff was not bound to call out the posse comitatus, and therefore was not liable to the plaintiff. (Comyn’s Dig. “ Rescous ;” and see Rew v. Sheriff of Mid’x, 1 Barn. & Ald. 190.) But the sheriff having now full power in such case, this rule is abrogated, and he is liable in all cases of rescue. (See ante, p. 16, § 201; 1 B.S. (5th ed.) 750; Laws 1845, ch. 69.) Rescue is punishable as a contempt of court. (8 2. S. (5th ed.) 850; [2 4d. 535.]) The offender is also liable to indictment. (Zbid., 470; [2 id. 278.]) . ' Art. 24.—Recapture. After negligent escape.]—The sheriff may retake the prisoner at any time, even on Sunday. (Anon., 6 Modern, 231; Parker v. Moore, id. 95; Jones v. Pope, 1 Saund. 35.) The sheriff may pursue and take him in any other county. (Rigeway’s case, 3 Co. Rep. 52.) Or in another State, if the government of that State does not object. (Lockwood v. Mer- cereau, 6 Abb. 210; see Wichols v. Ingersoll, 7 Johns. 145.) After voluntary escape.|—The sheriff may recapture the defendant, after a voluntary escape from an arrest on mesne process (provisional remedy), at any time before the return-day of the order of arrest. (Per Cowen, J., Clark v. Cleveland, 6 Hill, 349; Arnold’ v. Steeves, 10 Wend. 514; Atkinson v. ‘Matteson, 2 T. R. 172.) But not after judgment. (Leather- stonehaugh v. Atkinson, Barnes, 373.) The rules as to arrest under execution are more strict. ARREST AND RAIL. 597 Vacating arrest, or reducing bail. Arr. 25.— Vacating Arrest, or Reducing Bail. “ A defendant arrested may, at any time before judgment, apply on motion to vacate the order of arrest, or to reduce the amount of bail.” (Ante, p. 77, § 204.) This motion may be made ew parte, and at chambers, before the judge who granted the order. (Cayuga Bank v. Warfield, 13 How. 439; and see ante, p. 118, § 324.) If made before any other judge, it must be on notice, and not at chambers. (Zd¢d.) The notice in such case must be of at least eight days (Ante, pp. 148, 146, 8$ 402, 413.) A defendant, by giving bail, does not thereby waive his right to object to the legality of the arrest. (Cady v. Edmonds, 12 How. 197; Columbus Ins. Co. v. Force, 8 id. 354.) It seems, that obtaining further time to answer is not such a waiver. (Columbus Ins. Co. v. Force, 8 How. 354.) But relief may ‘be denied on the ground of laches. (did) Making a deposit to obtain release is not such a waiver. (Pitt v. Coombs, 4 Nev. & Man. 535. See contra, however, Stewart v. Howard, 15 Barb. 26.) Under the Code of 1852, which allowed motions to vacate the order of arrest only before justification of bail, it was held, that by putting in and perfecting bail, the defendant waives all technical defects in the affidavit on which the order of arrest was founded. (Stewart v. Howard, 15 Barb. 26.) Referring to § 204 of the Code, as it then stood, (Sept. 1857,) the Supreme Court, Ist dist., say, per Cierxe, J..—‘ This sec- tion declares in effect, that if” the defendant “justifies, he waives the right” to move for a discharge from arrest. (Dade v. Radcliff, 25 Barb. 333; 15 How. 73.) It seems a fair inference from this language that, the legisla- ture having now given the defendant the right to move “at any time before judgment,”—the putting in and perfecting of bail does not waive privilege, defects etc., else of what use is the privilege of motion? (And see Columbus Ins. Co. v. Force, 8 How. 354; Pitt v. Coombs, 4 Nev. & Man. 535.) If the action is one in which the defendant cannot be arrested, and he has given bail; his proper remedy is to move to vacate 598 ARREST AND BAIL. Vacating arrest. ' Affidavits. Grounds of motion. the order of arrest, and not for an exoneration and discharge of his bail. (Holbrook v. Homer, 6 How. 86.) I Affidavits upon’ motion.J—“ If the motion be made upon affidavits on the part of the defendant—bdut not otherwise—the plaintiff may oppose the same by affidavits, or other proofs, in addition to those on which the arrest was made.” (Ante, p. 77, § 205.) This section, of course, implies that the motion may be made simply on the plaintift’s own showing in his original affidavit. (Baker v. Swackhamer, 5 How. 253.) When the motion is made without any affidavits on the part of the defence, the plaintiff’s affidavit is to be taken as true. (Hathorn v. Hall, 4 Abb. 227.) But it is to be strictly con- strued against him. (Ldzd.) If the notice of motion does not refer to affidavits, no new ones can be used on either side. (Adams v. Mills, 3 How. 219.) What should be contained in the affidavits.|—Where the plaintiff’s affidavit swears positively that the amount sought to be recovered is due from the defendant, and that it was re- ceived by him in a fiduciary capacity (or otherwise falls under § 179 of the Code), the court will not hear counter-aflidavits, nor go into the merits of the case. (Coope v. Wells, 6 Abb. 540; Geller v. Seixas, 4 Abb. 104; approving Jordan v. Jordan, 6 Wend. 524; Welch v. Hill, 2 Johns. 100; see also, Anon.,6 Abb. 319 n.; Frost v. I? Carger, 14 How. 181; Cope- land v. Childs, 17 Jur. 506; 18 Eng. L. & E. 375; Wolle v. Prescott, 4 E. D. Smith, 141.) . The whole current of decisions before the Code is certainly as above. But it has been Aeld that, under § 204 and § 205 of the Code, the court should look at the affidavits on both sides, and act upon them as if they appeared on an original motion. If the court would have granted the order of arrest originally with all the affidavits before it—the motion to vacate should be denied, and vice versd. (Chapin v. Seeley, 138 How. 493; ap- proved in Union Bank v. Mott, 6 Abb. 318; and see Lepublic ARREST AND BAIL. 599 Vacating arrest. ; Grounds of motion. of Mexico v. Arrangois, 11 How. 10; 8. C. affirmed, 5 Duer, 634; Hernandez v. Carnobeli, 10 How. 449; 4 Duer, 644; Cady v. Edmonds, 12 id. 197; Barron v. Sanford, 6 Abb. 320 n.; 14 How. 448; Falconer v. Elias, 3 Sand. 731; 1 Code Rep. N. 8. 155.) The Code now permits a partial trial of the cause upon a motion to discharge from arrest. (/Zernandez v. Carnobelt, 10 How. 449; 4 Dner, 644; citing Corwin v. Freeland, 2 Seld. 565; Chapin v. Seeley, and other cases supra; see contra, Frost v. M Carger, 14 How. 187; Coope v. Wells, and other cases supra.) When the cause of arrest is wholly independent of the cause of action, the defendant may contest the truth of the statements upon which his arrest was ordered. (Geller v. Seixas, 4 Abb. 104; Wilmerding v. Morris, 8 How. 2138; Frost v. M Carger, 14 How. 189; Cheney v. Garbutt, 5 id. 469.) On this point all the cases agree. It is further conceded that the affidavits on the part of the defendant may contain allegations relating to the cause of action. (Frost v. If’ Carger, 14 How. 142.) It has been edd, that the burden of proof lay on the plaintiff, and that if he did not make out a satisfactory case, the defen- dant should be discharged. (Republic of Mewico v. Arrangois, 11 How. 10; Hernandez v. Carnobeli, 10 id. 449; 4 Duer, 644; Barron v. Sanford, 6 Abb. 320, n.) But Horrmay, J., in deciding the first two cases above, says, that “some able judges” have inclined to hold that the defen- dant must show clearly that the plaintiff cannot succeed. (See 11 How. 10; 10 id. 449.) And Marvin, J., says, that where the causes of action and of arrest are identical, the court ought not to vacate the order, except where “there is a very decided preponderance of evidence in favor of the defendant.” (Frost v. MW? Carger, 14 How. 142; and see Anon., 6 Abb. 319, n.; Republic of Mesico v. De Arangoiz, 5 Duer, 634.) Perhaps the best rule is that laid down by the Superior Court of N. Y., in full bench, per Durr, J.: I. (1.) When an order of arrest is founded upon extrinsic facts, wholly wnconnected with the right of the 600 ARREST AND BAIL. 9 Vacating arrest, Grounds of motion. Disproving sheriff's return. plaintiff to maintain the action, the burden of proof rests upon the plaintiff. (2.) If these facts are positively denied, and upon the whole evidence remain in doubt, the defendant is entitled to his discharge. (3.) The court should determine the question precisely as it ought to be determined if submitted to a jury. II. (1.) But when the facts relied on, in support of a motion to vacate the order, constitute a defence to the action, and would, if proved, bar a recovery—the burden of proof is on the defendant. (2.) If the defendant tail to satisfy the court that such defence will certainly be established on the trial, his application for discharge ought to be denied, because, (8.) The court has no right to say, upon doubtful evidence, that the plaintiff cannot recover in the action. (Republic of Mexico v. De Arangoiz, 5 Duer, 684, 641-2.) And where the affidavits are conflicting, the court will some- times order a reference to take testimony. (Barron v. Sanford, 6 Abb. 8207.) This is a very common practice in the Ist Dist. (But see Stelle v. Palmer, T Abb. 182.) Mere denials of the plaintiff’s charges will not have much weight, particularly if the plaintiff reiterates his statements on affidavit. (Anon., 6 Abb. 319, n.; Bedell v. Sturta ; Chit- tenden v. Hubbell ; ibid.) Sheriff?s return.|}—When a defendant has been arrested under subd. 3 of § 179 of the Code, upon a sheriff’s return, he may controvert it in his affidavits. (Manley v. Paterson, 3 Code Rep. 89.) The fact, and not the sheriffs return, is made by the Code the basis of arrest, and the defendant may show that he acted legally and properly; and if so, the court will vacate the order. (Zbid.) This decision is strongly supported by the clause relating to intent, etc., inserted in subd. 8, § 179, since it wasrendered. The sheriff cannot possibly make a conclusive return on the qnestion of the defendant’s éntentions. ARREST AND BAIL. 601 Vacating arrest. Non-residents. Motion without affidavits. Absconding debtor.]|—Where the defendant who was charged with obtaining money on a forged bill, and also with intent to leave the country, denied the latter allegation only, his motion for discharge was denied. (Moss v. Afontefiore, 1 Hurl & Nor. 722. Compare Glenton v. Clover, 10 Abb. 422; but see Cope- land v. Child, 17 Jur. 506; 22 L. J. [a. B.] 279.) Non-residents.|—When a non-resident avails himself of the jurisdiction of the court to prosecute another non-resident, and seeks to arrest him under circumstances that indicate a desire to annoy and inconvenience the defendant, the court will ex- amine the case with more strictness, if not severity, than it would use if these suspicious circumstances did not exist. (yer v. Ayres, 2 E. D, Smith, 211.) Enticing within jurisdiction.]|—A defendant will be dis- charged from arrest when it appears that the arrest was effected by enticing him within the bailiwick of the sheriff having pro- cess, by means of false representations. (Goupil v. Simonson, 3 Abb. 474; and see Carpenter v. Spooner, 2 Sand. 717; Stein v. Vaikenhuysen, 1 Ellis, B. & EIl. 65.) Proceedings in another State.}—An order of arrest will not be vacated because au attachment has been obtained in an- other State, upon the same cause-of action, and a small amount of property attached. (Lithawer v. Turner, 1 Code Rep. . 8. 210.) Motion without afidavits.|—If the order is clearly bad in form, or granted by a judge without jurisdiction, or upon affidavits which are plainly insufficient, it may be advisable to move without affidavits on the part of the defence. In such case, the plaintiff’s affidavits. are taken as true, but will be strictly construed against him. (Hathorn vy. Hail, 4 Abb. 227.) Although the plaintiff’s affidavits were based upon informa- tion and belief, yet they may be regarded as true, if not denied. (Union Bank v. Mott, 9 Abb. 108; 8 id. 150.) Motions upon trregularity.|—The following objections on the ground of irregularity have been overruled : 602 ARREST AND BAIL. Vacating arrest. For irregularity. Reducing bail. That the summons was irregular in form when the order was granted, and amended afterward. (Union Bank v. Mott, 6 Abb. 315.) That the summons was irregularly entitled, held waived by defendant’s answering. (Bedell v. Sturta, 1 Bosw. 634; 6 Abb. 319, 2.) That the plaintiff's affidavits made out a different case from the complaint. (Stelle v. Palmer, 7 Abb. 181.) But an arrest was vacated where the plaintiff united in his complaint a cause of action for which the defendant could not be arrested, with one for which he could be. (Lambert v. Snow, 9 Abb. 92.) Conditions upon vacating arrest.|—In several cases, the court upon vacating an order of arrest, has required of the defendant a stipwlation that he will not sue for false imprison- ment. (Alden v. Sarson, 4 Abb. 102; Northern R. R. of France v. Charpentier, id. 47; Merchants Bank v. Dwight, 13 How. 871; Squire v. Flynn, 8 Barb. 170.) Lt seems, that this condition can only be required where the court has a discretion as to granting the order. In such cases it is certainly valid. (Decker v. Judson, 16 N. Y. 446.) Reducing bail.|—The N. Y. Court of Common Pleas refused to consider “some evidence in the papers of the defendants, cal- culated to reduce the amount of their indebtedness. The amount is sworn to by the plaintiffs. It is not usual to try the merits on these motions.” (Vodle v. Prescott, + E. D. Smith, 141.) But Horrman, J., in the New York Superior Court, opened the whole question of the amount of indebtedness upon motion to reduce amount of bail, and conformed the latter to his views of the former. His decision was affirmed, “ with much hesitation and doubt,” by the general term, the bail in that case still amounting to $30,000. , (Rep. of DMemico v. Arangoiz, 11 How. 1; 8. C., 5 Duer, 643.) A second motion to reduce bail should not be granted unless new facts are shown. (Union Bank v. Mott, 6 Abb. 825.) ARREST AND BAIL. 603 Vacating arrest. Order. Appeal. § 111. Notice of Motion to vacate Order of Arrest. [Title of Cause.) Puease Take notice, that on [the annexed affidavits, and on] all the pleadings and proceedings in this BOHOD I shall move, at a special term of this court, to be held at the.-...... , in the se 6 008 eee , onthe....dayof..... 5 lB a iy at... . o'clock in the forenoon, to Syente the order of arrest granted in this action; [and to exonerate the defendant’s bail.] Yours, etc., Caartrs M. Jrnxivs, To A. J. Corvin, Esq., Defendant's Attorney. Plaintiff’s Attorney. § 112. Order vacating Arrest. [ Tutle of Cause.] [ Caption. ] On reading and filing notice of motion [and affidavits of A. B. and C. D.], and on the pleadings and proceedings in this action, on motion of C. M. Jenkins, counsel for defendant, after hearing A. J. Colvin, counsel for plaintiff : Orprerep: That the order of arrest granted by ....... ’ on the... .day of..... , 18. ., against the defendant [naming him, of there are seuarel defendants and an order has not issued against all), be vacated; [and that the bail hereto- fore given for the defendant be axomurated from liability.] E. F., Clerk. C. M. Jenxins, Attorney. Appeal from decision upon motion to vacate.|—An appeal from the decision upon this motion will lie to the general term. (Ante, p. 126, § 349.) But not to the Court of Appeals. (Court or Aprrats, Genin v. Tompkins, Code Rep. N. 8. £15.) An appeal will lie to general term from an order denying a 604 ARREST AND BAIL. ‘Liabilities of the sheriff. ° Jail liberties. motion for an econeratur upon an undertaking of bail. (Colwm- bus Ins. Co. v. Force, 8 How. 353.) Art. 26.—Liabilities of the Sheriff. It, after arrest, the defendant escapes or is rescued, or bail is not given or justified, nor a deposit made, the sheriff is himself liable as bail. (Ante, p. 76, § 201.) Although bail is given, yet if the sureties do not justify, the sheriff remains liable. (Metcalf v. Stryker, 10 Abb. 12; Buck- man v. Carnley, 9 How. 180.) The sheriff has all the rights, as well as liabilities, of bail. (Seaver v. Genner, 10 Abb. 256; Sartas v. Maruques, 9 How. 188.) He is liable for the whole amount of the debt, and cannot reduce his liability by showing the debtor’s insolvency. (Jet- calf v. Stryker, 10 Abb. 12; but see Daguerre v. Orser, ibid.) How the sheriff may secure himself.|\—e may, 1. Discharge himself by giving and justifying bail, as here- tofore provided and described, at any time before final process upon an order or judgment in the action; (Ante, p. 76, § 201; and see Buckman v. Carnley, 9 How. 180.) 2. Imprison the defendant ; . 3. Take a bond for the jail liberties, He cannot secure himself in any other way than as above. Any bond, obligation or security given for the purpose of indemnifying him, other than regular bail, or bail for the liber- ties, is void. (Webbers v. Blunt, 19 Wend. 188.) Arr. 27.—Jail Liberties. ‘“¢ Every person who shall be in the custody of the sheriff of any county, by virtue, 1. Of any capias ad respondendum ;” (order of arrest ;) * or 2. Of any execution in a civil action; or 8. Of any attachment for non-payment of costs in a civil action ; or, 4. In consequence of a surrender in exoneration of his bail; Shall be entitled to be admitted to the liberties of the jail ARREST AND BAIL. 605 Jail liberties. Bond for jail liberties. which shall have been established in such county according to law, upon executing a bond to such sheriff and his assigns,” as follows: (8 &.S. (5th ed.) 733, [2 2d. 434.]) The Supreme Court has not power to order a sheriff to take bail for the jail liberties; (Sartas v. Marugues, 9 How. 1885) nor to pass upon the sufficiency of such bail. (Zdzd.) The bond must be executed by the defendant, with one or ° more sufficient sureties, inhabitants and householders of the county, in a penalty of not less than double the sam named in the order or in the execution. (38 2. S. (5th ed.) 733; [2 2d. 434 ;] § 62.) The bond shall be conditioned that the party shall remain a true and faithful prisoner, and shall not under any circumstances go without the limits of the jail liberties, until discharged by due course of law. (Lbid., § 63.) Every such bond shall be valid, and held for the indemnity of the sheriff, and of the party at whose suit the prisoner shall be confined. (Zdzd., § 64.) If the sheriff shall find that any surety to such bond is insufli- cient, he may commit the prisoner to close confinement, until other good and sufficient sureties be offered. (lbed., § 65.) § 113. Bond for the Jail Liberties. Know ALL MEN BY THESE PRESENTS, that we [Richard Roe], A.B. of ..... ,and ©. D. of ..... , are held and firmly bound unto (John Kelly), sheriff of the [city and] county of [New York], in the sumof..... dollars, to be paid to the said [John Kelly], his executors, administrators, or assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these pre- sents. Sealed with our seals, and dated the... . day of sgl one thousand eight hundred and sixty . . Wuereas, the above bounden [Richard Roe] is now in eus- tody of the above named sheriff by virtue of an order of arrest, granted by the Hon...... [a justice of the Supreme Court] 606 ARREST AND BAIL. Jail liberties. Bond. Escape. Surrender. at the complaint of [John Doe] for the sum of . . . . dollars, on the... . ay ol ys 4 «wx last: Now rarrerorg, the condition of this obligation is such, that if the above bounden [Richard Roe] shall remain a true and faithful prisoner in custody as aforesaid; and shall not, at any time nor in any manner, escape or go without the limits and boundaries of the liberties established for the jail of the [city and county of New York], until discharged by due course of law, then this obligation to be void; otherwise to remain in full force and virtue. Sealed and delivered Ricuarp Ror, [1.s.] in the presence of A.B. [z.8.] E. F. C.D. [x.s.] Escape.|—The going at large of any prisoner who shall have executed such bond, or of any prisoner who would be entitled to the liberties of any jail upon executing such bond, within the jail liberties of the county where he is in custody, shall not be deemed an escape. (3 &. S. (5th ed.) 734; [2 id. 434.]) - But in case any such prisoner shall go at large without the liberties of such county, without the assent of the party at whose suit he is in custody, it shall be deemed an escape, and a forfeiture of the bond. (Zdid.) And the sheriff in charge shall have the same authority to pursue and retake such prisoner as if he had escaped from jail. (Ibid.) Surrender.|—The sureties in any such bond may surrender their principal at any time before judgment rendered against them on such bond. (3 &. S. (5th ed.) 733 ; [2 id. 434,] § 66.) But they are not thereby exonerated from any liability in- curred before such surrender. (Jd¢d.) Surrender, how made.|—The bail may take their principal to the keeper of the jail, and upon the written requirement of such bail, the keeper shall take the principal into custody. (Lbid., § 67.) : ARREST AND BAIL. 607 Jail liberties. Surrender. The keeper shall indorse upon the bond an acknowledgment of such surrender. (ld. p. 734, [484], § 67.) He shall also, if required, give the bail a certificate acknow- ledging said surrender. (Ld7d.) If the keeper refuse to take the defendant into custody, when properly required to do so, the bail are discharged. (Badd v. Oakley, 5 Cal. 93.) § 114. Requirement by Bail on bond for the limits, that Principal be taken into custody. To J. L., keeper of the jail in and for the [city and] county of [New York]: We, A. B. andC. D., sureties in a certain bail-bond exe- cuted by us, together with [Richard Roe], of... .. to [John Kelly], Esquire, sheriff of the [city and] county of [New York], bearing date the. ...dayof...... last, for the purpose of obtaining for said [Richard Roe], then in custody of said sheriff, jail liberties of said [city and] county, hereby require you to take the said [Richard Roe] into your custody, and to indorse upon the said bond an acknowledgement of the sur- render of our said principal. And we also require you to give us a certificate acknowledging such surrender. [Date.] A. B. ©. D. § 116. Certificate of Surrender. I, J. L., keeper of the jail in the [city and] county of [New York.] hereby certify, that A. B. and ©. D. of [said county,] sureties in a certain bail-bond, executed by them with [Richard Roe], onthe. ...dayof..... last, to [John Kelly] sheriff _of the [city and] county of [New York], for the purpose of ob- taining for said [Richard Roe] the jail liberties of said [city and] county, have this day surrendered said [Richard Roe] into my custody, in exoneration of themselves as sureties in said bond. 608: ARREST AND BAIL. Jail liberties, Lunatic prisoners. And I further cer tify, that an acknowledgment of the surren- der aforesaid, has been by me duly indorsed on said bond, ac- cording to iis statute. ; [Date.] J. L. Art. 28.—Lunatic Defendant. t If any person held under civil process become insane, the county judge of the county within which he is confined, may discharge him from imprisonment, and order him to be sent to the State Lunatic Asylum. (Laws 1842, p. 149, ch. 185.) Notice of such proceeding must be given to the plaintiff or his attorney, if within the State. (Ld¢d.) The plaintiff may renew the arrest, on the defendant’s return to sound mind. (Jdid.) There is no other authority for discharging a lunatic prisoner, than this, and therefore no judge can order such a discharge, without adso ordering the prisoner to be removed to the Asy- lum. (Bush v. Pettibone, 4 N. Y. [4 Coms.] 800; Code Rep. N. 8. 264.) A general discharge, on the ground of lunacy, is ae void, and if the defect appears on the face of the order, the sheriff must not obey it. (Lush v. Pettibone, supra.) NE EXEAT. 609 Existence and nature of the proceeding. Cuarter XX VII. NE EXEAT. ArricLe 1. Nature of the proceeding. 2. Nature of demands on which it may issue. . In what cases. . In whose favor. . Against whom. . By whom granted. . At what stage of the action. . Notice of application. . Papers used on application. 10. The writ or order. 11. Execution of the writ. 12. Discharge upon security. 13. Discharge for cause. Oo OTH oH fo Arr. 1.—Wature of the Proceeding. It was undoubtedly the intention of the authors of the Code to dispense entirely with the writ of ne exeat. And the language of § 178 of the Code may very reasonably cause great doubt as to the continued existence of this remedy. In a note to this section, the codifiers said that they did not deem it necessary to retain the writ of ne exeat. (See Com’rs’ 1st Leeport, p. 161.) Accordingly the N. Y. Superior Court Ae/d that this remedy was taken away by the Code. (fuller v. Emeric, 2 Sand. 628.) But in two judicial districts, the Supreme Court, at general term, Aed that this remedy is not abolished or superseded by the Code. (Bushnell v. Bushnell, 15 Barb. 399; affirming 8. C., 7 How. 393 ; Forrest v. Forrest, 10 Barb. 48; 5 How. 125.) It was not abolished by the non-imprisonment act of 1831. (Brown v. Haff, 5 Paige, 239.) In late instances it has been aHowed, or referred to as an existing remedy. (See Glenton v. Clover, 10 Abb. 422; Rogers v. Mich. So. R. &., 28 Barb. 541; Hddy v. Beach, T Abb. 18.) . And an act of legislature, passed in 1854, distinctly refers to 39 610 NE EXEAT. Nature of the proceeding, For what demands allowed. it as an existing writ. (See 3 22. S. (5th ed.) 834; Laws 1854, ch. 96, § 12.) Assuming then that this writ may still be allowed, we pro- ceed to consider its nature. And First, it is not to be confounded with any ordinary pro- cess of arrest. Its object is not directly to compel payment of a debt, but to retain jurisdiction and control over the person. (Bushnell v. Bushnell, 15 Barb. 403; Forrest v. Forrest, 10 ' Barb. 48.) Secondly. It is process of the court. But it may be granted in the form of an order, though usually it isa writ. (Ady Gen. v. Mucklow, 1 Price, 289; See Bushnell v. Bushnell, 15 Barb. 405.) Under the Code, it may be advisable to adopt the form of anorder. (Bushnell v. Bushnell, infra.) Thirdly. While in former times this was a prerogative writ, it has been treated in this State as a writ of right. (dbert v. Colt, Hopk. 499; Gleason v. Bisby, Clarke, 555.) Fourthly. This writ does not assume to require any payment or security for the payment of any sum or the doing of any act, but solely to restrain an apprehended departure from the State. (See form, post, p. 617.) Notwithstanding the distinction drawn by the court in Forrest v. Forrest, supra, this process is uniformly spoken of as equitable bail. And indeed the difference between this pro- cess and ordinary arrest and bail is rather slight. (See De Riwafinoli v. Corsetti, 4 Paige, 271; Mitchell v. Bunch, 2 id. 617; Gleason v. Bisby, Clarke, 556; Dick v. Swinton, 1 Ves. & Bea. 371.) Art. 2.—Nature of Demands upon which the Writ may issue. In general, the demand sought to be enforced must be an equitable one only, but there are two exceptions to this rule. One is a demand for alimony, and the other a disputed account. (2 Story’s Hy. Jur. § 1471; cited in Bushnell v. Bushnell, 15 Barb. 400; and see Denton v. Denton, 1 Johns. Ch. 364; Pratt v. Wells, 1 Barb. 426; Seymour v. Hazard, 1 Johns. Ch. 1.) It must be a money demand. (Cowdin v. Cram, 3 Edw. NE EXEAT. 611 — For what demands allowed. In what cases. Ch. 232; Cock v. Ravie, 6 Ves. 283; and see Blaydes v. Calvert, 2 Jac. & W. 213.) Consequently it cannot be allowed in an action for specific performance, unless such performance consist of paying money due. (Lbid.; but see Gleason v. Bisby, Clarke, 559.) It cannot be allowed on a demand upon which the defendant might be held to bail at law. (Praté v. Wells, 1 Barb. 426; Ehodes v. Cousins, 6 Rand. [Va.] 192.) Except in an action for an accounting. (Porter v. Spencer, 2 Johns. Ch. 169.) The debt must be due. And therefore the writ cannot issue to protect an accruing debt, or contingent claim. (Seymour v. Hazard, 1 Johns. Ch. 1; Boehm v. Wood, Turn. & Rus. 343; Cock v. Ravie, 6 Ves. 283; see Rhodes v. Cousins, 6 Rand. [Va.] 192; Gibbs v. Memaud, 2 Edw. Ch. 483 ; Brown v. Haff, 5 Paige, 241.) But in one case, after very marked hesitation, it was allowed in favor of a surety against whom judgment had been recovered and who was paying by installments. (Sealy v. Laird, 3 Swanst. 368, note.) The writ may issue to enforce a debt contracted abroad. (Mitchell v. Bunch, 2 Paige, 606; Woodward v. Schatzell, 3 Johns. Ch. 413.) Art. 3.—Jn what Cases the Writ may issue. The only object of the writ being to retain the person within the jurisdiction of the court, it can only be allowed where it appears satisfactorily that the defendant intends to leave the State. As to the degree of proof required by the court to show this intention, see Arr. 9, post, p. 615. Under the Code.|—The only cases in which a ne eweat has been granted, since the enactment of the Code, are as follows: In an action for divorce and alimony. (Bushnell v. Bush- nell, 7 How. 389; 15 Barb. 399; Forrest v. Forrest, 5 How. 125; 10 Barb. 48.) In an action for accounting between partners, or their representatives. (/udler v. Emeric, 2 Sand. 626; see Eddy v. Beach,7 Abb. 18. In these cases, however the writ was dis- charged.) 612 NE EXEAT, ‘ In what cases allowed. In whose favor. In an action against an executor for an account. (Glenton v. Clover, 10 Abb. 422.) Zé seems, that a non-resident debtor might be compelled b) means of this writ to apply property out of the jurisdiction o the courts, to the payment of his debts. (Rogers v. Mich. Se R. F., 28 Barb. 541; see Mitchell v. Bunch, 2 Paige, 606.) Before the Code.|—After the enactment of the non-impri sonment law of 1831, Wuirrurssy, V. C., laid it down as a rule, that a ne exeat would not be allowed in actions wherein the judgment could not be enforced by process against the person. (Gleason v. Bisby, Clarke, 559.) But the language of Watworts, Cu., in an earlier case, seems to imply the contrary. (See Brown v. Haff, 5 Paige, 240.) A creditor’s action was considered, before the Code, a pro- per case for granting the writ, as the defendant is required tc obey the judgment of the court for conveyances, sales, etc., in satisfaction of the debt, and obedience can certainly be enforced by attachment. (Lllingwood v. Stevenson, 4 Sand. Ch. 866; Mitchell v. Bunch, 2 Paige, 606; Gleason v. Bisby, Clarke, 559.) Where the defendant in an action at law had given bail, but was about to remove, with his bail, from the State, Kent, Cz., granted a ne exeat, placing it upon the necessity of the case, to prevent a total failure of justice. (Porter v. Spencer, 2 Johns. Ch. 169.) Doubtful cases.|—If the equity of the complaint be a mat- ter of serious doubt, a ne exeat cannot be sustained. (Jenkins v. Parkinson, 2 Myl. & K.13; Brown v. Haff, 5 Paige, 242.) Arrest a second time.|—Whether, a. writ having been dis- charged on a point of practice, the defendant can be arrested on a second writ for the same cause—query? (Hopkin v. Hopkin, 10 Hare, App. ii.) Axt. 4.—In whose Favor granted. We are not aware of any American cases except one, in which a ne exeat was granted in favor of a defendant; (Dun- ham v. Jackson, 1 Paige, 629 ;) and only three such cases are recorded in the English books, none of which would be pre- NE EXEAT. 613 In whose favor granted. Against whom. eedents in this State.. (See Stewart v. Stewart, 1 Ball & B. 78; Lloyd v. Cardy, Prec. Ch. 171; Done’s case, 1 Peere Wms. 263.) Kenr, Cu., doubted the propriety of granting it to a defen- ant without a cross-bill. (Jlattocks v. Tremain, 3 Johns. vh. 77.) Non-residents.) —A. non-resident plaintiff coming into the State only for the purpose of suing, cannot have a ne exeat. (Smith v. Methersole, 2 Russ. & M. 450.) The writ has been allowed in favor of a non-resident, but the reports do not show what was the nature of the plaintiff’s temporary stay in the country. (Mvtchell v. Bunch, 2 Paige, 607; Grant v. Grant, 3 Russ. 598; Atkinson v. Leonard, 3 Brown C. C. 218; see Woodward v. Schatzell, 3 Johns. Ch. 412.) Expon, Cu., said there was no instance of its being allowed where the plaintiff was not within the jurisdiction of the court, and discharged a writ on that ground. (Zyde v. Whitfield, 19 Ves. 343.) Art. 5.—Against whom granted. This writ is, of course, chiefly issued against a defendant, and whether, since the passage of the non-imprisonment law, and amendments thereto, especially the act of 1847, abolishing imprisonment for costs, there could be a case in which ane exeat might issue for the benefit of a defendant, is questionable. The only New York case of the kind (Dunham v. Jackson, 1 Paige, 629,) was a case of costs. Possibly, in a case where the defendant is entitled to affirma tive relief of an equitable nature, he might have this writ. We conceive that if in an action for divorce brought by the husband, the wife recovered alimony and costs, she might have a ne exeat as properly as if she were the plaintiff. The writ may issue against a non-resident temporarily in the State. 2’ Namarav. Dwyer, 7 Paige, 239; Mitchell v. Bunch, Qid. 606; Gibert v. Colt, Hopk. 496; Woodward v. Schatzell, 8 Johns. Ch. 412; Atkinson v. Leonard, 3 Brown C. C. 218. See Anon., 4 De Gex & Sm. 547.) Expon, Cu., refused to grant it against a married adminis- tratrix. (Pannell v. Tayler, Turn. & Russ. 96; but see Moore 614 NE EXEAT. By whom granted. At what stage of action. \ v. Hudson, 6 Madd. 218; Jernegan v. Glasse, 3 Atk. 409; Ambl. 62; Dick. 107.) Arr. 6.—By whom granted. No regulation has been made on this subject since the court of Chancery was abolished. The practice in that court allowed a ne exeat to be issued by any officer authorized to grant an in- junction. (1 Barb. Ch. Pr. 649.) By analogy, it may be presumed that this writ can be granted by a judge of the court in chambers, or the county judge of the county where the action is triable. Whether an order of ne exeat (see post, p. 616,) can be granted by a judge out of court (except in the first district), we very much doubt. Art. 7.—At what Stage of the Action the Writ may issue. It was formerly, (and still is. where the old equity practice is maintained,) a well settled rule that this writ could not issue until the complaint was filed. The reason of this was, that in Chancery a suit was not commenced until the bill was filed, and therefore no indictment would lie for perjury on an affida- _vit made before filing the bill. (Hughes v. Ryan, Beatty, 327 ; Anon., 6 Madd. 277; see Carlisle v. Jones, Wall. Lyn. 125.) As an action under the Code is commenced by service of a summons, this rule is no longer in force, but a summons must be issued before the writ can be allowed. (Bushnell v. Bush- nell, 7 How. 391; see Georgia Lumber Co. v. Bissell, 9 Paige, 225.) . : The writ may issue at any period, after the commencement of the suit. (Dunham v. Jackson, 1 Paige, 629.) Alimony cases.]—In this State, contrary to the English prac- tice, the writ may be allowed upon a claim for alimony, before any decree for alimony has been granted. (orrest v. Forrest, 10 Barb. 54; 5 How. 125; Denton v. Denton, 1 Johns. Ch. 364.) Arr. 8.—Wotice of Application. The writ may be granted without notice if the defendant has NE EXEAT. 615 Notice of application. Papers on which to apply. not appeared, but the rules of Chancery required notice to be given after appearance. Probably the same rule would be applied now. The notice must be of the usual period of eight days, unless an order to show cause be obtained. The form of notice may be similar to that on an application for an injunction. (See chap. xxx.) Art. 9.— Papers on Application. Complaint.J|—In chancery, the complaint must pray for the writ, and it will not be granted without such prayer, where the facts, upon which it is asked, were known to the plaintiff when he filed his bill. (Sharp v. Taylor, 11 Sim. 50.) But if the plaintiff learns, during the pendency of the action, that the defendant intends to leave the State, he may have the writ without the prayer in the complaint. (Barned v. Laing, 13 Sim. 257; Moore v. Hudson, 6 Madd. 219; Collinson'’s case, 18 Ves. 353.) We think that, under the Code, the complaint has nothing to do with provisional remedies, and that it need not contain a prayer for this writ. Afidawits.|—The application is usually founded upon afti- davits. The plaintiff must himself make an affidavit in ordinary cases. But where the plaintiff is a lunatic, the oath of his committee is sufficient. (Stewart v. Graham, 19 Ves. 312.) The plaintiff must swear positively that the defendant is indebted to him. (Gibert v. Colt, Hopk. 500; Thorne v. Hal- sey, 7 Johns. Ch. 192; Jackson.v. Petrie, 10 Ves. 166.) Matters other than the amount of the debt, or corroborative of the plaintiff, may be proved by a third person. (Collinson’s case, 18 Ves. 353; see Bushnell v. Bushnell, 7 How. 390; Hyde v. Whitfield, 19 Ves. 344.) Except in matters of account, the affidavit must be positive as to the amount. And in such matters, it must be positive to the existence of a debt, though the swum may be stated upon belief. (Zhorne v. Halsey, 7 Johns. Ch. 193; Boehm v. Wood, 616 NE EXEAT. Papers on which to apply. Affidavits. Answer. Turn. & Russ. 344; see Amsinch v. Barklay, 8 Ves. 594; Mattocks v. Tremain, 8 Johns. Ch. 75.) The court will refuse or discharge a writ even when the affi- davit is positively sworn to, if it appear that the plaintiff could not possibly have had personal knowledge of the matter. (Ztoddam v. Hetherington, 5 Ves. 95; see Moore v. Calvert, 9 How. 474; Union Bank v. Mott, 6 Abb. 318.) It must be shown explicitly and clearly that the defend- ant is about to leave the State. There ought to be a positive affidavit of a threat or purpose to go abroad. (Mattocks v. Lremain, 3 Johns. Ch. 76; Darley v. Nicholson, 1 Dru. & Warr. 70; Oldham v. Oldham, Ves. 410; Ltches v. Lance, id. 417.) An affidavit showing circumstances authorizing the inference that the defendant is about to leave the State, is sufficient. (Bushnell v. Bushnell, 7 How. 390; see Hyde v. Whitfield, 19 Ves. 344.) It must be stated that the debt will be endangered by the defendant’s going abroad. (Mattocks v. Tremain, 38 Johns. Ch. 76; Boehm v. Wood, Turner & Russ. 344; Tomlinson v. Harrison, 8 Ves. 83.) It need not be sworn that he is going abroad dmmediately, or for the purpose of avoiding the debt. (Boehm v. Wood, Turn. & Russ. 344; Tomlinson v. Harrison, 8 Ves. 83; Etches v. Lance, 7 Ves. 417.) Petition.|—The application was frequently made on peti- tion, instead of affidavit. (See Boehm v. Wood, Turn. & Russ. 335.) In such case, it is sufficient to say that the same facts must be shown as in an affidavit, and that it must be sworn to. (Ibid.) Answer.J—Where the affidavits were insufficient, but the answer admitted a part of the debt claimed, the writ was re- tained as to such sum. (bert v. Colt, Hopk. 500; Roddam v. Hetherington, 5 Ves. 95; see Jones v. Sampson, 8 Ves. 593.) It seems, that it might be allowed upon the answer only, if that showed facts to warrant it. (Zdid.) NE EXEAT. 617 Papers on application. Writ of ne exeat. Other proof.\—The aftidavit of ¢ndebtedness is not material, where a referee’s report for a certain amount has been confirmed. (Collinson’s case, 18 Ves. 853; Hitches v. Lance, 7 Ves. 417.) Arr. 10.—TZhe Writ or Order. The court of Chancery always granted this remedy in the form of a writ, but the Exchequer granted it in the form of an order. Zé seems, that either form may be adopted in this State. (Bushnell v. Bushnell, 15 Barb. 405; Forrest v. or- rest, 10 id. 48.) In order to avoid all difficulty under the Code, the latter form seems advisable. (Zb2d.) The ground on which the writ issued in Chancery, was always stated in the body of it. (Hyde v. Whitfield, 19 Ves. 345.) § 11%, Writ of Ne Hxeat. The Aeople of the State of Helw Pork : To the Sheriff of the county of ...... , greeting : Wuerras, it is represented to us, in our [Supreme] court, on the part of A. B., plaintiff, against C. D., defendant (amongst other things), that the said defendant is greatly indebted to the said plaintiff, and designs quickly to go into parts without this State, as by oath made on that behalf appears, which tends to the great prejudice and damage of the said plaintiff. Therefore, in order to prevent this injustice, we hereby command you, that without delay you cause the said C. D. to come personally before you, and give sufficient bail or security in the sum of ...... dollars, that he, the said C. D., will not go nor attempt to go into parts without this State, without leave of our said court. And if the said CO. D. shall refuse to give such bail or security, then you are to commit him to the jail of your county, there to be kept in safe custody until he shall do it of his own accord; and when you have taken such security, you are forthwith to make and return a 618 NE EXEAT. Writ of ne exeat, Order. + Execution of writ. certificate thereof to us, in our said Supreme Court, distinctly and plainly under your hand, together with this writ. Wirnsss, the Hon. [William W. Campbell], justice of our said Supreme Court, at the... .. thig....dayof..... ; in the year one thousand eight hundred and sixty. E. F., Clerk. Henry R. Myearrt, Plaintiff’s Attorney. § 118, Order in the nature of Ne Exeat. [Zitle of Cause.] [Caption.]