f' :_':,::-' l-.(.\-^ >*^W7(U UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY i / ^ ■ EQUITY JURISDICTIONS AND LAW OF REAL PROPERTY IN THE UNITED STATES, NORTH AMERICA. # LONDON: PRINTED RY C. ROWORTH, liEI.L YAKD, TIMPl-E BAR. THE STATUTES AND ORDERS OF THE COURT OF CHANCERY AND THE STATUTE LAW OF REAL PROPERTY OF THE STATE OF NEW YORK, RECENTLY REVISED AND AMENDED. WITH A BRIEF ACCOUNT OF THE EQUITY JURISDICTIONS AND LAW OF REAL PROPERTY AND REGISTRATION IN THE UNITED STATES, NORTH AMERICA. * BY JOSEPH PARKES. LONDON: A. MAXWELL, 32, AND STEVENS AND SONS, 39, BELL-YARD, LINCOLN'S INN; UatD Ijoottscllrrs anli ^utltefjcre : R. MILLIKEN AND SON, GRAETON STREET, DUBLIN. MDCCCXXX. 12 ^. \ r^q TO LEWIS DUVAL, ESQ. OF Lincoln's inn, ONE OF HIS majesty's commissioners appointed to INQUIRE INTO THE LAW OF ENGLAND RESPECTING REAL PROPERTY, THESE PAGES ARE RESPECTFULLY INSCRIBED BY AN OLD PUPIL. " The United States form a striking contrast to England. From the very begin- ning of our colonial history down to the present time, important alterations in our Laws have been comparatively frequent and easily effected. The fathers of our country were so fortunately situated, that it was in their power to introduce the wisdom of a highly civilized nation, while they had scarcely any of the obstacles to encounter, which, in an old country, the prejudices of many, and the interests of a few, always throw in the way of improvement. They could apply remedies directly and promptly to the sources of evil, and with a single view to the general welfare." — American Juiist, 1829. PREFACE. The laudable efforts of the British legislature and of the legal profession, for the advancement of the science of jurisprudence and the amendment of the municipal law, will be promoted by the publication of informa- tion and the results of practical experience relating to legal reform in other nations. It is much to be re- gretted, perhaps not too late, that the Royal Commis- sions appointed for inquiring into the law of England respecting Real Property, and into the practice and proceedings of the superior courts of Common Law, which have been conducted with so much credit and advantage, should not have empowered the Commis- sioners to depute competent Sub-commissioners to investigate and report on the laws of other countries, especially those of Europe and North America. The appropriation of a fractional portion of the public money to an object so important, might be well af- forded in the national expenditure. France, Russia, Germany, and the Netherlands, have long enjoyed the benefits of many important practical improve- ments in civil and criminal jurisprudence. The laws of the European mother-countries were adopted in VIU PREFACE, most of the North American States, and their improve- ment was facilitated by national advantages, unim- peded by many difficulties which the law of primo- geniture and the prejudice for existing systems and institutions opposed to alterations of the law and judi- cial establishments of Europe. Fas est et ah lioste doceri, is a maxim universally admitted ; but happily in a period of profound peace the opportunity exists of gathering the experience of friends. The United States of North America are chiefly indebted to Eng- land for their colonization, language, literature, arts and sciences, and for the spirit of liberty which now constitutes them a great and independent nation. To profit by their experience is incurring no debt, and the parent country derives reflected honour from every approach they make towards good government and national improvement. An important illustration of the evils in the original constitution of the Equity system of England is af- forded by the present state of the courts of Chancery in the United States. The same defects exist in North America; the anomaly of distinct and contra- dictory principles and decisions of courts of equity and common law ; the grievous substitution of written evidence for viva voce examinations ; the arrear of un- decided causes; the enormous expense of litigation; the evils of unrestricted appeal ; the general want of a local territorial administration of equity law. In the State of New York some advance has been made towards a revision of the statutes applicable to proceedings in the court of chancery, and to the im- provement of the rules and orders of equity practice. PREFACE. IX The new regulations and revised law commenced and took effect in January last, and are printed ver- batim in the present volume, with an analytical index, which will supersede the necessity of any commentary on their relation to the English system. The constitution and jurisdiction of the courts are clearly defined in the Statutes. The new Orders com- prehend the most valuable English amendments of practice. The circuit administration, the partial ad- mission of viva voce evidence, the revision and consoli- dation of the equity statutes, the remuneration of the judges by fixed salary instead of by fees, and the rules and orders of practice, are the distinguishing improve- ments; and the court is not incumbered with jurisdic- diction in bankruptcy. The State of New York has also recently revised and amended (or codified) its laws of Real Property. Codification has partizans and adversaries of equally ultra party spirit. Every reduction, arrangement or improvement of existing laws, is a distinct codifi- cation ; the extent, mode and success of which must however depend on the particular legal relations of a given country, on the demand, means and interest for compensation, and on the state of public opinion and government. Every elementary treatise on a title of law partakes of the nature of a code, and where re- vision and consolidation have been most required, the practical benefits of their application have been most experienced and approved. The brevity and simpli- city of arrangement of the New York revision of this most important and difficult department of the law present an honourable and commendable example. PREFACE. To each chapter of the Revised Statutes the Revisers prefix an analysis of its several titles; to each title an analysis of its several articles; at the head of each article is placed a summary of the contents of each section, and where a title is not divided into articles, a similar summary is placed at the head of the title, and a brief note of the subject-matter of each section is printed in the margin. The Revised Statutes of the State of New York, relating to Real Property, may hereafter afford some valuable and original aid towards carrying into effect the suggestions in the Reports of the English Real Property Commissioners. Those Statutes are comprised in sixty-five pages, and are reprinted in this volume. The references in the original authorised edition, published under the direc- tion of the Revisers, Messrs. Due r, Butler, and Spex- CER, have been adopted, and refer to American statutes heretofore passed, containing provisions analagous to those in the Revised Statutes, In making these refer- ences the following abbreviations have been used: — 1 R. L. and 2 R. L. refer to the Revised Laws of 1813, published in two volumes by former State revisers, Messrs. Van Ness and Woodm'orth. The Session Laws of 1813, and of the subsequent sessions to 1828 inclusive, are referred to by the years in which they were passed ; and the references are, in all cases, to the editions published by the state printer. It will not be necessary to notice these references, as they successively denote the adoption, variation, or abroga- tion of the old law in the Revised Statutes, and the simplicity and analytical mode of arrangement super- sede the necessity of an index. PREFACE. XI A brief and general view of some of the alterations in the law of real property, which have been made in the United States, has been selected and abridged from the American Jurist,* and other trans-atlantic publications. A most substantial improvement has been effected. The greater part of the valuable sug- gestions of the English Real-Property Commissioners has been adopted, and is already in practical ex- periment, and most of the evils of the English system, which Mr. Humphreys foremost and ably exposed, have been remedied in North America. The laws of primogeniture and tithes are too closely and at pre- sent inseparably interwoven with European society and the British constitution to authorise any simple or Utopian observations on the practicability of intro- ducing that part of American improved jurisprudence ; but the following enumeration of the nature and extent of the improvements of the real property laws in one or more of the States, will secure the respectful attention of the British jurist and legislator, and may excite their attention to the utility of a commission, for the particu- lar purpose of ascertaining the practical improvements and procedure which Congress and the State Legisla- tures adopted in their revisions and the commissions of amendment. The nature and extent of the improve- ments will be placed in a strong light by the following enumeration : and to carry into effect practical im- provements, as well as to report, is, or ought to be, the ultimate objects of all commissions o{ inquiry. — 1. Abo- lition of feudal tenures, including copyholds ; 2. Aboli- » No. I. Art. III. Xll PREFACE. tion of tithes; 3. Making both the real and personal property of intestates descend to the same persons; 4. Enabling parents to become heirs to their children; 5. Abolition of primogeniture, and preference of males in descents; 6. Making all estates descend in the same course, whether acquired by purchase, or by descent from paternal or maternal ancestors; 7. Abo- lishing the preference of male stocks in descent; 8. Enabling half-blood relations to inherit; 9. Making husband and wife heirs to each other in case of failure of blood relations; 10. Making seisin of land pass by the mere delivery of the deed; 11. The general re- gistration OF deeds; 12. Making a fee-simple pass without the word ** heirs," or any equivalent, where a less estate is not expressed; 13. Enabling tenants in tail to convey their estates in fee-simple without a fine or recovery; 14. Enabling married women to convey their estates, and bar their dower without a fine; 15. Change of joint-tenancies into tenancies in com- mon; 16. Removing the disabilities of alienage with regard to real property; 17. Abolition of the doctrine of tacking in mortgages; 18. Placing land mortgaged, as well as the debt for which it is security, at the dis- posal of the mortgagee's executor; 19. Making all real estate liable to execution for debt, and to be sold in execution, like personal property; 20. Ren- dering real estate assets for payment of all debts without any distinction; 21. Shortening the periods of limitations. — To these improvements may be added the general introduction throughout the States of civil registers of births, marriages, and burials. The important changes thus enumerated are con- PREFACE. Xlll sidered in the United States to have rendered the principles of law applicable to real property more simple and equitable; the rules of construction more conformable to common sense; the modes of trans- ferring property more cheap, direct, and expeditious; the title to it more clear and easily investigated ; and in consequence its purchasers more secure.* The pecuniary advantages of practitioners of the law are not to be one moment weighed in the scales of justice against the public interest; but when the transfer of property is thus facilitated, the responsibility of the practitioner thus diminished, can it be doubted that private and public interests are co-incident? and can prejudice and error maintain their bigoted opposition to salutary and practical reform? The amendment of the laws and improvement of the judicial establishments of the United States are perio- dically provided for by Conventions of the provincial legislatures assembled for the express purpose of revi- sion. Legal reforms, in the states of New York, Mas- sachusetts, and Louisiana, have been successfully committed to the labours of competent persons offi- cially authorised and adequately remunerated. But the British Parliament is overwhelmed with the pres- sure of various duties. A division of labour, and a delegation of legislative functions, must early and unavoidably be considered ; and the era of a new Par- liament will be a propitious period for maturely deter- mining the transfer of some of the accumulating and * American Jurist, vol. i. p. 99. XIV PREFACE. ill-performed duties of the House of Commons to an intermediate and preliminary tribunal. An American writer thus appropriately described the old system of trans-atlantic and superficial legislation — " It is worse than useless to patch up and endeavour to amend departments essentially defective in organiza- tion ; it is nothing but a miserable attempt to perpe- tuate an evil, because we dare not accomplish a radical change. The knife must be applied to the seat of the disease, and, by extirpating the cause, an effective remedy must be provided." The introductory account prefixed to the Revised Chancery Orders and Statutes and Law of Real Pro- perty, is a brief review of a part only of the general legal constitution of the several states, and does not pretend in so few pages to any comparative analysis and commentary on the Laws of England or the United States. It is chiefly compiled with the object of ex- citing public attention to the practical adoption, by another country, of propositions of legal amendment discussed in England as of doubtful theoretical cha- racter. A second volume may detail more specifically the improvements effected in the different States in the departments of the Common Law, Codification, and Legal Education ; and particularly in relation to local jurisdictions for cheap and expeditious justice, the necessity for which in this country has been advo- cated by Sir Robert Peel, and lately so forcibly demonstrated by Mr. Brougham. Birmingham, July, loth, 1830. CONTENTS Origin of the Equity Jurisdictions in the North-American States. — Court of Chancery of the State of New York. — New York Convention to amend the Constitution of tlie State. — Judicial Department. — Progressive increase of litigation. — Memorial of the Inhabitants of New York to the State Legislature on the delays of the Court of Chan- cery. — Meeting of the Members of the Bar — their resolu- tions, circular, report. xvii Constitution of the New York Court of Chancery ; tenure of office ; powers and duties of officers. — Evils of the system of Appeal and written mode of Evidence. — Court of Chancery of the State of Massachusetts. — Provincial Charters. — Report of the State Legislature on the expe- diency of establishing a distinct Court of Equity. xxxvii Equity Systems of the States of South Carolina, New Jer- sey, Mississippi, Delaware, Virginia, Maryland, Missouri, Vermont, Maine, New Hampshire, Rhode Island, Connec- ticut, Ohio, Illinois, Indiana, North Carolina, Louisiana, Tenesse, Kentucky, Georgia, Pensylvania. — The Bank- rupt Laws of the States. — Discussions on the question of a " National Bankrupt Law." Ix Laws of Real Property : the various tenures. — Abolition of all feudal services, and of fines and recoveries. Facilities of foreclosure of Mortgages. — Modification and abolition of the^'w5 accrescendi. — Law of Descents. — Repeal of dis- abilities of Aliens with respect to Real Property. — Simple modes of conveyance and technical forms. — Registration ; its principle and statutory provisions in the different States. — Rights of Creditors. — Alienation by adverse possession or Limitation of Time. Ixxv XVI CONTENTS. • PACl American publications on constitutional law and legal Re- form. — Experimental legislation. — Mode of appointing Judges. — Division of Legislative Labour. — Boards of Jurisprudence. — Revision and Consolidation of the Laws of New York. cvi Rules and Orders of the Court of Chancery of the State of New York. ' 1 Selections from the Revised Statutes of New York particu- larly applicable to Proceedings in Chancery, — Precedents of Writs and Forms in Chancery, officially approved. 7 1 Revised Statutes of the State of New York relating to Real Property. 1G7 INTRODUCTORY ACCOUNT OF THE NORTH AMERICAN EQUITY JURISDICTIONS AND LAWS OF REAL PROPERTY, The colonization and settlement of Federal America by different European nations, introduced the princi- ples of law and judicial establishments of the respec- tive mother countries. The common law and equity system of England was partially adopted in most of the states originally colonized by British settlers ; but the progress of transatlantic jurisprudence, before the Revolution, was influenced by a variety of causes and determined by the peculiar circumstances of colonies trading only to or through the mother country, a po- pulation widely scattered, and the business of the courts extremely limited. The principles of the com- mon law were necessarily more immediately and ex- clusively applicable to the wants of an infant and newly settled colony.* * Judge Story's Address. — Dane's Digest of American Law. C XVlll INTRODUCTION. In many of the states no Court of Chancery existed. In others it was a mixed jurisdiction, exercised by courts of common law; and in those where it was administered by a distinct judicature, the practice was imperfect and limited, the principles of decision built upon a notional equity, limited by few fixed rules, and resting almost exclusively in discretion.*" An Equity jurisdiction now exists in complete operation, in some states, in partial operation in others, and in many is obsolete or totally prohibited. This conflict of prin- ciples and practice, in a country under one govern- ment, would be irreconcileable w^th fact and reason if the political history of the twenty-four states did not fully account for its existence in territories re- taining their several independent sovereignties, though subject to a federal union. The colonial jurispru- dence, judicial interpretations, and local usages of the transatlantic colonies, were zealously claimed and se- cured at the union; and they established the same legal and judicial independence, which England and Scot- land maintained, when united in one empire. This diversity of jurisdiction and variety of practice have naturally excited a long and zealous controversy in the states, on the utility of a court of chancery, and the propriety of making it entirely independent of any court of law ; but a critical review of the various dis- cussions and arguments would exceed the limits even of a volume devoted expressly to that particular in- quiry. The question was elaborately considered in the North American Review, in 1820, in an article * North American Review. New Series, vol. xi. p. 142. art. Chancerv Jurisdiction. INTKODUCTIOy. XIX Oil Chancery Jurisdiction,* attributed to an eminent Transatlantic jurist, (Judge Story,) and was subse- quently solemnly debated in the Convention of 1821, assembled for the purpose of amending the constitu- tion of the State of New York.t The utility of the- discussion involves a question rather of theoretical, than of practical import ; in America as in England he must be a bold legislator who could advisedly medi- tate the suppression of the existing courts of chancery, and the transfer of the equity jurisdictions to common law judges. Many accomplished and learned lawyers in Ame- rica, eminent at the bar, and in high judicial stations, justly doubt the advantage ^jer se of separating courts of equity from those of law ; but nearly all agree that where the division of the two tribunals has ex- isted for a long time, and a distinct system of equity has been gradually perfected, and become a rule of property, greater evils, than advantages, would follow the transfer of equity jurisdiction to the courts of law; and such w^as the determination of the Convention of New York, which ultimately continued the court of chancery in that state, upon its ancient principle, with certain improvements hereafter noticed. Such parts only, therefore, of these provincial and legisla- tive discussions and documents will be used as briefly illustrate the past and present nature of the equity jurisdictions and chancery courts of the states. The following Statistical Table will sufficiently * North American Review, vol. xi, p. 140. t See the State Reports and Official Documents published at Al- bany in 1821, 8vo. p. 590. art. Judicial Department. c2 XX INTROnUCTION. inform the English reader of the particular population and comparative distribution of employment in the different states, and the consequent probable demand for an equity jurisdiction : it displays the number of persons, in the several states, employed in agriculture, in commerce, and in manufactures, with the gross number, according to the Census of 1820.* States and Territories. Agricuhure. Commerce- Manufac- tures. Gross Population. Maine, 55,041 4,297 7,643 298,335 New-Hampshire, 52,384 1,068 8,699 244,161 Massachusetts, 63,460 13,301 33,464 523,287 Rhode-Island, 12,559 1,162 6,091 83,038 Connecticut, 50,518 3,581 17,541 275,208 Vermont, 50,951 776 8,484 235,764 New- York, 247,648 9,113 60,038 1,368,775 New-Jersey, 40,811 1,830 15,941 274,551 Pennsylvania, 140,801 7,083 60,215 1,049,449 Delaware, 13,259 533 2,821 70,943 Maryland, 79,135 4,771 18,640 364,389 Virginia, 276,422 4,509 32,336 895,033 North-Carolina, 174,196 2,551 11,844 556,821 South-Carolina, 166,707 2,684 6,747 399,351 Georgia, 101,185 2,139 3,557 281,126 Alabama, 30,642 452 1,412 111,147 Mississippi, 22,033 294 650 62,320 Louisiana, 53,941 6,251 6,041 125,779 Tennessee, 101,919 882 7,860 390,569 Kentucky, 132,161 1,617 11,779 513,623 Ohio, 110,991 1,495 18,956 581,434 Indiana, 61,315 429 3,229 147,102 Illinois, 12,395 233 1,007 54,843 Missouri, 14,247 495 1,952 62,496 Michigan, 1,468 392 196 8,896 Arkansas, 3,613 79 179 14,246 District of Columbia, 853 512 72,493 2,184 33,039 Totals, 2,170,646 349,506 9,637,999 * Cooper's Lectures on the Elements of Political Economy, 2d edit., Columbia, 1829, p. 290. INTRODUCTION. XXI Although the abolition of estates tail, with all their multifarious and intricate ramifications, and the simple manner in which the statutes of descents distribute property, have greatly abridged the jurisdiction of equity, yet the same commercial causes existing in England have, during the last century, contributed to pour into the courts of the states continually increas- ing streams of litigation. A court of equity, distinct from the courts of law, is found in the earliest records of the juridical history of the State of New York. It was one of the first acts of the Assembly, after the people of the colony were admitted to a share in the legislative power, to declare that there should be a " Court of Chancery," which should hear and determine all matters of equity, as the supreme court of the colony. The governor and his council refused to concur with the assembly, not from any difference of opinion between them, on the necessity or utility of such a court, but from jealousies arising in contests for the possession of its patronage and power.* The constitution of a Court of Chan- cery, afterwards, by an ordinance of the 2d September, 1701, and the governor and council, as judges, ren- dered it extremely unpopular, and frequent but fruit- less attempts were made by the Assembly to destroy the jurisdiction. In 1752, the officers of the court consisted of two masters, two clerks, one examiner, a register, and a serjeant at arms. It continued to be * " A court of equity is aLsolutcly necessary ; but whether private property ought to be in the hands of the governor, I leave to others to determine." — Smith. History of New York, 2? J-. .'27G. (Carey's Edition.) XXll INTKODUCTIOX. held under that ordinmice, but little business appears to have been transacted in it until its reorganization, in March, 1778, under the Constitution of the State.* The period immediately following the revolution was not the most propitious for building up a judicial esta- blishment, and times of difficulty, distress, want of capital and confidence, were not favourable to an equity lawyer or an equity judge. The New York Court of Chancery, however, under the judicial ad- ministration of Mr. R. R. LiviNGSTOx, from 1777 to 1802, and of Mr. Lansing, from 1802 to 1814, greatly increased in business and in public favour. But it was not till the appointment of Mr. Kent in 1814, and the judicial decisions by that acute and eminent chancel- lor, that the jurisdiction attained its present authority and usefulness. He had for twenty years previously filled the office of a puisne judge and chief justice of the Supreme Court, and his experience and learning excellently qualified him for the distinguished station of chancellor, which he occupied till 1823. There- ported decisions of Mr. Kent and his successors are not only of the highest authority in all the equity tri- bunals of the states, but are known and respected on this side the Atlantic! By an act of the New York Legislature, in 1814, an official reporter was directed '" from time to time, to report and publish such de- cisions of the Court of Chancery, as the Chancellor of the state shall deem of sufficient importance to be re- * Johnson's New York Chancery Reports, vol. i. preface. t Caine's Cases in Error, 2 vols. — Johnson's Cases, 3 vols. — John- son's Reports, 20 vols. — Cowen's Reports, 7 vols. — Johnson's Chan- cery Reports, 7 vols. — Ilopkin's Chancery Reports, 1 vol. IXTROUUCTIOX. XXlll ported and published.'" There were no reports in equity in the State of New York prior to the chancel- lorship of Mr. Kent, but from the admirable system of equity contained in the reports of his decisions, it has been said of him, with respect to the Court of Chan- cery, as was said of Augustus in regard to the city of Rome, Lateritiam uwenit, mar mor earn reliqidt* Notwithstanding the advantages of the modern con- stitution and rules of practice of the court, the evils inherent in the original system soon appeared. The most unquestionable evidence of the recent state of the court is recorded in the report of the proceedings and debates of the Convention of 1821, assembled for the purpose of amending the constitution of the State of New York. Committees were appointed to exa- mine and report on the Judicial Department. The equity system was specially investigated, and the committee appear to have been extremely anxious to recommend as few alterations as possible, " deeming it imprudent and unsafe to give up what had been tried by a long experience, for hazardous innovations and experiments." Chancellor Kent was judicially involved in the same difficulties of overgrown juris- diction, which Lord Eldon and Lord Lyndhurst have in vain endeavoured to surmount. Mr. Munro, in introducing the consideration of the report, ex- plained the principles and views which influenced the select committee on this department. * Campbell and Cambreleng's Chancery Digest. Preface, VI. New York. 1828, XXIV INTUODUCTION. They had considered it wise and prudent to preserve, as entire as possible, the present judiciary system ; but tliey were aware that the chancery system had increased so much, that it was out of the power of ahnost any man to attend to it. Per- haps no man in the state, except the present chancellor, could do the duties of that office at the present time. It has been with the most rigorous exertion and indefatigable labour that he has continued to preserve the usefulness and character of that court. He has reduced it to a system which does honour to the state and to himself; but it has now arrived at a period in business which renders it almost impossible for him longer to discharge its arduous labours. The business is still rapidly increasing. * The statement from Mr. Kent of the business of his court was then cited, which will most correctly de- scribe the progressive increase of judicial business. In 1821 there have been two terms held, one in Albany and one in New York. The one had 137 and the other had 128 causes set down for hearing, making 265 causes for two out of four terms in the year. There are a considerable number of cases submitted upon pleadings and proofs in vacation, and probably for the present year there will be 400 causes in chan- cery brought upon the merits. All that have been hitherto brought to a hearino; or submitted are decided. There is no cause ready for hearing that has not been heard and decided. In 1820 there were in the two terms in New York t390 causes set down for hearing on merits, and disposed of; say 1 10 more in the said terms in Albany and in the vacation, making 500 causes that year. In 1819 there were 224 causes at the two New York terms set down for hearing. In 1817 there were, in the two New York terms only, set down for hearing 280 causes. * Coinention Report, {>. oOl. IXTIIODUCTION. XXV In 1814 there M'ere in these two terms in New York only 123. The business of the court appears to be in a state of rapid increase, and the sohcitors and counsellors of the chancery bar are multiplying very fast. Chancery business, or what may arise on special motions weekly, is also greatly increasing; and, in my humble opinion, the chancellor will very soon require relief, by one or more persons to the south and west, to do what may be considered as the special or non-enumerated business of the court, and also its incidental business, as cases of infants and sales of their real estates, and lunacy, drunken- ness, injunctions, disclosures, &c. Such business is pouring in daily upon the Chancellor, and ever since the first of last De- cember he has been incessanll// and laboriously occupied to keep down and dispatch the business of the term and of the special and multiplied matter. * Mr. Munro made the following comments on the state of the equity jurisdiction: — From a knowledge possessed by the members of the Select Committee, together with this statement from the Chancellor, it was deemed necessary to provide in some measure for the future discharge of the duties of that office other than by an individual. They concluded that to establish the office of Vice- Chancellor in or near the city of New York, and leave it in the power of the legislature to establish, whenever it shall be deemed necessary, one or more Vice-Qiancellors in the western part of the state, would be putting that court in a situation where it might stand. The Committee were of the opinion that it was impossible to establish any competent system without some additional ex- pense ; and as this plan could be adopted without any very great expense, they thought best to engraft it into the original stalk, which was planted in this state at a very early day, and had continued to grow and flourish till the present time. * Convention l\c])oit, p. 50 1. XXVI INTRODUCTION. The business in the Supreme Court has become so extensive, that it is not in the power of the Judges to discharge it. In the city of New York not more than one-third of the causes are usually tried. One-half or two-thirds of the business is neces- sarily passed over. To remedy this, the Committee have thought proper to recommend the establishment of a Supreme Court of Common Pleas, to consist of a Chief Justice and three Assistant Justices; which, together with all the Judges of the Supreme Court, making eight in all, would be competent to dis- charge all the business at the circuits. This would make an increase of only three beyond the present number, and, ac- cording to the present salaries given, would add to the expen- diture but 9000 dollars per annum, which he thought would be amply repaid to the state by the important benefits it would confer. * 111 this Convention the several questions of an aboli- tion of the Court, of blending the administration of law and chancery powders in the same tribunal, and of the special delegation of equity powers to newly con- structed tribunals for bankruptcy and lunacy, were severally debated ; and much curious information was communicated by different members of the Conven- tion of the Courts and technical practice of the diffe- rent states. The opinions of Mr. Kent appear to have materially influenced the Convention in limiting the propositions of amendment, and especially in pre- serving the faulty and inferior system of written evi- dence.! As subsequent alterations of the practice and jurisdictions have been made, it will not be neces- * Convention Report, p. 501. t See the Speech of Chancellor Kent, October i?2, 1831, and his Report to the Senate of the State of New York, on the mode of lakin"- testimony in Chancery, Convention Report, p. 507. INTRODUCTION. XXVll sary to detail all the discussions, suggestions, or pro- positions of amendment debated in that Convention. Few effective alterations were accomplished by the exposures and recommendations of that solemn in- quiry. The delays and expense of the court became more palpable and intolerable. Petitions poured into the provincial legislature. The following memorial, from the capital of the State, states briefly, but poignantly, the insufiiciency of the tribunal : — To the Honourable the Legislature of the State of New York. The Memorial of die undersigned Inhabitants of the City of New York, on behalf of themselves and others of their fellow citizens, Respectfully shews, That within the last few years the population and business of the city of New York, and, as a necessary consequence, its sources of litigation, have, from various causes, increased to a degree be- fore unprecedented; and that the present judiciary establishment, as experience has fidly shown, whatever may be the talents and exertions of the judges themselves, is inadequate to the dis- charge of the increased and still increasing duties imposed upon it, and ought, as your Memorialists believe, to be so far aug- mented as to meet the emergency, and to insure to suitors not only an able and impartial, but, what is often still more im- portant, a prompt administration of justice. Your Memorialists, therefore, (referring your Honourable Body for the particulars on this subject to the proceedings which have lately taken place in the common council of the city, copies of which are herewith transmitted,) would respect" fully pray, that your Honourable Body would be pleased to provide by law for the establishment of a new City Court, and the appointment of a Vice-Chancellok, as proposed in the XXVlll INTRODUCTION. two forms of acts lately submitted to the Common Council, and by them published for the consideration of their constituents, to the end that the ruinous delays of justice under which, in common with our fellow citizens, we are now labouring, may be speedily removed. And your Memorialists will ever pray. This lamentable insufficiency of the Courts was fur- ther and honourably represented and exposed, by some of the most eminent members of the New York bar. A meeting of the members of the bar, from different parts of the State, was convened at the City Hall, on the 10th May, 1827, " to take into consideration the remedy for the delays of justice, incident to the present judiciary system.'* Mr. Peter J. Munro was called to the Chair, and John Anthon appointed Secretary. Mr. Thomas Addis Emmet, as Chairman of the Committee of Ten, appointed at a previous meeting, opened the proceedings by explaining the plan of re- lief which the Committee had, almost unanimously, he said, agreed upon ; and which they intended to submit to the consideration of the bar. He stated further, that the Committee, as directed by one of the resolutions under which they were appointed, had communicated with the Judges of the Supreme Court, (the Chancellor not being in town,) and that a cor- respondence had taken place between them, which he read. The Judges, in answer to Mr. Emmet's note, en- closed a copy of a resolution of the Senate, stating, that since the receipt of it, they had not had an op- portunity of conferring with the Chancellor and Circuit Judges ; and that, in their opinion, previous to such INTHODUCTIOxV. XXIX conference, any public expresssion of their sentiments, on the subject of the resolution of the Senate, would be improper. Mr. Emmet then read the report of the Committee, which, after having undergone some dis- cussion, and been partially modified, was adopted by the meeting, with but one dissenting voice. It was, thereupon. Resolved, That a Committee of five (including the chairman and secretary of this meeting) be appointed to present a me- morial to the legislature, and to adopt such other measures as they shall deem necessary to carry into effect the plan proposed in the report ; and that the Committee have power to add to their own number. (Messrs. T. A. Emmet, Roosevelt, and Cowdrey, together with the Chairman and Secretary, were appointed to compose the Committee.) Resolved, That the proceedings of this meeting be signed by the Chairman and Secretary, and published. Adjourned. (Signed) Peter J. Munro, Chairman. John Anthon, Secretary. A special and excellent report was drawn up, and unanimously agreed to by this Committee. It was communicated to the public and the members of the bar, with the following printed letter, signed by every member of the Committee : — (Circular.) Sir, We beg leave to call your attention to the enclosed Report. It relates, as you will perceive, to the delays of justice existing at present in the Supreme Court and Chancery of the state, but more especially in the former of those tribunals. An opinion prevails in the community, or at least in some por- tion of it, that the members of the bar are interested in in- creasing and perpetuating these delays. The impression is XXX INTRODUCTION. erroneous. Our interest and the interests of the public, instead of clashing, are in unison. It is not enough, however, that such is the fact — we owe it to oux'selves to show, by our proceedings, that it is so. Hence the meetings which have lately been held in New York and in Albany. They have resulted in the plan which is herewith submitted, of creating a Superior Court of Common Pleas of general jurisdiction, and one or more Vice- Chancellors to be located at such places as the legislature may deem the public convenience to require. The Committee con- ceive that this is the best and safest mode of attaining the desired object. It was proposed and discussed in the late con- vention, was sanctioned by the matured judgments of a very considerable portion of that body, and comes to us recom- mended, we think, by subsequent experience. To gentlemen of the legal profession, whose business calls them to witness the state of the two courts to which these observations relate, (and, it must be remembered, that it is of those two courts alone that complaints are made,) no arguments, we presume, are necessary to produce a conviction of the indispensable necessity of some new organization of the judiciary establishment. It is not in the power of talents, industry, and method, be they ever so dis- tinguished and unremitting, to subdue (under the present system) the mass of business with which those courts are oppressed, and we might say, as to one of them, overwhelmed. We trust, therefore, that there will be a cordial co-operation among the members of the bar, and that, while important de- fects, should there be any, are freely pointed out, minor dif- ferences of opinion will not be permitted to delay or defeat the attainment of an object in which their clients and the com- munity are so deeply interested, and which is so intimately connected with the character of the profession and the honour of the state. Peter J. Munro. James J. Roosevelt, Jun. John Anthon. T. A. Emmet. S. CoiIDREY. I\ I UODUCTIOX. XXXI REPORT. The Committee, appointed at a meeting of the members of the bar, held at the City-Hall, on the 10th day of May instant, to take into consideration the subject of the delays in the pre- sent administration of justice in the superior courts of law and of equity in this state, Respectfully report — That they have given to the subject that attention, which its intrinsic difficulty, and its important bearing upon the welfare of the community, imperiously demand. Your Committee are of opinion, that the judiciary system, as organized by the new constitution, and the subsequent legislative enactments, is a total failure. It has neither lessened the expense, nor abridged the duration of law suits ; nor has it, except in some few in- stances, promoted the convenience of suitors. On the contrary, the evils complained of have gone on increasing in number and in magnitude with an unexampled rapidity. In the Court of Chancery, about seven-eighths, and in the Supreme Court a still greater proportion, of the causes are, from term to term, necessarily left unheard. The average duration of a suit in either of those courts, is from three to five years, and it is in the power of a party, so disposed, to protract the delay still more. It must be apparent, that such a state of things cannot be permitted to continue, without greatly imparing the value of property, and bringing the government into discredit with the people. The passage of stop-laws, it will be recollected, was at one time deemed an evil so great as to warrant the interposi- tion of the framers of the federal constitution. And what, your Committee would ask, is the difference between delays of execution and delays of judgment, without which execution cannot be obtained ? A remedy for these evils is, in the opinion of your committee, within the power of the legislature, and does not require any immediate alteration of the constitution. They are happy in having been able to come to this conclu- XXXll JNTUODUCTION. sion, because it renders the period of relief mucli less remote. Your Committee then propose that the following plan should be submitted to the legislature, as one calculated, in the opinion of the members of the bar, to remove many of the existing de- lays in the administration of justice: — 1st, That there should be instituted a Superior Court of Common Pleas, possessing concurrent jurisdiction with the Supreme Court, in all, except criminal cases and writs of error, mandamus, prohibition, and quo luarranto; that such new court should be subject to no appellate jurisdiction, other than that of the Court of Errors ; and that its members should be ap- pointed in the same manner, and hold their offices by the same tenure, as the judges of the Supreme Court. 2d. That the number of circuits should be reduced, as soon as circumstances will permit, to four — that being the lowest number allowed by the constitution ; and that as well the Judges of the Supreme Court and Common Pleas, as the re- maining Circuit-Judges, should try issues of fact arising in both courts, in all the counties of the state. 3d. That the equity jurisdiction of the Circuit-Judges should be abolished, and that in its stead there should be appointed two Vice-Chancellors, subject (since it is so required by the constitution) to the appellate jurisdiction of the Chancellor. Your Committee, in the statements and suggestions thus made, wish to be understood as in no wise casting censure upon the present Chancellor and Judges. Their labours are arduous and incessant. It is the judiciary establishment itself that is unequal to the increased business, wealth, and population of the state. When a people become extensively commercial in their habits, and every species of property, both real and per- sonal, is the subject of perpetual change, and the passions are exposed to perpetual excitement, questions of interpretation, and of right and wrong, must be continually arising, and as continually calling for the intervention of the judiciary depart- ment. Among a people thus characterised and thus circum- stanced, and amounting in numbers to more than a million and ixTRODUCTiox. xxxiii a half, is it not unreasonable to suppose that four men should be able to hear and decide, in some stage of the litigation, all, or nearly all, the important questions both of law and equity ? We conceive, then, that an extension of the system is indis- pensable. It seems almost superfluous to add, by way of fur- ther inducement to its adoption, that no system is so expensive as one that is inadequate; and, consequently, dilatory. The mere costs arising from the present delays of justice in the two courts to which our attention has been directed, have been esti- mated at a sum exceeding one hundred thousand dollars per annum. Not more than half that amount would be required for the support of the judiciary establishment proposed by your Committee, with salaries sufficient to command the best talents of the state. With respect to the Vice-Chancery, the second section of the fifth article of that instrument declares, that equity powers may be vested in the Circuit-Judges, or in the County Courts, " or in such other subordinate courts as the legislature may by law dii'ect, subject to the appellate jurisdiction of the Chan- cellor." As to the erection of a Superior Court of Common Pleas, your Committee would refer to the second section of the seventh article, which directs " that no new court shall be insti- tuted, but such as shall proceed according to the course of the common law, except such courts of equity as the legislature is herein authorised to establish." The clause clearly admits that the legislature has a general power to create new courts. The exercise of that power is only restrained so far as respects the course of proceeding, leaving the extent of jurisdiction of the new courts to be settled in whatever manner the wisdom of the legislature may direct. We have no hesitation, therefore, in saying, that a superior court, with jurisdiction concurrent with that of the Supreme Court, may be instituted without hav- ing recourse to an alteration of the constitution. Must this new court, however, be subject to the supervision of the Su- d XXXIV INTRODUCTION. preme Court, and the suitor be thus exposed to the delay and expense of two writs of error ? Your Committee think not. The term supreme was not intended by the framers of the con- stitution to express jurisdiction: it is merely the name of the tribunal. Upon any other construction, the Court of Chancery, and even the Court of Errors itself, would be subordinate to the Supreme Court. There is, then, nothing in the constitution prohibiting the legislature from establishing the proposed tri- bunal. And it should be borne in mind, that state constitu- tions, unlike that of the federal government, are constitutions not of grant, but of limitation ; and that all powers falling within the legitimate sphere of civil regulation are vested in the state legislatures, unless expressly inhibited. Should doubts still be entertained on this point, and should it be deemed ne- cessary, on constitutional grounds, to subject the new Court of Common Pleas to the appellate jurisdiction of a tribunal inter- vening between it and the court of last resort, your Committee would, in that case, recommend that such restrictions should be imposed upon the right of bringing a writ of error, as should effectually, if possible, prevent the abuse of such right. There is also another mode of removing all doubts. Let the new court be established and organized ; and at some future period an amendment may be introduced into the constitution, making the new judges and Vice-Chancellors members of the Court of Errors. Such an amendment would be short and simple in its form; would materially improve the structure of the Court of Errors, (while it gave to the new arrangement, at the same time, the stability of constitutional provision,) and would, as your Committee believe, receive the cordial approbation of the people. Your Committee, it will be observed, have recommended, as a part of their proposed system, that the Judges of the Supreme and Superior Courts should participate in presiding at jury trials through the state. This we beg leave to insist upon, as being in our judgments essentially important. The minds of all men are sharpened and improved by active exertion ; and in INTRODUCTION'. XXXV no department of the administration of justice are the judicial faculties put into such prompt requisition as at Nisi Ptius. There all new points are first raised, discussed, and decided ; recent adjudications in other states, courts, and places, are there, for the most part, first presented to the notice of even the most learned judges ; and we think it may be confidently asserted, that they return from the labours of a circuit better fitted for the arguments of a term ; but then their numbers must be proportioned to the performance of their duties. The burthen of Nisi Priiis trials should be divided among so many that each should have ample opportunities for study, and for considering the causes argued in term. Such an arrangement would, as we firmly believe, greatly advance the due adminis- tration of justice. But it is recommended to us also by other considerations : it would tend to improve and preserve the re- spectability of the profession. Even the most distinguished lawyers would find themselves checked (when check was ne- cessary) and stimulated by the consciousness that they were acting under the eye and controul of the chief judges of the land. The same feeling would still more powerfully influence the manners, habits, and diligence of the junior practitioners, whose first advances to reputation are usually made at Nisi Prills. The bench and bar would be more frequently brought together and become more intimately known to each other, than can ever happen in the intercourse of a term. By that more intimate acquaintance, we trust, mutual respect and esteem will be promoted, and the dawnings of rising eminence be more speedily discovered and effectually cherished. The confidence of the community in our judiciary system, and the general rea- diness to acquiesce in the results of the Nisi Priifs trials, (thus avoiding infinite expense and delay of justice,) would, we are convinced, be much increased by giving to the inhabitants of the State at large, personal opportunities of ascertaining what our judges are and may be. Under the continuance of the present system they would soon only know the Circuit-Judges ; those of the Supreme d 2 XXXVl INTRODUCTION. Court would be entirely out of the sphere of their observation. A suitor then, against whom a decision at circuit had been made, would be often tempted, whether he thought the deci- sion right or wrong, to take his chance that the higher tribunal, of the qualifications of which he would know little or nothing, might think differently from the Circuit-Judge. And your Committee believe that from this very cause, an im- mense accumulation of business has already arisen, since the establishment of the new constitution. But should the people, who, under this free and enlightened government, judge for themselves, and generally judge shrewdly and correctly, should they have frequent opportunities, in their own counties, of ap- preciating the dignity and deportment of the judges of the higher tribunals while presiding at Nisi Prius, of deliberating as jurors on their charges, of observing their decisions, and of witnessing their impartiality and industry, your Committee have no doubt but that a love and veneration for the individuals, as well as for the establishment, would grow up in the minds of their fellow citizens ; and that no suitor or advocate who had been often present at such trials would be inclined to protract litigation by making a doubtful and expensive experiment, and by taking the chance whether the other judges, of whose learn- ing and talents he was equally apprized, might not possibly dif- fer from their associate. In conclusion of their report, the Committee would express their earnest wish and confident expectation, (in which they believe the whole community will concur,) that another session of the legislature may not be permitted to pass, without the adoption of effectual measures to remove the existing delays, and to give to the people a judiciary establishment, prompt and efficient in its operations, and adequate to the increased wants and resources of the state. Thomas Addis Emmet, Chairman of the Committee. James J. Roosevelt, Jun. Secretary of the Committee. INTRODUCTION. XXXVll The serious and growing evils, depicted in these public documents, excited the attention of the state legislature to the improvement of the equity system, and subsequently induced the judges of the courts to revise the rules of practice. The jurisdiction was remodelled and improved by the Revised Statutes; the general powers and duties of the Court of Chancery of the state were defined ; the territorial limits of the court were distinctly prescribed, and for purposes of local jurisdiction, the state was divided into eight circuits, corresponding with the eight senatorial dis- tricts, subject to alterations, but unalterable until the census in 1835. The following short abstract of the constitution of the court, the tenure of office, the powers of the officers, and their respective duties and responsibility, will briefly explain the general equity jurisdiction of the state of New York.* The powers of the court are vested in the Chan- cellor, and may be exercised by him throughout the state. Every Circuit-Judge of the Supreme Court, within the limits of his circuit, is a Vice-Chancellor, and has, concurrently with the Chancellor, and exclu- sively of any other Circuit- Judge, all the original jurisdiction and powers vested in the Chancellor, in all * A more technical and full detail, with references to tlie Statutes, Rules, and adjudged Cases, will be found in an octavo volume, " Moul- ton's Chancerif Practice of the State of Nexo York," vol. i. New York, 18.29. This treatise is approved and recommended by the present chancellor, Mr. Walworth. It will conduct the English reader through all the intricacies of an American chancery suit. The former practice of the New York court, and the recent decisions in that State and in England, are applied to the equity system, as it exists under the Revised Statutes and new Rules in operation since January last. XXXVlll IXTRODlCriOX. causes and matters in equity, and all matters of which the cognizance is or shall be vested in the Chancellor, by any statute, in the following cases : 1 . Where such causes and matters arise within the circuit of such judge. 2. Where the subject-matter in controversy is therein situate. 3. Where the persons proceeded against, or either, reside within such limits, subject to the appellate jurisdiction of the Chancellor. The Vice-Chancellors have no powers over the orders or decrees of the Chancellor ; no appeal is admitted from any Vice-Chancellor of another circuit, inferior court, or surrogate, excepting appeals ex- pressly given by law ; or unless a cause or matter is referred by the order of the Chancellor to the decision of a Vice-Chancellor. In all other causes than those in which Vice-Chancellors are vested with the powers of the Chancellor as enumerated, proceedings are had before the Chancellor as heretofore practised ; but the hearing of any motion, or cause, set down for hearing before him, may be referred by his order to any Vice- Chancellor, subject to his appellate jurisdiction. The power of taxing costs is vested in theVice-Chancellors, and such masters as the Chancellor shall appoint ; the Vice-Chancellors execute such other powers and duties in relation to any matter pending as the Chancellor from time to time directs, subject in all cases to his appellate jurisdiction. When he is a party, or in- terested, the bill is addressed and filed before a Vice- Chancellor, who proceeds thereon as and with the powers of a Court of Chancery, and appeals are then directly to the Court of Errors. If a Vice-Chancellor is interested, or was of counsel or solicitor, or is INTRODUCTION. XXXIX unable to hold his stated term, any other Vice-Chan- cellor, or the Chancellor himself, may hold the term. The Chancellor prescribes by rule the time and man- ner in which the proceeding may be had, causes brought to hearing pursuant to the provisions of law, and the cases which may be reheard before a Vice- Chancellor. He may, from the difficulty of the case, or any other reason, order, on special application, any cause which might be heard by a Vice -Chancellor to be brought to hearing before himself. He is em- powered to make all the rules of the Court, with a special direction : 1 . To the abbreviation of bills, answers, and other proceedings. 2. The expediting of the decision of causes. 3. Diminishing of costs. 4. Remedying of abuses and imperfections of practice. The appointment, tenure of office, disqualification to hold another office, or to act as solicitor, or counsel, and the salary of the Chancellor and Vice-Chancellors, are regulated by the constitution and revised statutes. The officers of the court are : 1 . The Chancellor. 2. Eight Vice-Chancellors. 3. The register, and his deputy. 4. The assistant register, and his deputy. 5. Eight clerks of Vice-Chancellors' circuits, the register being clerk of the third, the assistant of the first, and the two former clerks of Chancery of the second and fifth circuits. 6. Ten masters in New York, five in Albany, and three in every other county ; an injunc- tion-master and a taxing-master for each circuit are selected by the Chancellor from the above number. 7. Three examiners in the city of New York, and three in each county of the state. 8. Two sergeants-at- arms. 9. The sheriff of each county. 10. Commis- Xl INTRODUCTION- sioners to take affidavits to be read in Chancery. 11. A chancery reporter. 12. Counsellors and soli- citors. The general provisions of law with regard to all officers, their oath, liability to arrest, impeachment, and indictment, and upon what contingencies their offices become vacant, the specific provisions in re- lation to the appointment, powers, duties, and fees of the officers above enumerated, will be generally learned by reference to the Revised Statutes and Rules. All the officers are appointed to hold office during the pleasure of the Chancellor, excepting deputies who are appointed by the register and assistant, and the examiners, who, like the Chancellor and Vice-Chancel - lors, are appointed by the governor and senate, and the sheriffs who are elected by the people. The Register, Assistant Register, and Clerks, whose general duty it is to enter and register titles of causes, memoranda of proceedings, minutes of court ; to docket decrees, enter common orders, special orders and decrees, and the receipt, investment, payment, and expenditure of monies brought into court — must keep open office for business every day, except Sundays, and the anniversary of American Independence, from 9 till 12 in the forenoon, and 2 till 5 in the afternoon. Their fees are regulated by statute, and their allow- ance for monies paid out in cases not therein speci- fically provided for, by rule of court. The register must reside at Albany in the third circuit, and the assistant register at New York in the first. The former clerks of chancery remain at Utica and Poughkeepsie, in the fifth and second circuits. The four additional INTRODUCTION. xU clerks keep their offices in such parts of their circuits as may be designated. Masters and Examiners are assistants to the Chan- cellor and Vice-Chancellors in the collateral execution of their duties : they derive their appointment from the same source, and have a statutory rank as judicial officers. Masters must be counsellors of the Supreme Court, or solicitors or counsellors in Chancery. Their powers, duties, fees, and commissions, tenure, and liability to suspension and removal from office, as well as those of the examiners, are, in many respects, regu- lated by the Statutes and Rules. They must reside within the county or place for which they are ap- pointed, and cannot act in any matter in which they are solicitors or counsel, or which is conducted by a person with whom they are directly or indirectly con- nected in business. The powers and duties of the injunction-master, and the taxing-master, for each circuit, in connection with the exercise of the same powers by the Vice-Chancellors, are severally and dis- tinctly prescribed. There are two Sergeants-at-Arms — one at Albany, the other at New York, who perform such services in and about the court as the Chancellor directs. The Sheriff of every county is an officer of the court for executing its process, he must attend the stated term held by the Chancellor or a Vice-Chancellor, perform all the duties of a sergeant-at-arms, and execute all process and orders of the court in any county of the state, &c. They are entitled to the same fees as ser- geants-at-arms. Sergeants are appointed by the Chancellor, but sheriffs are chosen by the electors of xlii INTRODUCTION. their respective counties, every three years, and as often as vacancies occur, but are ineligible for the next three years after the termination of their offices. The Chancery Reporter must be a counsellor of five years standing. He derives and holds his appoint- ment from the Chancellor. Counsellors and Solicitors are admitted and licensed by the Chancellor, on examination before him, or a Vice-Chancellor, pursuant to a special order previ- ously obtained from the Chancellor, and v^^hen ad- mitted hold their offices for life, subject to suspension or removal. To entitle the applicant to an order for examination as a counsellor, he must have been a counsellor in the Supreme Court, or must have prac- tised therein as an attorney, or in Chancery as solici- tor, three years. To authorise the entry of such order for examination as solicitor, he must have been an attorney of the Supreme Court, or have served a regular clerkship of seven years vi^ith a Vice-Chancel- lor or practising solicitor, after filing a certificate of the commencement of such clerkship. But four years or less, or classical studies pursued after he w^as four- teen, may be allowed as equivalent to a like period of clerkship. The extent of such allowance must be settled by the Chancellor, or by a Vice-Chancellor, and an order entered at the commencement of the clerkship; when admitted, the constitutional oath of office is taken and subscribed in open court, and a license obtained under the signature of the Chan- cellor. The duties, privileges, authority, and responsibility of a solicitor are analogous to those of an attorney. INTRODUCTION. xliil He is bound to the observance of the same fidelity, and has the same lien for his costs. His neglect is the neglect of his client. His admissions and consents, unless retracted by order on motion, are binding on his client, who has no power to displace him, except by an order of court. The duties, privileges, and responsibility of Counsel, are also, in some respects, similar to those of counsel- lors at law, but are in others peculiar; and relate to their signatures to pleadings and proceedings, such as petitions, bills, answers, pleas; to their liability for any scandalous matter therein, and thus sanctioned; to their privilege, and that of solicitors, to refuse dis- covery of facts or deeds, confided professionally — a pri- vilege, which belonging to their client, they cannot waive; to their latitude in pleading or stating their case, and to their privileges and remedy, in common with solicitors, for their fees. A solicitor is personally liable for costs on dismissal of bill, or otherwise for making plaintiff's parties with- out their authority; for instituting improper and un- founded proceedings from interested or fraudulent views; or if lawfully commenced, commencing them from the same motive ; or for a gross or wilful neglect of professional duty. But independently of his lia- bility for costs, it has been long held, that the court, under its general jurisdiction over solicitors, would exercise it in a summary way by attachment as at law, where a solicitor grossly neglected his client's concerns, and would strike him off* the roll for malpractices; solicitors and counsellors may be suspended, or removed, on charges filed and served, after hearing of defence, Xliv INTRODUCTION. for deceit, malpractice, or misdemeanour; and a sus- pension or removal in Chancery would operate as such in all the courts. A solicitor or counsellor is liable to fine and imprisonment, or treble damages, or to sus- pension or removal, according to the nature of the offence, for certain malpractices; as deceit or collu- sion, wilful delay of his client's suit for gain, wilfully receiving money or allowances on account of money not laid out, or for which his liability has not been pledged ; allowing his name to be used in suing out process, or in prosecuting or defending, buying, or being concerned in buying any chose hi action to pro- secute ; lending or advancing any consideration as an inducement for the leaving of any matters for correc- tion; but bona Jide transactions in the purchase, loan, or advance, are exempted from the operation of the law.