} On reading and filing the affidavit of A. B., the plaintiff in this action, and on motion of E. F., counsel for the said plain- tiff, OrvereD: That the defendant, C. D., do, within [seven] days after service of this order, give securityin ..... dol- lars, with proper sureties, to be approved by a judge of this _ court, not to depart from this State without appearing in this ‘action, and performing such order or decree as shall hereafter be awarded by this court; otherwise an attachment to issue without further motion. [Signature of Clerk and Attorney.] This is substantially the form used in the English Court of Exchequer. Art. 11.— Execution of the Writ. The writ must of course be served by the sheriff of the county in which the defendant is found. If the ne exeat is in the form of an order, a copy of the affida- vits should be served with it, as in the case of an order of arrest, injunction, ete. But as the rules already laid down relative to such orders would probably be held applicable to an order of ne eweat, we refer to them, (see ante, p. 581), and shall treat, in this and the ensuing articles of this chapter, of the writ only. NE EXEAT. 619 Execution of writ. : Bond to sheriff. The sheriff must take a bond to himself as directed by the writ. The penalty must be the sum marked in the writ, and not double the amount. ‘(Gdbert v. Colt, Hopk. 500.) The sheriff proceeds according to his own discretion, and upon his own responsibility, in the execution of this writ. He is the sole judge of the sufficiency of the sureties, and may re- fuse to accept a deposit of the amount in a bank, subject to the order of the court: (Boehm v. Wood, Turn. & Russ. 340 5 see Brayton v. Smith, 6 Paige, 490.) ‘It seems, that he can sue upon the bond without leave of the court, ane, indeed, that the court has no power to hear a mo- tion for leave to sue. (Zézd.; but see Harris v. Hardy, 3 Hill, 394.) § 119. Bond to the Sheriff. Know ALL MEN BY THESE PRESENTS, that we, C. D., J. K., and L. M., [all of the city of Utica,] are held and firmly bound unto Y.Z,..... sheriff of the county of [Oneida], in the sum of...... dollars, to be paid to the said Y. Z, or assigns ; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the....dayof...... Wuereas, the above named ©. D. has bean arrested upon a writ of ne exeat, issued out of the Supreme Court of the State of New York, in a cause therein pending, wherein A. B. is plaintiff, and the said C. D. defendant, and is now in custody of the said sheriff by virtue thereof. Now, the condition of this obligation is such, that if the said C. D. shall not go, nor attempt to go from this State with- out leave of the said Supreme Court, then this obligation to be void, otherwise to remain in full force and virtue. [Signatures and seals.] [Subscribing witness.] 620 NE EXEAT. Execution of writ. Discharge on security. For cause. If no such bond is given, the sheriff must of course keep the defendant in custody, and state the fact in his return. The detendant, by giving this bond, does not preclude himself from moving to discharge the writ on the ground that it was improvidently or erroneously issued. (Jesup v. Hill, 7 Paige, 96.) Art. 12.—Discharge upon Security. It is a matter of course to discharge the writ, upon the defen- dant giving security to render himself amenable to the process of the court pending the suit, and to such as may be issued to compel a performance of the final decree. (Af’Namara v. Dwyer, 7 Paige, 244; Mitchell v. Bunch, 2 id. 617, 621.) This application must be made on the usual notice to the plaintiff, giving him the names of the sureties. (Georgea Lum- ber Co. v. Bissell, 9 Paige, 226; Mitchell v. Bunch, supra.) This undertaking is so closely analogous to the ordinary bail upon arrest, that we may safely refer to the chapter on that subject as a guide. (See ante, p. 581.) By giving this security, the defendant waives all objections to the allowance or form of the writ. (Jesup v. Hill, 7 Paige, 96.) Deposit with receiver.|—Where a specific fund is claimed, the defendant may be discharged upon transferring the same to areceiver. (See Glenton v. Clover, 10 Abb. 422.) Arr. 13.—Discharge for Cause. The practice in chancery, upon a motion to discharge a ne exeat as irregularly or improvidently issued, was substantially similar to that on a motion to dissolve an injunction. (See, therefore, post, chap. xxx.) Affidavits may be used on both sides. (Cowdin v. Cram, 3 Edw. Ch. 233; Flack v. Holm, 1 Jac. & W. 4143; see Glen- ton v. Clover, 16 Abb. 422.) But a mere denial of the plaintiff’s affidavit will not suffice to obtain a discharge. ( Whitehouse v. Partridge, 8 Swanst. 375 ; Jones v. Alephsur, 16 Ves. 470; Amsinck v. Barkley, 8 Ves. 594.) REQUISITION OF PERSONAL PROPERTY. 621 Discharge of ne exeat. Of the action for chattels. Nor is it sufficient to deny that the defendant was about to leave ¢mmediately, and allege that he has given up all intention of leaving. He should show substantial reasons for supposing that he will remain. (@lenton v. Clover, 10 Abb. 423; com- pare Loss v. Montefiore, 1 Hur). & Nor. 722.) An insolvent discharge, including the debt claimed, is suf- ficient ground for discharging the writ, and the court will not look behind it. (O'Connor v. Debraine, 3 Edw. Ch. 230.) The motion may be made after giving security to the sheriff but not after the writ has been discharged upon security as heretofore prescribed. (Jesup v. Hill, 7 Paige, 96.) Cuapter XXVIII. e REQUISITION OF PERSONAL PROPERTY. ArvIcLE 1. Nature of the action in which this remedy is allowed. . Requisition of possession pending suit. . What property may be thus claimed. . The affidavit. . Security by plaintiff. . Justification of-plaintifi’s sureties. . Duties of the sheriff. . Re-delivery to defendant. . Security by defendant. . Claim of property by a third party. . Arrest in case of willful concealment. Arr. 1.—Wature of the Action in which this remedy is allowed. This remedy is allowed only in actions to recover the posses- sion of personal property. (Ante, p. 77, § 206.) The action is now generally known as an action for chattels. The plaintiff may sue either for the possession of his pro- perty, or for the value of it. But he cannot have, nor ask for, both. (Maawell v. Farnam, 7 How. 236; Chappel v. Skinner, 6 How. 338; see Morris v. Rexford, 18 N. Y. 557.) Having made his choice, he must abide by it. He cannot sue first in one form and afterward in another. (Morris v. Rexford, 18 N. Y. 557.) When therefore the complaint demands judgment for the value of the property, the remedy provided in this chapter cannot be allowed. (Seymour v. Van Curen, 18 How. 94; Ke oO OTD NP oo w an 622 REQUISITION OF PERSONAL PROPERTY. In what action allowed. Action for chattels. Chappel v. Skinner, 6 How. 238; Dows v. Green, 3 How. 377; Spalding v. Spalding, 3 How. 299.) The action for chattels, and the remedy provided by this section, are intended as a substitute for the former action of replevin. (Morthern R. R. of France v. Carpentier, 4 Abb. 51; Rockwell v. Saunders, 19 Barb. 481; M’Curdy v. Brown, 1 Duer, 105; Roberts v. Randel, 8 Sand. 718; 5 How. 332; Chappell v. Skinner, 6 How. 339.) The old practice in replevin may be resorted to wherever the Code does not provide a method of proceeding. (Wélson v. Wheeler, 6 How. 50; see Worthern R. R. of France v. Carpentier, 4 Abb. 51; Brockway v. Burnap, 16 Barb. 314.) Against whom the action lies.|—As the right of action in this form involves the right to this remedy, it is important to consider the general principles on which such a right of action depends. It is held by the N. Y. Superior Court, that this action cannot be maintained against a party who has not, at the time of initiating the proceedings, the possession, in fact or in law, and the practical control of the property claimed. (/2oberts v. Randel, 3 Sand. 716 ; 5 How. 335; see to same effect, Elwood v. Smith, 9 How. 529; Leimer v. Nagel, 1 E. D. Smith, 256; ‘Code Rep. N. 8. 219.)* On the other hand, the Supreme Court holds that the action may be maintained against a defendant who wrongfully dis- posed of the property claimed, before the commencement of legal proceedings. (Drake v. Wakefield, 11 How. 112; Brock- way v. Burnap, 16 Barb. 311; rev’g S. C. 12 id. 347; Van Neste v. Conover, 5 How. 148; approved, Ward v. Woodburn, 27 Barb. 353; Savage v. Perkins, 11 How. 22; and see Ely v. Lhle, 3 N.Y. [8 Comst.] 509; Allen v. Crary, 10 Wend. 349; Cary v. Hotaling, 1 Hill, 311.) On reviewing all the decisions, and carefully examining the actual facts of the cases which were before the courts for decision, our conclusion upon this point is, that all which was really decided in the preceding cases may be reconciled in the following manner : * The Supreme Court (1st dist., gen. t.) has just decided in accordance with this rule (Nash v. Fredericks, Dec. 1860.) Bonney, J., dissented. REQUISITION OF PERSONAL PROPERTY. 623 In what action allowed. Action for chattels. 1. That an action in the nature of replevin may be brought against a party who had wrongfully disposed of the property before the commencement, or even before he had reason to apprehend the commencement, of such an action. 2. That the remedy provided by this chapter may be adopted in such case; but, 3. That on the sheriff’s return of “ not found,” the plaintiff cannot arrest the defendant under subdivision 3 of section 179 of the Code, although he may arrest him under subd. 1. This action cannot be maintained, where the defendant offered, before the commencement of the action, to restore the property unconditionally, although he did not offer to pay damages for the detention. (Savage v. Perkins, 11 How. 23.) Nor can it be maintained, where the defendant never had possession or control of the propery (Elwood v. Smith, 9 How. 529.) Who may bring the action.|—No one can maintain an action for chattels who is not the owner, or legally entitled to the present possession. (Dodworth v. Jones, 4 Duer, 201; Mock- well v. Saunders, 19 Barb. 473; M’Curdy v. Brown, 1 Duer, 101; see Johnson v. Carnley, 10 N. Y. [6 Seld.] 570.) The purchaser of property, to whom the title is actually transferred, may maintain this action, though he have not paid for the goods. (Johnson v. Carnley, 10 N.Y. [6 Seld.] 570.) One having a lien upon chattels may recover their possession from the actual owner, for the purpose of retaining them until his claim is satisfied. (Baker v. Hoag, 7 N. Y. [8 Seld.] 557; 7 Barb. 113; see Van Bokkelin v. Ingersoll, 5 Wend. 315; 7 Cow. 670.) Discontinuance.|—This action cannot be discontinued, after the property has been taken, and the defendant has answered, upon the mere payment of costs, without returning the property. ( Wilson v. Wheeler, 6 Abb. 49.) The defendant should refuse to receive the costs, and notice the cause for trial, when he can recover judgment for a return, and for costs also. (Jbid.; and see Schreder v. Kohlenback, 6 Abb. 68.) 624 REQUISITION OF PERSONAL PROPERTY. The requisition. What property may be claimed. Arr. 2.—Requisition of Possession pending Suit. “The plaintiff, in an action to recover the possession of per- sonal property, may, at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter.” (Ante, p. 77, § 206.) Requisition to the sheriff.|—The plaintiff may, by an indorsement upon the affidavit hereafter mentioned, require the sheriff of the county where the property claimed may be, to take the same from the defendant, and deliver it to the plain- tiff, (Ande, p. 78, § 208.) § 120. Requisition upon the Sheriff. You ark REQUIRED to take from John Jones the property within described, and to deliver it to the plaintiff. [ Date. ] Assert & Futier, Plaintiff’s Attorneys. To THe SHERIFF OF THE COUNTY OF... .. Art. 3.— What Property may be thus claimed. This remedy is only applicable to personal property. (Ante, p- TI, § 206.) It cannot therefore be used to recover anything fixed to the freehold. (Weblet v. Smith, 4 T. R. 504.) But if the defendant has severed anything from the plain- tiff’s freehold, such fixtures, after severance, become personal property of the plaintiff. (Cresson v. Stout, 17 Johns. 121; see Gardner v. Finley, 19 Barb. 817; M’Intyre v. Barnard, 1 Sand. Ch. 52.) _ Any evidence of title, without which the property mentioned in it would not be delivered—e. g., bills of exchange, bills ot lading, certificates of stock, and, in some cases at least, a ware- house entry—may be recovered by this proceeding. (Knehue v. Williams, 1 Duer, 597.) REQUISITION OF PERSONAL PROPERTY. 625 X. The affidavit. Alleging ownership. Right to possession. So may a specific sum of money, deposited with the defen- nant, under an agreement that the identical sum was to be returned. (Graves v. Dudley, 20 N. Y. 76.) As to a paid note, see Zodd v. Crookshanks, 3 Johns. 432 ; Buck v. Kent, 3 Vt. 99. Arr, 4.—The Affidavit. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing, 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the posses- sion thereof, by virtue of a special property therein, the facts in respect to which shall be set forth ; 2. That the property is wrongfully detained by the defen- dant ; 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief; 4. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff; or if so seized, that it is, by statute, exempt from such seizure; and, 5. The actual value of the property. (Ante, p. 78, § 207.) Ownership.|—A direct allegation that the plaintiff “is the owner” of the property claimed, is sufficient. It is not neces- sary to show how his title originated. (Depew v. Leal, 2 Abb. 135; Burns v. Robbins, 1 Code Rep. 62; see Vandenburgh v. Van Valkenbugh, 8 Barb. 217.) Right of possession.|—But when the plaintiff claims merely a right of possession, he should show the facts which establish such aright. (Depew v. Leal, 2 Abb. 136.) An affidavit stated that the plaintiff was entitled to the immediate possession of certain property “by virtue of written. articles of copartnership between him and L.,” which partner- ship had been dissolved; that the property “ belonged to, or was consigned to said copartnership,” and that “ by said arti- cles of copartnership, on the dissolution thereof, this deponent 40 626 REQUISITION OF PERSONAL PROPERTY. The affidavit. Alleging exemption. was, and is, entitled to the possession of all the property, books, and assets of said copartnership.” Heid insufficient, for stating the deponent’s construction of the partnership articles, without giving the language of the articles themselves. (Depew v. Leal, 2 Abb. 135.) If the owner of goods take them from one who has a lien upon them, without his consent, the latter may recover their possession under this chapter. (Baker v. Hoag, 3 Seld. 557; 7 Barb. 113.) A bailee or trustee of any kind may have the benefit of this remedy to recover the property wrongfully taken from his charge. (Northern R. R. of France v. Carpentier, 4 Abb. 52.) So may a receptor, 7. €., a person to whom the: sheriff has committed the care of a chattel, and who has given the sheriff his receipt for it. (Miller v. Adsit, 16 Wend. 335.) Property seized on execution.|—Whether, in an action brought to recover exempt property seized on execution, it is enough to allege in the affidavit that it is “ exempt from exe- ution by law”—gquery? (Held that it is, Roberts v. Willard, 1 Code Rep. 100; contra, Spalding v. Spalding, id. 64; 3 How. 297.) It is certainly insufficient to make such a general statement on belief, without stating advice of counsel, ete. (Roberts v. Willard, 1 Code Rep. 100.) It has been held that the affidavit should state the character and value of the propetty with sufficient clearness to show on its face that it was exempt. (Spalding v. Spalding, 3 How. 297; 1 Code Rep. 64; contra, Roberts v. Willard, id. 100.) If upon an execution issued against A., the officer seizes pro- perty of B., the latter may maintain an action of “ replevin.” (Judd v. Fox, 9 Cow. 263; Clark v. Skinner, 20 Johns. 468 ; Thompson v. Hutton, 14 Johns. 87.) But although the defendant in the execution pays the sheriff the full amount of the judgment and fees, and the sheriff never- theless retains the property levied upon, “ replevin” will not lie. (Gardner v. Campbell, 15 Johns. 402.) Controverting affidavit.|—It seems, that where the statements REQUISITION OF PERSONAL PROPERTY. 627 The affidavit. Defects. Form of affidavit. of the affidavit are positive, the court has no right to inquire into their truth. (Anehue v. Williams, 1 Duer, 598.) Defects and amendments.|—On a motion to set aside the pro- ceedings on account of a defect in the affidavit, the court has power to hear additional affidavits in support of the original one. (Depew v. Leal, 2 Abb. 186.) It may also allow an amendment to the affidavit on terms. (Depew v. Leal, 2 Abb. 186; Spalding v. Spalding, 3 How. 301; Stacy v. Farnham, 2 How. 263; see Cutler v. Rathbone, 1 Hill, 204; Hawley v. Bates, 19 Wend. 632.) Defects cured.|—A general appearance in the action waives all irregularities in the affidavit, at least, where the affidavit is served with the summons, as it almost always is. (Hyde v. Patterson, 1 Abb. 248; Loberts v. Willard, 1 Code Rep. 100.) § 121. Affidavit on Claim for Possession of Personal Property. County or. .....: John Doe, of said county, being duly SWOrD, Says: 1. That he is [the plaintiff] in an action about to be com- menced against Richard Roe, of..... , for the recovery of the possession of the property herein mentioned. 2. That he is [or, that he and John Denn, of said county, are joint] owner of the property herein mentioned. [ Or, That he is lawfully entitled to the immediate possession of the property herein mentioned, by virtue of an agreement between him and said Richard Roe, of which the following isa copy: here set out the agreement, or in any other manner show title by means of facts]. 3. That he claims possession as aforesaid of the following property, to wit: [here set out the property, describing tt as ac- curately as 1s reasonably possible}. 4, That the said property is now in [the house of said Roe, Now. we ss Bhiyin we ee ] 5. That the said property was [wrongfully taken], and is still 628 REQUISITION OF PERSONAL PROPERTY. The affidavit. Forms of affidavit. wrongfully detained from [this deponent] by the said Richard Roe. 6. That the alleged cause of such detention, to the best of deponent’s knowledge, information, and belief, is [that said Roe claims a lien upon the said property for repairs, but that deponent has fully paid and satisfied all just claims and demands of said Roe for such repairs. ] [Or, 6. That deponent has no knowledge or information of any cause or excuse alleged by said Roe for such detention.] 7. That the said property has not been taken for any tax, assessment or fine, pursuant to any statute, nor seized under an execution or attachment against the property of [this deponent. | 8. That the actual value of said property is at least [one thousand] dollars. (Jurat.] Joun Dor. § 122. Another form of the like. [Zirtle of Cause.] County OF 4 se @ xs > JODO Smithy Ole eee ae , being duly sworn, says: 1. That he is the owner of [a piano-forte, or] the following property [describing it particularly]. (Or, 1. That the following goods were stored with him on the pe Gay of ae ea a: ,18 . ., by John Jones, and . . . dollars storage is now due thereon. Or state any facts showing aright to the possession, avoiding legal conclusions. | 2. That the said property [was wrongfully taken from him by the said Jones, without payment of said storage, and] is wrongfully detained by John Jones, [or, him,] at [No. 100 State street, Albany, or elsewhere. ] 3. That the alleged cause of such detention, according to deponent’s best knowledge, information and belief, is [describe at particularly). [Or, 3. That he has no knowledge or information of any cause alleged for such detention.] REQUISITION OF PERSONAL PROPERTY. 629 The affidavit. Security by plaintiff. 4. That the said property has not been taken for a tax, assessment, or fine, pursuant to any statute. 5. That it has not been seized under any execution or attach- ment against deponent’s property. [Or, if so seized, show that it was legally exempt, as thus : 5. That it was seized under an execution, but was part of deponent’s necessary household furniture, which amounted in the aggregate to the value of less than $250, besides the articles specified in the Revised Statutes as exempt; and that he is a householder, supporting a family.] 6. That the said property is worth... ... dollars. [Jurat.] Joun Sirs. Arr. 5.—Security by Plaintiff. The plaintiff must give a written undertaking executed by one or more sufficient sureties approved by the sheriff, to the effect that they are bound, in double the value of the property as stated in the affidavit, 1. For the prosecution of the action ; 2. For the return of the property to the defendant, if return thereof be adjudged, and— 3. For the payment to him of such sum as may, for any cause, be recovered against the plaintiff. (Ante, p. 78, § 209.) It has always been held in this State since 1830, that the sheriff could not execute a writ of replevin without taking security. (Smith v. J Fall, 18 Wend. 521; see Cutler v. Rathbone, 1 Hill, 204; Whaling v. Shales, 20 Wend. 678; Hawley v. Bates, 19 id. 632; Welson v. Williams, 18 id. 581.) But it is to be observed that these decisions were based ex- clusively upon the language of the Revised Statutes, viz., “Such writ shall not be executed in any case unless the fol- lowing provisions are complied with.” (2 2. S. 524, § 7.) This section is omitted in the 4th and 5th editions of the R. S. as “clearly superseded by the Code,” (Judge Denio, now of of the Court of Appeals, editor,) and it may well be questioned whether these decisions have now any foundation. They were 630 REQUISITION OF PERSONAL PROPERTY. Security by plaintiff. Undertaking. contrary to the common law. (See Zhe King v. Lewis, 2 T. R. 617; Twells v. Colville, Willes, 375, and notes.) If this latter view proves correct, the sheriff will himself be responsible, if he does not take such a bond. (Yea v. Leth- bridge, 4 T. R. 433; Evans v. Brander, 2 Hen. Blacks. 547; Concanen v. Lethbridge, id. 36; 1 Saund. 195, n. 3, J’) The sheriff must indorse his approval on the undertak- ing. (Burns v. Robbins, 1 Code Rep. 62.) He may require more than one surety. (L62d.) No change can be made in the undertaking without the sureties’ assent. (Ld¢d.) Amendments.|—The court will allow new undertakings to be given nune pro tunc—or allow amendments, when the ori- ginal ones are defective—no fraud being shown. (Wewland v. Willets, 1 Barb. 20; Cutler v. Rathbone, 1 Hill, 204; Smzth v. M’ Fall, 18 Wend. 521; Hawley v. Bates, 19 id. 632; and see Burns v. Lobbins, 1 Code Rep. 62.) § 123. Undertaking for the Plaintiff on Requisition for Chattels. Wuaereas John Doe of the [City of Troy] has commenced, [or, is about to commence] an action in the [Supreme] Court, against Richard Roe, of the [said city] for the possession of [here describe property +] Awnp waereas the said John Doe has by his affidavit and indorsement thereon, duly required the sheriff of the county of [Rensselaer] to take the said property, from said Roe, and to deliver the same to said Doe ; Now THEREFORE, in consideration of the premises, and of the delivery of the said property to said [Roe], we A. B., [mer- chant), of «+ «% « , and C. D., [hotel keeper], of do hereby undertake, in the sum of [double the value], for the prosecution of this action, for the return of said property to said Roe, if such return be adjudged, and for the payment to him of such sum as may, for any cause, be recovered in said action against said Doe. A. B. [Date.] C.D. [Justification and acknowledgment as in § 102.] REQUISITION OF PERSONAL PROPERTY. 631 Security by plaintiff. Form of undertaking. Justification of sureties. § 124. Another form of the like. [Zrtle of Cause.] Wurrnas, the plaintiff claims the delivery of [specify the property] : Now, rHrrerore, we, John Johnson, of...... , (merchant, ] and John Jenks, of ...... , [builder,] undertake in the sum Of ao a hvac dollars, that the plaintiff shall prosecute this ac- tion, return the said property to the defendant, if such return be adjudged, and pay to him such sum as may, for any cause, be recovered against the plaintiff in this action. (Signatures. ] [Date.] [Justification and acknowledgment as in § 102.] § 125. Approval of Sheriff to be indorsed on the preceding. I approve of the within undertaking, both as to form and sufficiency of sureties. A. B., Sheriff. Arr. 6.—Justification of the Plaintiffs Sureties. 1. Exception.]|—The defendant may, within three days after the service of a copy of the affidavit and undertaking (as here- after prescribed), give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, be will be deemed to have waived all objections to them. (Ante, p. 79, § 210.) If he except to the sureties, he cannot reclaim the property, as hereafter mentioned. (See post, p. 634.) 632 REQUISITION OF PERSONAL PROPERTY. Security by plaintiff. Justification. Omission to justify. § 126. Notice of Exception to Plaintiffs Sureties. [Title of Cause.) Taxes notice, that the defendant excepts to the sufficiency of the sureties to the undertaking in this action. Yours, ete., M. IL. Townsenp, Defendant's Attorney. To THE SHERIFF OF THE COUNTY OF ...... 2. Justification.|—When the defendant excepts, the sureties must justify on notice, in like manner as upon bail on arrest. (Ante, p. 79, § 210. See on this subject, ante, pp. 584-589.) Further time may be allowed for justification, on good cause being shown. (Burns v. Lobbins, 1 Code Rep. 62.) Liffect of omission to justify.]—The sheriff remains liable to the defendant until sureties have justified, or the defendant has waived a justification. (Ante, p. 79, § 210.) Jt seems, nevertheless, that it is not in the power of the sheriff to retain the goods in his hands more than three days, even though the sureties fail to justify ; that if the defendant does not demand a return, as hereafter provided, the sheriff must deliver the property to the plaintiff, although his sureties are men of straw. (Epmonns, J., Manley v. Patterson, 8 Code Rep. 90.) The above is the only judicial exposition of the subject with which we are acquainted, but although a strict construction of the Code justifies it, we are confident that, on a test of the point, it would not be sustained. For it reduces the require- ment for justification to a mere recommendation, without any provision for its enforcement, and inviting disobedience. Thus, by the very act of excepting, the defendant is barred from reclaiming the property. The sheriff must then deliver it up to the plaintiff, who has accomplished all his purpose. Why should he go on to justify his sureties? According to this interpretation, he will not gain by doing so, nor lose by REQUISITION OF PERSONAL PROPERTY. 633 Security by plaintiff. Duties of the sheriff. omitting to doso. Why should he, his attorney, and his sure- ties, whether responsible or not, waste their time in attending such a mockery ? The conclusion to which our own judgment forces us, in de- fault of any further illumination than this dictum is, that if the plaintiff omits to give prompt notice of justification, or fails to attend at the time appointed, the defendant may obtain an order to show cause forthwith why all the proceedings upon the provisional remedy (not tm the action), should not be set aside for irregularity in this respect. As the provisional remedy does not at all affect the merits of the action, the defendant cannot of course have an order of dis- continuance on this ground. (Manley v. Patterson, 3 Code Rep. 89.) Art. 7.—Duties and Liabilities of the Sheriff. 1. Taking the property.|—Upon the receipt of the affidavit and notice, with the undertaking before mentioned, the sureties being approved by him, the sheriff must forthwith take the property described in the aftidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. (Ante, p. 78, § 209.) The sheriff has no right to take the property from the posses- sion of any person other than the defendant or his agent. (King v. Orser, 4 Duer, 436.) If he do so, he is a trespasser. § 216 of the Gode does not apply to such a case. (/did.) Taking concealed property.|—If any part of the property be concealed within a building or inclosure, the sheriff must pub- licly demand its delivery. If it be not delivered, he must cause the building or inclosure to be broken open, and take the property into his possession ; and if necessary, he may call to his aid the power of his county. (Ante, p. 80, § 214.) 2. Keeping and delivering property.|}—When he has taken property, according to this chapter, he must keep it in a secure place, and deliver it to the party entitled thereto, upon receiv- 634 REQUISITION OF PERSONAL PROPERTY. Duties of the sheriff. Return to defendant. ing his lawful fees for taking, and his necessary expenses for keeping the same. (Ante, p. 80, § 215.) If within three days after the taking, and service of notice on the defendant, (as mentioned below,) the defendant does not reclaim the property, or a third party lay claim to it, as here- after mentioned, the sheriff must deliver it to the plaintiff. (Ante, p. 79, § 211.) The sheriff cannot refuse to deliver the property to the plain- tiff on the ground that his sureties have failed to justify. (Semble, Manley v. Patterson, 3 Code Rep. 90.) 3. Service of papers on defendant.]}—He must also, without delay, serve on the defendant a copy of the aftidavit, notice, and undertaking, by delivering the same, (1.) To him, personally, if he can be found; or, (2.) To his agent, from whose possession the property was taken; or, (8.) If neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion. (Ante, p. 78, § 209.) 4. Filing papers.)—He. must file the affidavit and notice, with his proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein. (Ante, p. 80, § 217.) 5. Lnabilitees of the sheriff.|\—He is responsible for the suf- ficiency of the plaintiff’s sureties, (1.) Until the objection to them is waived, as before men- tioned, by the lapse of three days without notice of exception ; or, (2.) Until they, or new sureties in their stead, shall justify, (Ante, p. 79, § 210.) Art. 8.—LRe-delivery to the Defendant. At any time before the delivery of the property to the plain- tiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving security as prescribed in the next article. (Ante, p. 79, § 211.) This demand must be made within ¢hree days from the taking, REQUISITION OF PERSONAL PROPERTY. 635 Return to defendant. Security by defendant. Justification. and cannot be complied with after that time, although the pro- perty may still be in the sheriff's possession. (J2’Cann v. Thompson, 13 How. 480.) There is no provision in the Code, nor power in the court, to restore the property to the plaintiff, after it has been returned to the defendant under this section. (Hunt v. Mootry, 10 How. 479.) . But if there is reason to apprehend that the defendant will injure or dispose of the property, he may be restrained from so doing by injunction. (Lb¢d.) Arr. 9.—Security by Defendant. The defendant, in order to obtain a re-delivery of the pro- perty claimed, must give the sheriff a written undertaking, exe- cuted by two or more sufficient sureties, in precisely the same form as that of the plaintiff, reversing, of course, the relative position of the parties in that instrument. (Andie, p. 79, § 211.) This undertaking may be made either to the sheriff or to the plaintiff. (Slack v. Heath, 4 EK. D. Smith, 95, affirmed in Cr. or Apprats, June, 1860; see Decker v. Judson, 16 N. Y. 448.) Qualifications.|—The qualifications of sureties are the same as are prescribed for bail upon an order of arrest. (Ante, p. 19, § 218.) Justification.|—The defendant’s sureties must justify, without any notice of exception from the plaintiff. (See ante, p. 79, § 212.) They must justify in the same manner as bail upon arrest, before a judge or justice of the peace, upon a notice to the plaintiff of not less than two nor more than six days. (Ante, p. 79, 212.) ; The sheriff need not deliver the property to the defendant until the justification is completed, or expressly waived, but must then do so. He is responsible to the plaintiff until then. (Ante, p. 79, § 212.) If the defendant’s sureties, or others in their place, fail to justify at the time appointed, the sheriff must deliver the pro- perty to the plaintiff. (Ante, p. 79, § 212.) 636 REQUISITION OF PERSONAL PROPERTY. Security by defendant. Claim by third person. § 127. Undertaking on the part of the Defendant. [Title of Cause.] Wnernas, the plaintiff has claimed, and the sheriff of the county of... .. has taken, the following property [describ- ing it): Now, raerzrory, we, Benjamin Brown, of ..... » [tailor], and Daniel Down, of ..... , [grocer], undertake in the sum OF pare iaG dollars, that if the said property be returned to the defendant, it shall be delivered to the plaintiff if such delivery be adjudged ; and that the plaintiff shall be paid such sum as may, for any cause, be recovered against the defendant in this action. [Date.] [Signatures.] § 128. Notice of Justification, to be Annexed to a Copy of the Under- taking. [Title of Cause.] Taxes notice, that the sureties in the annexed undertaking will justify before the Hon... .. . , ajustice of the... .. at chambers in the....,atthe....of....,onthe.. day of ....,18.., at... . o’clock in the forenoon. Yours, etc., [Date.] Barretr & Brinsmanpg, Defendant's Attorneys. To Cupuas Brarnerp, Esq., Plaintiff’s Attorney. e Art. 10.—Claem of the Property by a Third Person. “Tf the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto, and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff, the sheriff shall not be bound to keep the property, REQUISITION OF PERSONAL PROPERTY. 637 | Claim by third person. Undertaking against. or deliver it to the plaintiff,” (ante, p. 80, § 216), “unless the plaintiff, on demand of him or his agent, shall indemnify the sheriff against such claim by an undertaking, executed by two sufficient sureties, accompanied by their affidavits, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, and frecholders and householders of the county.” (Zbid.) Note the important difference between these qualifications, and those in the former cases. 1. They must each be worth double the amount. 2. They must be freeholders and householders of the county. (Compare with § 194, ante, p. 75.) And no claim to such property by any other person than the defendant or his agent, shall be valid against the sheriff unless made as aforesaid. (Ante, p. 80, § 216; see Hdgerton v. Ross, 6 Abb. 189.) And notwithstanding such claim, when so made, he may re- tain the property a reasonable time to demand such indemnity. (Ante, p. 80, § 216.) This section applies only to cases where the property is taken by the sheriff in discharge of his duty, and not where it is wrongfully taken. (Keng v. Orser, 4 Duer, 436.) § 129. Undertaking to indemnify against the Claim of a Third Person. [Title of Cause.] Wuersas, the plaintiff has claimed the following property [describing it]; and Stephen Stone, of...... , claims the same as his property : Now, THEREFORE, we, John Johnson,of..... , [merchant], and John Jenks, of. ..... , [builder], undertake in the sum OF ai ae ee dollars to indemnify the sheriff of the county Of oes against the said Stone, if the said property be de- livered to the plaintiff. [Signatures.] [Date.] 638 REQUISITION OF PERSONAL PROPERTY. Claim by third person. Arrest for concealment of property. COUNTY OF 2.5 65 2 : John Johnson and John Jenks, being duly sworn, severally say, each for himself, as follows : 1. That he isa householder and freeholder in the county 2. That hed 18 WORER 6 ak aS. dollars [double the value of the property], over all his debts and liabilities, and exclusive of property exempt from execution. [Stgnatures.] [Jurat.] [Acknowledgment as in § 102.] Art. 11.—Arrest in case of willful concealment of the Property claimed. If, after the commencement of these proceedings, or in an- ticipation of them, the defendant conceals or disposes of the property claimed, so that the sheriff cannot find or take it, and with the intent that it should not be taken by the sheriff, he can be arrested. * (Ante, p. 72, 8179; as construed in Pike v. Lent, 4 Sand. 650; Loberts v. Randall, 8 Sand. 707; 5 How. 827.) The bail upon such an arrest is required to be not only for the defendant’s appearance, but also for the delivery of the property, and payment of all damages. (Ante, p. 74, § 187; p. 79, § 211.) Where the defendant disposes of the property before the commencement of proceedings against him, he can be arrested, but must be released on bail for his appearance only. (Pike v. Lent, 4 Sand. 650.) After the defendant has been arrested, the plaintiff cannot take possession of the property, although it should be found. (Semble, Chappel v. Skinner, 6 How. 338.) For the proceedings upon such arrest, see ante, p. 563. ATTACHMENT. 639 Nature of attachment under the Code. Cuartrr X XIX. ATTACHMENT. ' ARTICLE 1. Nature of the proceeding. . Whose property may be attached. . When attachment may be granted. . Who may grant the warrant. . Affidavit to obtain warrant. . Security upon attachment. The warrant. . What is liable to attachment. 9. Execution of the warrant. 10. Duties of the defendant’s debtors, ete. 11. Lien, how secured. 12. Disputed property. 18. Prosecution of actions in the name of defendant. 14, Vacating attachment. 15. Discharge of attachment. 16. Proceedings upon judgment for plaintiff. 17. Proceedings upon judgment for defendant. 18. Sheriff’s fees. Art. 1.—Wature of this Proceeding. There are three different forms of proceeding for attachment still in force, viz.: under the Revised Statutes (as amended), under the Act of 1831, abolishing imprisonment for debt (as amended), and under the Code. (See Furman v. Walter, 13 How. 352.) The provisions of the Code, however, are the only ones that are properly within our present purpose, the attachment therein allowed being strictly-a provisional remedy in the course of an action, while the other statutes provide an attach- ment that is entirely independent of the pendency of any action, and therefore falling under the head of special proceed- ings. (See Houghton v. Ault, 16 How. 79.) The attachment provided for by the Code is for the benefit of the individual creditor who applies for it, while an attach- ment under the Revised Statutes is for the benefit of all credit- s. (Misher v. Curtis, 2 Code Rep. 62; 2 Sand. 68; and see Ready v. Stewart, 1 Code Rep. N. 8. 299.) But other creditors may apply to be made defendants in the action, to protect their own interests. (/razer v. Greenhill, 3 Code Rep. 172.) oOoTtran Pp wp 640 ATTACHMENT.~ Nature of the proceeding. Whose property may be attached. An action cannot be commenced by a warrant of attach- ment. (Loughton v. Ault, 16 How. 79; Furman v. Walter, 13 id. 853; Morgan v. Avery, 2 Code Rep. 93; 7 Barb. 656 ; but see Zreadwell v. Lawlor, 15 How. 9.) This attachment is designed simply to furnish a security for the satisfaction of the plaintiff’s judgment, if he recover any. (Ante, p. 84, § 227.) Arr. 2. Whose Property may be attached. The property of the following parties may be taken upon attachment, under the provisions and restrictions of this chapter : 1. Foreign corporations ; 2. Non-residents of this State; 8. An absconding or concealed defendant ; 4, Any person removing property from the State, or dispos- ing of, or secreting the same, with the intent to defraud creditors ; 5. Any domestic corporation doing likewise. (Ante, p. 83, § 227.) Non-residents. |—As to what constitutes a residence, see ante, p. 555. Joint debtors. |—W here one of several joint debtors absconds, an attachment may issue against his property, including his interest in the joint stock. (Stoutendurgh v. Vandenburgh, 7 How. 233.) So, if one is a non-resident. (Baird v. Walker, 1 Code Rep. N.S. 329; 12 Barb. 300; Brewster v. Honigsberger, 2 Code Rep. 50.) ; But in such case, the attachment will not bind the joint pro- perty of all the partners, nor is the absence or absconding of one, sufficient to authorize an attachment against the property of all. (Stoutenburgh v. Vandenburgh, 7 How. 233.) Executors or administrators.|—An attachment cannot be granted against a non-resident executor or administrator, to enforce a claim against him in that capacity. (Matter of Hurd, 9 Wend. 465 ; Jackson v. Walsworth, 1 Johns. Cas. 375.) ATTACHMENT. 641 Against whom property granted. When granted. If he has become personally liable, an attachment may issue. (Matter of Galloway, 21 Wend. 32.) These decisions were made upon the old law, but would probably be applied to attachments under the Code, although the wording of the Code is not so clear. Art. 3.— When Attachment may be granted. Supp, 1. As to time. 2. As to circumstances, Supp. 1. As to time. An attachment cannot be had until a summons is issued. (Ante p. 84, § 227; but see Treadwell v. Lawlor, 15 How. 8.) It may be had at any time after the issuing of summons. (Ante, p. 84, § 227.) The summons is “issued,” within the meaning of this section (227) of the Code, when it is placed in the hands of any person authorized to served it, with a bond fide intent to have it served. § 99 of the Code does not apply. (fills v. Corbett, 8 How. 502.) The attachment and summons may be issued together to the sheriff. (Gould v. Bryan, 3 Bosw. 630.) The summons may generally be served either before or after the attachment. (Treadwell v. Lawlor, 15 How. 8; Moore v. Thayer, 10 Barb. 258 ; 6 How. 47; Hulbert v. Hope Mut. Ins. Co., 4 How. 275.) But in the N. Y. Superior Court or Court of Common Pleas, where the defendant is a non-resident, and jurisdiction of the action can be obtained only by serving him with summons in the city, 2¢ seems that the summons must be served frst, though the attachment may be served immediately afterward. (Gould v. Bryan, 3 Bosw. 629, 631.) Supp. 2. As to circumstances. In what actions.|—A warrant of attachment can only be granted in an action for the recovery of money. (Ante, p. 83, § 227.) But the action need not be for the recovery of money only. ( Ward v. Begg, 18 Barb. 139.) An attachment cannot be allowed in an action for damages 41 642 ATTACHMENT. When granted, In whose favor. Against whom. upon a wrong. (Hoaxzoom, J., Gordon v. Gaffey, 11 Abb. 1; overruling Hernstein v. Matthewson, 5 How. 196.) In favor of whom.J—A non-resident plaintiff may have , an attachment in the same cases as a resident. (Lveady v. Stewart, 1 Code Rep. N. 8. 297; but see Fraser v. Greenhill, 3 Code Rep. 172.) Except against a foreign corporation—in which case a non- resident plaintiff cannot have an attachment under the Code, unless the cause of action has arisen, or the subject thereof is situated within the State. (Ante, p. 149, § 427; Cantwell v. Dubuque R. R..17 How. 16; Western Bank v. City Bank, 7 id. 238; see I’ Donough v. Phelps, 15 id. 377.) The assignee of a demand may have an attachment in the same cases as his assignor might have had. (Besley v. Palmer, 2 Hill, 482.) The trustees of a non-resident debtor, appointed in attach- ment proceedings under the Revised Statutes, may obtain an attachment to collect claims due such non-resident. (Matter of Brown, 21 Wend. 316.) Against whom.J|—An attachment may issue whenever it appears by aflidavit that a cause of action exists against the defendant, and that such defendant is, 1. A foreign corporation ; or, 2. Not a resident of this State; or, 3. Has departed from the State with intent to defraud his creditors, or to avoid the service of a summons; or, 4. Conceals himself therein with like intent; or, 5. Has removed from the State, assigned, disposed of, or secreted any of his or (if a corporation), its property, or is about to do so, with intent to defraud creditors. (Ante, p. 84, § 229.) : Non-resident.|—See this subject fully reviewed, ante, p. 555. Departure from the State.|—It is not necessary that the de- fendant’s departure should be secret, in order to authorize an at- tachment. The intent is the only fact that can qualify the actual departure. (Morgan v. Avery, 2 Code Rep. 93; 7 Barb. 658.) As to the tntent, see Concealment, infra. ATTACHMENT, 643 ‘When granted. Against whom. By what officers. Concealment.|—lt is not necessary that the defendant’s con- cealment should have been to avoid service of summons, and to defraud creditors. Concealment for ezther purpose alone is sufficient to authorize an attachment. (Cammann v. Tompkins, 1 Code Rep. N.S. 13,15; 12 Barb. 265 ; see Morgan v. Avery, 2 Code Rep. 94; 7 Barb. 659.) Concealment for nine hours eld sufficient to authorize an attachment. And it is said that any space of time, however short, would be sufficient. (Cammann v. Tompkins, supra.) Disposing of property, etc.]—A threat by the debtor to assign his property so that the plaintiff shall get nothing, does not necessarily imply a fraudulent disposition of it, and will not be presumed to intend such, without corroborative circumstances. (Wilson v. Britton, 6 Abb. 97; 26 Barb. 562; Dickinson v. Benham, 10 Abb. 391.) For the debtor may dispose of all his property to one or more preferred creditors, without fraud, and without incurring apy liability to attachment. (lded.; Ligney v. Tallmadge, 17 How. 556.) Arr. 4.— Who may grant an Attachment. “ A warrant of attachment must-be obtained, 1. From a judge of the court in which the action is brought; or, 2. From a county judge.” (Ante, p. $4, § 228.) A “judge of the court” does not act as a commissioner in this proceeding, and it does not therefore die when his official term expires, but may be continued before another judge. (Davis v. Ainsworth, 14 How. 347.) NV. ¥. Superior Court and Court of Common Pleas.|—Judges of these courts can grant an attachment against a non-resident sued as a joint-debtor with another person who has been served with asummonsin an action commenced in such courts. (Anon., 1 Duer, 662.) And attachments may éssue out of these courts against non- resident debtors, defore they are served with summons, though such attachments cannot be executed until the summons is actually served. (Gould v. Bryan, 3 Bosw. 626; overruling 644 ATTACHMENT. Affidavit upon application. Positive averments. Fisher v. Curtis, 2 Sand. 660; Granger v. Schwartz, 11 N.Y. Leg. Obs. 346.) Arr. 5.—Afidavit to obtain Warrant. The application must be founded upon an affidavit. It could not be granted upon the complaint alone. (Ante, p. 84, § 229.) The affidavit must show that a cause of action exists against the defendant, specifying the amount of the claim, and the grounds thereof, and must further show that the case falls within the range of those heretofore specified, ante, p. 641. (Ante, p. 84, § 229.) The affidavit will be sufficient, if couched in the precise language of the Code, provided such statements are sworn to positively, and could reasonably be within the deponent’s actual knowledge. (Furman v. Walter, 13 How. 354.) But if any matters are stated upon belief, the grounds of belief must be fully set forth, so that the court can judge of their value. (did. ; St. Amant v. De Beiucedon, 3 Sand. 703 ; Cammann v. Tompkins, 1 Code Rep. N. 8.12; Morgan v. Avery, T Barb. 656; 2 Code Rep. 93; and see Fulton v. Heaton, 1 Barb. 552.) And where it is posztively sworn that the defendant has absconded, etc., with intent to defraud his creditors, the court will regard the allegation as made on belief, and require the facts to be set forth. For no one can know the defendant’s intent, however plainly it may be inferred from his words or acts. (Hurman v. Walter, 138 How. 355; Frost v. Willard, 9 Barb. 446.) Where an affidavit set forth that the plaintiff’s demand arose “upon a judgment, which deponent has been informed and believes was obtained in or about the year 1842,” it was held that the words “informed and believes” referred to the date only, and not to the fact of the existence of the judgment. (Donnelly v. Corbett, 3 Seld. 500.) Where in an affidavit by one of several plaintiffs, instead of saying “this deponent says,” the language used was “the plaintiffs aver,” etc., it was held sufficient, though not unex- ceptionable. (Jamison v. Beecher, 4 Abb. 230.) ATTACHMENT. 645 Affidavit on application. Form of affidavit. The affidavit need not be entitled, but must intelligibly refer to the action in which it is used. (Ante, p. 144, § 406.) And where the affidavit had no title—did not refer to the summons—did not mention in any place the name of the plaintiff or defendant, and in general was so indefinite that it could be used in any action as well as another, it was held entirely insufficient to sustain any proceeding. (Burgess v. Stitt, 12 How. 401.) By whom to be made.|—The facts should be sworn to by the persons who have actual knowledge of them. (St. Amant v. Biewcedon, 1 Code Rep. N. 8. 104; 3 Sand. 703.) The affidavit may be made by the plaintiff, as well as any other person. (Morgan v. Avery, 2 Code Rep. 93; T Barb. 658.) Filing.|—The affidavits must be filed with the clerk of the county in which the action is to be tried, within ten days after the warrant is granted. (Ante, p. 84, § 229; but see ante, p. 178, Rule 4, Supreme Court.) § 130. Affidavit on Application for Attachment. County or ..,.....: John Smith, of ....... , being duly sworn, says: 1. [State the cause of action, as thus:| That on the... day of. sa, ees LO ety Abas ee doe, aes , he sold and de- livered to John Jones, of ........ , sundry parcels of dry goods, of the value of ......... dollars, for which he has not béen paid ; 2. That deponent is about to commence an action in this court against the said Jones, for the price of the said goods, and has issued a summons therein; 3. That the said Jones has left this State, and gone to . shay ts 4. That deponent is informed by A. B., and believes, that the said Jones stated to him, on the. ... dayof....... ; 646 ATTACHMENT. Affidavit on application. Security upon application. 18 . ., that “he meant to get out of the way for a while, and let the storm blow over ;” meaning that he wished to avoid his creditors ; 5. That the said A. B., being the clerk of the said Jones, refuses to make his affidavit. [Jurat.] Joun Smiru. We do not suppose it to be necessary to set forth all the facts constituting a canse of action as in a complaint, yet it seems to us advisable to show very clearly the nature of the demand, and unless the items are numerous, it is best to state the species of goods, ete. for which the action is brought. In the case of an absconding debtor, corroborative affidavits will almost always be necessary. Art. 6.—Security upon Attachment. “Before issuing the warrant, the judge shall require a writ- ten undertaking on the part of the plaintiff, with sufficient surety, to the effect, that if the defendant recover judgment, the plaintiff will pay all ccsts that may be awarded to the de- fendant, and all damages which he may sustain, by reason of the attachment, not exceeding the sum specified in the under- taking, which shall be at least two hundred and fifty dollars.” (Ante, p. 84, § 280.) The plaintiff need not join in the undertaking. (Leffingwell v. Chave, 10 Abb. 477 ; 19 How. 58; Askins v. Hearns, 8 Abb. 189; Bellinger v. Gardner, 2 id. 441; see Courter v. I’ Na- mara, 9 How. 255; see contra, Richardson v. Craig, 1 Duer, 666.) § 131. Undertaking upon Attachment. [Title of Cause.] Wuereas, the plaintiff is about to apply for a warrant of attachment against the property of the above named John Jones: ATTACHMENT. 647 L Security by plaintiff. The warrant. Now, THEREFORE, we, John Johnson, of ...... , {mer- chant,] and John Jenks, of ...... , [builder,] undertake in the sum of ...... dollars, that if the said warrant be granted, and the defendant recover judgment in this action, the plaintiff shall pay all costs that may be awarded to the de- fendant in the same, and all damages which he may sustain by reason of such attachment. Joan Josnson, [Date.] Joun JENES. [Justification and acknowledgment as in § 102.) It is not essential that there should be two sureties, if the justice is satisfied with one. Liability of the plaintif’.j—Where an attachment is a nul-. lity, the plaintiff is responsible for all damages resulting from the taking and keeping the goods, and from as Be eenr6 of the sheriff in executing the same. (Supreme Court, general term, Kerr v. Moffatt, N. Y. Trans., Dec. 23, 1859.) Filing.|—The undertaking must be filed with the clerk of the court, with the approval of the justice indorsed thereon, within five days after the warrant is granted, or the attachment may be set aside. (Ante, p. 178, Rule 4, Supreme Court.] Arr. 7.—The Warrant. Form and nature of the warrant.|—The warrant was for. merly held to be process, and it was therefore required to run in the name of the people, ete. (Cammann v. Tonpkins, 1 Code Rep. N. 8.16; Morgan v. Avery, 2 Code Rep. 913; 7 Barb. 656; and see Conklin v. Dutcher, 1 Code Rep. N. 8. 49. Bee it has latterly been held to be merely a judge’s order. (Genin v. Tompkins, 12 Barb. 287; Bank of Lansingburg v. UM’ Bie, 7 How. 3643; and see Cruyt v. Phillips, 16 id. 124 ; Houghton v. Ault, id. 77; Furman v. Walton, 13 id. 353.) The warrant requires only the signature of the judge, with- out any formal teste, signature of clerk, or seal. The plaintifi’s 648 ATTACHMENT. The warrant. Form of warrant. attorney should sign it. No return day need be inserted. (Genin & Cammann v. Tompkins, 12 Barb. 287; reversing S. C., 1 Code Rep. N.S.16; and see Bank of Lansingburg v. M’ Kie, 7 How. 364; but see contra, Morgan v. Avery, 2 Code Rep. 91; 7 Barb. 656.) Lo whom directed.|—It must be directed to the sheriff of any county in which any property of the defendant may be. (Ante, p. 85, § 231.) Several warrants may be issued at the same time to the sheriffs of different counties. (L2d.) Purport of the warrant.|—It should require the sheriff to attach and safely keep all the property of the defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and expenses. The amount of the demand must be stated in accordance with the complaint, with the costs, ete. (Ante, p. 85, § 231.) / § 132. Warrant of Attachment. [Zirtle of Cause.] Gut the name of the People of the State of How Pork : It appearing by affidavit to the officer granting this war- rant, that the plaintiff is entitled to recover from the defen- dante. ae Ries dollars with interest thereon from the . . day,O8 ¢.o se ores , 18 . .; and that the above-named John Jones is not a resident of this State [or otherwise, as the case may be]: You aRE comMAnveD forthwith to attach and safely keep all the property of the said John Jones in your county, or so much thereof as may be sufficient to satisfy the said demand, with costs and expenses. [Date.] Browne & Morton, Plaintif’s Attorneys. To rue SHerier of THE County or [Judge’s signature.] ATTACHMENT. 649 What may be attached. : Evidence of debt. Art. 8.— What ts liable to Attachment. All the real and personal estate of the defendant, except articles exempt from execution, is liable to be attached; in- cluding money, bank-notes, all books of account, vouchers, and papers, relating to his property, debts, credits, and effects, and all evidences of his title to real estate. (3 2. S. (5th ed.) 80; [2 ed. 4.]) Jt seems, that everything liable to be taken on execution, may be also seized upon attachment. (Patterson v. Perry, 10 Abb. 93; Goll v. Hinton, 8 Abb. 120; Handy v. Dobbin, 12 Johns. 220.) The property attached must be either in the possession of defendant, or he must have a complete title to it. If the title remains in another person, the goods are of course not subject to attachment. Thus, where some lamps were made to order, and it was _ agreed that they should be delivered to the defendant in New Orleans, for cash payment, Aeld that they could not be attached for the defendant’s debts, while passing through New York. (Bates v. NV. Orleans R. L., 4 Abb. 79.) And merchandise sold and shipped to B. by A., cannot be attached for B.’s debts, so long as A. retains the right of stop- page in transitu. (Jones v. Bradner, 10 Barb. 193.) The defendant’s own bond or note, while in possession of himself or his agent, is not property within the meaning of the attachment laws, and cannot be taken under them. (Codding- ton v. Gilbert, 17 N. Y. 489; affirming S. C.,2 Abb. 242; 5 Duer, 72.) A debt due from a non-resident debtor to a non-resident creditor cannot be attached. (Jamus, J., Wellett v. Hyuitable Ins. Co., N. Y. Trans., Feb. 8, 1860; 10 Abb. 193.) Nor can the evidence of such debt, e. g., a bond or note for the amount, be attached. (Bates v. V. O. &. &., 4 Abb. 83.) Goods shipped to a consignee for sale on commission, may be attached in his hands for a claim against the consignor, but only in the way pointed out by §§ 235 and 236 of the Code. They cannot be taken out of the consignee’s possession. 650 ATTACHMENT. What may be attached. Partnership property. (Brownell v. Carnley, 3 Duer, 12; see Patterson v. Perry, 10 Abb. 90.) After the consignee’s lien is satisfied, the surplus is bound by the attachment. (Patterson v. Perry, 10 Abb. 82.) Money deposited in lien of bail may be attached. And where it was paid by A. to the sheriff to enable B. to obtain his release, it was held that it was loaned to B., that it became thereby his property, and was liable to be attached for his debts. (Salter v. Weiner, 6 Abb. 191.) But this decision was reversed at general term. (See 1 Abb. Digest, 360, note.) We presuine that the reversal was upon the latter ground. Letters and correspondence of any kind are not among the articles that may be taken on attachment. (Hergman v. Det- tlebach, 11 How. 48.) Jé seems that a bill of lading in the hands of a consignee is not propesty of the.consignor, within the meaning of the Code. (Patterson v. Perry, 10 Abb. 83.) Partnership property]|—may be attached under a warrant against one partner, and his interest therein be sold on execu- tion. (Goll v. Hinton, 8 Abb. 120; Hergman v. Dettlebach, 11 How. 46; Brewster v. Honigsberger, 2 Code Rep. 50.) And the books of the partnership may be seized, as well as any other property. (ergman v. Dettlebach, 11 How. 46.) The language of the court in the above cited decisions is sufficiently broad to cover all cases of attachment against an individual partner, even for his sole debts. But the claims actually before the court were partnership debts, although the attachments were granted against only one member of each firm. Property fraudulently assigned.|—The sheriff may seize property in the possession of a person claiming title under a bill of sale, assignment, ete., from the defendant, and may justify such seizure in an action brought by such person, by showing that the transfer was fraudulent. (Zhayer v. Willett, 9 Abb. 325; overruling Hall v. Stryker, id. 342; see Pratt v. Wheeler, 6 Gray [Mass.] 520.) ATTACHMENT. 651 Execution of warrant. Proceedings in general. Arr. 9.—Lxecution of the Warrant. Susp. 1. Proceedings in general. 2. Perishable property, and vessels. 8. Property incapable of manual delivery. 4. Sheriff's return. Susp. 1. Proceedings in general. The sheriff to whom the warrant is directed, “shall proceed thereon in all respects in the manner required by law in the case of attachments against absent debtors ; shall make and re- turn an inventory; and shall keep the property seized by ‘him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action; and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the defendant.” (Ante, p. 85, § 232.) He must, upon delivery of the warrant, immediately attach all the defendant’s property, as defined in the last article of this chapter, which he must safely keep to be disposed of by further order. (8 2. S. (5th ed.) 80; [2 zd. 4.]) The sheriff is not at liberty, without the express order of the court, to examine any books or papers seized, or to do any- thing with any property further than to keep tt safely. (Herg- man Vv. Dettlebach, 11 How. 46.) The sheriff who attaches the property should keep it even after his term expires. He is responsible, and not his succes- sor. (J Kay v. Harrower, 27 Barb. 4638.) How much should be attached.|—The sheriff is bound to seize enough property to pay the plaintiff’s demand, with costs and expenses. (Ante, p. 85, § 231.) He may seize the whole of the defendant’s property. (Lbid.) And if he only seize a part, it will be at his own risk, and he will be liable to the plaintiff if such part seized is insufticient | to satisfy his demand. (fansom v. Walcott, 9 How. 122; 18 Barb. 56; see I’ Kay v. Harrower, 27 Barb. 473.) It is no excuse for the sheriff, that the goods seized were ap- praised at more than enough to pay the demand. (ld7d.) 652 ATTACHMENT, Execution of warrant. Generally. Perishable property. But the plaintiff cannot insist upon the sheriff's attaching more than is reasonably likely to satisfy his demand. Thus, where the sheriff has attached property appraised at $466, to satisfy a claim of $200, Aeld that the plaintiff could not require him to attach more, though if upon sale the property proved insufficient, the sheriff would be liable. (M’ Kay v. Har- rower, 27 Barb. 473.) Inventory.|—He must, immediately on making the seizure, with the assistance of two disinterested freeholders, make a just and true inventory of all the property so seized, and of the books, vouchers, and papers taken into his custody, stating therein the estimated value of the several articles of personal property, and enumerating such of them as are perishable; which inventory after being signed by the sheriff and the appraisers, must within ten days after such seizure be returned to the officer who issued the warrant. (3 &. S. (5th ed.) 80; (2 ed. 4.]) Susp. 2. Perishable property and vessels—how disposed of. Perishable property.|—If any of the property seized, other than vessels, be perishable, the sheriff must sell the same, under the direction of the judge, at public auction, and retain in hig hands the proceeds of such sale, after deducting his expenses, to be allowed by such judge; which proceeds are to be dis- posed of in the same manner as the property itself would have been, if unsold. (8 &. S. (5th ed.) 80; [2 dd. 4.]; see Davis v. Ainsworth, 14 How. 346.) Vessels.]—If no claim be made and enforced, in the manner prescribed in Art. 12, (post, p. 656,) to a vessel or share in a vessel seized upon attachment, within thirty days after seizure, it may be sold by the sheriff under an order of the judge to be granted on the application of any attaching creditor, whenever in the opinion of such judge a sale may be necessary; or, in case of a share in a vessel, upon the application of any joint owner or his agent. (8 2. S. (5th ed.) 83; [2 td. 7.] See Ready v. Stewart, 1 Code Rep. N.S. 300.) ATTACHMENT. 653 Execution of warrant, Attachment of things in action. § 133, Order for the Sale of Perishable Property. [Title of Cause.] It appearing by the inventory made under the warrant of attachment granted by me in this action, that a certain portion of the property attached under said warrant by the sheriff of the county of ....... , is perishable, Orprrep: That [one hundred barrels of potatoes*] specified in the said inventory as perishable, be sold by said sheriff at pub- lic auction, at such time and place as he shall deem advisable, being within the city of ...... , after advertising the said sale for .... days in the........ newspaper, and written notice thereof being posted in three conspicuous places in said city for at least . . . . days before such sale. D. P. Ineragam. [Date.] Supp. 8. Property incapable of manual delivery, how attached. The attachment may be executed upon any interest in a cor- poration, debts or other property of the defendant, incapable of manual delivery to the sheriff, by leaving a certified copy of the warrant of attachment with the president, or other head of the association or corporation, or the secretary, cashier, or ma- naging agent thereof, or with the debtor, or individual holding such property, with a notice showing the property levied on. (Ante, p. 85, § 285.) This copy of the warrant should be served on the debtor, pre- sident, or other person holding such property, personally, in the same manner as a summons. (Orser v. Grossman, 11 How. 522; 4 E. D. Smith, 443.) Whether the service would be valid, if the papers were actu- ally received by the debtor, ete., from another person with whom they were left by the sheriff—query? (Lbid.) * It is not necessary to specify the property in the order, but if it will not take up much room, it is probably best to do so. 654 ATTACHMENT. * Execution of warrant. Duties of garnishees. The notice must specify the particular property levicd on, and a notice attaching “all the property of A. B., which is, or may come into your hands,” without any further description, is insufficient and void. (Wélson v. Duncan, 11 Abb. 6; Huhl- man v. Orser, 5 Duer, 242; and see Orser v. Grossman, 11 How. 522; 4 E. D. Smith, 443.) For the means of obtaining a description of property of this kind, see Arr. 10, infra. Property incapable of manual delivery is not attached, where the sheriff merely serves a copy of the warrant, without the notice herein prescribed, and without making an inventory. ( Wilson v. Duncan, 11 Abb. 6; Kuhlman v. Orser, 5 Duer, 250; see Lyman v. Curtwright, 3 E. D. Smith, 117.) When goods or merchandise should be thus attached.|—Mer- chandise in the custom house, the duties being unpaid, should be thus attached. (Kuhlman v. Orser, 5 Duer, 250.) So should merchandise in the hands of a third party, who re- ceived it for sale on commission. The proceeds, and not the goods, are the subject of the attachment, in such case. (Brownell v. Carnley, 3 Duer, 12.) Risk of claims thus attached.|—Where money in the hands of a trust company was thus attached, and not collected, and pending suit, the company failed; held that the loss fell on the defendant, (the judgment being against him), and that the amount was not to be considered as paid to the plaintiff. (I Bride v. Farmer's Bank, 7 Abb. 349.) Supp. 4. Sheriff's return. ‘When the warrant shall be fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought.” (Ante, p. 88, § 242.) Arr. 10.—Duties of the Defendant's Debtors, ete. Whenever the sheriff applies, with a warrant of attachment, to a managing officer of a corporation, or to any other person, for the purpose of attaching any property or rights of the de- ATTACHMENT. 655 - Duties of garnishees. Lien, how secured. fendant, such officer or person must furnish “a certificate un- der his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation with any dividend or any incumbrance thereon, or the amount and description of the property held by such association, corpora- tion, or individual, for the benefit of, or debt owing to, the de- fendant.” (Ante, p. 86, § 236.) Proceedings upon refusal of certificate.|—If such officer or individual refuse to furnish the certificate required, “ he may be required by the court or judge to attend before him, and be examined on oath concerning the same ; and obedience to such orders may be enforced by attachment.” (Ante, p. 86, § 236.) _ The order for examination cannot be granted if any certifi- cate is given, although it may only acknowledge a small amount of property, or none at all. (Carroll v. Finley, 26 Barb. 61; Hoagland v. Stodolla, 1 Code Rep. N. 8. 210.) But if the plaintiff can satisfy the judge that the certificate is false, it will be regarded asa refusal of the certificate re- quired by law. (Carroll v. Finley, 26 Barb. 61; Hopkins v. Snow, 4 Abb. 368.) Art. 11.—Lien, how secured. An attachment creates no lien until served. (Kuhlman v. Orser, 5 Duer, 250.) Leal estate.|—It is a sufficient attachment for the sheriff to enter real estate on his inventory. He need not go upon it, or go near it. (Learned v. Vandenburgh, 7 How. 381; 8 id. 77; Taylor v. Mixter, 11 Pick. 347.) But to secure the lien against subsequent purcbasers or incumbrancers, a notice of pendency of action must be filed. (Ante, p. 54, $1382; and see ante, p. 394.) A lien by attachment is as sacred as a lien by mortgage. (Lyon v. Sandford, 5 Conn. 548; cited and approved, Thayer v. Wellet, 9 Abb. 333.) Personal property|—must be taken into the actual possession of the sheriff, in order to create any lien upon it. (Learned v. Vandenburgh, 7 How. 381; 8 id. 77.) 656 ATTACHMENT. Disputed property. Other than vessels. Vessels. Art. 12.—Disputed Property. 1. Other than vessels.|—If anything (except vessels) seized by the sheriff, is claimed as the property of any person other than the defendant, he must summon and swear a jury to try the validity of such claim, in the same manner and with like effect as in seizure under execution. (Ante, p. 85,§ 233; 3 R. S. (5th ed.) 80; [2 2d. 4.]) If the jury find in favor of the claimant, the sheriff must forthwith deliver the property so claimed to him; unless the attaching creditor indemnify the sheriff for its detention by bond, with sufficient sureties, in which case the sheriff must detain such property as in other cases. (6id.) The form of this bond may be similar to § 134. The costs and charges of such inquisition are to be allowed by the judge issuing the warrant, and to be paid by the claim- ant, if unsuccessful; or if otherwise, by the attaching creditor. (3 BR. &. (5th ed.) 80; [2 id. 4.]) 2. Domestic vessels.|—If a vessel, or any share or interest in a vessel, belonging to any port or place in the United States, is attached, any person claiming such vessel or share, or his agent, may apply within thirty days thereafter to the judge who granted the warrant for relief. (8 &. S. (5th ed.) 81; [2 éd. 5.]) Must this application be made upon notice to the plaintiff? We presume s0. The judge, upon such application, may cause the vessel or share so seized to be valued by three indifferent men to be appointed by him. “ Within two days after such appraisement shall be made, the claimant or his agent may execute a bond with sureties to be approved by such” judge, “to the people of this State, in a penalty double the amount of such appraised value, conditioned that in a suit to be brought on such bond, the claimant will establish that he was the owner of such vessel or share at the time of the seizure, and in case of his failure to do so, that he will pay the amount of such valuation, with interest from the date of the bond to [any trustees who may be appointed ATTACHMENT. 657 Disputed property. Bond upon claiming American vessel, on such attachment]; or in case [none be appointed according to law, or] the attachment be discharged, to such debtor or his ‘ personal representatives.” (3 22. S. (5th ed.) 81; [2 dd. 5.]) The words inclosed in brackets are certainly inapplicable to attachments under the Code. It is presumed that the amount of valuation should be made, in such cases, payable to the sheriff. “Upon such bond being executed and delivered to such” judge, “he shall order the vessel or share so seized to be dis- charged from the attachment, and the sheriff shall discharge such vessel or share accordingly.” (8 2. S. (5th ed.) 81; [2 ad. 5.]) § 134. Bond upon Claiming an American Vessel or Share therein. Kwow ALL MEN BY THESE PRESENTS, that we, J. K., [shipmaster,] of the [city of Portland, State of Maine], L. M., [merchant,] of the [city of New York], and R. L. [ship-chandler], of the [same city], are held and firmly bound in the sum of......... dollars, to be paid to the people of the State of New York; for which payment well and truly to be made, we bind our- selves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated this. ...dayof..... The condition of this obligation is such that if the above named J. K. shall establish, in an action to be brought on this bond, that he was the owner of [the steamer Kennebec, o7, the one-fourth share of the schooner Liberty], heretofore seized under a warrant of attachment granted by Hon. [D. P. Ingra- ham, a justice of the Supreme Court], by the sheriff of the [city. and] county of [New York], at the time of such seizure ; or in case the said J. K. shall fail to establish such ownership on his part as aforesaid, if he shall pay on demand the sum of [the valuation], with interest from the date of this bond, to the sheriff of the [city and] county of [New York], or in case the attachment aforesaid be discharged, to C. D. defendant, or his : 42 658 ATTACHMENT. Disputed property. Claim for American vessel. executors, administrators, or assigns; then this obligation to be void; otherwise to remain in full force and virtue. Sealed and delivered ] J.K. [L.s.] in the presence of L.M. [x.8.] H. M. : R.L. [1.s.] [Justification and acknowledgment. ] Number of sureties.|—Jt seems, that the plaintiff may insist upon having two sureties to the bond; but, with his consent, one is sufficient. (Ward v. Whitney, 3 Sand. 404.) § 135. Order for Discharge of Vessel from Attachment. [Title of Cause.) A warrant of attachment having been granted by me against the property of the defendant in this action, and the [steamer Kennebec] having been seized by the sheriff of the [city and] county of [New York], under and by virtue of such warrant, which vessel is claimed by J. K., of the [city of Portland, State of Maine], as his property; and a sufficient bond having been given according to the statute, OrvereD: that the said [steamer Kennebec] be discharged from attachment under the warrant aforesaid, and that the sheriff aforesaid deliver the same to the said J. K. D. P. Ineragam, J. [Date.] am File the original order and the bond with the clerk. Upon. serving a certified copy of the above order on the sheriff, he must discharge the vessel accordingly. Action upon the bond.|—The [trustees] * (sheriff? or at- oe We incline to think that the duty of enforcing this bond, in attachments under the Code, falls upon the sherif. (See Arr. 13, post, p. 668.) ATTACHMENT. 659 Disputed property. American vessels. Foreign vessels. taching creditor ?) must immediately commence a suit upon the bond, or if the attachment be discharged, the debtor or his re- presentatives may prosecute such bond. (2. S. (5th ed.) 82; [2 2d. 5.]) ‘ ‘In such suit, the claimant may give in evidence in bar of a recovery, that he was the owner of the vessel or share seized, at the time of issuing such warrant.” (Zbid.) “Tf he tail toestablish such ownership, or if judgment shall pass against him by default or on demurrer, the party prose- cuting such suit shall recover the amount of the valuation of such vessel or share, with interest from the date of the bond, to be assessed as damages. (L6zd.) 3. Foreign vessels.|—Whenever a foreign vessel, or a share or interest therein, is attached, it may be valued in the same manner as a domestic vessel, upon the application of any per- son, who makes affidavit of his ownership, or makes affidavit that he is the agent of the owner, and that he verily believes his principal to be the owner of the vessel or share so at- tached. (3 &. S. (5th ed.) 82; [2 ed. 5.]) Such notice of this application shall be given to the plaintiff as the judge shall deem reasonable. (Lbid.) Within three days after such valuation shall be returned to the judge, the plaintiff must execute a bond with sureties to be approved by the judge, to the person in whose behalf such claim is made, in double the amount of the valuation, with a condition to prosecute such attachment to effect, and to pay such damages as may be recovered against him for seizing such vessel or share, in any suit that shall be brought against him within three months from the date of the bond, if it shall appear in such suit that the vessel or share belonged, at the time of issuing the attachment, to the claimant. (Zdzd.) Unless such bond be given as above prescribed, the judge must grant an order discharging the vessel or share so claimed from attachment. (did.) “Tf, after an attachment has been levied upon a foreign ves- sel, a valuation of the same, or the share or interest therein seized, be made, no other warrant of attachment shall issue against the same vessel, as being the property in whole or in 660 ATTACHMENT. Disputed property. Claim upon foreign vessel. Affidavit. part of the same debtor, until the security above prescribed shall be given by the person requiring such warrant.” (did.) § 136. Afidavit by Agent of Owner of Foreign Vessel. [Zitle of Cause.] [Crry anv] Counry or [New Yorx]: B. F., being duly sworn, says: 1. That he resides in the [city] of [New York aforesaid], and that he is, and has been for [five years] past, the agent of J. K., {merchant, of St. John, New Brunswick,] and that said J. K. is not now in this State, and has not been within the same for {one year] past, but resides at [St. John aforesaid. ] 2. That this deponent has had the consignment of the [bark Lord Riverdale,] on every occasion that it has visited this port for [five years] past, and has attended to the loading and un- loading, chartering and freighting of the said vessel, and has collected the freight money due upon its cargo on every such occasion, and has always followed the instructions of the afore- said J. K. in reference thereto, and accounted to him for moneys received on account of such vessel, and to no other person whatever ; except to the captain, whose name is W. J., under the instructions, and as the agent of said J. K. 3. That this deponent is informed, and for the above and many other reasons, verily believes, that the said vessel belongs solely and exclusively to the said J. K., and that C. D., the defendant in the above entitled action, has not now, had not at the time the attachment issued in the above cause, [and never had,] any right, title, claim, share, or interest in or about the said vessel or its appurtenances. 4. That on or about the....dayof..... , the sheriff of the [city and] county of [New York] seized upon the said vessel, and claims to hold the same by virtue of a warrant of attachment granted in the cause aforesaid by [Hon. D. P. Ingraham], a justice of the [Supreme] Court. ATTACHMENT. - 661 Disputed property. Proceedings concerning foreign vessels. property g' g g 5. That the said vessel does not belong to any port in the United States, but to a foreign port, to wit, ile port of [St. John, New Brunswick. ] B. FE. [Jurat.] 7 The above affidavit is of course only an example. It is always well to state fully all the grounds of belief in regard to ownership, when sworn to by an agent, as nine-tenths of affida- vits in such cases must be. § 187. Order to show Cause upon the preceding Affidavit. [ Trtle of Cause.] Upon the aftidavit of B. F. hereto annexed, let the plaintiff, or his attorney, show cause before me at chambers at the [City Hall in the city of New York] on the ..... day of 18 . ., at. . o’clock in the forenoon, why the vessel mentioned in the said affidavit should not be valued, and the plaintiff be required to execute a bond according to the statute, or the said vessel be delivered up to the claimant thereof. [ Date. D. P. Ineranam. Serve a copy of this order on the plaintiff's attorney, showing him the original. Serve also a copy of the affidavit. Notice of the valuation.|\—After the valuation is made, and returned to the judge, notice should be given at once to the plaintiff’s attorney, who must, as has been seen, give a bond within three days, or abandon the vessel. 662 ATTACHMENT. Disputed property. Proceedings concerning foreign vessels. § 138. Bond by Plaintiff to Claimant of a Foreign Vessel. Kyow atu MEN BY THESE PRESENTS, that we, A. B., L. M., and R.L., [all] of the [city of Neawy York], are held and firmly bound unto J. K. [the claémant] in the sum of. ...... dol- lars, [double the valuation,] for which payment well and truly to be made, we bind ourselves, our heirs, executors, and admin- istrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the. ..dayof....18.. Wuureas the above’ bounden A. B. has commenced an action against C. D., in which action an attachment has been granted against the property of the said OC. D. by [Hon. D. P. Ingraham, one of the justices of the Supreme Court] in pursuance of Chap. 4, Title 7, Part IL. of the Code of Procedure: AND WHEREAS, the sheriff of the [city and] county of New York has, under and by virtue of the same, seized a certain vessel called the [Lord Riverdale], belonging to a foreign port, to wit, the port of [St. John, New Brunswick], of which vessel the said J. K. claims to be the owner: AND WHEREAS, upon such claim being made in due form of law, appraisers were duly appointed, who have valued the said vessel with her appurtenances, at the sumof...... dollars, and three days not having elapsed since such valuation was made: Now, THEREFORE, the condition of this obligation is such, that if the said A. B. shall prosecute to effect the action in which such attachment aforesaid was issued, and shall pay all such damages as may be recovered in an action to be brought upon this obligation within three months from the date hereof, if it shall appear in such suit that the above-named J. K. was the owner of the said vessel at the time the said attachment issued; then this obligation to be void, otherwise to remain in full force and virtue. In witness whereof we have hereunto set our hands and seals, the day and year first above written. Sealed and delivered A.B. [eeel in the presence of L.M. [Ls.] H. F. RL. [L.s.] [Justification and acknowledgment.] ATTACHMENT. 663 Disputed property. Foreign vessels, Prosecution of actions. § 139. Order discharging Foreign Vessel from Attachment for want of a Bond. (fi ttle of Cause.) On reading and filing the return of the appraisers heretofore appointed by me, to value the foreign vessel [Lord Riverdale] according to the statute, and upon due proof of service of notice of such return upon the plaintiff’s attorney in this cause, and no bond having been submitted to me for approval within three days after such service, OrvereED : that the said vessel be discharged from attachment by the sheriff of the [city and] county of [New York], and delivered up to J. K. or‘his agents, according to law. [Date.] D. P. Ineranam. File this order and all papers with the clerk, and serve a cer-. tified copy on the sheriff. Arr. 13.