* Such is the general nature of the constitution of the Chancery Court of this state. The Revised Equity Statutes and Amended Rules of Practice, printed ver- batim, require no analysis or comment. They contain many valuable principles and practical improvements, which may be advisedly adopted in England, and which doubtless will be dispassionately and impartially considered by Lord Lyndhurst. But it is probable that they will not equal the expectation of the legal profession in England ; they are indeed far from satis- fying the wishes of the most enlightened members of * Moulton's Chancery Practice, Pref. The English reader will also find a full account of the practice and forms of the New York Court in Hoffman's Ti-eatise on the Office and Duties of Masters in Chan- cery, vol. i. 8vo, New York. IXTllODUCTION. Xlv the American bar, and still further from providing a sufficient remedy for the imperfections of the system. The predominant and increasing subjects of complaint and of difference of opinion, are the inherent evils of the system of Appeal and the written mode of Evidence. The creation of minor courts of equity, with appeals to the Chancellor and Supreme Courts, analagous to the appellate jurisdiction over the Rolls and Vice-Chancel- lor's courts in England, is the subject of frequent expo- sition and public remonstrance. This evil has greatly tended to increase litigation, and the arrears of busi- ness ; whilst, acting under this system, the judges of the inferior courts have not possessed, and cannot ac- quire, the confidence of the suitors or of the profession. This grievance, and its inevitable result, is noticed in a publication attributed to Mr. Roosevelt, containing some excellent practical strictures on the old system of appeal. The Circuit Courts are by their very constitution a secondary tribunal : their opinions can be reviewed by the Supreme Court, of whose particular views and decisions they have no better knowledge than the bar and the suitors, for they all derive them from the same source — the printed reports of that tribunal. When a judge formerly came down at Nisi Prius, his decisions were heard with more respect and confidence, because he was an integral part of the highest common law court ; there was a legal presumption of superior talent, and he was supposed to be conversant with the opinions and ideas of his brethren, and the bar was therefore disposed to acquiesce in whatever might be determined by him ; indeed, the judge much oftencr pro- posed to reserve a point of his own suggestion, than the counsel thought proper to except to his opinions. The state of the public business is very different at this moment ; the cases re- served are multiplied at the circuit far beyond any actual in- Xlvi INTRODUCTION. crease of commerce or population ; the opinions of the Circuit- Judges are not Ustened to with the usual deference, because they are at best but the hasty opinions of a secondary tribunal ; every suitor knows and feels this : whatever may be the indi- vidual character of the judge, the bar canvass more readily, and oppose more unhesitatingly, those decisions ; and the majority of suitors are always inclined to try the chances of an application to a court, constitutionally and morally of greater strength and character. The facts and reasoning above stated have induced a strong belief that this is one of the most fruitful causes of the increase of business in the Supreme Court.* Transatlantic facts and professional opinions on this important subject of judicial reform might be cited in abundance; but unfortunately the evils in our own jurisdictions afford full experience and sufficient com- mentary. The unquestionable superiority of viva voce evidence is also enforced and illustrated by Mr. Roosevelt in the following remarks : We must observe in the first place, that the only means which a judge of the Supreme Court possesses of making himself familiar with the facts and circumstances and questions of every cause, are the written cases prepared by counsel. A close and attentive consideration of those documents is absolutely essen- tial on the part of the judge to a correct understanding of the case ; and we may well judge of his labours, when we consider the volumes of paper that are presented to him at every suc- cessive term. It would require the energy of Hercules, and the intellect of Aristotle, to do justice even to a part of these cases ; and therefore, in general, many are necessarily held over for advisement. But there is even a greater and more insur- mountable difficulty under this organization — the judge never * Remarks on the Constitution of the Supreme and Circuit Courts of the State of New York, p. 15, 1828. INTRODUCTION. xlvii can become acquainted with the thousand little circumstances and occurrences, which do not appear on paper, but which have a direct and most powerful bearing upon any just and consistent decision. He may read, for instance, the testimony of a wit- ness, which seems to agree in all its parts, and look strongly to the point in issue, and yet who shall inform him, (certainly not the case,) that the witness, owing to his mode of testifying, to his hesitation, or to his uncompromising impudence, was not believed by a single man in court ? Who shall inform him of the manner, of the appearance, of the glance of a witness — all of which carry the strongest conviction of his unfairness, even where his testimony is not impeached? Who shall communicate to him those living features of a cause which are so graphic in the cautious tactics of counsel, in their animated discussions of interlocutory and often irrelevant matter, or in the abbreviated memories of the witnesses, or that singular idiosyncrasy which recollects only whatever makes for the party by whom they are called. Now, I maintain that no officer, whatever may be his merit, can possibly decide, with any more than fortuitous jus- tice, causes in which these important particulars are absolutely excluded from his contemplation. Here is a salient vice in our present judicial organization, which I think must be apparent to every man of the least discrimination. I have thus pointed out two causes which appear to me to interfere most powerfully and immediately ; first, with the despatch of business, and, secondly, with the just and enlightened disposition of it.* It cannot, however, be denied that the legislature of the State of New York has displayed a laudable and superior example in the bold examination and the * Remarks, p. 32. In the Convention Debate various strong remarks were made on the expense of written evidence. I\Ir. Duel (23 Oct. 1821) said, " the taking of testimony forms the greatest item of expense ; and until some mode of ascertaining truth can be found out different from what has yet been discovered, suits which involve intricate ques- tions of fact must be attended with great expense." — Report, p. 512. Xlviii INTRODUCTION. partial improvement of its equity system ; those amendments will doubtless be extended, and, in the meantime, the experimental facts connected with them cannot but be of importance in our own country, at this critical moment of projected legal improvement. Second in importance only to New York, the judi- cial systems of the State of Massachusetts present to our view the most interesting facts relative to the ex- pediency of preserving distinct the two jurisdictions of equity and common law. The *' Supreme Judicial Court " of that state possesses limited equity powers derived from statute. It has " power and authority to hear and determine in equity all cases of trust aris- ing under deeds, wills, or in the settlement of estates ; and all cases of contracts in writing, when a party claims the specific performance of the same, and in which there may not be a plain, adequate, and com- plete remedy at law." A few decisions in equity are scattered through the volumes of the Massachusetts Reports.* In the fourth number of the American Jurist, a valuable and historical account is given of the early and modern constitution of the state jurisdictions, from which the following facts are chiefly derived or abridged. The want of a Court of Chancery, or a jurisdiction in equity, was experienced in Massachusetts at a very early period in her juridical history. The colonial legislature, at first, assumed this jurisdiction, and * The American Chancery Digest of all the Reported Decisions in Equity in the United States Courts, by Campbell and Cambreleng, Pref. p. vii. This work, referred to ante, p. xxi, forms a complete digest of all the printed decisions of the equity courts of the several states. INTRODUCTION. Xlix granted relief upon petition in a summary way, where there was no remedy by the strict rules of the common law. In 1685 a law was past by the general court o* the colony to relieve themselves from this burdensome office. The preamble and substance of the law were as follow : — " Whereas it is found by experience that in many cases and controversies betwixt parties, wherein there is matter of appa- rent equity, there hath been no way provided for relief against the rigour of the common law, but by application to the General Court, where by reason of the weighty affairs of the country of more public concernment, particular persons have been delayed to their no small trouble ]|and charge, and also great expense occasioned to the public by the long attendance of so many persons as that court consists of, to hear and determine per- sonal causes brought before them. For ease and redress whereof it is ordered and enacted by this court, that the ma- gistrates of each county within this jurisdiction, being annually chosen by the freemen, be, and hereby are authorised and empowered as a court of chancery, upon bill of complaint or in- formation exhibited to them, containing matter of apparent equity, to grant summons or process, as in other cases is usual, briefly specifying the matter of complaint, to require the de- fendant's appearance at a day and place assigned by the court, to make answer thereunto ; and also to grant summons for wit- nesses in behalf of either party, to examine parties and witnesses by interrogatories upon oath proper to the case, if the judges see cause to require it ; and if any party, being legally sum- moned, shall refuse or neglect to make his appearance and answer, the case shall proceed to hearing and issue, as is pro- vided in cases at common law, and upon a full hearing and con- sideration of what shall be pleaded and presented as evidence in any such case, the court to make their decree and determi- nation according to the rule of equity, secundum cequum et honum, and to grant execution thereon." e 1 INTRODUCTION. From these decisions an appeal was allowed to the next Court of Assistants, whose judgment was to be final, unless upon application of either party the General Court should think proper to grant a second hearing at the County Court, or, in arduous and difficult cases, to grant a hearing before the General Court itself. On the manifest failure of justice for want of some provision for the specific performance of contracts, for the sale of lands, the fulfilment whereof the death of one of the parties might prevent, the legislature, three years before, empowered the County Courts, where the land might be, " the bargain being legally proved to the satisfaction of the court," to authorise the heir, executor, or administrator of the deceased to execute deeds of sale for the same. In 1692, after the provincial charter, an act was passed by the legislature of the province, wherein it was enacted that there should be " a High Court of Chancery within the province, which should have power and authority to hear and determine all matters of equity, of what nature, kind, or quality soever, and all controversies, disputes, and differences arising be- twixt co-executors, and other matters proper and cognizable by and to the said court, not relievable at common law; the said court to be holden and kept by the governor, or such other as he should appoint to be chancellor, assisted by eight or more of the council, who might appoint all necessary officers, and to be held at such times and places as the governor or chancellor for the time being should from time to time appoint." And an appeal was allowed from the de- crees of this court to their Majesties (William and INTRODUCTION. U Mary) in council. Two years afterwards this law was repealed by the provincial legislature, because, to use the language of the act, *' the court so constitutecV was found by experience not agreeable with the circum- stances of the province in divers respects not then so well considered or foreseen." That is to say, it was thought most fit, under the circumstances, to confer the authority to administer this branch of the law on other persons than those designated in the former act. And, accordingly, by the same act, containing the repealing clause, a court was established with the same title and the same general chancery powers, which was "to be held by three Commissioners, being freeholders within the province, whom the go- vernor, with the advice and consent of the council, should nominate and appoint for that service, assisted by five masters in chancery, to be appointed as afore- said." An appeal in certain cases was also allowed from the decrees of this court to their Majesties in council. It was further provided that all processes already made should be valid, and all cases depending in chancery should be proceeded in and carried on to a final issue. And by the same act the fees, for the several writs and processes in chancery, were esta- blished. By the provincial charter it was provided that all laws should "be by the first opportunity after the making thereof, sent or transmitted" to the sovereign for his disapprobation or allowance ; and if the same should be disallowed and rejected, and so signified by the crown to the governor of the province within three years next after presentation for allowance, they e2 lii INTRODUCTION. were " thenceforth to cease, determine and be void." It is generally understood that the act last mentioned was disapproved by the crown, and the disapproval signified in due form, whereby it ceased to have effect; but no order for disallowance or any thing on record to such effect is known. Hutchinson says, ** seven years had passed and four different acts had been sent, one after another, to England for estabUshing courts of justice, before the royal approbation could be obtained." From this period is dated the want of an equity juris- diction in Massachusetts. The unpopularity of a court of chancery does not appear to have been occasioned by any aversion or dislike of the people of the province to a court of equity : but by a disagreement between them and their Sovereign, in respect to the manner in which the jurisdiction should be established. The importance of such a tribunal was perceived and ac- knowledged, but they chose rather to submit to the evils of an imperfect system than to establish the court upon a plan agreeable to the views of the crown. Shortly after the rejection of this act, however, ap- plication was made to the legislature, " that provision might be made by law for relief in equity in cases not relievable by the strict rules of the common law." And the legislature accordingly, " to the intent that justice and equity might be jointly administered,' by the act of 10 Will. III. c. 14, empowering the courts of common law, " where the forfeiture or penalty an- nexed unto any articles, agreement, covenant, con- tract, charter-party, or other specialties, or forfeiture of estates on condition executed by deed of mortgage. INTRODUCTION. liii bargain and sale with defeasance, should be found," " to moderate the rigour of the law, and on considera- tion of such cases according to equity," to enter up judgment for the just debt and damages, except that in real actions upon mortgage or bargain and sale with defeasance, the judgment should be conditional that the mortgagee or vendee should pay the sum so found due in two months, or the plaintiff should recover pos- session of the estate demanded. And provision was made by this and the act, 12 Anne, c. 1, for the re- demption of estates mortgaged, within three years after the entry of the mortgagee for breach of the condition. It was found, in the course of time, that the act of 10 Will. III. before referred to, was defective, inas- much as it did not make sufficient provision for cases where bonds, or contracts, or other specialties were entered into for the payment of money or the per- formance of other matters and things at different times, so that the obligee, in such cases, met with difficulty in recovering his debt ; and therefore, by an act of the 8 & 9 Geo. II. c. 2, this difficulty was re- moved by empowering the courts to enter up judg- ment in such cases for the whole penalty, and to award execution, from time to time, only for such sum as might be found, in equity and good conscience, to be due. There were no other acts giving any important juris- diction in equity to any courts during the provincial government. Our colonial subjects were a plain people, strangers to refinement and subtleties ; com- paratively few in numbers; and their transactions few liv INTRODUCTION. and simple; lawsuits were less common, and never very intricate; and the want of an equity jurisdiction was more patiently endured than it probably otherwise would have been. Immediately after the adoption of the constitution of this commonwealth, the provincial acts, giving a sort of jurisdiction in equity to the courts of common law, in cases of forfeitures of penalties and conditions, and relating to mortgages, were in substance re- enacted by the act of 1785, c. 22, to which there have been several additional acts, particularly regarding mortgages and equities of redemption. And by the act of 1783, c. 32, §4, the colonial law authorising the courts to empower the executors or administrators of a deceased obligor, covenantor or contractor, to make conveyances of real estate, which the deceased in his lifetime had agreed to convey, was with some addi- tions and amendments also re-enacted. By the act of 1811, c. 75, § 4, the supreme judicial court was em- powered to enforce the execution of trusts according to the course of proceedings in equity, in all cases where real estate should be holden in trust for the use and benefit of any county by any conveyance whatso- ever, and no convenient and effectual remedy existed at common law. The evils arising from a want of power in the courts to enforce trusts and the specific performance of con- tracts, at length induced the legislature to take the subject again into consideration. By the act of 1817, c. 87, the justices of the Su- preme Judicial Court were further empowered " to hear and determine in equity all cases of trust arising under INTRODUCTION. Iv deeds, wills, or in the settlement of estates, and all cases of contract in writing where a party claims the specific performance of the same, and in which there may not be a plain, adequate, and complete remedy at law." The insurmountable difficulties in the appor- tionment of marine losses in courts of law among a great number of persons, also gave rise to further legis- lation. By the act of 1818, c. 122, owners of vessels and freighters, or proprietors of goods, were allowed to proceed in equity before the Supreme Judicial Court, in certain cases, " for a discovery of the total amount of any losses or damages, and also of the value of the vessel, appurtenances, and freight, and for an equal distribution and payment thereof among the freighters and proprietors, in proportion to their losses, accord- ing to the rules of equity." And the court was em- powered to hear and determine such cases in the same manner as a court of equity would do. Difficulties, likewise, frequently occurred in the administration of justice in controversies between copartners, joint te- nants, and tenants in common ; and it was also found that no complete remedy was afforded in many cases of wrongful detention of specific chattels peculiarly valuable to the proprietor : by the act of 1823, c. 140, the same court was therefore empowered to hear and determine in equity all cases of disputes between co- partners, joint tenants, and tenants in common, where there might not be an adequate and complete remedy at law ; and to compel the delivery of specific chat- tels in certain cases. The power of administering preventive justice in cases of waste and nuisance was Ivi INTRODUCTION. at length found to be indispensable. And by the act of 1827, c. 88, power was given to the same court to hear and determine in equity all cases of waste and nuisance where there is not a plain, adequate, and complete remedy at law, and to grant injunctions in such cases whenever equitable circumstances should require it to be done. In addition to the above acts, several acts have been passed relative to the course of proceedings in chancery in the cases where the court has power to hear and determine causes in equity. In 1 808 a Report was made to the legislature of Massachusetts, and printed by its order, recommend- ing the establishment of an independent court of equity. It contains a summary of the practice and principles of the courts of equity most applicable to American jurisprudence ; and although it is not free from fallacies and mistaken views as to the assumed necessity of a distinct equity jurisdiction, it forms part of the history of the Massachusetts judicial system. ** Courts of equity, as contradistinguished from courts of law, have jurisdiction in cases where the latter, from their manner of proceeding, either cannot decide at all upon the subject, or can- not decide conformably with the principles of substantial justice. Whenever a complete, certain, and adequate remedy exists at law, courts of equity have generally no jurisdiction. Their peculiar province is to supply the defects of law in cases of frauds, accidents, mistakes, or trusts. In cases of fraud, where an instrument is fraudulently suppressed or withheld from the party claiming under it ; where an unconscientious advantage has been taken of the situation of a party ; where a beneficial property is injuriously misappropriated, equity interferes and compels complete restitution. In cases of accident or mistake, where a contract has been made respecting real or personal INTRODUCTION. Ivii estate, and by reason of death it cannot be completed ; or where by subsequent events a strict performance has become impos- sible; where, in consequence of a defective instrument, the intention of the parties is in danger of being defeated ; or where a want of specific performance cannot be compensated in damages, equity administers the proper and effectual relief. In cases of trust, where real or personal estate by deed, will, or otherwise, is confided to one person for the benefit of another ; where creditors are improperly preferred or excluded ; where numerous or discordant interests are created in the same sub- ject-matter; where testamentary dispositions, for want of a proper trustee, are not fulfilled; and where fiduciary estates are, by connivance or obstinacy, directed to partial or unjust purposes, equity applies the principles of conscience, and enforces the express or implied trusts according to good faith. " Sometimes, by fraud or accident, a party has an advantage in proceeding in a court of ordinary jurisdiction, which must neces- sarily make that court an instrument of injustice if the suit be suffered ; and equity, to prevent such a manifest wrong, will interpose and restrain the party from using his unfair advantage. Sometimes one party holds completely at his mercy the rights of another, because there is no witness to the transaction, or it lies in the privity of an adverse interest ; equity in such cases will compel a discovery of the facts, and measure substantial justice to all. Sometimes the administration of justice is obstructed by certain impediments to a fair decision of the case in a court of law ; equity in such cases, as auxiliary to the law, removes the impediments. Sometimes property is in danger of being lost or injured pending a litigation ; equity there inter- poses to preserve it. Sometimes oppressive and vexatious suits are wantonly pursued and repeated by litigious parties ; for the preservation of peace and of justice, equity imposes in such cases an injunction of forbearance. " These are a few only of the numerous cases in which univer- sal justice requires a more eflfectual remedy than the courts of common law can give. In proportion as our commerce and Iviii INTRODUCTION. manufactures fTourish, and our population increases, subjects of this nature must constantly accumulate ; and unless the legisla- ture interpose, dishonest and obstinate men may evade the law, and intrench themselves within its forms in security. One or two striking instances, applicable to our present situation, will illustrate these positions. In this commonwealth no adequate remedy exists at law to unravel long and intricate accounts be- tween merchants in general; and between partners the remedy is still less efficacious to adjust the partnership accounts. A refractory or fraudulent partner may seize the books, papers, and effects of the firm, and cannot by any process be compelled to disclose or produce them. In many instances, therefore, neither debts can be recovered, nor accounts be adjusted by them, unless both parties are equally honest and equally willing. Great evils have already arisen from this cause, and still greater must arise, unless equity be brought in aid of law. In cases of jjecuniary and specific legacies, no complete remedy lies to compel a marshalling of the assets, or an appropriation of them according to the intention of the testator ; and where the inte- rests of the parties are complicated, great injustice must often ensue. In cases of trusts, created by last wills and testaments, which are already numerous, no remedy whatsoever exists to compel the person, on whom the fiduciary estate devolves, to carry them into operation. He may take the devised pi'operty, and if his conscience will permit, may defy all the ingenuity and all the terror of the law. Mortgages afford a great variety of questions of conflicting rights, which, when complicated, are beyond the redress of the ordinary courts ; nay, more, may often be the instruments of iniquity under their judgments. A disco- very on oath seems the only effectual means of breaking down the barriers with which the cunning and the fraudulent protect their injustice. The process by which the goods, effects, and credits of debtors are attached in the hands of their trustees, is often inefficient, and sometimes made the cover of crafty chi- canery. Perhaps too, in assignments of doner and partition of estates, where the titles of the parties are questionable and in- INTRODUCTION. Ux tricate, or the tenants in possession are seized of particular estates only, it will be found that courts of equity can administer the only safe and permanent relief. " The Committee are not aware of any solid objection to the establishment of a court of equity in this commonwealth. The right to a trial by jury is preserved inviolate ; and the decisions of the court must be governed as much by settled principles as courts of law; precedents govern in each, and establish rules of proceeding. The relief granted is precisely what a court of law would grant, if it could, ybr equity follows the law. The leading characteristics of a court of equity are — the power to eviscerate the real truth by discovery of facts upon the oath of the party charged ; the power to call all parties concerned in interest, however remote, before it, and the power to adapt the form of its judgments to the various rights of the parties as justice and conscience may require."* It is not unlikely that this gradual infusion of equity jurisdiction in Massachusetts may eventually, and at no distant period, terminate in the establishment of a distinct court of chancery. Many benefits have re- sulted from the very limited powers of equity already conferred on the Supreme Judicial Court, and from the acts which have been recently enacted. The ne- cessity of some tribunal for the administration of justice upon the principles of a court of equity, is generally acknowledged ; the differences of opinion and the present discussions having merely a regard to the constitution of the tribunal, whether a separate court should be established, or whether the power * This document is extracted from Judge Story's article on '• Chan- cery Jurisdiction" before cited from the North American Review, Vol. IX. ; p. IGl. It is not quoted there entire, but the above paragraphs only. Ix INTRODUCTION. should be vested in the Justices of the Supreme Judi- cial Court, and the number of the Judges increased. A universal opinion prevails, especially among the bar, that some legislative steps must be taken in conse- quence of the increase and arrears of business in the Supreme Judicial Court, which the present judges cannot dispatch, the equity jurisdiction which they now exercise under the late statutes having greatly augmented their labours. It is probable that the le- gislature of Massachusetts will early determine the expediency of creating a new court to hear and deter- mine causes in equity, and probate appeals, or appoint new judges to sit with the present judges of the Supreme Judicial Court.* The legal constitutions of these two states — New York and Massachusetts — afford the most full infor- mation of two provinces, one of which possesses and has improved a Chancery jurisdiction distinct from common law, and the other of a judicial polity without any equity tribunal. A general and abridged account of the judicial systems of the other States will suffice. This has been given briefly in the Preface to Camp- bell's American Chancery Digest, from which the following particulars, with references to some other authorities, are compiled. The equity system of South Carolina is totally distinct from the common law. Prior to the year 1824, the state was divided into four circuits, and the Court of Chancery was composed of five Judges, or Chancellors. From the decision of any one Chan- * American Jurist, No. IV. p. '6QQ). Massachusetts Reports, 21vols. INTRODUCTION. Ixi cellor, an appeal lay to the Court of Appeals in Equity, which was composed of the five Chancellors. The consequence of this anomalous system of two separate Courts of Appeals, one in Law and the other in Equity, was, that in process of time, there was a clashing of decisions, and the rules of property be- came unsettled. It was found necessary, therefore, to remodel the system, and, in 1824, the state was divided into four circuits, two Chancellors were created, and a new Court of Appeals was established, consisting of three Judges, who now constitute the Court of dernier resort, both at Law and in Equity.* The decisions in Equity in South Carolina are re- ported in Desaussure's Reports, and in M 'Cord's Chan- cery Reports. The Court of Chancery in New Jersey is also en- tirely distinct from the courts of common law, and is composed of one Chancellor.! The Governor of the State, elected annually, is, by virtue of his office. Chancellor. The equitable jurisdiction of this Court is founded upon, and assimilated to, that of the Court of Chancery in England, as nearly as the diversity of the governments of the two countries will admit. The proceedings originate by bill and sabpmia, and have been simplified by legislative regulations. There is an appeal from the decisions of the Chancellor to the Court of Appeals, which is composed of the Governor and Council. There are no reports of decisions in equity in this State. In Mississippi a separate " Court of Chancery" * M'Cord's Chan. Rep. Preface, f Griffith's Law Register. Ixii INTRODUCTrON. consisting of one Chancellor, from whose decisions there is an appeal to the Supreme Court, was erected by the statute of 1821. And in Delaware the *' Court of Chancery" is held by one Chancellor, and it has original and exclusive jurisdiction in all cases of Equity, and in which sufficient remedy cannot be had in the courts of common law. Neither of these States has any reported decisions in Chancery. The State of Virginia is divided into nine Chan- cery districts, in each of which there is a " Superior Court of Chancery." There are four Chancellors. The County Courts for each county of the state also have Chancery jurisdiction in cases in which the amount in controversy exceeds twenty dollars. The decisions in equity in this state are numerous, and are scattered through the pages of Washington, Call, Henning, Mun- ford and Gilmer. In Maryland " The High Court of Chancery" is administered by the Chancellor of Maryland, whose jurisdiction extends over the whole state. His powers are limited by statute, and an appeal lies from his decisions to the Court of Appeals. The County Courts have also an equity side, and exercise concur- rent jurisdiction with the Chancellor. Harris and M*Henry's Reports, in four volumes, and Harris and Johnson's Reports, in six volumes, contain a consider- able number of decisions on appeal from the Court of Chancery. In the State of Missouri there is a *' Superior Court of Chancery." The Chancellor's jurisdiction is as extensive as that of the Chancellor of the State of New York. He is authorised to entertain suits "where INTRODUCTTOX. Ixill a remedy cannot be had in the course of Common Law Proceedings." The Circuit Courts have also an equity- side, from which an appeal lies to the Chancellor, and from the Chancellor to the Supreme Court. There are no reported decisions in this state. In Vermont, ** the Supreme Court," and in Ala- bama, the " Supreme and Circuit Courts," exercise both legal and equitable powers ; the former being- invested by statute with all the powers of the Chan- cery in England. The " Supreme Judicial Court" of the State of Maine has a limited equity jurisdiction : — and a late statute of New Hampshire has given to the " Superior Court" of that state. Chancery juris- diction, in cases of property appointed to charitable uses. The courts of Rhode Island have equity juris- diction in cases of mortgages only. Neither of these States have any reported decisions in equity. In Connecticut, " the Supreme Court of Errors," the *' Superior Court," and the " County Courts," are courts both of law and equity. " The County Courts have original cognizance of all matters in equity, wherein the sura demanded does not exceed three hundred and thirty-five dollars, and the Superior Court of all other causes." When equity decrees a specific performance, or the refraining from a specific act is enjoined, it is done under a certain penalty, to recover which an action of debt must be brought. The decisions in equity in this State are dispersed through the volumes of Kirby, Root, Day, and the Connecticut Reports. The " Supreme Court," and the Courts of Common Pleas of Ohio, are courts both of law and equity; and Ixiv IXTRODUCTION. are the only courts in that State vested with Chancery- power. And the '* Circuit Courts" of Illixois and Indiana also exercise both legal and equitable powers. Neither Illinois nor Indiana has any Reports ; but there are some decisions in equity in Hammond's Re- ports of Ohio. In North Carolina there is a superior court of law and equity for each county in the State, which has an exclusive original jurisdiction in equity. The Reports of North Carolina are, Haywood's Reports, Cameron and Norwood, Carolina Law Repository, Taylor, Mur- phy, Ruffin and Martin; all of which contain decisions in equity. In Louisiana, whose legal system is based upon the civil law, there is no distinction between courts of equity and courts of law ; but all courts exercise with- out distinction legal and equitable jurisdiction in civil cases. A full account of the jurisprudence of Louisiana has been recently published in the " English Jurist,"* digested from the American Quarterly Review,! and to which, therefore, the English reader is referred. J The Circuit Courts of Tennessee have original juris- diction in all cases of equity, and the Supreme Court of Appeals also has original chancery jurisdiction, con- current with the Circuit Courts. The reports are Overton, two volumes; Cooke, one volume; and Hay- * Jurist, Part IV. f American Quarterly Review, No. VII, Art. III. % See also, " Digest of the Civil Laws now in force in the Territory of Orleans, 1808." " La Siete Pantidas, translated by Lisat and Carleton. New Orleans, 1820." " Civil Code of Louisiana, 1824." * Lousiana Term Reports," 15 vols. INTRODUCTIOX. Ixv wood's Reports, three volumes, in which are con- tained some few chancery decisions. In Kentucky, the Circuit Court and the General Court are respectively courts both of law and equit3^ The following are the Reports of this State (from which Campbell and Cambreleng have digested a considerable number of equity decisions) — Hughes' Reports, Munro's Reports, Bibb's Reports, Marshall's Reports, Littell's Reports, and Littell's Select Cases. The state of Georgia is divided into six judicial dis- tricts, each of which consists of seven counties. There is a judge for each district, who holds a court in every county in his district. This court is called the Su- perior Court, and, in addition to its common law powers, has exclusive and final jurisdiction in all matters of equity within the county. The manner of exercising its equity pov/ers is very singular. All bills are sanctioned by the judge at chambers, (whether in vacation or in term time,) and must be served on the defendant at least thirty days before the sitting of the court in which they are returnable. The proceedings then follow the ordinary mode in equity, until the cause is set down for hearing ; and then, in the case of original bills, it is submitted to a special jury, who, together with the judge, are the chancellors. There are no reported decisions in equity in this state. In all the States where the chancery system is adopted, the mode of proceeding is by bill and ^uhpa'ua, according to the English practice, modified by statu- tory regulations. There is no Court of Equity, nor any court possess- ing any chancery powers, in the state of Pensylvaxia. f Ixvi INTRODUCTTOX. An act, establishing a Court of Chancery, appears to have been passed in May, 1715, repealed by the Lords Justices in Council, in July, 1719, and the proceedings which took place under that act before its repeal were binding. Various subsequent statutes of that State committed to the common law courts a very scanty and limited jurisdiction, in applications ne exeat regno, and of appeal against certam harsh judgments of the nisi priiis Courts.* The State constitution authorised the legislature to vest in the Courts such powers, " to gr^ant relief in equity, as shall be found necessary." But this indefinite authority has been seldom exer- cised. "Actions on the contract" in this State do not afford all the requisite relief for litigated cases of *' specific performance," or where the representative of a party may refuse to comply. Several acts of As- sembly have, however, supplied a jurisdiction in cer- tain cases of lunacy, and have provided against failure in the execution of a trust from the want of a trustee to execute it. An act also, in 1786, provides that deeds, conveyances, or writings, concerning lands and tenements when lost or defaced, may, on bill or peti- tion, be supplied by the supreme Courts, or any two of the justices thereof; and by a subsequent act of 1793, the same power is vested in the respective courts of Common Pleas of the counties. Under the Pensyl- vania constitution,-!" the legislature may also vest in the Courts, chancery powers to compel a party to answer upon oath, as well as to produce books and papers, whether plaintiff or defendant. They have not yet * Brackenbridge's Law Miscellanies, (Philadelphia, 1814,) p. 166. -j- Article 5, s. 6. INTRODUCTION". Ixvil empowered the Courts to reach the conscience of the defendant by a compulsory answer on oath ; but by an act in 1798, it is provided, " That the Supreme Court, and several courts of Common Pleas in this State, shall have power, in any one action depend- ing before them, on motion, and upon good and sufficient cause shown by affidavit or affirmation, and due notice thereof being given, to require the parties, or either of them, to produce books or writings in their possession or power, which contain evidence pertinent to the issue ; and if either party shall fail to comply with such order, and to produce such books or writings, or to satisfy said courts why the same is not in the party's power so to do, it shall be lawful for the said courts, if the party so refusing shall be a plaintiff, to give judgment for the defendant, as in cases of nonsuit; and if a defendant, to give judgment against him, or her, by default ; as far as relates to such parts of the plaintiff or plaintiffs' demand, or the defendant or defend- ants' defence, to which the books or papers of the parties are alleged to apply." A strong prejudice exists, both with the public and the bar in Pensylvania, against a separate equity tri- bunal, or any delegation of general equity powers to their common law Courts, which might lay the founda- tion of a future separation of the two jurisdictions. But the arguments produced do not appear to warrant the conclusions.* The superiority of the trial by jury is strongly urged, forgetting that viva voce evidence may be obtained by a Court as well as by a Jury; and that, retaining this superior species of evidence, all civil causes might be determined without the interven- tion of a jury, miless moved for by either ixirty. A popu- lar commentator on American law, Mr. Brackenbridge, * Brackenbridge, p. 168. f2 IXVllI INTRODUCTION. a judge of the Supreme Court of the State of Pensyl- vania, urges that " a Court of Chancery must sit at some one place in a State, and this is irreconcilable with the principle adopted in Pensylvania, and which ought to be adopted, of bringing home justice, as much as it is possible, to every man's door."* But it is ob- vious, that a Court of Chancery is not necessarily con- fined to one place only, but may, as in New York, move in circuits to territorial districts. Several eminent judges and members of the Pensyl- vania bar have advocated the necessity of a more ex- tended and defined equity jurisdiction either separately, or in combination with the common law system. The project of forming a distinct Court of Equity was once agitated, but was abandoned on political grounds. t The Courts of Law, in order to prevent an absolute failure of justice, have sometimes assumed Chancery principles of construction and judicial decision; J but the want of a court of equity has been frequently and severely experienced in many cases, in which common law proceedings cannot afford relief. But such is the political jealousy and the apprehension of the evils of the English system, that a bill lately brought before the legislature to create an equity side in the common law courts, has failed. It is, however, more than pro- bable, that the rapid increase of commercial transac- tions, and the various complicated relations of society, will soon require some general review and amendment of an acknowledged deficiency in the judicial establish- ments of this highly civilized and enlightened State. * Brackenbridge, p. 528. f Wharton et al. r. Morris, 1 Dal. 125. X Borrow v. Kelly, 1 Ball. 1 11. IXTllODUCTIOX. Ixix The Supreme Court, and the Circuit Court of the United States, are invested with Equity powers, and their proceedings follow those of the English Chancery. The Reports of Dallas, Mason, Gallison, Cranch, Wheaton,and Peters, contain many decisions, which are incorporated in CampbeH's American Digest of the Re- ported Decisions in the United States' Courts of Equity. More particular citations from the old charters, constitutions and early statutes relating to Equity, of the several colonies and provinces, not adopted in the United States, will be unnecessary. They did not es- tablish any uniform system, although, in some instances, they sowed the seeds of equity, by allowing distinct Courts, and in some few instances by vesting the powers of the jurisdiction in a "Chancellor." It does not appear that any of these charters absolutely prohibit the establishment of Courts of Equity, although the dis- position of the States to receive and oppose them varied singularly. The constitution of the United States originally provided, that " the judicial power shall extend to all cases in law and equity ;"*' but the controuling principle was at the same time strongly manifested in the restriction " that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law/'f * Art 3, s. 2. — A particular account of the origin of ilio diftl-rent state jurisdictions is contained in that part of Dane's Digest whicli treats of the " Equity System, Principles and Cases." — See vol. vii. ch. ccxxv. p. 516. f Story, Laws of the United States, (Boston, 1827,) vol. i. p. o'J. Statute, chap. 20. A. D. 1789. IXX IN'J'RODUCTIOxX. In this brief and general account of the Equity sys- tem of the United States, the departments of Lunacy and Bankruptcy have been entirely omitted. The former is the subject of various provisions and arrange- ments in different States, altogether independent of the Chancery jurisdiction. The power of making Bankrupt laws in the United States is, by the constitution, conferred on Congress, and was generally understood to be exclusively vested in that body : it provides, that " Congress shall have power to establish uniform laws on the subject of Bankruptcy throughout the United States." The question, how far the several States may legislate upon this subject ? has been discussed in the Supreme Court in many cases arising under the State insolvent laws. Great inconvenience was soon experienced from the want of uniform laws of bankruptcy throughout the Union. Insuperable difficulties have hitherto existed in forming a system suited to the various wants, habits and institutions of twenty-four States. Preju- dices have arisen also from the real and supposed abuses in the administration of the British Bankrupt laws, as developed in the reports of the House of Commons, and in the discussions which have recently taken place in England. A Bankrupt law was passed by Congress in 1800. It was repealed in 1803, before the nation could possi- bly judge of its practical operation. Many subse- quent attempts have been made in Congress, in every instance unsuccessfully, to introduce other Bankrupt laws ; but the opinions of the most disinterested and able jurists and statesmen in that country have been INTRODUCTIOX. Ixxi greatly divided on that subject. During the last ten years a discussion has been continually maintained in the legislature, and by means of the press.* An excellent article in the North American Review, in 1820, on the American law of Debtor and Creditor, states the difficulties of the legislature on this im- portant branch of legislation, in an examination of some remarks and strictures of the English Quar- terly Review. It has been the unceasing object of Congress to perfect and establish a system of Bank- rupt laws ; and several of the State legislatures have been desirous, as far as their power extends, to make just and wise provisions on the subject of insolvency, if the power of Congress to establish a Bankrupt system should not be successfully exercised. The difficulties which the States have experienced may be estimated by those of our own country, where a cen- tury has not sufficed to solve difficulties, to remove abuses and defects, or to perfect a general law. Bank- rupt laws grow out of commerce. Before the inde- pendence of the States there was comparatively little occasion for them. In North America, the ancient European codes furnished few examples that could safely be adopted — the present state of society there being altogether new. The Trans-atlantic Review, above cited, honestly remarks, " If our code be not 2)erfect, neither is the code of any other nation perfect ; and whatever ignorant or prejudiced men may write * Dane's Abridgment. — North American Review, vol. xi. p. 198. — United States' Law Journal, 1822, vol. i. p. 17, and Art. p. 41G, on the " Bankrupt Law of the United States." — English Jurist. No. IIL p. 432. Ixxii INTRODUCTION. or may believe about us, those who have sense and candour will distinguish between what is inherent in a difficult subject, and what is the result of unskilful or dishonest legislation."* This disputed and important question of a " National Bankrupt Law" has been recently discussed very ably in the American Jurist, in a detailed and critical review. The subject is there represented as one of the deepest national interest : — *' It is important as it regards the commercial intercourse between the different parts of our country, our credit and trade with foreign nations, the welfare of large classes of our popula- tion, and more than all the morals of the community. We feel a strong conviction, that if the merits of the measure were once well understood, a Bankrupt law would pass in Congress almost by acclamation. The impression on the public mind of its necessity has been gradually increasing for many years. Preju- dice and party spirit may perhaps prevent it from passing in Congress this year or the next ; but that it will ultimately pre- vail, and at no distant period, appears to us certain. It is but little to the credit of the second commercial nation in the world that her citizens should have so long been permitted to suffer for the want of a bankrupt system. And the duty on Congi'ess is imperative to afford that relief to the nation which is pointed out, if not enjoined, by the Constitution, and which that body alone is authorized to bestow. "t The subject of North American jurisprudence, more immediately connected with the Equity jurisdiction, and of useful interest to the English and European jurist, is the Trans-atlantic Law of Real Property. * North American Review, vol. xi. p. 208. f The American Jurist. No. I. Art. II. p. 57. INTRODUCTIOX. Ixxill The simplicity and improvement of the laws of Real Property in the United States greatly diminish the sources of equity litigation; and feudal tenures do not supply the copious streams of business which flow into the English Courts of Chancery. The most full and convenient digest, both of the statute and ad- judged law in the different states of the Union, may be found in Dane's General Abridgment and Digest of American Law;* but it is sufficient for the objects of this compilation to notice the amendments and improvements introduced by the national and state legislatures. These important points of information and comparison are scattered through various legal publications, but nearly the whole of them, applicable to English law, are collected and digested in a most able review of Mr. Humphreys' work on Real Pro- perty, in the first number of The American Jurist, and from which the following account is selected and compiled with references to the laws of the difterent States, f Nearly all the evils and defects in the English system exposed by Mr. Humphreys have been reme- died in North America. Though the doctrine of a feudal tenure by free and common socage may be applicable iu theory to a great part of the real property of the States, chartered and possessed before the Declaration of Independence, and though every proprietor be considered as holding an estate in fee simple, none of the inconveniences of * Boston, 1824. 8 vols. f American Jurist, No. I. Art. III. Boston. January, 182t». And see Judge Story's eloquent address to the Suffolk bar. Boston. 18,'M. Ixxiv INTRODUCTION. tenure are felt or known.* Lands for all purposes of enjoyment and alienation, are really allodial. In the charter of the colony of Massachusetts Bay the grant of the territory declares it "to be holden of us, our heirs, and successors, as of our manor of East Greenwich, in free and common socage and not in capite, nor by knight's service ; and also yielding and paying therefore to us, our heirs, and successors, the fifth part only of all ore of gold and silver, which from time to time, and at all times here- after, shall be there gotten, had or obtained, for all services, exactions, and demands whatsoever. "f In the Province charter the same form is followed, with one or two unimportant additions. J But though the feudal rights of the sovereign in the soil were thus formally recognised, yet even under the colonial and provincial governments the interests of owners in their estates were really as beneficial as if they had been allodial. The charters of Rhode Island and Con- necticut on this subject are substantially the same as that of Massachusetts. § In 1692 an act of the latter State provided, that lands granted or to be granted by the assembly, or by towns, should be held " by the most free tenure of East Greenwich in the county of Kent, in the realm of England, according to our charter grant.']] A statute passed in 1793, after re- ferring to the charter, and reciting that by " the establishment of the independence of the United States the citizens of this State became vested with * 3 Kent's Com. 412. f Anc. Charters, &c. 4. X Anc. Charters, &c. 26. § Laws Conn. ed. 1808, p. 8. II Laws Conn. p. 432. INTRODUCTION. IxX\^ an allodial title to their lands," enacts, " that every proprietor in fee-simple of lands has an absolute and direct dominion and property in the same."'* In New York a statute was passed soon after the revolution which abolishes all feudal services, and declares that all lands held of the king- or any other person before the 4th day of July, 1776, shall be con- strued and adjudged to be turned into free and com- mon socage, and all grants by the state theretofore made, or thereafter to be made, shall be and remain allodial and not feudal, f The American jurists congratulate themselves that their country is free from the superfluous system of copyholds, and from all the indirect grievance of manorial service. The evils resulting from uses and trusts, " active, passive, and constructive," are much ameliorated ; the incapacity of married women to convey; the difficulty occasioned by the legal title of land descending to the heir of the mortgagee, and escheat on the attainder of a trustee, having been remedied in some of the states ; and marriage and other family settlements being not so common as in England. The flood of litigation arising in England from the rule which renders it necessary in alienations in per- petuity to name the heirs of the alienee, has been terminated by simple acts of legislation. In some of the States the rule has been abandoned. In North Carolina and Tennessee, where lands are devised, the estate is construed to be in fee simple, unless by * Laws Conn. 433, 4. t St. Feb. 20, 1787. 1 N. Y. Laws, ed. 1813, p. 70. IxXVi INTRODUCTION. plain or express words, or by plain intent, it appears that the testator intended to convey an estate of less extent.* A similar law is in force in New Jersey. The statutes of Virginia and Kentucky provide, that " every estate in lands that shall hereafter be granted, conveyed, or devised to one, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple, if a less estate be not limited by express words, or do not appear to have been granted, conveyed, or devised by construction or operation of law.''^ One great improvement in the law of real property in the United States consists in using simple and direct modes of conveyance, instead of fines and recoveries. All this complicated and expensive machinery is thrown aside ; and the law allows parties to carry their intentions into effect by direct means. In Mas- sachusetts the tenant in tail may, by a deed signed in the presence of two witnesses, and acknowledged before a magistrate, and recorded in the usual manner, bar the issue in tail and all others claiming under and by virtue of the original gift or grant, which created the estate tail, and all reversions and remainders ex- pectant upon the determination of such estates tail.;]: The law is the same in Maine. § The law in the other states is generally on a similar footing. This will fully appear from the following statement by Mr. Dupon- ceau in a note to his Dissertation on the Jurisdiction of the Courts of the United States. || * Griffiths'sLaw Reg. 751. t Virg. Rev. Code, 159. Toulmin's Laws of Ky. 230. + Mass. St. 1791, c. 60. § Laws of Maine, c. 36, s. 4. II P. 115. See also Griffiths's Law Register. INTRODUCTION. Ixxvil Of estates tail in the several States of the Union. — In four states these estates were never known to have been in existence, viz. Vermont, Illinois, Indiana, and Louisiana. In one, viz. South CaroHna, the statute de donis never was in force, but fees conditional at common law prevail. In twelve they have been abolished, or converted by statutes into fee- simple absolute, viz. New York, Ohio, Virginia, North Caro- lina, Georgia, Missouri, Tennesse, Kentucky, Connecticut, Alabama, Mississippi, and New Jersey ; but in the lastfotir a species of estate tail still exists, being for the life of one donee, or a succession of donees then living. In six they may be barred by deed, acknowledged before a court, or some magis- trate, viz. Rhode Island, Maine, Pensylvania, Massachusetts, Maryland, and Delaware ; but in the last four they may also be barred by fine and common recovery. And in one only do they exist as in England, with all their pecuUar incidents, viz. New Hampshire. With regard to conveyances of estates held by mar- ried women in their own right, or in which they would be dowable, the States have effected all that is desired by Mr. Brougham. In North Carolina and Tennessee the wife is only dowable in lands of wdiich the husband dies seised ; and in the other states she may be barred of her dower by joining in the conveyance with her husband ; and in all she may convey her own estate by joining with him in a deed. For either purpose, in most of the states, an acknowledgment on a private examination of the wife before a judge, in order to ascertain whether she executes the deed freely and without fear or compulsion of her husband, is required, in order to make it effectual against her. This private examination is necessary in Vermont, New York,* * 1 Laws N. Y. SCO. Ixxviii IXTRODUCTIOK. New Jersey, Pensylvania, Delaware, Maryland, Ohio, Illinois, Indiana, Virginia, Kentucky, North Carolina, Tennessee, Alabama, Missouri, Mississippi, and South Carolina. In Georgia a private examina- tion of the wife is necessary in order to bar her dower ; her real estate vests absolutely in the husband on marriage. In Rhode Island a private examination is necessary in order to pass any estate held by the wife in her own right ; but it is not necessary to bar dower. In the remaining states, Massachusetts, Maine, New Hampshire and Connecticut, no private examination of the wife is required in order to pass any estate of which she may be owner, or to bar her dower. Indeed this private examination, notwithstanding its preva- lence, is generally considered a very useless ceremony. For if the wife is induced by fear to concur with her husband in executing a conveyance, it cannot be sup- posed that his influence over her will cease during the half minute's private conference which she has with a magistrate. The evils of the present system of mortgages in England, arising from various causes, — such as the tediousness and expense of foreclosure in equity, the descents on the mortgagee's death, in the case of a mortgage in fee, of the debt and the security for it to different classes of representatives, as pointed out by Mr. Humphreys with masterly force and precision — are principally remedied in the states. The absurd and frequently unjust doctrine of tack- ing is entirely exploded. The statutes for registering deeds have superseded the English rules on this sub- INTRODUCTION. Ixxix ject.* In the New England states, and in some of the others, every incumbrance by deed takes priority according to the order in which it is recorded. In other states all mortgages, duly recorded within a certain period from the date, take effect from the date, or rather the delivery. But under neither sys- tem is the doctrine of tacking admitted. The equit- able rule which the English courts profess to follow is in fact observed in the states, " Qui prior est tempo?'e, potior est Jure.'" The inconvenience arising from the mortgaged land descending to the heir of the mortgagee, while the interest in the debt secured by the mortgage devolves on the executor, has been obviated in Massachusetts and Maine. The lands mortgaged, as well as the debt which the mortgage is given to secure, if the mortgagee dies without taking possession, are assets in the hands of his executor or administrator, and he has the same interest in the land as if it had been per- sonal estate pledged for the security of the debt ; and he may bring actions to recover seisin and possession of such land. After he has obtained possession, it is distributed like personal estate, or may be sold for the payment of the deceased's debts, subject in both cases to the right of redemption. While the executor or administrator remains in possession of the mortgaged * In New York it has been expressly decided by the Court of Errors, that the doctrine of tacking does not apply between registered mortgages; Grant v. Bisset, 1 Cain. Cases, 112, This is in con- formity with the decision of Lord Redesdale in Ireland ; Latouche V. Dunsany, 1 Sch. & Lef 137. See also the Statute of New York. 1 Laws of N. Y. 373, and Loring v. Cooke, 3 Pick. R. 50. IXXX INTRODUCTION. property, he is empowered to make a release or other conveyance of it on its being redeemed.