—Prosecution of Actions in the name of the Defendant. 1. By the sheriff.|—The sheriff may take such legal proceed- ings, either in his own name, or in the name of the defendant, as may be necessary for the collection of any debts due, or the recovery of any property belonging to him; and may discon- tinue the same at such times and on such terms as the court or judge may direct. (Ante, p. 85, § 232.) Where the sheriff levies on a promissory note in course of pro- secution, he may continue the action in the name of the plain- tiff, or be substituted as plaintiff, as he may elect. (/ewssedd v. Ruckman, 3 E. D, Smith, 427.) By the plointif’.|—The plaintiff may take the prosecution of such suits into his own hands, upon delivering to the sheriff an undertaking executed by two sufficient sureties, to the effect that he will indemnify the sheriff from all damages, costs, and expenses on account thereof, not exceeding $250 in any one action. (Ante, p. 87, § 238.) “Such sureties shall, in all cases, when required by the 664 ATTACHMENT, Prosecution of actions in name of defendant. Vacating attachment. sheriff, justify, by making an affidavit, that each is a house- holder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities.” (Zdid.) § 140. ‘Undertaking upon Plaintiff taking Prosecution of Suits out of the Sheriff’s hands. [Title of Cause.] Wuerzas [John Kelly,] sheriff of the [city and] county of [New York,] has attached certain property of C. D., the above- named defendant, including [three promissory notes of H. M., N.L., and RB. 8.] concerning which it is intended to bring one or more actions: Anp Wuereas, the said sheriff has consented that such actions may be prosecuted by A. B., the above-named plaintiff, or under his direction : Now, THererore, we, J. P. of [No. . . . street, New York, merchant,] and J. 8. of [No. . . . street, New York, litho- grapher], undertake in the sum of [seven hundred and fifty] ‘dollars, that the said A. B. will indemnify the said [John Kelly] sheriff aforesaid, from all damages, costs, and expenses on account of such actions, not exceeding the sum of two hundred and fifty dollars in any one action. J.P. J.S. [Justification and acknowledgment as in § 102.] Arr. 14.— Vacating Attachment. Until the amendment of 1857, the Code provided no specific means for discharging the attachment otherwise than by giving security for the amount claimed. But the courts recognized the propriety of an application to yacate an attachment granted upon insufficient grounds, which application was however governed by the general rules and { ATTACHMENT. 665 Vacating attachment. Affidavits, practice of the court, and not by any regulations of the Code. (See Erie Bank v. Codd, 11 How. 221; reviewing the cases.) The defendant is now, however, expressly allowed by the Code, to move, “in all cases,” “to discharge the attachment, as in the case of other provisional remedies.” (Ante, p. 88, § 241.) The practice upon motions to vacate orders of arrest is therefore equally applicable to this motion. (See ante, p. 597.) The practice which existed before, the amendments of 1857, will nevertheless have considerable influence upon that which is now authorized, and reference is still made to the former decisions. (See Wélson v. Britton, 6 Abb. 34.) By whom motion may be made.]—The defendant is of course the proper person to move; but if he has no interest or dis- claims interest in the property attached, he cannot move to release it. (Semble, Hurman v. Walter, 13 How. 359.) Where, and how made.|—The motion may be made at chambers, and without notice, before the judge who granted the warrant, if it was (and it almost always is) granted in the same manner. (Ante, p. 118, § 324; and see Cayuga Bank v. Warfield, 138 How. 440.) Or it may be made to the court, upon the usual notice of eight days. (Ldzd.) Affidavits in support of motion.|—The motion may be sup- ported by affidavits. (Houghton v. Ault, 16 How. 78. Sun- dry cases to the contrary are superseded by the amendments of 1857.) The nature of these affidavits is substantially the same as in the case of an arrest. Counter-afidavits.|—If the defendant move upon affidavits, but not otherwise, the plaintiff may offer counter-aflidavits to support his case. (Ante, p. 77, § 205.) Whether the plaintiff may strengthen his case by counter- affidavits, and besides controverting the defendant’s affidavits, state additional facts upon which the attachment can be sus- tained; and whether, when the original affidavits would not 666 ATTACHMENT. Vacating attachment. Affidavits. Notice of motion justify the attachment, it may be sustained upon the new affi- davits, seems to be yet an unsettled question. (The negative is maintained in Dickinson v. Benham, 10 Abb. 391; Wilson v. Britton, 6 Abb. 34. The affirmative in Furman v. Walter, 18 How. 358; Genin v. Tompkins, 12 Barb. 282; Cammann v. Tompkins, 1 Code Rep. N.S. 13; St. Amant v. Beixcedon, 3 Sand. 703; 1 Code Rep. N.S. 104; Morgan v. Avery, 7 Barb. 656; 2 Code Rep. 92.) _A middle ground is taken by the court in one case, it being held that counter-affidavits might be used to support the origi- nal ones, and supply their defects, but not to sustain the at- tachment on different grounds from those at first adduced. (Lrie Bank v. Codd, 11 How. 230.) So the N. Y. Superior Court has held that an attachment which was void on the papers upon which it was originally granted, cannot be sustained upon new affidavits showing a valid ground for such remedy. (Boswortu, J., Granger v. Schwartz, 11 N. Y. Leg. Obs. 348.) § 141. Notice of Motion to vacate Attachment. [Title of Cause. ] Pease TAKE Notice, that [upon the affidavits herewith served, ] the defendant will apply to the Hon. [D. P. Ingraham, the justice who granted the same, or, to this court at a special term thereof, to be held at ...... ete.,Jon the .... day OE ds Fas Ge 5 at... o'clock, in the forenoon, for an order to vacate the warrant of attachment granted by [him] in this action, on the .... day of ......, 18.., fon the ground that....... af for wregularity state the ground fully,] and for such other relief as may be just, with costs of this motion. R. C, Wurcues, Defendant's At? y. To J. C. Deverevx, Esq., Plaintif’s Atty. ATTACHMENT. _ 3 667 Vacating attachment. Discharge of attachment. § 142. Order Vacating Warrant of Attachment. [Title of Cause.] On [the notice of this motion, and] the affidavits of A. B. and C. D.; and on motion of R. C. Hutchings, counsel for defen- dant, [after hearing J. C. Devereux, counsel for plaintiff :] Orverep: that the attachment granted by [me] against the property of the above-named John Jones, onthe .... day OF oe Sle eels , 18 . ., be discharged; and that the sheriff return to him all the property which he has taken under the same, and the proceeds thereof. [Judge’s signature. ] [ Date.] Art. 15.—Discharge of Attachment upon Security. After the defendant has appeared in the action, he may apply to the judge who issued the warrant, or to the court, for an order to discharge the same. (Ante, p. 88, § 240.) This application should be made on eight days’ notice to the plaintiff. (Ante, p. 189, Rule 39, Supreme Court.) “Upon such application, the defendant shall deliver to the court or officer, an undertaking executed by at least two sureties, who are residents and freeholders, or householders in this State, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint.” (Ante, @ 88, § 241.) . But “if it shall appear by affidavit that the property at- tached be less than the amount claimed by the plaintiff, the court, or officer issuing the attachment, may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised.” (Zbid.) The sureties must justify as in other cases, (ante, p. 178, Rule 6, Supreme Court,) but they are not required to justify in more than the amount of the undertaking. 668 ATTACHMENT. Discharge of attachment. Undertaking. § 143. Notice of Application to discharge Attachment. [Title of Cause.] Press Taxe notice, that application will be made to [Hon. William W. Scrugham, a justice of this court, 07, to a special term of this court, to be held] at the [court house] in the [vil- lage of White Plains, Westchester] County, for an order dis- charging the attachment granted [by him] in this action, upon due security. Yours, etc., L. C. Pratt, [Date.] Defendants Attorney. To Rozert Cocuran, Esq. Plaintif’s Attorney. § 144, Undertaking on Discharge of Attachment. [Title of Cause.) Wuereas, the sheriff of the county of ....... , has at- tached the property of the defendant: [o7, of the above named John Jones]: Now taererors, we, Benjamin Brown, of ..... . ; [tailor,] and Daniel Down, of ...... .» [grocer,] undertake, in the sum: of «2 2 = eH «% dollars, that if the said attachment be discharged, we will pay to the plaintiff, on demand, the amount of the judgment that may be recovered against the defendant in this action. [Signatures.] [ Date.] [Justification and acknowledgment as in § 102.] The justification need be only for the amount specified in the undertaking, but each surety must justify in that amount. ATTACHMENT. 669 Discharge of attachment. Judgment for plaintiff. § 146. Discharge of Attachment. [Title of Cause.] The defendant having given sufficient security for the plain- tiff’s demand : Orverep: that the attachment granted by me against the property of the above named John Jones, on the... . day Ol aid i % , 18 .., be discharged; and that the sheriff re- turn to him all the property which he has taken under the same, and the proceeds thereof. [Judge’s signature.] [Date.] Serve a copy of this order on the plaintiff’s attorney, and on the sheriff who has executed the warrant. File the undertaking and order with the clerk. Insolvent sureties. |}—W here, after :the order has been granted, the sureties become insolvent, the court has no power to order new ones to be given. (Dudley v. Goodrich, 7 Abb. 26.) Art. 16.—Proceedings upon Judgment for Plaintiff. If the plaintiff recover judgment, the sheriff must satisfy the game out of the property attached, if it be sufficient for the purpose. (Ante, p. 86, § 237.) Order in which property should be applied.]—The attached property is to be applied to the payment of the judgment in the following order : 1. The proceeds of all sales of perishable property, and of any vessel, or share or interest in one, and the amount col- lected upon any debts or credits attached, should first be paid to the plaintiff; or so much thereof as is necessary to satisfy the judgment. 670 ATTACHMENT. Proceedings upon judgment for plaintiff. Sale of notes, etc. 2. If any balance remain due, and an execution has been issued on the judgment, the sheriff must sell under the execu- tion so much of the attached property, real or personal, other than debts or evidences of debt, as may be necessary to satisty the balance. 3. Until the judgment be paid, the sheriff may collect the debts, notes, and other evidences of debt that have been seized or attached under the warrant of attachment, and may prose- cute any bond that he may have taken in the course of the proceedings, and apply the proceeds to the payment of the judgment. 4, At the expiration of six months from the docketing of the judgment, the court may, upon application in the man- ner prescribed below, order the sheriff to sell such part of the evidences of debt attached by him as remains uncol- lected, upon such terms and in such manner as shall be deemed proper. (Ante, p. 86, § 237.) Mode of application for sale of notes or bonds.|—If the de- fendant has appeared in the action, the usual notice of eight days must be given to him or his attorney. Or if the summons has not been personally served on the de- fendant, the court must direct the notice to be served in such manner and at such time before the application, as shall be deemed just. The application must be made on the following papers: 1. A petition of the plaintiff; 2. An affidavit setting forth fully all the proceedings had by the sheriff since the attachment, the property attached, and the disposition thereof. 3. The affidavit of the sheriff, that he has used diligence, and endeavored to collect the evidences of debt attached by him, and that there remains uncollected of the same some part or portion thereof. (Ante, p. 87, § 237.) Transfer by sheriff of shares of stock.|—In case of the sale of any rights or shares in the stock of a corporation or as- sociation, the sheriff shall execute to the purchaser a certificate of sale thereof, and the purchaser shall thereupon have all the ATTACHMENT. 671 Proceedings on judgment for plaintiff. Surplus property. rights and privileges in respect thereto which were had by such defendant.” (Ante, p. 86, § 237.) Leeclamation of property.J—“ If any of the attached property shall have passed out of the hands of the sheriff without having been sold or converted into money, such sheriff shall repossess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the attach- ment.” (Ante, p. 86, § 287.) Penalty for concealing property.|-—‘‘ Any person who shall willfully conceal or withhold such property from the sheriff, shall be liable to double damages at the suit of the party in- jured.” (Lbzd.) Disposal of surplus property.|—“ When the judgment and all costs of the proceedings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof.” Ante, p. 87, § 287.) But if the attaching creditor has executed a bond to retain possession of a foreign vessel, (see ante, p. 662,) the defendant cannot reclaim such vessel, (or share,) except by discharging such bond, or by executing a bond to such creditor in the same penalty, with sureties to be approved by the judge, conditioned to indemnify him against all charges and expenses in conse- quence of his bond aforesaid. (38 &. S. (5th ed.) 82; [2 ad. 6.) If the plaintiff’s bond be not discharged, or he be not indem- nified as above directed, within one month after the defendant becomes entitled to claim such vessel or share, such vessel or share may be sold by the sheriff in whose custody it may be, and the proceeds must be paid to the plaintiff who executed the bond, as an indemnity against the same. (Lzd.) Proceedings where sheriff’s term of office expires. |—The sheriff who seizes the property under a warrant of attachment, retains it after his term of office expires. His successor has nothing to do with the matter. (Jf Kay v. Harrower, 27 Barb. 463.) After judgment, a special execution should be issued to such 672 ATTACHMENT. Judgment for plaintiff. Judgment for defendant. Sheriff’s fees. ex-sheriff, reciting the attachment, the taking of the property thereon, and requiring a sale of that property by him. (Lbid.) Until this is done, such ex-sheriff cannot be placed in default - concerning such property. (Zdz2d.) For if he have the goods when a proper execution is pre- sented to him, and proceed to sell thereon, it is all that the plaintiff can require. (Ld¢d.) For the form of execution proper in this case, see vol. ii. \ Arr. 17.—Proceedings on Judgment for Defendant. If the defendant recover judgment in the action, the sheriff must deliver to him or his agent, on request, all proceeds of sales or moneys collected by him, all property attached, remaining in his hands, and any bond taken by him (except the bond prescribed in Arr. 13 of this chapter, (ante, p. 664.) The warrant shall be discharged, and the property released therefrom. (Ante, p. 88, § 239.) Judgment for defendant is not per se a discharge of the attachment. (Supreme Ct., Gen. T., Lee v. Selleck, N. Y. Trans., Dec. 23, 1859.) And an appeal duly taken suspends all the effect of the judgment. (Ldzd.) Arr. 18.—Sheriff’s Hees. The sheriff is entitled to the same fees and compensation for services, and the same disbursements, in attachments under the Code, as under the Revised Statutes. (Ante, p. 89, § 243.) The fee for serving the attachment is fifty cents. Sugh com- pensation is to be allowed for his trouble and expense in taking and keeping the property attached, as the judge who issued the warrant shall certify to be reasonable. (3 22. S. (5th ed.) 926 ; [2 ad. 646.]) For making and returning an inventory and appraisal, such compensation to the appraisers, as the judge shall allow, not exceeding one dollar each per day, for each day actually employed; and for drafting and copying the inventory, twenty- TEMPORARY INJUNCTION. 673 Sheriff's fees on attachment. Nature of injunction. five cents for drafting, and six and a quarter cents fur copying. (Lbid.) For selling any property attached, for the sum of $250 or less, 24 per cent.; for all over that sum, 14 per cent. For advertising the same for sale, two dollars; or if the action be settled, or the sale stayed, after advertising, one dollar. For advertising real estate for sale in a newspaper, the amount paid and allowed by law. (dzd.) If there has been no sale, the sheriff must apply to the judge who issued the warrant to fix his compensation, before he can claim anything beyond fifty cents. (Zope v. Page, 11 How. 209.) Cuaprer XXX. TEMPORARY INJUNCTION. ARTICLE 1. Nature of the proceeding. . Cases in which injunction should be allowed. . In whose favor it may issue. . Against whom it may issue. By whom granted. At what time granted. . Notice of application. . Papers on which to apply. . Security to be given. . Injunctions against corporations. . 11. Injunctions against State officers. 12. Order of injunction. 13. Service of injunction. 14. Obedience due to injunctions. 16. Disobedience—its punishment and effects. . 16. Motion to vacate or modify. 17. Affidavits on motion. 18. Order to vacate. 19. Effect of appeal, discontinuance, etc. 20. Assessment of damages. Art. 1.—Wature of the Proceeding. Oo OTAA Pw Py _ Oo There are now, as there were in the late chancery practice, two kinds of injunctions,—temporary and final. Temporary injunctions are such as may be granted during the pendency of : 43 674 TEMPORARY INJUNCTION. Nature of the proceeding. In what cases allowed. the action, and may or may not be required by the nature of the relief sought. Final injunctions are such as are prayed for by the complaint, and the obtaining of which forms a distinct object of the snit. But with final injunctions we have at present nothing to do. The proceeding here treated of is exclusively a provisional remedy, and the rules pertaining to it, as laid down here, and in § 218 to § 226 of the Code, do not in any way affect the law and practice upon final injunctions, granted as part of the judgment. (WV. ¥. Life Ins. Co. v. Supervisors of NV. ¥., 4 Duer, 200; Weustadt v. Joel, 2 Duer, 5382; [and see Reubens v. Joel, 138 N. Y. [8 Kern.] 488 3] Linden v. Hepburn, 5 How. 188.) The old “writ of injunction, as a provisional remedy, is abolished, and an injunction by order is substituted therefor.” (Ante, p. 81, § 218.) Arr. 2.—Cases in which an Injunction should be allowed. Supp. 1. Discretion of the court or judge. 2. Injunction upon the complaint. 8. Restraining acts pending litigation. ~ 4, Restraining fraudulent disposition of property. 5. General rules. Susp. 1. Diseretion of the judge. The language of the Code in regard to granting injunctions is permissive, not ¢mperative. And the judge to whom applica- tion is made should not grant an injunction in every case in which the applicant brings himself within the letter of the statute, but should use a sound discretion in the matter. (See Bruce v. Delaware and Hud. Canal Co. 19 Barb. $78; Gal- latin v. Orrental Bank, 16 How. 253; Fredericks v. Mayer, 1 Bosw. 232; Ltzpatrick v. Flagg, 5 Abb. 218.)' This agrees with the practice before the Code. (See VW. Y. Printing Establishment v. Fitch, 1 Paige, 98.) And the judge should consider the rights of both parties, the extent of the remedy really needed, and the probable effect of the injunction upon the interests of the defendant, as well as upon those of the plaintiff. (Bruce v. Del. and Hud. Canal Co., 19 Barb. 371; Gallatin v. Oriental Bk., 16 How. 253; see Harrison v. Newton, 1 Code Rep. N.S. 907.) TEMPORARY INJUNCTION. 675 In what cases. Discretionary. Upon complaint. And the remedy should in no case be disproportioned to the injury apprehended. (See Gallatin v. Oriental Bk., 16 How. 253.) “A most cautious discretion,” it is said, should guide the judges and courts in granting injunctions, and they should not be allowed when they will “operate oppressively, or work immediate injury, or where the right of the plaintiff is doubtful, or the facts are not clearly ascertained.” (Lredericks v. Mayer, 1 Bosw. 232; and see Crocker v. Baker, 38 Abb. 182.) Although the plaintiff brings his case within § 219 of the Code, yet if the justice of the claim for which the suit is brought is involved in serious doubt, the court should, in the exercise of a sound discretion, refuse to interfere. (Sretpen, J., Reubens v. Joel, 3 Kern. 492; approving Perkins v. Warren, 6 How. 341; see Spring v. Strauss, 3 Bosw. 611.) Discretion not absolute.|—Although the judge may exercise his discretion in granting or refusing an injuuction, his decision is not final. An appeal may be taken to the general term. (Ante, p. 126, § 349.) Supp. 2. Injunction upon the Complaint. “ Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff, ..... a tem- porary injunction may be granted to restrain such act.” (Ante, p. 81, § 219.) General rules.|—It is a general rule, that the plaintiff, in an application under this head, must not only show that he will sustain present injury, but also that he will be entitled to final relief. (Crocker v. Baker, 3 Abb. 182; Wordsworth v. Lyon, 5 How. 466.) And in addition to the above, it has generally been held, that he must be entitled to relief by a final injunction. (Duigan v. Hogan, 1 Bosw. 649; 16 How. 169; Ward v. Dewey, 7 How. 19; Corning v. Troy Factory, 6 id. 93; Townsend v. Tanner, 3 id. 884; see Hulce v. Thompson, 8 id. 477.) 676 TEMPORARY INJUNCTION. In what cases. Upon complaint. To aid an action. But the contrary was held in a later case. (Vermilyea — v. Vermilyea, 14 How. 470; 6 Abb. 511; and see Laurve v. Laurie, 9 Paige, 234.) It was necessary, before the Code, that the complaint should pray for a temporary injunction. (Walker v. Devereaum, 4 Paige, 248; Wood v. Beadell, 3 Sim. 273; Blomfield v. Eyre, 8 Beav. 259; 14 L. J. [cn.] 260; see Olsen v. Smith, 7 How. 481; Hovey v. M’ Crea, 4 id. 32.) But it is certainly unnecessary to do so, under the Code. (See Vincent v. King, 13 How. 239.) ' An injunction cannot be granted to restrain the doing of acts in relation to property, in respect to which acts or property no final judgment is prayed ;—although there might exist good cause for the injunction, and the complaint prays for relief as to other property. (Hulce v. Thompson, 8 How. 475.) Where the question is doubtful, the burden of proof lies upon the party applying for an injunction to show that the argument ab inconvenients is in his favor. (Child v. Douglas, 5 De Gex, M. & G. 739; see Coles v. Sims, 5 id. 9; Bruce v. Delaware and Hudson Canal Co., 19 Barb. 378; Grey v. Ohio and Penn. &. R. Co., Grant’s Cas. [Pa.] 412.) An injunction in a matter merely pecuniary should not be granted, where the probabilities are against the plaintiff’s suc- cess upon the trial of the cause. (Predericks v. Mayer, 1 Bosw. 232 ; Attorney-General v. Mayor of Wigan, 5 De Gex, M. & G. 52; see Richards v. Northwest Dutch Church, 11 Abb. 35.) To wid an action.J|—Injunctions have been allowed to aid actions not of an equitable nature, such as for the recovery of personal property. (Lrpstein v. Berg, 13 How. 92; Furniss v. Brown, 8 id. 63.) But an injunction cannot be allowed against waste, etc., in an action of ejectment. So held, under the English statute, which resembles, in this respect, the Code. (Baylis v. Le Gros, 2 C. B. [N. 8.] 822; 40 Eng. L. & E. 272; see Storm v. Mann, 4 Johns. Ch. 21; Davenport v. Davenport, 7 Hare, * 2177.) In an action for a limited divorce brought by a wife, an in- junction was granted upon the complaint to restrain the defen- TEMPORARY INJUNCTION. 677 In what cases. Staying proceedings in other actions. dant from removing his property out of the State. ( Vermilyea v. Vermilyea, 14 How. 470; 6 Abb. 511; see Rose v. Rose, 11 Paige, 169; Laurie v. Laurie, 9 id. 234.) And where the husband fraudulently assigned his property, both he and his assignee were enjoined from disposing of it. (Questel v. Questel, Wright’s Ohio Rep. 492.) Actions; to stay proceédings in other. |—An injunction cannot be allowed to stay proceedings in another action in the same court. (Arndt v. Williams, 16 How. 246; Hunt v. Farmers’ Loan Co., 8 How. 416 ; Dederick v. Hoysradt, 4 How. 350.) Nor in any other court of this State having jurisdiction in law and equity, so that full justice can be done therein. (Grant v. Quick, 5 Sand. 612; and see Bennest v. Leroy, 5 Abb. 55, 156; 14 How. 178.) The case of Grant v. Quick, supra, was approved by the judges of the Supreme Court, Superior Court of N. Y. city, and Common Pleas. (Jdid.; and see Conover v. Mayor of N. ¥., 25 Barb. 529; 5 Abb. 408.) It ought not to be assumed that any court in this State will refuse to do justice, and one court will not prevent anticipated injustice in another by injunction. (Leonarp, J., Edwards v. Bostwick, N. Y. Trans., Heb. 8, 1860.) : Notwithstanding, if the Supreme Court grant an injunction against proceeding in an action in a codrdinate court, the latter court may not interfere for the protection of its suitors against the consequences of disobedience. (Bennett v. Leroy, 5 Abb. 160.) Where any court having adequate powers for administering complete justice in the case, first obtains jurisdiction of the subject, it should confine litigation therein to itself. (Conover v. Mayor of N. ¥., 25 Barb. 531; 5 Abb. 410.) ‘ And if either party endeavor to divert litigation into another court, he should be restrained by injunction. (did.) But where an action was commenced in the Superior Court to have a mortgage declared vozd, and the defendant therein commenced an action afterward in the Supreme Court to Soreclose the same mortgage, the latter court refused to restrain proceedings in the suit before it, as the last action covered the 678 TEMPORARY INJUNCTION. In what cases. Restraining actions in other courts. broadest ground, and gave opportunity for rendering justice to both parties. (Tarrant v. Quackenboss, 10 How. 244.) Where an injunction is necessary to be had in reference to part of the subject of an action, although an ordinary stay of proceedings would suffice for the rest, an injunction may be allowed, broad enough to cover the whole case. (Chappell v. Potter, 11 How. 366.) If, after obtaining a judgment, the judgment creditor enter into a new contract qualifying his rights under such judgment, he may be restrained from proceeding in violation of such contract, by injunction. (Van Wagenen v. La Farge, 13 How. 16.) An injunction cannot be allowed at the instance of the bor- rower, to restrain a trustee from prosecuting an action for a loan, although such loan was made illegally, and in violation of his trust. (dfott v. U. 8. Trust Co., 19 Barb. 569.) Actions, multtplecity of.|—An injunction may be granted now, as heretofore, to prevent multiplicity of suits. (VW. Y. and NIT R. R. vi Schuyler, 8 Abb. 241; and see 8. C., 7 id. 69; 17 N. Y. 608; Conover v. Mayor of N. ¥.,5 Abb. 410; -25 Barb. 5381; Wellard’s Ly. Jur. 323; and see Heywood v. City of Buffalo, 14 N. Y. 541.) Actions in inferior courts.|—W here a justice’s judgment, re- gular on its face, is proved to have been rendered without jurisdiction, the Supreme Court will declare it void, and re- strain all proceedings upon it. (Cooper v. Ball, 14 How. 294.) Actions in courts other than of this State.|—An action should not be brought in a foreign court for the same cause as that upon which a suit has already been commenced in this State. (Field v. Holbrook, 3 Abb. 377.) And where an action is pending in this State between resi- dents thereof, upon a contract to be performed within it, and the form of the action is effectual for the deterniination of the whole controversy, the defendant will be restrained from bring- ing another suit on the same matter, in a foreign court. (Zdzd. ; see Carron Iron Co. v. Maclaren, 5 Ho. of Lds. 437.) TEMPORARY INJUNCTION. 679 In what cases. Actions. Chattels. Dividends. - But courts of this State will not enjoin against proceedings commenced in foreign courts before the State court gained juris- diction. (Meld v. Holbrook, 3 Abb. 383; Mead v. Merriti, 2 Paige, 404.) A State court has no jurisdiction to restrain proceedings on a judgment of a United States court. (Jf? Kee v. Voorhies, 7 Cranch, 281; 2 Curt. [U. 8.] 629; Phelan v. Smith, 8 Cal. 521; Schuyler v. Pelissier, 3 Edw. Ch. 193; Mead v. Merritt, 2 Paige, 404.) Nor has any United States court jurisdiction to enjoin pro- ceedings ina State court. (Diggs v. Wolcott, 4 Cranch, 180; 2 Curt. [U. 8.] 63.) Assessment.|—See Zaz, infra, p. 685. Canals.|—See Ratlroads, infra, p. 6843; also Arr. 11, post, p. 11, Chattels.|—Where a chattel, having a peculiar value for business or other purposes, is wrongfully detained, an injunc- tion may be granted forbidding its further detention or dis- posal. (Worth v. Great Northern Railway Co., 2 Giffard, 64.) And in any action for chattels, the plaintiff may have an in- junction restraining the defendant from disposing of, or injur- ing such chattels. (Wood v. Roweliffe, 3 Hare, 309; see Hunt v. Mootry, 10 How. 478; Erpstein v. Berg, 18 How. 92; Fur- ness v. Brown, 8 How. 63.) Cloud on title.|—See Taw, infra, p. 686. Confidence.|—See Trust, infra, p. 692. Copyright.|\—See Publication, infra, p. 683. Corporations.|—See Arr. 10, post, p. 709. Dividends j—to restrain payment of.|—The declaration of a dividend by a corporation that has not earned it, or when for ‘any reason such dividend would be illegal, may be restrained by injunction, at the suit of any stockholder, appearing on be- half of himself and others. (Carpenter v. V. Haven RP. L., 5 Abb. 279; Carlisle v. Southeastern Railway, 1 Macn. & Gor. 689.) 680 “TEMPORARY INJUNCTION. = In what cases, Dividends. Nuisance. Officers. But after the dividend has been declared, an injunction will not be allowed in such suit to restrain its payment. For then the right of each stockholder is separate from that of every other. (Zdid.) Landlord and tenant.|—Where a lease of land is made with a condition, express or implied, that the landlord shall permit natural ornaments (¢. g., a plantation of trees), to remain upon his own land, in.the vicinity of the premises leased, such a condition may be enforced by injunction. (Vicholson v. Rose, 4 De Gex & Jones, 10.) Land; misuse of.|—See Railroads, infra, p. 684; Tenant, infra, p. 687. Nuisance.]—A nuisance will be restrained by injunction, at the suit of any party specially injured. (Mtdhaw v. Sharp, 7 Abb. 220; see Davis v.. Mayor of NV. ¥.,14 N. Y. [4 Kern.] 526; Penniman v. N. Y. Balance Co., 18 How. 425 see Harrison v. Newton, 1 Code Rep.*N. 8. 208.) Or, if it is a public nuisance, at the suit of the attorney gen- eral. (Davis v. Mayor of NV. Y¥., 2 Duer, 663;8. C., 14 N. Y. [4 Kern.] 526.) Or, if several persons are all affected by a nuisance, they may all join in a prayer for an injunction. (Peck v. Elder, 3 Sand. 129 ».; Murray v. Hay, 1 Barb. Ch. R. 59; overruling Hudson v. Maddison, 12 Sim. 416; 5 Jur. 1194; and see Reed ‘vy. Gifford, Hopk. 419.) Nothing can be restrained as a nuisance, that the legislature, within its constitutional powers, has authorized. (Dento, J., Davis v. Mayor of N. ¥., 14 N. Y. 515; Bosworrs, J., Leigh v. Westervelt, 2 Duer, 621; but see Phanix v. Com’rs of Emigration, 1 Abb. 478, 474 see sa aaa infra ; Lad- roads, infra.) Officers ; to restrain from acting.|-—As to State officers, see Arr. 11, post, p. 711. As to Corporations, see Arr. 10, post, p. 709. As to Taw collectors, see infra, p. 685. An injunction cannot be allowed in an action in the nature of guo warranio, to restrain the defendant from exercising his TEMPORARY INJUNCTION. 681 In what-cases. Officers. . Partnership. office. (People v. Draper, 4 Abb. 333; and see Lewis v. Oliver, id. 121; Thatcher v. Dusenbery, 9 How. 32.) Nor to test the question of office indirectly. (Mayor of NV. Y. v. Conover, 5 Abb. 171; but see Same v. Flagg, 6 id. 296.) Unless they are acting in manifest violation of Jaw, or in bad faith, public officers should not be restrained by injunction. (Hartwell v. Armstrong, 19 Barb. 167; see Gillespie v. Broas, 23 id. 870; Litzpatrick v. Flagg, 5 Abb. 213; Leigh v. Wes- tervelt, 2 Duer, 618 ; Phania v. Com’rs of Emigration, 1 Abb. 466.) They should not be enjoined, when there is any other ade- quate legal remedy. (Semble, Heywood v. City of Buffalo, 14. N. Y. 531; Fuller v. Allen, 7 Abb. 12.) Partnership.}—An injunction may be granted on the application of one partner in a dissolved firm, to restrain the other partner from interfering with the partnership property, and a receiver may be appointed to take charge of the same. (Smith v. Jeyee, 4 Beav. 503.) But this may not be done when the fact of a partnership is not clearly established. (Goulding v. Bain, 4 Sand. 716.) An injunction (without a receiver), was allowed against asur- viving partner, being insolvent, on the application of the deceased partner’s representative. (Hartz v. Schrader, 8 Vesey, 317.) A partner having excluded his co-partner, he was enjoined from interfering with the enjoyment by the latter of his rights under the partnership, and from misusing partnership funds. (Hall v. Hall, 12 Beav. 414; see S. C., 3 Maen. & Gor. 84.) And a partner having removed the partnership books, was enjoined from continuing to retain them. (Taylor v. Davis, 3 Beav. 388 @.) An injunction to prohibit a partner from interfering in any way with the property, (a receiver being appointed,) cannot be allowed unless a dissolution is shown, or prayed for. (Zaid v. Hail, 3 Macn. & Gor. 88 ; see Smith v. Jeyes, 4 Beav. 503.) But ¢¢ seems that a partner may be restrained from destroy- ing property, although a dissolution be not prayed. (Jfiles v. Thomas, 9 Sim. 609.) After a firm has been dissolved, one of its members using the name of the firm ina manner calculated to deceive, may be 682 TEMPORARY INJUNCTION. In what cases: * * Party wall. Proceedings in other causes. enjoined on application of another prejudiced thereby. (Peter- son v. Humphrey, 4 Abb. 394.) Party wall.|—An injunction granted to protect a party wall. (Ogden v. Jones, 2 Bosw. 685.) Proceedings in other causes.|}—See Actions, ante, p. 677; Receiver, post, p. 685. After judgment has been rendered, the judgment debtor may have an injunction to stay proceedings thereon, if the case enti- tles him to relief. (Watt v. Rogers, 2 Abb. 265; Van Wage- nen v. Lafarge, 13 How. 16.) So may the owner of the judgments, they being held by another person as securities. (Storer v. Coe, 2 Bosw. 662 ; Chap- pell v. Potter, 11 How. 366.) This was not allowed in chancery, against proceedings under its own decrees. (Dyckman v. Kernochan, 2 Paige, 26.) Proceedings (summary) to recover possession of land.J|—These proceedings cannot be stayed by any writ or order. (3 RS. (5th ed.) 839 ; [2 id. 516]; § 47.) This section includes injunctions, and is not repealed by the Code. (Duigan v. Hogan, 1 Bosw. 645 ; 16 How. 164; Hyatt v. Burr, 8 How. 168; Wordsworth v. Lyon, 4 id. 463 ; over- ruling Cure v. Crawford, 1 Code Rep. N. 8. 18; Capet v. Parker, id. 91; see Sceback v. M’ Donald, 11 Abb. 95 ; Murks v. Welson, 11 Abb. 87.) But an injunction may be granted when the justice has no jurisdiction. (Capet v. Parker, 1 Code Rep. N. 8.90; andsee Bokee v. Hamersley, 16 How. 461.) Or in case of fraud, collusion or surprise. (Forrester v. Wil- son, 1 Duer, 6243 [explained, Duigan v. Hogan, 1 Bosw. 650] ; and see Bokee v. Hamersley, 16 Wow. 461; Marks v. Wilson, 11 Abb. 87.) Or, (so it has been held,) where the tenant has an equitable defence that he is precluded from setting up before the justice. (CirrKe, J., Valloton v. Seignette, 2 Abb. 121; and see Bokee v. Hamersley, 16 How. 461; but see contra, Dugan v. Mogan, 1 Bosw. 647; 16 How. 168.) This opinion of one judge is overbalanced by the unanimoug _ TEMPORARY INJUNCTION. 683 In what cases. Publication, when restrained. Purpresture. decision of the N. Y. Superior Court to the contrary. (See Duigan v. Hogan, supra.) ' Publication ; restraining.|—Courts of equity always had jurisdiction to restrain infringements of copyright, and conld, independent of any statute, enjoin against the publication of a work without the consent of the author. (Woolsey v. Judd, 4 Duer, 385; 11 How. 49; and cases cited.) The author is at liberty to withhold his work from publication altogether, and will be protected in this right. (Prince Albert v. Strange, 1 Macn. & Gor. 25; 1 Hall & Tw. 1.) Not only books and literary compositions, but private letters, of no value in a literary or pecuniary point of view, will be protected from unauthorized publication. (Woolsey v. Judd, 4 Duer, 879; 11 How. 49; citing Gee v. Pritchard, 2 Swanst. 424; Thompson v. Stanhope, Ambler, 737; Pope v. Curl, 2 Atk. 342; and overruling Hoyt v. Mackenzie, 8 Barb. Ch. R. 820; Wetmore v. Scovill, 3 Edw. Ch. R. 515; Percival v. Phipps, 2 Ves. & Bea. 24.) Lectures, orally delivered, will also be protected from unan- thorized publication. (Abernethy v. Hutchinson, 1 Hall & Tw. 28; 3 Law Jour. (cn.] 209.) See also Trade marks, infra, p. 691. Publication of legal proceedings.}—An injunction cannot be granted to restrain the publication of proceedings at law in the same or any other court. The only remedy is by petition or motion in the cause. (Wood v. Marvine, 3 Duer, 674.) Publication of a libel]|—cannot be restrained. (Brandreth v. Lance, 8 Paige, 24.) Publication of a secret.]|—The publication of a secret pro- cess of manufacture, although in violation of contract, cannot be restrained. (Deming v. Chapman, 11 How. 384; Walliams v. Williams, 3 Meriv. 160; Mewbury v. James, 2 id. 450.) But if the recipe is obtained through surreptitious means, the use or publication may be restrained. (Youatt v. Wen- yard, 1 Jac. & W. 894; see Trust, breach of, intra, p. 692.) Purpresture.J—A court of equity “has jurisdiction to res- 684 TEMPORARY INJUNCTION. . In what cases. Purpresture. Railroads. + train any purpresture, or unauthorized appropriation of public property to private uses, which may amount to a public nui- sance, or may injuriously affect or endanger the public in- terest.” (Watworru, Cu., Atty. Gen. v. Cohoes Co., 6 Paige, 135 ; see failroads, infra.) Railroad, covenant by.J—A covenant to stop all trains at a certain station will be enforced by injunction. (Lindsey v. Gt. Northern Leailway, 19 Eng. L. & E. 87; 10 Hare, 664.) Railroad discontinuance of.|—An injunction was granted against the discontinuance of a portion of the track of a railroad. (People v. Albany and Vermont R. BR. Co., 11 Abb. 136.) Railroads ; misuse of lands appropriated for.|—Where a railroad authorized by the legislature to take private property for specific purposes, uses the same for unauthorized purposes, the corporation will be restrained at the suit of the original owner, whose rights and comforts are prejudiced thereby. (Bostock v. North Staffordshire Railway, 3 Sm. & Giff. 283.) Leailroads ; trespass by.]—An injunction should be granted to prevent a railroad from using or continuing to use a‘bigh- way without compensation to the owner of the fee. Even the legislature cannot authorize such a course. ( Welliams v. New York Central R. &., 16 N. Y. 111; reversing 8. C., 18 Barb. 222.) Railroad ; when a nuisance.|—Lt seems, that a railroad laid in a crowded highway is a nuisance. (Davis v. Mayor, etc., of NV. Y¥.,14 N. ¥. 524; but see ebid. 581; Hentz v. 2.2. RK. R., 13 Barb. 656 ; Drake v. Hud. Riv. R. R., 7 id. 548, 556.) The legislature may authorize such a road to be laid, but no inferior power can-do so. (Davis v. Mayor of NV. ¥., 14 N.Y. 524.) A road so laid without legal authority is certainly a nuisance, and may be restrained by injunction, on the application of the attorney-general, or of any one specially injured. (dftdAaw v. Sharp, 7 Abb. 220; Wetmore v. Story, 3 id. 2933 and see Davis v. Mayor of N. Y., 14 N. Y. 526.) i TEMPORARY INJUNCTION. 685 In what cases. Receiver, Restraint of services. Leceiver.}—One court should not enjoin a receiver ap- pointed by another court of codrdinate jurisdiction. (Leonarp, J., Edwards v. Bostwick, N. Y. Trans. Feb. 8, 1860.) Services ; restraining a party from giving his.|—As a gene- ral rule, an injunction cannot be granted to prevent a party from violating a contract to render exclusive service to an em- ployer. (Mredericks vy. Mayer, 13 How. 571.) But a distinguished opera singer was enjoined from singing in a certain theatre, in violation of her contract with the manager of another. (Lumley v. Wagner, 1 De Gex, M. & G. 604; 18 E. L. & E. 252; overruling Kemble v. Kean, 6 Sim. 333; see contra, Sanguirico v. Benedetti, 1 Barb. 315; Hamblin v. Dinneford, 2 Edw. Ch. 529.) A court of equity may interfere in regard to “services which involve the exercise of powers of the mind,” and which in their nature can only be rendered xalieentely by the defendant. “This element of mind, exhibited in the subject of the contract, as distinguished from what is mechanical and material, may, perhaps, furnish a rule of distinction and decision.” (Per Horray, J., Fredericks v. Mayer, 13 How. 571.) So where the change of services would almost certainly in- volve the violation of professional confidence, as in the case of attorneys’ articled clerks. (Semble, 2bd.) - Stock.|—See Transfer of Stock, infra. Tax or assessment ; illegal.|—The collection of an illegal tax by legal officers cannot be restrained by injunction. ( Welson v. Mayor of N. ¥.,1 Abb. 4; Chemical Bank v. Mayor of NV. Y¥.,id. 79; W. Y. Life Ins. Co. v. Supervisors of N. ¥., id. 250; 4 Duer, 192; Dodd v. City of Hartford, 25 Conn. 237. & in the case of an assessment by local authorities. (J7Zey- wood v. City of Buffalo, 14.N. Y.534; Blake v. City of Brook- lyn, 26 Barb. 801; Bouton v. Same, 15 id. 375; Mayor, etc., v. Meserole, 26 Wendl. 132; Sayre v. Ti copra 23 Mo. 443.) Nor will the court interfere on the ground that the officers a 6386 TEMPORARY INJUNCTION. In what cases. Taxes and assessments. imposing the assessment are legally disqualified from holding office. (Lhatcher v. Dusenbury, 9 How. 32.) ’ The U. 8. Supreme Court has, however, enjoined the collec- tion of an unconstitutional tax. (Dodge v. Woolsey, 18 How. [U. 8.] 340.) The sale of real property under an illegal assessment cannot ‘be enjoined, in cases wlfere the purchaser must show, in case of legal dispute, that the assessment was legal. (Heywood v. City of Buffalo, 14.N.Y. 545; Van Doren v. Mayor of N. ¥., 9 Paige, 390.) But where, by statute, the lease given under such sale is con- clusive evidence of ownership, and cannot be impeached on account of the invalidity of the assessment, the granting of such lease may be enjoined. (Mutwen, J., Mathews v. Mayor of NV. ¥.,N. Y. Trans. Feb. 10, 1860.) “The general rule established by the decisions seems to be subject to three exceptions: 1. Where the proceedings in the subordinate tribunal will necessarily lead to a multiplicity of actions ; 2. Where they lead, in their execution, to the commission of irreparable injury to the freehold ; 3. Where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved, in order to establish the invalidity or illegality.” In such cases equity will interpose. (T. A. Jounson, J., Hey- wood v. City of Buffalo, 14 N. Y. 541; followed, Baldwin v. City of Buffalo, 29 Barb. 400.) Where the commissioners of assessment allowed one dollar for land notoriously worth $1200, it was held to be a case with- in the third division above, and an injunction was allowed. (Baldwin v. City of Buffalo, 29 Barb. 401.) Where an irresponsible officer threatened to sell a large quantity of valuable property belonging to A. for a tax against B., an injunction was granted, upon payment of the tax into court, or the execution of a bond with two sureties for the amount. (/uller v. Allen, 7 Abb. 17.) Tenant ; enforcing covenants of.J|—A covenant by a te- TEMPORARY INJUNCTION. 687 In what cases. Tenants, Covenants in restraint of trade. nant, that he will not use the premises demised to him for cer- tain purposes, will be protected from violation by injunction. (Dodge v. Lambert, 2 Bosw. 570; Howard v. Hilis, 4 Sand. 369.) The covenant will be enforced, although it be a mere matter of taste. (See Steward v. Winters, 4 Sand. Ch. 590.) A covenant against violation of the law and policy of the State (¢. g., the Sunday laws), should be peculiarly favored. (See Dodge v. Lambert, 2 Bosw. 578.) A covenant to carry on a particular business on the premi- ses cannot be enforced by injunction. (Hooper v. Brodrick, 11 Sim. 49.) But the tenant may be restrained from doing or permitting anything to be done which will prevent the premises from being used for such business. (Zd2d.) Tenant; misuse of premises by.]|—A tenant will be re- strained from pulling down a house leased to him, and build- ing another on its site, against the will of his landlord, with- out regard to the question whether such charge would be an improvement or an injury to the premises. (Smyth v. Car- ter, 18 Beav. 78.) Trade; contracts.in restraint of.|—These contracts were re- garded with great disfavor by the common law, and a curious instance of judicial wrath is recorded in regard to'them. (See 2 Parsons on Contracts, 254, note.) But the general doctrine has been limited to this principle— that a covenant not to exercise a trade anywhere is void, but a covenant against the same, limited to a reasonable extent of district, within which competition would be possible, is valid. (2 Pars. on Cont. 254.) A distinction is drawn between a trade and a profession. And a covenant not to practise Zaw within Great Britain was held valid, though with some hesitation. (Whittaker v. Howe, 3 Beay. 394.) And “if a party covenants that he will not carry on his trade within a certain distance, or in a certain place, within which the other party carries on the same trade, a court of equity will restrain the party from breaking the agreement so made.” (2 Story’s Equity Jurisprudence, § 122 a; Gales v. Hart, 5 Jur. 688 TEMPORARY INJUNCTION. In what cases, Trade marks. [N. S.] 13881; Whzettaker v. Howe, 3 Beav. 394; see Dun- can v. Walker, 1 Johns. [Eng.] 446.) But this is allowed, because of “ the utter uncertainty of any calculation of damages.” (2 Story’s Ey. Jur. § 722 a.) So that if the contract names a penalty for its violation, an injunction cannot be granted, but the party aggrieved must sue for the penalty. (Vincent v. King, 13 How. 238. But the very reverse is held in England: les v. Hart, 5 Jur. [N. 8.] 1881; Wechols v. Stretton, 7 Beav. 42.) Even if the defendant be insolvent, the case is not altered. ( Vincent v. King, supra.) A contract not to engage or practise in a business, is violated by acting as an employee in such business, and such violation will be enjoined. (Vincent v. King, supra; Rolfe v. Rolfe, 15 Sim. 90.) Trade-marks ; infringement of.j—Every manufacturer is entitled to select such mark or title for his goods as he may choose, provided that he does not adopt a mark or word already in common use. And any infringement, or attempt to deceive the public by an imitation of such mark, will be repressed by injunction. ( Walliams v. Johnson, 2 Bosw.1; Brooklyn White Lead Co. v. Masury, 25 Barb. 417; Amoskeag Co. v. Spear, 2 Sand. 605; Coats v. Holbrook, 2 Sand. Ch. 586; Taylor v. Carpenter, 42. 613.) So a manufacturer may be protected in the exclusive use of his own name. And though he transfers the good-will of the business to another person, the latter cannot use the name of the former, and may be enjoined from so doing. (Howe v. Searing, 19 How. 14; but see contra, Churton v. Douglas, 1 Johns. [Eng.] 174.) The fraudulent change of trade-marks, by which an inferior article is palmed off as one of a superior grade, although both are manufactured by the same person, will be restrained on application of the manufacturer. (G2llott v. Kettle, 3 Duer, 626.) A defendant may be enjoined from counterfeiting a trade- mark, although the plaintiff has ceased to use it, or to manu- facture the article. (Lemoine v. Gauton, 2 E. D. Smith, 347.) TEMPORARY INJUNCTION. 689 In what cases. Trade-marks. : What are protected. Mere colorable differences, not easily detected, will not prevent an injunction. (Wéllzams v. Johnson, 2 Bosw. 6; Clark v. Clark, 25 Barb. 78; Brooklyn Lead Co. v. Masury, id. 418; Amoskeag Co. v. Spear, 2 Sand. 608.) In deciding what differences are colorable, the court will consider their effect on the public, rather than on manufac- turers, if the article is such that the public are likely to pur- chase it on the strength of the trade-mark. (Shrimpton v. Laight, 18 Beay. 164.) An injunction will not be granted if the words used are such as have been, or might reasonably have been used to desig- nate the article manufactured, before the plaintiff adopted them. (Wolfe v. Goulard, 18 How. 64; Burgess v. Bur- gess, 17 Eng. L. & E. 257; 38 De Gex, M. & G. 896.) A “trade-mark” must be framed so as to indicate the origin or ownership of the goods, and not merely their quality, So the words “ Premium,” *“‘ Best,” “ No, 1.” ete., etc., cannot become the exclusive property of any one, under guise of a trade-mark. (Amoskeag Co. v. Spear, 2 Sand. 606; and see Stokes v. Landygraff, 17 Barb. 608.) But words, which in themselves might be common property, may not be put together in such form, color, and appearance generally, as to deceive purchasers into the belief that they are buying another article. (Welliams v. Johnson, 2 Bosw. 9.) So the use of the defendant’s real name, in a manner in- tended and likely to deceive, will not be allowed. Thus, where a hotel had been kept’ for many years by one Lovejoy, and after his death by other persons, using still the name of “ Lovejoy’s Hotel,” another Lovejoy opened an inn under the name of “Lovejoy House,” he was restrained from so doing. (Lilby v. Lovejoy, not reported. See Churton v. Douglas, 1 Johns. [Eng.] 174 ; Rodgers v. Nowill, 3 De Gex, M. & G. 614; Burgess v. Burgess, 3 De Gex, M. & G..896; 17 Eng. L. & E. 257; Croft v. Day. 7 Beav. 84.) Two manufacturers of the same name must so use their names as not to deceive the public. Every man has a right to the use of his own name, but he must avoid imitating the mark of another bearing the same name. (Clark v. Clark, 25 Barb. 79; Rodgers v. Nowill, 3 De G., M. &. G. 614; Croft 44 690 TEMPORARY INJUNCTION. In what cases. Trade-marks. False marks not protected. v. Day, 7 Beav. 84; Taylor v. Taylor, 23 Eng. L. & E. 281; 23 L. J. [cn] 255; Sykes v. Sykes, 3 Barn. & Cr. 541; 5 Dowl. & Ryl. 292.) The assignee of a. trade-mark will be protected against an encroachment by a person of the same name as the assignor; (Libby v. Lovejoy, supra; Croft v. Day, T Beav. 84;) or against the assignor himself. (Ohurton v. Douglas, 1 Johns. [Eng.] 174.) The legitimate use by any man, of his own name, cannot be interfered with. (Burgess v. Burgess, 3 De Gex, M. & G. . 904; 17 Eng. L. & E. 257.) An injunction will not be granted to protect a plaintiff who is himself counterfeiting another man’s mark, so as to give him an exclusive power to deceive. (Samuel v. Berger, 4 Abb. 88; Partridge v. Menck, 2 Sand. Ch. 622; 1 How. Cases, 548; semble, Stewart v. Smithson, 1 Hilton, 121.) Nor if the plaintiff is otherwise imposing by fraudulent statements on the public. (Hobbs v. Francais, 19 How. 571; Fetridge v. Wells, 4 Abb. 144; Perry v. Truefitt, 6 Beav. 76 ; but see Letridge v. Merchant, 4 Abb. 156; and per Suruer- LAND, J., Comstock v. White, N. Y. Trans. Feb. 17, 1860; contra.) Thus, where the plaintiff falsely stamped his articles with the word “patented,” an injunction for his protection was refused. (Flavel v. Harrison, 10 Hare, 471, 472.) But where an article had really been patented, but the patent having expired, the plaintiff continued to use the same label which he-had always used, and which included the word “ patented,” this was held justifiable, and no ground for deny- ing an injunction for plaintiff's benefit. (Hdelsten v. Vick, 11 Hare, 86.) And the plaintiff may be protected in the use of a fictitious name. (Stewart v. Smithson, 1 Hilton, 121.) If the facts are doubtful, or if the case is for any reason not clear, an injunction should not be granted before a verdict upon the issues. (Wolfe v. Goulard, 18 How. 69; Samuel v. Berger, 4 Abb. 88; Fetridge v. Merchant, id. 161; Merrimack Oo. v. Garner, 2 id. 826 ; Amoskeag Co. v. Spear, 2 Sand. 618; Spottiswoode v. Clarke, 2 Phillips, 156; 2 Sand. Ch. 628; TEMPORARY INJUNCTION. 691 In what cases. Trade-marks. Transfer of property. Motley v. Downman, 3 Myl. & Cr. 17; Farina v. Silverlock, 6 De G., M. & G, 214; 39 Eng. L. & E. 514; see S. C.,, + Kay & J. 650.) But security may be required for an accounting. (Letridge v. Merchant, Spottiswoode v. Clarke, supra.) The protection of a court of equity in this respect is not con- fined to manufactures, but has been extended to-the owners of lines of vehicles. (Stone v. Carlan, 3 Code Rep. 68; Anott v. Morgan, 2 Keen, 218; see Marsh v. Billings, 7 Cush. 322.) To hotel- kespals, (dloward v. Henriques, 3 Sand. 725; Libby v. Lovejoy, ante, p. 689.) To proprietors of places of amusement. (Christy v. Murphy, 12 How. 77.) To the proprietor of a dining saloon, whose sign was counter- feited by a neighboring saloon. (Genin v. Chadsey, N. Y. Trans., Jan. 10, 1861.) To publishers whose publications have been imitated. (Hogg v. Kirby, 8 Ves. 215; see Bell v. Locke, 8 Paige, 75; Snow- den v. Noah, Hopk. 847.) Transfer of property.}—An injunction may be granted upon the suit of a judgment creditor, in what is commonly known: as a creditor’s bill, to restrain the debtor from disposing of his property. But such an injunction cannot be allowed in an ordinary action for a debt, which has not been established by judgment, nor enforced by execution, and where the transfer complained of has been consummated before the commencement of the action. (leeubens v. Joel, 18 N. Y. [8 Kern.] 488, 4925; over- ruling Mott v. Dunn, 10 How. 225.) A mere verdict will not sustain such a proceeding. (Moran v. Dawes, Hopk. 365.) In an action to recover specific personal property, it was held that an injunction might issue to restrain the defendant from transferring it. (Expstein v. Berg, 13 How. 92; Furnass v. Brown, 8 id. 63; but query ? see Logers v. Michigim Southern L. £., 28 Barb. °542,) Transfer of stock.|—A corporation having become insolvent, and its officers having fraudulently issued stock to an amount far exceeding its real capital, an injunction was granted against 692: TEMPORARY INJUNCTION. Ip what cases. Transfers. Breach of Trust. further transfers of stock, so as to avoid confusion. (People v. Parker Vein Co., 10 How. 187 ; affirmed, id. 544.) Transfer of bonds, notes, etc.|\—Where the defendant has obtained possession of negotiable instruments under an invalid contract, and is not of sufficient responsibility to answer for them, he may be restrained from parting with them, because if they passed into the hands of bond fide holders, they would be valid. (State of Illinois v. Delafield, 8 Paige, 527; 2 Hill, 177; approved, 16 N. Y. 187.) Trespass ; apprehended.]—Injunctions to restrain an appre- hended trespass, unless under very special circumstances, are never allowed. (Mayor of WV. Y.v. Conover, 5 Abb. 180; Marshall v. Peters, 12 How. 218; Jerome v. Loss, T Johns. Ch. 831; Livingston v. Hud. River R. &., 3 Code Rep. 148; see Akrill v. Seldén, 1 Barb. 317.) As to circumstances justifying such injunction, see Mayor of NV. ¥. v. Conover, 5 Abb. 178; 8. C. contra, 5 id. 263; Jerome v. Ross, supra. Trust, breach of.|—Trust and confidence were always pecu- liarly within the jurisdiction of chancery, and are still taken cognisance of by courts of record under the new practice. And a breach of trust will be prevented by injunction in many cases where, but for the element of trust, a court of equity would not interfere, although great injury might be inflicted. Thus, while the court will not restrain the publication of a secret communicated under a contract not to reveal it, it will enjoin the same, if acquired surreptitiously, and in breach of confidence. *(Youatt v. Winyard, 1 Jac. & W. 394.) Where the defendant had been in the confidential employ of the plaintiffs, and had taken extracts from their books and papers, and afterward threatened to publish the same, he was enjoined from so doing, and from retaining any copies of such extracts in his possession. (v2dé v. Price, 1 Sim. 483.) An attorney who has appeared for one party in a cause, but has withdrawn from the same, will be enjoined from appearing or acting for the opposite party, and from communicating any knowledge obtained by him in his former relation. (Chol- mondeley v. Clinton, 19 Vesey, 261.) TEMPORARY INJUNCTION. 693 In what-cases. Breach of trust. Waste. A motion for such an injunction may be made in the course of such action, without commencing a new action against the attorney. (Semble, b/d.) Where a specific article, or a specific sum of money, is held in trust for the plaintiff by the defendant, the court will enjoin the latter from disposing of or removing it, as a breach of trust; without any regard to the pecuniary responsibility of the defen- dant, however ample that may be. (Merrett v. Thompson, 3 E. D. Smith, 296.) Usury.J—An injunction cannot be granted to enforce (in effect) a forfeiture on account of usury, for the benefit of a judgment creditor of the party legally entitled to the benefit of such forfeiture. (Boughton v. Smith, 26 Barb. 635.) Where it is manifest that the plaintiff may suffer loss by per- mitting the defendant to realize upon securities held by him for usurious loans, the court should restrain such collection, although the money so collected would be entirely safe in the detendant’s hands. (Slorer v. Coe, 2 Bosw. 662.) Waste.|—Injunctions.are frequently granted to prevent waste by a tenant. And a mortgagor in possession may be-restrained from waste. (Brady v. Waldron, 2 Johus. Ch. 148.) So may a purchaser under a judgment, not having paid for the property. (Casamajor v. Strode, 1 Sim. & Stu. 881.) An injunction to stay waste by tenants in common with the plaintiff, lies in special cases. (Hawley v. Clowes, 2 Johns. Ch. 122.) An injunction cannot be granted in favor of the plaintiff in an action of ejectment, while the same is undetermined, (Baylis v. Le Gros, 2 C. B. (N. §.] 822; 40 Eng. L. & E. 272; Storm v. Mann, 4 Johns. Ch. 21; Davenport v. Davenport, T Hare, 217; see People v. Mayor of N. ¥., 10 Abb. 111.) But it may be granted to stay waste, where the mischief will be irreparable, or the defendant is insolvent, although the title is in dispute under summary proceedings. (Spear v. Cutter, 4 How. 177.) it seems, that if the defendant threatened such entire destruce- tion to the estate as to raise a strong presumption that he had 694 TEMPORARY INJUNCTION. In what cases, Water courses. Acts pending suit. no confidence in his title, an injunction might be allowed. (Lalbot v. Scott, 4 Kay & John. 126, 133.) Waste of personal property.]—In an action for chattels, the defendant gave security under § 211 of the Code, and retained the property. On application, he was enjoined from injuring or disposing of it, during the pendency of the suit. (unt v. Mootry, 10 How. 480.) Water cowrses.|—The jurisdiction of courts of equity to grant relief by injunction against the diversion of water courses is well established. (Olmsted v. Loomis, 9 N. Y. [5 Seld.] 428; Belknap v. Trimble, 8 Paige, 600; Gardner v. Village of Newburgh, 2 Johns. Ch. 164.) And a temporary injunction should be granted in cases where a final injunction would be proper. (Corning v. Troy factory, 6 How. 94.) But if the plaintiff’s injury by a diversion of water could be easily compensated in damages, while an injunction would work great injury to the defendant (the latter being of un- doubted responsibility), it should not be granted, as a provi- sional remedy. (Bruce v. Del. and Hud. Canal, 19 Barb. 379.) : Susp. 3. Restraining acts pending litigation, in violation of plaintiff's rights. “When during the litigation it shall appear that the defen- dant is doing, or threatens or is about to do, or procuring or suffering some act to be done, in violation of the plaintiff’s rights respecting the subject of the action, and tending to ren- der the judgment ineffectual, a temporary injunction may be granted to restrain such act.” (Anite, p. 81, § 219.) The plaintiff’s “rights,” in order to be protected by injune- tion, must be such as can be enforced in the court to which he applies. (Surueriann, J., Leogers v. Mich. Southern R. L., 28 Barb. 541.) This provision is only applicable to acts threatened, etc., pending suit, and cannot be made the foundation of an action. (Setpen, J., Reubens v. Joel, 13 N. Y. [8 Kern.] 492; overrul- ing Dott v. Dunn, 10 How. 225; Malcolm v. Willer, 6 How. TEMPORARY INJUNCTION. 695 In what cases. Acts pending suit. General rules. 456; see Mitchell v. Bettman, 25 Barb. 408; Merritt v. Thompson, 8 E. D. Smith, 295; Sebring v. Lant, 9 How. 347 Pomeroy v. Hindmarsh, 5 id. 488.) It does not apply to acts that have been accomplished before the aid of the court could be invoked. (2eubens v. Joel, 13 N. . Y. [8 Kern.] 488; Weustadt v. Joel, 2 Duer, 5381; Perkins v. Warren, 6 How. 347, 348.) ; Supp. 4. Restraining fraudulent disposition of property. “ Where, during the pendency of an action, it shall appear by affidavit, that the defendant threatens or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such re- moval or disposition.” (Ante, p. 81, § 219.) This clause, like the previous one, has no application to a case where the transfer has been made. (Reubens v. Joel, 13 N. Y. [8 Kern.] 488; approving Perkins v. Warren, 6 How. 347.) Where an assignment has been made, the assignee cannot be restrained from disposing of the property, in an action by a simplé contract creditor of the assignor. (feubens v. Joel, 13 N. Y. [8 Kern.] 488; overruling Mott v. Dunn, 10 How. 225; Malcolm v. Miller, 6 id. 456.) , A mere threat to make an assignment for the benefit of creditors will not justify the issuing of an injunction. (Pomeroy v. Hindmarsh, 5 Wow. 488; see Dickinson v. Benham, 10 Abb. 391; Welson v. Britton, 6 Abb. 97.) Effect and extent of injunction.|—An injunction granted under this clause cannot restrain the defendant from disposing of his property in a proper manner, but only from doing so with intent to defraud his creditors. (Brewster v. Hodges, 1 Duer, 610.) And Mrrcsett, J., modified an injunction by inserting the words “with intent” ete. But query, per Roossverr, J., whether this is not, so far as movables are concerned, a mere brutumn fulmen? (Mitchell v, Bettman, 25 Barb. 408.) Supp. 5. General Rules. An injunction should not be granted to restrain an injury which may be amply compensated by damages. (Marshall 696 TEMPORARY INJUNCTION. In what cases. General rules. Injunction negative only. v. Peters, 12 How. 221; Bruce-v. Del. and Hud. Cunal, 19 Barb. 878; Spear v. Cutter, 4 How. 177.) It seems, that an injunction will not be granted, when its purpose can be as fully accomplished by any other proceeding, é. g.,an attachment. (2eogers v. Mich. So. R. L.,28 Barb. 541; Mitchell v. Bettman, 25 id. 413.) ‘But an injunction will not be refused merely because the plaintiff would be entitled, on the same state of facts, to an order of arrest. (Merritt v. Thompson, 3 E. D. Smith, 294.) An injunction cannot be granted, however clear the original right may be, if the trespass be complete and perfect. (Jore- land v. Richardson, 22 Beav. 604; Deere v. Guest, 1 Myl. & Or. 522; At?y Gen. v. M.S. BR. R., 2 Green Ch. 141; see Perkins v. Warren, 6 How. 348.) Injunction prohibitory only.\—The form of an injunction must always be in the negative. A party cannot be enjoined to do any act, but only from doing a thing. (Attorney Geni, v. New Jersey R. R. Co.,2 Green Ch. R. 141; Lane v. Vew- digate, 10 Ves. 193.) - Nor, in general, should an injunction attempt to do indi- rectly that which it cannot do directly, as to enjoin the de- fendants from hindering the plaintiff from resuming possession of real estate, the title being in dispnte—or from “ continuing to keep” their works out of repair, ete. (Asrill v. Selden, 1 Barb. 317 ; Blakemore v. Glamorgan Canal, 1 Mylne & Keen, 183 ; [disapproving Lane v. Newdzgate, 10 Ves. 19453} Deere v. Guest, 1 Mylne & Cr. 522.) But in peculiar cases, this power has been exercised, and the jurisdiction of a court of equity in this respect is not de- nied, although Brovenam, Cu., thought it should not be ex- tended to new cases. (dftlligan v. Mitchell, 1 Myl. & K. £52; see Blakemore v. Glamorgan Canal, supra.) The rule appears now to be settled, that where the defendant has taken an aggressive step, clearly against law, and specially injurious to the plaintiff, he may be compelled by a * manda- tory injunction” to retrace his steps. And the Code expressly authorizes an injunction against the continuance of anact. (Ante p. 81, § 219.) Thus, where a partner had removed the books of the firm, TEMPORARY INJUNCTION. 697 In what cases. ~ General rules, Mandatory injunctions. an ‘injunction was granted against his “keeping them at any other place than the place of business” of the firm. (Gveatrex v. Greatrex, 1 De G. & Sm. 693; Taylor v. Davis, 3 Beav. 888 e; see Whattaker v. Howe, id. 887, 395; Hvitt v. Price, 1 Sim. 483.) A “mandatory injunction” was granted to restrain defend- ants from “permitting” a communication with a sewer “ to continue.” (Manchester Railway v. Worksop Board of Healthy 23 Beay. 209.) So defendants were enjoined from “ continuing to maintain and uphold walls erected” to obstruct the plaintiffs. (Great North. Railway v. Clarence Railway, 1 Collyer, 517, 521, 526.) Injunction granted against “ permitting water to flow through” a communication improperly made. (dfexborough v. Bower, T Beav. 133.) So against continuing an excavation already made across a road. (Spencer v. Lond. and Bir. R. R., 8 Sim. 198.) So against permitting buildings partly erected, to remain. (Rankin v. Luskisson, 4 Sim. 16.) So where the defendant had obstructed the passage of smoke from the plaintiff’s flues, by placing tiles upon the top of the chimneys, he was enjoined from continuing to do so. (Hervey v. Smith, 1 Kay & J. 389.) Covenant protected by penalty.|—Whether a covenant pro- viding for “liquidated damages” in case of breach, could be enforced by injunction—guery ? (See Vincent v. King, 13 How. 238.) Jé seems, that such a condition does not absolutely prevent the issuing of an injunction. (Coles v. Sims, 5 De Gex, M. & G.9; Giles v. Hart, 5 Jur. [N. 8.] 1881; Wecholls v. Stretion, 7 Beav. 42.) Damnum absque injuria. J—An injunction cannot be allowed to prevent a consequential injury from the lawful exercise of a right. (Williams v. NW. Y. Cent. R. &., 18 Barb. 247; see 8. C., 16 N. Y. 103.) Nominal interest.|}—Nor to protect a merely nominal inte- rest. (Per Srrone, J., Wetmore v. Story, 3 Abb. 281.) 698 TEMPORARY INJUNCTION. In what cases, In whose favor. Illegal contract.|—A party to an illegal contract cannot be relieved or protected thereon by injunction. (Bennett v. Am. Art Union, 5 Sand. 631; see Mott v.U. S. Trust Co., 19 Barb. 568.) Res Adjudicata.]—An injunction cannot be allowed in op- position to a previous authoritative decision, or for the purpose of reviewing a previous one. (Livingston v. Hud. Rw. LR. L., 3 Code Rep. 148; Maclaren v. Carron Co.,.26 L. J. [cn] 332.) Arr. 3.—In whose favor Injunction allowed. An injunction can only be granted for the benefit of a plain- tiff, unless the complaint on its face shows that the defendant is entitled to one. (Thursby v. fills, 1 Code Rep. 83.) If the defendant wishes to, obtain an injunction, he should commence a cross suit. (Lbid.) On the other hand, it was held by the general term, Ist dist., that an injunction may be granted in a proper case to a defen- dant who asks for and is entitled to affirmative relief. (vote v. WV. ¥. Silk Co., N. Y. Trans. Dec. 23, 1859.) Under special circumstances, it appearing that the pro- secution of the suit was really managed by one of the defen- dants on the record, an injunction was granted against him, on the application of a co-defendant, the order reciting such fact. (Ldgecumbe v. Carpenter, 1 Beav. 173.) An injunction for the benefit of persons who are not parties to the action is improper, although granted on the plaintiff’s application. Thus, an injunction to restrain proceedings at law against persons not parties to the equity suit, was dissolved. ( Waller v. Harris, 7 Paige, 173.) Public injuries.J—A public nuisance, not inflicting injury on one person more than on all others in the county, town, or ward, ete., can only be restrained on application of the attorney- general. (Davis v. Mayor of N. Y,2 Duer, 663; 14 .N. Y. 506; Mechling v. Kuttaning Bridge Co., Grant’s Cas. [Pa.] 419 ; see Leigh v. Westervelt, 2 Duer, 621; see Vuisance, ante, p. 680 ; and Purties, ante, p. 449.) TEMPORARY INJUNCTION. 699 Against whom. By whom granted. Arr. 4.—Against whom injunction may issue. Against a party only.|—An injunction can only be granted against a party to the action. (People v. VW. Y. Com. Pleas, 8 Abb. 181; Watson v. Fuller, 9 Dow. 426 ; Fellows v. Fellows, 4 Johns. Ch. 25; Lveson v. Harris, 7 Ves. 257; and see Ed- monston v. M? Loud, 19 Barb. 361.) But the defendant has no right to object to it on this ground. (Zradesmen’s Bank v. Merritt, 1 Paige, 304; contra, Fellows v. fellows, 4 Johns. Ch. 25.) The court will not, however, enforce obedience to such an injunction, on an ex parte application for an attachment. (Sem- ble, Watson v. Fuller, 9 How. 426.) An injunction against persons not parties is only operative asa notice. (Sage v. Quay, Clarke, 348; see Edmonston v. AL’ Loud, 19 Barb. 361.) Exception—Purchaser.|—A purchaser under a judgment may be enjoined from waste, without bringing a new action. (Casamajor v. Strode, 1 Sim. & Stu. 381.)- Counsel.|—Although it is usual and proper to enjoin the defendant, “his attorneys, counsellors, and agents,” in injunc- tions against proceedings at law, yet it is not proper to enjoin counsel by name, and make them parties to the suit, unless they clearly exceed their province as counsel. (Jlayor of WV. Y. v. Conover, 5 Abb. 267.) Arr. 5.—By whom Injunction may be granted. Against State officers.|—An injunction to restrain State offi- cers, or persons employed by them, from executing any duty devolved upon them by law, can be granted only by a general tern of the Supreme Court, sitting in the district in which the board of officers (if any) is located, or where such duty is re- quired to be performed. (Laws 1851, ch. 488, p. 920.) Against corporations. |—* An injunction to suspend the gene- ral and ordinary business of a corporation, shall not be granted except by the court, or a judge thereof.” (Ante, p. 82, § 22+). 700 TEMPORARY INJUNCTION. By whom granted. "At what time. Notice. Ln ordinary cases.|\—An injunction may be granted by the court in which the action is brought, or by a judge thereof, or by a county judge. (Ante, p. 81, § 218.) A county judge has no power to grant an injunction in an action not triable within his county; and if he do, it is void, not voidable. (Ante, p. 148, § 403; as construed in Eddy v. Howlett, 2 Code Rep. 76; Chubbuck v. Morrison, 6 How. 367.) Perhaps an injunction, without notice, can be granted by the county judge of the county where the plaintiff’s attorney resides, under. the amendments of 1859. (See ante, p. 143, § 401; 6 How. 368.) The general term of the Supreme Court may grant an in- junction. (Drake v. Hud. Riv. R. R., 2 Code Rep. 67.) It is probable that this is not true of any other court, as the duties of the several terms are more clearly defined by law. (See ante, pp. 287, 291.) Art. 6.—At what Time Order may be granted. “The injunction may be granted at the time of commencing the action, or at any time afterward, before judgment.” (Ante, p. 81, § 220.) The. practical construction given to this section is, that the injunction may be granted before the summons is actually served, but will not take effect, of course, until it (the in- junction) is served, which must be done after, or simultaneously with, service of summons. (Leffingwell v. Chave, 10 Abb. 474.) It cannot be granted until a complaint has been either served or filed. (Morgan v. Quackenbush, 22 Barb. 76; People v. NV. Y. Com. Pleas, 3 Abb. 181.) Arr. 7.— Notice of Application. “Tf the court or judge deem it proper that the defendant, or any of several defendants, shonld be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted ; and the defendant may, in the meantime, be restrained.” (Ante, p. 82, § 223.) TEMPORARY INJUNCTION. 701 Notice of application. Order to show cause. After answer|—an injunction cannot be allowed, unless upon notice, or order to show cause, with temporary restraint as above. (Ante, p. 82, § 221.) Discretion of court.|—An order to show cause under this section is not a matter of course, especially with a restraining clause. (Androvette v. Bowne, 4 Abb. 440.) Unless special reason is shown, the application should be made on the regular eight days’ notice. (Zd¢d.) As to Security, see Art. 9, infra, p. T04. As to State officers, Art. 11, infra, p. 711. As to papers upon whach to apply, see Arr. 8, infra, p. 702. § 145, Injunction with order to show Cause. [Title of Cause.] An the name of the People of the State of Het Pork : For the causes stated in the annexed [complaint and’ affida- vits]: You are comMANDED torefrainfrom ...........2.. until the decision of the motion herein mentioned. And you are required to show causé before me [or, at a special term of this court],at........ yon the... . day Of ace We ee acy , 18 . ., why this injunction should not be con- tinued until judgment be rendered in this action. [Judge's signature. ] (Date.] To Joun Jones, Defendant. 702° TEMPORARY INJUNCTION. Papers on which to apply. Complaint. Art. 8.—Papers upon which to apply. Susp. 1. The complaint. 2. Affidavits. Supp. 1. The complaint. An injunction can in no case be granted until a complaint is served or filed. (Morgan v. Quackenbush, 22 Barb. 76; People v. N. ¥. Com. Pleas, 8 Abb. 181.) But an affidavit containing all the essential elements of a complaint, was treated as such. (Dorgan v. Quackenbush, 22 Barb. 76.) The wording of § 219 of the Code is somewhat ambiguous, It is substantially, though not expressly, divided into three parts, and so we have treated it in this chapter. But no such division is made in the text of the statute, and it might be ~doubted whether all parts of the section are not to be taken together. It would certainly seem that the court would require the com- plaint to show that the plaintiff is “entitled to the relief de- manded,” as per § 219, before granting an injunction in any case. And, therefore, the complaint should be laid before the judge to whom application is made for an injunction. As to the use of a complaint as an affidavit, see infra. Affidavits cannot be used to add materially to the causes of action in the complaint, nor to supply defects in its allegations The complaint must be good, or the injunction cannot stand. (Hentz v. L. I. R. &., 13 Barb. 654.) Supp. 2. Affidavits. “The injunction may be granted”. . . “upon its appearing satisfactorily to the court or judge, by the affidavit of the plain- tiff, or any other person, that sufficient grounds exist therefor.” (Ante, p. 81, § 220.) Affidavits to be positive.|—An injunction cannot be allowed upon affidavits made upon “information and belief.” The facts must be sworn to positively. (Crocker v. Baker, 3 Abb. 183; Woodruff v. Fisher, 17 Barb. 229; Rateau v. Bernard, ” TEMPORARY INJUNCTION. 703 Papers on which to apply. Affidavits. 12 How. 464; Pomeroy v. Hindmarsh, 5 id. 489; Roome v. Webb, 3 id. 328; see Jones v. Atterbury, 1 Code Rep. N.S. 87.) If the facts upon which the injunction is sought are not within the plaintiff’s personal knowledge, he should procure the affidavits of persons who have such knowledge. (Bank of Orleans v. Skinner, 9 Paige, 305.) Complaint used as an affidavit.|}—An injunction may be granted on the complaint alone, when it is sworn to posi- tively; ¢.¢., upon knowledge, and not upon information and belief. (Levy v. Ley, 6 Abb. 90; Crocker v. Baker, 3 id. 183; Woodruff v. Fisher, 17 Barb. 229; Minor v. Terry, 6 How. 211; and see Badger v. Wagstaff, 11 How. 562; Smith v. Reno, 6 id. 126; Jones v. Atterbury, 1 Code Rep. N.8. 87; Avom v. Hogan, 4 How. 226; Roome v. Webb, 3 id. 828. [Millkkin v. Cary, 5 How. 277, contra, is overruled.]) Affidavits upon order to show cause.|—Upon showing cause against the issuance of an injunction, the defendant may put in affidavits in support of his case, although. he has served an answer, denying all the equity of the complaint. (florence v. Bates, 2 Sand. 676 ; 2 Code Rep. 110; Vedlage ef Seneca Falls v. Matthews, 9 Paige, 505.) The plaintiff cannot read affidavits in reply to those of the defence, unless the latter set up new matter im avoidance of the complaint. (Powell v. Clark, 5 Abb. 73.) Filing affidavits.|—The affidavits on which the injunction is granted must be filed within five days after it is so granted, or the defendant may move to dissolve it with costs. (Ante, p. 178, Rule 4, Supreme Ct.) But if by mere inadvertence they are not filed in time, the plaintiff will be allowed to file-them after a motion has been made to dissolve the injunction, on payment of costs. (Leffing- well v. Chave, 10 Abb. 472, 478.) Zé scems, that if, immediately upon receiving notice of such motion, the plaintiff files the affidavits, and notifies the defend- ant thereof, the motion will be denied without imposing any costs. (Zb¢d.) 704 TEMPORARY INJUNCTION. Security required. In ordinary cases. Art. 9.—Security upon Injunction. Supp. 1. In ordinary cases. 2. Upon order to show cause. 3. Upon staying proceedings after judgment. 4. Filing undertaking. Susp. 1. Security in ordinary cases. “Where no provision is made by statute as to security upon injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sure- ties, to the effect that the plaintiff will pay to the party en- joined, such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was uot entitled thereto.” (Ante, p. 82, § 222.) An undertaking with one surety is valid. (Ward v. Whit- ney, 8N. Y. [4 Seld.] 446.) The Code does not prescribe any particular form for the un- dertaking, and it may be put into the form of a penal bond, under seal. (Epescopal Church v. Varian, 28 Barb. 648.) tt seems, that the undertaking need not contain any provi- sion for a reference to settle damages. (Higgins v. Allen, 6 How. 30.) Insolvent sureties.]—It seems, that if a surety becomes in- solvent, the court has discretionary power to require a substi- tute. (Horrman, J., Wellet v. Stringer, 15 How. 812.) Practice in N. Y. Superior Court.]—In this court, the regu- lar practice in regard to these undertakings is: 1. That the plaintifi’s own undertaking will not be received, unless he will justify as being a freeholder or householder, and worth double the sum specified, over and above all his debts and liabilities. ‘ 2. That when a surety is required, his justification must be to the same effect. 3. That a plaintiff residing out of the State must furnish a resident surety. (Sheldon v. Allerton, 1 Sand. 701, note.) This practice is pretty general in all the courts, but there are as yet no decisions bearing on the question. TEMPORARY INJUNCTION. 705 Security. On order to show cause. On staying proceedings. Supp. 2. Security upon order to show cause. Upon granting an order to show cause, etc., and restraining the defendant in the meantime, the same security as in ordi- nary cases may be required. (Methodist Churches v. Barker, 18 N. Y. 463.) Lt seems that it must be required. (Per Comsroox, J., 2bed.) The WV. Y. Superior Court will, in general, require such security. (Sheldon v. Allerton, 1,Sand., 701, note.) The Supreme Court will not readily grant temporary re- straint without security. (CAndrovette v. Bowne, 4 Abb. 440.) Susp. 8. Security upon staying proceedings after judgment. Injunctions to stay proceedings in an action pending, are so decidedly discountenanced since the Code, (see ante p. 677), that the provisions of the Revised Statutes relating to security on such injunctions (2 #. S. 188, §$ 189, 140,) are practically obso- lete. It is enough to say that a bond was required, in such sum as the officer granting the injunction should direct. But injunctions to stay proceedings wpon a judgment, are still allowed in certain cases. (Ante p. 682.) And the following provisions are still applicable, not being abolished by the Code. (Cook v. Dickerson, 2 Sand. 691.) Personal Action.—No injunction may issue to stay proceed- ings at law in any personal action after judgment, unless, 1. The full amount of the judgment and costs be deposited in court by the applicant, and, 2. Unless the applicant also execute a bond, with one or more sufficient sureties, to the plaintiff in such judgment, in such sum as the officer granting the injunction shall direct, for the damages and costs that may be awarded to such judgment creditor, on the final hearing of the cause. (3 2. S. (5th ed.) 270 ; [2 2d. 189.]) But the “chancellor” may allow a bond to be substituted for the deposit above named, or may enlarge the penalty and condition of the bond above named so as to include the judg- -ment. But in such case, at least two sufficient sureties must be required. (did. p. 271.) 45 706 TEMPORARY INJUNCTION. Security, On staying proceedings after judgment. Payment to judgment creditor.