* Rhode Island too has adopted the same provisions for making mortgages assets in the hands of the mortgagee's exe- cutor. 'j" The English principle of survivorship in joint tenancy, so unanswerably commented upon by Mr. Humphreys, is remedied in the states. The fault in the law is not so much the permission of joint tenancies, as creating them when the parties probably did not intend them. Blackstone says, '' If an estate be given to a plurality of persons without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A. and B. and their heirs, this makes them immediately joint tenants in fee of the lands." This rule is just the reverse of what it ought to be. In ninety-nine cases out of a hundred, of persons pur- chasing land together, they would prefer not to be joint tenants, but tenants in common. The law ought, therefore, to follow what is the implied wish of parties, in every case where their intention is not expressly declared, and in every case of a conveyance of land to several persons, should make them tenants in common, unless the conveyance expressly states a different in- tention. Making the rule of construction different from the common understanding of the words, is neces- sarily the source of litigation, which is increased by the inclination of the courts, though bound down by this narrow rule — to construe all doubtful expressions in favour of tenancies in common. * Stat. Mass. 1788, c. 51. Laws of Maine, c. 39, s. 9 and 10. t Laws of R. L ed, 1798, p. 303. INTRODUCTION'. Ixxxi The states, with scarcely an exception, have re- versed the English rule. In Massachusetts it is enacted, " That all gifts, devises, and other convey- ances of any lands, tenements, and hereditaments, ' to two or more persons,' ' shall be' adjudged to be estates in common and not in joint tenancy, unless it ' is therein said that the grantees, feoffees, or devisees, shall have or hold the same lands,' &c. ' jointly, as joint tenants, or in joint tenancy, or to them, and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly showing it to be the intention of the parties ' that such lands,' &c. * should vest and be held as joint estates, and not as estates in common.' "* In the other states there are similar laws to abolish the jus accresceiidi, unless the instrument conveying the estate expressly provides for it. The law in Maine, New Hampshire, and Rhode Island, is the same as in Massachusetts, having been copied from the statute just recited. t The statutes of Vermont, New York, J Delaware, and New Jersey, are to the same effect. A statute of Virginia, passed in 1786, provides that the shares of joint tenants " who die first shall not accrue to the survivors, but shall descend, or pass by devise, and shall be subject to debts," &c. and " be considered, to every other intent and purpose, in the same manner as if such deceased joint tenants had been tenants in common. "<§ The * St. Mass, 1785, c. 62, s. 4. t Laws of Maine, c. S5, s. 1. Digest of Laws, R. L 1798, p. 273, s. 8. N. U. Laws, p. 194, st. June 21, 1809. X 1 Laws N. Y. 54. § 1 Rev. Code of Virg. 31. Ixxxii INTRODUCTION. same law is adopted in Kentucky.* It is a defect in the Acts of these two states, that no provision is made for giving the right of survivorship in cases in which the parties desire it. It is not easy to say, from the words of the Acts, whether a right of survivorship could be created even by express words. And yet such a right is very important in the case of joint trustees. The right of survivorship in joint tenancies is also abolished in Connecticut, Pennsylvania, Illi- nois, Indiana, North Carolina, Alabama, Missouri, Tennessee, and South Carolina. In Ohio, where there is no statute on the subject, it has been decided, that the Jus accrescendi does not exist to the exclusion of the right of doiver in the widow of the joint tenant first dying. t It seems, from Griffith's Law Register, that joint tenancies remain as at common law in Georgia, Mississippi, and Maryland. In New York and Dela- ware, estates conveyed to executors and trustees are excepted from the new rule of construction introduced by statute. J The propriety of this exception is obvious. The actual law of New York and Delaware, both with regard to the general principle and the exceptions, coincides exactly with the provision pro- posed by Mr. Humphreys, " where land is aliened to two or more jointly, whether with or without distinc- tion of shares or interests, or in whatever terms, the share of each of them, upon his death, shall pass to his real representatives, and not to any surviving propri- etor, unless an express right of survivorship be given, or in the case of active trustees." § * Toulinin's Laws of Ky. 233. f 4 Griff. Law Reg. 1595. % ] Laws N. Y. 54. § Fluniphreys, p. 325. INTRODUCTIOX. Ixxxiil But the greatest change that has been introduced in the law of real property in the United States is with regard to descents. Almost all the peculiar rules of the common law have been abandoned, and others, approaching those of the civil law, adopted in their place ; so that now, in the greater part of the states, the real and personal property of an intestate, except as it regards the rights of the husband and wife, go to the same persons ; the rules for both sorts of property having been formed chiefly upon the English Statutes of Distributions. The nature of the alterations in the doctrine of Descents will be fully seen by comparing these laws with Blackstone's Canons of Descent. His first canon is, " that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum; but shall never lineally ascend."* As the first part of this rule prevails in the states, it will be sufficient to refer to the latter clause only, which contains one of the most unreasonable provisions of the English law. A father or mother shall never become heir to a son, but the estate shall in prefer- ence descend to the most remote collateral relation, or even escheat to the lord. This rule, however, Blackstone undertakes to defend, and endeavours to prove that it is founded " on good legal reason." But his arguments, at most, merely show the reasons for introducing it into the feudal law, but afford no justification of its continuance at the present day. In the United States, the rule has been universally aban- * 2 Bl. 208. g-2 Ixxxiv INTRODUCTION. doned ; and the right of the father and mother to become heirs to their children is fully established. The laws of the several states on this subject are too various to be enumerated : it will suffice to state, in general terms, that lineal descendants are everywhere preferred to parents ; in some states brothers and sisters are preferred before parents ; in some the father excludes brothers and sisters; in some the mother inherits equally with them ; and in some the father or mother can never succeed to more than a life estate in the real estate of a child. New York was sin- gular, in totally excluding the intestate's mother from the succession to real estate. Blackstone's second canon is, " that the male issue shall be admitted before the female ; and his third, " that where there are two or more males in equal degree, the eldest only shall inherit; but the females altogether."* On both these points the English law has been reversed in the United States, and it may be laid down as a general rule, that, in the descent of estates to lineal descendants, no distinction of age or sex is made. In regulating descent to collateral relations, too, scarcely any distinction is made on account of age or sex, except in the state of New York, where the common law continues in force with regard to all collateral relations, except brothers and sisters and their descendants. f Though primogeniture and the preference of males are now universally given up in the United States, * 2 IM. 213, 4. t Laws N. Y. 54 INTRODUCTION. IxXXV yet in some states they remained in full force, and in others modifications of them subsisted for a long period. The common law with regard to descents prevailed in New Jersey until 1780, in Maryland and South Carolina until 1786, and in Virginia until 1787. In Massachusetts, Rhode Island, and Connecticut, the eldest son, probably in imitation of the Jewish law,* had formerly a double portion of the real and personal estate, and in Delaware of the real estate, of his father. And in Vermont, until very recently, male children inherited twice as much of their father's real estate as females. It is unnecessary to inquire here whether the sys- tem of primogeniture is expedient under a limited monarchy, with an hereditary aristocracy. But it is unquestionably equitable, and certainly more suited to a republican government, that all children should have equal shares in their parent's property. It de- cidedly checks the excessive accumulation of pro- perty in the hands of individuals, and prevents the increase of those classes who are supported without personal exertions. t * Deut. xxi. 17; Hale's Hist. Com. Law, 243. t The Anti-European system is too firmly riveted in the opinions and constitutions of the States to be displaced, and will probably ope- rate more directly than any other political agency or machinery to perpetuate the democratical principle of their government. The learned Anglo-American, Dr. Cooper, editor of the translation of Justinian with notes, makes the following observations on Primogeniture in his Lectures on Political Economy, recently delivered at South Carolina College: — " Where the right of primogeniture is established, the accu- mulation of capital affords the means of effecting many useful objects, that could not, or would not, be effected without it. The country is IxXXvi INTRODUCTION. The fourth canon is, " that the Uneal descendants, in hifinitum, of any person deceased, shall represent their ancestor, that is, shall stand in the same place as the person himself would have done had he been living."* No general rule applicable to all the states can be laid down with regard to representation in descents. In some of them, as New York, North Carolina, Ten- nessee, Pensylvania, Virginia, and Kentucky, it appears to be allowed in favour of the most remote collateral relations. In most of the other states, though representation is without limit in the direct descending line, yet in the collateral it does not extend beyond brothers' and sisters' children ; as in Massachusetts, Maine, Rhode Island, New Hamp- shire, Georgia, and Maryland ; or descendants of brothers and sisters, as in Alabama and Mississippi; or brothers and sisters' grandchildren, as in Delaware. When the heirs of an intestate stand in different de- grees of relationship, they inherit per stirpes, with scarcely an exception in any of the states ; but when they are all in the same degree, different rules have iTiore embellished, art and science more effectually encouraged and promoted, and knowledge and literature more generally diffused ; but the amount of talent, of energy, of productive exertion, and all the substantial comforts of life, are assuredly in greater abundance where primogeniture is 7wt established by law: nor are we offended so fre- quently in a country of this last description by the disgusting vicinity of enormous wealth and squalid poverty : and if luxuries are more scarce, the comforts of human existence are more abundant, and the moral habits of society less likely to be exceptionable." * 2 Bl. Com. 217. INTRODUCTION. IxXXVii been adopted. In Massachusetts and Maine, in such case, they inherit per capita, by the express words of the statutes. In New York and Pensylvania the statutes also provide, that when lineal descendants of an intestate all stand in the same degree of consangui- nity, they shall take per capita. In Connecticut it has been held, that when all the heirs are in the same degree, they shall take per stirpes. Blackstone's fifth rule is, " that on failure of lineal descendants, or issue of the person last seised, the inheritance shall descend to his. collateral relations, being of the blood of the first purchaser; subject to the three preceding rules."* The rules which have been adopted in the United States with regard to the blood of the first purchaser are very various. In some of the states, the real pro- perty of which any person dies seised descends in precisely the same manner, whether it came to him from his paternal or maternal ancestor, or was ac- quired by purchase. Such is the provision of the laws of Illinois, Missouri, South Carolina, Georgia, Alabama, and Mississippi ; and of those of Massachu- setts and Maine, except with regard to minor children dying unmarried, whose real estate, if inherited from their father or mother, descends to the children of the parent from whom the estate came, and their issue, in preference to other brothers and sisters. In many of the states the descent of real estate is in some mea- sure regulated by a regard to the mode in which it became the property of the intestate, whether by ac- * 2 Bl. Com. 220. IxXXviii INTRODUCTION. tual purchase, or by descent, gift, or devise from a paternal or maternal ancestor. This preference, how- ever, of certain relations of the blood of the line through which the estate came to intestate, is not general, and does not operate as an absolute exclu- sion of relations who are not of the blood of the an- cestor through whom the estate came, who may in- herit in case of a failure of the persons preferred. It is, however, a governing principle of the intestate laws of Pensylvania, that all who are not of the blood of the ancestor from whom the estate came are excluded from the inheritance, however remote in degree the descent may be.* But as the common law regulates descents in New York, except in the cases specified in the statute, relations not mentioned in the statute would be excluded, if not of the blood of the first purchaser. The statute of Rhode Island, also, appears to exclude from the inheritance of any estate of an intestate all persons who are not of the blood of the relation from whom it came to him by descent, gift, or devise. t It is difficult to say what rule is best on this subject. It does not seem unreasonable that estates should continue to descend among the relations of the first purchaser; and, on the other hand, always to regard merely the person dying seised in determining the heir, is more simple and convenient. If the probable wishes of the person dying seised ought to be the rule of descent, there is no doubt that in a majority of cases his estate would go to his nearest relations, * Beian. Taylor, Sup. Ct. 1821, Wharton's Dig. '357. t Laws of R I. ed. 1798, p. 288. INTRODUCTION. Ixxxix without regard to the mode in which it became his property. Blackstone's sixth rule is, that the collateral heir of the person last seised must be his next collateral kins- man of the ivholc blood * and as afterwards more fully expressed by him, " The heir need not be the nearest kinsman absolutely, hni onXy sub modo ; that is, he must be the nearest kinsman of the ivhole blood ; for if there be a much nearer kinsman of the half hXood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded ; nay, the estate shall escheat to the lord, sooner than the half blood shall inherit. "f This rule is so absurd and unjust, that it must of- fend even the most zealous partizans of the common law. Blackstone, indeed, attempts to defend, or rather apologize for it, on feudal principles ; but after all, confesses " that it is certainly a very fine-spun and subtle nicety," and " that the practice is carried farther than the principle on which it goes will war- rant." This rule of excluding the half blood, which, Mr. Humphreys truly says, is " repugnant to every princi- ple of property, and to the moral feelings of kindred," has been abandoned in every part of the United States. The provisions, however, which have been adopted, are far from being uniform. In some of the states no distinction is made, in any case, between relations of the whole and the half blood ; and one brother of the * 2 Bl. Com. 224. On this rule, though it is inaccurately expressed, unless considered in connexion with the other rules of descent, see Christian's and Chitty's notes. t 2 Bl. Com. 227. XC INTRODUCTION. whole blood, and another of the half blood of an in- testate, will inherit equal shares of his estates. In the states of Maine,* New Hampshire,'! Massachu- setts,J Vermont, Rhode Island, Indiana, Illinois, North Carolina, and Tennessee, no distinction is made between the whole and half blood ; except, in some of them, as it respects estates which came to the intestate from some one of his ancestors, a preference being, in such case, given to the blood of that ancestor. In all the other states, relations of the half blood can inherit, but relations of the whole blood are preferred. Blackstone's seventh rule is, that " in collateral in- heritances the male stocks shall be preferred to the female, (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted be- fore those from the blood of the female, however near,) unless where the lands have in fact descended from a female.§ Thus," he continues, " the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all; and the relations of the father's father, before those of the father's mo- ther, and so on."|| A good law of descents ought, as far as possible, to be governed by what, in a majority of cases, would be the wishes of the intestate. Now the preference this rule gives to a remote collateral paternal relation to a near maternal one, as of a paternal third or fourth cousin to a maternal uncle, violates the natural feelings * Laws of Maine, ed. 1821, c. 38, s. 17. f Laws of N. H. ed. 1815, p. 207. J Mass. St. 1805, c. 90, s. 1. § 2 Bl. Com. 234. |1 2 Bl. Com. 234. INTRODUCTION. XCl of kindred. The origin of this rule is alleged to be, " that it was more likely that the land should have de- scended to the last tenant from his male, than from his female ancestors."* But it operates unfairly on the maternal relations in the case of an estate which, in fact, came to the intestate through that line, and of which he is merely technically a purchaser. The taking the estate from the maternal, and giving it to the paternal line, in such a case, is to make the reason of the rule yield to a technical subtilty. In the United States, though the blood of the first purchaser is regarded in some of the states in regulat- ing descents ; and though in some a preference is given to the line of that ancestor from whom the estate came to the intestate, whether by descent, devise, or gift ; yet in the case of estates actually, and not merely technically, purchased by the intestate, there are few instances in which any preference is given to the pa- ternal relations. In New York the common law go- verns all descents to collateral relations, except bro- thers and sisters, and their issue ;t of course the pre- ference of the paternal line would take place. In Georgia a preference is given to brothers and sisters of the half blood in tlie paternal line. In Tennessee, as in New York, descents to remote relations appear to be governed by the common law. In Maryland a slight preference is given to the male line, the paternal grandfather and his descendants being preferred to the maternal grandfather and his descendants, and "so on, without end, alternating the next male pater- * 2 Bl. Com. 235. f 1 Laws of N. Y. 54. XCll INTRODUCTION. nal ancestor and his descendants, and the next male maternal ancestor and his descendants, and giving preference to the paternal ancestor and his descend- ants."* A provision in favour of the surviving husband or wife of a person dying without kindred, seems to be wanted in the English law. It appears unreasonable to give a person's property to the state, while a hus- band or wife, who would, in most cases, be one of the first objects of the deceased's bounty, survives. A few of the states have amended the law in this parti- cular. Statutes in Maryland, Virginia, and Kentucky, provide, that in case there are no kindred of the in- testate, his estate " shall go to the wife or the husband of the intestate, and if the wife or husband be dead, then to her or his kindred, in the like course as if such wife or husband had survived the intestate, and then died entitled to the estate. "f A further provision is made in Maryland for the case of the intestate's having sur- vived more than one husband or wife. Mr. Hum- phreys, in his act, has a proposal somewhat similar to laws above stated. For want of any kindred of the intestate, within the degrees prescribed, the land de- scends to the surviving spouse, if any. J The substance of the statutes of two or three of the States will more fully show the character of the laws of descent. The statute of Massachusetts provides, that an intestate's real estate, — * 2 Laws of Mar. iVIaxcy's, ed. 17. 4 GrifF. Law Rep. 925. •f 1 Vir. Rev. Code, 1C9 ; Toulmin's Laws of Ky. 280 3 2 Laws Mar. Maxcy's ed. p. 17. :j: Humphreys, p. 248. IXTRODUCTIOX. XClll 1. Shall descend in equal shares to his children, and to the lawful issue of any deceased child, by right of representation. 2. And when the intestate shall leave no issue, the same shall descend to his father. 3. And when there shall be no issue nor father, the same shall descend in equal shares to the intes- tate's mother, and to his brothers and sisters, and the children of any deceased brother or sister, by right of representation. 4. And if the intestate leave no issue, father, brother, or sister, then the same shall descend to his mother. 5. But if there be no mother, then to his next of kin, in equal degree : the col- lateral kindred claiming through the nearest ancestor, to be preferred to the collateral kindred claiming through a common ancestor more remote ; and the degrees of kindred, in all cases, to be computed according to the rules of the civil law. 6. And when there shall be no kindred, the same shall escheat to the Commonwealth, for want of heirs ; saving always to the intes- tate's husband his tenancy by the curtesy, and to his widow her dower at the common law. 7. Provided hoivever, That when any child shall die under age, not having been married, his share of the inheritance, that came from his father or mo- ther, shall descend in equal shares to his father's or mother's other children then living respectively, and to the issue of such other children as are then dead, if any, by right of representa- tion. 8. And provided further, that when the issue or next of kin to the intestate, who may be entitled to his estate by virtue of this act, are all in the same degree of kindred to him, they shall share the same estate equally, otherwise they shall take according to the right of representation.* The law of Pensylvania is as follows: — 1 . If the intestate leaves children only, they take equally as tenants in common ; if children and the issue of children, such issue represent their -parents, and take equally among them what their parents would have taken, if Uving. If the intestate leaves grandchildren only, they take equally as tenants in com- * Mnss. St. 180.;, c. 00, s. 1. XCIV INTRODUCTION. mon ; if grandchildren and the issue of grandchildren, such issue represent their parents as aforesaid, and so on as to lineal descendants in the remotest degree. 2. If the intestate leaves only brothers or sisters or both, they take equally as tenants in common ; if any be dead, their issue represent them, and take what the parent, if living, would have taken. 3. Iftherebea father or mother and brothers or sisters, the father takes all during his life ; if no father, the mother during her life, and after his or her death, the brothers and sisters and the issue of de- ceased brothers and sisters, take as they would have done, if the father or mother had not survived the intestate. 4. If there be no brothers or sisters or their representatives, the father if he be living takes the whole in fee, or in case he be dead and the mo- ther living, then she takes the whole in fee ; unless the estate came to the intestate from the part of the mother, in which case the father shall not inherit ; if from the part of the father, then the mother shall not inherit, but it shall be considered as if the intestate had survived such father or mother. 5. If there be no lineal descendants, nor father, mother, sisters, or brothers of the whole blood or their issue, then brothers and sisters of the half blood and their issue shall take in preference to more remote kindred of the whole bood ; unless the estate came to the intestate by descent, devise, or gift of some of his ancestors, in which case all who are not of the blood of such ancestor are excluded. 6. If there be no lineal descendants, nor father, nor mother, sisters, or brothers of the whole or half blood, or issue of such brothers or sisters ; the inheritance de- scends to and is divided among the next of Mn of equal degree of or unto the intestate ; and if any of such kindred be dead, their issue represent them. 7. Posthumous children inherit in like manner as if born in the lifetime of the father. 8. If there be a ividow, she takes, if there be lineal descendants, one- third ; if no lineal descendants, one-half of the estate during her life; and this not as dower at common law, but under the statute of distribution, and in lieu and satisfaction of such dower. 9. In all cases of descent, not particularly provided INTRODUCTION. XCV for by the statutes, the common law is to govern ; but this is not by statute provision, but by judicial decision.* The following is the law of North Carolina: — 1. Inheritances shall lineally descend to the issue of the per- son who died last actually or legally seised, for ever, but shall not lineally ascend, except as is hereafter provided for. ^. Fe- males shall inherit equally with males, and younger with older children. 3. The Hneal descendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done, had he been Uving. 4. On failure of lineal descendants, and where the inheritance has been transmitted by descent from an ancestor, or has been de- rived by gift, devise or settlement from an ancestor, to whom the person thus advanced would in the event of such ancestor's death have been the heir, or one of the heirs, the inheritance shall descend to the 7iext collateral relations of the person last seised, who were of the blood of such ancestor, subject to the two preceding rules. 5. On failure of lineal descendants, and where the inheritance has not been transmitted by descent, or derived as aforesaid from an ancestor, or where, if so trans- mitted or derived, the blood of such ancestor is extinct, the in- heritance shall descend to the next collateral relations of the person last seised, whether of the paternal or maternal line, subject to the second and third rules. 6. Collateral relations of the half blood, shall inherit equally with those of the whole blood, and the degrees of relationship shall be computed, ac- cording to the rules which prevail in descents at common law : provided always, that in all cases where the person last seised shall have left no issue, nor brother nor sister, nor the issue of such, the inheritance shall vest for life only in the parents of the intestate, or in either of them, if one only be living, and on the death of one of the parents, then in the survivor, and after- w^ards be transmitted according to the preceding rules. f The disabilities of aliens with regard to real pro- * 3 Griff. Law Reg. 250, 257. f ^ ^riff. Law Reg. 211, 212. XCVl INTRODUCTION. perty, in the English system, are harsh and of barbar- ous origin. In England, though an alien may pur- chase and convey land, yet he cannot hold against the King, to whom it is forfeited on an inquest of office ; neither can he, or any person claiming through him, inherit land. And though it is said that an alien who purchases land has a good title against all the world except the King, yet if he be dispossessed of it by a stranger, he cannot maintain any action to recover it. So that though his right is clear, he has no remedy. These provisions against aliens originated in ages of barbarism, out of the hatred and jealousy with which foreigners were regarded, and ought, long since, to have been removed ; yet they have found advocates in America. Thus in Calvin's case,* the judges are reported to have given the following reasons, " where- fore an alien born is not capable of inheritance within England: — 1. The secrets of the realm might thereby be discovered. 2. The revenues of the realm (the sinews of war and ornament of peace) should be taken and enjoyed by strangers born. 3. It should tend to the destruction of the realm. It tends to de- struction tempore belli, for then strangers might fortify themselves in the heart of the realm, and be ready to set fire on the commonwealth. Secondly, temporepacis, for so might many aliens born get a great part of the inheritance and freehold of the realm." This reason- ing can only excite a smile at the present day. Black- stone's, however, is a little better. *' If an alien," he argues, *' could acquire a permanent property in lands, he must owe an allegiance equally permanent with * 7 Co. 18. INTRODUCTION. XCVll that property to the King of England ; which would probably be inconsistent with that which he owes to his own natural liege lord : besides, that thereby the nation might, in time, be subject to foreign influence, and feel many other inconveniences."* The argument with regard to allegiance requires no answer ; and no man in his senses would have any fears of foreign in- fluence, from foreigners holding lands in such coun- tries as England or the United States. The danger could only arise from their holding a very large part of the real estate of the country, which is obviously impossible. The disabilities of aliens with regard to real estate continue in many of the United States, though their continuance is contrary to the general policy of the country, which has always been to encourage fo- reigners to settle. The ease with which aliens can be naturalized here does, in a great measure, remove the practical evils which might otherwise arise from the present system. But during the five years' resi- dence, which is requsite in order to acquire citizen- ship, an alien cannot safely purchase real estate. Now, although the policy of the old law with regard to non-resident aliens may be justified, yet to those who are actually resident, the best policy is to encou- rage their industry, by giving them all reasonable facilities in the acquisition of property. Some of the states have entirely abandoned the common law on this subject. Pensylvania and Ohio, in free popula- tion, now the second and third states of the confe- deracy, having large tracts of unsettled land, have * 2 Bl. Com. 372. XCVIU INTRODUCTION. placed aliens nearly on the same footing with regard to the ownership of real estate as citizens. Aliens in Ohio can hold land by descent or purchase in the same manner, and with the same privileges, as citi- zens. The law is the same in Pensylvania with regard to alien friends, except that an alien cannot purchase more than five thousand acres of land. In Louisiana, too, aliens can purchase, inherit, and hold real estate, without any restrictions. In Indiana and Missouri, aliens, resident in the United States, who have declared their intention of becoming citizens, have all the privileges of citizens with regard to real estate; and North Carolina gives the same privileges to aliens resident in the state, who have taken the oath of allegiance to the state. In Kentucky, an alien who has resided two years in the state has the same privileges.*' Resident aliens, who have declared their intention of becoming citizens of the United States, can purchase land in Delaware, not exceeding one thousand acres. Some of the other states have like- wise passed statutes removing the disabilities of aliens in some degree. The modes of conveying estates are much more sim- ple, direct, and convenient, than the English, as will be seen in the common mode of conveyance in the United States, a deed in the nature of bargain and sale recorded. This deed, however, is not pre- cisely the English deed of bargain and sale, but de- rives its operation from the State Statutes. When the vendor is seised, the legal possession passes to the vendee on the delivery of the deed, which is in a very * Toulmin's Laws of Ky, 239. INTRODUCTION. XCIX simple and explicit form, without livery of seisin or any other act or ceremony. All deeds, however, are required to be executed, acknowledged, or proved before a magistrate, in the manner prescribed by the local statutes, and afterwards recorded. The acknow- ledgment and recording in most of the States are not necessary to pass the estate as between the grantor and the grantee, but merely to give priority to the purchaser against subsequent incumbrances of the grantor or his heirs. This subject will be best illustrated by stating the law of a particular State. In Massachusetts, for ex- ample, every deed signed and sealed by the grantor, and acknowledged before a justice of the peace in the State, or before a justice or magistrate in any of the other States, or any place in which the grantor re- sides at the time of making the deed, and recorded at length in the registry of deeds in the county where the lands, tenements, or hereditaments lie, is valid to pass the same without any other act or ceremony, and no conveyance in fee-simple, or tail, or for life, or any lease for more than seven years from the making, is good and effectual to hold the lands, tenements, or other hereditaments conveyed, against any other per- son but the grantor and his heirs only, unless the deed is acknowledged and recorded in manner afore- said.* This statute, as well as those of the other States, contains suitable provisions for proving deeds, in order to have them recorded, where the grantor is unwilling, or from absence or death is unable, to ac- knowledge the instrument. In the construction of * St. Mass. 1783, c. 37, s. 4. h2 C INTRODUCTION. this statute it has always been held, that the record- ing of a deed is not necessary in order to give it full effect, either as it regards the grantor and his heirs, or a subsequent purchaser with notice. As it respects bond fide purchasers without notice, the deed has pri- ority only from the time of recording. The laws of the other New England States are substantially the same as that of Massachusetts, except that in Ver- mont, Connecticut, and Rhode Island, deeds are re- gistered in the town-clerk's office of the town where the land lies, instead of the county registry.* The statutes of all the remaining States, except New York, require all deeds to be acknowledged or proved before a magistrate, and recorded, but with some variety in their provisions. In Tennessee re- cording is necessary, even as it regards the parties to a deed; but by the laws of Pensylvania, New Jer- sey, Ohio, Indiana, Illinois, Missouri, Virginia, Ken- tucky, South Carolina, Georgia, Alabama, or Mis- sissippi, it is not necessary to its validity even with regard to the parties, that it should be acknowledged or recorded. The deed, however, is void as it re- spects subsequent bond fide purchasers without notice, unless it is recorded within twelve months from its date, in Indiana, Illinois, Tennessee, and Georgia; eight months in Virginia and Kentucky; six months in Pensylvania, Ohio, and South Carolina; three months in Missouri, Alabama, and Mississippi; and fifteen days in New Jersey; or unless it is recorded before * Laws of Maine, c. 36, s. 1 ; Laws of N. H. 191, st. Feb. 1791, s. 4; 1 Laws of Vermont, ed. 1808, p. 188 — 196; Laws of R. L 263, 4; Laws of Conn, ^^j?,, 4. INTRODUCTION. CI the deed to the subsequent purchaser. The deed, if recorded within the times specified, has priority from its date as to subsequent purchasers without notice; if recorded afterwards, it takes priority only from the time of recording. In most if not all these States, notice of an unrecorded deed will affect a subsequent purchaser in the same manner as the actual recording of the deed would have done. Virginia and Kentucky make a distinction between mortgages and deeds of trust and other deeds. In Virginia the former are valid as to subsequent purchasers without notice from the time only of recording; in Kentucky they take priority from the delivery, if recorded within sixty days. The States of Pensylvania and New Jersey also give a priority to mortgages against subsequent bond Jide purchasers only from the time of recording. The law of New York is clearly defined in the statute concerning the record and proof of conveyances and mortgages.* In a few of the states, deeds are void if not recorded within a certain time. Thus, in Maryland deeds must be enrolled within six months from the date, otherwise they have no validity, even as it respects the parties and their heirs : if regularly enrolled they take effect from the date.f Notice of an unrecorded deed has, of course, no effect in this state. After six months a deed may be permitted to be recorded by a decree in Chancery. In North Carolina a deed must be re- gistered within two years from its date, otherwise it is void. When registered it takes priority from its * See p. 221 of this volume, and also 1 Laws of N. Y. 370. 373. t 1 Laws of Mar. Maxcy's ed. pp. 2C4, 5, G. Cll INTRODUCTION. date. Acts, however, have been passed by this state from time to time, to allow the registration of deeds which had not been seasonably registered. Mort- gages and conveyances in trust are allowed only six months for registry ; and mortgages, unless registered within fifty days from the date, take priority only from the time of registry. In Delaware mortgages take priority from the time of recording ; but are void if not recorded within twelve months. The utility of having all deeds recorded is remark- ably demonstrated by the circumstance of the legisla- tures of so many different states having introduced such a system by statute. Every person before buying land, in the states where deeds take priority from the time of registry, has it in his power, with a very moderate degree of trouble and at small expense, to obtain satisfactory evidence of the state of the title. The cases are rare in which, when a due examination shows an apparently clear title in the vendor, the pur- chaser is in any danger on account of latent adverse claims. The rights of creditors against the property of their debtors, as noticed by Mr. Humphreys, are more justly regarded in the United States than in England. Here, by the writ of elegit, the creditor may take in execution *' a moiety of the lands which the debtor was seised of at the time of the judgment given; or, (as it has been construed,) had afterwards acquired, until the debt was paid." An equity of redemption of a mortgage cannot be reached by this process, nor can copyhold lands. But in all the states, except Vir- ginia, all the debtor s lands are liable to be taken for INTRODUCTION. Cili his debts. In Massachusetts the land of the debtor when taken in execution is appraised, and set off to the creditor at the appraised value ; the debtor having a year in w^hich to redeem. Equities of redemption may also be sold in execution. In a few of the other states lands are appraised, and set off to the creditor. But in a majority of the states they are sold in execu- tion, and the proceeds of the sale applied to discharge the debt. The distribution of the real and personal property of a deceased person among his creditors, is one of the most important objects of the law. The laws of Massachusetts have effected nearly every thing recommended by Mr. Humphreys. The real as well as the personal estate of the deceased, is liable for the payment of his debts, without any dis- tinction, except that the executor cannot obtain leave to sell the real estate for the payment of debts, unless there is a deficiency of personal assets.* In case of the estate's proving insolvent, all debts, whether judgment, specialty, or simple contract, stand on the same footing, and are paid rateably out of the assets, "saving that all debts due for all rates and taxes, and debts due to the Commonwealth, * The opinion of an old American historian on this subject is worth transcribing: *' In the year 1G70, a law was made in Massachusetts for giving liberty to administrators to sell lands for payment of the debts of the deceased, with the leave of the court ; an order very just and necessary to make men honest, and careful to pay their debts before they leave the world, in that place where men often die seised of much land and little other estates, so as creditors would be extremely damnified without the provision of some such law." — Hubbard's Hist. N. E. 592, CIV INTRODUCTION. and for the last sickness and necessary funeral expenses of the deceased, are to be first paid."* The laws in the other New England states, and New Jer- sey, Ohio, Alabama, and Mississippi, are substantially the same as those of Massachusetts with regard to the pro rata distribution of assets, and the liability of the real estate for all debts. In Maryland, judgments and decrees, and in Missouri, judgments, have a pri- ority over other claims ; but all other debts must be paid rateably ; and the real estate is bound for the pay- ment of all debts. In most of the other states debts are paid in a certain order, as in England, though this order varies in different states. But it is believed that even in most of these states the land of the de- ceased is liable for the payment of debts of any class. The jjro rata distribution of equitable assets is estab- lished in some of the states. Such is the case in New York. In that state, also, where the whole real estate of a deceased person is sold for payment of his debts, the judge of probates, or surrogate, is required to make a rateable distribution among all the creditors, without giving any preference to bonds or other spe- cialties. The strictures of Mr. Humphreys on the English law of " Alienation by adverse possession, or Limitation of Time," are in some degree applicable to the trans- atlantic. In Massachusetts fines are not in use, though they have not been abolished by statute. But some of the other objections of Mr. Humphreys apply with force in this state and most others : though the time of limitation has been shortened in most of the states. * Mass. St. 1784, c. i?'. INTRODUCTION. CV In Massachusetts, writs of right are limited to forty years, writs of entry to thirty years,* and writs of formedon to twenty years. f In some States the time of limitation has been shortened perhaps too far. Thus in Vermont no writ of right, or other real action, no action of ejectment, or other possessory action, can be maintained but within fifteen years after the cause of action accrues to the plaintiff or demandant, or those under whom he claims. In Georgia and Ten- nessee seven years adverse possession of lands is a bar to any action by the right owner and his heirs, when they are not within the usual exceptions. And in South Carolina five years adverse possession is a bar. It is obvious that many important subjects, of tithes, wills, real actions and equitable interposition, are altogether passed over in this brief and general view of the real property law of the United States ; but suffi- cient has been detailed amply to exhibit the valuable practical information that may be obtained from that country in aid of the improvement of the law of England. In this introductory account of the Courts of Chan- cery, Equity Jurisdictions, and Law of Real Pro- perty of the United States, some acquaintance is ne- cessarily presupposed, in the English reader, with the government and municipal law of the Union and the principal States. Constant references, or multifarious details, would otherwise have been necessary, and would have extended the subject beyond the limited object of the present publication. The English reader, * St. Mass, 1807, c. 75, s. 1, 2. f St. Mass. 1786, c. 11, s. 4. CVl INTRODUCTION. uninformed of the general outlines of North-American law, will find ample information in the volumes of Kent, IngersoU, Du Ponceau, Rawle, Story, and Hoffman.* The three volumes of " Commentaries on American Law " by Mr. Kent, lectures originally delivered by him as Professor of Law in Columbia College, combine a luminous account of the legal institutions of the States, with a comprehensive review of the law of nations, and the connection between American and English jurisprudence. The publication of the future and concluding volume of his Commentaries, on the " Doctrine of Real Estates," will supply a full and accurate exposition of that department of trans-atlantic law. The various legal constitutions of the different States may be traced in the authorities cited and referred to in the foregoing pages. " No light has been hid under a bushel." The difficulty of first exploring the distant and numerous sources of Ameri- can law, and the consequent imperfection of the know- ledge obtained, have been sensibly experienced, and the object of this introductory account has been to cultivate a generous and enlightened desire in England for information on the progress of the States in the science of jurisprudence. A scrupulous and particular reference has therefore been made to the works and * Kent's Commentaries on American Law. 3 vols. 8vo. New York. Ingersoll's Discourse. 8vo. Philadelphia: 1823. Ingersoll's Abridg- ment of the Acts of Congress. 8vo. Philadelphia: 1825. Du Pon- ceau's Dissertation on the Jurisdiction of the Courts of the United States. 8vo. Philadelphia: 1824. Rawle's View of the Constitution of the United States of America. 8vo. Philadelphia: 1825. Story's Statutes of the United States, from 1789 to 1827. 8vo. Boston: 1827. I loftinan's Legal Outlines. 8vo. Baltimore: 1829, INTRODUCTION. CVll authorities from which these pages are compiled. A common language, and the facilities of rapid and periodical intercourse, afford more than ordinary means for the interchange of legal knowledge and publications. The United States display an enlight- ened example of respect and deference to British law. All the best practical and historical English works are immediately reprinted in the States. The principal English Equity and Common Law Reports are regu- larly republished ; and the decisions of the English judges are universally appealed to in the adjudication of any cases involving novel or abstruse principles of judicial decision. It is a singular fact, that the par- liamentary discussions and reports on the English Courts of Chancery have been of more practical use in America than in our own country. National jea- lousy cannot, therefore, be charged to the account of the United States in this respect.* The comfortable * This enlightened spirit of inquiry and national improvement is not confined to the gratifying respect tlius exhibited by the States for the jurists and judges of the mother-country. The Americans have seve- ral Law Journals and periodical publications expressly devoted to juris- prudence and legislation, and which, with the European education of many of their professional men, disseminate full and early information on the laws of every European nation. All the juridical works of emi- nent foreign writers, especially of Germany, are translated and re- printed. English editions of Roccus, Bynkershoek, Martens, Schlegel, Pothier, Emerigon, Valin, and Jacobsen, have been published with valuable American notes. Two different translations have been pub- lished of the French Commercial Code, one of the Criminal Code, one of the Spanish and Dutch Law, with usei'ul notes by American editors. Dr. Cooper has edited a translation of Justinian's Institutes, with anno- tations, comparing the Roman jurisprudence with that of England and America. Mr. Wheaton, and other oflicial reporters of the decisions of the Courts, have incorporated in their volumes comparative views of the laws of different countries. CVlll INTRODUCTION. notion of national perfectibility does not deprive thein of the discoveries and experience of other countries. The value of an acquaintance with American Juris- prudence will not be derived from those plans only which have been successful in improving the law and judicial institutions of the States. The unsuccessful results of some of the juridical plans of reform, and of experimental legislation by Congress and the provincial legislatures, possess very considerable importance ; and an unprejudiced and impartial consideration of that part of the history of trans-atlantic civilization will yield much valuable experiment. The mode of appointing judges in the different States affords a singular illustration, " a case in point" — especially in the instance of Mr. Kent, whose judicial services have been lost to the Union by a great defect in the system of New York. In Connecticut, Vermont, Rhode Island, Virginia, Ohio, Illinois, North Carolina, Tennessee, South Carolina, Georgia, Ala- bama, and Mississippi, the judges of the highest courts are chosen by the legislatures. Popular bodies, com- posed of such exclusive democratical materials, cannot advisably select judicial officers. Experience in the practice of those states has proved the evils of this defective principle of appointment. Another evil into which some of those states have fallen is the nomina- tion of judges of the Superior Courts for limited terms. The period is seven years in New Jersey, Ohio, and Indiana ; three in Georgia, and one in Vermont and Rhode Island. This utter subversion of the independ- ence of the judges has invariably had the effect of lowering the judicial character. Eminent professional INTRODUCTION. CIX men will not accept offices on so precarious a te- nure.* Many of the principal states, however, have repu- diated a principle so palpably injurious to the ends of justice. The judges are appointed during good beha- viour, and are only removable from office by the go- vernor on the address of both branches of the legisla- ture. Such is the provision of the constitutions of Maine, New Hampshire, and Massachusetts. In Con- necticut, Pensylvania, Delaware, Maryland, Mis- souri, Illinois, Kentucky, Mississippi, and Alabama, the concurrence of two-thirds, and in Louisiana of three-fourths, of both houses is required to authorise the removal of a judge. In New York the judges may be removed by a joint resolution of both branches of the legislature, if two-thirds of all the members elected to the assembly, and a majority of all the members elected to the senate, concur therein. Limitations of the office of judge, of a most absurd nature, in respect to age, exist in some states. In New York " the Chancellor and Justices of the Supreme Court hold their offices during good behaviour, or until they attain the age of sLvtij years. '"-f This limitation proceeds on the fallacious presumption, that the intellectual facul- ties begin to decay at the age of sixty years, and in different men at the same period. The rule may occa- sionally remove an enfeebled judge whose physical and mental powers prematurely decayed ; but it has * American Jurist, No. II. Art. VI. Review of Mr. Brougham's Speech. t Const. New York, Art. 5, s. 3. See also Revised Statutes, vol. i. p. lOG. ex INTRODUCTION. repeatedly had the effect of depriving the States of judges of matured wisdom and experience, who were more competent to the discharge of their official duties at the time of their removal than at any other period of their lives. Of nineteen judges in the Supreme Court, or Chancellors of the State of New York, be- tween the years 1777 and 1824, four have vacated their seats in consequence of having arrived at the age of legal incompetency; and this abstract rule has superseded the most eminent judge and accomplished jurist of the States, Mr. Kent, to the unavailing regret of the public and the legal profession. The constitution of Missouri, with some improvement on that of New York, fixes the age of judicial retirement at sixty-five. In Maine, New Hampshire, and Connecticut, the mcLvimum is seventy. The evils of judicial dotage are unquestionably serious and irremediable; and recent examples in England of deep and long-continued injury to the public service might be named, especially in the three Courts of common law jurisdiction. But, on the other hand, the ill consequences of these legislative restrictions in the States, attempting by the contrary extreme to avoid the evils of judicial incapacity by reason of old age, are greatly, if not equally, injurious. The legis- lature should be invested with the power of removal in cases of mental incompetency, rather than by an arbi- trary and peremptory rule of supersedeas enact the in- discriminate dismissal of judges of a given age. Lord Mansfield, at eighty years, enjoyed the full possession of his faculties. In America, Chief Justice Marshall, at seventy-three, possessed a vigorous and active mind. The Chief Justice of Nova Scotia attained last year INTRODUCTION. CXI his age of eighty-five, with undiminished intellectual powers and ability. Our own Courts, and the highest ranks of the Bar enjoying almost a monopoly of pub- lic confidence, have afforded honourable and gratify- ing instances of intellectual vigour, at periods of ad- vanced and unusual age.* Indeed the regular exer- cise of the mind, and its freedom from private and pecuniary cares, have the well-known effect of pre- serving the intellectual powers; and few stations of private or public occupation are more favourable to longevity than judicial offices. It is probable, there- fore, that the States will assimilate and improve the various legislative provisions of their different modes of appointing judges ; and in many of the States their judicial officers should be more adequately remuner- ated. f But the department of North American jurispru- dence, which is most worthy the attention and imi- tation of the British legislature, is the wise, cautious, * If sixty years be the era of incapacity, the Court of Exchequer and Southampton Buildings, the " Infirmaries for Judges," might be filled with (comparatively) juvenile barons and masters. t American Jurist., No. II. p. 31G. No policy can be more parsi- monious or injurious than the want of a suitable provision for the re- muneration of those to whom the administration of justice is entrusted. It appears from Griffith's Law Register, that the salary of the chief justice in the higliest court in Vermont, is 1,000 dollars; Connecticut, 1,100; Indiana, 800; Delaware, 1,000 ; and Rhode Island, 250 dol- lars. The salaries of the puisne judges are generally less; though often disproportionate compared with those of the chief justices: thus, in Indiana, the inferior judges receive 700 dollars each, within 100 dollars of the salary of the senior judge of the Supreme Court. The most incompetent or inexperienced men are consequently often the only persons who will accept the highest judicial offices. CXll INTRODUCTION. and practical mode pursued in the revision of the law, and in the improvement of the jurisdictions and cir- cuits of the Courts. This important and difficult pro- vince has not occupied merely the Congress and the State legislatures, in numerous assemblies — bodies alone ill suited to the due execution of judicial and legal revision — but it has been committed, under the sanction of legislative authority, and subject to ul- timate legislative review, to learned and eminent men, specially appointed and adequately remunerated for devoting their time and talents to a deliberative and responsible office. Such a delegation of power will become absolutely necessary in England. The British Parliament cannot long exercise its multi- farious and incongruous labours of legislation. The physical powers of the leading ministerial and profes- sional members of the House of Commons must give way under the accumulating pressure of official and senatorial avocations. Awful and melancholy instances of individual sacrifice to public labours have succes- sively happened, and will most certainly recur, of public men of the first class of mind attempting to accomplish labours beyond the physical and intellectual powers of human nature; — labours, which, if sur- mounted, would have been but imperfectly accom- plished. The constitution of the House of Commons was not originally formed for its present oppressive and inconsistent union of deliberative, judicial, execu- tive, and manifold other duties. The House of Commons has the power of choice ; either the creation of Provincial Assemblies, or Stipendiary Committees of Legislature, for Local Legislation and Jurisprudence. INTRODUCTION. CXlll The " Private business" of the House of Commons and the opening labours of Legal Reform cannot be undertaken by the same individuals in conjunction with the official affairs and public legislation of the country. Important alterations of public laws, repeal and consolidation of large masses of statutes, the introduction of new principles of law, and the re- modelling and new-creation of Courts of judicature, required by the altered circumstances of the country, should not be intrusted to the single judgment of a minister of state, overwhelmed with official labours, or be confided to the private opinions of individual members of the bar, to whom a minister may delegate favour and power. The hurried consideration of such important subjects of legislation — frequently at the end of a session— amid cursory debates on second and third *' readings," and midnight colloquial dis- cussions in "committees on bills," cannot wisely pro- vide laws and institutions called for by the rapid increase of population, commerce and wealth, and the exigencies of modern society. Such loose experiments in legislation must be necessarily unsuccessful. Innu- merable emendatory acts must be required from session to session. The Legislature and the Courts must be constantly surprised to find what has become law, and each succeeding parliament will be occupied in repealing the acts of its predecessor. These remarks are far from being made in a spirit of detraction, of or indirect reflection on the labours of Sir Robert Peel. The general character of utility and sincerity, which has marked his successive, though circumscribed, labours in the field of legal reform, entitle him to the i CXIV INTRODUCTION. grateful thanks of the public, anddisinguish him merito- riously as a minister of state. But Sir Robert Peel, if he wish to do effectual legal service to the country, must eventually take a wider and more comprehen- sive view of the exigencies of the times and of the principles of jurisprudence. The division of legislative labour, next to the free- dom of the States from the restrictions of antiquated institutions and sinister interests, may be stated as the great cause of successful legislation in North America. The majority of the States, in their provincial legisla- tures, have periodically and successfully amended and improved their legal constitutions. The Civil and Penal law of Louisiana has been recently remodelled and revised. Virginia has uniformly devoted a con- stant legislative attention to the reformation and re- publication of her statute laws : between the years 1632 and 1808 twelve entire revisions of her laws have been made. One of the first acts of the State of Maine, after her erection into a separate member of the Union, was to make great improvements in the Statute Book of Massachusetts, and to appoint a " Board of Jurisprudence,''' consisting of eminent law- yers, to superintend the revision, consolidation, and publication of the laws.* The labours of the Legis- lature and Conventions of the State of New York have been already specially recorded. Some more detailed account of the mode of legislation and revision maybe interesting and useful. * See also "The General Laws of Massachusetts, revised and pub- lished by authority of the Legislature." 2 vols. 8vo. Boston. 1823. INTRODUCTION. CXV At the era of the Declaration of Independence, Courts were to be instituted, the civil and criminal administration of justice was to be regulated, forms of process and of judicial proceedings were to be pro- vided, government to be organised, and the whole future course of legislation and judicature to be deter- mined. These vital objects of the social union were urgently demanded under circumstances of peculiar difficulty and urgency. " Great men are thrown up by revolutions ;" individual character, singularly de- veloped and formed by circumstances, has proved that *' action, — the responsible controul and management of great interests, — is the school of great minds." The first revision and collection of the laws of the State of New York was published in 1789, by Samuel Jones and Richard Varrick, containing, in two volumes, the laws passed from the adoption of the Constitution in 1777, and an Appendix of certain colonial laws. No other general revision by direction of the legisla- ture took place until 1801, when Mr. Kent and Mr. RadclifF, then Judges of the Supreme Court, were appointed " to prepare for the press, and to cause to be printed in as many volumes and under such heads, or divisions, as they shall think proper, all the acts and parts of acts of the legislature of this State iioiu in force.'' This labour was accomplished in two volumes, published in the following year, and commonly known in the Reports as the Revised Laws of New York. They took effect from the 1st of October, 1801, from which time all acts and parts of acts, coming within the range and operation of the revised acts, were re- pealed. In 1813, a similar authority to revise and i 2 CXVl INTRODUCTION. arrange the laws was conferred on Mr. Van Ness and Mr. Woodworth ; the result of their official revision, exhibiting the actual state of the statute law of New York at that date, appeared in two volumes in the same year. This edition is commonly known as the New Revised Laws; it contains references to all the preceding editions of colonial and state laws, to the English and British Acts of Parliament, in pari ma- teria, and also to the English and American Reporters upon points of construction. In both of the revised editions all the provisions then in force relating to the same subject are consolidated into distinct acts, but with very little scientific arrangement or classification of the matter. The labours of these former revisers, however, greatly facilitated the revision which was subsequently made of the whole body of the statute law.* The immediate consequences of the Convention as- sembled in 1821, for the purpose of amending the con- stitution of the State of New York, were many con- siderable changes in the "Judiciary department," and various measures of legal reform. An act of the legislature, passed on the 27th of November, 1824, appointing three Commissioners to prepare a revised edition of the general laws, with such amendments as might be conformable to the new constitutional requi- sitions. By an additional act, passed on the 21st of April, 1826, the powers of these Commissioners were much enlarged — they were authorised to consolidate all acts, and parts of acts, relating to similar subjects ; * North American Review, No. LIV. (1827,) Art. " Revision of llie Laws of New York." INTRODUCTIOX. CXVll to distribute the revised and consolidated acts metho- dically, under proper titles and divisions ; to omit what had been repealed, or had expired, or was repugnant to the constitution ; to suggest the best mode of reconciling apparent contradictions, and supplying defects, and amending what needed amendment ; to designate what ought to be repealed as mischievous or useless, and recommend the passing of such new acts as might either be advantageous in themselves, or necessary to the system ; and finally to complete the revision, in all other respects, in such manner as they might think expedient, in order to render the laws more plain and easy to be understood ; and they were required also to lay portions of the revised and newly arranged acts before the Assembly, from time to time, to be examined ; and if approved, to be made laws.* This honourable and responsible power was con- fided, in the first instance, to the able hands of Mr. Root, Mr. Butler, and the then Ex-chancellor Kent ; the latter of whom, though by the law of the State superannuated as a Judge, was nevertheless by the same law appointed a Commissioner of revision ! Mr. Kent declined the trust, and Mr. Duer was appointed in his room. Mr. Root afterwards resigned his place at the board, and it was supplied by Mr. Wheaton, the eminent reporter of the Supreme Court of the United * Report from the Commissioners appointed to Revise the Statute Law of the State of New York, prepared in obedience to a Resohition of the Honourable the Assembly, communicated March 15, [826, pp. 112, Albany. CXVlll INTRODUCTION. States.* The Commissioners, in obedience to resolu- tions of the Assembly, periodically reported their progress. The invaluable and practical results of this Com- mission are contained in "The Revised Statutes of the State of New York," printed and published under the direction of the Revisers, in three volumes, t por- tions of which, relating to the Courts of Chancery and the Law of Real Property, are reprinted in these pages. The preface to the official publication briefly details the general principles of the revision and new arrangement. The public statutes of the State, in force at the time of the revision, constitute the basis of the work, and are generally incorporated in it, although their original form has seldom been preserved. For the purpose of simplifying the language, supplying omissions, and remedying other defects, and particu- larly for presenting them in a systematic arrangement, (the great object of the legislature,) the long and complicated sections are broken up ; those provisions which related to any particular topic are separated from miscellaneous subjects, with which they had been confused, and every section was re-composed. The former statutes, which had been expressly or impliedly abrogated by the legislature, were wholly omitted. Those which were retained and consolidated in the work were materially modified. Their details were perfected ; they were made conformable in express terms to the construction given to them by the deci- * North American Review, No, LIV. p. 195. t Albany, 1829. INTUODUCTION. CXIX sions of the courts ; and in many cases new provisions were introduced, essentially changing their principles. In numerous instances the rules of the common law were reduced to a written text, and inserted in their proper places, in connexion with the statutory provi- sions on the subject to which they related ; while in other instances, those rules were enlarged, modified, or varied, the more fully to assimilate them to the nature of the government and the habits and exigen- cies of the people. The references to the former laws, and the copious general index, referring to every sub- ject treated of in the articles, titles, and chapters, are excellently constructed. The whole of this revision, and its legislative authentication, were accomplished in four years. The draughts of the Revised Statutes were prepared by the Revisers, but in the course of the enactments many alterations were made. Some of these were proposed by the joint Committees to whom the several chapters were referred, and others were suggested by individual members of the legislature, who brought to the task the various and practical knowledge so es- sential to the perfection of a work of this nature.* Sufficient has been now detailed, to show the value of the experimental facts to be obtained from the United States in aid of the amendment of the law of England. The legislature of the State of New York has thus aftbrded one of many examples throughout the Union of bold and successful revision of the law. Technical jurists, across the Atlantic, blindly devoted * Revised Statutes; Preface, by the Revisers. CXX INTRODUCTION. to the superstitions of the profession, and idolizing the " venerable fabric" of ancient institutions, in vain raised their sepulchral voices against the march of time. Inquiry is not checked, reform is not impeded, by those who have a direct interest in the abuses of justice. No popular and accomplished law-writer has drawn a veil over the defects of their judicial system, and no " ready made" fallacy is the invariable reply to propositions of national improvement — " quod nolunt leges Anglice mutari, qua. hucusque iisitatce sunt et appi^o- batce. Such is the Republican jyrecedent of this " outside of the ivorld.'" If the Great Seal of England, and the highest judicial office of the Empire, may be securely entrusted to an American Citizen, we may advanta- geously adopt the improvements of the United States in the science of Jurisprudence. Pride and preju- dice, political antipathies to '* forms of government," will no longer deprive Europe of the experience and examples of foreign nations. The patriarchs of old rejoiced in the multiplication of their offspring. Great Britain, planting seeds of civilization in all parts of the habitable globe, now blossomed and ripened into fruit, may gather her own harvest. England and America are "bone of bone, and flesh of flesh." British blood and intellect were the germ of transatlantic prosperity ; the freedom of America flowed from the fountain of English liberty, the Representation of the People. Civitas mcredibile memoratu est, adeptd Uber^tate, quantum, hrevi cr ever it. RULES AND ORDERS OF THE COURT OF CHANCERY OF THE STATE OF NEW YORK. JANUARY 1, 1830. RULE I. The stated terms for hearing causes before the chancellor stated terms of shall be on the fourth Mondays of January, and August, *^^''^"*^'^""'*' at the capitol in the city of Albany, and on the fourth Mondays of May and October, at the city hall, in the city of New York. The several vice chancellors shall fix the Of the vice stated terms for hearing causes before them, in conformity *^ '^'"^^ "'^*' to the provisions of the first chapter of the third part of the revised statutes. RULE IL Whenever the stated terms are fixed, and as often as The register to they shall be altered or a special term be appointed by a °'^^ notice. vice chancellor, it shall be the duty of the clerk with whom the order is entered forthwith to transmit a copy thereof to the register, who shall cause it to be published in the state paper. And the register shall keep in his And keep a list office a statement of the times and places of holding the "^'*^""s- B Rlotlon days of chancellor. Of tlie vice cliaiicellors. Ill case of ab- sence motions to stand over. Motion days in tenii. RULES AND ORDERS OF several stated terms of the vice chancellors; which shall he corrected by him as often as he receives notice of the alteration of any of the said terms. RULE III. The first and third Tuesdays of every month, during the vacations, are assigned for hearing motions and peti- tions, before the chancellor, at the capitol in the city of Albany, and the second and fourth Tuesdays ai'e assigned for hearing motions and petitions before the vice chan- cellor of the third circuit at the same place, before the vice chancellor of the first circuit, at the city hall of the city of New York, and before the vice chancellors of the other circuits, at their places of residence respectively, or at such other places as they shall appoint for that pur- pose. And if there is not sufficient time to finish the business noticed for any regular motion day, it may be continued from day to day until it is completed; or may be adjourned over to some subsequent day. RULE IV. When regular notice of an application has been given for any motion day, if the chancellor or vice chancellor is unable to attend on the day appointed, the case shall stand over of course until the next regular motion day, when it may be brought on without further notice. But if a stated or special term of the court intervenes, the case shall be considered as standing over until the first day in term. And no ex parte motion or petition shall be heard except on a regular motion day, or at the term, unless in a case of emergency, and by special permission. RULE V. Motions and petitions shall have a preference over ca- lendar causes on the first day of the term, and on Monday of every week thereafter during the term, but on no other day, without special order. Among contested motions THE NEW YORK CHANCERY. 3 and petitions those will have the preference where tlie applicant has not had an opportunity to make the appli- cation on any of the regular motion days in the preceding vacation. And in all cases the motion shall be made, or the petition be presented, on the day for which it is noticed, if the party has an opportunity to be heard on that day, unless the court shall otherwise direct. RULE VI. The register, assistant register, and clerk, shall keep in Registers and their respective offices such recjisters and books as may be ^\f''^^ ^° ^^^^ I • 1 n • 1 •'all necessary necessary to enter the titles of causes, with memorandums books. of the proceedings in such causes ; to enter the minutes of the court, docket decrees, enter common orders, special orders and decrees, and the receipt, investment, payment, and expenditure of monies paid into court; all of which books and registers shall be well bound, and appropriately lettered and marked to designate the uses for which they are intended. RULE VIL It shall be the duty of the register and assistant re- Register and as- ijister to enter the proceedings in causes pending before sistant register ® '■ ° . . to keep separate the chancellor in books separate and distinct from those books tor vice in which proceedings before the vice chancellors are ^ ''^'"^*^ "'^* entered and kept; and also to keep the pleadings and other papers in such causes separate and distinct. And to enable them to keep such pleadings and papers sepa- rate and distinct, the solicitors or other persons filing the same shall designate on the back of such papers whether they are filed " before the chancellor" or " before the vice chancellor." RULE VIIL When the bill or petition is presented to the chan- Papers where cellor and filed with the register or assistant register, all subsequent pleadings and proceedings while the cause b2 4 RULES AND ORDERS OF remains before the chancellor shall be filed with the re- gister, or assistant register. But if the cause is referred to either of the vice chancellors for his decision, all papers filed therein while the cause remains before him may be filed with the clerk residing in the circuit of such vice chancellor. RULE IX. The masters to It shall be the duty of each master in chancery to pro- keep registers, ^urc and keep in his office a folio register well bound and lettered, which shall be delivered over by him, or his legal representatives, to his successor in office. He shall enter in such register the title of all causes and matters referred to him, and a brief memorandum of the proceed- ings before him on such references. The injunction masters shall also enter in their registers every applica- tion made to them for an injunction, or ne exeat, the time of the application and their decision thereon, whether the same is granted or refused. RULE X. Address of bills All bills and petitions shall be addressed " To the and petitions. Chancellor of the State of New York," without the addi- tion of his name, or any other title, or designation. And the caption of orders and decrees shall be in the follow- Caption ofor- ing form : "At a Court of Chancery, held for the State '^'"''- of New York, at the City of Albany, [or the Town of Cooperstown,] on the first day of January, one thousand eight hundred and thirty — Present: Reuben H. Wal- worth, Chancellor, [or Samuel Nelson, V ice Chancellor of the Sixth Circuit."] RULE XL No person to ^^ person shall be permitted to practise as a solicitor practise witiiout or counscUor in chancery, either before the chancellor, or license. • i ,, • • i i a vice chancellor, master, or exammer without a regular admission and license by the chancellor. And to obtain THE NEW YORK CHANCERY. 5 such admission and license, the person applying must be examined before the chancellor, or a vice chancellor, or before such other officer of the court as the chancellor may direct, on a special order for such examination pre- viously obtained. RULE XII. To entitle the applicant to an order for examination as whoareentiticd a counsellor, he must be a counsellor of the supreme '« examination . ^ as counsellors. court, or have practised three years as an attorney of that court, or as a solicitor in chancery. And to authorize As solicitors. the entry of an order for examination as a solicitor, the applicant must be an attorney of the supreme court, or have served a regular clerkship of seven years with a vice chancellor, or a practising solicitor of this court, after filing a certificate of the commencement of such clerkship. But if he has regularly pursued classical studies for four years, or any shorter period, after the age of fourteen, it may be allowed in lieu of an equal time of clerkship. The extent of such allowance must, at the commencement of the clerkship, be ascertained and settled by the chan- cellor, or a vice chancellor, by an order entered in the minutes of the court. RULE XIII. Every solicitor shall have an agent in each city or j<^very solicitor town, where there is a register's or clerk's office, except '« have agents. in the city or town where such solicitor keeps his office. The register, assistant register, clerks, and practising solicitors, or any other persons specially authorized by the chancellor, may be such agents ; but the agent must have an office, or a regular and known place of business, within two miles of the register's, assistant register's, or clerk's office, in the city or town for which he is ap- pointed agent. The appointment of an agent shall be in How appointed, writing, signed by the solicitor, and specifying his place of residence. It shall be filed with the register, assistant 6 IIULES AND ORDERS OF register or clerk, at the place for which the appointment is made ; who shall keep in his office a list of such agents, with the names and residence of the solicitors appointing them. RULE XIV. When sei vice When the Solicitors for adverse parties do not reside ™ ent^ "" "^ ^" *^^ same county, or within forty miles of each other, service of papers may be made on an agent. If the suit or proceeding is before a vice chancellor, the service shall be on the agent residing in the circuit where the same is pending; but if before the chancellor, the service may be on the agent residing either at Albany, New York, or If no agent, no- Utica. If the Solicitor does not reside at the place where tices may be at- . . i ■■ i ^ .1, • i, fixed in office, scrvicc IS made, and has no agent there, service may be made by affixing the notice or paper in some conspicuous place in the office of the register, assistant register, or clerk at such place. RULE XV. Double time Where the service is on an agent, or by affixing in the IVr.L!^""^'^ '* office for want of an agent, it must be double the term of service which would be requisite if the service was on the solicitor in person. And if the solicitor resides more than one hundred miles from the agent or office where service is made, the time of such service shall in no case be less than sixteen days. RULE XVL Notices may be Where a party, other than an officer of the court, pro- affixed in office , 1 p i • .1 • c wiiere a pariv sccutcs or deieuds ui pcrson, the service or papers may prosecutes in )jg q,^ sucli party personally, or at his residence or place of business if he is absent, or by affixing them in the office of the register, assistant register, or clerk. And no service of notices or j)apers in the ordinary proceedings in a cause, shall be necessary to be made on a defendant who has not appeared therein. person. THE NEW YORK CHANCERY. RULE XVII. No bill shall be filed in a case where the defendant is Security to be entitled to security for costs, as prescribed in the tenth residents before chapter of the third part of the revised statutes, until such '^'" filed. security is tiled, unless the suit is prosecuted by a solicitor; in which case such solicitor shall be liable for costs to the amount of one hundred dollars. RULE XVIIL In bills, answers, and petitions, which are to be verified Manner of vcri- by the oath of a party, the several matters stated, charged, g'^verl &c!' " averred, admitted, or denied, shall be stated positively, or upon information or behef only, according to the flict. The oath administered to the party shall be, in substance, that he has read the bill, answer, or petition, or has heard it read, and knows the contents thereof; and that the same is true of his own knowledge, except as to the mat- ters which are therein stated to be on his information or belief, and as to those matters he believes it to be true. And the substance of the oath administered shall be stated in the jurat. RULE XIX. Process shall be in the same form substantially, expres- Form of process, sive of the intent, as that heretofore used in this court. It ''"^ ''"^^ **^*^'^'' shall be tested in the name of the chancellor, on the day it tumable. is issued, and be made returnable, according to the fact, either before the chancellor, or before the vice chancellor having jurisdiction, in the court of chancery, on the return day, wheresoever the said court shall then be; and unless otherwise directed, it may be made returnable on any day, except Sunday, either in vacation or in term. If the chan- cellor is a party, or interested in the suit, process therein shall be tested in the name of the vice chancellor before whom the suit is pending. If process is not executed be- RULES AND ORDERS OF fore the return day, new process may be taken out of course, as often as necessary ; or an alias or pluries may be issued. Form of sub- poena. Subpoena, bow served. Appearance, when and wliere to be entered. RULE XX. Process of subpoena to appear and answer shall be in the following form : " The People of the State of New York, to A. B. greeting : We command you that you per- sonally appear before our Chancellor, (or our Vice Chan- cellor of the Third Circuit,) in our Court of Chancery on the first day of February next, wheresoever the said Court shall then be, to answer to a bill of complaint exhibited against you in our said Court by C. D. and to do further and receive what our said Court shall have considered in that behalf; and this you are not to omit under the pe- nalty of two hundred and fifty dollars. Witness, Reuben H. Walworth, Chancellor of our said state, at the city of Albany, the first day of January, in the year of our Lord one thousand eight hundred and thirty. J. Porter, Register, (or Clerk.) B. F. Butler, Sohcitor." RULE XXL The names of all the defendants in a cause shall be in- serted in the subpoena. It may be served by delivering a copy of the writ, subscribed by the complainant or his so- licitor, and inscribed " copy," and showing the original, under the seal of the court, at the time of such delivery to the defendant, or in case of his absence, to his wife, or servant, or some member of his family, at his dwelling- house or place of abode. The service may be on or be- fore the day of appearance mentioned in the subpoena. RULE XXIL If the suit is before the chancellor, the defendant's ap- pearance shall be entered with the register, or assistant register ; if before a vice chancellor, it shall be entered THE NEW YORK CHANCERY. » with the clerk residing in the circuit where the suit is pending. If the defendant Uves within fifty miles of the office where his appearance is to be entered, he shall enter the same within ten days, and in other cases within twenty days after the appearance day mentioned in the writ. And Attaciimcnt for .„, ., ,1,1 I'i. not appcurint'. if the appearance is not so entered, the complainant, on ° filing proof of service of the subpoena, may have an order of course that an attachment issue. RULE XXIII. When the subpoena is served on the defendant in per- Order for de- son, if he does not appear within the time limited by the ^^^"^^'"''^ '" ^^' preceding rule, the complainant, on filing proof of the service, may have an order of course that he appear within ten days, or that the bill be taken as confessed ; and at the end of that time, if no notice of appearance has been received, the complainant, on filing an affidavit of the fact, may have an order to take the bill as confessed. RULE XXIV. If the complainant has received notice of the defend- Order for de- ant's appearance, he may have an order of course that he fondant to an- put in his answer in forty days after service of a copy of the bill and notice of the order, or that the bill be taken as confessed. Where a discovery is necessary, on filing an affidavit thereof, the order may be varied so as to require the defendant to answer in like manner or that an attachment issue; and in either case, if the defendant does not file his answer, and serve a copy thereof, within the time prescribed in such order, or such further time as may be allowed him for that purpose, the complainant, on filing an affidavit showing the defendant's default, may have an order to take the bill as confessed, or that an at- tachment issue, as the original order may be. 10 KULES AND ORDERS OF Proceedings against absent defendaiils. RULE XXV. The order to take the bill as confessed, against an ab- sent or concealed defendant, and for a reference, under the provisions of the fourth article of the second title of the first chapter of the third part of the revised statutes, may be entered of course, on filing the proof of publica- tion or notice, and an affidavit that the defendant has not appeared. But the order requiring the defendant to appear, and designating the paper in which it shall be published, or a direction to the master to receive the testimony of the complainant as evidence on the refer- ence, can only be obtained by a special application to the court. RULE XXVL Attachments to Attachments for not appearing or not answering, or abironVre"u- Other bailable contempts, shall be made returnable on a lar motion day, regular motion day, or some day in term, unless otherwise terra!"^ '^ Specially ordered by the court. And all the defendants in a suit residing in the same county, liable to attachment for the same or a like contempt, shall be named in one writ. luent RULE xxvn. Defendant to If an attachment for not appearing or not answering is appear at return ggj.yed, and the defendant gives security for his appear- ance at the return day of the attachment, as required by law, if he does not comply with the condition of the bond, the same shall become forfeited, and the complainant may prosecute the bond, and have a special order that the de- fendant's appearance be entered by the proper officer, or that the complainant's bill be taken as confessed, as the case may be ; or he may take out an alias attachment. If the defendant makes default a second time, the com- plainant may have a pluries attachment which shall not be bailable. THE NEW YOKK CHANCERY. 11 RULE XXVIII. If the defendant appears personally, or is brought into A defendant court by the sheriff, on the return of an attachment for '".''""s'" '" "» •' ' atlacliment to not appearing or not answering, he shall enter his appear- enter iiis ap- ance or put in his answer, and pay the costs incurred by anj pL costs. his contempt, instanter, or within such time as the court shall then appoint, or be committed until he complies. Or the complainant may have an order that the bill be taken as confessed, and that the defendant be committed until the costs are paid. RULE XXIX. When the defendant has appeared, he may have an Order tiiat com- order of course that the conplainant deliver a copy of the pl'""ant ddiver ... copy of bill. bill to the defendant or his solicitor in twenty days, or that the suit be dismissed ; and if such copy is not delivered within twenty days after service of notice of such order, or within such further time as may be allowed for that purpose, the defendant, on filing an affidavit of the ser- vice of such notice, and that no copy of the bill has been served, may have a decree dismissing the suit with costs, for want of prosecution. RULE XXX. One of the masters in each circuit shall be designated injunction mas- bv the chancellor as the injunction master for such cir- 'f^stoheap- T • p 1 pointed. cuit. If the suit or proceedmg is before the chancellor, injunctions, an order for an injunction or ne exeat may be entered on ''""' allowed. the certificate of a vice chancellor, or of the injunction master of the first or third circuits, endorsed on the bill or petition. If before a vice chancellor, the order may be entered on the certificate of any of the vice chancellors ; and if the vice chancellor of the circuit where the suit is brought resides more than twenty miles from the clerk's office in such circuit, or is absent from his usual place of residence, the order may be entered on the certificate of the injunction master in such circuit. In the first circuit 12 Masters not to allow iiijuiic- tions ill certain cases. The injunction masters may re- quire security. The injunction master may di- lect order to sliow cause. RULES AND ORDERS OF it may also be entered on the certificate of the injunction master, whether the vice chancellor be present or absent. But no such ex parte order shall be granted either on a supplemental bill, or otherwise, after the defendant has appeared in the original suit. RULE XXXI. No injunction to suspend the general and ordinary busi- ness of any bank, or other raonied corporation ; or to com- pel a defendant to refrain from doing any other act where the injunction must necessarily produce great and irrepa- rable injury to the defendant if the claim of the complain- ant is not sustained, shall be allowed, except on a direct application to the chancellor, or to the vice chancellor having jurisdiction of the case. And in any case where no special provision is made by law as to security, the officer allowing an injunction may, in his discretion, require of the complainant or his agent, a bond with security, or his own bond only, to the party enjoined, in such sum as may be deemed reasonable, conditioned to pay such party all damages he may sustain by reason of the injunction. RULE xxxn. If the vice chancellor or master to whom application for an injunction is made, thinks the defendants or any of them should be heard on the question before the injunc- tion is granted, he may refuse to allow the same ex parte, and instead thereof may direct an order to be entered, re- quiring the defendants to show cause before the court on a regular motion day, or some day in term, why the in- junction should not be granted. He may also direct on which of the defendants the bill and order to show cause shall be served, and the time and manner of such service. RULE XXXIII. Complainant to When an injunction bill is filed to stay proceeedings in state situation j^ ^ ^dsy the Complainant shall state in his bill the sl- ot suit at Jaw. ' '■ tuation of such suit, and whether an issue is joined, or a THE NEW YORK CHANCERY. 13 verdict or judgment obtained therein. If no issue has The defendant been joined or judgment obtained in the suit at law, and J"j^^|,fp°t ai law the bill is not a mere bill of discovei'y, or to aid the de- i" certain cases. fence in the suit at law, the vice chancellor or master on whose certificate the injunction is granted, shall direct a provision to be inserted in the injunction, that the de- fendant be at liberty to proceed to judgment at law with- out prejudice to the equitable rights of the complainant, notwithstanding the injunction. But the complainant in such cases may, on application to the court and sufficient cause shown, obtain an absolute injunction to stay all pro- ceedings in the suit at law, or all proceedings after issue joined, in the discretion of the court. RULE XXXIV. If an injunction or ne exeat is granted on the certificate The defendant of a vice chancellor, or master, or on an ex parte applica- 'V''^ i""^^ •" ' ' r 1 r dissolve injunc- tion to the court before answer, the defendant on due tkm on bill only. notice may move the court to dissolve the injunction, or discharge the ne exeat, on the matter of the bill only; and if he succeeds in the motion, the court in its discre- tion may allow him the costs of the application. RULE XXXV. If an injunction or ne exeat has been issued, the com- injunction bills plainant shall serve a copy of the bill on the defendant's solicitor within six days after a written demand of such copy ; and if the copy of the bill is not delivered within that time, the defendant may apply to dissolve the injunc- tion, or discharge the ne exeat, with costs of the applica- tion. RULE XXXVI. If a prehminary injunction or ne exeat is prayed for in The defendant the bill, the defendant may put in his answer on oath, for "'-'^ ''".^"7-,i ' •'A 5 ""^ injunction bill the purpose of moving thereon for a dissolution of the in- o" oath, not- junction or discharge of the ne exeat, although an answer Iv'aiv'r." '"^ to be served in six days. 14 RULES AND ORDERS OF on oath is not required by law, or is waived by the com- plainant in his bill. But such answer shall have no greater or other force as evidence than the bill. If answer on oath is waived, injunction not dissolved of course on de- fendant's an- swer. RULE XXXVII. An injunction or ne exeat shall not be dissolved or dis- charged, although the whole equity of the bill is denied by the answer, unless such answer is duly verified by oath. And where the complainant waives an answer on oath, if, in addition to the usual oath of the party, the material facts in the bill on which the injunction and ne exeat rests, are duly verified by the affidavit of a credible and disinterested witness, annexed to and filed with the bill, it shall not be a matter of course to dissolve the in- junction, or discharge the ne exeat on the oath of the de- fendant; but the court in its discretion may retain it till the hearing. The exceptions must be filed in ten days, to prevent disso- luiio 1 of in- junction. RULE XXXVIII. Exceptions to an answer shall not prevent the dissolu- tion of an injunction, or the discharge of ane exeat, unless they are filed and served within ten days after the answer is put in. If exceptions are taken, the defendant may give a written consent that they be forthwith referred; and unless the complainant procures the master's report in favour of the exceptions within ten days after receiving such consent, the exceptions shall not prevent the disso- lution of the injunction, or the discharge of the ne exeat. The same practice shall be observed in referring a second or thii'd answer on the old exceptions. Motion not to be made till exceptions are disposed of. RULE XXXIX. If exceptions are filed within the time prescribed by the last rule, it shall not be in order to move for a dissolution of the injunction or ne exeat on bill and answer, until the time for procuring the master's report has expired, unless THE NEW YORK CHANCERY. 15 a report against the validity of the exceptions is sooner obtained. RULE XL. If the complainant waives the necessity of the answer if tiie answer l)einff made on the oath of the defendant, it must be dis- °"."^''"^ o ^ waived, coni- tinctly stated in the bill. When the answer is put in piainaiu not to without oath, it may be excepted to for scandal or imper- sufficiency.'"" tinence; but the complainant shall not be at liberty to except thereto for insufficiency. But all material allega- tions in the bill, which are not answered and admitted, may be proved by him in the same manner as if they were distinctly put in issue by the answer; and if no replication is filed, the matters of defence set up in the defendant's answer will, on the hearing, be considered as admitted by the complainant, although the answer is not on oath. RULE XLI. The answer of the defendant may be sworn to before Answers out of any officer authorized to take affidavits to be read in this verified.' court, or before a commissioner specially authorized by the court to take such answer. If the defendant resides out of this state, the answer may be sworn to and authenticated in the manner prescribed by law for taking affidavits out of this state, to be used in judicial proceedings here. RULE XLH. When a cross bill is filed, the complainants therein, Tiie defendant who are defendants in the original bill, shall put in and '""^^ ''?l"y o '1 original bill, perfect their answer to the original bill before they shall before he is en- be entitled to an order to compel an answer to the cross to answer cross bill, unless the court shall otherwise specially direct. ^'"• RULE XLIII. If the bill has not been sworn to, the complainant may Amendments amend it at any time before plea, answer, or demurrer put to bill, when . , TT 1 allowed. in, of course, and without costs. He may also amend, of 16 RULES AND ORDERS OF course, after answer, at any time before he replies thereto, until the time for replying expires, and without costs if a new or further answer is not thereby rendered necessary ; but if such amendment requires a new or a further an- swer, then it shall be on payment of costs to be taxed. But no amendment to a bill which has been sworn to shall be allowed, except by special leave of the court granted after notice to the opposite party. No amend- ment shall be considered as made until service thereof, if service of the pleading amended was necessary. Anicndments after demurrer. RULE XLIV. If the defendant demurs to the bill for want of parties, or for any other defect which does not go to the equity of the whole bill, the complainant may amend of course on payment of costs, at any time before the demurrer is noticed for argument, or within ten days after receiving a copy of the demurrer ; and in all cases of demurrer for causes not within the former part of this rule, the com- plainant's right to amend, and the terms on which amend- ments may be permitted, shall be in the discretion of the court ; but no amendment of course under this rule shall be allowed, where the bill has been sworn to by the party. Aniendmenls allowed after insufficient an- swer. RULE XLV. Where the bill has not been sworn to, if the answer is excepted to as insufficient, and the defendant submits to answer further, or the answer on reference is found insuf- ficient, the complainant may amend his bill of course, and without costs, at any time within ten days after the de- fendant submits to answer any of the exceptions, or after confirmation of the master's report, if the defendant does not submit to answer any of the exceptions ; and the de- fendant shall answer the amendments and exceptions toge- THE NEW YORK CHANCERY. 17 tlier. If a plea or demurrer to the bill be overruled, the Complainant complainant may within ten days thereafter amend his bill |e|'/(iay's*^"'fte'" of course, and without costs. And in all cases where the p'ea or demur- complainant is permitted to amend his bill, if the answer has not been put in, or a further answer is necessary, the defendant shall have the same time to answer after such amendment as he originally had. RULE XLVI. Orders of course, to amend the plaintiff's bill, and all Common or- other orders to which a party, by the rules and practice tifined!^^ of the court, is entitled of course, without showing special cause, shall be denominated common orders, and orders made on special application to the court shall be denominated special orders. All common orders and orders by consent of the parties, such consent being in writing, and signed by such parties, or their soli- citors or counsel, and filed, may be entei'ed with the re- gister, assistant register or proper clerk, in the common rule book kept in his office, at the instance of the party or his solicitor, at the peril of the party taking such order ; and the day on which the order is made shall be noted in the entry thereof. All orders made by the special direc- tions of the court shall be entered in the record of the minutes thereof, as heretofore has been usual. RULE XLVIL When the defendant pleads or demurs to a bill, the Eithei- party 1 • 1 11 1 1 nt 1- • 1 • "''0' "otice plea complamant shall have ten days to hie a replication to Ins or demurrer for plea, or amend his bill, and if he does not take issue on ^'^gumct- the plea, or amend his bill within that time, either party may notice the plea or demurrer for argument, at the next or any subsequent term. If the plea is allowed, the com- plainant may, within ten days after notice of such allow, ance, take issue on the plea upon payment of the costs of the hearing thereon. 18 RULES AND ORDERS OF RULE XLVIII. The defendant If the defendant pleads a former decree, another suit pieadnig matter pg^dinff for the Same cause, or other matter of record in of record, must ^ => refer it to a this court, he shall, at the time of filing such plea, obtam "'^*^^'^' an order of reference to a master to examine and report whether the plea be true, and he shall procure the mas- ter's report within twenty days thereafter. If he neglects to procure the master's report withhi that time, or the re- port is against the verity of such plea, the same shall be considered as overruled, and the complainant shall be at liberty to proceed as if no such plea had been filed. But if the master's report establishes the truth of the plea, either party may notice the same for argument, at any time after the report is confirmed. RULE XLIX. If defendant If a plea or dcmurrcr is overruled as frivolous, or a puts ni false or ^\q^ upon issuc taken thereon, is found to be untrue, the frivolous jilca or f '-"J "1 ' ' demurrer, i)iii complainant may have an order to take the bill as con- asYonfessed" fcssed, or he may compel the defendant to answer the bill After plea or ^^ ^^^^ election. In all other cases, if the plea or demurrer demurrer over- bg overruled, no Other plea or demurrer shall be received ; ant to answer and the defendant shall answer the bill, and pay the costs in 20 days. ^f ^\^q hearing, within twenty days after notice of the order overruling the plea or demurrer, or such other time as may be prescribed by the court in such order. If he fails to put in his answer and pay the costs within the time prescribed, the bill, or so much thereof as was covered by the plea or demurrer, may be taken as con- fessed, and the matter thereof decreed accordingly ; or the complainant may have an attachment to compel a further answer. THE NEW YORK CHANCERY. 19 RULE L. The complainant shall have twenty clays after the de- Exceptions to fendant's answer has been put in, to except to the same ; ^^ |^'®'^ '" ^^ . at the expiration of which time, if no exceptions are taken, and no order for further time has been granted, the an- swer shall be deemed sufficient. And if the complainant Tiie defendant 1 t^ • m • 1 -t p 1 "^^y submit to excepts to the answer tor msumciency, the deiendant may, answer any of within eight days thereafter, give a written notice of his ''*'-' exceptions, submission to answer any or all of such exceptions ; and he shall be liable for the costs of the exceptions which he submits to answer. RULE LL If any exceptions are not submitted to within the time Complainant to prescribed, the complainant, at any time within ten days tionsiniodays. thereafter, may have an order of course to refer the ex- ceptions not submitted to, or such of them as he may think proper. Every exception not submitted to, and which is not referred within the time specified, shall be considered as abandoned ; and the answer as to such exceptions shall be deemed sufficient. RULE LIL If a complainant refers a second or third answer for in- On reference of sufficiency on the old exceptions, the particular exceptions ^.^^"^ the e"'- to which he requires a further answer, shall be stated in ceptions to be the order of reference. And if he does not refer such second or third answer for insufficiency within ten days after the same is put in, such answer shall be deemed sufficient. RULE LIII. Exceptions to any pleading, or other matter pending Exceptions for before the court, for scandal or impertinence, shall be pe^rUnence.'"'" taken in the same manner as exceptions to an answer for c2 20 RULES AND ORDERS OF insufficiency; and may be submitted to in like manner, and within the same time. If they are not submitted to, the party excepting shall refer them in the same manner, or they shall be considered as abandoned; and if such exceptions are to an answer, the answer thenceforth shall be deemed sufficient. RULE LIV. Masier's report Whenever an answer or other pleading or proceeding on exceptions • n i r • m • ii • ,• .1 to be obtained ^^ relerreu tor uisurhciency, scandal, or nnpertmence, the in 20 da_js. exceptions shall be considered as abandoned, if the party obtaining the reference shall not procure and file the master's report within twenty days from the date of the order of reference, unless the master shall, within that time, certify that a further time, to be inserted in his cer- tificate, is necessary to enable him to make a satisfactory report; in which case the exceptions shall be considered as abandoned, if the report be not obtained within the further time so stated. And if the exceptions were to an answer, it shall thenceforth be deemed sufficient. RULE LV. Master to fix If, on a reference of exceptions to an answer, or the re- time for putting /, f, 1 111 • ,1 in further an- tcrence 01 a second answer on the old exceptions, the swer. master shall find the answer insufficient, he shall fix the time for putting in a further answer, and specify the same in his report. RULE LVI. Report to be- The master's report on exceptions shall be delivered to Ij^'g^j^ 3" " ^ ^^^^ party obtaining the reference, who shall forthwith file the same in the proper office ; and if he does not except to the report within eight days thereafter, it shall become absolute as against him. But the adverse party shall have eight days after service of notice of filing the report to except to the same; and if he does not except within THE NEW YORK CHANCERY. 21 that time, it shall become absolute as against him without any order for that purpose. If none of the exceptions to an answer are submitted to by the defendant, or allowed by the master, the answer shall be deemed sufficient from the time such report becomes absolute as against the complainant. RULE LVII. If the master reports that any thing contained in any Order to ex- pleading or proceeding is scandalous or impertinent, the jleiu^maucr! party excepting, on filing proof that the report has be- come absolute against the adverse party, may have an order of course that the proper officer of the court ex- punge the scandalous or impertinent matter ; and that the adverse party pay the costs of the exceptions and the pro- ceedings thereon, within twenty days after service of a copy of such order and of the taxed bill on him or his solicitor, or that an attachment issue against him. Where the adverse party submits to the exceptions, the same order may be obtained on filing the notice of submission. RULE LVIII. On exceptions to an answer for insufficiency, if all the Order for fur- exceptions are submitted to by the defendant, or a part are submitted to, and the rest are abandoned, or are dis- allowed on reference, the complainant may have an order of course that the defendant put in a further answer within twenty days after notice of the order, and pay the costs of the exceptions, or that an attachment issue against the defendant, or that the bill be taken as confessed, at the election of the complainant. And the subpoena for a Subpccna for better answer and for costs is abolished. better answer abolished. RULE LIX. If, on a reference of exceptions, or the reference of a Order for fur- second answer upon the old exceptions, the answer is aft'e'^r^'reforence. 22 RULES AND ORDERS OF found insufficient, and the master's report has become ab- sohite against the defendant, the complainant may have a similar order of course to put in a further answer, and pay the costs within the time specified in the master's re- port. RULE LX. Costs to be In the cases specified in the two preceding rules the before ex°pS' defendant shall be entitled to a copy of the taxed bill of tion of time to costs at least ten days before the time for putting in the further answer expires, or he may put in such answer without paying the costs. But the complainant may after- wards proceed by attachment to compel payment thereof, if they are not paid within twenty days after service of a copy of the taxed bill on the defendant or his solicitor. And if the complainant has amended his bill, so as to re- quire an answer to the amendments as well as to the ex- ceptions, the defendant shall have the same time to answer the amendments and exceptions together as he originally had to answer the bill ; and the order to answer shall be varied accordingly. Order to take bill as confessed for neglect to answer further. RULE LXL If the defendant does not put in a further answer and pay the costs within the time prescribed, or within such further time as may be allowed by the court for that pur- pose, the complainant, on filing an affidavit showing such default, may have an order of course to take the bill as confessed, or for an attachment against the defendant, as the original order may be. Exceptions to report on ex- ceptions to be lieard as spe- cial motion. RULE LXIL The argument of exceptions to a master's report on exceptions, shall be heard as a special motion. Either party may notice the same for hearing, and the party ex- cepting to the report shall furnish the necessary papers for the court; and if he neglect to do so, the report may THE NEW YORK CHANCERY. 23 be confirmed. But if both parties have excepted to the report, each shall furnish copies of his own exceptions, and the party obtaining the reference shall furnish such other papers as may be necessary. RULE LXIII. When exceptions are taken to an answer for insuffi- Costs of refer- , T T r J 1 ence not to be ciency, or to any plead mg or proceedmg tor scandal or aii„„.eci uuitss impertinence, the party excepting shall only be entitled to "i^j"' P'*^' of 1 . 1 . 1 1-1 1 exceplions are the costs oi the exceptions which are submitted to, and sustained. those which are finally allowed, after reference, to a mas- ter; and no part of the costs of a reference shall be al- lowed to the party obtaining such reference, unless the major part of the exceptions referred are finally allowed; but if any of the exceptions referred are sustained, the ad- verse party shall not be entitled to costs on the reference. The costs on exceptions shall not be taxed until all the exceptions are submitted to, abandoned, allowed, or finally disposed of; and then the whole costs to which the ex- ceptant is entitled shall be included in one bill, and the adverse party may offset any costs to which he is entitled. RULE LXIV. If a third answer is reported insufficient on the original If a third an- exceptions, and the master's report has become absolute, f,"sufficien't^the the complainant, on fifing an affidavit of the facts, may defendant may , in o 1 • i_ 1 l^t altaclied. have an order ot course lor an attachment against the de- fendant, and he shall be examined upon interrogatories to the points reported insufficient, and shall stand committed until he shall have answered such interrogatories to the satisfaction of the master, and paid the costs incurred by reason of his default. If the defendant cannot be arrested And ifdefend- , , 1 1 11 1 1 • 1 f 1 ant cannot be on the attachment, and shall not surrender lumselt thereon ariTsted, bill within twenty days after notice to him or his solicitor of "'"3 ^'i '''^en . . . . as confessed. the issuing thereof, or within such further time as may be allowed him by the court, or being arrested on such at- tachment, if he shall neglect or refuse to answer the inter- 2i' RULES AND ORDERS OF rogatories to the satisfaction of the master, the complain- ant, on fihng an affidavit of the facts, may have an order of course to take the bill as confessed; and the defendant may be further punished for the contempt, in the discre- tion of the court. Cause at issue on filing repli- cation. RULE LXV. Every cause shall be deemed at issue on filing a gene- ral replication to the answer; and no special replication shall be filed but by leave of the court, on cause shown. If the complainant does not reply to the defendant's an- swer within ten days after it is deemed to be sufficient, he shall be precluded from replying, and the cause shall stand for hearing on bill and answer; and either party may notice it for hearing as soon as it is in readiness for hearing against the other defendants, if any there are. If coniplainnnt does not use RULE LXVL Where the cause stands for hearina; on bill and answer riti (Jill ence agaiust part of the defendants, if the complainant does not bill may be dis- usc due diligence in proceeding against the other defend- ants, any of those who have perfected their answer may apply to dismiss the bill for want of prosecution; and on such application, further time shall not be allowed to the complainant of course without any excuse shown for the delay. RULE LXVn. Where a cause is at issue by a replication to a plea, or to the defendant's answer, if either party desires an ex- amination of the witnesses in the presence of a vice chan- cellor, he may, at any time within ten days after the replica- tion is put in, give notice of an application for that purpose; but an order for such examination shall not be granted without sufficient cause shown, whether the application be opposed or not. And no such order shall be granted until Order lo exam- ine witnesses in presence of »iee cliancellor. THE NEW YORK CHANCERY. 25 the cause is at issue, or in readiness for hearing, against all of the defendants, except in special cases. RULE LXVIII. If notice of an application to have the witnesses ex- Order to pro- diicc witnesses* amined in the presence of a vice chancellor is not given within the time prescrihed, or the application is denied, either party may have an order of course, to produce wit- nesses within forty days after notice of the order; and at the end of forty days, on filing an affidavit of the service, or of the receipt of such a notice, an order may be entered that the proofs in the cause be closed. RULE LXIX. If a party wishes to examine witnesses residing out of Conimission to , , -in • t^'JiC leslinionv. the state, or more tlian twenty miles trom an exammer, and where no order has been made to examine the wit- nesses in the presence of a vice chancellor, such party may, at any time within twenty days after he has received or served a notice of the rule to produce witnesses, present a petition to the register, assistant register, or either of the clerks, stating the names and residence of the wit- nesses, and of the persons proposed as commissioners, and praying that a commission may be issued to take the examination of such witnesses; and the like notice of the application shall be given to the adverse party, as is re- quired in cases of special motions. If the adverse party does not appear and join in the commission, or object to the persons named as commissioners, a commission shall be issued agreeably to the prayer of the petition. RULE LXX. If the adverse party wishes to join in the commission. Adverse party he must, at the time of presenting the petition, furnish the "o'|,^„ii"sio'" and names and residence of the witnesses on his part, and I'ow. they shall be inserted in the commission. If he is not satisfied with the commissioners named in the petition, he may name commissioners on his part; and the re- 26 RULES AND ORDERS OF gister, assistant register, or clerk to whom the petition is presented, after hearing the allegations of the parties, shall designate a suitable person, or persons, to execute the commission, and issue the same accordingly; but any of the commissioners named in the commission may exe- cute the same, in case the others neglect or refuse to join in the execution thereof, or they are, from any cause, prevented. RULE LXXI. Applications for j^ jj. gj^^H be neccssary to have a commission to take sions. the examination of witnesses in any case not provided for in the preceding rules, or after the expiration of the time therein limited for making an application to the re- gister, assistant register, or clerk, the party may present a petition to the court for that purpose, setting out the facts which entitle him to a special commission ; and the usual notice of the application shall be given to the adverse party. RULE LXXIL Witnesses out Witnesses examined out of the state, if the parties do be e'xaniine.i on not couscut to an Oral examination, shall be examined on interrogatories, •^j-itten dircct and cross interrogatories, to be allowed by a vice chancellor, or master, and annexed to the commis- sion. And no notice of the time and place of executing such commission out of the state shall be necessary ; but the like notice of the time and place of examining wit- nesses in this state shall be given to the adverse party, as is required for the examination of witnesses before an ex- aminer. RULE LXXIIL Order for the Where a party wishes to examine a defendant as a examination of , , i n i . • ^ ^i i • ^ party as a wit- witucss agauist a co-dciendant, or against the complainant, "^'*^- he may, at any time within twenty days after he has re- ceived or served a notice of the rule to produce witnesses, exaiiiiiialion ot witnesses. THE NEW YORK CHANCERY. 27 on filing an affidavit that such defendant is a material wit- ness, and is not interested in the matter to which he is to be examined, have an order of course for the examination of such defendant as a witness, as to any matter in which he is not interested; subject to all just exceptions. And such defendant shall thereupon be examined to such mat- ters in the same manner as other witnesses; but the ad- verse party at the hearing may object to the competency of his testimony. RULE LXXIV. It shall not be necessary to show witnesses prior to ex- Notice of the amination; but notice of the examination, and of the names, places of abode, and additions of the witnesses, shall be given to the adverse party at least ten days be- fore the examination, if his solicitor resides more than fifty miles from the place of examination, and in all other cases at least six days. RULE LXXV. Documentary evidence which is not made an exhibit Dociimcntuiy before the commissioner or examiner, or set out or dis- tinctly referred to in the pleadings, shall not be read on the hearing, unless notice of the intention to use it at the hearing was given to the adverse party at least ten days before the expiration of the time allowed to produce proofs. And no deed or other writing shall be proved at the hearing, except on an order previously obtained, after due notice to the adverse party. RULE LXXVL Process of subpoena to compel the attendance of wit- Subpoena to nesses before a vice chancellor, master, examiner, or com- anceofwi?" missioner shall issue of course, and the time and place of »csscs. attendance shall be specified in the writ; and such wit- nesses may be punished for contempt if they fail to attend and submit to an examination. But no witness shall be 28 RULES AND ORDERS OF compelled to appear before an examiner or commissioner more than forty miles from his place of residence, unless by special order of the court. RULE LXXVII. Vice cliancel- If the time and place for taking testimony in the pre- thi7e'fb7taking scnce of the vicc chancellor is not designated in the order testimony be- requiring it to be so taken, the party obtaining the order shall within ten days thereafter apply to the vice chancellor to assign a time and place for that purpose, and shall give to the adverse party at least fifteen days notice of the time and place so assigned. If he shall neg- lect to apply and give such notice within the time pi'e- scribed, the adverse party may consider the order as abandoned, and obtain a rule of course to produce wit- nesses in the usual form; or he may apply to the vice chancellor and give notice of the time and place assigned And may post- ]jy j^jj^^ jf g^j^y material witness cannot be procured at pone exaiiana- "^ , •' , • i i • i tion on terms, the tmie and place appomted, or assigned, the vice chan- cellor may postpone the taking of the testimony till some future day, on payment of costs or otherwise in his dis- cretion, and upon such terms and conditions as he may think proper. RULE LXXVIIL Testimony, iiow Where witucsscs are examined in the presence of a vice chancellor, the testimony shall be taken down in the mode which is usually adopted on trials at nisi prius; and he may decide all questions which arise as to the compe- tency of witnesses and the relevancy of testimony, or may, in his discretion, reserve any such questions until the hearing. An order for the examination of a defendant as a witness against the complainant or a co-defendant, sub- ject to all just exceptions, may be made by the vice chan- cellor on the usual affidavit; but such order shall not be granted after the examination of other witnesses has com- menced, unless a sufficient excuse is shown for the delay ; taken before vice chancellors, THE NEW YORK CHANCERY. 29 and such notice of the appUcation shall be given to the adverse party as the vice chancellor may deem reasonable. RULE LXXIX. After the testimony on the part of the complainant is T'le bill may be closed, and before the defendant proceeds to examine any want of proof. witnesses on his part, he may move the vice chancellor before whom the testimony is taken, to dismiss the bill for want of proof; and if he is satisfied that the evidence on the part of the complainant, in connection with the ad- missions in the answer, is insufficient to sustain the suit, he may, in his discretion, decree a dismission of the bill, or reserve the question till the hearing. RULE LXXX. The parties shall proceed de die in diem with the ex- Parties to pro- amination of their witnessses before the vice chancellor, j'j';||,tefo'iT"the unless he shall adjourn for his own convenience to a more vice chancellor. distant day; and all documentary evidence, not set forth or distinctly referred to in the pleadings, which either party wishes to use on the hearing, shall be produced be- fore the examination is closed, and marked as exhibits, unless notice of the intention to use the same on the hear- ing is given to the adverse party before the examination commences. RULE LXXXL Within four days after the examination is closed, or Testimony to within such further time as may be allowed bv the vice If ''"'"." "'] ^^ chancellor for that purpose, the solicitor for the party obtaiiiedihe who obtained the order to take the testimony before the vice chancellor shall draw up a statement of the same, or of so much thereof as is material to be engrossed and filed, and shall serve a copy thereof on the solicitor for the ad- verse party, with a notice to appear before the vice chan- cellor to have the testimony settled. Such adverse party shall have the usual notice required on special motions. 30 RULES AND ORDERS OF and may propose amendments in writing to the statement of the testimony. The vice chancellor may correct any errors or omissions in the statement of testimony, whether amendments are proposed or not. After the same is settled by the vice chancellor, it shall be correctly en- grossed by the clerk residing in the circuit of such vice chancellor, and certified by him, and filed in his office. RULE LXXXir. Vice chancellor Instead of taking down the testimony of witnesses ex- betaken down" amined before a vice chancellor in the form prescribed in in form at linie the preceding rules, it may, in the discretion of such vice of exaiiiinalion. ii i i n i • <> i • • chancellor, be taken down at the tune ot the examination, by the clerk, and be signed by the witnesses, in the mode in which testimony is taken before an examiner. RULE LXXXin. Parties to fur- Before the commencement of the examination of any wiinesses before witnesses, tliose examined out of the state or de bene esse anj- are ex- excepted, the parties respectively shall deliver to each amined. i ^^ i p i i ... other, or to the omcer berore whom the examination is commenced, the names of the several witnesses intended to be examined in the cause, with their places of abode and additions. And no other witnesses shall be examined by either party, without special permission of the court, on sufficient cause shown, after due notice to the adverse party, and on such terms and conditions as the court may prescribe. But it shall not be necessary to furnish the names of witnesses who are examined merely as to the general character of other witnesses. RULE LXXXIV. The manner of When testimony is taken before an examiner or com- monv°before niissioner, the direct examination shall be completed and examiner. signed by the witnesses, before his cross-examination is commenced; and such cross-exau»ination shall be com- pleted and signed before he is re-examined by the party THE NEW YORK CHANCERY. 