|—In case of a deposit being made, the court may order it to be paid over to the judgment creditor, upon his executing a bond to the people of this State, in a penalty of double the amount, with such sureties as the court approves, for the payment of the same into court, accord- ing to any order or decree that the court may make, with in- terest thereon. (Ldid. p. 270.) Insolvent corporation.|—The preceding provisions of the Revised Statutes are not applicable to a suit brought by a judgment-creditor of an insolvent corporation, to restrain other creditors from proceeding at law, for the appointment of a re- ceiver, and an equitable distribution of assets. (Hutchinson v. N.Y. Central Mills, 2 Abb. 894; see 3 B.S. (5th ed.) 767 ; [2 zd. 466.]) Leal actions.|—The security required to stay proceedings after judgment, for the recovery or possession of real estate, is a bond similar to that required in the case of personal actions, for damages and costs. (3 £. S. (5th ed.) 271; [2 id. 189, 190.}) : THe damages upon a dissolution of such injunction must be ascertained by reference, and include not only reasonable rents and profits, but waste comuitted after the granting of the injunction. (Ldid.) Sureties to justify].—Each surety must justify by affidavit that he is a householder, resident in the State, and worth the amount of the bond, over and above all debts and liabilities. (Lbid.) Such affidavit must be annexed to, or indorsed on, the bond. (Ibid. p. 272.) Fraud.|—When an injunction is applied for on the ground that the judgment or verdict was obtained by actual fraud, the “chancellor” has power to dispense with both the deposit and bond above required. (Ldzd. p. 271.) The fraud here meant is such as substituting one paper for another, a false representation of facts, and the like. A breach of an agreement on which judgment was confessed, is not such fraud. (Cook v. Dickerson, 2 Sand. 698.) TEMPORARY INJUNCTION. 707 Security. On staying proceedings. Filing undertaking. “ Chancellor.” |—The court (any court of equitable jurisdic- tion,) has now the discretionary power previously vested in the chancellor. (Cook v. Dickerson, 3 Sand. 692.) Lt seems, that a judge out of court has not. (Lbzd.) Clerical errors.|—By a clerical error, the amount of penalty was omitted in an injunction bond, and a blank space left instead thereof. Zed, that it must be construed by reference to the order of the judge, in obedience to which it was given, and the obligors were held liable for the amount fixed in such order, (Jason v. Fuller, 12 La. Ann. 68.) Where an undertaking bound the sureties to the payment of damages, ete., if © this court” should finally decide against the plaintiil’s right, etc., and the final decision was made in another court, held that the word “this” must be construed “the,” conformably to the statute. (Zown of Guilford v. Cornell, + Abb. 223.) Susp. 4. Filing undertaking. Bond on staying proceedings after jgudgment.J|—This bond must be tiled with the clerk before the issuing of the injunction. (8 R. NS. (5th ed.) 272; [2 2d. 190.]) Undertakings.}—The undertaking required by the Code, must be filed by the plaintiff’s attorney with the clerk of the proper county, forthwith, with the judge’s approval indorsed. (Ante, p. 178, Rule 4, Supreme Ct.) If such undertaking be not filed within five days after the injunction is granted, the defendant may move to vacate the proceedings for irregularity, with costs. (Ante, p. 178, Lule 4, Supreme Ct.) ; If the omission be designed, the injunction will be dissolved. (O’ Donnell v. M? Murn, 3 Abb. 391.) If it is accidental, the injunction may stand, but the plaintiff must pay costs of the motion. (bid. ; see Leffingwell v. Chave,. 10 Abb. 472; Cook v. Dickerson, 2 Sand. 693.) Defective undertaking.|—If the undertakine is defective, an. order will be granted, that unless it be amended within a cer- tain time, the injunction be dissolved. But a | eremptory 708 . TEMPORARY INJUNCTION. Security. Form of undertaking. Form of bond. dissolution will not be granted, where the undertaking was made in good faith.. ( Walliams v. fall, 1 Bland, 194, nofe.) § 146. Ondertaking upon Injunction (under § 222). [Zidle of Cause.] Wurreas, the plaintiff is about to apply [or, has applied] for an injunction restraining the above-named John Jones from [state the object of the injunction]: Now, THEREFORE, we, John Johnson, of ....... , [mer- chant], and John Jenks, of ....... , [builder], undertake in the sum: of . 2624 » x dollars, to pay to the said John Jones such damages as he may sustain by reason of such injunction, if the court shall finally decide that the plaintiff is not entitled thereto; such damages to be ascertained by a reference, or otherwise, as the court may direct. Signatures. [ Date. ] oe : [Justification and acknowledgment as in § 102.) § 147, Bond upon Injunction to stay Proceedings in Action after Judgment. Kwow alt MEN BY THESE PRESENTS, that we, A. B., J. K., and L. M. [all of the city of Utica], are held and firmly bound unto ©. D. of [the same city], in the penalsum of ...... ' dollars, to be paid to the said C. D., his executors, administra- tors, or assigns. For which payment well and truly to be made, we bind ourselves, our heirs, executors, and administra- tors, jointly and severally, firmly by these presents. Sealed with our seals, and dated the... . day of....... Wuergas, the above-named A. B. has commenced an action ry TEMPORARY INJUNCTION. 709 Security. Bond. Injunctions against corporations. in thé [Supreme] Court against the said C. D., praying in his complaint for an injunction to restrain further proceedings in an action commenced inthe...... Court by the said C. D. against the said A. B., in which last-mentioned action judg- ment was recovered by the said C. D. on the... . day Oe ea ees last, for the sumof.......... dollars, damages and costs; and whereas, IIon. [W.J. Bacon], a justice of the Supreme Court [er, county judge, etc.] has allowed an injunction for that purpose : Now, THErerore, the condition of the above obligation is such, that the above-bounden A. B., J. K., and L. M., shall well and truly pay, or cause to be paid, to the said C. D., his executors, adininistrators, or assigus, on demand [the said sum OF sige ia aes dollars, recovered by said judgment, and] all such damages and costs as may be awarded to the said C. D. by the [Supreme] Court, on the final hearing of the cause first- mentioned herein, then the above obligation to be void, other- wise to remain in fall force and virtue. [Stgnatures and seals.] [Subserébing witness.] [Justification and acknowledgment.] Art. 10.—Injunctions against Corporations. By whom granted.\—* An injunction to suspend the general and ordinary business of a corporation, shall not be granted except by the court, or a judge thereof.” (Ante, p. 82, § 224.) Notice required.|—“ Nor shall it be granted without due notice of the application therefor, to the proper officers of the corporation, except, 1. Where the people of this State are a party to the pro- ecedings, and 9. In proceedings to enforce the liability of stockholders in corporations and associations for banking purposes, after January 1, 1850, as such proceedings are or shall be provided by law ;” or, 710 ( TEMPORARY INJUNCTION. Injunctions against corporations, In what eases. 3. “Unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the under- taking, which such corporation may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.” (Ante, p. 82, § 224.) (For the form of this undertaking, see ante, p. 708, § 146.) Assessment of damages.|—The damages upon the above- mentioned undertaking may be ascertained by a reterence, or otherwise, as the court may direct. (Jbed. See Arr. 20, post, p. 126.) Cases for injunction against corporations. |—It may be useful to notice a few eases of this kind, although the principles affect- ing them are the same as in other, or private cases. A municipal corporation may be restrained from an illegal grant—such as the grant of an exclusive use of a street; from the erection of a imisance—as the laying of a railroad in a crowded street; and from any other act in excess of its powers, and injuring either the publie, or a private individual, within the general principles of equity. (See Davis v. Alayor of .V. Y., W4.N. Y. 506; People v. Sturtevant, 9 N. Y. [5 Seld.] 263 ) It may be restrained from paying money under an appro- priation or resolution that is contrary to law and void. (People v. Mayor of New York, 10 Abb. 144; Roberts v. Mayor of NV. Y¥..5 Abb. 47.) So, in the ease of an illegal contract. (Appleby v. Mayor of N.Y., 15 How. 428.) It should not be restrained from performing duties necessary for the preservation of the publie health, unless in very clear and urgent cases. (Il Cafferty v. Glazier, 10 How. 476.) It cannot be restrained from passing a resolution, or perform- ing other legislutive acts. (Leonarn, J., People v. Miyor of New York, N. Y. Srans., Jan. 8, 1861; People v. Muyor of N. Y.,9 Abb. 254; 8. C., 10 Abb. 145; People v. Lowber, 7 Abb. 179.) A public company,—e. 7., a ratlroad, or canal, taking pos- session of land under a statute, acquires only a qualitied owner- TEMPORARY INJUNCTION. 711 Corporations. State officers. Order of injunction. ship in it, restricted to the purposes mentioned in the statute, and may be restrained from using it for any other purpose. (Bostock v. North Staff. R. R., 3 Smale & Giff. 283; 19 Eng. L. & E. 307.) Arr. 11.—Lhyjunctions against State Officers. By whom granted.|—Injunctions to restrain any State officer or board of officers or persons employed by them, from execut- ing any duty devolved upon them by law, can be granted only by the Supreme Court, sitting in general term in the district in which such board is located, or such duty required to be performed. (Laws 1851, ch. 488.) Notice required.|—At least eight days’ notice must be given of the time and place of such application. (Zded.) Onconstitutional laws.|—Can State officers be enjoined from earrying into effect an unconstitutional law? (Jedd, per Bacon, J., that they may be. Hartwell v. Armstrong, 19 Barb. 175. Held, per Mrrcuetz, J., that they cannot be. Zhompson v. Com'rs of Canal Fund, 2 Abb. 251.) It may be noticed, that the legislature seems to recognize the power of the court to do so, in the law of 1851, at the head of this article. It speaks expressly of “ restraining” State officers, from duties devolved upon them “by law,” and by requiring the “injunction” to issue from the Supreme Court in general term, implies clearly that such injunction may issue. Arr. 12.—Order of Injunction. The provisional wr7é of injunction is abolished, and an injunc- tion by order substituted therefor. (Anfe, p. 81, § 218.) “The language of the injunction should in all cases be so clear and explicit that an unlearned man can understand its meaning, without the necessity of employing counsel to advise him what he has a right to do, to save him from subjecting himself to punishment for a breach of the injunction.” (Lawrie v. Laurie, 9 Paige, 235; see Moat v. Holbein, 2 Edw. Ch. 189.) The language of the order should at the same time be so re-~ stricted as not to deprive the defendant of any rights which the 712 TEMPORARY INJUNCTION. Order of injunction. Form of order. case made by the complaint does not require that he should be restrained from exercising. (Laurie v. Laurie, 9 Paige, 235.) The injunction should, in itself, contain sufficient to apprise the defendant exactly what he is restrained from doing, with- out resorting to other papers for the purpose. (Sullivan v. Judah, 4 Paige, 445.) Injunction against removal of property.|—The effect of an injunction for this purpose, during the pendency of an action, is only to restrain such removal or disposition .with intent to defraud ereditors. (Brewster v. Hodges, 1 Duer, 610.) And Mitcuett, J., modified such an injunction by inserting these words. (See Mitchell v. Bettman, 25 Barb. 410.) § 148. Injunction by the Court. Supreme Court, Jonw Suara | At a special term held at | the «ewe eas » in the against EGE ware ee 3 », ON ThE 4 a a day Joun Jones. | ENG pace Present—A. B., Justice. On reading and filing the complaint, and the affidavits of... . pe AN Gee eee dated the... .dayof..... 18. .; and on motion of [I. T. Williams,] counsel for plaintiff: OrveERED, that the above named John Jones be commanded to Fetal TOM os: ob xis a hai we ee until the further order of this court. E. F., J. T. Wiiuiams, Clerk. Attorney. TEMPORARY INJUNCTION. "13 Order of injunction. Forms of orders. § 149. Order of Injunction ; by a Judge. [ Zidle of Cause.] An the name of the Qeople of the State of Neto Pork : For the causes stated in the annexed [complaint and atflida- vits] ; You ARE comMANpDen to refrain from... 2... 2 ee eee until the further order of the court. Justice of the... . court. [Arpany, January 1, 1861.] To Joun Jorus, Defendant. § 150. Injunction to protect Trade-mark. [As in § 149, to the words “refrain from”] selling, or ex- posing for sale, or procuring to be sold, any composition or blacking described as, or purporting to be, blacking manufac- tured by Day & Martin, in bottles, having affixed thereto such labels as are mentioned in the complaint, or any other labels, so contrived or expressed as, by colorable imitation or other- wise, to represent the composition or blacking sold by the said defendant to be the same as that manufactured and sold by the plaintiff, and from using trade cards, so contrived or ex- pressed, as to represent that any composition or blacking sold, or proposed to be sold by the defendant, is the same as that manntactured or sold by the plaintiff, ; (This form was approved and settled in Croft v. Day, 7 Beavan, 90. See also Knott v. Morgan, 2 Keen, 219; 714 TEMPORARY INJUNCTION. Order of injunction. Service of injunction. Amoskeag Co. v. Spear, 2 Sand. 619 ; Williams v. Johnson, 2 Bosw. 5, 9.) § 161. Injunction in Partnership Affairs. [As in § 149, to the words “refrain from’) applying any of the moneys and effects of the co-partnership, otherwise than in the ordinary business, and from obstructing or interfering with the plaintiff in the exercise and enjoyment of his rights under the partnership articles. (Hall v. Hall, 12 Beav. 419. A case of existing partnership, no dissolution prayed.) Art. 13.—Service of the Injunction. The injunction must be served on the defendant personally. (Becker v. Hager, 8 Wow. 69.) And also on his attorneys and counsellors, if it is sought to restrain them. (Aden on Injunctions, 93.) Personal service means, showing the original order, and de- livering a copy. (Re Tindall, 6 De G., M. & G. 742.) Injunctions granted out of court must be served in this man- ner. (Watson v. Fuller, 9 Wow. 426; Coddington v. Webb, 4 Sand. 639.) But injunctions granted by the court should be servéd by de- livering a certified copy, without showing the original. (J/ayor of N. Y. v. Conover, 5 Abb. 251.) Summons.J|—A summons must be served before, or with the injunction. (Leffingwell v. Chave, 10 Abb. 4743 Scebor v. Hess, 5 Paige, 86; Parker v. Williams, + id. 439.) But an objection on this ground must be raised before ap- pearing generally in the action and before service of the sum- mons. (Seebuor v. Hess; Purker v. Williams, supra.) ~T ee Cu TEMPORARY INJUNCTION. Service of injunction. Obedience due to injunction. Affidavits.|—A copy of the affidavit, on which the injune- tion Was granted, must be served with it. (Ante. p. 82, § 220, see Lefingwell v. Chave, 10 Abb. 473.) : If an injunction is served with out the affidavit, the service will be set aside, but not the injunction itself. (Penfield v. Whate, 8 How. 87; and see Becker v. Hager, id. 69.) It was much doubted by the N. Y. Superior Court, whether the omission of service of the affidavit would relieve the defen- dant from the duty of obedience. The court say that ‘when the order of injunction cannot properly be understood, nor, consequently, be obeyed, without a knowledge of the contents of the affidavit, the service of a copy must doubtless be made. But when the injunction is plain and explicit, and leaves no doubt as to the act which the party upon whom it is served is required to perform, or desist from performing, it may well be doubted, whether the irregular omission of the affidavit should be held to release him from the duty of obedience.” (Davis v. Mayor of NV. Y.,1 Duer, 485; 8. C.. 9 N. Y. [5 Seld.j 277; but see Watson v. Puller, 9 How. 426.) Service on a corporation.J—Service upon the head of the corporation is sufficient to Lind every member thereof having actual knowledge of the contents of the injunction; e@ g., due service upon the Mayor of a city, binds every member of the Common Council. (People v. Sturtevant, 9 N.Y. [5 Seld.] 277; Davis v. Mayor of N. ¥., 1 Dnuer, 486.) Service on part of the defendunts.|--Where an injunction is granted against several defendants, but is served only on part of them, it is valid and binding upon those served, and 27 scems they cannot move to set it aside for want of service on the ochers. (Seebor v. Less, 5 Paige, 86.) Arr. 14.—Obedience due to an Injunction. The injunction of a court of competent jurisdiction must be obeyed, even when it is clearly erroneous. (People v. Sturte- vant, 9 N. Y. [5 Seld.] 266; 8. C., 1 Dner, 451-571; Mayor of N.Y. v. Conover, 5 Abb. 251; Smith v. Reno, 6 How. 126; rom v. Hogan, 4 id. 225 ; Sullivan v. Judah, 4 Paige, 716 TEMPORARY INJUNCTION. Obedience due to injunction. Extent of obedience required. 446; Moat v. Holbein, 2 Edw. Ch. 188; People v. Spaulding, 2 Paige, 329.) But if granted by a judge without jurisdiction, e. g.,a county judge of a wrong county, it is a nullity. (Addy v. Howlett, 2 Code Rep. 76.) If the defendant has actual knowledge, or notice of the in- junction, he is bound to obey, although the service upon him has not been sufficient, provided that there has been a bond fide attempt at service. (Mayor of VN. Y. v. Conover, 5 Abb. 251; People v. Sturtevant, 9 N. Y. [5 Seld.] 278.) Actual knowledge or information of an injunction binds a party to obedience until the plaintiff has had reasonable time to serve a copy of the injunction. (ull v. Thomas, 3 Edw. Ch. 238; Vansandau v. Rose, 2 Jac. & W. 364; Kimpton v. Hve, 2 Ves. & Bea. 350; Osborne v. Tenant, 14 Ves. 136 ) Extent of obedience required.|—The party enjoined must not only refrain himself from acts violative of the injunction, but must also direct his counsel, agents, and servants, to do like- wise. (Mayor of NV. Y. v. Conover, 5 Abb. 244.) He must not stand by and suffer the injunction to be violated by any other person with his connivance. A full and honest obedience is required, and evasions will not be tolerated. (Veale v. Osborne, 15 How. 83; St. Johns v. Carter, 4 My]. & Cr. 497.) Where the defendant in a creditor’s suit was enjoined in the usual form, held that he was nevertheless at liberty to commence actions for the recovery of such claims as did not pass to the receiver, ¢.g., for an ordinary tort, or to recover property exempt from execution. (Zudson v. Plets, 11 Paige, 18+.) And he may proceed to judgment in an action for any causr, previously commenced. (Parker v. Wakeman, 10 Paige, 4%5.) The ordinary injunction granted in an action for dissolution of partnership, restraining the defendant from intermeddling with the effects, does not restrain him from confessing judg- ment for a partnership debt. (AL’Credie v. Senior, 4 Paige, 3878.) It seems, that a defendant who is enjoined from disposing of his property under the last clause of § 219 of the Oode, is nevertheless at liberty to dispose of it honestly, and without TEMPORARY INJUNCTION. 717 Obedience due to injunction. Disobedience. fraudulent intent. (Brewster v. Hodges, 1 Duer, 610; see Mitchell v. Bettman, 25 Barb. 410.) Who are bowid to obedience.|—Only the parties named in the injunction. (Zdmonston v. I? Loud, 19 Barb. 361.) Service of the injunction on a stranger to the action, not named in the order, does not bind him. (Lbid.) But all officers of a corporation are bound to obey an injune- tion against the corporation, of which they have notice. (Peo- ple v. Sturtevant, 9 N. Y. [5 Seld.] 277.) The agents and servants of the party enjoined, having notice of the injunction, are bound to obey it, whether named in it or not. The omission to enjoin them in terms only affects the mode of punishment. ( Wellesley v. Mornington, 11 Beav. 180, 181.) Breach of injunction—what constitutes a.J—Of course a direct violation constitutes a breach, but the courts go further and hold that any evasion or contrivance to nullify the in- junction will be regarded in the same light with acts palpably disobedignt. (Veale v. Osborne, 15 How. 84; Mayor of N.Y. v. Conover, 5 Abb. 244; JL Credie v. Senior, 4 Paige, 381.) An injunction against making a grant is violated by making such grant subject to acceptance by the grantee, even though the grantee do not accept. (People v. Sturtevant, 9 N.Y. [5 Seld.] 272; Davis v. Mayor of N. ¥., 1 Duer, 451.) An agent or servant is personally responsible for a willful breach of an injunction addressed to his principal, his “ agents and servants.” (Semble, Wellesley v. Mornington, 11 Beav. 180.) But if those words are omitted, the servant cannot be guilty of a breach. (Lbid.) Although the words “agents and servants” are omited, yet if aservant does an act on behalf of his principal, which he knows that principal is enjoined from doing, he is guilty of a contempt. (Wellesley v. Mornington, 11 Beav. 181.) Arr. 15.—Disobedience ; how Punishable. Two methods of punishing disobedience, or breach of an in- junction, are provided by statute, viz.: 1. By attachment ; 718 TEMPORARY INJUNCTION. Disobedience. Vacating or modifying injunction. 2. By an order to show cause why the party should not be punished as for a contempt. (3 22. 8. (5th ed.) 851; [2 ¢d. 536.]) The proceeding by attachment is more expensive than the other, and ought not to be resorted to withont good cause. And if the plaintiff unnecessarily adopts this proceed™mg, the court may refuse to allow him the extra costs. (Llammersley v. Parker, 1 Barb. Ch. R. 29.) As to these proceedings, the manner of conducting them, etc., see Vol. il. Time for applying for attachment.|—Before the injunction is dissolved. (Moat v. Holbein, 2 Edw. Ch. 189.) Arr. 16.—dotion to vacate or modify a temporary Injunction. “Tf the injnuction be granted by a judge of the court, or by a county judge, without notice, the defendant, at any time be- fore the trial, may apply upon notice, to a judge of the court in which the action is brought, to vacate or modity the same.” (Ante, p. 88, § 295.) ! This provision does not abridge the general jurisdiction of the court, and a motion may still be made @o the court to dis- solve an injunction. (Woodruff v. Fisher, 17 Barb. 230.) Notice.|—Section 824 of the Code provides that orders granted out of court without notice, may be vacated without notice. Whether this section applies to injunctions—query ? (Com- pare Bruce v. Del. and Hud. Canal, 8 How. 440; dfills v. Thursby, 1 Code Rep. 121.) Moving papers.\—* The application may be made upon the complaint and the affidavits on which the injunction is granted, or upon affidavits on the part of the defendant, with or without the answer.” (Ande, p. 83, § 225.) The use of affidavits will be considered in the next article. Before answer.|—The defendant may apply for a dissolu- tion, before answering, on the ground of want of equity in the complaint. (Minturn v. Seymour, 4 Johns. Ch. 1738.) Or on any ground that would justify a demurrer. (Hudson TEMPORARY INJUNCTION. 719 Vacating or modifying. Effect of answer. v. Madison, 12 Sim. 419; Jones v. Del Rio, Turn. & Buss. 801.) The answer—Iis effect.|—It is well settled that if the answer fully and explicitly denies all the equity of the complaint, the injunction must be dissolved. ((innegan v. Lee, 18 How. 187; Gould v. Jacobsohn, id. 158; Wolfe v. Goulard, id. 69; Blatchford v. New Haven R. R., 5 Abb. 279; Clapham v. White, 8 Vesey, 385; but see Peterson v. Matthis, 3 Jones’ [N. ©.] Eq. 32, But the answer must be sworn to, and that positively. A denial upon information and belief will not suffice to overthrow an injunction, granted upon positive allegations. (Poor v. Carleton, 8 Sumner, 78; Attorney-General v. Cohoes Co., 6 Paige, 184; Ward v. Van Bokkelin, 1 id. 100.) In the case of a corporation, some officer must swear posi- tively to the answer. (/ulton Bank v. Sharon Canal, 1 Paige, 311.) Under the old practice, an injunction would be dissolved upon a full and verified denial of the equities of the complaint, although an indictment for perjury in such answer had been found. (Clapham v. White, 8 Ves. 85; see Pyecroft v. Pye- croft, 2 8m. & Giff. 327.) And Lorp Expon said that the case could not be altered even by a conviction. (See Clapham v. White, 8 Ves. 37.) "But if the denial does not go to the whole of the bill, it is not ground for dissolving the injunction, althongh the defen- daut makes as full a denial as is possible under the cirenm- stances. (oberts v. Anderson, 2 Johns. Ch. 204; see Logers vy. Rogers, i Paige, 426.) When the language of the answer is snch as to cause great suspicion that its denials and explanations are untrue or eva- sive, the injunction will not be dissolved. (Storer v. Coe, 2 Bosw. 661; dfoore v. Hylton, Dev. Eq. R. 435.) Although the answer makes a positive denial, yet if the court ean see, upon the face of the pleadings, that it was impossible for the defendant to have had personal knowledge on the sub- ject, the injnnetion will be retained. (Srory, J., Poor v. Carleton, 8 Sumner, 79.) 720 TEMPORARY INJUNCTION. Vacating or modifying. Effect of answer. Even when the equity of the bill was denied, however, the court would sometimes retain the injunction, when the facts shown in the answer gave reason to do so, and no injustice would be done, conceding the truth of the answer. (Bank of Monroe v. Schermerhorn, Clarke, 305; and see Loberts v. An- derson, 2 Johns. Ch. 205.) A distinction was drawn by Srory, J., between injunctions . to stay proceedings at law, and injunctions to stay irreparable mischief. And he held that the latter might be retained in the discretion of the court, notwithstanding a full denial in the answer. And such is the settled practice in North Carolina. (Poor v. Carleton, 3 Sumner, 83; Peterson v. Matthis, 3 Jones’ [N. C.] Eq., 32.) It seems, that the same distinction is made in New York, but the exception extends to cases of irreparable waste only. (Zust- burn v. Kirk, 1 Johns. Ch. 444.) A dictum of Kun, Ca., is recorded, to the effect that in all cases the injunction may be retained in the discretion of the court. (Roberts v. Anderson, 2 Jolins. Ch. 205.) Confession and avoidance.]—A confession and complete avoidance is tantamount to a denial, for the purpose of this motion. (Florence v. Bates, 2 Sand. 675; 2 Code Rep. 110; overruling Bellona Co.’s case, 3 Bland, 445; Linsey v. Ethe- ridge, 1 Dev. & Bat. 32.) All defendants must answer.]—This is a general rule, when this motion is based upon the answer only. (Depeyster v. Graves, 2 Johns. Ch. 148; Jones v. Magill, 1 Bland, 190, and notes.) But this rule h- exceptions, and is subject to discretion and modification. (lbid.; see Joseph v. Doubleday, 1 Ves. & Bea. 497.) And where the plaintiff does not prosecute his suit diligently the injunction will be dissolved without any answer on the part of some of the defendants. (Depeyster v. Graves, 2 Jolns. Ch. 149; see Liggins v. Woodward, Wopk. 842 ; Seebor v. Hess, 5 Paige, 85.) The reason of this rule, it may be observed, lay partly in the old Chancery practice, under which a defendant would be TEMPORARY INJUNCTION. 721 Vacating or modifying. Notice of motion. compelled to answer. Any defendant had it in his power to compel the plaintiff to procure answers from the others, or to discontinue his suit. (See Jones v. Magill, 1 Bland, 198; Tong v. Oliver, ibid.) As there is now no such power in either plaintiff or defen- dant, this rnle would seem to be more than ever within the dis- cretion of the court; but we think that a motion by one defen- dant answering alone, should be supported by affidavits, unless he. seeks to have the injunction dissolved as against himself only. Plaintiff's delay.|—If the plaintiff is dilatory in prosecuting his action, the injunction will be dissolved. (Depeyster v. Graves, 2 Johns. Ch. 149; and see Higgins v. Woodward, Hopk. 342; Grey v. Northumberland, 17 Ves. 281.) But delay in serving part of the defendants with the sum- mons is not a reason for dissolution, because those who are ‘served, and answer, may move upon their own answers as far as their interests are concerned. (Seebor v. Hess, 5 Paige, 86.) § 152. Notice of Motion to vacate Order of Injunction. [ Title of Cause.] Pimase TAKE noticx, that on the pleadings herein [and affi- davits herewith served], I shall apply to Hon. [W.°F. Allen,] one of the justices of this court, at chambers, in the [court house in the town and county of Herkimer] on the... . day Of ai eres next, at . . . o’clock in the forenoon of that day, for an order vacating [or dissolving or modifying] the order of injunction granted in this action, and for such other relief as may be just, with costs: of motion. Yours, etc., _G. A. Harpiy, [Date. ] Def'?’'s Attorney. To J. H. Wooster, Esq. Plaintiff’s Attorney. 46 722 TEMPORARY INJUNCTION. Motion to dissolve. Affidavits on motion. (If the motion ig made to the court, modify accordingly.) Opposing the moteon.]|—Proof of service of notice of motion is all that is required to entitle the moving party to a hearing. An objection that the motion was not based “on the plead- ings,” and that it was not proved that there was any such suit, was overruled. (Wewbury v. Mewbury, 6 How. 183; overruling Osborn v. Lobdell, 2 Oode Rep. 77.) The motion cannot be opposed by showing that the defen- dant has disobeyed the injunction. He has a perfect right to move, until he has been adjudged in contempt, and even then, he must be heard on a matter of strict right. (Smith v. Leno, 6 How. 125; Smith v. Austin, 1 Code Rep. N. 8. 187; but see Krom v. Hogan, 4 How. 225; Hvans v. Van Hall, Clarke, 28.) Art. 17.—Afidavits on Motion to dissolve Injunction. The application may be made upon affidavits, with or with- out the answer. (Ante, p. 88, § 225.) In an early decision, it was held that the defendant could not move on an answer alone, although verified. (Benson v. Fash, 1 Code Rep. 50.) But the contrary has been well settled, the point not being raised, indeed, elsewhere, but the subsequent decisions treating it as a matter of course, without exception. The Code, at the time Benson v. Kash was decided, provided only for a verifi- cation on belief. The reason of the decision is therefore now removed. Opposing affidavits.|—“If the application be made upon affidavits on the part of the defendants, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted.” (Ante, p. 83, § 226.) The construction of this section is still involved in doubt. On the one hand, it is held that when the defendant applies upon a verified answer, that is equivalent to an affidavit, and the plaintiff may therefore introduce new affidavits in opposi- tion. This view is taken by eight judges of the Supreme TEMPORARY INJUNCTION. 723 Affidavits on motion to dissolve. Order to vacate. Court, including the general term of the second district. (Jaques v. Areson, 4 Abb. 284; Zollins v. Mallard, 10 How. 542; Hascall v. Mad. Univ., 1 Code Rep. N. 8. 170; Schoon- maker v. Ref. Dutch Church, 5 How. 267; Hrom v. Hogan, 4 id. 225; Roome v. Webb, 3 How. 327.) On the other hand, it was recently decided in the general term of the Supreme Court, Ist dist., and in previous cases at special term, that the plaintiff cannot read affidavits in oppo- sition to a motion based upon a verified answer. This doctrine has been approved by five judges of the Supreme Court, six of the Superior Court, and two of the Common Pleas all of the city of New York. (Blatchford v. N. Haven R. £f2., 7 Abb. 822; Hartwell v. Kingsley, 2 Sand. 674; 2 Code Rep. 101; Merrimack Co. v. Garner, 2 Abb. 322; Servoss v. Stannard, 2 Code Rep. 563; and see Powell v. Clark, 5 Abb. 70.) It was further held that the reply could not be read in oppo- sition. (Hartwell v. Kingsley, 2 Sand. 674.) This rule is limited in some of these decisions, so as to con- cede the plaintifi’s right to read affidavits in reply to new matter set up in avoidance. (Merrimack Co. v. Garner, 2 Abb. 322; Hartwell v. Kingsley, 2 Sand. 674; 2 Code Rep. 101; see Powell v. Clark, 5 Abb. 72.) The verification of an answer by the attorney, as being true within his knowledge, constitutes an affidavit, and it is con- ceded that the plaintiff may oppose it with counter affidavits. (Minor v. Buckingham, 8 Abb. 68.) Appeal.J|—In England, it is held that on appeal from an order granting or refusing an injunction, the plaintiff may offer additional affidavits in support of the injunction. (Pole vy. Joel, 2 De Gex & Jones, 285.) Art. 18.—Order to vacate Injunction. The use of the word “ vacate,” as applied to injunctions, is peculiar to the Code. Formerly, the order was always for a dissolution, and we presume that the words “ dissolve ” and “ vacate ” may be used indifferently. The order, if granted, may be in the following form: 724 TEMPORARY INJUNCTION. ‘ Order dissolving injunction. Effect of abatement, etc. § 153. Order dissolving Injunction. [Title of Cause.] [ Caption.] On [reading and filing] the answer of the defendant, [and the affidavit of G. H.] and on motion of ...... , counsel for defendant, after hearing ...... , counsel for plaintiff; Orverep : that the injunction granted by A. B., a justice of this court [or, county judge of... .. county], on the... day Ofc a. 6. , 18. . , against the above named John Jones, be dissolved, [with . . . . dollars costs, to abide the event of the action. ] % [Stgnature of judge or clerk.] G. A. Harpi, Defendant's Attorney. Costs.|—lt is usual to allow costs of motion, to abide the event of the suit, without regard to the damage to be allowed on areference. (See Arndt v. Williams, 16 How. 247; Galla- tin v. Oriental Bk., id. 255; Mace v. Trustees of Newburgh, 15 How. 164; Bruce v. Del. and Hud. Canal, 19 Barb. 379.) Art. 19.—Lfect of Discontinuance, Appeal, ete. Abatement.|—An injunction is not dissolved, nor does it be- come inoperative, by the death of either party to the action. (Hawley v. Bennett, 4 Paige, 164.) But the party against whom it issued, or his representatives, may have an order requiring the plaintiff, or his representa- tives, to revive within a stated time, or that the injunction be dissolved. (bid. ; Hill v. Hoare, 2 Cox Ch. Cas. 50; Stuart v. Aneell, 1 id. 411.) This time was generally fixed at seven days. (See Hill v. Hoare, Stuart v. Ancell, supra.) TEMPORARY INJUNCTION. 725 Effect of abatement. Of appeal. Of dismissal. § 154, Order for Revivor of Action, or dissolution of Injunction. [Zrtle of Cause.] [Caption.] On reading and filing notice of motion, and the affidavits of A. B. and ©. D., and on motion of ..... , counsel for defen- dant, after hearing ..... counsel for plaintiff ; OrvereD : That the plaintiff (or, the legal representatives of the deceased plaintiff] revive this action against the [legal repre- sentatives of the] defendant within . ... days, or that in de- fault thereof, the injunction granted heres DY as a ee , a [jus- tice of this court,] be dissolved. P. VY. R. Stanton, Clerk. Defendant's Attorney. Appeal.|—An appeal from an order dissolving an injunction does not revive the injunction, and the party enjoined may act as he pleases without applying to the court for any special leave. (Wood v. Dwight, T Johns. Ch. 295 ; approved, Garrow v. Car- penter, 4 Stew. & Port. 345 ; but see Ti albot v. Oe, 5 Littell, 326. - an appeal from the judgment entered, does not revive an injunction. (Zown of Guilford v. Cornell, 4 Abb. 223; Hoyt v. Carter, 7 How. 141.) But the court may grant a temporary injunction pending the appeal. (Hart v. Mayor of Albany, 3 Paige, 381; see Town of Guilford v. Cornell, 4 Abb. 222.) Such injunction is a new one, and not a continuance of the old one. (Zown of Guilford v. Cornell, 4 Abb. 224.) Discontinuance.|—A voluntary discontinuance of the action puts an end to the injunction. (Hope v. Acker, 7 Abb. 309.) Dismissal.|—H¥f the complaint be dismissed, the injunction is thereby dissolved. (Hoyt v. Carter, 7 How. 141; Loomis v. Brown, 16 Barb. 330; Green v. Pulsford, 2 Beav. 75; see e Willis v. Yates, Coop. temp. Br. 501.) 726 TEMPORARY INJUNCTION. Effect of removal. Assessment of damages. When ordered. Lemoval.j—Whether an injunction continues in force after the cause is removed from a State court to a United States court, guery? (Liddle v. Thatcher, 12 How. 295.) The State court certainly cannot enforce obedience; and whether the U.S. court could or would, query? (Lbid.) Though the defendant, on a certain state of facts, is entitled to an order of removal as a right, yet the court may insert in such order a proviso, to the effect that it shall not of itself operate to dissolve an injunction. (Zdzd.) * Arr. 20.—Assessment of Damages. The damages sustained by reason of an injunction to which the plaintiff was not entitled, may be ascertained by a reference, or otherwise, as the court shall direct. (Ante, p. 82, § 222.) Formerly, a reference could not be ordered unless it was so. stipulated in the bond or undertaking, but now, this is not necessary. (See Higgins v. Allen, 6 How. 30.) When it can be ordered.|—Not until the court “ finally decide” that plaintiff was not entitled to the injunction. (Ante, p. 82, § 222.) This cannot be done until the final judgment, and a reference cannot therefore be ordered until judgment is entered. ( Weeks v. Southwick, 12 How. 171; Shearman v. VW. Y. Cent. Dfills, 11 id. 271.) This doctrine is substantially approved by the Court of Appeals, which has decided that the reference may be ordered after final judgment, and intimated that it could not be ordered before. (Dlethodist Churches v. Barker, 18 N.Y. 465.) Harris, J., in Chancery, held that when an injunction was dis- solved on the complaint alone, without answer or affidavits, the decision was final, and a reference could be ordered. (Dunkin v. Lawrence, 1 Barb. 447.) But we think that this decision is not applicable to proceedings under the Code. When the plaintiff discontinues, and the defendant accepts the costs, without obtaining any order from the court with regard to an outstanding injunction, the court will not afterward con- poider the question whether the plaintiff was not entitled to the * injunction, nor grant a reference to ascertain damages, nor TEMPORARY INJUNCTION. 727 Assessment of damages, Proceedings on motion. amend the order of discontinuance by declaring the injunction dissolved. (Zope v. Acker, 7 Abb. 308.) A voluntary waiver of an injunction is not an admission that the plaintiff was not entitled to it. (Shearman v. WV. Y. Cent. Mills, 11 How. 271; Gelston v. Whitesides, 3 Cal. 309.) Where the court has dissolved a temporary injunction upon the merits, and the plaintiff thereupon discontinues his action, tt seems that this is equivalent to a final decision upon the injunction, and a reference may be ordered thereon. (Coates v. Coates, 1 Duer, 664; see Taaks v. Schmidt, 19 How. 415.) A judgment of dismissal on the final hearing is in itself a final decision against the plaintiff’s right to an injunction. (Loomis v. Brown, 16 Barb. 330.) Notice of motion for reference.]—It is not necessary that notice should be given to the sureties in the bond or undertak- ing. (Methodist Churches v. Barker, 18 N. Y. 465.) But the court may, in its discretion, direct that such notice shall be given. (Jd2d., p. 466.) It seems, that this is the proper course. ( Wilde v. Joel, 15 How. 327.) Of course, the usual notice of eight days should be given to the plaintiff. Confirming report.|—The referee’s report must be confirmed by the court before it can be acted upon. (riffing v. Slate, 5 How. 205; see Wilde v. Joel, 15 id. 324; Town of Guilford v. Cornell, 4 Abb. 223; Methodist Churches v. Barker, 18N. Y. 465, 467.) It is not necessary to give notice of this motion to the sure- ties. (Methodist Churches v. Barker, 18 N. Y. 465.) The referee must report not merely the tacts of the case, but also the damages, if any, which the defendant has sustained by reason of the injunction. Unless the report assesses the damages, it will not be confirmed. (Zaaks v. Schmidt, 19 How. 415.) What damages may be allowed.|—Reasonable counsel fees and expenses actually paid in obtaining a dissolution of the in- junction. (Wilde v. Joel, 15 How. 323; Coates v. Coates, 1 Duer, 664; Liwards v. Bodine, 11 Paige, 227; Thate v. Quan, 3 Cal. 216.) 