31 calling him ; and previous to every adjournment, the tes- timony, as far as it has been taken, shall be read over to the witness, and be signed by him. He may be permitted Depositions not to explain or correct any mistake made by him, at any time before his examination is finally closed ; but no part of his testimony, previously reduced to vrriting, shall be erased or altered. The examination of each witness shall proceed de die in diem until it is completed ; and after his examination is finally closed, he shall not be again examined to the same facts without the consent of the adverse party, or by order of the court, on sufficient cause shown. But he may be re-examined as to any new matter arising out of the testimony of other witnesses. RULE LXXXV. On the examination of a witness before an examiner or Objections lo commissioner orally, if the witness is objected to as in- made'bcf)re '^ terested or otherwise incompetent, or any interrogatory is examiner, objected to as improper or irrelevant, the examiner or commissioner may reserve the question, or decide upon the objection, as he may deem proper. If he reserves the question, or decides against the objection, he shall note the same and proceed with the examination. If he de- cides in favour of the objection, the testimony may be taken down if insisted on by the solicitor or counsel of the party against whom the decision is made. In such case, the objection and decision shall be noted ; and the party making the objection may, at the hearing, on due notice for that purpose, apply to have the deposition sup- pressed, or the objectionable testimony expunged, with costs to be paid by the adverse party, or by his solicitor or counsel, as the court may direct; and no objection to the competency of a witness shall be made at the hearing, unless such objection was made before his testimony was closed. RULE LXXXVI. One order to enlarge the time to produce witnesses orders to en- O* RULES AND ORDERS OF large tiiiK- to may be granted, on sufficient cause shown, witliout notice produce wit- ^ ,i i i i i ii ^ i nesses. ^o the adverse party ; but an exparte order shall not be granted after the time to produce witnesses has actually expired, nor shall a second order be granted to the same party, except on the usual notice of the application to the adverse party, and upon such terms as the court may prescribe. RULE LXXXVII. Examiners to Within ten days after the order to close the proofs is wiiiiiii ten days entered, the examiner, on being applied to for that pur- after the testi- pose by either party, shall cause the depositions and inony is closed. *. ii iip ^ • i i exhibits taken and produced beiore him to be returned and filed with the register, assistant register or clerk. And he shall not be entitled to receive pay for taking any depositions, or marking any exhibits which are not re- turned and filed with the proper officer, within ten days after service of a notice of the order to close the proofs. Neither shall a copy of any deposition or exhibit be read on the hearing, unless the original has been returned and filed in the proper office. Eitiier party may notice cause for iiear- Noticcs of hear- ing and of spe- cial uiutions. RULE LXXXVIIL After the proofs are closed, either party may notice the cause for hearing at the next or any subsequent term. It shall not be necessary in any case to obtain an order to set a cause down for hearing ; but when a cause is in readiness for hearing, on plea, or demurrer, bill and answer, pleadings and proofs, exceptions to a master's report, or on the equity reserved, or on appeal from the decree of a vice chancellor, or the sentence or decree of a surrogate, either party may notice the same for hearing, and have the case entered on the calendar of causes for the term. RULE LXXXIX. All notices of hearing, or of special motions, or of the presenting of petitions, when required, shall be notices of at least eight days, if the solicitor of the adverse party THE NEW YORK CHANCERY. 33 resides over one hundred miles from the place where the court is held : if over fifty miles and not exceeding one hundred, six days notice shall be given ; and in all other cases at least four days. And a copy of the petition, affi- davit, or certificate, on which any special application is founded, shall be served on the adverse party the same length of time previous to making the application to the court. RULE XC. When a cause is heard or submitted^ on bill answer Case aiul :ii)bie- and replication, or on the pleadings and proofs, if the pi,mji„„s. parties do not agree upon a case, to be signed by them, containing, with all requisite brevity, a statement of the pleadings and proofs, the complainant shall furnish the court with a case, stating the time of filing the bill, the change of parties, if any has taken place pending the suit, and a very brief history of the proceedings in the cause, and an abbreviation of the pleadings only, and not ex- ceeding one sixth of the number of folios contained in the original pleadings respectively. RULE XCL In making up the calendar, causes to be heard on bills Calendar and taken as confessed shall have a preference, and shall be ^''•^. ""'^''^'" i ' wlncli causes are entered according to priority from the date of the order to he heard. to take the bill as confessed. Pleas and demurrers shall constitute the second class of causes, and have priority from the time when the plea or demurrer was filed. Causes to be heard on bill and answer shall occupy the third place on the calendar, and have priority from the time when the answer was put in. Those which are to be heard on the pleadings, or on pleadings and proofs, shall form the fourth class, and have priority from the time when the replication was filed. Causes to be heard on exceptions, or upon the equity reserved in a decretal order, shall be placed in the class to which they belonged before the decretal order or reference, and according to D 34 RULES AND ORDERS OF their priority as it then existed ; and causes for re-hearing shall be arranged in the same manner. Appeals from orders, decrees, or sentences of the vice chancellors, or surrogates, when necessary to be placed on the calendar, shall have priority in the several classes from the time when the matter arose before the vice chancellor or sur- rogate. RULE XCII. Causes to be Causcs shall be noticed for hearing for the first day of noticed for the i i • • i i rr<i first day of term, or lor as early a day m term as practicable, llie *^'"'"- note of issue, specifying the class to which the cause be- longs, and the time from which it is entitled to priority, shall be delivered to the register, assistant register or clerk, who is to make up the calendar four days previous to the commencement of the term. But if the cause is not in readiness for hearing in time to notice it for the first day in term, it may be placed at the foot of the calendar ; and, if the bill has been taken as confessed, may be heard out of its regular order. RULE xcin. Pa|)crs to be When a cause is heard or submitted on plea or de- i'uniished on the i -n i j. ■ ^ i hearinij. murrcr, or on bill and answer, except in mortgage and partition causes where the complainant's rights are not contested, the court shall be furnished with copies of the pleadings, and an abbreviation thereof not exceeding one sixth of the number of folios contained in the originals. If it is heard on bill, answer and replication, or on pleadings and proofs, in addition to the case required by the nine- tieth rule, the court shall be furnished with copies of the pleadings, and of the depositions, if any, and with short abstracts of the exhibits. On an appeal or rehearing, a copy of the decree or order appealed from or reheard, shall be furnished, and also copies of the pleadings, ab- stracts, case, depositions, &c. on which the same was founded, and a copy of the opinion, if one was filed. Upon exceptions to a master's report, copies of the order THE NEW YORK CHANCERY. 35 of reference, report and exceptions, and of such parts of the evidence before the master as is material for the deci- sion of the exceptions, shall be furnished. And in all cases the necessary papers shall be delivered to the court, when the heai'ing of the cause shall commence. RULE XCIV. If the cause is heard or submitted on plea or demurrer. By whom papers or on appeal, or on exceptions to a master's report, or on "!'<^ '" ti'^ f"""- a rehearing, the necessary papers shall be furnished by the party pleading, demurring, appealing or excepting, or who obtained the rehearing. In all other cases they shall be furnished by the complainant ; but on a hearing upon pleadings and proofs, each party shall furnish copies of the testimony and abstracts of the exhibits on his part only. And each party shall deliver to the court and the adverse party a copy of the points on which he relies, and may also deliver to the court and adverse party a draft of the minutes of the decree to which he conceives himself entitled. RULE XCV. The solicitor or other officer of the court, who draws Pleadings, &c. any pleading, deposition, or report, or enters any decree, ^^ .^"^ '•^g'^^jy shall distinctly number and mark each page thereof; and paged. all copies, either for the parties or the court, shall be paged and marked in the margin, so as to conform to the original draft or entry, and to each other ; and no allow- ance shall be made on the taxation of costs for copies not paged and marked in conformity to this rule. And all bills, answers, and other proceedings, and copies thereof, shall be fairly and legibly written, and if not so written, the register, assistant register, and clerks, shall not file such as may be offered to them for that purpose ; and in the entitling and endorsement of papers by either party, the complainant's name shall be placed first. d2 36 RULES AND ORDERS OF RULE XCVI. Default at the If the cause is noticed for hearing on the part of the •eaiing. defendant, and the complainant does not appear to argue on his part, or does not furnish the necessary papers, agreeably to the preceding rules, the bill may be dis- missed, with costs. If noticed on the part of the com- plainant, and the defendant does not appear at the hear- ing, and furnish the necessary papers on his part, the complainant may have such decree as he is entitled to by the defendant's default, according to the usual course and practice of the court. RULE XCVII. Manner of sub- All submissious shall be in writing, signed by the neces- nut ing cau:,es. ^^^^^ parties or their solicitors or counsel, and shall be deli- vered to the register, assistant register, or clerk, where the court is held, with the necessary copies and papers. In calendar causes, he shall mark the papers and note them in his minutes, as on a hearing; and he shall not enter the submission until all the necessary copies and papers are furnished, as required by the rules and practice of the court. RULE XCVIII. Orders and de- All orders and decrees made by the chancellor during eiuere'd chhe'r at ^emi, or in Vacation, unless otherwise specially directed, Albany (ir New- may be entered with the register or assistant register, as York, as is most •, ^ • i i • r- i i convenient for may DC most Convenient; but the caption oi orders and the parties. dccrccs shall always state truly the place where the court was held when the same were made RULE XCIX. Reference of All order for a reference, when entered of course, shall eiecutedf ^^ executed by a master residing in the same county with the sohcitor who obtained the order, unless a difFei'ent THE NEW YORK CHANCERY. 37 master is agreed upon by the parties ; or if there is no master in the same county legally competent, the order may be executed by a master in an adjoining county. If Special order the reference is by a special order or decree of the court, whom executed! it may be made to any particular master by name, or to any master in a particular county or place, in the discre- tion of the court ; and if no particular master, or county, or place, is named or specified in the order or decree, it shall be executed by an injunction master or a taxing master only, unless some other master is agreed upon by the parties. RULE C. Where a matter is referred to a master, to examine and Proceedings in report thereon, on bringing the decree or order into his ^^^ "'^s'^"" *> " ■ office, he shall assign a day and place for hearing the par- ties, and give to the party bringing in such decree or order a summons for the adverse party to attend at the day and place so appointed. The summons shall be served on the adverse party or his solicitor, such time previous to the day appointed for hearing as the master may deem rea- sonable and direct, taking into consideration the nature of the matters to be examined and the residence of the parties. But the time of service, unless otherwise ordered by the court, shall not be less than two days where the solicitor of the adverse party resides in the city or town where the hearing is to take place, and not less than four days where he resides elsewhere, and not less than two days in addition for every fifty miles from the residence of such solicitor to the place of hearing. RULE CL If the party who is entitled to prosecute such decree or Party entitled order of reference does not procure and serve such sum- o°J^^°orrefer- mons within thirty days after the decree or order is en- cnce to proceed tered, any other party or person interested in the matter '" ^ y . • of the reference shall be at liberty to apply to the court, oS RULES AND ORDERS OF by motion or petition, to expedite the prosecution of the decree or order ; and after the proceedings have been commenced by the service of a summons to attend before the master, if the party entitled to prosecute such decree or order does not proceed with due dihgence, the master shall be at liberty, upon the application of any other person interested, either as a party to the suit, or as coming in to prove his debt, or establish a claim under the decree or order, to commit to him the prosecution of the reference. RULE CII. Master to regu- At the time and place appointed in the summons for the ings.^and^fix the bearing of the parties, the master shall proceed to regu- times for the late, as far as may be, the manner of its execution; as, for several proceed- , , . • i i i p i„gs. example, to state what parties are entitled to attend lu- ture proceedings, to direct the necessary advertisements, and to point out which of the several proceedings may properly be going on pari passu, and as to what particu- lar matters interrogatories for the examination of the parties appear to be necessary, and whether the matters requiring evidence shall be proved by affidavit or by exa- mination of witnesses; and in the latter case, if necessary, to issue his certificate for a commission; and if the master shall think it expedient so to do, he may then, or upon any subsequent attendance, and from time to time as cir- cumstances may require, fix the time within or at which any proceedings before him shall be had ; and he may proceed de die in diem, or by adjournment from time to time, as he may think proper. RULE CIIL Master may di- Where, by any decree or order of the court, books, pa- 'a*i!d papcrs°tu^ pcrs, or writings, are directed to be produced before the be produced master for the purposes of such decree or order, it shall before liiiu. i-it- f i ^ • i^ be m the discretion of the master to determine what books, papers, or writings, are to be produced, and when THE NEW YORK CHANCERY. 39 and for how long they are to be left in his office ; or, in case he shall not deem it necessary that they should be left or deposited in his office, then he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he shall deem expedient. RULE CIV. Where some or one, but not all of the parties do attend if one of the the master at the time and place appointed, whether the fo attencT^tiie'^ same is fixed by the master personally or upon a summons master may pio- or warrant, the master shall be at liberty to proceed ex parte, if he thinks it expedient so to do, considering the nature of the case; and if he has proceeded ex parte, such proceeding shall not in any manner be reviewed by him, unless, upon a special application to him for that purpose by the party who was absent, the master shall be satisfied such party was not guilty of wilful delay or neg- ligence, and then only upon payment of all costs occa- sioned by his non-attendance; such costs to be certified by the master at the time, and paid by the party or his solicitor, before he shall be permitted to proceed on the warrant to review; and every summons or warrant to at- tend before a master shall be considered peremptory. RULE CV. The master shall be at liberty to examine any witness A master may or party, or any creditor or other person coming in to o^ ^^it'itel'scs'up- claim before him, either upon written interrogatories or o" interrogato- viva voce, or in both modes, as the nature of the case his discretion. may appear to him to require; the examination or evi- dence being taken down at the time by the master, or by his clerk in his presence, and preserved, in order that the same may be used by the court if necessary. RULE CVL If a party wishes to complain of any matter introduced A master may into any state of facts, affidavit or other proceedings be- niattcrs before 40 RULES AND ORDERS OF him which arc f^j-g i\^q master, on the ground that it is scandalous or excepted to. . . . . „ f i • niipertment, or that any examination or a party before him is insufficient, such party shall be at liberty to file excep- tions thereto with the master; and without any oi'der of reference he may take out a warrant for the master to examine the matter upon such exceptions, and the master shall have authority to expunge any such matter which Maieriiilityof he shall find to be scandalous or impertinent. And in the matter to be , .,. ^i rn • • ai • /> ^i taken into con- deciding on the suthciency or insuinciency or the exa- sideration. mination of a party, or of any answer to a bill, the master shall always take into consideration the relevancy or ma- teriality of the statement or question referred to in the exception. On exception to the master's report, or his certificate of the sufficiency or insufficiency of an exa- mination, the parties shall be confined to the objections taken before the master. RULE CVII. Accounts before All parties accouutiug before a master shall bring in the master to be (.y^gjj. accouuts in the fomi of debtor and creditor; and in the torni ot debtor and ere- any of the Other parties who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party upon interrogatories, as the master may direct. ditor, RULE cviir. A master may In all matters referred to a master, he shall be at li- reiimt! ''^'^'^^ berty, upon the application of any party interested, to make a separate report or reports from time to time as he shall deem expedient; the costs of such separate re- ports to be in the discretion of the court. And where the master shall make a separate report of debts or lega- cies, he shall be at liberty to make such certificate as he thinks fit wath respect to the state of the assets; and any person interested shall thereupon be at liberty to apply to the court as he shall be advised. THE NEW YORK CHANCERY. 41 RULE CIX. When the master has prepared the draft of his report, Manner of set- he shall deliver copies thereof to such of the parties as ^'"'S report. apply for the same, and shall assign a time and place for the parties to bring in objections and for settling the draft of the report, and shall issue his warrant for that pur- pose; and no summons to see the draft of the report, and take copies thereof, shall be necessary. On the return of Master's report the warrant, or on such other day as may then be as- *° ^'^ '''"' '" ^^ ' •' •^ clays. signed by the master for that purpose, if objections are filed by either party, he may proceed to hear the parties on such objections; and the master shall settle and sign his report, and cause it to be filed in the proper office within twenty days after the argument on such objections is closed. If no objections are made to the draft, the master shall sign his report and file it in the proper office within ten days after the time assigned for bringing in ob- jections. RULE ex. After the report is filed, either party may have an Order to con- order of course to confirm the same, unless cause to the '""' ""^P"'"^- contrary thereof be shown in eight days; and if no ex- ceptions are filed and served within that time, the order shall become absolute, of course, without notice or fur- ther order; or either party may file exceptions, and have an order of course to confirm the report, so far as the same is not excepted to, and with the like effect. RULE CXL No process shall be issued or other proceedings had Decree to be cn- on any final decree, until the same is duly enrolled. If a '•°"«^,^'=''"'7 1'"^' •^ ' J execution tlicre- master is directed to sell real estate under such decree, of. he may give the requisite notice of sale previous to enrol- ment; but to protect the title of the purchaser, the party for whose benefit the sale is made, shall cause the decree to be enrolled, and produce a certificate thereof before 42 RULES AND ORDERS OF any conveyance shall be executed by the master. And where any previous decree or decretal order disposes of any part of the merits of the cause, or is necessary to ex- plain the final decree, it shall either be recited therein, or enrolled therewith as a part of the final decree in the cause. RULE CXII. A rehearing, No rehearing shall be granted by a vice-chancellor, plied for. ^ **'' unless it is apphed for within six months after the entry of the decree or order complained of, and before the same is enrolled ; and if the decree is affirmed on the rehear- ing, it shall not be reheard a second time. A rehearing before the chancellor may be applied for at any time be- fore the decree is enrolled; but if a decree of the chan- cellor, or of a vice chancellor, has been affirmed by the chancellor on rehearing or appeal, no further rehearing shall be allowed. And if a rehearing is not applied for within thirty days after the decree or order complained of is entered, the court may require payment of the cost incurred by the adverse party, by any proceedings under the decree or order, as a condition of granting the re- hearing. RULE CXIII. Manner of ap- The petition for a rehearing shall state the special heaHifa °'^ ^ '^^' matter or cause on which such rehearing is applied for, and the particular points in which the decree or order is alleged to be erroneous; and the facts, if they do not appear from the records of the court, shall be verified by affidavit of the party, or some other person. It shall also be accompanied by the certificate of two counsel who are not solicitors in the cause, that they have examined the case, and that in their opinion the decree or order is erro- neous in the particulars mentioned in the petition. And a copy of the petition, with the usual notice of presenting the same, shall be served on the adverse party; but the rehearing shall not be considered a matter of course in any case. THE NEW YORK CHANCERY. 43 RULE CXIV. Where a party is entitled to an order to stay proceed- Orders to stay ings, or for temporary relief, until he has time to give l""*^'-'^""^-- regular notice of a motion, or of presenting a petition for a rehearing, or for any other purpose, he may make an ex parte application to the court for an order that the adverse party show cause why the motion, or the prayer of the petition should not be granted ; and to stay the proceedings or for other temporary relief in the mean- time. And the adverse party shall be served with a copy of the order, and of the petition, affidavit or certificate on which it is founded, the same length of time before the day for showing cause as is required in the ordinary case of special motions, unless the court shall specially direct a shorter notice to be given. RULE CXV. If a rehearing is gi-anted, the petitioner shall lose the Diposit on a benefit thereof, unless he shall within ten days thereafter deposit with the register, assistant register or clerk, fifty dollars, to answer the costs and damages of the adverse party, if the decree or order shall not be materially varied. If the cause is reheard, the party obtaining the rehearing shall have the right to oi)cn and close the argument. RULE CXVI. On appeals to the chancellor from decrees or orders of Security and the vice chancellors, the bond or deposit as security for pealfto^iic'' costs, may be an amount of one hundred dollars only; dianccllor. and in all other respects, the provisions of section 80, and the nine succeeding sections of title 3d of chapter 9 of the 3d part of the Revised Statutes, with the necessary varia- tions as to form merely, shall be applied to such appeals. And the bonds required to be given on such appeals, or on appeals to the court for the correction of errors, may be approved of by any vice chancellor or injunction mas- 44 RULES AND ORDERS OF ter, or by the register, assistant register, or clerk with whom the appeal is entered ; to be signified by his appro- bation endorsed on such bonds. Enteiiiig appeal and notice thereof. Appeals from surrogates, &c. A petition of appeal to be filed in tiiis court. RULE CXVII. The party appealing from a decree or order of the chancellor, or of a vice chancellor, shall, within the time prescribed by law for making such appeal, deliver to the register, assistant register, or clerk with whom the decree or order is entered, a written notice, stating that such decree or order, or some particular part thereof to be specified in such notice, is appealed from ; and he shall, within the same time, make the necessary deposit, or file the bond required to be given as security for costs on such appeal. And he shall also, within eight days there- after, serve a like notice on the solicitor of the adverse party, or the appeal shall be considered as waived. RULE CXVIIL On appeal to the chancellor from the order, sentence or decree of a surrogate, or from the decision of a circuit judge on appeal from a surrogate, or from the judgment, order or determination of a court of common pleas in re- lation to the person or estate of an habitual drunkard, the proceedings shall be conducted by solicitors and counsel, and according to the ordinary course of practice in this court in other cases. And the party appealing shall file with the register or assistant register his petition of ap- peal addressed to this court, within fifteen days after the appeal is entered, or such appeal shall be considered as waived; and the appellant shall also cause a transcript of all the proceedings before the surrogate, circuit judge, or court of common pleas, to be made, authenticated and re- turned to this court within twenty days from the time of entering the appeal in the court below, or the chancellor may dismiss the appeal, unless further time is allowed by him to procure the return of the transcript. THE NEW YORK CHANCERY. 45 RULE CXIX. No petition of appeal addressed to the chancellor need No petition of be presented on appeals from orders or decrees of the g^'j.'i'^j necessary vice chancellors, and no transcript need be returned ; but on appeals from ..,,-. , - . , vice chancellors. the original pleadings and other papers in the cause may, by order of the chancellor, and at the expense of the party procuring such order, be transferred from one office to another, as occasion may require; and the ex- pense of such transfer may be taxed as a necessary dis- bursement. RULE CXX. Appeals from interlocutory orders of the vice chan- Certain appeals cellors, made on motion or petition, or from the decisions *° ^^. 'l'^^'"'' ?* ^ '■ ' special motions. of surrogates as to the appointment or removal of guar- dians, or from the judgments and orders of courts of com- mon pleas relative to the persons and estates of habitual drunkards, need not be placed on the calendar, but may be heard on any regular motion day, or in term; and all other appeals shall be considered calendar causes, and be heard at the terms only, unless otherwise specially di- rected by the chancellor. And when a cause or appeal is in readiness to be heard, it may be noticed for hearing by either party, but the appellant's counsel shall be en- titled to open and close the argument. RULE CXXL No private agreement or consent between the parties. Agreement as to in respect to the proceedings in a cause, shall be alleged I^''^ proceedings ' '^^ ° ^ ° ni a canse to be or suggested by either of them against the other, unless in writing. the same shall have been reduced to the form of an order by consent, and entered in the book of common orders; or unless the evidence thereof shall be in writing, sub- scribed by the party against whom it is alleged or sug- gested, or by his solicitor or counsel. 46 RULF.S AND ORDERS OF RULE CXXII. Time on rules All I'liles to take effect nisi, &c. unless otherwise spe- cially directed, shall be rules of eight days; and the time on all rules, orders, notices, and proceedings, where a time is given or stated, shall, unless otherwise expressly provided, be deemed and taken to be one day inclusive and one day exclusive; but if the time expires on Sunday, the whole of the succeeding day shall be included. RULE CXXIIL Orders on pcti- Orders granted on petitions, or relating thereto, sliall tions need not recite contents refer to such petitions by the names and descriptions of thereof. the petitioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof, unnecessarily. And any decree or de- cretal order, directing the payment of money, or affecting the title to property, if founded on petition where no bill is filed, may, at the request of any party interested, be en- rolled in the same manner as other decrees. RULE CXXIV. Commission on Masters shall be allowed one per cent, on the amount sales and n.onics f j ^ , ^^.j^^. ^f ^^^ ^^^^,^ -f ^j^^ amount doeS received and •' ' paid out. not exceed one thousand dollars; if it exceed that sum, they shall be allowed one half of one per cent, upon such excess; but the whole allowance for commissions shall in no case exceed twenty dollars. And when property is ad- vertised for sale, and the defendant pays to the master the amount due, before the sale, he shall be allowed one half of his commissions on the amount received. And the register, assistant register and clerks shall be allowed for monies paid out of court, in cases not specifically provided for in the fee bill, at the same rate for commissions as is therein allowed for paying interest to a party. THE NEW YORK CHANCERY. 47 RULE CXXV. Further time to answer the complainant's bill, not ex- An injunction ceeding sixty days in case of a resident defendant, and iefid^tiniTto^an- not exceeding six months in case of a defendant who is a swer, reply, or pxccot non-resident of the state, may be granted on application, and sufficient cause shown by affidavit, to a vice chan- cellor or injunction master, and on such terms and condi- tions as he may direct. And further time to file a repli- cation, or to except to an answer, may in like manner be granted, not exceeding twenty days. But no such order for time shall be granted by an injunction master, or by a vice chancellor out of court, after the time for answering, excepting, or filing a replication has expired, or where time has before been granted by order of the court, or by a vice chancellor or master, or by the agreement of the opposite party. RULE CXXVL The court, upon special cause shown, may extend the Time may be ex- time for putting in or serving any pleading or exceptions, ft-nded.andde- r. , 1- ,.,..,, , fault may be set or tor any other proceednig which is required by the aside on terms. rules of the court to be done within a limited time; and may set aside any order or decree obtained by default or otherwise, upon such terms as may be deemed just and proper. RULE cxxvn. The accounts of the register and assistant register with The manner in the banks in which monies are directed to be depo- ^'•.'i'*^'^ ^'^'^'^"n's '-^'-l'^ of monies paid sited, shall be kept in such a manner, that, in the cash '"*«> court are to books of the banks and in the bank books of the register ^ ^^ ' and assistant register, it shall appear in what particular suit or on what account the several items of money cre- dited or charged were deposited or paid out; and when money is directed to be paid into court, it shall be paid to the register, assistant register or clerk where the payment is directed to be made, or be deposited in the proper 48 Form of orders for monies to be paid out of court. RULES AND ORDERS OF bank to his credit, and entered in his bank book; spe- cifying in what particular suit, or on what account, such deposit is made. RULE CXXVIII. Orders upon the banks for the payment of monies out of court shall be made payable to the order of the person entitled thereto, or of his solicitor, or 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 decree or order authorizing such payment was made. Taxing masters and taxation of costs. RULE CXXIX. One master residing in each circuit shall be designated and appointed by the chancellor as the taxing master of such circuit, who shall be authorized to tax costs when the vice chancellor of such circuit resides more than twenty miles from the clerk's office, or is absent from his usual place of residence ; but in all other cases, the costs shall be taxed by a vice chancellor. And where costs have been taxed by a vice chancellor upon hearing of the parties, the application for a re-taxation may be made directly to the chancellor, whether the suit was pending before a vice chancellor or otherwise. Bills of costs to specify items. RULE CXXX. In every bill of costs offered for taxation, the several items of the fees of the officers of this court, composing part of such bill, shall be particularly detailed, and not charged in gross, in default whereof, the same shall not be allowed in the taxation; and no allowance shall be made, either as between party and party, or as between solicitor and client, for the draft or copies of any repeti- tion of the statements of the bill in the charging part thereof or in the interrogatories, or for any other unneces- sary or improper matter inserted in any pleading, report THE NEW YORK CHANCERY. 49 or Other proceeding in a cause. And where the same No allowance on V • /> , 1 P 1 i-r*' taxation to de- solicitor appears tor two or more deiendants, or diiterent fcndants, who sohcitors who are partners appear for several defendants, ""'""cessaniy ^ sever in tlieir and separate answers are put in or other proceedings had defence. by or for the defendants separately, the taxing officer, in the taxation of the costs, either as between party and party or between soHcitor and client, shall consider whe- ther such separate answers or other separate proceedings were necessary or proper; and if in his opinion any part of the costs occasioned thereby was unnecessarily or im- properly incurred, the same shall be disallowed. RULE CXXXI. Whenever money is ordered to be paid for costs by a Costs to be paid master out of monies in his hands, he shall file with the re^suf on taxed receipt for the amount paid a copy of the taxed bill; and bills onl^-. when the register, assistant register or clerk is directed to pay out money for costs, the duplicate receipt of the solicitor receiving the same, endorsed on a copy of the taxed bills of costs, shall, with the receipt for the same, entered in the ordinary I'eceipt book of the register, assistant register or clerk, be the exclusive evidence of such payment in passing his account. RULE CXXXIL In a bill for the foreclosure or satisfaction of a mort- Bills to foreclose •^ 1 11 . 1 nil . , . niortgages not gage. It shall not be necessary or allowable to set out at to set out li^ins length the rights and interests of the several defendants of dtfendams , 1 p 1 1 T 1 • n uiuieccssariiy. who are purchasers ol, or who have hens on the equity oi redemption in the mortgaged premises subsequent to the registry or recording of the complainant's mortgage, and who claim no right in opposition thereto; but it shall be sufficient for the complainant, after setting out his own right and interest in the premises, to state generally that such defendants have or claim some interest in the pre- mises as subsequent purchasers or incumbrancers, or otherwise; and if any such defendants are, by the mis- E 50 RULES AND ORDERS OF statements of the complainant in his bill, or otherwise, unnecessarily compelled to put in an answer to protect their rights, the costs occasioned thereby may, in the discretion of the court, be charged on the complainant personally; and if such defendants unnecessarily put in an answer to such bill, the extra costs occasioned by such answer may be charged on the defendants personally, in the discretion of the court. Notice in suits for foreclosure of mortgages. A reference of course to coni- pute amount due on mort- gage. RULE CXXXIII. In any such suit, the complainant may deliver to any defendant, at the time of serving the subpcena, a written or printed notice subscribed by the complainant or his solicitor, stating that the suit is instituted to foreclose a mortgage, and giving a brief description of the mortgaged premises, the sum for which the mortgage was executed, the date of the mortgage, and, if registered, the time of the registry, and that the complainant makes no personal claim against such defendant. If a defendant on whom such a notice has been served, appears and disclaims, he shall not recover costs, but shall pay costs to the com- plainant ; and if the complainant neglects to serve such notice, by reason whereof a defendant is put to unneces- sary costs in employing a solicitor to defend the suit, such costs may be charged personally on the complainant, in the discretion of the court. It shall also be the duty of the complainant in such suit, immediately after filing his bill, to file with the clerk of the county in which the mortgaged premises are situate, the notice which, by law, is required to render the filing of the bill constructive notice to subsequent purchasers of the premises. RULE CXXXIV. If a bill to foreclose a mortgage is taken as confessed, or the right of the complainant, as stated in his bill, is admitted by the answer, he may have an order of course referring it to a master to compute the amount due to the THE NEW YORK CHANCERY. 01 complainant and to such of the defendants as are prior incumbrancers of the mortgaged premises ; and if the defendant is an infant, and has put in a general answer And take proof by his guardian, or any of the defendants are absentees, circumstances the complainant may have a similar order of course, re- stated in the ferring it to a master to take proof of the facts and cir- cumstances stated in the complainant's bill, and to com- pute the amount due on the mortgage preparatory to the hearing of the cause ; but every such cause shall be regularly brought to hearing at term, after the coming in of the master's report, before a final decree is entered therein; and if the bill has been taken as confessed, the complainant shall show to the court at the hearing, by affidavit or otherwise, that the proceedings to take the bill as confessed have been regular, according to the rules and practice of the court. RULE CXXXV. In every order or decree for the sale of mortgaged Decree for sale premises, the description and particular boundaries of the preniTses!*^*^ 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 decree shall direct that the mortgaged premises, or so much thereof as may be sufficient to raise the amount due to the complainant, 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 a master, and that the complainant, or any other party, may become a purchaser on such sale ; that the master exe- cute a deed to the purchaser ; that out of the proceeds of tlie sale the master pay to the complainant, or his soli- citor, 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 complainant or his solicitor for the amount so paid, and file the same with his report; 52 RULES AND ORDERS OF that he bring the surplus monies, if any there be, into court without delay ; and that the purchaser at such sale be let into possession of the premises on production of the master's deed and a certified copy of the order confirming the report of the sale, after the same has become absolute. RULE CXXXVI. If there is a sur- On the coming in and confirmation of the master's plus raised on report of the Sale of mortgaged premises, if it shall appear gaged premises, there Is any surplus monies remaining in court after satis- incumbrancers fyi"o the aniouut duc to the Complainant, any defendant, may have refer- on filing an affidavit that such surplus has been paid ence to ascer- . i i i • • i i i tain their rights, into court, and that he IS entitled to the same, or some part thereof, may have an order of course, referring it to a master to ascertain and report the amount due to such defendant, or to any other person, and which is a lien upon such surplus monies, and to ascertain the priorities of the several liens thereon ; to the end that on the coming in and confirmation of the report, such further order and decree may be made for the distribution of such surplus monies as may be just ; and every defendant who has appeared in the cause, and every person who has left a written notice of his claim to such surplus monies, with the register, assistant register or clerk where the same are deposited, shall be entitled to notice to attend the master on such reference. And any person making a claim to such surplus monies, and who shall fail to establish his claim on the hearing before the master, may be charged with such costs as the other parties have been subjected to by I'eason of such claim; and the parties succeeding on such reference may be allowed such costs as the court may deem reasonable ; but no costs unneces- sarily incurred on such reference, or previous thereto, by any of the parties, shall be allowed on taxation or paid out of such surplus. THE NEW YOKK CHANCERY. 53 RULE CXXXVII. Whenever a master sells mortgaged premises, under a Tiie master to decree or order of the court, it shall be the duty of the to "be filed or'' complainant, or of such master, before he execute a deed recorded. to the purchaser, to file such mortgage in the office of the register, assistant register, or 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 complainant to cause the same to be recorded at full length in the county or counties where the lands so sold are situated, before the master shall give a deed to the purchaser on such 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 register, assistant register, or 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 proofs in the suit commenced thereon, to have been lost or destroyed. RULE CXXXVIIL Where mortgaged premises or other real estate directed Master to sell to be sold by a master, consists of several distinct lots or o"i,erwise di- parcels which can be sold separately without diminishing rected. the value thereof on such sale, it shall be the duty of the master to sell the same in separate lots or parcels, unless otherwise specially directed by the court ; but if the master 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. RULE CXXXIX. Where lands in the city of New York are sold by a Notice of sale of lands York. master, guardian, or committee, they shall be sold at '""^^ '" ^^"' 54 RULES AND ORDERS OF In other coun- ties. Cases to be made on appli- cations for new trials. public vendue, at the Merchants' Exchange, between twelve o'clock at noon and three in the afternoon, unless otherwise specially directed in the decree or order of sale. The notice of such sale, 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 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 manner as is required by law on sales of real estate by sheriffs on execution, and by masters and commissioners in partition. RULE CXL. Where a feigned issue has been awarded and tried, if either party wishes to apply to this court for a new trial, on the ground of any erroneous decision or misdirection of the judge before whom the issue was tried, or that the verdict was against the weight of evidence, a case shall be made up and settled in the manner prescribed by the rules of the supreme court in relation to causes pending in that court. Petitions to pro- secute ;is poor persons. RULE CXLL On presenting a petition to the court, in the form pre- scribed by law, by a person wishing to prosecute as a poor person, an order may be entered referring it to a master to examine into the circumstances of the case, and to report whether, in the opinion of such master, the peti- tioner has a meritorious cause of action which is cognizable in this court, and has not in his possession, or within his power or control, sufficient property or other means, over and above the wearing apparel and furniture actually necessary for himself and family, to pay the ordinary taxable fees of the officers of this court. And if the master is satisfied the petitioner is entitled to prosecute 55 THE NEW YORK CHANCERY. as a poor person, and has reasonable grounds for bringing a suit in this court, he shall also report the names of suitable persons to be assigned as the solicitor and counsel to prosecute such suit; the master having regard to the interest of the petitioner, and the faithful prosecu- tion of his suit alone in making the selection. RULE CXLII. On the coming in of the master's report, the court may Officers of the , ... court to assist admit the petitioner to prosecute Ins suit as a poor person, po^r persons by the solicitor and counsel selected by the master, and gf^^'^- assigned to him by the court for that purpose ; and neither such solicitoi*, or counsel, or any other officer of the court shall demand or receive any fee or reward, or take or accept any gift or gratuity from such poor person, for any services rendered for him in such suit, unless by the special permission of the court, upon pain of contempt. But no person shall be permitted to prosecute as a poor ])erson in any case where the defendant is entitled to security for costs, except the complainant be an infant and a resident of this state. RULE CXLIII. It shall be the duty of every master, solicitor, or other Officers of the officer of this court, to act as the guardian ad Htem of any g",ar(iiaiis .vi infant defendant in any suit or proceeding against him, '"'tc'"- whenever appointed for that purpose by an order of this court. And it shall be the duty of such guardian to exa- mine 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. But if he improperly sub- jects the infant or his estate to any unnecessary costs or expense, or neglects to make a proper defence when ne- cessary to protect the rights of the infant, he shall be 56 RULES AND ORDKRS OF personally responsible to the infant for such misconduct or neglect. RULE CXLIV. Guardians ad The petition for the appointment of a guardian ad litem pohiied°" '^ shall be by the infant in person, if he is of the age of fourteen years or upwards ; but if he is under fourteen, it shall be presented by his next of kin, or some other friend of the infant who has no interest in the suit adverse to that of the infant. But if an infant defendant, or some disinterested relative or friend in his behalf, does not procure the appointment of a guardian ad litem within twenty days after the expiration of the usual time for ap- pearance, as prescribed by the rules of this court, the adverse party may apply to the court to appoint a suitable person as the guardian for such infant; and such party, in his petition, shall briefly state the age and residence of such infant, the general object of the suit or proceeding, and the nature of the infant's interest therein. RULE CXLV. Wliornay be No person shall be appointed guardian ad litem for an litem. ^^ ^"^ infant defendant, either on the application of the infant or othervvise, unless he be the general guardian of such in- fant, or a master, solicitor, or other officer of this court, who 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 tlie solicitor 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 sustainfd by his negligence or misconduct in the defence of the suit. RULE CXLVL Who may allow An order for the appointment of a guardian ad litem ^iteni.^"*^ ' f'"^' '^^ infont defendant may be entered of course, on filing THE NEW YORK CHANCERY. 57 the petition of the infant if over fourteen years of age, or of some person in behalf of the infant if under fourteen, together with the consent of the guardian and usual affi- davit, and a certificate of a vice chancellor, or an injunc- tion master, or a taxing master, indorsed thereon, that he has examined into the circumstances, and that the guar- dian proposed is a suitable and proper person for such guardian, and has no interest in the suit in opposition to the interest of the infant. RULE CXLVII. No guardian ad litem for an infant defendant, or next Guardian ad friend of an infant complainant, unless he has given secu- frie"d"no'rto rity to the infant according to law, shall, as such guardian, receive pro- . 1 1 • 1 • r i. P^rtv ot infant receive any money or property belonging to sucli intant, without secu- or which may be awarded to him in the suit, except such "^J- 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 or order of the court, until the guardian has given such further se- curity for the faithful discharge of his trust as the court may direct. RULE CXLVm. The security to be given by the general guardian of an Security to be infant, shall be a bond in a penalty of double the amount ra[ gua,'?di^^„'s^' 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 58 Proceeds of real estate not to be paid to general guardian witii- out real secu- rity. RULES AND OUDEKS OF circumstances, it may be found for the interest of the infant, and may direct the principal of the estate, or any part thereof, to be invested in pubHc stocks or on bond and mortgage in the name of the register, assistant regis- ter, or clerk, for the benefit of the infant, and that the in- terest or income thereof only be received by the guardian. RULE CXLIX. No monies arising from the sale of the real estate of an infant, on a mortgage or partition sale, or under any de- cree or order of this court, shall be paid over to his gene- ral guardian, except so much thereof, or the interest or income from time to time, as may be necessary for his support or maintenance, unless such guardian has previ- ously given sufficient security on unincumbered real estate, to account to the infant for the same in the usual form. Petition to ap- point general guaidian. Petition to be presented to master. RULE CL. For the purpose of having a general guardian ap- pointed, the infant if of the age of fourteen years or up- wards, or some relative or friend if the infant is under four- teen, 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. RULE CLL Previous to presenting the petition to the court, if the infant resides in the city of New York, the petitioner shall apply to the taxing or injunction master in that city; if in any other county in the state, to the master nearest to the residence of the infant; or if the infant resides out of the state, to any taxing or injunction master, who shall by in- spection or otherwise ascertain the age of the infant, and if of the age of fourteen years or upwards the master shall examine him as to his voluntary nomination of a suitable THE NEW YORK CHANCERY. 59 and proper person as guardian ; if under fourteen the master shall ascertain who is entitled to the guardianship, and shall name a competent and proper person as guar- dian. The master 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. RULE CLII. In making such enquiries, the master, in his discretion, Proceedings be- may direct notice to be given to such of the relatives of „'^'^p^,tition!* '^' the infant as he may think proper, to appear before him and be heard in relation to the application : and it shall be the duty of the master in all cases to see that the rights of the infant are properly guarded and protected, and he may require the attendance of such witnesses before him to give testimony on the subject of the application as he may think necessary or proper. And the master shall Report of the annex to the petition a report containing the particulars mentioned in the preceding rule, specifying what relatives or friends of the infant have been notified to appear be- fore him, if any, and if none have been notified, stating the cause thereof. The report must also state that each of the persons proposed is worth the requisite amount, over and above all his debts, or that the real estate pro- posed to be given as security is of the value required by the rules of the court. RULE CLin. On presenting to the court the petition with the master's Order to ay)- report annexed, an order may be obtained for the appoint- l'*^'"* guardian. ment of the guardian ; or the court, in its discretion, may direct a farther reference, and direct what relatives or friends of the infant shall have notice to attend on the same. The appointment shall not be valid until the re- quisite security is given and filed in the proper office, with 60 RULES AND ORDERS OF the certificate of the master endorsed thereon, approving of the form and manner of the execution tliereof. RULE CLIV. Guardians and Every guardian, receiver, or committee, appointed hy make^reports *^^^^ court shall, within six months after his appointment, file in the office where the appointment is entered, a just and true inventory, under oath, of the whole real and personal estate committed to his care or guardianship ; stating the income and profits thereof, and the debts, credits and effects, so far as the same have come to his knowledge. And he shall annually thereafter, if the yearly value or income of the estate exceeds five hundred dollars, or once in every two years, or annually, at his election, if it is of a less value, file in the same office an account under oath of his guardianship or trust, and of any other property or effects belonging to the estate which he has since discovered, and of the amount remaining in his hands or invested by him, and of the manner in which the same is secured or invested ; stating his receipts and expenditures from the time of rendering his last account, in the form of debtor and creditor. RULE CLV. Register, &c. to The register, assistant register, or clerk, at the times of rulerto'emu--° *^^ appointment of any guardian, receiver, or committee, dians, and re- shall deliver to him a copy of this and the next preceding negiect"io ren- Tule ; and shall also, at every stated term of the court, at der accounts. ^he place where such appointment is entered, present to the chancellor or vice chancellor, on the first day of the term, a list of all guardians, receivers and committees, who have neglected to file their inventories or accounts for more than thee months after the time limited for that pur- pose, to the end that such order may be made for the removal or prosecution of the delinquents as may be just; and which list shall be publicly read in open court, for the information of all concerned. THE NEW YORK CHANCERY. Gl RULE CLVI. It shall be the duty of the injunction master in each The injunction circuit, in the montli af January, in every year, to examine "minrand""- the inventories and accounts of guardians, receivers, and pori on accounts committees, which have been filed with the register, assist- &c. ^ ' ant register, or clerk, in his circuit, for the preceding year, and report to the court at the next term in that cir- cuit, whether such accounts appear to have been correctly kept ; whether there has been any waste or misapplication of the funds, and whether the same are properly and safely invested or secured, so far as he can ascertain the same from the examination of such accounts and invento- ries on file. RULE CLVIL The security required on a sale of the real estate of an Security to be infant shall be a bond of the guardian, with two suflicient fu^ardians*'^^*^"' 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 pe- nalty of the bond, over and above all debts ; or a similar bond of the guardian only, secured by a mortgage, on un- incumbered real estate, of the value of the penalty of such bond. RULE CLVIIL The general guardian of the infant if he has any, and Petition for the if there is none, the infant himself if of the age of fourteen spedalguardian. years or upwards, or some relative or friend if he is under that age, may present a petition to the chancellor, 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 pre- mises necessary or proper ; and praying that a guardian may be appointed to sell the same. The petition shall 62 RULES AND ORDERS OF Report of mas- ter tlicreoii. Reference of petition to sell infant's estate. also state tlic name and residence of tlie person proposed as such guardian, the relationship, if any, which he bears to the infant, and the security proposed to be given. RULE CLXIX. Previous to presenting the petition to the court, it shall be presented to the master who is nearest to the residence of the infant, or if the infant is a non-resident, to any in- junction or taxing master, who shall certify thereon that the person proposed as guardian is a suitable and proper person for that purpose, and that the persons proposed as his sureties are each worth the requisite sum over and above all debts, or that the land proposed to be mortgaged by way of security is unincumbered and of the required value. And if the master is not satisfied with the person nominated as guardian, or with the security proposed, he may name a suitable person as guardian, and state what further or other security should be given. RULE CLX. On presenting the petition to the court, if it satisfac- torily appears that there is reasonable ground for the ap- plication, an order may be entered, appointing a guardian for the purposes of the application, on his executing and filing with the register, assistant register or clerk, the re- quisite security, approved of, as to its form and manner of execution, by the master, signified by his approbation en- dorsed thereon ; and referring it to any injunction or taxing master, or to a master specially designated in the order by name, 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 upon which his opinion is founded ; and to ascertain the value of the property pro- posed to be sold, and of each separate lot or parcel there- of, and the terms and conditions upon which it should be sold ; and whether the infant is in absolute need of any THE NEW YORK CHANCERV. 63 part of the proceeds of the sale for his support and main- tenance, over and above the income thereof and his 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, the mas- ter shall also ascertain the value of her life estate in the premises, on the principle of life annuities. But the master shall not proceed on such reference until the guar- dian produces to him a certificate of the register, assistant register, or clerk, that the requisite security has been filed agreeably to the order of the court. RULE CLXI. If the proceeds of the sale exceed five hundred dollars, Proceeds of sale d.i T 1 i • 'i. 1 i. exceeding 300 the guardian has not given security by mortgage upon ^j,,]!^^,.^ ^^^^^Q real estate, he shall bring the proceeds into court, that the bmu^ht into same may be invested in stocks, or put out at interest by vested. the register, assistant register, or clerk, 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 necessary for the support and maintenance of the infant. And if a mortgage is given by the pur- chaser for the pvirchase money, or any part thereof, it shall be taken in the name of the register, assistant register, or clerk with whom the order for a sale is entered, for the use of the infant. If the infant's interest in the property does not exceed one thousand dollars, the whole costs, in- cluding disbursements, shall not exceed twenty-five dollars. RULE CLXIL On the execution of a commission of lunacy, &c. the Fees onexecu- r 1 ,1 -111 tioii of eominis- commissioners tor every day they are necessarily employed ^i^,„ of lunacy. in hearing the testimony and taking the inquisition, shall be entitled to the same allowance which is made by law to commissioners to make partition or admeasure dower. And for drawing the in(}uisition and process, and serving notices, when no solicitor is employed, they shall have the 64 RULES AND ORDERS OF fees to which a solicitor would be entitled for the same services. Bills to avoid a marriage con- tract, or for a separation, to be brought by next friend of femes covert. Such bills and bills for divorce to be tiled on oath. Reference to take proof of facts charged. Order of refer- ence, how ob- tained. RULE CLXIII. No bill shall be filed in the name of a feme covert, to obtain a sentence of nulHty declaring void her marriage contract, or to obtain a decree for a separation or limited divorce, unless the suit is prosecuted by a responsible per- son as the next friend of the complainant, who shall be responsible to the defendant for such costs as may be awarded by the court, if it shall appear the suit was com- menced without any reasonable or justifiable cause. And all such bills, and bills for the purpose of obtaining divorces on the ground of adultery, whether the husband or wife is complainant, shall be duly verified by oath, in the usual manner of verifying bills where by the course and practice of the court an oath is required. RULE CLXIV. If any such bill is taken as confessed, or the facts charged therein are admitted by the answer, the complainant may apply to the court, on any regular motion day or in term, upon due proof of the regularity of the proceedings to take the bill as confessed, or upon the bill and answer, for a reference to a master to take proof of all the material facts charged in the bill, and to report such proof to the court, with his opinion thereon. RULE CLXV. To obtain such order of reference, if the bill seeks to annul a marriage on the ground that it was irregularly so- lemnized, an affidavit must be produced, showing that the marriage has not been consummated ; if to annul the mar- riage 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 cohabited for any time, as husband and wife, after the complainant had obtained THE NEW YORK CHANCERY. 65 the age of consent. And if the bill seeks a divorce on the ground of adultery, the complainant must show by affi- davit, that the adultery charged in the bill was connnitted without the consent, connivance, privity or procurement of the complainant; that the bill was filed within five years after the discovery of the offence charged, and that the complainant has not voluntarily cohabited with the defendant with knowledge of the adultery charged in the bill. RULE CLXVI. On a reference to a master to take proof of the facts On bills for li. charged in a bill for a separation or limited divorce, he "I'e m;isUT'ln.-iv may take the examination of the complainant on oath as exaini,.ec()iii- to any cruel or inhuman treatment alleged in the bill, ,yi„ cases. which took place when no witnesses were present, who are competent to testify to the facts on such reference. RULE CLXVIL On a bill for a divorce, or to avoid or annul a marriage if facts are de- contract for any other cause than physical incapacity, if "!^.