728 TEMPORARY INJUNCTION. Assessment of damages. What may be allowed. Assessment conclusive. Such fees are not limited to the costs allowed in the Code’ (Loid.) Counsel fees actually incurred, although not yet paid, may be allowed. (Wilde v. Joel, 15 How. 823; Garrett v. Hogan, 19 Ala. 348; McRae v. Brown, 12 La. Ann. 181.) But costs or fees expended in defending the action generally, apart from the special question of the injunction. cannot be allowed. (Wilde v. Joel, 15 How. 328; see Ed wards v. Bodine, 11 Paige, 227; Town of Guilford v. Cornell, 4 Abb. 224.) It would seem, that ifa party to the action is made such solely in order to reach him by the injunction, his general counsel fees should be allowed. { Wilde v. Joel, 15 How. 329.) Mere pergonal expenses—e. g., time and expense of personal attendance at court or otherwise, cannot be allowed. (Zdwards ~ v. Bodine, 11 Paige, 227.) Of course, damages directly caused by the injunction—as injury to works restrained from completion, loss of trade, etc., etc.—may be recovered. fevived or new injunction.|—Where an injunction was dis- solved, but on appeal being taken, the court below ordered that the injunction should stand until the decision of the appellate court (in which the judgment was affirmed) ;—Aeld, that this was a new and distinct injunction, for which a new undertak- ing should have been given. The damages incurred thereon - could not be assessed upon the undertaking given to procure the original injunction. (Town of Guilford v. Cornell, 4 Abb. 224.) Lt seems, that a reversal or vacatur of the order or judgment dissolving the injunction, will zpso facto revive it, and all the liabilities of the sureties with it. (ded. p. 225.) Referee’s report conclusive.|—The referee’s report, when confirmed by the court, is conclusive, as to the extent of damages, upon the principal and sureties to the undertaking, although the latter had no notice of the reference. (J/ethodist Churches v. Barker, 18 N. Y. 465.) Mode of enforcing referee's report.|—Judgment cannot be TEMPORARY INJUNCTION. 729 . Assessment of damages. Forms on reference. entered, even by order of court, upon the report of the referee. . An action must be commenced upon the undertaking. (Wilde v. Joel, 15 How. 3273; see contra, Russell v. Hiliott, 2 Cal. 215.) Leave to sue.|—It seems, that the court must be applied to for leave to sue upon the undertaking. (Higgins v. Allen, 6 How. 30; Griffin v. Slate, 5 id. 205; but see contra, V. Y. Central Ins. Co. v. Safford, 10 id. 347.) § 155. Notice of Motion for a Reference. [Title of Cause.] PLEASE TAKE NoTIcE, that I shall move this court, at a special term, to be held at the [court house in the town of Herkimer,] onthe....dayof...... next, at the opening of court on that day, for a reference to ascertain the damages sustained by the defendant, by reason of the injunction granted in this cause onthe....dayof...... last, or for such other relief as may be just, with costs of motion. M. H. Tsroop, To Cuas. Gray, Esq., Defendant's Atty. Plaintif’s Ay. § 156. Order of Ieference. [ Title of Cause.) [Caption.] On reading and filing notice of this motion, the judgment entered in this cause, and a copy of the injunction issued there- iy, 1h Che a see OP OF soe 9 last; on motionof...... counsel for defendant, after hearing ........ , counsel for plaintiff; OrvereD: That it be referred to J. W., Esq., to ascertain the 730 TEMPORARY INJUNCTION. Assessment of damages. Forms on reference. damages sustained by the defendant by reason of the said injunction, and to report the same to the court. J. Ly M. H. Turoor, Clerk. Defendant's Att’y. § 157. Notice of Motion to confirm Report of Referee. [Litle of Cause.) [As in § 155, to the words “court on that day,”] to confirm the report of the referee appointed on the... day of..... ; to ascertain the defendant’s damages by reason of the injunc- tion heretofore granted in this action, and for such other [as an § 155, to the end.] § 158. Order confirming Referees Report. [Title of Cause.] [ Caption. " On reading and filing the report of J. W., Esq., heretofore appointed referee to ascertain the damages incurred by the de- fendant by reason of an injunction g printed by Hon....... a justice of this court, to which it has been finally decided that the plaintiff had no right; and on motion of. ..... , counsel for defendant, after hearing Dea AALS counsel for plaintiff ; Orperep: That the said report be in all things confirmed, and the defendant’s damages be assessed at. ..... dollars, with... . dollars costs of this motion. M. H. Turoop, Clerk. Defendant's Atty. RECEIVERS. T3l Nature of the proceeding. Common law receivers. CuarTrer XX XI. RECEIVERS PENDING SUIT. ARTICLE 1. Nature of the proceeding and office. 2. In what cases a receiver may be appointed. 8. On whose application. 4, At what stage of action. 5. Notice of application. 6. Papers on application. 7. Mode of appointment. 8. Reference to appoint or report. 9. Who should be appointed receiver. 10. Security to be given. 11. Acquirement of title by receiver. 12. Who are represented by receiver. 18. Powers and duties of receiver. 14. Control of court over him. 15. Actions by and against. 16. Compensation. 17.. Discharge or change of receiver. 18. Vacating the order. Arr. 1.—Wature of the Proceeding and Office. The receivers of which we here treat are, it must be remem- bered, such as are appointed by the court as a provisional remedy. They were sometimes called “common law receivers,” being appointed by courts of equity, by virtue of their inhe- rent powers, independent of statute. (Chautauque Bk. v. White, 6 Barb. 597; 6 N. Y. [2 Seld.] 250; Verplanck v. Mercantile Ins. Co., 2 Paige, 452; see Hubbard v. Guild, 2 Duer, 688.) The appointment of a recciver of this kind is a provisional measure only, not affecting the merits, and intended to secure the fund to the rightful claimant, whoever he may be. (Shel- don v. Weeks, 2 Barb. 583; Skip v. Harwood, 3 Atk. 564.) Such a receiver is a person appointed by the court, to re- ceive the rents and profits of land, or any other thing in ques- tion in court, pending a suit, where it does not seem reasonable to the court that either party should do it. (Chautauque Bh. v. White, 6 Barb. 597.) He derives all his powers from the court, either through the order of appointment, or by the practice of the court. (Ibid.) 732 RECEIVERS. Nature of the office. In what cases appointed. He is an ofticer of the court by which he is appointed. (Les- senden v. Woods, 8 Bosw. 559; Curtis v. Leavitt, 1 Abb. 276; Lottimer v. Lord, 4 E. D. Smith, 191; Booth v. Clark, 17 How. [U. 8.] 822; Matter of Burke, 1 Ball & B. 74.) And his possession is the possession of the court. ( Wiswall v. Sampson, 14 How. [U.8.] 64; Van Rensselaer v. Emery, 9 How. 139; Albany Bh. v. Schermerhorn, 9 Paige, 377; oe v. Gibson, 7 id. 515; see Merritt v. Lyon, 16 Wend. 421; An- get v. Smith, 9 Ves. 339.) Any interference with or resistance to his possession is there- fore contempt of court. ( Wiswall v. Sampson, 14 How. [U. 8.] 65; Albany Bank v. Schermerhorn, 9 Paige, 877 ; Woe v. Gab- son, 7 id. 515.) But merely constructive interference will not be punished as contempt. (Albany R. R. v. Schermerhorn, 10 Paige, 264.) The receiver has aright to apply to the court for directions as to his duty. (Curtes v. Leavitt, 1 Abb. 276.) Arr. 2.—In what cases a Receiver may be appointed. Supp. 1. General Rules. , 2. Principal cases for a receivership. Susp. 1. General Rules. _ The Code does not diminish the power of the court in regard to the appointment of receivers, but adds somewhat thereto. All the provisions of the Code bearing upon the subject of receivers pendente lite, (which is all with which we have now to do,) are as follows: “ A receiver may be appointed, “1, Before judgment, on the application of either party, when he establishes an apparent right to property which is the subject of the action, and which is in the possession of an adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired ; except in cases where judgment upon failure to answer may be had without application to the court ; (2 and 8, relate to receivers after judgment only.) “4, In the cases provided in this Code and by special statutes, RECEIVERS. 733 In what cases, General rules. Discretion of the court. when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights ; and in like cases; of the property within this State of foreign corporations ; “5. In such other cases as are now provided by law, or may be in accordance with the existing practice, except as otherwise provided in this act.” (Ante, p. 89, § 244.) We shall not pretend to state here add the cases in which a receiver may or may not be appointed. To do so, would of itself require a volume, and we must refer generally to the standard treatises on the subject, especially to the able work of Mr. Epwarps. We propose, however, to notice some general rules on the subject, and also to mention briefly some of the chief cases for the appointment of a receiver. Discretion of the court.|—The appointment of a receiver is a ‘matter within the sound discretion of the court. (Hamilton v. ' Accessory Trans. Co., 3 Abb. 256; Verplanck v. Caines, 1 Johns. Ch. 58; Skip v. Harwood, 3 Atk. 564.) This discretion is not, however, absolute. An appeal from an order for a receiver will always lie to the general term. (Ante, p. 126, § 349.) A receiver should not be granted before judgment, unless there is a strong probability that the applicant will establish his right, and that the property will be lost, injured, or mate- rially impaired i in value for want of one. (Hanulton v. Acces- sory Trans. Co., 3 Abb. 256.) It must appear fit and reasonable that some indifferent per- son should receive the issues and profits, for the greater safety of all parties concerned. (Verplanck v. Caines, 1 Johns. Ch. 58.) Delay or laches.|—A receiver is not granted when the party applying has been guilty of laches. (Young v. Graham, 1 Hogan, 178; see Jones v. Jones, 3 Merivale, 173.) Disproportionate expense.|—The courts are unwilling to allow a receiver, where the property is insignificant compared with the expense. (Whitworth v. Whyddon,1 Hall & Tw. 447; see 8. C., 2 Macn. & Gor. 55.) 734 RECEIVERS. In what cases, Agent. Creditor’s Actions. Legal estate.|—It is a general rule that a receiver cannot be appointed when the defendant is in possession under a legal estate. (Hdwards on Rec’rs, 24; see also Leeal Estate, infra, p. 738; Chase's case, 1 Bland, 212; Welleamson v. Walson, id. 422.) Susp. 2. Principal cases for a receivership. Agent.J|—See Trustee, infra, p. 739. Assignee, Insolvent.|—See Trustee, infra, p. 739; Creditor’s action, infra. Banks.|—See Corporations, infra. Breach of trust.|\—See Trustees, infra, p. T40. Corporations.|—When any bank, insurance company, or corporation having power to make loans upon pledges or de- posits, becomes insolvent, or unable to pay its debts, or violates any provision of its charter or of any statute binding upon it, the Supreme Court may appoint a receiver over its property, in an action brought by the attorney general, or any creditor or stockholder thereof. (8 £2. S. (5th ed.) 764; [2 id. 464.] See Evans v. Coventry, 5 De Gex, M. & G. 911.) So in a creditor’s action to enforce the liability of officers or stockholders of a corporation the court may appoint a receiver. (3 BR. S. (5th ed.) 765 ; [2 zd. 465.]) There are other statutory provisions relative to the appoint- ment of receivers over corporations, but they seem to apply only to cases in which final judgment has been rendered. Creditor’s action.]—In a creditor’s action brought to enforce a judgment, if the plaintiff shows a judgment perfected, an exe- cution issued thereon, and return unsatisfied in due form of law, itis a matter of course to appointa receiver. (Lent v. W’ Queen, 15 How. 314; Bloodgood v. Clark, 4 Paige, 577.) lf the plaintiff obtains an injunction to restrain the defendant from disposing of property, it is his duty to apply for a receiver. (Ibid. ; Osborn v. Heyer, 2 Paige, 343.) If the plaintiff neglects to do so, the injunction will be dis- solved. (Osborn v. Heyer, 2 Paige, 343.) The application cannot be opposed on the ground that the judgment or execution was irregular. Such questions must be RECEIVERS. 735 In what cases. : Creditor’s action. Excutors. raised upon motion to set aside the irregular proceeding. (Lent v. WM’ Queen, 15 How. 814; Sandford v. Sinclair, 8 Paige, 374; Hone v. Woolsey, 2 Edw. Ch. 290.) The motion may be ordered to stand over, pending a pro- ceeding to set aside the judgment. (Barnard v. Darling, 1 Barb. Ch. R. 76.) Lt seems, that it might be opposed on the ground of fraud or collusion in the judgment. (Sandford v. Sinclair, 8 Paige, 374; Shottenkirk v. Wheeler, 3 Johns. Ch. 280.) The plaintiff is entitled to a receiver, although no property is shown to belong to the defendant. He has aright to proceed at his own risk as to costs. (Myers’ case, 2 Abb. 476; Fitz- burgh v. Everingham, 6 Paige, 30; Bloodgood v. Clarke, 4 id. 577; see Webb v. Overmann, 6 Abb. 92.) If the plaintiff has not exhausted his remedies by execution, he cannot have a receiver. (Starr v. L2athbone, 1 Barb. 70; Congdon v. Lee, 3 Edw. Ch. 308; Parker v. Moore, id. 234 ; see Crippen v. Hudson, 13 N. Y. [8 Kern.] 161.) Where a firm having dissolved, one partner assumes the re- sponsibility of the debts, the other may, upon an application for a receiver against him, insist upon the creditor’s extending the receivership to the first partner, and making his property primarily liable.< (Henry v. Henry, 10 Paige, 314.) Executors and administrators.|—A court of equity has the . same control over executors, etc., as over other trustees, and is guided by the same principles in dealing with them. (Mf¢ddle- ton v. Dodswell, 13 Ves. 268.) The court will not interfere with executors upon slight grounds. (Lbed.) The case of an administrator is very different, and 2 seems that the court will on slight grounds of apprehended danger, appoint a receiver. (Lbed.) By statute, the powers formerly exercised by the chancellor over executors have been conferred substantially to the same extent upon surrogates. (8 &. S&. (5th ed.) 156; [2 2d. 72.) For instances of its exercise, see Shook v. Shook, 19 Barb. 653 ; Emerson v. Bowers, 14 id. 658; Cotterell v. Brock, . 1 Bradf. Surr. 148.) 736 RECEIVERS. ' In what cases. Executors and administrators. “Mortgage cases. But these statutes are not supposed to take away the juris- diction of the Supreme Court. (Hdw. on Pee’rs, 517.) A receiver may be appointed (in the discretion of the court), in all cases where executors have become bankrupt, or wasted, or misapplied the assets, or when any part thereof has been lost through their misconduct or negligence. (Jenkins v. Jenkins, 1 Paige, 243; Scott v. Becher, 4 Price, 347; see Emerson v. Bowers, 14 Barb. 658.) So, where there: is strong reason to expect insolvency, and danger to the fund. (Middleton v. Dodswell, 13 Ves. 268.) But a receiver will not be appointed simply because the ex- ecutor is poor. (Howard v. Papera, 1 Madd. 142; Anon., 12 Ves. 4; Hathornthwaite v. Russell, 2 Atk. 127.) Nor.even in case of absolute bankruptcy, if it clearly ap- pear that the testator knew it. (Semble, Stainton v. Carron Co., 18 Beav. 161.) On the same principle, an executor cannot be superseded because his interests conflict with his duty; the fact being known tothe testator, and no breach of duty being shown. (Zdid.) But if it does not plainly appear that the testator knew of his executor’s insolvency, he may be removed. (Langley v. Hawk, 5 Madd. 46; Gladdon v. Stoneman, 1 id. 148 a.) The mere fact that an executor is 80 years old, it not being shown that his faculties are impaired, is not sufficient cause for removing him. (Hosack v. Rogers, 6 Paige, 431.) It must be affirmatively shown that a party to the suit is in possession, or a tenant under him. (Sea Ins. Co. v. Stebbins, 8 Paige, 567.) ‘Where the mortgagor is personally liable for a deficiency, ‘the court must be satisfied that he is not able to pay. (Sea Ins. Co. v. Stebbins, 8 Paige, 568; Jenkins v. Hinman, 5 id. 310.) Mortgage cases :—Mortgagor in possession.]—In a foreclosure suit, where the mortgagor is not responsible for a deficiency, the court must be satisfied beyond all reasonable doubt that the premises will bring enough upon sale to satisfy the debt, or a receiver for the rents and profits will be granted. (Sea Ins. Co. v. Stebbins, 8 Paige, 567.) If however, this is shown, no receiver will be appointed RECEIVERS. 737 In what cases. Mortgage cases. (Jenkins v. Hinman, 5 Paige, 310; Shotwell v. Smith, 3 Edw. Ch. 589.) But the mortgage debt must be actually due ; and a receiver cannot be appointed merely because the property is declining in value, and the mortgagor is irresponsible, unless the rents and profits are specifically pledged. (Bank of Ogdensburgh v. Arnold, 5 Paige, 42; and see Shotwell v. Smith, 3 Edw. Ch. 589.) In an action to redeem by the assignee of a mortgagor, re- taining possession, where the plaintiff is of doubtful solvency, a receiver will be appointed, unless the plaintiff give security for the mesne profits and damages, or pay into court the amouut due upon the mortgages. (Lrelinghuysen v. Colden, 4 Paige, 204.) It is said, in Barbour’s Chan. Practice, p. 661, that a receiver cannot be appointed if the mortgage is impeached or questioned. But this statement is made upon the authority of Irish decisions under the act of 11 and 12 Geo. 3. There is no similar limitation in our statutes, and we doubt the authority of these decisions, so far as this State is concerned. In an action to foreclose a mortgage upon a leaschold, if the security is scanty, and the mortgagor insolvent, a receiver will be appointed, and the occupant will be required to pay rent. (Astor v. Turner, 2 Barb. 444; Reid v. Middleton, Turn. & Russ. 455.) Mortgagee in possession.J—A receiver will not be appointed over a mortgagee in possession, if the latter will swear that any- thing is due to him. (Quin v. Brittain, 3 Paige, 315; Powe v. Wood, 2 Jac. & W. 557; Berney v. Sewell, 1 id. 628; Quar- rell v. Beckford, 13 Ves. 377.) Enon, Cu., offered to refuse a receiver, if the mortgagee would swear to stwpence due. (See Lowe v. Wood, Berney v. Sewell, supra.) Jt seems, that the courts have no power under the constitu- tion to take chattels from a mortgagee in possession, and place them under the control of areceiver. (Patton v. Accessory Transit Co., 4 Abb. 2387; reversing S. C., id. 139.) Partnership cases.|—When it is evident to the court that a 47 738 RECEIVERS. In what cases. Partnerships. Limited partnerships. dissolution of partnership will be decreed, it is a matter of course to appoint a receiver on the application of any partner. (Jackson v. De Forest, 14 How. 83; Marten v. Van Schaich, 4 Paige, 480; Law v. Ford, 2 Paige, 310; Sith v. Jeyes, 4 Beav. 503.) If a dissolution has in fact taken place, the same conse- quences follow. (Dayton v. Wilkes, 17 How. 511; see Jack- son v. De Forest, 14 id. 88; Van. Rensselaer v. Emery, 9 How. 139; Law v. ford, 2 Paige, 310.) But if a dissolution has not occurred, and none is prayed for in the complaint, no receiver can be allowed. (all v. Hall, 8 Macn. & Gor. 88.) Even though a dissolution be prayed for, yet if the court can- not see clearly that it will be granted, a receiver cannot be appointed. (Bawter v. West, 28 L. J. [ca.] 169; Garretson v. Weaver, 3 Edw. Ch. 385; Henn v. Walsh, 2 id. 1380; Good- man v. Whitcomb, 1 Jac. & W. 572.) The existence of a partnership must be admitted or estab- lished before a receiver can be appointed. (Goulding v. Bain, 4 Sand. 717.) A receiver will not be appointed on the application of a part- ner, who has all the property in his own possession, with the consent of the other partner. (Sith v. Lowe, 1 Edw. Ch. 33.) Partnership, limited.j—If a limited partnership become insolvent, the court will appoint a receiver to distribute the assets equally. (Jackson v. Sheldon, 9 Abb. 1384; Levy v. Ley, 6 Abb. 91; Lachaise v. Lord, 1 id. 2138; 4 E. D. Smith, 612, note; Whitewright v. Stumpson, 2 Barb. 879; Innes v. Lansing, 7 Paige, 586.) The same principle has been applied to the case of a general partnership, the debt not being denied ; but this doctrine has been conclusively overruled. (Crippen v. Hudson, 13 N. Y. [3 Kern.] 161, 167; overruling Dillon v. Horn, 5 How. 35.) As to the parties on application, see post, p. T41. Real estate.|—It is a general rule that a receiver cannot be appointed in an action of ejectment, unless some equitable grounds appear, entitling the plaintiff to the rents and profits as such, or it is shown that their sequestration is absolutely RECEIVERS. 739 In what cases, Actions for land, Tenants, essential to his protection. (People v. Mayor of N. ¥., 10 -Abb. 111; reversing 8. C., 8 Abb. 7; Talbot v. Scott, 4 Kay & Johns. 111.) Lt seems, that if the landlord alone is sued, and is irresponsi- ble, a receiver may be appointed on primd facie evidence of title. (People v. Mayor of N. ¥., 10 Abb. 111.) tt seems that if the defendant had obtained possession by fraud, the court might interfere pending suit. (Zalbot v. Scott, 4 Kay & Johns. 132; Willis v. Corlies, 2 Edw. Ch. 288.) So if the defendant threatens utter destruction to the estate —a proceeding tantamount tofraud. (Talbot v. Scott,4 K. & J. 133, 126.) The plaintiff must not only show a valid title, but also real danger of loss. (People v. Mayor of N. Y.,10 Abb. 111; see ante, p. 89, § 244; Willis v. Corties, 2 Edw. Ch. 288; Buain- brigge v. Baddeley, 3 Macn. & Gor. 419; reversing 8. C., 18 Beav. 355; Lancashire v. Lancashire, 9 Beav. 129.) And even then, it is said by Woon, V. C., that there is no actual precedent for the appointment of a receiver. Fingal v. Blake, 2 Moll. 50, is not a precedent, the receiver being appointed by consent. (See Zalbot v. Scott, 4 Kay & Johns. 133.) Rent-charge.|—The purchaser of real estate subject to an equitable charge, must either pay the charge, or submit to a receiver. (Pritchard v. Wood, 1 Meriv. 54.) Tenants in common.|—W hether a receiver could be appointed in any case between tenants in common—query? (Tyson v. Fairclough, 2 Sim. & Stu. 144; see Hargrave v. Hargrave, 9 Beav. 549; Milbank v. Revett, 2 Meriv. 405.) Tenant for life.|—Where a tenant for life fails to protect the estate from such demands as he is equitably bound to do, a receiver will be appointed for so much of the rents and profits as may be necessary for that purpose. (Carns v. Chabert, 3 Edw. Ch. 312.) Trustees.|\—When a trustee is insolvent, or otherwise un- worthy of confidence, a receiver may be appointed. (Zlaggarty 740 RECEIVERS. In what cases, Trustees. Waste. v. Pittman, 1 Paige, 298; see Chautaugue Bank v. White, 6 N. Y., [2 Seld.] 252; Boyd v. Murray, 3 Johns. Ch. 48 ; Jen- kins v. Jenkins, 1 Paige, 248.) But the fund must be shown to be endangered by his pos- session. (Orphan Asylum v. MW Cartee, Hopk. 433.) In general, a breach of trust, endangering the fund, is suffi- cient ground for the appointment of a receiver. (See Lvans v. Coventry, 5 De Gex, M. & G. 918.) Where a State amployati an agent to sell its bonds at par, for cash, and he sold some of ee below par, on credit, a re- ceiver was appointed, and the agent ordered to transfer to him such bonds as remained in his hands, with the proceeds of such as had been sold. (State of Illinois v. Delafield, 8 Paige, 527; 5. C. affirmed, 2 Hill, 159.) Where the officers of an insurance company had negligently allowed its funds to be wasted, and one of them had absconded with a part thereof, a receiver was appointed in an action brought by one of the insured, on behalf of himself and all in- terested. (Evans v. Coventry,5 De Gex, M. & G. 911; revers- ing 8. C., 3 Drewry, 75.) Where, trustees of a common fund being unable to agree, the majority act alone, and take securities in their own names, the cestuis que trust, or any of them, are entitled to have a re- ceiver appointed. (Swale v. Swale, 22 Beay. 584.)' a A Waste.|—A receiver cannot be allowed in favor of a mort- gagee on the ground of waste. An injunction is sufficient pro- tection. (Robinson v. Preswick, 3 Edw. Ch. 246.) It seems, that a receiver might be allowed pending an action to recover the possession of real estate, in a case of such de- structive waste by the defendant as would indicate his total want of confidence in his own claims. (Za/bot v. Scott, 4 Kay & Johns, 126, 133.) Will contested.]—In England, a receiver has sometimes been appointed during a contest over the probate of a will, but the surrogate is, in this State, vested with sufficient power in the premises. (See Ldwards on Leec’rs, 50.) RECEIVERS. 741 Who may apply. At what stage of the action. Art. 3.— Who may apply for a Receiver. As to parties.|—LHither party to an action may apply for a receiver, upon establishing an apparent right to property which is the subject of the action, and showing that the pro- perty, or its rents and profits, are in danger of loss or material injury. (Ante, p. 89, § 244.) Whether the Code lays down any rule as to parties apply- ing, in any other case than the above, is at least doubtful. Corporations ; receivers over.|—Application in the cases pro- vided by statute, and heretofore referred to (ante, p. 734), may be made by 1. The attorney-general : 2, Any creditor ; 3. Any stockholder. (8 &. S. (5th ed.) 764; [2 id. 464.]) Partnership ; limited.]—The creditors of a limited partner- ship may, upon proof that the firm is insolvent, and neglects to place its assets in the hands of a trustee for equal distribution among its creditors, apply for the appointment of a receiver. (Lewy: v. Ley, 6 Abb. 89; Lachaise v. Lord, 1 id. 2138; 4 E. D. Smith, 612; Wisteuright v. Stimpson, 2 Barb. 381; ees v. Lansing, 7 Paige, 583.) But all the creditors must join, or the plaintiff must sue for himself and all other creditors who will join, etc. No single creditor can maintain the action in his own right. (Lachadse v. Lord, 1 Abb. 213; and see Levy v. Ley, 6 Abb. 89 ; Lanes v. Lansing, T Paige, 586.) Partnership ; general.|\—The same principles have been applied to general partnerships as are stated above in regard to limited ones. (Dillon v. Horn, 5 How. 35.) But this is erroneous. (Crippen v. Hudson, 13 N. ¥. [3 Kern.] 161, 167.) Art. 4.—At what Stage of the Action Receiver may be appointed. After commencement of suit.]—A receiver cannot be applied 742 RECEIVERS. At what stage of the action receivers may be appointed. ‘for before the commencement of an action. (Kattenstroth v. Astor Bank, 2 Duer, 682; Anon., 1 Atk. 578; see M’ Carthy v. Peake, 9 Abb. 166.) Except in the cases of idiots and lunatics. (Semble, JZ’ Carthy v. Peake, 9 Abb. 166; Ev parte Whitfield, 2 Atk. 315.) Or unless he has fraudulently withdrawn or concealed him- self, to avoid service of process. (Maguire v. Allen, 2 Ball & Bea. 75; see Sandford v. Sinclair, 8 Paige, 374.) But in such case, his attorneys and agents, if any, should be notified. (Jlagwire v. Allen, supra.) Where service is made by publication, this application cannot usually be made until such service is complete. (Sandford v. Sinclair, 8 Paige, 874; 38 Edw. Ch. 398.) But where irreparable injury may be caused by delay, a receiver may be appointed before the actual commencement of the action. (People v. Norton, 1 Paige, 17; Tanfield v. Irvine, 2 Russ. 149; see M’Carthy v. Peake, 9 Abb. 166; Sandford v. Sinclair, supra.) Before answer.]—Originally, a receiver was seldom granted before the answer. (See Vann v. Barnett, 2 Bro. OC. C. 158.) But 2 seems that the applications in such cases were refused because the plaintiffs could not show an equitable title. (J/e¢- calfe v. Pulvertoft, 1 Ves. & B. 183.) The strict rule has at any rate long been obsolete, and it is well settled that a receiver may be had before answer, if the plaintiff shows an equitable claim, and the fund is in dan- ger. (Bloodgood v. Clark, 4 Paige, 577; see West v. Swan, 8 Edw. Ch. 420.) Pending motions.|—The pendency of a motion to dissolve the injunction in a creditor’s suit, is no objection to this applica- tion. (Barnard v. Darling, 1 Barb. Ch. R. 76.) Nor the pendency of a motion for leave to amend the com- plaint, unless the defect sought to be remedied, is demurrable. (Ibid.). Corporations.|—The application as against corporations, in the cases heretofore mentioned, (ante, p. 734), may be made at any stage of the action. (8 2. 8. (5th ed.) 764; [2 id. 464.]) RECEIVERS. 743 Notice of application. Form of notice. Arr. 5.—Wotice of Application. As a general rule, the court will require notice to be given of this application. (JL’ Carthy v. Peake, 9 Abb. 166; Dorr v. Nowon, 5 How. 80; Kemp v. Harding, 4 id. 178; Gcbson v. Martin, 8 Paige, 482.) Or an order to show cause should be obtained, which in case of urgency, might be made returnable immediately. (Gibson v. Martin, 8 Paige, 483.) If the defendant has fraudulently withdrawn himself from the State, notice will be dispensed with. (Semble, Sandford v. Sinclair, 8 Paige, 374.) Under special circumstances, where irreparable injury would be caused by delay, notice may be dispensed with. (People v. Norton, 1 Paige, 17; see Sandford v. Sinclair, 8 id. 375.) Extending a receiver.|—Where a receiver having been ap- pointed in one action, application is made to extend his ap- pointment to another suit, affecting the same property, it is not - necessary to give notice to the plaintiffs in the former suit. (Walsh v. Walsh, 11 Irish Eq. R. 607.) But if the appointment of another person as receiver over the same property is desired, notice should be given to the parties at whose instance the first receiver was appointed. (Lottimer v. Lord, 4 E. D. Smith, 183.) § 159. Notice of Motion for Receiver. [Title of Cause.] Taxes novice that upon [the affidavits, of which copies are herewith served upon you, and also upon] all the pleadings in this action [or, the complaint in this action, ¢f that only has been served], a motion will be made at the next special term of this court, to be held at the [City Hall] in the [city of Brook- lyn], on the .... dayof...... next, at the opening of court on that day, for the appointment of a receiver of the 744 RECEIVERS. : Notice of application, » Order to show cause. [rents and profits of the estate of defendant, or, partnership pro- perty and assets of all kinds of the late firm of John Doe & Company], mentioned in the complaint in this action, with the usual directions; or for such other order or relief as may be Just, with costs of motion. Yours, etc., [ Date. ] H. B. Doryza, To A. J. Spoonsr, Esq., Plaintif’’?s At’y. Defendants Attorney. § 160. Order to show Cause against Appointment of Receiver. [Title of Cause.] On the [affidavits herewith served and upon the] complaint {or, pleadings] in this action, let the defendant show cause, if any he have, on the... .dayof...... next, at 10 o’clock in the forenoon, before the special term of this court, to be held- at the [Court House], in the [town of White Plains], on that day, why a receiver should not be appointed for the [state pro- perty briefly], and why such other relief should not be granted to the plaintiff, as may be just, with costs. [Judge's signature. ] Service.|—The notice or order should be served in the usual manner, with a copy of the moving papers. (See ante, p. 435.) RECEIVERS. 745 Papers used on application. In support of the motion. Art. 6.—Papers used on application. Susp. 1. In support of the motion. 2. 1n opposition to the motion. Susp. 1. In support of the Motion. It does not seem to be necessary, in order to obtain a receiver, that the complaint should pray for one. (JL’Crackanv. Ware, 3 Sand. 688; Bowman v. Bell, 14S8im. 392 ; Malcolm v. Mont- gomery, 2 Molloy, 500; see Hdwards on Ree’rs, 19, 20.) And though it seems, on reviewing all the cases, that it was advisable in chancery to pray for a receiver in the complaint, if it seemed probable that one would be needed, (Zdwards on Rec'rs, 20,) yet we think that under the Code, the complaint should demand final relief only. Nevertheless, as the courts are reluctant to interfere with the prayer for relief, there can be no danger in demanding the appointment of a receiver pending suit, though we cannot commend the practice. It seems, that a receiver may be granted upon the admissions of the answer alone. (Spratt v. Ahearne, Hay. & J. 800; Loveday v. D’ Esterre, id. 151.) But the motion, if made upon the answer alone, must be noticed promptly after the answer isserved. Six months’ delay held fatal. (Z0zd.) Afidavits.|—Under the new system of pleading, there can be no question as to the propriety of moving upon affidavits, as a complaint will not be allowed to state any matter which goes merely to establish the plaintiff’s right to a provisional remedy. (See Corwin v. Freeland, 6 N.Y. [2 Seld.] 560; Sellar v. Sage, 13 How. 231; Putnam v. Putnam, 2 Code Rep. 64.) And under the former practice, affidavits were allowed, though with some limitations and restrictions. (See Hayes v. Heyer, 4 Sand. Ch. 487; Goodman v. Whitcomb, 1 Jac. & W. 571.) Petition.]—The application may be made on a sworn petition, instead of affidavits. (See Sea Jns. Co. v. Stebbins, 8 Paige, 566.) 746 RECEIVERS. Papers on application. Mode of appointment. Necessary allegations.|—In mortgage cases the moving papers must show, 1. Who is in possession, showing that some party to the action, or tenant under him, has possession ; 2. That the premises will not bring the amount of the mort- gage debt upon sale; 3. That the party (if any,) who is pesos liable for a defi- ciency, is not able to meet such liability. (Sea Ins. Co. v. Stebbins, 8 Paige, 567.) In partnership cases, the complaint should either allege that the firm has been dissolved, and that the partners cannot agree on the settlement of its affairs, or else it should pray for a dis- solution, and allege facts upon which the court will decree the same. (See Hall v. Hall, 8 Macn. & G. 88; Garretson v. Weaver, 3 Edw. Ch. 385 ; Jackson v. De Forest, 14 How. 83.) Susp. 2. In opposition to the motion. The motion may be opposed upon the answer and counter- affidavits. Mortgage cases.|}—Upon resisting an application for a re- ceiver in a mortgage case, the defendant should bring forward strong evidence to show that the estate will bring enough upon sale to satisfy the mortgage, with interest and costs. Un- less this is clearly proved, a receiver will be appointed. (Sea Ins. Co. v. Stebbins, 8 Paige, 567.) Arr. 7.—Mode of Appointment. Application must in all cases be made to the court. Though we are not aware of any express decision to this effect, yet the entire absence of any authority, statutory or judicial, for the allowance of a receiver by a judge out of court, and the un- varying course of practice are conclusive on this point. (See also 8 B.S. (5th ed.) 164; [2 cd. 464.]) ‘But the court may sxouclce its power in three different ways ; viz. : 1. By direct appointment ; 2. By appointing upon the report of a referee ; 3. By empowering a referee to appoint. RECEIVERS. 747 Mode of appointment. Reference to appoint. The last method is most usual. The first is very seldom adopted, except in supplementary proceedings, with which we have here nothing to do. An instance in a partnership case, however, occurs in Steele v. Sturges, 5 Abb. 443. Lehearing.]—The court will not grant a rehearing upon an order for a receiver, as it does not affect the merits. (Sheldon v. Weeks, 2 Barb. 533.) § 161. Order for Leeference to appoint a Eeceiver. Supreme Court. Joun Smiru : Ti THC ay ais OR aie nd wien , on the against ose May OF ea aes ,18.. JOHN JONES. Present—A. B., Justice. On reading and filing [the affidavits of B. C., and C. D., dated the .. 44 day of «2+ , 18. .,and on] the pleadings herein ; on motion of [B. V. Abbott,] counsel for plaintiff, after hearing [R. D. Benedict,] counsel for defendant ; Orprrep: 1. That it be referred to [C. H. Langdell,] Esq., OF ede ee [counsellor at law,] to appoint a receiver of [specify the property with as much particularity as possible.] 2. That the said referee take from such receiver security to i. a special term, held at the . the amount of ..... dollars, with two or more suflicient sureties, and file the: same with the clerk of this court [o7, of the county of ..... ] 3. That upon the filing of such security, and of the said referee’s report, such receiver shall be vested with the usual powers [and specify any peculiar powers bestowed upon him.] J. L., B. V. Assort, Clerk. Plaintif?s Attorney. 748 RECEIVERS. Mode of appointment. Reference to report. § 162. Order for Reference to report a Recewer. [Title of Oause.] [Caption.] On reading and filing [the affidavits of B. C., and C. D., dated GHG sea MRP OF we Se ,18 . ., and on] the pleadings herein ; on motion of [E. H. Owen,] counsel for plaintiff, after hearing [F. W. King,] counsel for defendant ; Orperep: 1. That a receiver be appointed to take charge of [specify the property.] 2. That it be referred to..... , Esq., of... .. , [coun- sellor at law,] to report a suitable person to be appointed such receiver and to report the names of sureties proposed by him, with the amount for which they should be liable, and their responsibility for the same. Js Las Owen & Voss, Clerk. Plaintiff’s Attorneys. § 163. Order confirming Referees Report. [Title of Cause.] [Caption.] On reading and filing the report of ...... , Esq., a referee appointed by the courtonthe....dayof..... gl S s)45't0 report a suitable person for receiver in this action: on motion of [H. B. Duryea,] counsel for plaintiff, after hearing [T. H. Rod- man,| counsel for defendant ; Orverep: 1. That the said report be confirmed. 2. That James Brown, of. . . ., [merchant,] be appointed receiver of [describe the property. | 8. That William Brown, of ..... » [merchant,] and John Town,of..... , [builder,] be approved as sureties for the said receiver, and that they file with the clerk of the county OF So. 2s , the ‘bond heretofore approved by the said referee, in the penalty of ..... dollars. RECEIVERS. 749 Mode of appointment. Proceedings on reference, 4, That the appointment of the said receiver shall date from the filing of the said bond. 5. That the said receiver shall have all the usual powers and rights of receivers under this court [and specify any peculiar powers conferred.] Jie lis H. B. Dorrra, Clerk. Plaintiff’s Attorney. The preceding form is necessary only when the referee is directed to report a receiver. Arr. 8.—Proceedings upon Reference. Susp. 1. On reference to appoint. 2. On reference to report. Supp. 1. On reference to appoint a receiver, As heretofore mentioned, the referee may be required, as in § 162, to report to the court the name of a suitable person to act as receiver, or, as in $161, he may be directed to proceed to the appointment of the receiver without the further intervention of the court. (See Matter of Eagle Works, 8 Paige, 386; Wetter v. Schiieper, T Abb. 98.) The latter course appears to be by far the most usual. (/d7d.) Settling the order.|—After the moving party has obtained his _order, he should, if it is at all special in its provisions, submit a copy to the opposing counsel, before entering it with the clerk. (Whitney v. Belden, 4 Paige, 141.) Service.|—A copy of the order, as entered, should be served on the opposing attorney, or his time for appeal will be unlimi- ted.—Or a written notice of entry will be sufficient. (Zyler v. Simmons, 6 Paige, 1823; see also Holcomb. v. Jackson, 2 Edw. Ch. 620.) A certified copy should also be served on the referee. (1 Bard. Ch. Pr. 670.) 750 RECEIVERS. Proceedings on raference. Summons to attend. Summons. |—The moving party should obtain a summons from the referee, notifying the parties to attend. (Zdwards on Ree're, 82.) If the personal attendance of the defendant is desired, for the purpose of ascertaining what property is subject to the receiver- ship, the summons, or an underwriting to it, should state the fact, and refer to the original order. (Holcomb v. Jackson, 2 Edw. Ch. 620.) A § 164. Summons to attend Reference. [ Title of Cause. ] TO i we BS You are hereby required to attend before........ , the referee appointed by the court to appoint a receiver in this action, at his office, No. . . st., in the [city] of... .... , on the....dayof...... next, at... o'clock inthe... noon, when he will receive proposals for a receiver under the order of the court, dated ....... , 18. ., acopy of which has been served upon you. [Uf addressed to the defendant, and it is so desired, add: Your personal attendance is required, for the purpose of exami- nation. ] Caries Tracy, Ww. B. Sura, Leferee. Plaintiff’s Attorney. If the attendance of the defendant is not necessary, we think that a simple notice of the time of holding the reference, served on the defendant’s attorney, would be sufficient. Its form would be substantially as above, omitting the clause in brackets. The personal attendance of the defendant is seldom or never necessary except in the case of a creditor’s action. RECEIVERS. 751 Proceedings on reference. : Proposals of receivers. Examination of defendant.|—This subject will be fully con- sidered hereafter, under the head of Supplementary Proceed- angs ; vol. il. It is enough at present to say that the examination must be confined to the subject of property, and the defendant may re- fuse to answer any questions bearing upon the merits of the action. (Copous v. Kauffman, 8 Paige, 587; Gihon v. Albert, 7 id..279; Fitzhugh v. Hveringham, 6 id. 30.) Diligence in conducting reference.