^' '^''^" *^°'"' •^ 1 J L J ' plaiiiaiit must the material allegations in the bill are denied in the answer, liie rtpiKation, and the complainant does not file a replication within the p^^ foi'.''ned''is-^ time allowed by the rules of this court, the defendant, on sue. due notice, may apply to have the bill dismissed; but if a replication is filed, either party, without entering any order to produce witnesses, may, on the usual notice to the adverse party, apply for a feigned issue. RULE CLXVIIL The defendant in the answer may set up the adultery of Aduiieiy of the the complainant, or any other matter which would be a coinpliiinani, i ' » o:c. inav he sol bar to a divorce, separation, or the annulling of a marriage "p in iiie an- contract; and if an issue is taken thereon, it shall be tried at the same time and in tlu; same manner as other issues of fact in the cause. F GO RULES AND ORDERS OF RULE CLXIX. Objection? to On a bill filed by a husband for a divorce, if he wishes to dn'ldrcn{o°be question the legitimacy of any of the children of his wife, stated in the the allegation that they are or that he believes them to be illegitimate, shall be distinctly made in the bill. If a re- ference is ordered, the master shall take the proofs and report his opinion upon the question of legitimacy as well as upon the other matters stated in the bill ; and if a feigned issue is awarded, an issue on the question of legitimacy of the children shall be awarded and tried at the same time. RULE CLXX. No sentence of No sentence or decree of nullity declaring void a mar- nuility or de- yjaffe coutract, or decree for a divorce, or for a separation cree tor divorce o ' ' i or separation by or limited divorcc, shall be made of course by the default (Te'fauit! "^ ^ ^f *^^^ defendant, or in consequence of any neglect to ap- pear at the hearing of the cause, or by consent ; and every such cause shall be heard after the trial of the feigned issue, or upon the coming in of the master's report, at a stated term of the court; but where no person appears on the part of the defendant, the details of the evidence in adultery causes shall not be read in public, but shall be submitted to the chancellor or vice chancellor in open court. RULE CLXXI. Payment of in- Where a party is ordered to pay the costs of any in- terlocutory terlocutorv proceedings, and no time of payment is speci- costs, riow com- .' t^ '^ ' . palled. fied in the order, he shall pay them within tv.enty days after service of a copy of the order and taxed bill, and if he neglects or refuses to pay such costs within the time prescribed as aforesaid, or specified in the order, the ad- verse party, on an affidavit of the personal service of such copies and a demand of payment, and that such costs have not been paid, may have an ex parte order to commit such delinquent party to prison. THE NEW YORK CHANCERY. 67 RULE CLXXII. Whenever a master or other officer of the court is di- Masters to re- rected to approve of the security to be given in any case, fl"'re personal 11^ JO J ' surelies to jus- or to report upon its sufficiency, it shall be his duty, unless tify and report otherwise specially directed by the court, to require per- security. sonal 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 such master or other officer shall in his certificate or report state the value of such real estate, or that each person offered as security is worth the requisite amount over and above all debts and responsibili- ties which he owes or has incurred. RULE CLXXIIL On filing a bill of review or other bill in the nature of a Bill of review bill of review, the complainant shall make the like deposit ^vi[|,o°ut ^eave or give security to the adverse party in the same amount and deposit which is or would be required on an appeal from the or- der or decree complained of; and no such bill shall be filed, either upon the discovery of new matters or other- wise, without special leave of the court first obtained, nor unless the same is brought within the time allowed for bringing an appeal. RULE CLXXIV. In every bill or petition for the partition of lands, it shall Bill for partition be the duty of the complainant to state in as concise a parties truly and manner as possible the rights and interests of the respec- t" be sworn to. tive parties in the premises, and the several liens and in- cumbrances thereon, so far as the same are known to him; and if the rights of any of the parties are unknown to him, he shall state the same according to his information and belief; and every such bill or petition shall be verified by f2 68 RULES AND ORDERS OF the oath of the complainant in the usual manner. It shall also be the duty of the complainant, on filing such bill or petition, to file with the clerk of the proper county the notice required by law to render the commencement of the suit constructive notice to subsequent purchasers. All lands held in common, to be embraced in one suit. RULE CLXXV. Where several tracts or parcels of land lying within this state are owned by the same persons in common, no sepa- rate bill or petition 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 complainant may be charged with the whole costs of the proceeding. The defendants may put in ge- neral answer. RULE CLXXVL If the rights and interests of the several parties are truly stated in the bill or petition for partition, it shall be sufiicient for the defendants to put in a general answer, admitting the rights and interests of the parties in the pi'emises to be as stated in the complainant's bill or peti- tion ; and no solicitor shall be allowed on the taxation of costs for any more than three folios contained in any such answer. Reference of course where there is no defence. RULE CLXXVIL Where the rights and interests of the several parties as stated in the bill or petition are not denied or contested, if any of the defendants are infants and have put in the usual answer by their guardian, or the bill or petition has been taken as confessed against all or any of the parties to the suit or owners of tlie premises, whether known or unknown, the complainant, on filing an affidavit of the fact, may have an order of course referring it to a master THE NEW YORK CHANCERY. 69 to take proof of the complainant's title and interest in the premises, and of the several matters set forth in the bill or j)etition, and to ascertain and report the rights and in- terests of the several parties in the premises, and whether the premises or any part thereof are so circumstanced that a partition thereof cannot be made without great prejudice to the owners. RULE CLXXVIII. On the coming in and confirmation of the report of the Reference of master, if it appears that a sale of the premises or any part [^X Inc'i^m-'^'^'^ thereof is necessary, any party in the suit may have an brances, if lands 1 f • • .1 • . . . cannot be di- orcier ot course requnnng the register, assistant register, vided. or clerk, to ascertain and report whether the shares or interests in the premises of the parties, or any of them, are subject to any lien or incumbrance by judgment, de- cree, mortgage, or otherwise, and to make the necessary searches for that purpose; and his report shall be pro- cured before any order for the sale of the premises is made. RULE CLXXIX. Whenever a party, as tenant for life, or by the curtesy. Party entitled or in dower, is entitled to the annual interest or income of !" ''Lt!!"!!,' any sum paid into court and invested in permanent secu- "»^l income af- rities, such party shall be charged with the expense of in- expenses, or'tiie vesting such sum and receiving and paving over the in- P'"t'se"t ^'''''"-' "<" • , p , . P , ^ •„• , a '■''"e annuity. terest or income thereoi ; but it such party is willing, and at six per cenr., consents to accept a gross sum, in lieu of such annual ^^ '"* election. interest or income for life, the same shall be estimated ac- cording to the then value of an annuity of six per cent, on the principal sum during the probable life of such person, according to the Portsmouth or Northampton tables. RULES AND ORDERS. RULE CLXXX. Former rules These I'ules shall commence and take effect on the first day of January, 1830; from and after which time all former rules and orders of this court regulating the practice thereof are abolished. And in cases where no provision is made by statute, or by these rules, the proceedings in this court shall be according to the customary practice, as it has heretofore existed in cases not provided for by sta- tute or the w ritten rules of the court. R. Hyde Walworth, Chancellor. ( 71 ) SELECTIONS FROM THE REVISED STATUTES OF NEW YORK, PARTICULARLY APPPLICABLE TO PROCEEDINGS IN THE COURT OF CHANCERY. PART II.— CHAPTER V.— TITLE II. Of the Custody and Disposition of the Estates of Idiots, Lunatics, Persons of Unsound Mind, and Drunkards. § 1. The chancellor shall have the care and custody of Chancellor to all idiots, lunatics, persons of unsound mind, and persons ijio^s'^'^c" ^ who shall be incapable of conducting their own affairs in consequence of habitual drunkenness, and of their real and personal estates, so that the same shall not be wasted or destroyed; and shall provide for their safe keeping and maintenance, and for the maintenance of their fami- lies, and the education of their children, out of their per- sonal estates, and the rents and profits of their real estates respectively. § 3. Whenever the overseers of the poor of any city or Habitual drunk- town in this state, discover any person, resident therein, '"' "' 1 11-11111- iixi Duty of ovcr- to be an habitual drunkard, havmg property to tlie seers of the amount of two hundred and fifty dollars, which may be P"'^""- endangered by means of such drunkenness, it shall be their duty to make application to the court of chancery for the exercise of its powers and jurisdiction. 72 SKLECTIONS FROM THE Appiiciitioii ^3. If such tlvunkai'd have property to an amount less when made to t n n in conniion pleas, than two hundred and hity dohars, the overseers may make such application to the court of common pleas of the county; which is hereby vested with the same powers in relation to the person and real and personal estate of such drunkard, as are by this Title conferred on the court of chancery, and shall in all respects proceed in the like manner, subject to an appeal to the court of chan- cery. wiiiii to first § 4. Application for a commission in such case may '''"^^" be made in vacation to the first judge of the county, who may award the same to one or more proper persons, to inquire into the fact of such alleged habitual drunken- ness; and the inquisition taken thereon shall be returned to the next court of common pleas of the county, who shall comfirm or set aside the same. Issue will II (o i^ 5. If the party proceeded against shall traverse the inquisition on its return, an issue shall be directed by the court, as in other cases, which shall be tried in the same court, and the verdict thereon shall have the same effect as if rendered upon an issue awarded by the chan- cellor. Appcjii from dc- § 6. Appeals from any order, judgment or decree of a court of common pleas, made pursuant to the provisions of this Title, shall be filed and entered within three months after the making of such order, judgment or de- cree; and shall be accompanied by a bond, with such sureties as the court shall approve, to the opposite party, in the penalty of one hundred dollars, conditioned for the payment of such costs as shall be awarded against the appellant, in case of the order, judgment or decree being affirmed. Expenses of ap- § 7. The expcuscs of the overseers of the poor, in con- '' ""' '°"' ducting any application under this Title, shall be audited and allowed in the same manner as other expenses of such city or town. Every commit- §8. Every counuiltee of the e>tate of any idiot, hi- ci^ion of com muii |)leas ^:EW YORK REVISED STATUTES. 73 natic, or other person in the first section of this Title ^'^'^ '° '''*^ ""vcn- specified, shall, within six months after their appointment, file in the oftice of the register or assistant register of the court of chancery, or of the clerk of the court which ap- pointed such committee, a just and true inventory of the whole real and personal estate of such idiot, lunatic or other person; stating the income and profit thereof, and the debts, credits and effects, so far as the same shall have come to the knowledge of such committee. And when- ever any property belonging to such estate shall be dis- covered after the filing of any inventory, it shall be the duty of such committee to file, as aforesaid, a just and true account of the same, from time to time, as the same shall be discovered. ^ 9. Such inventories shall be verified by the oath of Inventories to the committee, to be taken beiore a judge ot any court or oatii. record, or a master in chancery. § 10. The filing of such inventories may be compelled Filing of inven- by the order and process usual in such cases of the court j^^'^^* compe - which appointed the committee. § 11. Whenever the personal estate of any such idiot. Application for lunatic, or other person above specified, shall not be suffi- psta'tg,*^' ° cient for the discharge of his debts, it shall be the duty of the committee of his estate to apply by petition to the court by which they were appointed, praying for autho- rity to mortgage, lease, or sell so much of the real estate of such idiot, lunatic or other person, as shall be neces- sary for the payment of such debts. The said petition shall set forth the particulars and amount of the estate real and personal of such idiot, lunatic or other person, the application which may have been made of any per- sonal estate, and an account of the debts and demands ex- isting against such estate. § 12. On the presenting of such petition, it shall be Proceedings referred to a master in chancery, or to the clerk of the ^'"^'"'^°"- court, to inquire into and report upon the matters therein piaster or the contained; whose duty it shall be to examine into the cl<-rii. SELECTIONS FROM THE truth of the representations made, to licar all parties in- terested in such real estate, and to report thereon with all convenient speed. Order lobe § 13. If, upoH the coHiing in of the report, and an exa- hrof'repor'"^ mination of the matter, it shall appear to the court, that the personal estate of the idiot, or other person above specified, is not sufficient for the payment of his debts, and that the same has been applied to that purpose, as far as the circumstances of the case rendered proper, an order shall be entered, directing the mortgage, leasing, or sale of the whole or such part of the said real estate as may be necessary to discharge the said debts. Addiiionai ^c- § 14. The court may require any additional security to miuirtd.^"^ "" be given by any such committee, for the faithful applica- tion and accounting for the proceeds of such mortgage, lease or sale, and may require an account thereof to be rendered from time to time. raymcntof § 15. In the apphcatiou of any monies raised by any ^^^^^' such mortgage, lease or sale, the committee shall pay all debts in an equal proportion, without giving any prefer- ence to such as are founded on sealed instruments. Like application § 16. When the personal property, and the rents, Idion'&rorof profits and income of the real estate of any such idiot, iii* family. luuatic, or Other person above specified, shall be insuffi- cient for his maintenance, or that of his family, or for the education of his children, a similar application may be made by the committee to the chancellor, or to the court having jurisdiction, for authority to mortgage or sell the whole or so much of the real estate as shall be necessary for that purpose, upon which the same reference and proceedings shall be had, and a like order shall be en- tered, as hereinbefore directed. Covin to i:ive § 17. In the case last mentioned, the court shall direct ImlS'd".^' '° the manner in which the proceeds of such sale shall be secured, and the income or produce thereof appropriated. Sales uudei- di- § 18. The court shall give such orders respecting the reciiou of court; ^jj^^^ ^^^^\ manner of any sale herein authorised as shall be convcvaiices. NEW YORK REVISED STATLTES. <a deemed proper; and no conveyance in pursuance of any such sale shall be executed, until the sale shall have been reported on the oath of the committee, and confirmed by the court directing the same. § 19. Whenever any such idiot, lunatic, or other per- Petition by com- son above specified, shall be seised or possessed of any '"'"^'^ ^'"^ "/'^^'^ i ' ^ •'to convey, occ. real estate by way of mortgage, or as a trustee for others "hen ]y,uty is in any manner, his committee may apply to the court of "'"' -''''^'^*^' chancery for authority to convey and assure such real estate to any other person or persons entitled to such con- veyance or assurance, in such manner as the said court shall direct ; upon v\'hich, a reference and the like pro- ceedings shall be had as in the case of an application to sell real estate as aforesaid; and the court, upon hearing all the parties interested, may order such conveyance or assurance to be made. § 20. On the application of any person entitled to such Like petition conveyance or assurance, by bill or petition, the com- t'lid'lo cou- '' mittee may be compelled by the court of chancery, on a veyance. hearing of all parties interested, to execute such con- veyance or assurance. § 21. Every conveyance, mortgage, lease and assurance, Eavct of con- made under the order of the court of chancery, or of anv \'^;V^","!f',,,w'i'M- court, pursuant to the provisions of this Title, shall be as ''I's title. valid and effectual, as if the same had been executed by such idiot, lunatic, or other person above specified, when of sound memory and understanding. § 22. The court of chancery shall have authority to Specific per- decree and compel the specific performance of any bargain, be'^dea-eed!^^ contract or agreement, which may have been made by any lunatic or other person, specified in the first section of this Title, while such lunatic or other person was capable to contract; and to direct the committee of such person, to do and execute all necessary conveyances and acts for that purpose. § 23. The real estate of any idiot, lunatic, person of Limitation of unsound mind, or person incapable of conductino- his 'y^ses, &c. un- ' ■■ ^ " (k r tins title. Estate wlien to be restored. Estate how dis- posed of on death of partj^. SELECTIONS FROM THE affairs in consequence of habitual drunkenness, shall not be leased for more than five years, or mortgaged, or aliened or disposed of, otherwise than is herein directed. § 24. In case any lunatic, or other such person, shall be restored to his right mind, and become capable of con- ducting his affairs, his real and personal estate shall be restored to him. § 25. In case of the death of any idiot, lunatic, person of unsound mind, or person incapable of conducting his affairs, during such state of incapacity, the power of any trustees appointed under this Title shall cease, and his real estate shall descend to his heirs, and his personal estate be distributed among his next of kin, in the same manner as if he had been of sound mind and memory. CHAPTER VIII.-TITLE I. Cases enume- rated where marriages may be annulled. Bill to annul marriage by parties under ARTICLE SECOND. Of Divorces, on the Ground of the Nullity of the Marriage Contract. § 20. The chancellor may, by a sentence of nullity, declare void the marriage contract for either of the fol- lowing causes, existing at the time of the marriage : 1. That the parties, or one of them, had not attained the age of legal consent : 2. That the former husband or wife of one of the parties was living; and that the marriage with such former husband or wife was then in force : 3. That one of the parties was an idiot or lunatic : 4. That the consent of one of the parties was ob- tained by force or fraud : 5. That one of the parties was physically incapable of entering into the marriage state. §21. A bill to annul a marriage, on the ground that one of the parties was under tlie age of legal consent, NEW YORK REVISED STATUTES. 1 i may be brought by the parent or guardian entitled to the legal ag^by custody of such minor, or by the next friend of such brought. minor; but in no case shall such marriage be annulled on When marriage the application of a party who was of legal age at the "uHej, time it was contracted, nor when it shall appear that the parties, after they had obtained the age of consent, had for any time freely cohabited as husband and wife. § 22. Where a marriage is sought to be annulled, on Marriage during the ground that a former husband or wife of one of the ^ife, &e. how parties was living, it may be declared void on the appli- """""ed. cation of either of the parties during the life-time of the other, or upon the application of such former husband or wife. § 23. When it shall appear and be so decreed, that When issue of •, , . . , T . 1 n • 1 sucli marriages such subsequent marriage was contracted ni good laith, to iniierit estate and with the full belief of the parties, that the former "^ parent. husband or wife was dead, the issue of such marriage born or begotten before its nullity shall be declared, shall be entitled to succeed, in the same manner as legitimate children, to the real and personal estate of the parent, who, at the time of the marriage, was competent to con- tract ; and the issue so entitled, shall be specified in the sentence of nullity. § 24. Where a marriage is sought to be annulled on Marriages by the ground of the idiocy of one of the parties, it may be declared void on the application of any relative of such idiot, interested to avoid the marriage, at any time during the life time of either of the parties. § 25. When a marriage is sought to be annulled on Marriages by the ground of the lunacy of one of the parties, it may be declared void at any time during the continuance of that lunacy, or after the death of the lunatic in that state during the life time of the other party to the marriage, on the application of any relative of the lunatic interested to avoid the marriage. § 26. Where the marriage of an idiot or lunatic is Bills by next sought to be annulled during the life time of both the ^^'d'hiiuttk-s'.' ^ 78 SELF.CTIONS FROM THE parties to the marriage, and no suit shall be prosecuted by any relative, a sentence of nullity may be pronounced, on the application of any person admitted by the court to prosecute as the next friend of such idiot or lunatic. By lunatic after ^ 27. The marriage of a lunatic may also be declared to reason. "^'^^^^ upou the application of the lunatic after the resto- ration of reason ; but in such case no sentence of nullity shall be pronounced, if it shall appear that the parties freely cohabited as husband and wife after the lunatic was restored to a sound mind. Issue of idiots § 28. Children of a marriage annulled on the ground of lunacy or idiocy, shall be entitled to succeed in the same manner as legitimate children to the real and per- sonal estate of the parent who was of sound mind. Term " lunatic" § 29. The term " lunatic," in the preceding sections, defined. shall extend to every person of unsound mind other than idiots. Marriages by ^ 30. A marriage may be annulled on the ground that the consent of one of the parties was obtained by force or fraud, during the life time of the parties, or one of them, on the application of the party whose consent was so obtained, or of the parent or guardian of such party, or of some relative interested to contest the validity of the marriage. When not to be § 31. No marriage shall be annulled on the ground of isso vc . force or fraud, if it shall appear that at any time before the commencement of the suit there w'as a voluntary co- habitation of the parties as husband and wife. Issue of such § 32. If there shall be any issue of a marriage annulled niarridges. ^^ ^j^^ gTouud of forco or fraud, the court shall decree their custody to the innocent parent, and may also decree a provision for their education and maintenance out of the estate and property of the guilty party. Physical inca- § So. A suit to annul a marriage on the ground of the V'^^'^y- physical incapacity of one of the parties, shall only be maintained by the injured party against the party whose NEW YORK REVISED STATUTES. 79 incapacity is alleged ; and shall, in all cases, be brought within two years from the solemnization of the marriage. § 34. A bill to avoid a marriage irregularly solemnized, Marriages ine- but not consummated, may be brought by either of the gy'^'^^'y so'<^'»- •^ o J ^ nized, but not parties, or by the parent, guardian or next friend of consummaied. either party who may be a minor, during the life time of the other party ; and after the death of one of the parties, by any relative of such deceased party interested to contest the marriage. § 35. Suits to annul a marriage shall be by bill, and Proceedings in shall be conducted in the same manner as other suits ^"'^^'" **""•"' marriages. prosecuted in the courts of equity ; and the court shall have the same power to award issues, to decree costs, and to enforce its decrees, as in other cases. § 36. No sentence of nullity of marriage shall be pro- Evidence to nounced solely on the declarations or confessions of the s"*'"'" aiiega- *' _ _ lion of nullity. parties ; but the court shall, in all cases, require other satisfactory evidence of the existence of the facts, on which the allegation of nullity is founded. § 37. A sentence of nullity of marriage, if pronounced Effect of sen- during the life time of the parties, shall be conclusive peaces of nullity. evidence of the invalidity of the marriage in all courts and proceedings ; but if pronounced after the death of either of the parties to the marriage, it shall only be con- clusive as against the parties in the suit and those claiming under them. ARTICLE THIRD. Of Divorces dissolving the Marriage Contract. § 38. Divorces may be decreed, and marriages may be Cases in which dissolved, by the court of chancery, whenever adultery "'''";i='ges may •' . •' ... r, "^ dissolved loi has been conunitted by any husband or wife in either of adultery. the following cases : 1. Where both husband and wdfe were inhabitants of this state at the time of the commission of the offence : 80 SELECTIONS FROM THE 2. Where the marriage has been solemnized, or has taken place within this state, and the injured party, at the time of the commission of the offence, and at the time of exhibiting the bill of complaint, shall be an actual inhabitant of this state : 3. Where the offence has been committed in this state, and the injured party, at the time of exhi- biting the bill of complaint, is an actual inhabitant of this state. Bills by wife, ^ 39. A bill for a divorce may be exhibited by a wife in without'oath. ^^^^" ^wn name as well as by a husband. In all cases, the defendant may answer such bill without oath or affirmation. Issues to be § 40. If the offence charged be denied, the court shall tried by jury, (jji-ect a feigned issue to be made up, for the trial of the facts contested by the pleadings, by a jury of the country at some circuit court ; and it may direct a special jury to Struck jury. be struck for such trial, and may make the necessary or- ders for procuring a list of jurors and for striking the New trials. same ; and may award a new or further trial of such issue as often as justice shall seem to require. Master to take §41, If the adultery charged be admitted by the an- ?a7el' ''''"''''" swer, or if the bill be taken as confessed against the de- fendant, the court shall refer the matter to a master, with directions to take proof of the facts charged, and to report the same to the court with his opinion thereon ; and the cause shall be heard on such proof and report, before any final decree shall be pronounced. Casts in which § 42. Although the fact of adultery be established, the divorce may be ^^^^^.j- ^^g^y deny a divorce in the following cases : denied alihougu J J o adultery proved. 1. Where the offence shall appear to have been committed by the procurement, or with the con- nivance, of the complainant : 2. Where the offence charged shall have been for- given by the injured party, and such forgiveness be proved by express proof, or by the voluntarily cohabitation of the parties with the knowledge of the fact : 3. Where there shall have been no express forgive- NEW YORK REVISED STATUTES. 81 ness, and no voluntary cohabitation of the parties but the suit shall not have been brought within five years after the discovery by the complainant of the offence charged : 4. Where it shall be proved that the complainant has also been guilty of adultery, under such circum- stances as would have entitled the defendant, if in- nocent, to a divorce. § 43, When the wife shall be the complainant, the legiti- Legitimacy ot" macy of any children of the marriage, born or begotten of bmu.ht'bv wUb. her before the filing of the bill, shall not be affected by the decree of dissolution. § 44. When the husband shall be the complainant, the WIku busband legitimacy of children, born or begotten before the com- '* ^" "'^ auumt. mission of the offence charged, shall not be affected by the decree ; but the legitimacy of other children of the wife may be determined by the court upon the proofs in the cause. In every such case, the legitimacy of all children, begotten before the commencement of the suit, shall be presumed, until the contrary shall be shown. § 45. If a wife be the complainant, and a decree dis- Support of wife I ' .1 . I 1 .1 , 1 and children on solvmg the marriage be pronounced, the court may make divorce, in suit a further decree or order against the defendant, compel- ^y *^'*^^- ling him to provide for the maintenance of the children of the marriage, and to provide such suitable allowance to the complainant for her support, as the court shall deem just, having regard to the circumstances of the parties re- spectively. § 46. If a wife be the complainant, and a decree dis- In sucb case, solving the marriage be pronounced, and she shall, at the certain pro- time of pronouncing such decree, be the owner of any real peny. estate, or have in her possession any goods, or things in action, which were left with her by her husband, acquired by her own industry, given to her by devise or otherwise, or to which she may be entitled by the decease of any relative intestate, all such real estate, goods or things in action, shall be her sole and absolute property. G 82 SELECTIONS FROM THE Divorce in suit § 47. If a luisband be complainant, and a decree dis- band^ not^to af- solving the marriage be pronounced, the right of the com- fect his right to plainant to any real estate owned by the defendant at the wife. ^ time of pronouncing the decree, in her own right, and to the rents and profits thereof, shall not be taken away or impaired by such dissolution of the marriage ; and he shall also be entitled to such personal estate and things in action as may belong to the defendant or be in her pos- session at the time such decree shall be pronounced, in like manner as though the marriage had continued. Dower, &c. of § 48. A wife being a defendant in a suit for a divorce adultery! '^ ^ brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband's real estate, or any part thereof, nor to any distributive share in his per- sonal estate. Marriage after § 49. Whenever a marriage shall be dissolved, pursuant adultcrv. to the provisions of this Article, the complainant may marry again during the life time of the defendant ; but no defendant convicted of adultery shall marry again until the death of the complainant. ARTICLE FOURTH. Of Separations, or Limited Divorces. When scpara- § 50. A Separation from bed and board for ever, or for dccreeTon a > ^ limited time, may be decreed by the court of chancery, plication of the on the Complaint of a married w^oman, in the following " ifc. cases : 1. Between any husband and wife inhabitants of this state : 2. Where the marriage shall have been solemnized, or shall have taken place, within this state, and the wife shall be an actual resident at the time of ex- hibiting her complaint : o. Where the marriage shall have taken place out of this state, and the parties have become and re- mained inhabitants of this state, at least, one year and the wife shall be an actual resident at the time of exhibiting her complaint. NEW YORK REVISED STATUTES. 83 § 51. Such separations may be decreed for the follow- Causes for Ir,^ «„., . wliich separa- lngcau^es: ,io„s may be de- 1. The cruel and inhuman treatment by the husband creed. of his wife : 2. Such conduct on the part of the husband towards his wife as may render it unsafe and improper for her to cohabit with him : 3. The abandonment of the wife by the husband, and his refusal or neglect to provide for lier. § 52. The bill of the complainant in every such case RequisKes of shall specify particularly the nature and circumstances of the complaint on which she relies, and shall set forth times and places with reasonable certainty. § 53. The defendant in any such suit may be permitted Defence lo tUe to prove, in his justification, the ill conduct of the com- plainant ; and on establishing such defence to the satis- faction of the court the bill shall be dismissed. § 5 k Upon decreeing a separation in any such suit, the Further decrees court may make such further decree as the nature and foi smnwrt, 6cc. circumstances of the case may require, and may make such order and decree for the suitable support and main- tenance of the wife and her children, or any of them, by the husband, or out of his property, as may appear just and proper. § 55. Although a decree for separation from bed and Although no board be not made, the court may make such order or creed! '"" decree for the maintenance of the wife and her children, or any of them, by the husband, or out of his property, as the nature of the case renders suitable and proper. § 56. Where a decree for a separation for ever, or for Decree for a se- a limited period, shall have been pronounced, it may be '^''^^k °d^ ™^^ revoked at any time thereafter, by the same court by which it was pronounced, under such regulations and restrictions as the court may impose, upon the joint appli- cation of the parties, and upon their producing satis- factory evidence of their reconciliation. 84 SELECTIONS FROM THE ARTICLE FIFTH. General Provisions apitlicahle to the two last Articles. Married wo- ^ 57. If a married woman, at the time of exhibiting a i.abitiiiKs. ^^ against her husband, under the provisions of either of the two last Articles, shall reside in this state, she shall be deemed an inhabitant thereof, although her husband may reside elsewhere. Expense of suit ^ 58. In every suit brought either for a divorce or for a separation, the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit during its pendency; and it may decree costs against either party, and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver. Orders respect- § 59. In any suit brought by a married woman for a ing custody,', &c. j]iyQj.ce, or for a separation from her husband, the court of children. ' -i ' in which the same shall be pending may, during the pen- dency of the cause, or at its final hearing, or afterwards, as occasion may require, make such order as between the parties for the custody, care and education of the children of the marriage, as may seem necessary and proper, and may at any time thereafter annul, vary or modify such order. How orders for § 60. Whenever the court shall make an order or a wifemiVchil^ decree, requiring a husband to provide for the main- dren may be tenance of his children, or for an allowance to his wife, the court may require such husband to give reasonable security for such maintenance and allowance ; and upon the neglect or refusal of the defendant to give such security, or upon the default of him and his surety to provide such maintenance and allowance, the court may sequester his personal estate and the rents and profits of his real estate, and may appoint a receiver thereof, and NEW YQRK REVISED STATUTES. cause such personal estate, and the rents and profits of such real estate, to be applied towards such maintenance and allowance as to the court shall, from time to time, seem just and reasonable. PART III.— CHAPTER L— TITLE II. OF THE COURT OF CHANCERY. ARTICLE FIRST. Of the Constitution of the Court, and of its Officers and their Duties. § 1. The powers of the court of chancery are vested in Powers of ihe the chancellor. chancellor. § 2. Every circuit judge, within the limits of his circuit. Powers of dr- shall be a vice chancellor, and shall, concurrently with the vice chunceltors chancellor, and exclusively of any other circuit judge, have and exercise all the original jurisdiction and powers which now are or hereafter may be vested in the chan- cellor, in all causes and matters in equity, and in all matters of which the cognizance is or shall be vested in the chancellor, by virtue of any statute, in the following cases : 1. Where such causes and matters shall have arisen within the circuit of such judge : or, 2. Where the subject-matter in controversy shall be situated within such circuit : or, 3. Where the defendants, or persons proceeded against, or either of them, reside within such limits : Subject to the appellate jurisdiction of the chancellor, as herein provided. § 3. The vice chancellors shall not have power to dis- Not to dis- charge, reverse or alter any decree, order or act, made or (I'l's^&c. of"' done by the chancellor ; nor shall they have jurisdiction ciianceiior, of any appeal from, or of any proceeding in the nature of 86 Not to review. Sec. orders of the other vice chancellors, &c Exceptions. Causes which chancellor is to hear. Reference to vice chancellors, Taxation of costs. Other powers under direction of chancellor. Powers when chancellor is party to a suit. Register and assistant to at- tend certain courts. SELECTIONS FRq>I THE an appeal from, or review or rehearing of, any order or decree of the vice chancellor of any other circuit, or of any inferior court authorised by law to entertain any pro- ceedings in equity, or of any surrogate, except in those cases where an appeal to a circuit judge is expressly given by law ; and except where a cause or matter shall have been expressly referred to such vice chancellor for his decision thereon by the order of the chancellor. § 4. In all other cases than those in which the vice chancellors are vested with the powers of the chancellor, as herein before enumerated, proceedings shall be had before the chancellor, as heretofore practised in the court of chancery; but the hearing and decision of any motion, or of any cause set down for hearing before the chancellor, may be referred by his order to any vice chancellor, subject to the appellate jurisdiction of the chancellor. § 5. The exclusive power of taxing costs in the court of chancery shall be vested in the vice chancellors, and in such masters of the court, as the chancellor shall from time to time, by an order of the court, designate and appoint. § 6. The vice chancellors shall execute such other powers and duties, in relation to any matter pending in the court of chancery, as the chancellor shall from time to time direct, subject in all cases to his appellate jurisdiction. § 7. When the chancellor shall be a party to a suit in chancery, or interested in the event of such suit, the bill shall be addressed to and filed before some one of the vice chancellors, who shall proceed thereon as a court of chancery, and shall possess all the powers of that court in relation to the subject-matter of such bill ; and appeals from any order or decree of such vice chancellor shall be made immediately to the court for the correction of errors, in the same manner as if such order or decree had been made by the chancellor. § 8. The register of the court of chancery shall attend every court held by the vice chancellor of the third circuit, KEW YORK REVISED STATUTES. 87 and shall be the clerk thereof; and the assistant register shall attend every court held by the vice chancellor in the first circuit, and shall be the clerk thereof. The clerks of the court of chancery residing in the second and fifth circuits shall attend every court held by the vice chan- cellors of such circuits respectively. In each of the other Clerks in oilier circuits, a clerk of the court of chancery shall be ap- pointed, who shall attend every court held by the vice chancellor of such circuit, and shall keep an office in such place as such vice chancellor shall direct. § 9. The register and assistant register of the court of Bonds to be chancery hereafter appointed, before entering on the ^('.)'^&;c.^ "^^^ duties of their respective offices, shall each execute a bond to the people of this state, in the penalty of twenty thousand dollars, with two sufficient sureties, to be ap- proved by the chancellor, and conditioned for the faithful performance of the duties of his office. A similar bond. And by clerks in the penalty of ten thousand dollars, with sureties to be ""= »'*"'^^'~v- approved by the vice chancellor of the circuit, shall be executed by the clerks of the court of chancery now in office, within sixty days after this Title shall commence and take effect as a law, and by the clerks hereafter appointed, before entering on the duties of their respective offices. § 10. Such bonds shall be filed in the office of the Where to be comptroller of this state. § 11. If any such bond shall become forfeited by a Prosecutions breach of its condition, the chancellor shall direct it to i,o'iicis^"^ '^* " be prosecuted; and the monies recovered shall be ap- Application of plied, under his direction, for the indemnity of the per- """^^>'^'''-"" sons aggrieved by such breach, in proportion to the amount of their respective losses. § 12. The register and assistant register shall severally Custody of have the custody of all the minutes, books, records and ehanterv." papers now deposited, or that may hereafter be deposited in their respective offices ; and it shall be their duty care- fully to attend to the arrangement and preservation there- of. 88 Books, &c. of equity courts to be delivered to clerks in chancery. Delivery how compelled. Pending causes in equity courts. Transmission of books, &c. in chancery. Deposit of mo- ney received bv register, &c. SELECTIONS FROM THE § 13. Within ten days after this Title shall take effect as a law, the several clerks of the equity courts in the different circuits, shall deliver all the books and papers in their custody as such clerks, as follows: the clerk in the first circuit, to the assistant register of the court of chancery ; the clerk of the equity court of the second circuit, to the clerk in chancery residing in that circuit; the clerk in the third circuit, to the register of the court of chancery; the clerk in the fifth circuit, to the clerk in chancery residing in that circuit; and the clerks of the remaining equity circuits, to the clerks in chancery who shall be appointed in their respective circuits. § 14. Such delivery may be compelled in the manner prescribed in Article fifth of the sixth Title of the fifth Chapter of the First Part of the Revised Statutes. § 15, All causes and matters in equity which shall be pending in any of the equity courts at the time this Chapter shall commence and take effect as a law, shall be deemed to have been commenced and to be pending in the court of chancery; and all necessary further proceedings shall be had therein before the vice chancellor having jurisdic- tion in the manner prescribed in this Title. § 16. The register and assistant register may, under the direction of the chancellor, convey any of the records, books or papers, in their respective offices, to the office of each other, or to any other place, as the course of legal proceedings may require; and any papers on file in the office of any clerk of the court of chancery shall be trans- mitted to the register or assistant registei', whenever di- rected by the chancellor, either by special orders, or in the cases provided by the general rules to be established by him. § 17. All money brought into the court of chancery for or by any suitor, and paid to the register or assistant register thereof, shall be deposited in such banks as the court shall direct, and accounts thereof shall be kept NEW YORK REVISED STATUTES. 89 with the said banks in such manner and form as the court shall direct. § 18. All monies brought into the said court for or by When received any suitor, and paid to any clerk thereof, shall be deposited - clerks. in such bank as the vice chancellor of the circuit shall by general order direct, and accounts thereof shall be kept with the said banks in such manner and form as the vice chancellor shall direct. § 19. On the first Tuesday of January, and on the first Accounts of Tuesday of July, in each year, the several clerks of the b7"fe^;ks'fbf court of chancery shall transmit to and file with the re- sent to register. gister, a statement of all monies paid to such clerk then remaining in court, which shall specify : 1. The title of the cause in or on account of which Contents. such money was paid : 2. The party by vvhom paid, and generally for what purpose: 3. The time of payment, and the amount paid : 4. The bank in which the same is deposited. § 20. Such statement shall be accompanied by a certifi- Certificate of cate of the cashier of the bank in which such deposit is '^^^ "^'^* made, that the total amount stated to be deposited is ac- tually in the bank, placed to the credit of such clerk, as clerk of the court, and not mingled with any other ac- count. § 21. The chancellor may cause any of the monies so investment of brouijht into court, pursuant to any order made bv him, ""^"^T P^'d "»- •=>_ ' i- _ .' ' _ ' to court. to be invested in any public stock, or to be placed at in- terest on approved landed security, and from time to time to be transferred or disposed of as he shall think proper. The same power may be exercised by a vice chancellor, in respect to monies paid into court pursuant to any order of such vice chancellor. The party bringing money into Party paying court, pursuant to any order, shall in all cases be thereby discharged from all further liability, to the extent of the money so paid into court. ^ 22. The chancellor may also, from time to time, make T^"^'^^ conccrn- •^ J ' ' iiig money, &.c. 90 SELECTIONS FROM THE such rules and regulations concerning such monies, stocks and securities, and concerning the making of the deposits, and keeping of the accounts, and the drawing of the monies, as he shall deem just and reasonable; hut all ruch rules and regulations shall be entered in the minutes of the court. Deposit when 1^ 23. No mouies brought or paid into the court of chan- cery, and deposited in any bank to the credit of any officer of the court, shall be paid out by such bank without the production of the order of the court for that purpose, authenticated by the signature of the chancellor or vice chancellor making such order. Stocks, &c. § 24. All stocks and securities taken by order of the name o" re^tr'ister court, for the benefit of the suitors therein, shall, if ap- &c. accounts bj pointed to be taken in the name of any officer of the tlieill. 11-1 n I • court, be taken m the name oi the register or assistant register, or of one of the clerks of the court, who shall severally keep just and full accounts of all monies, stocks and securities, that shall come to their hands by virtue of their offices, and of all payments and investments made by them. To be exhibited § ^^^ Oi^ the first day of every term, the register, or each term. assistant register, as the case may be, residing in the city in which the term is held, shall exhibit his bank account, and also the account kept by him, to the chancellor for his examination. Successor of re- § ^^' ^" ^^^® death, removal from office, or resignation, gistcr, &c. to be of the register or assistant register, or of any clerk of the vested with ii i i i i • • i • stock &c. court, all stock, mortgages, and other securities vested m him, at the time of such death, removal or resignation, by virtue of any proceedings of the court, shall vest in his successor in office, in like manner as if such register, as- sistant register or clerk, had been created a corporation sole with right of succession. And entitled to § ~^- AH money deposited in any bank, to the credit of money deposit- gup}^ register, assistaut register or clerk, as such, shall, edrnthe banks. ■, . , , , ? „, • • i upon his death, removal from office, or resignation, be NEW YORK REVISED STATUTES. 91 carried to the account of his successor in office ; and every sucli bank shall take notice thereof and transfer such ac- counts accordingly. § 28. The Serjeants of the court of chancery shall at- Serjeants of tend the court while sitting in the place for which they ^ ^'"^^'■y* shall have been respectively appointed, and shall perform such services in and about the court as the chancellor shall from time to time require. §29. The sherifis of the respective counties shall be The sheriffs of officers of the court of chancery for the purpose of exe- of court!" cuting the process of the court. § 30. The sheriff to whom such process shall be di- Their duties. rected shall be amenable to the court in its execution, and may be punished for his disobedience or default therein in the manner prescribed by law. §31. The sheriff of the county in which any stated Sheriffs to at- term shall be held by the chancellor, or by any vice chan- [^^^^ own coun- cellor, shall, upon pain of being fined in the discretion of tics. the court, be bound to give his attendance during its sit- ting, in such manner as the court shall direct ; and the Powers ami sheriff so attending shall execute all the powers and "''^** duties of a serjeant-at-arms, and may execute all the law- ful orders and process of the court in any county of this state. § 32. If an application for an order that an injunction or Applications writ of fie exeat issue be made to the chancellor, or any vice l"*" "UU"ctions, ' *' (Xc. to n)asters chancellor, or any master in chancery authorised to grant not to be made .1 1111 r 1 • 1 1 • I. ill certain cases, the same, and such order be refused ni whole or m part, or be granted conditionally or on terms, no subsequent application for the same purpose, and in relation to the same matter, shall be made to any other master in chan- cery. § 3o. If upon any such subsequent application any Orders therein order be made by a master in chancery, it shall be abso- ^"' lutely void, and shall be revoked by such master, or by the chancellor, or the vice chancellor of the circuit in which such master resides, upon due proof of the facts. 92 SELECTIONS FROM THE § 34. Every person making such subsequent applica- tion, contrary to the foregoing provisions, shall be liable to be punished by fine and imprisonment by the court in which the application shall be made, and shall be pro- ceeded against as prescribed in the thirteenth Title of the eighth Chapter of this act. § 35. All proper expenses for the administration of the court of chancery, the safe keeping of its records and papers, and other purposes of the court, shall be paid out How accounted of the income of the general fund of the court. The re- gister, assistant register, or clerk, making any such expen- ditures, shall report to the comptroller, on or before the first day of January in each year, the amount and pur- poses of such expenditure. Punisliment of persons so aj)- pl^ing. Expenses of tlie court, how paid. for, ARTICLE SECOND. Of the General Powers, Duties, and Jurisdiction of the Court. § 36. The powers and jurisdiction of the court of chan- cery are co-extensive with the powers and jurisdiction of the court of chancery in England, with the exceptions, additions, and limitations, created and imposed by the constitution and laws of this state. § 31. The court of chancery shall dismiss every suit concerning property, where the matter in dispute, exclu- sive of costs, does not exceed the value of one hundred dollars, with costs to the defendant. § 88. Whenever an execution against the property of a cLrn/o™''^^ defendant shall have been issued on a judgment at law, properu, &c. of and sliall have been returned unsatisfied in whole or in part, the party suing out such execution may file a bill in chancery against such defendant and any other person, to compel the discovery of any property or thing in action belonging to the defendant, and of any property, money, or thing in action due to him, or held in trust for him ; and to prevent the transfer of any such property, money, Jurisdiction of chancery. Certain suits to be dismissed. Judgment credi- deftndant, and prevent its transfer. NEW YORK REVISED STATUTES. 93 or thing in action, or the payment or delivery thereof, to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. § 39. The court shall have power to compel such dis- Property not , . 1 , r J. 1 ^• liable to execu- covery, and to prevent such transfer, payment, or dehvery, tion may be and to decree satisfaction of the sum remaining due on appiit^d to the satisiaction of such judgment, out of any personal property, money, or judgment. things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not. § 40. In suits for the payment or recovery of money, Set-otVs. set-offs shall be allowed in the same manner, and with the like effect, as in actions at law. § 41. A bill of discovery may be filed, and the defend- Bills to discover ant shall be compelled to answer such bill, where the fusing of judg- defendant is charged with having given to another person a meats. warrant of attorney to enter up a judgment, or with having confessed or suffered any judgment, purporting to be for a sum or debt due, when in fact nothing, or only a part of the sum mentioned in such warrant of attorney or judg- ment, is due, with intent to defraud the just creditors of such defendant, or to place the property of the defendant out of the reach of his creditors, or to hold the same on some secret trust or confidence, or for the benefit of such defendant. § 42. No answer made to any bill, filed under the last Answers, when section, shall be read in evidence against the defendant "°' evidence. on the trial of any indictment for fraud charged on the bill. § 43. To render the filing of the bill in chancery con- Purchaser of structive notice to a purchaser of any real estate, it shall ^f'*' «^state how '-,'', charged with be the duty of the complainant to file with the clerk of notice of bill the county in which the lands to be affected by such con- ' '^' * structive notice are situated, a notice of the pendency of 94 Duty of county clerk. Oath to answer may be waived. Trial of certain issues. Chancellor to establish rules for practice, &c. Prolixity in pro- ceedings, how punished. SELECTIONS FROM THE such suit in chancery, setting forth the title of the cause and the general object thereof, together with a descrip- tion of the land to be affected thereby. Each county clerk shall place in an index to be kept in his office such references to the said notices, as will enable all persons in- terested to search his office for such notices without in- convenience. § 44. When a bill shall be filed in the court of chan- cery other than for discovery only, the complainant may waive the necessity of the answer being made on the oath of the defendant ; and in such cases the answer may be made without oath, and shall have no other or greater force as evidence than the bill. § 45. All issues upon the legality of a marriage, (except where a marriage is sought to be annulled on the ground of the physical incapacity of one of the parties,) shall be tried by a jury of the country, and the chancellor shall award a feigned issue for the trial thereof. § 46. The chancellor shall have power from time to time, by general rules of court, to establish, modify, alter, and amend, the practice of the court of chancery in the cases not provided for by any statute. And the chancel- lor shall, within two years after this chapter shall com- mence and take effect, and at the expiration of every seven years thereafter, revise the rules of the said court, with a view to the attainment, so far as may be practicable, of the following improvements in the practice. 1. The abbreviating of bills, answers, and other pro- ceedings : 2. The expediting of the decision of causes : 3. The diminishing of costs : and, 4. The remedying of such abuses and imperfections as may be found to exist in the practice, in any class of suits cognizable in the court of chancery. § 47. Whenever any bill, answer, or other proceeding, filed in the court of chancery, shall satisfactorily appear to the chancellor to have been made unnecessarily prolix, NEW YORK REVISED STATUTES. 95 for the purpose of increasing the costs, it shall be the duty of the chancellor to order the solicitor or counsel by whom such bill, answer, or other proceeding, shall have been drawn, to pay the costs occasioned by such unnecessary prolixity to the party injured thereby. ARTICLE THIRD. Of the Terms of the Court, and the Mode of Proceeding therein. § 48. The stated terms of the court of chancery shall Stated terms of be appointed by the chancellor, and may be altered by *^^^' him, from time to time, as the pubhc convenience may re- quire ; but two terms, at least, shall be held in the city of Albany, and two in the city of New York in every year. § 49. Every stated term shall be held eight days, at llow long to be least, and longer, if necessary. § 50. The vice chancellors of the several circuits shall Stated terms by hold four stated terms in each year, at such times and in such counties in their circuits as they shall respectively appoint, at the usual places of holding courts therein ; and when so appointed, the said terms shall remain unaltered for two years. They may also hold so many special terms, Special terms. and at such times and places as they shall deem proper. § 51. A stated or special term may be held by a vice chancellor at the same time that any such term shall be held by the chancellor. § 52. The chancellor shall, by general rules of court, Chancellor to prescribe the time and manner in which proceedings may '■'^.s^J^''^ F"- i r o J ceedings bctore be had and causes brought to a hearing, before the vice vice ciiancellors, chancellors, pursuant to the provisions of this Title, and the cases in which a rehearing may be granted by them. § oo. Whenever a vice chancellor shall be unable to Terms of vice hold any stated term in his circuit, or shall be interested ^viieirto°be held in the event of any cause or matter to be heard at such b' another, or term, or shall have been solicitor or counsel in any such ceilor. cause, any other vice chancellor may hold the same, or 9Q SELECTIONS FROM THE may hear and decide any such cause or niattev, in the same manner and with the hke effect as if he was the vice chan- cellor for such circuit: or such term may be held by the chancellor. Bills fo be ad- § 54. All bills and petitions in the court of chancex'y chancellor. '^ shall be addressed to the chancellor: such as relate to a cause or matter in equity, which, according to the provi- Certain bills to visions of this Title, may be heard by a vice chancellor, vfcl'diancdlor! shall be presented to such vice chancellor, and shall be filed with the clerk of the court residing in such circuit: or if presented to the vice chancellor of the third circuit, shall be filed with the register; and if presented to the „., , , vice chancellor of the first circuit, shall be filed with the Where to be _ _ ' filed. assistant register. Other bills, &(■• § 55. In all Other cases than those provided for in the re"is^ter*^&c " ' pi'eccding section, all bills and petitions shall be filed in the office of the register or assistant register of the court, who shall also respectively perform all the duties here- tofore attached to the office of clerk of the court of chan- cery. Other pleadings, § 56. Auswcrs, pleas, demurrers, replications, and all other pleadings and proceedings in any cause, which, according to the provisions of this Title may be heard by a vice chancellor, shall be filed in the office of the re- gister, assistant register or clerk, with whom the bill or petition in the cause was filed; in other cases, such pleadings and proceedings may be filed in the office of the register, assistant register, or any clerk, or in such of them as the chancellor may by general rules direct. Proceedings by § 57. In the cases in which the vice chancellors have and powers of jurisdiction, according to the provisions of this Title, they vicechancellors. '' , ° * _ . , shall respectively proceed upon the bills and petitions presented to them, and shall possess all the povrers and authority of the court of chancery, except where dif- ferent provisions have been or shall be made by law; subject in all cases to the appellate jurisdiction of the chancellor. NEW YORK REVISED STATUTES. 97 § 58. All orders and decrees in the court of chancery Orders and de- •' 111- crces, how to be shall be entitled as made before the chancellor, or vice entitled and en- chancellor, according to the fact. All orders in a cause ''''^'^''* shall be entered with the clerk of the court, or with the register or assistant register officiating as clerk of the court which entertains jurisdiction of such cause, in the same manner as if made by the chancellor. S 59. Any party complaining of any interlocutory or Time of appcal- , , . n ^ t 11 • i'lff from de- other order, previous to a final decree made by any vice crces, &c. of chancellor, may, within fifteen days after notice of such vicechancellors. order, appeal therefrom to the chancellor. And any party complaining of any final decree made by a vice chancellor, may appeal therefrom to the chancellor, within six months after such decree shall have been entered in the minutes of the court; and such appeal may be made, notwithstanding the decree may have been enrolled. § 60. Every such appeal shall be made by serving How made, notice thereof on the sohcitor of the adverse party, and on the register, assistant register or clerk, with whom the order or decree appealed from was entered. §61. The chancellor shall, by general rules, to be Ciianccllor to . 