|—It was formerly pro- vided by rule, that if the party having conduct of the reference did not carry it on with reasonable diligence, any other inter- ested party might apply to the court to grant him the working of it. (Hdw. on Ree’rs, 83.) Although no such rule exists now, yet the principle would doubtless be acted upon in case of need. Proposals |—W hen the referee and parties are ready to pro- ceed, the moving party should hand in a written proposal, con- taining the names of a receiver and his-sureties, with a short description of the property. (Zdw. on Leec’rs, 87.) The opposing party, or any party interested, may hand in counter-proposals. (ldid.; see L’Lspinasse v. Bell, 2 Jac. & W. 436.) The referee should appoint the fittest person proposed with- out regard to the party proposing him. (L’ Espinasse v. Bell, 2 Jac. & W. 436.) But he should give a preference, other things being equal,- to the nominee of the party conducting the reference. ( Wé- son v. Poe, 1 Hogan, 322; Bowersbank v. Colasseau, 8 Ves. 166. eon that no party to the suit can propose himself as re- ceiver, without leave of the court. (A? Carthy v. Peake, 9 Abb. 168, note; DMeaden v. Sealey, 6 Hare, 261; Jefferys v. Smith, 1 Jac. & W. 303; see Stone v. Wishart, 2 Madd. 64.) A stranger cannot propose a receiver, nor can one be ap- pointed on such a proposal. (Ad’y Gen. v. Day, 2 Madd. 246; see Bowersbank v. Colasseau, 3 Ves. 165.) Whether the referee can appoint any one not regularly pro- posed—query ? (Lbid.) 752 RECEIVERS. Proceedings on reference. Proposal. Report. If the referee reject all the persons proposed, he must give the parties reasonable time to make new proposals. (Jldid.) § 165. Proposal. of a [ecewer. [Title of Cause.] Proposal of the above-named [plaintiff, or defendant] for receiver of the [estate, ov rents and profits of the estate], men- tioned in the order of this court, dated ....... ,18. The (plaintiff ] proposes A. B., of the [city of New York}, as such receiver : And the said A. B. proposes C. D., of the [town of Flat- bush], and E. F., of the [city of Brooklyn], as his sureties. Joun E. Burritt, Jr., Plaintiffs Attorney. The referee having selected a suitable person from among those proposed to him, the receiver must give security in the manner hereafter mentioned. (Post, p. 762.) The referee must then make his report, which may be sub- stantially as follows: § 166. Referee’s Report of Appointment. [Title of Cause.] To the [Supreme Court of the State of New York]: In pursuance of an order of this court, made in the above- entitled action, dated the. ...day of ....... yf AB sy whereby it was referred to the undersigned to appoint a RECEIVERS. “ToD Reference to appoint. Referee’s report. receiver of the [estate, e¢c., or partnership stock, efc., or, rents and profits of the estate of, efe.], and take from such receiver proper security: I,....... , the referee named. in said order, respectfully report : 1. That I have been attended on said reference by the attor- neys and counsel of [both, vr all the parties to this action]; and thereupon proceeded with the matters so referred. 2. That A. B., of the [city of New York], was proposed on the part of the [plaintiff] as such receiver, and that no objec- tion being made to his appointment, and no person proposed by the defendant, and said A. B. appearing to me to be a fit and proper person for such trust, I have appointed him re- ceiver, as aforesaid. [Or, 2. That A. B., of, ete., was proposed, ete., and G. H., of the same place, was proposed on the part of the defendant, and that upon due examination, it appeared to me that the said @. H. was better fitted to execute the trust of such receiver- ship than the said A. B., wherefore I appointed the said A. B. receiver, as aforesaid. ] 3. That the said A. B. proposed, as his sureties, C. D., OL ie wa eles cand Bo Ee, Of i ear sews ; and being satisfied by their affidavits [and other proof], that they were each ot them worth the sum of....... dollars, over and above all their liabilities, I approved of them as such sureties. 4. That said A. B., C. D., and E. F., thereupon jointly and severally executed a bond in the usual form, to the people of this State, in the penalty of ....... dollars, conditioned for the faithful discharge by said A. B. of his duties as receiver aforesaid. 5. That I have caused the said bond, with my approval indorsed thereon, and the affidavits of justification of said sureties, to be filed with the clerk of the county of ..... All which is respectfully submitted. [ Date. ] Cuartus TRACY, Referee. 48 754 RECEIVERS. Reference to appoint. Date of appointment. Opposing report. Date of receiver's appointment.|—The receiver’s title will date of the day on which the reference was ordered. (Lotts- mer v. Lord, 4 E. D. Smith, 191; Rutter v. Tallis, 5 Sand. 612; airfield v. Weston, 2 Sim. & Stu. 973; see Steele v. Sturges, 5 Abb. 443; West v. Hraser, 5 Sand. 654.) If he should fail to give security, and another receiver be appointed, the title of the latter would also date on the day of the original order. (Steele v. Sturges, 5 Abb. 443.) If, after the order of reference is granted, though before the receiver enters upon his duties, the property is seized on exe- cution, the court will order the sheriff to return it. (Steele v. Sturges, 5 Abb. 442; Rutter v. Tallis, 5 Sand. 612; but see Lich v. Loutrel, 18 How. 121, contra.) The receiver’s appointment is complete when the referee’s report and the proper security are filed. ( Wetter v. Schlieper, 7 Abb. 93; Matter of Eagle Works, 8 Paige, 385.) Opposing the report.|—The report cannot be made the sub- ject of exceptions. (Matter of Hagle Works, 8 Paige, 386; Thomas v. Dawhin, 3 Bro. C. C. 509.) If any party is dissatisfied with the appointment, he should apply to the court upon petition, for an order directing the re- feree to review his report. (Matter of Eagle Works, 8 Paige, 386.) This application should be made upon like notice to that re- quired upon the original motion. (Ldzd.) _ The court will be reluctant to grant this motion, yetif a strong case is made out, the matter will be referred back. (Wynne v. Newborough, 15 Ves. 283; see Wetter v. Schlieper, 7 Abb. 95.) The decision of the referee will not be disturbed merely be- cause the court may think he could have made a better selec- tion. (Matter of Eagle Works, 8 Paige, 387.) If the motion is granted, the proceedings before the referee should be commenced de novo. (Edw. on Rec’rs, 96.) RECEIVERS. 755 Reference to appoint. Petition for review. § 167. Peution for Review of Referee’s Report. [Title of Cause.] To the [Supreme] Court of the State of New York: The petition of [John Doe] the above named [plaintiff,] re- spectfully shows: 1. That by an order of this court, made at a special term, held at....on the.... day of ....18.., it was referred POr tere ete , Esq., a counsellor of this court, residing AD, eae Foe ae , to appoint a receiver in this cause, of certain property more fully mentioned and described in said order, a copy whereof is hereto annexed, and to which your petitioner prays leave to refer. 2. That such reference was duly had before said referee, on sundry days and times, and that your petitioner, on the... day of . . ., 18. ., duly proposed to said referee the name of A. B. Esq., [merchant] of the [city of New York] as receiver, with C. D. and E. F. as his sureties. : 3. That on the [said] ...., day of . . ., 18. ., the defend- ant also appeared before said referee, and proposed one G. H. of the [said city of New York] as such receiver, with I. J., and L. M., of [the same place], as his sureties. [4. That the sureties on both sides justified in due form, and were not objected to.] [5. That A. B., Esq., who was proposed on the part of your petitioner, is a nienchiat of great experience in the iron trade, and is capable and willing to devote his personal attention to the management of the affairs of the co-partnership, which were by the said order of court, to be placed in charge of a re- ceiver. ] [6. That nearly the whole stock in trade, and property over which the said receiver is appointed, consists of iron, or manu- factures of iron, and that without the close personal attention of the manager of the business, it cannot be sold except ata heavy loss.] (7. That G. H., Esq., the receiver appointed as above, is an 756 RECEIVERS. Reference to appoint. Petition for review. Order for review. attorney and counsellor of this court, who has no experience or knowledge of the iron trade, and who cannot, however faith- ful he may be, properly conduct the same ; and that he is more- over too feeble in health to give that daily and constant atten- tion to the duties of such receivership, which is absolutely necessary to do justice to the same. | 8. Wherefore your petitioner prays that the said appointment of G. H., Esq., as receiver, may be revoked, and that the mat- ter may be referred back to [said referee, or, another referee], ‘for the appointment of a new receiver in this action, [with costs]. R. H. Hoyrtey, Joun Dos. Plaintiff’’s Attorney. [ Vertteation.] Costs.|—We should think it unadvisable to ask for costs, ex- eept in a very gross case of partiality, as a review, except in such cases, is a matter of pure favor. ; § 168. Order for Review of Appointment. [ Title of Cause. ] [Caption.] On reading and filing the petition of the plaintiff in this action, and affidavits in opposition; and on motion of ......... counsel for plaintiff, after hearing ...... , counsel for defen- dant, Orverep: 1. That it be referred back to...... , Esq., [the referee heretofore appointed], to’ review the appointment of G. H., Esq., as receiver in this cause, and that the same may be supported and opposed by further evidence. 2. That after such review, and upon due hearing of the par- ties, the said referee proceed to appoint a receiver in this action, pursuant, in all respects, to the order of this court, dated eo Feces , 18. ., and report to this court with all convenient speed. k. H. Hunrrey, E. F., Plaintiffs Attorney. Clerk. RECEIVERS. 757 Reference to report. Report of referee. Susp. 2. Proceedings upon reference to report a receiver. Where the referee is not directed to appoint the receiver, he should simply report the name of a suitable person, with his sureties, to the court. The moving party should thereupon move for a confirmation of the report, and until it is confirmed, the appointment is not complete. (See Datter of Eagle Works, 8 Paige, 386.) In other respects, there is no difference between the proceed- ings upon this mode of appointment, and that which has just been considered. § 169. Referees Report, proposing a Receiver for Appointment by the Court. [Title of Cause.) To the Supreme Court of the State of New York: In pursuance of an order of the court made in the above entitled action, dated the....day of....... ; 18 .., whereby it was referred to the undersigned to report a suitable person to be appointed receiver in this action, of certain property in said order mentioned, I, the referee named in said order, respectfully report : 1. [As im § 166.] 2. [As im § 166, to the words ‘ for such trust ”] I respectfully recommend’ him as a suitable person for appointment as re- ceiver aforesaid. 3. [As in § 166, and add] and recommend them as such to the court. 4, [As in § 166, and add] which bond appears to me sufii- cient in form and substance, and is herewith submitted. All which is respectfully submitted. Henry R. Cummines, Leeferee. [Date.] [Annex the bond.] "758 | RECEIVERS.. Reference to report. Confirmation of report. § 170. Notice of Motion to Confirm the Preceding eport. [Title of Cause. ] Taxe notice, that I shall move thig court, at a special term thereof, to be held on the....dayof..... 25 Oi Bs ay at the [City Hall] in the [city of Brooklyn], to confirm the re- port of the referee heretofore appointed to report a suitable person as receiver in this action, a copy of which report is herewith [or, has been] served upon you, and for such other or further order as to the court shall seem meet. Yours, ete., E. W. Caster, Plaintiff's Attorney. To Joun Greenwoop, Esq., Defendant's Attorney. § 171. Order confirming Referee’s Report. [Title of Cause.] [Caption.] On reading and filing the reportof ....... , Esq., referee herein, dated the .... dayof..... ..,18. ., made pur- suant to an order of this court, dated the... .dayof......, whereby it was referred to said referee, to examine and report who was asuitable person to be appointed receiver of certain property mentioned therein: And it appearing to the court that due proceedings have been had before said referee, and that A. B.of ...... was duly proposed by the [plaintiff] as such receiver aforesaid, and that C. D. and E. F. of... . . were proposed by said A. B. as his sureties, all of whom were approved by said referee; on motion of ..... » counsel for plaintiff, after hearing .... . , counsel for defendant, Orxperep: 1. That the said report be in all things con- firmed. RECEIVERS. 759 Reference to report. Who should be appointed. 2. That A. Biof...... be, and is hereby appointed re- ceiver of [describe the property fully] ; 8. That C.D. and E.F.of ..... be approved as sureties for said A B., and that they cause to be filed with the clerk of [the county of Kings], the bond heretofure approved by the said referee, for the penalsum of ...... dollars. 4. That the said receiver have all the powers and rights usually conferred upon receivers under the practice of this court, [here add any special powers], subject to the control of the court. 5. That the authority and powers of the said receiver date from the filing of this order, with the report of the referee aforesaid, and the security aforesaid, with the clerk of [the county of Kings]. ‘ C. W. T., Clerk. E. W. Cuester, Plaintiff’s Attorney. Arr. 9.— Who should be appointed Receiver. The receiver should, in general, be an entirely impartial per- son, having no interest to prejudice his official action. (Jripp vy. Chard Railway, 11 Hare, 261.) ; He should be of sufficient ability and knowledge to manage the estate properly. (Lupton v. Stephenson, 11 Irish Eq. R. 484.) Other things being equal, the nominee of the party who con- ducted the reference should be appointed receiver. (Wilson vy. Poe, 1 Hogan, 322; see Bowersbank v. Colasseaw, 3 Ves. 166.) Attorneys in the cause.|—The attorney in the cause, whose duty it would be to examine the receiver’s accounts, cannot be appointed receiver. (Ex parte Pincke, 2 Meriv. 452; Garland vy. Garland, 2 Ves. 137.) But it is no objection to a receiver that he is an attorney or counsellor, if he does not act as such in the cause. ( Wilson v. 760 RECEIVERS. Who should be appointed. Officers of corporations, Parties. Poe, 1 Hogan, 322; Garland v. Garland, 2 Ves. 187; but see _ Lupton v. Stephenson, 11 Irish Eq. R. 484.) Guardian.|—The next friend or guardian ad litem of a party in the cause, cannot be appointed receiver. (Stone v. Wishart, 2 Madd. 64.) Mortgagee.|— It seems, that a mortgagee cannot be appointed receiver of the estate. (dw. on L2ec’rs, 70.) Officers of insolvent corporations.|— When a corporation vol- untarily applies for a dissolution, any of its officers or stock- holders may be appointed receivers. (3 2. S. (5th ed.) 769 ; [2 zd. 468]; see Matter of Eagle Works, 8 Paige, 385.) But in any other case, an officer of a corporation will not be appointed receiver of its effects. (At?y Gen. v. Bk. of Columbia, 1 Paige, 517; but see Bowery Bank case, 5 Abb. 415.) In the case of the VW. Y. and Erie &. R. Co., however, (1859, not reported,) the vice-president was appointed receiver by the Supreme Court, all parties, we believe, consenting. The Company was prosecuted as insolvent. Parties to the action.]|—A party to the action is frequently appointed receiver, but in every case leave must be asked from the court before making such a nomination to the referee. The application is decided upon the special circumstances of each case; but the party cannot be allowed any compensation. (WL Carthy v. Peake, 9 Abb. 168, note ; Meaden v. Sealey, 6 Hare, 261; Blakeney v. Dufaur, 15 Beav. 40; Jeffreys v. Smith, 1 Jac. & W. 803; Wélson v. Greenwood, 1 Swans. 483; see Lenn v. Bolles, 7 Abb. 201, 204; but see Lupton v. Ste- phenson, 11 Irish Eq. R. 486; Harvey v. Wallace, id. 339.) Where the receiver in one action was a party in another, re- lating to the same property, he was made receiver in the latter action also. (Downshire v. Tyrrell, Hayes, 354; but see Har. vey v. Wallace, 11 Trish Eq. R. 839 ; contra.) Trustees.]—It is a general rule that the trustee of an estate cannot be appointed receiver. (Sutton v. Jones, 15 Ves. 584; Sykes v. Hastings, 11 id. 863; Anon., 8 id. 516.) RECEIVERS. 761 Who should be appointed. Disqualifications. Extending a receiver. But 7d seems, that the objection will be obviated, if the trustee consent to act as receiver without compensation. (Sut- ton v. Jones; Sykes v. Hastings, supra.) Other disqualifications.|—No one should be appointed re- ceiver, even at the wish of the majority of the parties inter- ested, whose interest strongly conflicts with the interest of the estate, and who has in any way taken an advantage for himself at the cost of the fund. (Fripp v. Chard Railway, 11 Hare, 260. an receiver should be competent to manage the property. (Lupton v. Stephenson, 11 Irish Eq. R. 484.) And if he is not competent to do so, his appointment cannot be sustained upon his agreement to’ follow the advice of an adept. (Lbzd.) Relationship to a party is not of itself a disqualification. ( Wetter v. Schlieper, 7 Abb. 95.) But where such relationship has led the person proposed to take an active part in the controversy, and his feelings are evi- dently too much enlisted to enable him to act impartially, he should not be appointed. (W¢llcamson v. Welson, 1 Bland, 497.) Extending receiver.|—Where several actions are brought by different parties, all seeking the appointment of receiver over the same property, the person first appointed receiver in any such action should be also appointed in all the others, unless some ground of objection is shown against him). Lottimer v. Lord, 4 E. D. Smith, 190; Cagger v. award, 1 Barb. Ch. R. 370; Osborn v. Heyer, 2 Paige, 813; Valle v. O'Lrelly, 1 Hogan, 199.) If the receiver first appointed is not a suitable person to be appointed in the subsequent cases, he should be removed, ana one impartial receiver appointed for all. (Loté¢mer v. Lord, 4 E. D. Smith, 194.) He may be required to give additional security, if necessary, and may be removed if he omit to do so. (Lottimer v. Lord, 4 E. D. Smith, 194; Cagger v. Howard, 1 Barb. Ch. R. 370.) 762 RECEIVERS. Security required. Nature of security. Arr. 10. Security to be given by Recewer. When the court is called upon to appoint a receiver, it will invariably require security to be given for the faithful perfor- mance of his duties. Nor will security be waived even upon the consent and request of all parties. (Zylee v. Tylee, 17 Beay. 583; Manners v. Furze, 11 Beav. 31; Baile v. Bailie, J Irish Eq. R. 413 ; Connolly v. Codd, Hay. & J. 624; see Matter of Empire City Bank, 10 How. 504.) In an old case, a receiver was appointed upon his own recog- zance only, by consent. (Carlisle v. Berkeley, Ambler, 599.) But this is substantially overruled by the preceding cases. Of course, a statutory exception may be made to this rule, and in New York, one or two trust companies are expressly authorized to act without security. (See Matter of Empire Citu Bank, 10 How. 504.) Bat in proceedings under a statute, unless the statute in terms dispenses with security, it will be required under the general practice of the court. (Mechanies’ Ins. Co. case, 5 Abb. 451.) If the parties can agree upon the name of a receiver, and present it to the court fora mere formal appointment, security may be dispensed with. (/anners v. Furze, 11 Beav. 32; Lidout v. Plymouth, 1 Dick, 68.) But even this cannot be done, if any of the parties are infants, married women, etc. (See Tylee v. Tylee, 17 Beav. 583.) Nor unless all persons interested have sufficient notice. (Matter of Empire City Bank, 10 How. 504.) Nature of security required.|—The receiver must give his own recognizance, and that of two sureties. (Mead v. Orrery, 3 Atk. 237.) But one surety has been treated as sufficient in this State. (See Mechanies’ Ins. Co. case, 5 Abb. 446.) More than two sureties may combine to justify in the requi- site amount. (Hdw. on Fee’rs, 89.) The security must be personal, and therefore an assignment of a mortgage will not suffice, (Mead v. Orrery, 8 Atk. 237 ;) nor can a corporation be accepted as surety. (Manners v. Furze, 11 Beay. 30.) RECEIVERS. 763 Security required. Penalty. Affidavit of value. New Surety.J—If one of the sureties dies without leaving property of any kind available under his recognizance, the court may require a new surety. (Averall v. Wade, Flan. & K. 342.) But if he leaves real estate sufficient to cover the security, this will not be done. (Zdzd.) Penalty.J|—The referee should fix the amount of the penalty. If the property be personal, the penalty should be for donble the whole value, if real estate, double the yearly value. (Zidw. on Lfeec’rs, 92.) The value should be shown by affidavit, or other evidence. § 172, Affidavit of value of property. [Title of Cause.) County or [Kies]: [John Smith] being duly sworn, says: that the lands and tenements mentioned in the order of this court for the appointment of a receiver, dated... ... 18. ., are now producing [or, worth] the clear yearly rental of... . dollars, exclusive of taxes, insurance, and all other ex- penses. [Or, that the merchandise mentioned, e¢e., is now worth the BUM OF es ea ee dollars, over and above all liens and charges on the same. ] 5 2 oun Smita. [Jurat.] § 173. Bond of Lecewer and Sureties. Know ALL MEN BY THESE PREsENTS, that we, A. B. of... ., CLDHOf ioe sas ,and E. F. of... ... ., are held and firmly bound unto the people of the State of New York, in the sum of . dollars, lawful money of the United States of America, to be paid to the said People of the State of New York. For which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by 764 RECEIVERS. Security required. Receiver’s bond. these presents. Sealed with our seals, and dated the . . . day Ofer arise one thousand eight hundred and. . Wuereas, by an order of the [Supreme] Court of the [State of New York], made at a special term thereof on the... . dayiot os acae ais , 18. ., in an action between [John Doe, plaintiff, and Richard Roe, defendant], it was referred to bo Gidlaes Esq., to appoint some suitable person as receiver of [here set forth the estate briefly], and to receive from such re- ceiver due security for the performance of his duties. And whéreas, said A. B. has been duly appointed receiver by said referee : Now ruererore, the condition of this obligation is such, that if the said A. B. shall, as required by the rules and practice of the court, duly file an inventory, and annually, or oftener, if required, duly account for what he shall receive or have in charge as receiver in the said action, and- pay and apply the same as he may from time to time be directed by the court, and in all respects faithfully discharge his duties as receiver aforesaid, then this obligation to be void, otherwise to remain in full force and virtue. [Signatures and Seals.] [Subscribing witness. ] [Acknowledgment and justification as in § 102.] Liling.}—The bond should be filed with the referee’s re- port. If the bond is not filed, the receiver may be restrained from acting, until itis. (Zech. Ins. Co. case, 5 Abb. £463; see Steele v. Sturges, id. 444.) If the filing is omitted through inadvertence, the court may order it to be filed nune pro tunc. (Whiteside v. Prendergast 2 Barb. Ch. R. 473.) Whether the sureties will be responsible for any acts of the receiver meantime,—query ? (Lbid.) Arr. 11.—Acquirement of Title by Receiver. Formal assignment unnecessary.J}—Upon the appointment of a receiver in due form, the property over which he is ap- RECEIVERS. 765 Title of receiver. Who are represented by receiver. pointed vests in him without any assignment being made by the previous possessor. (Porter v. Williams, 9 N. Y. [5 Seld.] 147; 5 How. 441; see Hdmonston v. M’Loud, 16 N. Y. 544; Fessenden v. Woods, 3 Bosw. 556.) Real estate passes, under the Code, in the same manner. (Porter v. Williams, supra.) It did not, however, before the Code. (Chautauque Bank v. Risley, 19 N.Y. 874; Porter v. Williams, supra.) The courts can no longer compel the defendant to execute an assignment, for the reason that it is unnecessary. (Zen Brocck v. Sloo, 2 Abb. 236; People v. Hulbert, 5 How. 449; see West v. Lraser, 5 Sand. 654, but see Dfyers’ case, 2 Abb. 477; Fes- senden v. Woods, 3 Bosw. 558. Chautaugue Co. Bank v. Leisley, 19 N. Y. 874, refers only to cases prior to the Code.) What passes to receiver under general assignment or order. |— All legal and equitable claims that survive the person at com- mon law. (Zen Broeck v. Sloo, 2 Abb. 286.) An equitable demand in course of litigation. (Z02d.) Real, as well as personal estate. (Porter v. Williams, 9 N.Y. [5 Seld.] 147.) A claim for a personal tort does not pass, unless it has been reduced toa debt by judgment. (Hudson v. Plets, 11 Paige, 183 ; see Zen Broeck v. Sloo, 2 Abb. 234.) A mere possession upon sufferance, to which the defendant has no legal right, willnot pass, nor can he be compelled to surrender it to the receiver. (Gardner v. Smith, 29 Barb. 76.) Date of receiver's title.|—See Date of appointment, ante, p. 54. The receiver’s title does not date from the commencement of the action, but only from the time of his appointment. (Chau- tauque Bank v. Risley, 19 N. Y. 369, 374.) Unless a les pen- dens be filed. (See 262d.) Arr. 12. Who are represented by the Recewver. The receiver is appointed for the benefit of all parties. (Davis v. Marlborough, 2 Swans. 125.) But not for the benefit of strangers to the action. (Howell v. Ripley, 10 Paige, 46.) He represents not merely the person of whose estate he is 766 RECEIVERS. Powers and duties. Taking possession. Continuing business. appointed receiver, but also the creditors and other persons in- terested. (Porter v. Williams, 9 N. Y. [5 Seld.] 149; 5 How. 441; 12 How. 107; Gillett v. Moody, 3 N. Y. [8 Coms.] 488; and see Curtis v. Leavitt, 15 N. Y. 12; Talmage v. Pell, 7 N. Y. [8 Seld.] 847; overruling Hayner v. Fowler, 16 Barb. 300; Seymour v. Wilson, id. 294; See also Laws 1858, p. 506.) Art. 13. Powers and Duties of Receivers. It will not be expected that we should“ give in this place a full account of all the powers or duties of a receiver. We pro- pose merely to notice some of the chief branches of the subject, and especially to cite the decisions of the courts rendered since the publication of any regular treatise on the subject. An ordinary receiver pendente lite, has no powers but such as are conferred on him by the practice of the court, or the order of appointment. (Chautauque Bk. v. White, 6 Barb. 597 ; Verplanck v. Merc. Ins. Co., 2 Paige, 452.) Taking possession of property.|—The receiver may of course proceed immediately to take possession of the property over which he is appointed receiver, if no opposition is offered. But he is not absolutely bound to do so at once. Mere delay in taking possession, without fraud or collusion, will not divest him of title. (Hessenden v. Woods, 8 Bosw. 557, 559.) If the possessor of the property, (whether a party or not,) refuse to give it up, the receiver must apply to the court for an order requiring him to do so; and without such an order, he cannot justify a forcible taking of such property. (Manning vy. Monaghan, 1 Bosw. 465; Parker v. Browning, 8 Paige, 390; see Wellcamson v. Wilson, 1 Bland, 424.) Paying money.—A receiver should not pay out money with- out an order of the court. (Jletcher v. Dodd, 1 Ves. jr. 85.) Continuing business.]|—In partnership cases, where the good will would become valueless, or be seriously depreciated by a stoppage of the business, the court will direct the receiver to carry it on until asale can be made. (Dayton v. Witkes, 17 How. 510; Jackson v. De Forest, 14 How. 83; Marten vy. Van Schaick, 4 Paige, 480.) RECEIVERS. 767 Powers and duties. Receivers of corporations. In creditor’s action. But the order usually limits the time during which this may be done. (Lbid.) And the court will not allow any business to be conducted for an indefinite period in this manner. (Crane v. Ford, Mopk. 114.) Employing counsel.|—The receiver is entitled to the advice of counsel, and ought to obtain it. (Lottimer v. Lord, 4 E. D. Smith, 192.) He should not employ an attorney who appeared for either of the parties to the action in which he was appointed. ( War- ren v. Sprague, 4 Edw. Ch. 417; 11 Paige, 200; Ray v. Macomb, 2 Edw. Ch. 265.) Corporations :-—Receiver of.\—A receiver appointed in an ac- tion brought against a banking or insurance corporation as in- solvent, under 8 RS. (5th ed., 764, § 49; [2 ed. 464, § 41]; has all the powers of an official assignee, and may dispose of all the effects of the corporation, and settle up its affairs. His appointment “ is, in effect, a final order in the cause.” ( Ver- planck v. Mere. Ins. Co., 2 Paige, 452.) A receiver appointed under the 36th (now 44th) section of the same title has no greater powers than an ordinary receiver in equity. (Lbid.; Mann v. Pentz, 3 N. Y. [8 Coms.] 415.) Creditor’s action:-—Receiver in.|—-Unless restricted by the spe- cial order of the court, he has general power and authority to sue for and collect all debts, demands, and rents belonging to the debtor, and to compromise and settle such as are unsafe or doubtful. (Ante, p. 214, Rule 92, Supreme Ct.) Ile may have an order of course that the tenants of any real estate, the rents and profits of which belong to the debtor, at- torn to, and pay their rents to him. (Ante, p. 214.) He may make leases from time to time, not exceeding one year in each term. (Ante, p. 214.) He must, without unreasonable delay, convert the personal estate and effects into money. (Ante, p. 214.) But, until after judgment in the cause, he cannot sell real estate of the debtor, without the special order of the court. (Ante, p. 214.) 768 RECEIVERS. Powers and duties. Control of court over receivers. The granting of this order lies in the discretion of the court, and is not appealable. (Wakeman v. Price, 3 N.Y. [8 Coms.] 334.) He may, by leave of the court, sell desperate debts, and doubtful claims to personal property, at public auction, giving at least ten days’ public notice of the time and place of such sale. (Ante, p. 214.) Accounting.|—The receiver ought to pay all moneys re- ceived by him, into court, at least once a year. He will be charged with interest if he omit to do so. (fletcher v. Dodd, 1 Ves. jr. 84.) He has no right to mix the fund money with his own, to use it, or to lend it. If he does, he will be charged with all profits, if any, or with interest, if no profits are shown. (Utica Ins. Co. v. Lynch, 11 Paige, 522; Mumford v. Murray, 6 Johns. Ch. 17.) He cannot be required to account to a party in the cause. He accounts to the court only. (Musgrove v. Nash, 3 Edw. Ch. 172.) Arr. 14.—Control of the Court over Receivers. A receiver is an officer of the court which appointed him. (Fessenden v. Woods, 3 Bosw. 559; Booth v. Clark, 17 How. [U. S.] 322.) He is under the control of the court. (Van Rensselaer v. Limery, 9 How. 138; Matter of Globe Ins. Co., 6 Paige, 103.) He is bound to obey the orders of the court—zt seems, without appealing from them. (Curtis v. Leavitt, 1 Abb. 275.) He may apply to the court for instructions, in case of doubt or difficulty. (Curtis v. Leavitt, 1 Abb. 275.) In a number of cases, he must apply to the court before act- ing, as for instance, before bringing ejectment—or suing an insolvent, (and it is best to apply before suing in any case,) before leasing premises for more than one year, or selling bad debts—or seizing property held adversely—or paying out money, etc. RECEIVERS. | 769 | Control of court over receivers. Actions by and against. No court other than that which appointed him ought to in- terfere with him in his official capacity. (Luonarn, J., Za- wards v. Bostwick, N. Y. Trans., £eb. 8, 1860; Winfield v. Bacon, 24 Barb. 159.) Application of strangers.|—The court will not interfere, on the application of a stranger, to secure him any advantage by means of the receivership. (JZowell v. Ripley, 10 Paige, 46.) But a stranger to the suit will be protected from any injury to his rights by means of the receivership. (dZubdbard v. Guild, 2 Duer, 688; Howell v. Ripley, 10 Paige, 48; 2dfur- rough v. Lrench, 2 Moll. 498; see Willéamson v. Wilson, 1 Bland, 424.) The court will not direct the receiver to pay any debts due to a stranger, out of the fund. (l7Zudbard v. Guild, 2 Duer, 688 ; Matter of Ingraham, 2 Barb. Ch. R. 33.) If he has an equitable claim on the fund, he may be allowed to sue the receiver. (Hubbard v. Guild, 2 Duer, as 5 Bee Murrough v. French, 2 Molloy, 498.) Removing part of estate.|—Wf it appears that the receiver has been appointed over a larger estate than is necessary for the purpose of the action, part of the estate will be released from his control. (Adw. on Pecewers, 112.) Arr. 15.—Actions by and against Lecewers. Supp. 1. By a receiver. 2. Against a receiver. Supp. 1. By a receiver. Leave to sue.|—A receiver ought to obtain leave to bring an action. (Smith v. Woodruff, 6 Abb. 65; Phelps v. Cole, 3 Code Rep. 157; Merritt v. Lyon, 16 Wend. 410.) If he sues without leave, he will do so at his own risk in regard to costs. (Smith v. Woodruff’, 6 Abb. 65; Phelps v. Cole, 3 Code Rep. 157.) Nor can he charge the estate with the costs of a suit brought by him against an insolvent, from whom he cannot collect them, unless he obtained the leave of conrt, or the consent of all 49 770 Ss. RECEIVERS. Action by a receiver. Against a receiver. parties interested in the fund, to bring the action. (Ante, p. 214, Rule 92, Supreme Court.) It seems, that he cannot maintain an action of ejectment without leave of the court. (@reen v. Winter, 1 Johns. Ch. R. 61; Wynn v. Newborough, 3 Bro. OC. C. 88.) Having obtained leave to sue, he is, in general, bound to do so. (Winfield v. Bacon, 24 Barb. 159.) Attorney to be employed.|—The receiver should not employ an attorney who was concerned in the action in which he was appointed. (Ryckman v. Parkins, 5 Paige, 545; Warren v. Sprague, 4 Edw. Ch. 416; 11 Paige, 200; Ray v. Macomb, 2 Edw. Ch. 165; Adnsley’s case, 1 id. 576.) But such attorney may be employed in a proceeding tending to the mutual advantage of both parties to the original action. (Bennett v. Chapin, 3 Sand. 675; see Lyckman v. Parkins, 5 Paige, 545.) Suing out of the gurisdiction.|—An ordinary receiver cannot, maintain an action out of the State in which he was appointed. (Booth v. Clark, 17 How. [U. §.] 322.) But a statutory receiver, having the powers of a general assignee, will be allowed in comity todo so. (unk v. St. John, 29 Barb. 585.) The language of these cases is much broader than as above laid down, and they are indeed apparently contradictory, but the facts of each case justify the attempt we have made to reconcile them. Susp. 2. Against a receiver. No action should be‘commenced against a receiver as such, without leave of the court appointing him. (De Groot v. Jay, 9 Abb. 365 ; Angel v. Smith, 9 Ves. 835; see Hubbell v. Dana, 9 How. 424.) It isa contempt of court to sue him withont leave. (Per Lronarp, J., Hdwards v. Bostwick, N. Y. Trans., Feb. 8, 1860; Angel v. Smith, 9 Ves. 335.) But the omission to ask leave does not in any way affect the validity of the proceedings in the suit, or upon execution. (Chautauque Bank v. Liisley, 19 N. Y. 376; [overruling Wis- RECEIVERS. \ 771 Actions against a receiver. Compensation. "wall v. Sampson, 14 How. U. 8. 68]; Crippen v. Culver, 13 Barb. 424.) Leave to defend.]— A receiver should apply to the court for leave to defend an action. If he defends without leave, and fails, he cannot charge the costs to theestate. (Swabyv. Dickon, 5 Sim. 631; and see Anon., 6 Ves. 287.) Arr. 16.—Compensation. Rate of compensation.|—It seems, that unless otherwise ordered, the receiver is entitled to the same commissions as are allowed by law to executors. (Howes v. Davis, 4 Abb. 71; see Bennett v. Chapin, 3 Sand. 673.) These rates are as follows: For recetving and paying out all sums of money under $1,000, —5 per cent. On sums not exceeding $5,000,—24 per cent. Above $5,000,—1 per cent. (8 &. S. (5th ed.) 180 ; [2 ad. 93. }) The established construction of the statute is, that where the gross amount exceeds $5,000, the receiver may charge 5 per cent. on $1,000, 24 per cent. on $4,000, and 1 per cent. on the balance. (Bennett v. Chapin, 3 Sand. 673; see Howes v. Davis, 4 Abb. 71.) Where the receiver is not called upon to pay owt as well as to receive, he is entitled to half-commission only. (Howes v. Davis, 4 Abb. 713 see Matter of Bank of Niagara, 6 Paige, 216.) Party to the Action.]—If a party is appointed receiver, he is never allowed any compensation. (See W’Carthy v. Peake, 9 Abb. 163, note; Meaden v. Sealey, 6 Hare, 261; Blakeney v. Dufour, 15 Beav. 40; Jefferys v. Smith, 1 Jac. & W. 303; Wilson v. Greenwood, 1 Swans. 483.) Receiver acting as attorney, etc.|—A receiver who acts as attorney or counsel on behalf of the estate, cannot be allowed any counsel fees beyond the taxable costs. (Mutter of Bh. of Niagara, 6 Paige, 215.) 772 ' RECEIVERS. Discharge. Change. Notice of motion. Arr. 17.—Discharge or Change of [eceiver. The court which appointed a receiver has discretionary - power to discharge or remove him. (Matter of Colvin, 3 Md. Ch. Dee. 300.) But he is not discharged by the abatement of an action. (M’ Cosker v. Brady, 1 Barb. Ch. R. 846; Woods v. Creaghe, 1 Hogan, 174.) \ Nor by a discontinuance. (Semble, Whzteside v. Prender- gust, 2 Barb. Ch. R. 472.) But it is said that a judgment in the cause will discharge him, unless he is expressly continued by it. (Zdw. on Lee’rs, 17.) If the property over which he is appointed be sold, and the purchaser put into possession by order of the court, the re- ceiver is thereby discharged. (Ponsonby v. Ponsonby, 1 Hogan, 321.) Discharge on his own application.J—A receiver will not be discharged as of course upon his own application. He must show cause for granting the motion. (Beers v. Cheiscu Banh, 4 Edw. Ch. R. 278; Smith v. Vaughan, Ridew. Ch. C. 251.) If the application be granted, he will be allowed costs of the same from the fund. (Richardson v. Ward, 6 Madd. 266.) § 174. Notice of Motion for Lemoval of a Receiver. [Title of Cause.) Taxn notice, that on the annexed affidavits, and on all the proceedings herein, I shall move this court, at a special term thereof, to be held atthe. ...inthe...... ,outhe.... day Of 4. oe ee next, at the opening: of court, to remove A. B., the receiver heretofore appointed in this action, from RECEIVERS. ee Discharge or change. Order for removal. such receivership [and for an order of reference to appoint a new receiver], {with costs of motion. ] Jas. OC. Carrer, Defendants Att'y. To Jas. 8. L. Commins, Esq., Plaintif’’s Attorney. To A. B., Esq., Bineioan Service of notice.|—This notice should be served in the usual way upon the opposite party to the cause. (Sce ante, p. 435.) But it must be served upon the receiver personally, unless an order to show cause, dispensing with personal service be obtained. (At?’y Gen. v. Haberdashers’ Co., 2 Jur. 915.) § 175. Order for Removal of a Receiver. [Title of Cause.] [ Caption.] On reading and filing the affidavits of B. C. and C. D., and on all the pleadings and proceedings herein, on motion of .. . . counsel for [defendant], after hearing. ...... , Esq., counsel for [plaintiff], and for A. B., receiver: Orperep: 1. That A. B., of... ... » be, and he is hereby removed from the office of receiver, to aiieh he was appointed under an order of reference dated. ..... 518 . « 9. That the said A. B. make his report, and render unto this court a full and fair account of all the property or money which has come into his hands as receiver aforesaid, and of all his proceedings as such. 3. That the said A. B. deliverto....... all the books, papers, money and property of every kind, real and personal, 774 RECEIVERS. Discharge or change. Vacating the order. 1 which may have come into his possession as receiver afore- said, on or before the. ... daycf...... gb! Gnd LZf a new receiver is appointed, add a clause providing for his appointment.] E. FF, J. CO. Carrer, Clerk. Defendant's Attorney. Art. 18. Vacating the Order. The proceedings upon a motion to vacate the order appoint- ing a receiver, are substantially the same as upon a similar motion with regard to an injunction. (M’ Carthy v. Peake, 9 Abb. 164; Wetter v. Schlieper, 7 id. 92.) See ante, pp. T18-124." 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