1 . . •! ii ia? i r 11 prescribe effect varied as occasion may require, prescribe the eiiect oi all of decrees and orders and decrees made by a vice chancellor, either be- proceedings on 1 1 n 1 • • 1 appeals. fore or after notice of an appeal shall be given; in what cases, to what extent, and on what terms, any such order or decree shall be suspended or affected by an appeal; the manner in which appeals shall be brought to a hear- ing before him; and the papers and documents which shall be transmitted therewith, and by whom. §62. On the hearing of any such appeal, the chan- Powers of the cellor shall annul, affirm, modify or alter the order or ^J^^■^J^„ .,npeal. decree appealed from, or make any other order in the cause, as justice may require; and may remit the cause to the vice chancellor who made the order appealed from, for further proceedings, or may direct the same to be had before himself, as the circumstances of the case may re- quire. H 98 He may hear causes com- menced before vice chancellors. Appeals to the court of errors. Forms of pro- cess. To be sealed ,&c. Present seals re- tained, and where to be de- posited. Four new seals to be made. Where to be de- posited. Certain blank process to be furnished to so- licitors. SELECTIONS FROM THE § 63. Whenever a cause, which might be heard by a vice chancellor, shall be ready to be set down for hearing, either party may apply to the chancellor for leave to set down the same for hearing before the chancellor; and he may direct the same to be set down accordingly, whenever from the difficulty of the case, or for any other reason, he shall think proper. § 64. An appeal shall not be made from any order or decree made by a vice chancellor to the court for the correction of errors, until such order or decree shall have been brought before the chancellor for review, and shall have been by him reversed, modified, or affirmed; except in cases where the chancellor is a party or interested. § Co. Process issued out of the court of chancery shall be in such form, expressive of the intent, as the chan- cellor shall from time to time establish. § 66. Every such process shall be sealed with one of the seals of the court, and when, from its nature, requir- ing to be executed by the sheriiF of any county, shall be directed to such sheriff. § 67. The four seals of the court heretofore devised shall continue to be the seals thereof. One of the said seals shall continue to be deposited with the assistant re- gister in the city of New York, one with the register in the city of Albany, one with the clerk of the court at the village of Poughkeepsie, and one with the clerk at the village of Utica. § 68. There shall be four additional seals of the court of chancery, which shall be made at the expense of this state, under the directions of the chancellor, correspond- ing to the present seals of the court; one of which shall be deposited with each of the clerks in the fourth, sixth, seventh and eighth circuits. § 69. It shall be the duty of the register, assistant re- gister and clerks in chancery, to furnish to any solicitor of the said court, when required, and upon payment of the fees allowed by law, blank process to appear and answer to bills, and ])lank process to compel the attendance of NEW YORK REVISED STATUTES. 99 witnesses before any vice chancellor, examiner or com- missioner, with the seal of the court impressed thereon, and with the name of such process printed on the body of such seal. § 70. Process for appearance shall not issue from the SubpcEiias court of chancery until the bill praying the same shall "''<^" '"issue. have been filed. § 71. No injunction shall be issued in any case until injunctions. the bill shall have been filed. § 72. When a commission shall be issued to take a de- Commissions to fendant's answer, no copy or abstract of the bill shall be ^^'^'^ answers. annexed thereto. § 73. When a defendant, brought into court by writ of Defendant re- habeas corpus or other process, shall neglect or refuse to '"^'"8*" appear. enter his appearance according to the rules of the court, the court shall order his appearance to be entered, and the suit shall then proceed as if the party had actually appeared. § 74. In all cases not otherwise provided for by law, Defaults, &c. bills shall be taken as confessed, and orders and decrees may be made by default, according to such rules as the chancellor shall from time to time establish. § 75. When the appearance of a defendant shall have Service of been entered according to the practice of the court, it p'eadmgs.&c. shall be the duty of the complainant to serve on the party so appearing copies of the pleadings and proceed- ings at any time filed in the cause on the part of the com- plainant. § 76. It shall in like manner be the duty of a defend- ant, after appearance, to serve on the complainant copies of all pleadings and proceedings so filed on the part of such defendant. § 77. If the complainant or defendant shall have ap- peared by a solicitor, the service of the pleadings and proceedings shall be made on or by such solicitor. § 78. The chancellor may direct a commission to be is- Commissions to sued to any person or persons, to take testimony in any * ^ csnuon^. H 2 100 SELECTIONS FROM THE How issued. Proceedings to obtain coniniis- sion. Notice of appli- cation. Powers of com- missioners. cause depending in the court of chancery. The vice chancellors may also direct such commission to be issued in those causes which they are respectively authorised to hear by the provisions of this Title. § 79. Such commission may also be issued by the re- gister, assistant register, or either of the clerks, under such regulations as the chancellor may from time to time prescribe. § 80. Such commission shall be issued upon the petition of the party desirous that such testimony should be taken. § 81. The petition must name the person or persons to whom the commission is prayed to be directed ; and such notice of the application shall be given to the adverse party, as the chancellor shall, by a general rule of court, direct. § 82. The person or persons so commissioned shall have full authority to administer all necessary oaths or affirmations to all witnesses examined under the commis- Witnesses, how examined, &c. When before vice chancellor. On order of chancellor. Not to be other- wise examined. § 83. The respective parties and their counsel may be present at the examination of any witness, produced before a vice chancellor or an examiner, or under a commission ; and every such witness may be examined, cross-examined, and re-examined orally. § 84. Whenever it shall appear to a vice chancellor, that it is expedient that the witnesses in any cause autho- rised to be heard by him should be examined in the pre- sence of such vice chancellor, he shall order such examina- tion to be had accordingly either at a stated or special term. § 85. Whenever it shall appear to the chancellor, that it is expedient that the witnesses in any cause not autho- rised to be heard by a vice chancellor should be examined by a vice chancellor, the chancellor shall order such ex- amination to be had before any vice chancellor to be designated by him. § 86. Whenever any order for the examination of wit- NEW YORK REVISED STATUTES. 101 nesses shall have been made, as provided in the two last sections, no witness shall be examined by either party before an examiner, or upon a commission, without the special direction of the chancellor or vice chancellor making such original order. § 87. The chancellor shall prescribe rules for the ex- Rules lo be pre- amination of witnesses, so that an order may be entered by either party, requiring the adverse party to proceed and finish such examination within such time as the chancellor shall by general rules direct, and precluding any further or other examination of witnesses after the expiration of such time, without the special order of the chancellor or of the vice chancellor authorised to hear the cause. § 88. The chancellor may froix) time to time make such Examination of 1 1 1 II ,1 • 1 • ii • i' witnesses before rules as he shall thmk proper concernmg the exammation examiners. of witnesses before examiners or commissioners within this state, and concerning the use of written interrogato- ries for the examination of witnesses residing out of this state. § 89. The testimony of all witnesses shall be reduced Testimony' iiow to writing; and when taken before a commissioner or *'''^"- examiner shall be signed by the witnesses and filed in the office of the clerk of the court, or register, or assistant register, in which the bill and other proceedings in the cause shall have been filed. § 90. Subpoenas to hear judgment shall not be neces- Bringing causes sary; but all causes shall be brought to hearing under '" '"^^rmg. such rules as the chancellor shall from time to time pre- scribe. § 91. After the expiration of thirty days from the time Record of pro- a final decree shall have been entered in the minutes of Ij^ade and srcTied the court, if no ap])eal shall have been entered therefrom, and if no petition for a rehearing shall have been pre- sented, upon being required by either party, the register, assistant register, or clerk, by whom such final decree shall have been entered, shall attach together the bill, pleadings, and other papers filed in the cause, together with the taxed bill of costs therein, and shall annex thereto 102 SELKCTIONS FUOM THE a Mr engrossed copy of the decretal order of the chan- cellor or vice chancellor, signed by the chancellor or by the vice chancellor rendering such decree, and counter- signed by the register, assistant register, or clerk who en- tered the same. Wlieic filed, &c. § 92. The papers and proceedings so attached, annexed and signed, shall then be filed by the register, assistant register, or clerk, and shall remain of record in his office ; and such filing shall be deemed an enrolment of the de- cree and proceedings, with the like eftect as was formerly given to enrolled decrees. Certain decrees § 93. The register and assistant register, or clerk, shall make and preserve an alphabetical docket, in which shall be entered, upon the request of any party thereto, all final decrees so filed and enrolled directing the payment of any debt, damages, costs, or other sum of money. Contents of the § 94. Upon such request being made, and on the party emend ^^"^ P^yi^g the fees allowed for docketing such decree, and for making and sending transcripts of such docket as herein- after directed, the register, assistant register, or clerk, shall enter in such docket a statement of such decree, containing, 1. The names at length of all the parties to such de- cree, designating particularly those against whom it is rendered, the county of which they are re- spectively residents, if they are residents of this state, and if not, the state or country in which they reside, and their title, trade or profession, if any such be stated in the proceedings on which the decree is founded : 2. The amount of the debt, damages, costs, or other sum of money directed to be paid by such decree : 3. The hour and day of entering such docket : And such statement shall be repeated under the name of each person against whom the decree was rendered, in the alphabetical order of their names respectively. Transcripts tobe § 95. The register, assistant register, or clerk, entering sent to clerks of g^^(,|^ dockct, shall immediately transmit a certified tran- suprenie court. o ^ script thereof to each of the clerks of the supreme court NEW YORK REVISED STATUTES. 103 in the cities of New York and Albany and in the village of Utica ;*' and the said clerks, on the I'eceipt thei'eof, shall immediately enter such transcripts, with their dockets of judgments in the supreme court, in the same manner as the transcripts of such judgments, except that they shall designate in the margin of such entry that the same is made of a decree in the court of chancery. § 96. Every final decree, which shall hereafter be made Dockeiing cer- in the court of chancery, directing the payment of any b^UI'^^^reaTestato debt, damages, costs, or sum of money, shall bind and be a charge upon the lands, tenements, real estate, and chat- tels real, of every person against whom such decree shall be rendered, which such person may have at the time of the docketing of such final decree by the register, assistant register, or clerk, as herein-before directed, or which such person shall acquire at any time thereafter. § 97. Every such final decree shall cease to be a lien, or when charge to to bind any such property, against purchasers in good *^^'^^*^ '" <^^'"'^'" faith, and against incumbrances subsequent to such decree, by mortgage, judgment, decree, or otherwise, from and after ten years from the time of filing such decree. § 98. Upon producing and filing with the register, Disciiarge of de- assistant register, or clerk, with whom any decree may ""^^ ^' P**"^'^' have been docketed, a written acknowledgment by the party in whose favour such decree was rendered, that he has been fully paid and satisfied the amount of all monies directed to be paid by such decree, certified by some vice chancellor or master in chancery to have been duly ac- knowledged before him by the party signing the same, and that such party was known or made known to him by com- petent proof, the register, assistant register, or clerk, shall enter in the docket of such decree a satisfaction and dis- charge thereof; and such decree shall thereupon be dis- charged and be of no force or validity. § 99. The court shall have power to order the docket By court. of a decree to be discharged, upon a hearing of the par- * And by a subsequent law, in the ollicc of the clerk of the suiireme court in the village of Canandaigua. 104' SELECTIONS FROM THE ties, and upon satisfactory evidence that such decree has been fully paid and satisfied. Disciiiirge, kc. § 100. Upon any decree being so discharged, and upon ^?,,'',t.^°"'''^V° any decree being wholly reversed or vacated, the register, clerks. assistant register, or clerk, with whom the same may have been filed, shall immediately transmit to the clerks of the supreme court a certificate of such facts, who shall there- upon enter in the transcript of the docket of such decree the fact that the same is discharged, revei'sed, or vacated. Lusts for prolix § 101. When it shall appear to the chancellor, to a vice and iieedlfssdc- -i ' n . , ,i • -i • ^ positions. Chancellor, or to any master authorised to tax costs m the court of chancery, that the depositions of any witnesses have been unnecessarily prolix, or that such depositions were unnecessary in the cause, the charges therefor shall be disallowed in the taxation of costs, either as against the adverse party or as between soHcitor and client. And the Other proceed- chancellor or vice chancellor may, at the hearing of any "'^^" cause, order that no allowance shall be made to a solicitor for any such depositions, or for any other proceedings which shall appear to have been unnecessary, or for any pleading which shall appear to have been unnecessarily prolix. Books of mi- ^ 102. Such of the minutes of the court as the chancel- lor shall direct, shall be fairly transcribed into books to be provided for that purpose, in such manner and under such regulations as he shall prescribe. Eilcct (hereof. § 103. Sucli transcripts, after they shall have been duly compared v.'ith the original and approved by the chan- cellor, shall have the like effect as the original minutes of the court. Executions on ^ 104. The court may enforce performance of any de- cree or obedience thereto by execution against the body of the party against whom such decree shall have been made; or by execution against the goods and chattels, and in default thereof, the lands and tenements of such party. But no process shall be issued on any final decree, until the same shall have been enrolled as hereinbefore provided. NEW YORK REVISED STATUTES. 105 § 105. Until an actual levy, no goods or chattels shall Levy on per- be bound by such execution as against a purchaser with- ^"""' pr"l'*-'''y- out notice. § 106. Whenever a bill shall be filed in any court of Notices in ccr- equity for relief, for the benefit of the creditors generally If^i'^iisted.''"'' of any person or of any estate, or for the benefit of any other persons than the complainants, who will come in and contribute to the expense of such suit, every order which may be made thereon, requiring such creditors or other persons to exhibit their demands, shall, in all cases, be published once in each week, for at least three weeks, and as much longer as the court may direct, in the state paper, and in a newspaper printed in the county where such de- mands are required to be exhibited. § 107. When the cause of action shall survive, no suit Abatement of in chancery shall abate by the death of one or more of the "-""^'^^• complainants or defendants ; but upon satisfactory sug- gestion to the court of such death, the suit shall proceed in favour of or against the surviving parties. § 108. When one or more of the complainants or de- To abutc oni_y as fendants shall die, and the cause of action shall not sur- " '''"'-^ •^"'°' vive, the suit shall abate only as to the person or persons so dying, and the surviving parties may proceed without reviving the suit. § 109, No bill of revivor shall be necessary to revive a Certain suits suit against the representatives of a deceased defendant ; "^^ «evive . but the court may, by order, direct the same to stand re- vived upon the petition of the complainant. § 110. A copy of such order shall be served upon the Service of order, representatives against whom the revival is ordered, who *" *^' shall be allov/ed eighty days after such service to appear and answer or disclaim. § 111. If they shall not, within that time, appear and Proceedings answer or disclaim, the court, upon due proof of the ser- "ppeann'" '&c" vice of such order, may cause their appearance to be en- tered ; and in such case, the answer of the deceased party shall be deemed the answer of such representatives. 106 SELECTIONS FROM THE Proceedings wlieii further answer re- quired. Revival of cer- tain suits. Proceedings. To compel re- presentatives to proceed. § 112. In such case, if no answer shall have been filed by the deceased party, the court may, in its discretion, order the bill to be taken as confessed against such repre- sentatives, or compel them to answer by attachment or otherwise. § 113. If the deceased party shall have answered, and the complainant shall deem it necessary to obtain a fur- ther answer from his representatives, the petition for re- vival shall state the matters as to which such further answer is required, and a copy of such petition shall be annexed to a copy of the order to be served on such re- presentatives. § 114. In such case, if the representatives shall not ap- pear and put in such further answer, or disclaim, within eighty days after the service of the petition and order, the court, upon due proof of such service, may order tlie peti- tion to be taken as confessed, or compel such further an- swer by attachment or otherwise. § 115. When a complainant shall die, and the cause of action shall not survive, his representatives may, on affi- davit of such death, and on motion in open court, be made complainants in the suit, and be permitted, if necessary, to amend the bill, § 116. The defendant shall be compelled to answer such amended bill, and the causes shall proceed to issue and a hearing as in ordinary cases. § 117. When the representatives shall not cause them- selves to be made complainants within eighty days after the death of a deceased complainant, the surviving com- plainant may proceed to make them defendants in the suit as in cases where the representatives of a deceased de- fendant are made parties. § 118. If there be no surviving complainant, or he shall neglect or refuse to proceed against the representatives of the deceased complainant as defendants, the court, upon the petition of the original defendants, may order such representatives to show cause, at a certain day to be NEW YORK REVISED STATUTliS. 107 named in such order, why the suit should not stand re- vived in their names, or the bill be dismissed, as far as the interests of such representatives are concerned. § 119. If no such cause be then shown, the court, upon proof of the reasonable service of a copy of the order upon such representatives, may order the revival of the suit in their names, or the dismissal of the bill with costs, or otherwise. § 120. If a defendant shall die, and the cause of action Revival by de- shall not survive, and the complainant shall neglect or /;"[,"" ^ ^""^ refuse to procure an order for the revival of the suit, the court may order it to stand revived, upon the petition of a surviving defendant, against the representatives of the de- ceased party. § 121. In such case, the surviving defendant may pro- ceed against such representatives in the same manner as a complainant, to compel them to appear, abide the an- swer of the deceased party, or answer, if an answer be required, or to have the bill or his petition taken as con- fessed against them ; and the court may, in its discretion, stay the suit as against him until such proceedings shall have been had. ARTICLE FOURTH. Of Proceedings against Absent, Concealed, aiid Non- Resident Defendaids. \ 122. After the filing of a bill, the court shall make an Cases in wiiicii order for the appearance of a defendant at a future day "[.^.^'^to^bemadc! therein to be specified, as herein after directed in the fol- lowing cases : 1. When the defendant resides out of this state, upon proof by affidavit of that fact : 2. When the defendant is a resident of this state, upon proof by affidavit that process for his appear- ance has been duly issued, and that the same could not be served by reason of his absence from, or 108 SELECTIONS FROM THE concealment within, the state, or by reason of his continued absence from the place of his residence. Time for iip- § 123. The Order shall require the defendant to appear pearaiite. ^^^ answcr the bill as follows : 1. If he be a resident of the state, within three months from its date: 2. If he be not a resident of this state, but of some other of the United States, or of one of the terri- tories thereof, or of either of the provinces of Canada, within four months from its date : 3. If he be a resident of any other state or country not before mentioned, within nine months from its date. Order, how § 124. Such ordcr shall be published, within twenty published. Jays after it shall have been made, in the state paper, and such other public paper printed in this state as the court may direct, for eight weeks in succession, and once at least When publica- in cach wcck ; but such publication shall not be necessary tion not neces- . .-..i r>iiiiii i" saj in any case m which a copy oi such order shall have been served on such absent, concealed, or non-resident defend- ant, personally, at least twenty days before the time pre- scribed for the appearance of such defendant. Time for ap- § 125. The chancellor may, if necessary, by further pearing how en- Qj.jjgj. extend the time for the appearance of such defend- ant, and in that case shall direct the publication of such further order for so long a time as he shall fix. Proceedings on § 126. If the defendant shall not appear wdthin the default. ^-j^g limited in the order, upon due proof such publication as shall have been required, or of the personal service of such order as herein provided, the complainant's bill shall be taken as confessed, and the court shall direct a refer- Heference, &c. encc to a master to take proof of the facts and circum- stances stated in such bill. Duty of master. § 127. The master to whom such reference is made shall take such proofs as may be offered. The bill shall not be considered as evidence of any fact stated therein; but when so directed by the chancellor, the master may receive the testimony of the complainant as evidence. NEW YORK REVISED STATUTES. 109 § 128. Whenever the liill shall have been filed for the When complain- ant mu mined. payment or satisfaction of any sum of money, the court ^"'^ ™"*' ^^ ^^^ shall direct that the complainant be examined by the master as to any payments that may have been made to him, or to any person for his use, on account of the de- mand mentioned in the bill, and which ought to be cre- dited on such demand. § 129. The master shall report the proofs and exami- Master to re- nations had before him ; and on the coming in thereof, P'"^^' ^'^' the chancellor shall make such order thereupon as shall be just. § 130. Process shall then issue to compel the perform- Decree howen- ance of such decree, either by sequestration of the real *'"^*^'^'^- and personal estate of the defendant, or such part thereof as shall be deemed sufficient ; or where any specific estate or effects are demanded by the bill, by causing possession of the property so demanded to be delivered to the com- plainant. § 131. Possession, in the case last mentioned, shall not Security re- be delivered until the complainant shall have given such ^^l"^^^ '" '^^^' i ^ tarn cases. security, and in such sum as the court shall direct, to abide the order of the court touching the restitution of the es- tate or effects delivered, in case the defendant shall ap- pear and be admitted to defend the suit. § 132. Upon the like security being given, the court, when a sequestration shall have issued, may order the decree to be satisfied out of tlie estate and effects seques- tered ; but if such security shall not be given, the estate and effects sequestered shall remain under the direction of the court to abide its further order. § 133. If the defendant against whom such decree shall When defend- have been made, or his representatives, shall afterwards bilJ,""*^ answer appear and petition to be heard, the party so petitioning, upon paying, or securing to be paid, such costs as the court shall adjudge, shall be admitted to answer the com- plainant's bill; and the suit shall then proceed in like 110 SELECTIONS FROM THE Time when. When decree to be confirmed. Decree against mortgagors. When to ap- pear, &c. Sales made not aflfected by de- fendant's ap- pearing. Complainant to account to de- fendant. manner as if such defendant had appeared in due season and no decree had been made. § 134. The defendant, or his representatives, must so appear within one year after notice in writing of the de- cree shall have given to him or them ; and within seven years after the making of the decree, when such notice shall not be given. § 135. If the defendant or his representatives shall not so appear before the expiration of one year after such notice shall have been given, and if not given, of seven years after the making of the decree, the court shall then, by order, confirm the decree against the defendant, and against all persons claiming under him by virtue of any act subsequent to the commencement of the suit, and may make such further order in the premises as shall be just and reasonable. § 136. If the bill shall have been filed to procure the foreclosure or satisfaction of a mortgage, the court, instead of proceeding to a sequestration in the manner herein be- fore directed, may decree a sale of the mortgaged pre- mises, or of such part thereof as may be necessary to dis- charge the mortgage and the costs of suit, as in other cases. § 137. In the case mentioned in the last preceding sec- tion, if the defendant, at any time before the sale of the mortgaged premises, shall appear and pay to the com- plainant such costs as the court shall award, the court shall stay the sale; and the same proceedings shall be thereafter had, as if the defendant had been served with process and had regularly appeared. § 138. No sale and conveyance regularly made under the preceding provisions, upon a bill filed for the fore- closure or satisfaction of a mortgage, shall be affected or prejudiced by the appearance of the defendant within the one year, or the seven years herein before specified, nor by any other proceeding ; but such defendant, or his repre- sentatives, may at any time within seven years after the NEW YORK REVISED STATUTES. Ill decree ordering such sale file a bill against the complain- ant, or his repi'esentatives, to account for all monies re- ceived by them by virtue of such decree, over and above the amount justly due on the mortgage and costs of suit; and the court shall proceed upon such bill according to the equity of the case. ARTICLE FIFTH. Of the Granting of Injunctions to stay Proceedings at Law. § 139. No injunction shall be issued to stay the trial of Staving trials in any personal action at issue in a court of law until the P*^"^^""'' party applying therefor shall execute a bond, veith one or more sufficient sureties, to the plaintiff in such action at law, in such sum as the chancellor or master allowing the injunction shall direct, conditioned for the payment to the said plaintiff and his legal representatives of all monies which may be recovered by such plaintiff or his represen- tatives, or the collection of which may be stayed by such injunction, in sucli action at law, for debt or damages, and for costs therein ; and also for the payment of such costs as may be awarded to them in the court of chancery in the suit in v/hich such injunction shall issue. § 140. No injunction shall be issued to stay proceedings Proceedings at law in any personal action after verdict and before judgment thereupon, unless a sum of money, equal to the amount for which the verdict was given and the costs of suit, shall be first deposited with the court of chancery, by the party applying for such injunction, or a bond for the payment thereof shall be given as hereinafter directed. § 141. No injunction shall issue to stay proceedings at After judgment, law in any personal action after judgment, unless, 1. A sum of money equal to the full amount of such judgment, including costs, shall be first deposited by the party applying for such injunction, or a bond in lieu thereof be given as hereinafter di- rected: and, 112 SELECTIONS FROM THE Money deposit- ed ma_y be paid over. 2. Unless such party, in addition to such deposit, shall also execute a bond, with one or more suffi- cient sureties, to the plaintiff in the said judgment, in such sum as the chancellor or officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff and his legal repre- sentatives of all such damages and costs as may be awarded to them by the court at the final hear- ing of the cause. § 142. If after a verdict or judgment at law any monies shall be deposited in the court of chancery, pursuant to either of the two last sections, the same may be paid, on the order of the court, to the plaintiff in such action at law, upon his executing a bond to the people of this state, in a penalty double the amount so deposited, with such sureties as the court shall approve, conditioned that such plaintiff will pay to the register or assistant register, as the case may be, the monies which he shall so receive and the interest thereon, or any part thereof, according to any order or decree of the court of chancery that may be made in relation to the same. § 143. Whenever the monies so deposited shall be paid to the plaintiff in the action at law, if the final decision of the cause in chancery be against the party obtaining the injunction, the chancellor may order any bond that may have been given by such plaintiff to be cancelled, and shall continue the injunction to stay the collection of the judgment at law, or shall compel the plaintiff therein to cause such jvidgment to be satisfied and discharged of record. § 144. No injunction shall issue to stay proceedings at verdicfh/c'ie'ct- ^^^^ ^^ ^"y actiou for the recovery of lands or of the pos- menu session thereof after verdict, unless the party applying therefor shall execute a bond, with one or more sureties, to the plaintiff in such action at law, in such sum as the chancellor or officer allowing the injunction shall direct, conditioned for the payment to the plaintiff in such action, and his legal representatives, of all such damages and Proceedings, &c. Staying pro ceedings after NEW YORK REVISED STATUTES. 113 costs as may be awarded to them in case of a decision against the party obtaining such injunction. § 145. The damages to be paid upon the dissolution of Damages how such injunction, shall be ascertained by reference to a ''^'^'^'^t'*"'^'^- master, and shall include not only the reasonable rents and protits of the land recovered by such verdict, but all waste committed thereon after the granting of the in- junction. § 146. The chancellor shall have power to dispense Deposits how with any deposit of monies required by either of the pre- '^i"^"^*^ ceding sections, and in lieu thereof to direct the execu- tion of a bond, with sureties, conditioned to pay the amount so required to be deposited whenever ordered by the court of chancery ; or if a bond is already required in addition to such deposit, then to direct the enlargement of the penalty and condition of such bond as may be re- quisite. But whenever such deposit shall be dispensed with, the bond so substituted or enlarged shall be exe- cuted by at least two sufficient sureties. § 147. Whenever an injunction shall be applied for to And bonds, stay proceedings at law in any action after judgment or verdict, on the ground that such judgment or verdict was obtained by actual fraud, the chancellor shall have power to dispense with the deposit of any monies or the execu- tion of any bond. § 148. The sufficiency of the sureties in any bond, Sureties' suffi- executed under the provisions of this Article, shall be ce^rtainedT ^^" ascertained either, 1 . By the certificate of any master in chancery, stating that he has inquired into the circumstances of such sureties, and is satisfied with their sufficiency : or, 2. By the affidavit of each surety, stating that he is a householder resident within this state, and that he is worth a sum equal to the amount in which the bond shall have been required over and above all debts and demands against him. 114. SELECTIONS FROM THE Every such certificate and affidavit shall be annexed to or endorsed on the bond. Bonds to be § 149. Whenever a bond shall be required to be exe- cuted, pursuant to the provisions of this Article, prior to the issuing of an injunction, the same, with the certificate or affidavit above required, shall be filed with the register, assistant register or clerk, before the sealing and delivery of the injunction. When prose- § 150. The chancellor shall direct the delivery of any bond executed under the provisions of this Article to the person entitled to the benefit thereof, for prosecution, whenever the condition of such bond shall be broken or the circumstances of the case shall require such delivery. ARTICLE SIXTH. Of the Powers and Proceedings of the Court upon Bills for the Foreclosure or Satisfaction of Mortgages. Sale of premises § 151. Whenever a bill shall be filed for the foreclosure nirtj- e c tcree . ^^, satisfaction of a mortgage, the court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage and the costs of suit. Payment of ba- ^ 152. W^hen a bill shall be filed for the satisfaction of sale niav be ^ mortgage, the court shall not only have power to decree decreed. and compel the delivery of the possession of the mort- gaged premises to the purchaser thereof, but on the coming in of the report of sale, the court shall also have power to decree and direct the payment by the mort- gagor of any balance of the mortgage debt, that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law; and for How compelled, that purpose may issue the necessary executions, as in other cases, against other property of the mortgagor or against his person. Suits at law pro- § 153. After such bill shall be filed, while the same is pending, and after a decree rendered thereon, no pro- NEW YORK REVISED STATUTES. 115 ceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorised by the court of chancery. § 154. If the mortgage debt be secured by the obliga- Payment b_y tion or other evidence of debt hereafter executed of any ^"'^'^'■y "' '"°'''- J gagor. other person besides the mortgagor, the complainant may make such person a party to the bill, and the court may decree payment of the balance of such debt remaining imsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases. § 155. Upon fiUng a bill for the foreclosure or satisfac- The bill to siaie tion of a mortgage, the complainant shall state therein P'^^^^'^*^'^"'ss ^t whether any proceedings have been had at law for the recovery of the debt secured thereby, or any part thereof, and whether such debt, or any part thereof, has been collected. § 156. If it appear that any judgment has been ob- When execution tained in a suit at law for the monies demanded by such "umed'^'^*^ bill, or any part thereof, no proceedings shall be had in such case, unless to an execution against the property of the defendant in such judgment the sheriff shall have returned that the said execution is unsatisfied in whole or in part, and that the defendant has no property whereof to satisfy such execution, except the mortgaged premises. § 157. All sales of mortgaged premises under the de- Sales by whom cree of the court of chancery shall be made by a master ^'i^^ v^lien to be •^ _ •' made. HI chancery in the county where the premises or some part of them are situated, unless otherwise directed in the decree of sale. § 158. Deeds shall thereupon be executed by such Deeds tiicreon. master, which shall vest in the purchaser the same estate (and no other or greater) that would have vested in the mortgagee, if the equity of redemption had been fore- closed ; and such deeds shall be as valid as if the same Their effect. were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them and against all i2 iin SELECTIONS FllOM THE Proceeds of sales. Surplus when to be invested. AVhen bill to be dismissed on payment of sum due, &lC. Proceedings to stay, in certain When part of premises to be sold. parties to the suit in wliicli the decree for such sale was made, and against their heirs respectively, and all claiming under such heirs. § 159. The proceeds of every sale made under the de- cree of a court of chancery, shall be applied to the dis- charge of the debt adjudged by such court to be due, and of the costs awarded ; and if there shall be any sur- plus it shall be brought into court for the use of the de- fendant, or of the person who may be entitled thereto, subject to the order of the court. § IGO. If such surplus, or any part thereof, shall re- main in the said court for the term of three months without being applied for, the chancellor shall direct the same to be put out at interest, under the direction of the court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of such court. § 161. Whenever a bill shall be filed for the satisfaction or foreclosure of any mortgage, upon which there shall be due any interest, or any portion or instalment of the prin- cipal, and there shall be other portions or instalments to become due subsequently, the bill shall be dismissed upon the defendant's bringing into court, at any time before the decree of sale, the principal and interest due, with costs. § 162. If after a decree for sale entered against a de- fendant in such case he shall bring into court the prin- cipal and interest due, with the costs, the proceedings in the suit shall be stayed ; but the court shall enter a decree of foreclosure and sale, to be enforced by a further order of the court, upon a subsequent default in the payment of any portion or instalment of the principal, or of any in- terest thereafter to grow due. § 163. If the defendant shall not bring into court the amount due, with costs, or if for any other cause a decree shall pass for the complainant, the court shall direct a re- ference to a master to ascertain and report the situation of the mortgaged premises ; and if it shall appear that the same can be sold in parcels, without injury to the in- NEW YORK REVISED STATUTES. 117 terests of the parties, the decree shall direct so much of the said premises to be sold as will be sufficient to pay the amount then due on such mortgage, with costs; and such decree shall remain as security for any subsequent default. § 164. If in the case mentioned in the last preceding Subsequent in- section, there shall be any default subsequent to such sialments, &c. decree in the payment of any portion or instalment of the principal, or of any interest due upon such mortgage, the court may, on the petition of the complainant, by a further order founded upon such first decree, direct a sale of so much of the mortgaged premises to be made under the said decree as will be sufficient to satisfy the amount so due, with the costs of such petition and the subsequent proceedings thereon; and the same proceedings shall be had as often as a default shall happen. § 165. If in any of the foregoing cases it shall appear Wiien whole of to the court that the mortgaged premises are so situated 'o7d'''^^^ ^° ^^ that the sale of the whole will be most beneficial to the parties, the decree shall, in the first instance, be entered for the sale of the whole premises accordingly. § 166. In such case the proceeds of such sale shall be Application of applied as well to the interest, portion, or instalment of Proceeds. the principal due, as towards the whole or residue of the sum secured by such mortgage and not due and payable at the time of such sale; and if such residue do not bear interest, then the court may direct the same to be paid, with a deduction of the rebate of legal interest for the time during which such residue shall not be due and payable; or may direct the balance of the proceeds of such sale, after paying the sum due with costs, to be put out at interest for the benefit of the complainant, to be paid to him as the instalments or portions of the principal or the interest may become due, and the surplus for the benefit of the defendant, his representatives or assigns, to be paid to them on the order of the court. 118 SELECTIONS FROM THE ARTICLE SEVENTH. Of Proceedings in relation to the Conveyance of Labels by Infants, and the Sale and, DisiJositioii of their Estates. Iiifiiiit trustees compelled to convey' . Effect of coii- vejance. Performance of contract by in- fant Iieirs. Applicalioii to sell, iStc. real es- tates of infants. § 167. Whenever any infent shall be seised or pos- sessed of any lands, tenements, or hereditaments, by way of mortgage, or in trust only for others, the court of chan- cery, on the petition of the guardian of such infant, or of any person in any way interested, may compel such infant to convey and assure such lands, tenements, and heredi- taments, to any other person, in such manner as the said court shall direct. § 168. Every conveyance or assurance made pursuant to such order shall be as good and effectual in the law as if the same were made by such infant when of lawful age. § 169. The court of chancery shall have power to decree and compel a specific performance by any infant heir or other person, of any bargain, contract, or agree- ment made by any party who may die before the perform- ance thereof, on petition of the executors or adminis- trators of the estate of the deceased, or of any person or persons interested in such bargain, contract, or agree- ment, and on hearing all parties concerned, and being satisfied that the specific performance of such bargain, contract, or agreement, ought to be decreed or com- pelled. § 170. Any infant seised of any real estate, or entitled to any term for years in any lands, may, by his next friend or by his guardian, apply to the court of chancery for the sale or disposition of his property in the manner herein- after directed. NEW YORK REVISED STATUTES. 119 § 171. On such application the court shall appoint one Guardians. or more suitable persons guardians of such infant in rela- tion to the proceedings on such application. § 172. The guardians shall give bond to the inftint, to Togivebond. be filed with the register or assistant register, in such pe- nalty, with such sureties, and in such form as the court shall direct, conditioned for the faithful performance of the trust reposed; for the paying over, investing, and its condition. accounting for all monies that shall be received by such guardians, according to the order of any court having authority to give directions in the premises, and for the observance of the orders and directions of the court in relation to the said trust. § 173. If such bond be forfeited, the court shall direct Wiieu to be it to be prosecuted for the benefit of the party injured. § 174. Upon the filing of such bond, the court may Reference to a proceed in a summary manner, by reference to a master '"^**'^'"- to inquire into the merits of such application. § 175. Whenever it shall appear satisfactorily that a Sule, &c. of disposition of any part of the real estate of such infant, or a^uthorised. of his interest in any term for years, is necessary and pro- per either for the support and maintenance of such infant or for his education ; or that the interest of such infant requires, or will be substantially promoted by such dispo- sition, on account of any part of his said property being exposed to waste and dilapidation, or on account of its being wholly unproductive, or for any other peculiar reasons or circumstances, the court may order the letting for a term of years, the sale or other disposition of such real estate or interest, to be made by such guardian or guardians so appointed, in such manner and with such restrictions as shall be deemed expedient. § 176. But no real estate or term for years shall be Bm not contrary sold, leased, or disposed of in any manner against the '"'"' • provisions of any last will, or of any conveyance by which such estate or term was devised or granted to such in- fant. 120 Sales, &c. to be reported. Conveyances. Effect of sales. Application of ]irocccds of sales. Accounts of JLjuardians. Rights of infant in proceeds of sale. Claim of dower Iiow satisfied. SELECTIONS FROM THE § 177. Upon an agreement for a sale, leasing, or other disposition of such property, being made in pursuance of such order, the same sliall be reported to the court on the oath of the guardian making the same; and if it be con- firmed, a conveyance shall be executed under the direc- tions of the court. § 178. All sales, leases, dispositions, and conveyances, made in good faith by the guardian in pursuance of such orders, when so confirmed, shall be valid and effectual as if made by such infant when of full age. § 179. From the time of such application to the court, the infant shall be considered a ward of the court, so far as relates to such property, its proceeds and income; and the court shall make order for the application and dispo- sition of the proceeds of such property and for the invest- ment of the surplus belonging to such infant, so as to secure the same for the benefit of such infant, and shall direct a return of such investment and disposition to be made on oath as soon as may be, and shall require ac- counts to be rendered periodically by any guardian or other person who may be entrusted with the disposition of the income of such proceeds. § 180. No sale made as aforesaid of the real estate of any infant, shall give to such infant any other or greater interest or estate in the proceeds of such sale than he had in the estate so sold; but the said proceeds shall be deemed real estate of the same nature as the property sold. § 181. If the real estate of any infant, or any part of it, shall be subject to dower, and the person entitled thereto shall consent in writing to accept a gross sum in lieu of such dower, or the permanent investment of a reasonable sum in such manner as that the interest thereof be made payable to the person entitled to the said dower during life, the court may direct the payment of such sum in gross, or the investment of such sum as shall be deemed reasonable, and shall be acceptable to the person entitled NEW YORK REVISED STATUTES. 121 to such dower in manner aforesaid; which sum so paid or invested shall be taken out of the proceeds of the sale of the real estate of such infjuit. § 182. Before any such sum shall be paid or such in- Dowei lo be re- vestment made, the court shall be satisfied that an effec- ^'''*^ ' tual release of such right of dower has been executed. CHAPTER IX. -TITLE III.— ARTICLE IIL Of Appeals from the Court of Chancery and Surrogates Court, and from Circuit Judges and Courts of Co7n- mon Pleas in certain cases. § 78. All appeals from final decrees of the court of wiien appeals chancery shall be made within the same time after the '^''° " ''"''' '^f '' crees are to be enrolment of any such decree as herein prescribed for made. bringing writs of error upon judgments at law, subject to the same exceptions and provisions in favour of persons under disability at the time of rendering such decree, and subject to the same restrictions, except where provision is otherwise specially made by law. § 79. All appeals from any other order or decree of the From other or- court of chancery, including decrees for the general costs *'^' * '^"^ '^^' J :> !s o crees, of the cause, shall be made within fifteen days after notice thereof shall have been given to the party against whom such order or decree shall be made, or to his solicitor. § 80. LTpon an appeal being made from a decree or order Bond or deposit. of the court of chancery, the same shall not be effectual for any purpose until a bond in a penalty of at least two hundred and fifty dollars, with sureties to be approved by such officer of the court of chancery as the chancellor shall designate for that purpose, be given to the adverse party, conditioned for the diligent prosecution of such appeal and for the payment of all costs and damages that may be awarded against the appellant thereon ; or until the appellant shall have deposited the sum of two hun- 122 SELECTIONS FROM THE dred and fifty dollars with the register, or assistant regis- ter, to be applied under the direction of the court for the payment of all costs and damages that may be awarded against the appellant on such appeal. When deposit ^ 81. The deposit of any sum of money on making an not required. , ^ , , „ , , f i appeal irom any order or decree or the court oi chancery shall not be required in cases where a bond for the pay- ment of costs on such appeal shall have been given as in the last section directed. Bond on appeal § 82. If an appeal be made from any order or decree of rectin/iuone ' *^^^ couvt of chanccry directing the payment of money, to be paid. sucli appeal shall not stay the issuing of execution or other process to enforce the decree, or any proceedings thereon, unless a bond be given by or on behalf of the appellant to the adverse party, in a penalty at least double the sum decreed to be paid, with two sufficient sureties to be approved as hereinbefore directed, conditioned that if the appellant shall fail to prosecute his appeal; or if the same be dismissed or discontinued ; or if the decree appealed from, or any part thereof, be affirmed ; then that such appellant will pay and satisfy the amount di- rected to be paid by such decree, or the part of such amount as to which such decree shall be affirmed only in part, and all damages which shall be awarded against the appellant by the court for the correction of errors upon such appeal. Decree directing ^ 83. If the decree appealed from directs the assign- tels, &c.° ^ "* ment or delivery of any securities, evidences of debt, documents, chattels, or things in action, the issuing and execution of process to enforce such decree shall not be stayed by such appeal, unless the articles required to be assigned or delivered be brought into court or placed in the custody of such officers or receivers as the court shall appoint ; or unless a bond in a penalty at least double the value of the articles so directed to be delivered or assigned be given to the adverse party, with two sufficient sureties to be approved as hereinbefore directed, conditioned that NEW YORK REVISED STATUTES. 123 the appellant will abide and obey the order of the court for the correction of errors made upon the subject of such appeal. § 84. If the decree appealed from direct the execution Execution of of any conveyance or other instrument by any party, the '"^'"""eiits.&c. issuing an execution of process to enforce such decree shall not be stayed by such appeal until the appellant shall have executed the conveyance or instrument directed, and deposited the same with the register or assistant re- gister of the court to abide the final order and decree of the court for the correction of errors. § 85. If the decree or order appealed from direct the Decree direct- sale or the delivery of the possession of any real property, property*! the issuing and execution of process to enforce the same shall not be stayed until a bond be given, with sureties, as hereinbefore directed, in such penalty as the court of chancery shall deem sufficient, conditioned that during the possession of such real property by such appellant, he will not commit or suffer any waste to be committed thereon ; and that in case such appeal be dismissed or discontinued, or such order or decree be affirmed, such appellant will pay the value of the use and occupation of such property from the time of such appeal until the delivery of the possession thereof pursuant to such order or decree. § 86. Whenever in the foregoing cases an appeal shall Api)eai to stay be perfected by bringing into court or depositing, pur- ^'^°^^'^ '"S*" suant to its order, any articles required to be so deposited, or any instrument required to be executed, or by the giving •a bond as herein prescribed, such appeal shall stay all fur- ther proceedings in the court of chancery upon the order or decree appealed from, and upon the subject-matter embraced in such order or decree, but shall not prevent the court from proceeding upon any other matter included in the bill and not affected by such order or decree. § 87. If an appeal be made from any interlocutory order When from in- of the court of chancery in a case brought either, dcis.'^" °^^ °'' 1, For the payment of any sum of money: or, 124 SELECTIONS FROM THE Certain bonds may be conso- lidated. Appealto stay proceedings. except Orders to sell perishable pro- perty. Testimony may be taken. 2. To compel the delivery or assignment of any se- curities, evidences of debt, documents, cliattels or things in action : or, 3. To compel the execution of any conveyance or other instrument : or, 4. In causes in which a decree may be made for the delivery of the possession of any real property, or for the sale thereof : the court of chancery may, in its discretion, require the doing of such other acts and things by the appellant as in similar cases are herein required to be done by him to stay the execution of a final decree on an appeal there- from ; and until such acts or things so required to be done shall be performed, an appeal from an interlocutory order shall not stay any proceedings thereon. § 88. Whenever any bond shall be required by or pur- suant to any of the preceding sections to stay proceedings on any order or decree, the same may be taken separately from, or may be included with, the bond to secure the payment of costs upon the appeal. § 89. In all other cases not herein provided for, the filing and perfecting an appeal by giving bond for the payment of costs thereon shall stay all proceedings in the court of chancery upon the order or decree appealed from, and upon the subject-matter thereof, except, 1. When the order appealed from directs the sale of perishable property such property may be sold by a special order of the court, after the making of such appeal, and the proceeds of such sale shall be brought into court to abide the final order and de- cree of the court for the correction of errors : or, 2. When the order appealed from is interlocutory, either party may proceed, at his own expense, un- der the direction of the court, upon proper cause shown, to take testimony in the cause, conditionally, to be used thereafter in the cause, in the same cases in which testimony taken conditionally in an action at law may be used : or, NEW YORK REVISED STATUTES. 125 3. When the order appealed from is for the commit- Commitments ment of any person for a contempt, or for the pur- ^g,'^"" ^""^ ' pose of enforcing the rights or remedies of any party, proceedings on such order shall be had, notwithstanding such appeal, or the same shall be stayed, as the court may direct, on such terms as it shall think proper to impose. § 90. Appeals from the decisions of surrogates, by which Appeals from any will of real estate shall have been admitted to record, sufogates. or any will of personal estate shall have been admitted to probate, or by which any such will shall be refused to be admitted to record or probate, to the circuit judge of the circuit, shall be made within three months after such deci- sion made, and entered in the manner and with the secu- rity specified in the First Title of the Sixth Chapter of the Second Part of the Revised Statutes. § 91. Upon such appeal being perfected, and upon the Return by sur- surrogate being paid the fees allowed by law for the ser- •"oga^^^^- vice herein required, he shall immediately transmit to the circuit judge a copy of such appeal, and copies of the will and of all papers, documents and testimony produced before him in relation to the subject of the appeal, duly certified by him under his seal of office, with a statement of the decision made by him, and the reasons of such decision, if required. § 92. The circuit judge to whom an appeal shall have Compelling re- been made, upon due proof thereof, and of the unreason- ^""^* able neglect of a surrogate to transmit the same with the copies herein directed, after having been paid or tendered his fees, may enforce such return by attachment, in the same manner and with the like effect as in case of a wit- ness refusing to obey a subpoena to attend any circuit court. § 93. Upon such appeal and copies being received by Time and place a circuit judge, he shall appoint a day and place for the o'''^3'''"o- hearing of the parties. Such time shall be at least twenty 126 SELECTIONS FROM THE Nolice of hear- ing. Hearing, &c. Costs. Certifying de- termiimtion to surrosate. Reversal on question of fact. days, and not more than three months, from the tune of appointing the same. § 94. Fourteen days' notice of the time and place so appointed shall be given by the appellant to the parties who appeared before the surrogate in opposition to such appellant, by serving such notice on them personally, if they can be found ; and if they cannot be found, by leaving the same at their places of residence respectively with some proper person. § 95. At the time and place appointed, and at such other times as the matter shall be adjourned to, the circuit judge shall proceed to hear the allegations of the parties upon the proofs submitted by them to the surrogate, and shall affirm or reverse the decision of the surrogate as shall be just. § 96. If the decision be affirmed, the circuit judge shall award costs to be paid by the party appealing, either per- sonally or out of the estate of the deceased, as he shall direct. If the decision be reversed upon a question of law, costs shall in like manner be awarded against the party maintaining the decision of the surrogate, either personally or out of the estate of the deceased. § 97. Such affirmance or such reversal upon a question of law shall be certified to the surrogate whose decision was appealed from by the circuit judge, with the award of costs made by him, and the copies of papers sent to such judge shall be by him returned to the surrogate. Such surrogate shall enforce the payment of the costs so awarded in the same manner as if such award had been made by him ; and shall proceed upon such affirmance or reversal as directed in the First Title of the Sixth Chapter of the Second Part of the Revised Statutes, unless such reversal or affirmance be appealed from as hereinafter provided. § 98. If the circuit judge shall reverse the decision of the surrogate upon a question of fact, an issue shall be made up, tried and determined, as prescribed in the said NEW YORK REVISED STATUTES. 127 First Title of the said Sixth Chapter ; and upon the final determination thereof heing certified to the surrogate whose decision shall have been appealed from, he shall proceed in the manner directed in the said Chapter. § 99. For attending, hearing, and determining any such Fee of circuit appeal, the circuit judge shall be entitled to receive a fee •'" °^' of five dollars from the appellant, to be allowed and reco- vered as the other costs of the proceedings. § 100. An appeal to the court of chancery may be Appeal to chan- entered from the decision of any circuit judge, upon such ^^ °'' appeal from a surrogate, when no feigned issue shall have been awarded for the trial of any question of fact, within one month from the time such decision shall have been certified to the surrogate and entered in his office. § 101. Such appeal shall be filed with the surrogate, llow made. and shall be accompanied by a bond in the same penalty and with the same conditions as prescribed by law in case of an appeal from the order of a surrogate admitting a will to probate. § 102. Upon such appeal being perfected, the surrogate Return b_y sur- shall certify and return to the court of chancery the '"S'lte. decision of the circuit judge and the copies of the will, papers, and testimony returned by such judge to the surrogate's office. § 103. The court of chancery may enforce such return Compelling re- in the same manner as returns to process issued by such '""'' ^*^' court, and upon the same being made shall proceed thereon as in cases of appeals from surrogates. § 104. Appeals may be made from the orders, decrees, Appeals to and sentences of surrogates, in all cases, to the court of diancellor. chancery, except where provision has been herein made for appeals to circuit judges, and except appeals from orders concerning any admeasurement of dower. § 105. Such appeals from the decree of a surrogate for From decrees the final settlement of the account of any executor, admi- *^'^''"S ^c- •' _ ' counts. nistrator or guardian, shall be made within three months after such decree shall have been I'ecorded. 128 SELECTIONS FROM THE From order ap- pointing, &c. guardian. When in all other cases. Bond on ap- peal. Staying pro- ceedings on ap- peal. Appeal not to affect certain orders. Bond necessar3' in certain cases. § 106. Such appeals from the order of a surrogate for the appointment of a guardian or for his removal, or upon a refusal to make such removal, .shall be made within six months after sucli order shall have been entered. § 107. In all other cases not herein before specified, and not otherwise limited by law, appeals from the orders, decrees and sentences of surrogates, to the court of chan- cery, shall be made within thirty days after such order, decree or sentence shall have been made. § 108. No such appeal shall be effectual until a bond be filed with the surrogate, with two sufficient sureties to be approved by him, in the penalty of at least one hun- dred dollars to the adverse party, conditioned substan- tially that the appellant will prosecute his appeal to effect and will pay all costs that shall be adjudged against him by the court of chancery. § 109. Every such appeal when perfected, except in the cases specified in the two next sections, shall suspend all proceedings on the order appealed from until such appeal be determined, or until the court to which the appeal shall have been made shall authorise proceedings thereon. § 110. Appeals from the order of any surrogate ap- pointing a collector or special administrator on the estate of any deceased person, from orders directing the sale of perishable property, from orders appointing appraisers of personal property, and from all orders for the service and publication of notices, shall not stay or affect any pro- ceedings under such orders. § 111. Appeals from orders for the commitment, or awarding process for the commitment of any executor, administrator or guardian, for not returning an inventory, rendering an account, or obeying any other order of a surrogate ; and appeals from such orders for the commit- ment of any person refusing to obey any subpoena, or to testify, when required, according to law ; shall not stay NEW YORK REVISED STATUTES. 129 the execution of such orders or process, unless the party committed shall give bond as directed in the next section. § 112. Such bond shall be executed, at the time of P^na'ty and ,. Ill 11 1 fr> • (ondilion ot nling the appeal, by the appellant and two surhcient bond. sureties, to be appi'oved by the surrogate, to the people of this state, in a sufficient penalty, not exceeding one thousand dollars, conditioned, that if the order appealed from shall be affirmed, such person will, within twenty days after such affirmance, surrender himself to the custody of the sheriff to whom he shall have been com- mitted in obedience to such order or process. § 113. If the condition of such bond be violated, it Prosecution «>f shall be prosecuted by the district attorney of the county, under the direction of the surrogate receiving the same, in the same manner and with the like effect as recog- nizances for the appearance of any party when they be- come forfeited. § 114. If it appear to the court in which a recovery on Application of such bond shall be had that any party has suffered pe- ^ ^^^'^y- cuniary injury by reason of the misconduct of the person so ordered to be committed, or by reason of the delay caused by such appeal, such court may order such part of the said penalty as it shall deem reasonable to be paid to such party. § 115. The amount of such recovery, which shall not Surplus. be paid over as above directed, shall be paid into the county treasury. § 116. Appeals from the order of a surrogate sus- Order removing !• • i. J • • i. 1. executors, Sec. pendmg or removmg any executor, admmistrator, or guardian, shall not affect any such order until the same be reversed. § 117. In every case of an appeal from the order. Notice of iij)- decree, or sentence of a surrogate, or from the decision P^'' ' of a circuit judge, the filing such appeal in the office of the surrogate, and perfecting the same by giving a bond in the cases required by law, shall be deemed sufficient K 130 SELECTIONS FROM THE Appeals from decisions in dower. Id case of drunkards. Practice on ap- peals to chan- cery. notice of such appeal to the adverse party, without any other notice. § 118. Appeals to the supreme court from the orders of surrogates and the decisions of courts of common pleas, confirming or vacating any admeasui'ement of dower, shall be made within thirty days after such order or deci- sion made, upon giving a bond as required by law. § 119. Appeals to the court of chancery from the judg- ments, orders, and determinations of the courts of com- mon pleas, made upon any proceedings instituted therein in relation to the persons and estates of habitual drunk- ards, must be made within three months after the making such order, determination, or judgment, and upon giving the security required by law. § 120. The court of chancery shall proceed thereon in the same manner as upon appeals from surrogates, and shall prescribe, by rule, the course of practice thereon and on appeals from surrogates and the the decisions of circuit judges in the cases hei*einbefoi'e specified. CHAPTER X— TITLE III. Of the Fees of certain Officers. For the following services hereafter done or performed in the several courts of law and equity in this state by the officers thereof, or in any proceeding authorised by law, the followino- fees shall be allowed : — IN THE COURT FOR THE TRIAL OF IMPEACHMENTS. Clerk's fees. § 1. The CleiFs Fccs. For reading and fihng articles of impeachment, twenty- five cents. For summoning members to organize the court, five dollars. NEW YORK REVISED STATUTES, Entering the sentence of the court, one dollar. And for reading and filing any petition, answer, afli- davit, or other paper; for drawing and entering rules and orders, entering defaults, engrossing pleadings, orders, or papers ; the same fees as are hereinafter allowed to him as clerk of the court for the correction of errors. And for any service rendered by him, for which no provision shall be made by law, such fee as the court shall direct. IN THE COURT FOR THE CORRECTION OF ERRORS. §2. Clerk's Fees. in court of er- ■r< I • •, c ii • 1 rors, cit'i'k's ft'es. Jbor drawmg a writ or error or other process issued under the seal of the court, twenty cents for each folio. * For engrossing the same, ten cents for each folio. Affixing the seal to any process or proceeding of the court, fifty cents. For filing and reading every petition of appeal, twenty- five cents. Reading and filing the answer to every such petition, twenty-five cents. Filing the papers and proceedings sent at one time from the court of chancery, fifty cents. Reading and filing a writ of error, the return thereto, and the transcript annexed, forty cents. Reading and filing every petition relating to any pro- ceedings before the court, twenty -five cents. Reading and filing every affidavit, or other paper or proceeding in the cause, ten cents. Entering the appearance of all the i-espondents to an appeal, when they all appear at one time, twenty cents; and ten cents for each respondent appearing at a dif- ferent time. Drawing every rule or order, twenty cents for every folio. * Eacli folio nmk'r tliis fee bill contains 100 words. K 2 132 SELECTIONS FROM THE Entering every rule or order, twenty cents, and ten cents for each folio more than two. Certified copy of every such rule or order, and of all papers, pleadings, and proceedings filed with him, ten cents for each folio. Entering every appearance or default of the appellant or plaintiff, or of the defendant, or the default of a re- spondent, twenty cents. Drawing every decree or sentence upon an appeal, twenty cents for each folio. Entering the same, ten cents for each folio. Drawing every judgment of affirmance or reversal, every order to quash a writ of error or to discontinue the same, twenty-five cents, and ten cents for each folio more than two. Entering every such judgment or order, twenty-five cents, and ten cents for each folio more than two. Engrossing every remittitur to be sent to the court of chancery or to the supreme court, ten cents for each folio. Every certificate given by him on request relative to any matter in any cause, twenty-five cents; but such charge shall not be made for certifying any paper to be a copy. For taxing a bill of costs, one dollar. Crier's fees. § 3. Crier s Fees. For each ajipeal filed, and for each cause in which a writ of error shall be brought, fifty cents. Counsel fees. § 4. Counsel Fees. Retaining fee, three dollars and seventy-five cents, to one counsel only. Perusing, amending, and signing every petition of ap- peal, and every answer to a petition of appeal, two dollars and fifty cents. Perusing and amending every other petition to the NEW YORK REVISED STATUTES. 133 court, in a case where an appeal is pending, or in which a writ of error shall have been brought, one dollar and twenty-five cents. Perusing, amending, and settling every special pleading, entry, or order, one dollar and fifty cents. Attending the court to make or oppose a motion, or to present or oppose a petition, one dollar and twenty-five cents. Arguing every special motion or petition, two dollars and fifty cents. Arguing every cause, or attending for such argument pursuant to notice, three dollars and seventy-five cents. But the foregoing fee shall be allowed only to one counsel on each side, who shall have been actually em- ployed and rendered the service charged. § 5. Solicitor S Fees on Appeals. Solicitor's fees. Retaining fee, three dollars. For drawing and engrossing every necessary paper, pro- ceeding, or pleading, and for serving all necessary notices and notes of issues, the same fees as are allowed for simi- lar services in the court of chancery. Attending counsel for his signature to an appeal, se- venty-five cents; and the like for attendance to obtain such signature to a petition of appeal. Drawing a case for the court, twenty-five cents for each folio. Copy for counsel to sign, ten cents for each folio. Attending each counsel, not exceeding two, for their signatures to such case, seventy-five cents. Fair copy for the printer, ten cents for each folio. Superintending the press and correcting the proof sheets, five dollars. For the expenses of printing the sum actually paid therefor. Obtaining the remittitur and attending the court of chancery therewith, one dollar. 134 SELECTIONS FROM THE Attending on the taxation of costs, one dollar. Attending counsel, or the clerk, with drafts of decrees and orders ; attending the court on special motions, and on the argument of a cause, and drawing briefs on such motions or argument, the same fees as are allowed for similar services in the court of chancery. Attoniies' fees. 5^ G. Attomies' Fees on Writs of Error. Retaining fee, three dollars and fifty cents. For drawing and copies of every necessary paper, pro- ceeding or pleading, and for serving all necessary notices and notes of issues, for entering all rules for all ordinary motions, for attendance to make or oppose a special motion, for the argument of such special motion, for the argument on the hearing, for briefs on such motions and hearing, and for attendance on the taxation of costs, the same fees as are allowed for similar services in the supreme court. Attending each counsel, not exceeding two, for their signatures to a certificate to obtain a writ of error, seventy- five cents. Drawing a case for the court, twenty-five cents for each folio. Copy for counsel to sign, six cents for each folio. Attending each counsel, not exceeding two, for their signatures to such case, seventy-five cents. Fair copy for the printer, ten cents for each folio. Superintending the press and correcting the proof sheets, five dollars . For the expense of printing, the sum actually paid therefor. Obtaining the remittitur, and attending the supreme court therewith, one dollar. IN THE COURT OF CHANCERY. Incourtofchan- § 7. Master s Fees. eery, master's -^^ . . p •, i. i. fegs, l^or signmg every summons tor a witness or party to attend him, twelve cents. NEW YORK REVISED STATUTES. 135 For attendance at the time and place assigned for hear- ing, and adjourning the same at request or upon reason- able cause, one dollar. Attendance and hearing every argument upon any mat- ter referred to him, when litigated, three dollars; and when he proceeds ex parte, one dollar. Attendance and settling his report after argument, if both parties attend and litigate the same, three dollars ; if he proceeds ex parte, one dollar. Taking an account of what is due on every mortgage, and the security accompanying the same (if any), one dollar. Drawing every report in pursuance of an order of refer- ence to him (exclusive of schedules), for every foho, twenty cents. Drawing all schedules to be annexed to reports, for every folio, ten cents. Copies of reports and schedules to be filed, for every folio, ten cents. Copies of reports and schedules, and all other proceed- ings furnished by the master to the parties upon request, for every folio, six cents. Examining into the circumstances of sureties required in any case, and certifying his opinion to the chancellor, one dollar. Appointing any person to appear as next friend for any infant, twenty-five cents. Inspecting and examining an infant or infants who want guardians appointed ; inquiring who are wiUing to become guardians, and into their competency ; the proposed se- curity and the competency thereof; and certifying the fiicts to the chancellor, three dollars ; but when application is made in behalf of several infants by one petition, no ad- ditional charge to be made. Taking the testimony, and certifying the same, and his opinion thereon to the court, in cases of adultery, five dollars. 136 SELECTIONS FROM THE Marking every exhibit produced before him, on a refer- ence, with the title of the cause, and signing the same, six cents. Drawing every advertisement or public notice of the sale of property to be sold by him, fifty cents ; and for every copy of such advertisement to be printed or posted up, twenty cents. Attending at the time and place of sale of property by him, and adjourning the sale at the request of the parties, for good cause, or by order of the court, one dollar. Every deed of real estate sold by him under a decree or order, when prepared by him at the request of the par- ties, five dollars. Signing and acknowledging a deed for property sold by him, when prepared by another person, seventy-five cents. Settling the form of a deed to be executed under his direction by a third person, under a decree or order, one dollar and fifty cents. Settling the form of an assignment of bonds, mortgages, or other securities to be assigned under a decree or order, one dollar. Perusing a bill or petition for an injunction or jie-exeat, and allowing or refusing the writ, one dollar and twenty- five cents. Superintending and certifying the payment of money, when paid under his direction, by a decree or order, two dollars ; but no fee to be allowed for the payment of money arising from sales to a party in the suit, or into the court. Taking and reducing to form in writing, every recog- nizance entered into before him by order of the court, fifty cents. Taxing every bill of costs, including the bills of the diiferent officers of the court, and reporting the amount taxed, if upon special motion, fifty cents ; if in a cause before decree has passed, one dollar : if after a decree, one dollar and fifty cents. NEW YORK REVISED STATUTES. 137 And when a master is authorised to advertise in news- papers property for sale, or for parties to come before him and prove debts, or exhibit claims, he shall be allowed for printer's bills, according to the legal rate of advertising in such papers, what he shall actually pay ; and where monies are ordered to be put out by a master, and where an estate is sold by a master under an order or a decree, the master shall be allowed all necessary disbursements actually paid by him, and such allowance by way of com- missions as the chancellor shall judge reasonable, after notice given to the party to be charged therewith, but not to exceed the sum of twenty dollars. When a master shall take an account of an estate, or of an administration thereof, or an account between partners in trade, or shall take any other account under a decree or order, not included in the foregoing provisions, or when extra services shall be rendered by any master in taking or stating an account, the chancellor may make a further allowance beyond the fees herein specified, as under the circumstances may be just and reasonable, upon notice to the party to be charged therewith. § 8. Fees of Circuit Judges. Circuit judges' For performing any service which might have been per- formed by a master of the court, the same fees as are herein allowed to a master for such service. § 9. Fees of the Examiner. Exaiuineis' fees. For taking the deposition of every witness, twenty cents for each foho. Engrossing a fair copy for the witness to sign, twelve cents for each folio. Certifying every exhibit shown to a witness on his ex- amination, twenty-five cents. Copies of all depositions, exhibits, and interrogatories, when required, six cents for every folio. Attending court with the original depositions or ex- '138 SELECTIONS FROM THE hibits, by its order, or on the request of either party, one dollar. Commissioners' § 10. Fees of Commissioners. The persons to whom any commission shall be issued to take testimony in any cause or matter pending in any court of equity, shall be entitled to receive the same fees as herein allowed to examiners, and no other, either as a daily compensation or otherwise. Register and as- §11. Fees of the Remstev and Assistant Register. sistant registers' •/ o o fees. For drawing any common order, order by consent, spe- cial order or decree, when requested, twenty-five cents for each folio. Entering any order, decree, or proceeding, in the minutes, for every folio, twelve cents. Engrossing every decree to be signed by the chancellor, for every folio, fifteen cents. Exemplifying upon request, under seal of the court, any paper or proceedings, for every folio, twelve cents . Examining and signing every final decree, and attend- ing the chancellor with the same and obtaining his sig- nature thereto, one dollar. Filing any paper, six cents ; and no additional charge shall be made for reading or marking any paper filed by him. For reading and marking any paper not filed by him, ten cents. Certified copies of papers or proceedings, for every folio, nine cents. Every other certificate, twenty cents, but no certificate to be allowed that a paper is a copy, for the copying of which he shall be paid. Filing notes of the issue in each cause, and entering the cause on the calendar for hearing, for the court and the parties, twenty cents. NEW YORK REVISED STATUTES. 139 Entering any attachment or other process awarded by the court, or any amerciament, twenty cents. Entering, by order of the covu't, every appearance on process of contempt, twelve cents. Searching the minutes, files, dockets of decrees, or ac- counts of the court, for each year, six cents ; but no search to be allowed for, when the pleading, entry or proceeding searched for is to be engrossed or filed, or copied at the request of a party and paid for, or to perfect the pro- ceedings of the court. Filing every mortgage, under which mortgaged premises shall have been sold by a master, with the annexations thereto, and entering the same in the alphabetical list of mortgages, fifty cents. Entering the receipt of monies deposited in court, put- ting the same in the bank, and entering the same in his bank book and in his accounts with the court, one dollar and fifty cents. Purchasing stock, procuring a transfer thereof, and en- tering the same to the credit of the cause or of the party, for a sum not exceeding two hundred dollars, one per cent., and for any excess, one quarter of one per cent. Making a transfer of stock, by order of the court, two dollars. Receiving the interest on stock, entering it to the credit of the cause or party, placing it in bank, and causing it to be entered in his bank book, one per cent. Putting out money, by order of court, on mortgage or any security other than stock, and examining into the validity of the security, for every sum not exceeding two hundred dollars, one per cent., and for any excess, one quarter of one per cent. Transferring a bond and mortgage, or security other than stock, and entering the same in his accounts, one dollar, to be paid by the party to whom the transfer is made. Paying interest to a party and entering the same in his 140 SELECTIONS FROM THE accounts, for any sum not exceeding two hundred dollars, one half of one per cent., and for any excess, one quarter of one per cent., to be retained out of the interest money. Receiving money for stock paid off, in whole or in part, placing the same in the bank, and having it entered in his bank book and in his accounts, one dollar and fifty cents. For any other services relative to the receipt, safe keep- ing, putting out, paying, or taking any security for money, under the direction of the court, not herein provided for, such allowance and compensation, and from such of the parties as the chancellor may consider just and shall di- rect, by an order for that purpose, after notice to the party to be charged therewith. For sealing every writ, twelve cents. Drawing every writ or process, when required, for every folio, twenty-five cents; and for engrossing the same, for every folio, twelve cents. Entering the appearance of every defendant, six cents. Attending on striking and settling commissioners, fifty cents. Entering every rule to produce witnesses, or to show cause against publication, twenty-five cents. Receiving and marking every book, deed or paper car- ried to his office, by order of the court, or agreement of the parties, for inspection or safe keeping, twenty cents; and for attending on every such inspection, fifty cents. Attending court with the pleadings and papers, or any of them, in any cause, by direction of the court, or on the request of a party, twenty-five cents. Receiving and entering the return of any commission, twenty-five cents. For every notice given to the solicitor of a party of the return of a commission, to take an answer or to take tes- timony, thirty-seven cents. For docketing every decree, on request, twenty cents. For making and transmitting certified copies of such NEW YORK REVISED STATUTES. 141 docket to the clerks of the supreme court, twelve cents for each copy, together with the postage thereon. For filing acknov/ledgment of satisfaction of any decree, and entering the same in the docket thereof, twenty cents. For making and transmitting to the clerks of the supreme court, a certificate of any decree having been so satisfied, or of any decree having been reversed or vacated, twelve cents for each clerk, together with the postage thereon. § 12. Fees of the Clerks. Fees of the For any services rendered by any clerk in chancery, the same fees shall be allowed as herein before provided for similar services performed by the register. arms. §13. Fees of the Serjeants-at-Arms. Serjeant s-at- For every cause set down for hearing on the calendar of causes, fifty cents, to be paid by the party setting the same down for hearing, to the register, assistant register, or clerk, at the time of delivering a note of issue, and to be paid over to the serjeant attending at the term, for which the cause was set down. But when the cause is set down by both parties, only one such fee shall be al- lowed, which shall be paid by the party first setting down such cause. The sheriff attending any term held by a vice chancel- SheriiVwhen to lor shall be deemed the serjeant-at-arms thereof, and en- titled to the fees herein allowed. To the Serjeant in the city of New- York, twelve and a half cents, upon every bill filed in a cause, with the as- sistant register; and to the serjeant in the city of Albany, twelve and a half cents, upon every bill filed in a cause with the register. § 14. Counsellors'' Fees. Counsellors' A retaining fee to not more than one counsel in a cause, ^^^' five dollars. Perusing, amending and signing every bill, plea, answer. have fees as serjeant. 112 SELECTIONS FROM THE or demurrer, and all interrogatories and exceptions, two dollars and fifty cents. Perusing and settling every final decree containing special provisions, two dollars and fifty cents. Arguing every special motion, two dollars and fifty cents. Attending, pursuant to notice, to argue a special motion, which shall not have been argued, one dollar and fifty cents. Arguing, or appearing to argue before a master, pur- suant to notice, upon exceptions or other matters referred, two dollars and fifty cents. Arguing every demurrer, plea or exception, in court, five dollars. Arguing every cause in court, ex i^arte, on bills taken as confessed, two dollars and fifty cents. Arguing every other cause upon the merits, eight dollars to each counsel, not exceeding two. Solicitors' fees. § 15. Solicitors' Fees. For a retaining fee, three dollars. Drawing every bill, answer, or other pleading or pro- ceeding in a cause, twenty-eight cents for every folio. For every engrossment of such drafs to file, fourteen cents for every folio; for every other necessary copy, seven cents. Attending the chancellor or a vice chancellor, out of term, upon petition, or upon any special motion, one dollar. Attending the court of chancery in term, upon a special motion founded on previous notice, one dollar; and if such motion be argued or opposed, one dollar and fifty cents. Actually attending the court of chancery, upon the ar- gument of a cause, five dollars. Serving every rule, order, or copy of interrogatories, twentv-five cents. NEW YORK REVISED STATUTES. 143 Serving a subpoena to appear and answer, or an injunc- tion, seventy-five cents. Every necessary notice or summons actually served, in- cluding a copy thereof and service, thirty-seven and a half cents. Drawing instructions for the examination of each wit- ness, twenty-five cents. For actually abbreviating the pleadings, depositions, and exhibits in a cause, for counsel other than the soli- citor, three cents for each folio contained in writing ab- breviated. Drawing brief for counsel on any special motion or petition, of which notice shall have been given, one dollar. Drawing brief for counsel, upon the hearing of a cause before the court, when there has been an answer, plea, or demurrer to the bill, or before a master, on a reference to take and state an account, two dollars. Drawino- charo-es or discharges before a master, for each folio, twenty-two cents. Attending a master upon any matter referred to him, not herein otherwise provided for, one dollar, if the same be argued ; and if not argued, fifty cents. Attending before an examiner or commissioner on the examination of witnesses, one dollar for each day. Arouing before a master on a reference to take and state an account, two dollars and fifty cents. Attending a master upon a summons or upon the taxa- tion of costs, fifty cents. Attending the register with the draft of any decree or order to have the same settled and entered, fifty cents. Copy of a bill of costs delivered with notice of taxation, or filed after taxation, if before a decree, fifty cents ; if after a decree, one dollar. § 19. Where by the preceding provisions any fee is Fees for one allowed to any counsellor, solicitor, or attorney, such fee 1^°^^ ' shall be taxed only for one counsel, solicitor, or attorney, 144 SELECTIONS FROM THE NEW YORK REVISED STATUTES. as the case may be, unless special provision be made for two or more. Actual disburse- § 20. The actual disbursements of a solicitor in the court of chancery, or of an attorney in the supreme court, necessarily incurred in cases not herein specified, which shall be proved by affidavit, and shall be deemed reason- able by the taxing officer, may be allowed in the taxation of costs. ments allowed. ( 145 ) PRECEDENTS OF WRITS, &c. IN CHANCERY, APPROVED BY THE CHANCELLOR. I . Wrii of Assistance. The People of the State of New York, to the Sheriff of the county of Albany, greeting. Whereas, by a certain decree or decretal (l. s.) order, in our Court of Chancery, in a cer- tain cause there depending, between ^.i?. complainant, and C D. defendant, made at a Court of Chancery held for the State of New York, at the citi/ of Albany, on the first day of January, one thousand eight hundred and thirty, before our Vice Chancellor of the Third Circuit, it was, amongst other things therein con- tained, ordered, adjudged, and decreed by the said Court, that the said complainant should forthwith be let into pos- session of a certain house and lot knoivn as lot number one on the south side of State Street in the city of Albany. And whereas the said complainant has not been let into, nor taken possession of the said house and lot, or any part thereof, according to the tenor of the said decree ; and whereas the said house and lot is in the tenure and occupation of the said defendant : And whereas by an L 146 PRF.CRDF.NTS OF WHITS, &C. order of our said Court of Chancery made in the said cause on the first day of February, one thousand eight hundred and thirty, it was ordered that our writ of as- sistance should issue to you the said sheriff, to put the said complainant in possession of the said house and lot, and him in such possession thereof from time to time to maintain and defend : Therefore, we command you, that immediately after receiving this writ, you go to and enter into the said house, and on to the said lot, and that you eject and amove therefrom, all and every person or per- sons holding and detaining the same or any part thereof against the said complainant ; and that you put and place the said complainant, or his assigns, in the full, peaceable, and quiet possession of the said house and lot without delay, and him the said complainant in such possession thereof from time to time maintain, keep, and defend, or cause to be kept, maintained, and defended, according to the tenor and true intent of the said decree and order of our said Court. — Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at the city of Al- bany, the first day o^ February, one thousand eight hun- dred and thirty. I. W. R. Bromley, Sol'r. J. Porter, Register. 2. Writ of Attachment. The People, &c. To the Sheriff, &c. We command you that you attach A. B. so as to have his body before our Vice Chancellor of the Second Circuit in our Court of Chancery on the second Tuesday of February 7iext, wheresoever the said court shall then be ; there to answer unto us, as well touching the contempt which he, as is alleged, hath committed against us, as also such other matters as shall then and there be laid to his charge, and further to perform and abide such order as our said court IN" THE NEW YORK CHANCERY. 147 shall make in this behalf; and have you then there this writ, and make and return a certificate under your hand of the manner in which you shall have executed the same. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at the village of PoughJceepsie, the first day of January, one thousand eight hundred and thirty. John Sudani, Sol'r. A. Forbus, Clerk. (If the attachment is issued by the special order of the court, it is to be endorsed thus : ) " By the special order of the court; not bailable." A. Forbus, Clerk; or, " By the special order of the Court. Hold the defendant to bail in the sum of ." A. Forbus, Clerk. ( If issued of course without special order, it is to be en- dorsed thus :) " Let the defendant give security for his appearance in the sum of . January \, 1830." J. Eniott, Vice Chancellor. 3. Writ of Injunction. The People of the State of New York : To A. B. and to his counsellors, attornies, solicitors, and agents, and each and evei'y of them, greeting. Whereas it has been re- presented to us in our Court of Chancery, on the part of C. D. complainant, that he has lately exhibited his bill of complaint in our said Court of Chancery, before our Vice Chancellor of the Seventh Circuit, against you the said A. B. to be relieved, touching the matters therein com- plained of, in which bill it is stated amongst other things, that you are combining and confederating with others to injure the said complainant, touching the matters set forth in the said bill, and that your actings and doings in l2 PRECEDENTS OF WRITS, &C. the premises are contrary to equity and good conscience. We, therefore, in consideration thereof, and of the parti- cular matters in the said bill set forth, do strictly com- mand you the said A. B. and the persons before men- tioned, and each and every of you, under the penalty of ten thousand dollars, to be levied on your lands, goods, and chattels to our use, that you do absolutely desist and refrain from all further 2}roceedings at law against the said C. D. upon, Sfc. [or as the case may be,~\ until the further order of our said Court of Chancery. [If the de- fendant is permitted to proceed to judgment agreeably to the 3Sd rule, add,] But you are at liberty, without preju- dice to the equitable rights of the complainant, to proceed to judgment only, in the suit at law which you have com- menced against the said C. Z). notwithstanding this our writ. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at Auburn, the frst day of January, one thousand eight hundred and thirty. J. C Sjiencer, Sol'r. Geo. Throop, Cleric. f Endorsed) " By the Court." Geo. Throop, Clerli. 4. A Writ of Execution in the nature of a Co. Sa. to compel the performance of a Specific Duty. The People, &c. To the sheriff of the county of Clin- ton, greeting. Whereas, on i\\e first day of January, one thousand eight hundred and thirty, by a certain decree made in our Court of Chancery, before our Vice Chan- cellor of the Fourth Circuit, at the town of Saratoga Springs, in a certain cause depending in our said Court, wherein A. B. is complainant, and C. D. is defendant, it was ordered, adjudged, and decreed, [set out the decree, IN THE NEW YORK CHANCERY. 149 or SO muck thereof as is ??iaterial to explain the duty to he 'performed^ as by the said decree remaining as of re- cord in our said Court of Chancery doth and may more fully appear : And ivhereas the costs so decreed to be paid to the said A. B. amount to the sum o/' 100 dollars, as taxed in our said Court of Chancery : And whereas the said C. D. hath neglected to comply with all and singular the matters and things required of him in and by the said decree, as we have been informed, in our said Court of Chancery : Now, therefore, in order that full and speedy justice may be done in the premises, we command you, that you take the body of the said C. D. if he shall be found in your bailiwick, and him safely keep in your custody until he shall perform and fulfil all and singular the matters re- quired of him in and by the said decree, and pay the costs aforesaid, together ivith your fees on this execution, or until our said Court of Chancery shall make other order to the contrary. And you are to make and return to our said Vice Chancellor of the Fourth Circuit, in our said Court of Chancery, on the Jirst day of February next, wheresoever the said Court shall then be, a certificate under your hand of the manner in which you shall have executed this our writ; and have you then there this writ. Witness, Reuben H. Walworth, Esquire, Chan- cellor of ovu' said state, at Saratoga Springs, the four- teenth day o^ January, one thousand eight hundred and thirty. J. Ellsworth, Sol'r. G. M. Davison, Clerk. (Endorsed) " By the Court." G. M. Davison, Clerk. 150' PRECEDENTS OF WRITS, &C. 5 A Writ of Execution in the nature of a Ft. Fa. where a sum is decreed to be i)aid, with or ivithout costs. The People, &c. [the direction and recitals as in the last.'] Now, therefore, in order that full and speedy jus- tice he done in the premises, we command you, that of the goods and chattels of the said C. D. in your haihwick, you cause to be made the said sum of j?ye hundred dollars, which in our said Court of Chancery before our said Vice Chancellor was decreed to the said A. B, as aforesaid; and also the sum offfty dollars, for his costs so decreed to him as aforesaid; and if sufficient goods and chattels of the said C D. cannot be found in your bailiwick, that then you cause the said sum so decreed as aforesaid, ajid the costs aforesaid, to be made of the lands and tenements of the said C. D. whereof he was seised on the, \the day of docketing the decree, if it has been docheted,] or at any time since, in whose hands soever the same 7nay he ; and have you those monies before our said Vice Chancellor of the Fifth Circuit, in our said Court of Chancery, on the first day of February next, wheresoever the said Couvt shall then be, to render to the said A. B. according to the decree aforesaid; and have you then there this writ, and make and return a certiticate under your hand of the manner in which you shall have executed the same. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at Ufica, the fifteenth day q{ January, one thousand eight hundred and thirty. M. Hoffman, Sol'r. T. Williams, Clerk. {Endorsed) " By the Court." T. Williams, Clerk. 6. Testatum Fi. Fa. for the residue. The People, &c. [direction and recitals as in the two last.~\ And whereas, by our writ, we lately commanded IN THE NEW YORK CHANCERY. 15L our Sheriff of the county of Cayuga, that of the goods and chattels, lands and tenements of the said C D. in his bailiwick, he should cause to be made the said sum of fiire hundred dollars, which in our said Court of Chancery before our said Vice Chancellor was so decreed to the said A. B. as aforesaid, and also fifty dollars for his costs so decreed to him as aforesaid, and that he should have those monies before our J ice Chancellor of the Seventh Circuit in our said Court of Chancery, on a certain day now past, to render to the said A. B. according to the decree aforesaid; and our said Sheriff" of the county of Cayuga on that day returned to our said Court, that by virtue of our said writ to him directed and delivered, he had caused to be made of the goods and chattels, lands and tenements of the said C. D. the sum of one himdred dol- lars, part of the monies in the said writ mentioned ; and that the said C. D. had not any other goods and chattels, lands or tenements in his bailiwick whereof he could cause to be levied the residue of the monies mentioned in the said writ, or any part thereof. And because it is sufficiently certified to us, in our said Court of Chancery, before our said Vice Chancellor, that the said C. D. has sufficient goods and chattels, or lands and tenements in your bailiwick, whereof you could cause to be made the residue of the monies so decreed to be paid to the said A. B. as aforesaid : Now, therefore, in order that full and speedy justice be done in the premises, we command you, that of the goods and chattels of the said C. D. in your bailiwick, you cause to be made • , residue of the monies so de- creed to be paid as aforesaid ; and if sufficient goods and chattels of the said C D. cannot be found in your baili- wick, that then you cause the said sum of , residue of the monies so decreed to be paid as aforesaid, to be made of the lands and tenements of the said C. D. where- of he was seised on the [day of docketing,^ or at any time since, in whose hands soever the same may be; and iiave you those monies before our said Vice Chancellor of the 152 PRECEDENTS OF WRITS, &C. Seventh Circuit in our said Court of Chancery, on the ^rst day of March next, wheresoever the said Court shall then be, to render to the said A. B. according to the decree aforesaid. And have you then there this writ, and make and return a certificate under your hand, of the manner in which you shall have executed the same. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at Auburn, \\\q fifteenth day of Fehniary, one thou- sand eight hundred and thirty. F. G. Jewett, Sol'r. Geo. Throop, Clerk. (Endorsed,) " By the Court." Geo. Throop, Clerk. 7. Ft. Fa. for Costs on Dismissal of Bill. The People, &c. To the Sheriff, 8cc. \recite the decree, dismissing bill tcith costs, as in the foregoing jjrecedents,^ And whereas the costs and charges of the said C Z). for his said unjust detention, and so decreed to be paid to him by the said A. B. amount to the sum of , as taxed in our said Court of Chancery; Now, therefore, we command you, that of the goods and chattels of the said A. B. in your bailiwick, you cause to be made the said sum of , for the costs and charges aforesaid, and if sufficient goods and chattels of the said A. B. cannot be found in your bailiwick, that then you cause the said costs and charges to be made of the lands and tenements of the said A. B. ivhereof he was seised on the, [the day of docketing decree^ or at any time since in whose hands soever the same may be; and have you those monies be- fore our said Vice Chancellor of the Sixth Circuit, in our said Court of Chancery, on the first day of February next, wheresoever our said Court shall then be, to render to the said C D. for his said costs and charges, according to the decree aforesaid. And have you then there this IN THE NEW YORK CHANCERY. 153 writ, and make and return a certificate under your hand, of the manner in which you shall have executed the same. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at Coopersiown, the fifteenth day of January, one thousand eight hundred and thirty. Geo. Morell, Sol'r. J. L. Woods, Clerk. (Endorsed,) " By the Court." J. L. Woods, Clerk. 8. Ca. Sa.for Costs on Dismissal of Bill. The People, &c. To the Sheriff, &c. [recite the decree and the amount of costs, as in last.] Now, therefore, we command you, that you take the body of the said A. B. if he shall be found in your bailiwick, and him safely keep in your custody until he shall pay the costs and charges aforesaid, together with your fees on this execution. And you are to make and return to our said Vice Chancellor of the First Circuit, in our said Court of Chancery, on the frst day of February next, wheresoever oiu' said Court shall then be, a certificate under your hand, of the manner in which you have executed this writ; and have you then there this writ. Witness, Reuben H. Wal- worth, Esquire, Chancellor of our said state, at the c/(y of New- York, the Jifteenth day of January, one thousand eight hundred and thirty. G. W. Strong, Sol'r. John Walworth, Clerk. (Endorsed,) " By the Court." John Walworth, Clerk. 154 PRECEDENTS OF WRITS, ikc 9. Fi. Fa. for Sum decreed and Costs after affirmance by the Court of Errors. The People, &c. To the Sheriff, &:c. Whereas, on the first day of January, one thousand eight hundred and thirty, by a certain decree made in our Court of Chan- cery before our Chancellor of our said state at the city of Albany, in a certain cause depending in our said Court, wherein A. B. is complainant and C. D. is defendant, it was ordered, adjudged, and decreed, [set out decree,^ as by the said decree remaining as of record in our said Court of Chancery doth and may more fully appear: and whereas on an appeal by the said defendant from the said decree to our Court for the Trial of Impeachments and the Correction of Errors, it was, on the fifteenth day of January, one thousand eight hundred and thirty, ordei'ed, adjudged, and decreed by our said last men- tioned Court, that the said decree of our said Court of Chancery be affirmed; and that the appellant pay to the respondent the further sum of , for the interest due on the sum so deci*eed by our said Court of Chancery to be paid by the said defendant, and also the costs of the respondent in defending the said appeal, which costs amount to the further sum of — — as taxed in our said Court of Chancery, which said several sums, including also the sum of for the costs of the said A. B. in our said Court of Chancery, amount to the sum of : Now, therefore, in order that full and speedy justice may be done in the premises, we command you, that of the goods and chattels of the said C. D. in your bailiwick, you cause to be made the said sum of , which before our Chancellor in our said Court of Chancery was decreed to the said A. B. in pursuance of the decree of our said Court for the Trial of Impeachments and the Correction of Errors as aforesaid. And if sufficient goods and chat- tels of the said C. D. cannot be found in your baihwick. IN THE NEW YORK CHANCERY. 155 that then you cause the said sum of to be made of the lands and tenements of the said CD. whereof he was seised on the \the time of docketing,^ or at any time since, in whose hands soever the same maij be, and have you those monies before our Chancellor in our said Court of Chancery, on the first day of February next, where- soever our said Court shall then be, to render to the said A.B. according to the decrees aforesaid; and have you then there this writ, and make and return a certificate under your hand of the manner in which you shall have executed the same. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at the city of New- York, the fifteenth day of January, one thousand eight hundred and thirty. Jas. Smith, Sol'r. John Walivorth, Ass't. Register. (Endorsed) " By the Court." John IValworth, Ass't. Register. 10. Precept to Commit a Party to Prison for Non-pay- ment of Interlocutory Costs. The People, &c. To the Sheriff, &c. Whereas, on i\\e first day o^ January, one thousand eight hundred and thirty, by a certain order made in our Court of Chancery before our Vice Chancellor of the First Circuit, at the city of New York, in a certain cause depending in our said Court, wherein A. B. is complainant and C. D. is de- fendant, it was ordered, that the said A. B. pay to the said C. D. his costs of opposing a certain motion, [or as the same may 6e,] which costs have been duly taxed in our said Court at the sum of ; and whereas we have been informed in our said Court before our said Vice Chancellor, that although the amount of the said costs have been personally demanded of the said A.B. by or in behalf of the said C. D., yet the said A. B. had hitherto 156 PRECEDENTS OF WRITS, &C. neglected and refused, and still neglects and refuses to pay the same ; and whereas the costs and expenses of the proceedings on the part of the said C. D. to compel pay- ment thereof amount to : Now, therefore, we com- mand you to take the body of the said A. B. if he shall be found in your bailiwick, and commit him to the prison of the city and county of Netv York, and keep and detain him therein under your custody, until he shall pay the said sum of ■ for the said costs so ordered to be paid, together with the said sum of for the costs and expenses of the proceedings to compel such payment, together with your fees on this writ. And you are to make and return to our said Vice Chancellor of the First Circuit in our said Court of Chancery, on the frst day of February next, wheresoever the said Court shall then be, a certificate under your hand of the manner in which you shall have executed this our writ; and have you then there this writ. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state at Neiv- York, the fifteenth day of January, one thousand eight hundred and thirty. Dudley Selden, Sol'r. John Walivorth, Clerk. (Endorsed) " By the Court." John Walworth, Clerk. 1 1 . Commission to Inquire of Habitual Drunkenness. The People, &c. To A. B., C. D. Sec. of, &c. greeting. Know ye, that we have assigned you, or any three or more of you, to inquire, by the oath of good and lawful men of our county of Saratoga, by whom the truth of the matter may be the better known, whether E. F. of Waterford, in the county of Saratoga, is incapable of conducting his own affiiirs in consequence of habitual drunkenness, and if so, from what time he has been so in- IN THE NEW YORK CHANCERY. 15' capable; and if the said 7i^. jp. being so incapable hath alienated any lands or tenements, and if so, what lands and tenements, to what person or persons, when, where, and after what manner and how ; and what lands and te- nements, goods and chattels as yet remain to him; and of what value the lands and tenements by him alienated, as well as those by him retained, are, and how^ much the issues and profits thereof are worth by the year, and what is the value of his goods, chattels, and personal estate, and who are the nearer heirs of the said E. F. who will be entitled to his estate in case of his death, and of what age: and, therefore, we command you, or any three or more of you, that at certain days and places which you shall for that purpose appoint, you diligently make inqui- sition in the premises; and that you cause reasonable notice of the time and place by you appointed for that purpose to be given to the said E. F., and that you send the inquisition which you shall thereupon make under your seals, or the seals of any three or more of you, and the seals of those persons by whom it shall be made, dis- tinctly and plainly and without delay, to our Vice Chan- cellor of the Fourth Circuit, in our Court of Chancery, together with this writ. And by the tenor of these pre- sents we command our Sheriff of our county of Saratoga aforesaid, that at certain days and places which you shall make know-n to him, he cause to come before you, or any three or more of you, so many, and such good and lawful men of his bailiwick as you shall direct, by whom the truth of the matters aforesaid may be the better known and inquired into. Witness, Reuben W. Walworth, Esquire, Chancellor of our said state, at the toivn of Sa- ratoga Springs, the Jirst day of January, one thousand eight hundred and thirty. W.L. F. Warren, Sol'r. G. M. Davison, Clerh. (Endorsed J " By the Court." G. M. Davison, Clerk, 158 PRECEDENTS OF WRITS, &C. 12. Commission to commit Person and Estate of habitual Drunkard. The People of the State of New-York : To all to whom these presents shall come, greeting. Whereas, by a cer- tain inquisition taken at the towji of Waterford, in the county of Saratoga, on the first day of January, one thousand eight hundred and thirty, by virtue of our com- mission in the nature of a writ de lunatico inquirendo in that behalf duly made and issued, to inquire, among other things, whether E. F. of Waterford, in the county of Saratoga, was and is incapable of conducting his own affairs, in consequence of habitual drunkenness, it is amongst other things found, that the said E. F. at the time of taking the said inquisition, and for one year pre- vious thereto, is and has been incapable of conducting his own affairs, in consequence of habitual drunkenness, as by the said inquisition remaining of record in our Court of Chancery may more fully appear ; for the care and custody of whom, and for the management of whose estate it belongs to us, in our Court of Chancery, to pro- vide. And whereas sufficient security is given to us on behalf of the said E. F. by G. H. of the tozm of Still- water, in the county of Saratoga, as is customary in such cases : Now, therefore, know ye, that we have given, granted and committed, and by these presents do give, grant and commit unto the said G. H. the care and cus- tody of the person, and the possession, care and manage- ment of the estate, as well real as personal of the said £. i^. during our pleasure, to be signified in our Court of Chancery. And the said G. H. is hereby required, within six months from the date of these presents, to return and file in the office of the Clerk of our Court of Chancery in the Fourth Circuit, a just and true inventory, under oath, of the whole real and personal estate of the said E. F. stating the income and profits thereof, and the debts, credits and effects of the said E. F. so far as the same IN THE NEW VORK CHANCERY. 159 shall come to the knowledge of the said G. H. and that out of the said estate, or the rents, issues and profits thereof, he provide for the maintenance, sustenance and support of the said E. F. and his family ; and that an- nually, if the yearly value or income of the said estate exceeds five hundred dollars, or once in every two years, if it is a less sum, the said G. U. file in the office of the said Clerk an account, under oath, of the management of his said trust, and of any other property or effects be- longing to the said estate, which he shall have discovered after the filing of the said inventory. And the said G. H. is further required to abide and obey all and every such order or orders in the premises as may hereafter be made in our said Court of Chancery, and to render a full and just account of the execution of the said trust, and of the estate, property and effects which shall have come to his hands, when and as often as required by our said Court. Witness, Reuben H. Walworth, Esquire, Chancellor of our said state, at the town of Saratoga Sj^rings, the Jirst day of January, one thousand eight hundred and thirty. TV. L. F. Warren, Sol'r. G. M. Davisoii, Clerk. (Endorsed,) " By the Court." G. M. Davison, Clerk. 13. Master's Report on Bill of Foreclosure taken as confessed. In CHyVNCERY. Miles Beach ^ V. \ J. Ellsivorth, Solicitor. John Stagg. 3 To the Chancellor of the State of New-York. In pursuance of an order of this Court made in the above cause, and bearing date the first day of January, one thousand eight hundred and thirty, by which it was IGO PRECEDENTS OF WRITS, 8i,C. referred to one of the Masters of this Court to compute and ascertain the amount due to the complainant, for the principal and interest due on the bond and mortgage mentioned and set forth in his bill of complainant in this cause, \if any of the defendants are absentees, add : and to take proof of the facts and circumstances stated in the said bill ;] I, William L. F. Warren, one of the Masters of this Court, do report, that I have computed and ascer- tained the amount due to the complainant in this cause as aforesaid, and that the amount so due on the said bond and mortgage, for the principal and interest to the date of this report, is, five hundred dollars. And I further certify and report, that the schedule hereto annexed, marked A. and making part of this my report, contains a statement and account of the principal and interest monies due to the complainant as aforesaid, and to which for greater certainty I refer. \_If any of the defendants are absentees , add: And I further certify and report, that I have taken proof of the facts and circumstances stated in the com- plainant's bill, and find the several matters therein stated to be true.] All which is respectfully submitted. Dated January \st, 1830. W. L. F. Warren, Master in Chancery. Schedule, marked A., referred to in the preceding Report. One bond, dated January 1, 1829, in the penal sum of , conditioned to pay in six 7nonths ivith interest, secured by mortgage of same date. Principal, Interest thereon from January 1, 1829, to January 1, 18o0, one year, at 7 per cent. Amount due January 1, 1830, W. L. F. Warren, Master in Chancery. IN THE NEW YORK CHANCERY. 161 14. Order to sell Mortgaged Premises on BUI taken as confessed. At a Court of Chancery held for the State of New- York, at the city of Albany, on the first day o^ January, one thousand eight hundred and thirty. Present : EseJc Cowen, Vice Chancellor of the Fourth Circuit. Miles Beach ^ vs. > J. Ellsworth, Solicitor. John Stagg. } On reading and filing the report of Wil- liam Li. F. Warren, one of the Masters of this Court, bearing date the^r*^ day oi January, one thousand eight hundred and thirty, to whom it was referred to compute the amount due to the complainant, for the principal and interest on the bond and mortgage mentioned and set forth in his bill of complaint in this cause, \if any of the defendants are absentees, add, " and to take proof of the facts and circumstances stated in the said bill,"] by which report it appears that there was due to the complainant, at the date of the said report, for the said principal and interest, the sum o^ five hundred dollars ; and on reading and filing the affidavit of Judiah Ellsworth, Solicitor for the complainant, \or the certificate of Gideon M. Da- vison, one of the Clerks of this Court,] showing the re- gularity of the proceedings to take the bill in this cause as confessed ; and on motion of Judiah Ellsworth, of counsel for the complainant, it is ordered, adjudged, and decreed, and this Court, by virtue of the authority therein vested, doth order, adjudge, and decree, that the said report and all things therein contained do stand ratified and confirmed. And it is further ordered, adjudged, and decreed, that all and singular the said mortgaged pre- mises mentioned in the bill of complaint in this cause, and M PRECEDENTS OF WRITS, &C. therein described as follows, to wit : " [take in description as in bill,Y or so much thereof as may be sufficient to raise the amount due to the complainant for the principal, in- terest, and costs in this case^ and which may be sold separately without material injury to the parties inter- ested, be sold at public auction, by or under the direction of one of the Masters of this Court; that the said sale be made in the county where the said mortgaged premises, or the greater part thereof, are situated; that the Master give public notice of the time and place of such sale, according to the course and practice of this Court, and that the complainant, or any of the parties in this cause, may become the purchaser; that the Master execute a deed to the purchaser of the mortgaged premises on the said sale; and that the said Master pay to the complain- ant, or his solicitor, out of the proceeds of the said sale, his costs in this suit to be taxed, and also the amount so reported due as aforesaid, together with legal interest thereon from the date of the said report, or so much thereof as the purchase-money of the mortgaged premises will pay of the same, and that the Master take his receipt for the amount so paid, and file the same with his report; and that he bring the surplus monies arising from the said sale, if any there be, into Court without delay, to abide the further order of the Court. And it is fur- ther ordered and decreed, that the purchaser or pur- chasers of the said mortgaged premises at such sale be let into the possession thereof; and that any of the parties in this cause who may be in possession of the said pre- mises or any part thereof, and any person who since the commencement of this suit has come into possession under them or either of them, deliver possession thereof to such purchaser or purchasers, on production of the Master's deed for such premises, and a certified copy of the order confirming the report of the sale after such order has be- come absolute. And it is further ordered and decreed, that if the monies arising from the said sale are insuffi- IN THE NEW YORK CHANCERY. cient to pay the amount so reported due to the complain- ant, with the interest and costs as aforesaid, that the said Master specify the amount of such deficiency in his re- port of the sale; and that on the coming in and confirma- tion of the said report, the defendant, John Stagg, who is personally liable for the payment of the debt secured by the said mortgage, pay to the complainant the amount of such deficiency, with interest thereon, from the date of such last mentioned report, and that the complainant have execution thereon. 163 1 5. Cosis on the Foreclosure of a Mortgage when the Bill is taken as confessed. Retaining fee for solicitor and counsel Di-awing bill, fol. at 28 cents a folio - Engrossing bill, " at 14 " " Counsel perusing and signing bill " " Taking oath of complainant to bill - - - Attending vice chancellor to obtain injunction - Vice chancellor or master allowing injunction Register filing bill and Serjeant's fee - - - Drawing subpoena, fol. 2, and engrossing - Copy of subpoena for defendant - _ - Register sealing subpoena _ _ _ - Drawing notice of commence of suit, fol. 2 Engrossing copy to file with county clerk - County clerk filing and entering in index - Register filing certificate of allowance of injunc- tion _-_-__- Drawing and entering order for injunction, fol. 1 Solicitor attending register to enter order - Drawing injunction, fol. 4, at 28 cents Engrossing same, fol. 4, at 14 cents . - - Copy for defendant, fol. 4, at 7 cents Serving injunction on defendant _ - - M 2 dol. cts. 8 00 2 50 12J 50' 1 25 181 84 14 12 56 28 m 06 37 50 1 12 56 28 75 164 PRECEDENTS OF WRITS, &C. Drawing affidavit of service, fol. 2 - - - Engrossing affidavit _ _ _ - - Commissioner taking affidavit - - - - Notice of object of suit for defendant and service Serving subpoena on defendant _ _ _ Drawing affidavit of service of subpcena and no- tice, fol. 2 - Engrossing same --.__- Copy notice to annex to affidavit _ _ _ Commissioner taking afHdavit _ - - - Register filing subpcena and affida\it of service - Drawing and entering order for appearance, fol 2 Solicitor attending register to enter order - Drawing affidavit that defendant is an absentee, fol.2 - Engrossing affidavit, and taking same Solicitor and counsel attending on motion - Drawing order that absentee appear, fol. 3 Register fiUng affidavit and subpoena, and enter- ing order - - - - - - - Solicitor attending register to enter order - Certified copy order for printer _ _ _ Publishing order 8 weeks, fol. 3, at 1 90 - Copy bill to serve, at 7 cents a folio - - - Drawing and entering order to answer in 40 days, fol. 2 - - - - - - - - 74 Solicitor attending register to enter order - - 50 Notice of order for defendant's solicitor, and ser- vice ----_-_- Drawing affidavit of defendant's default, fol. 2 - Engrossing, taking, and filing affidavit Drawing and entering order to take bill as con- fessed, fol. 2 -_-__. Solicitor attending register to enter order - Drawing and entering order of reference, fol. 2 - Solicitor attending register to enter order - Certified copy of order for master . - - dol. c(s. 56 28 121 371 75 56 28 14 121 12 74 50 56 m 2 50 84 48 50 27 5 70 37; 56 46: 74 50 74 50 18 IN THE NEW YORK CHANCERY. dol. cts. Attending master on reference to compute amount 50 JNlaster computing amount due - - - - 1 00 Drawing report of amount due, fol. 3 - - GO Drawing schedule to annex, fol. 2 - - - 20 Engrossing report and schedule to file, fol. 5 - 50 Copy report for complainant's solicitor - - 30 Marking bond and mortgage on re fei'ence - - 12 Drawing report in case of an absentee, at 20 cents Engrossing same to file, at 10 cents a folio Notice of issue for register, and service - - 37| Register filing notice and entering cause on ca- lendar - 20 Serjeant's fee on entering cause - - - 50 Drawing affidavit of regularity, fol. 2 - - 56 Engrossing and taking affidavit - - - 40g Register filing affidavit and report - - - 12 Counsel fee on ex parte hearing of cause - - 2 50 Drawing decree, at 28 cents a folio - - - Register entering same, at 12 cents a folio - Solicitor attending register to enter decree - 50 Certified copy for master, at 9 cents a folio Fee to vice chancellor for taxing costs Solicitor attending on taxation of costs Taxed bill of costs to file and enrol - - - Copy taxed bill to be paid by master - - - Engrossing decree, at 15 cents a folio Register signing and filing enrolled decree Docketing decree ------ Four copies of docket for clerks of superior court Certificate of enrolment for master - - - Filing report of sale and receipt for costs, &,c. - Drawing and entering order to confirm report, fol. 2 Certified copy of order for purchaser Drawing fi. fa. for residue, at 28 cents a folio Engrossing same, at 14 " *' Sealing execution, and entering return and filing 18 165 1 50 50 1 00 1 00 1 00 20 48 20 12 74 18 166 PRECEDENTS OF WRITS, &C. IN THE NEW YORK CHANCERY. N.B. — No charge is to be taxed except for services actually performed; and where fees for prospective ser- vices are included in the taxed bill, they are to be refunded if the service becomes unnecessary, or is not actually done. The master's commissions, fees, and dis- bursements on the sale are not included in the taxed bill, but are to be retained by him out of the proceeds of the property, and specified in his report of sale. ( 167 ) REVISED STATUTES STATE OF NEW-YOllK RELATING TO REAL PROPERTY, &c. AN ACT Concerning the Acquisition, the Enjoyment and the Transmission of Property, Real and Per- sonal; the Domestic Relations, and other Mat- ters connected with Private Rights. Whereas it is expedient that the several statutes of this State, relating to the acquisition, the enjoyment and the transmission of property, real and personal ; the domestic relations, and certain matters connected with private rights ; should be consolidated and arranged in appro- priate chapters, titles and articles ; that the language thereof should be simplified ; and that omissions and other defects should be supplied and amended : Therefore, The People of the State of New York, represented in Senate and Assembly, do declare and enact as follows ; — CHAPTER I. Of Real Property, and of the Nature, Qualities and Alienation of Estates therein. Title 1. — Of the tenure of real property, and the persons capable of holding and conveying estates therein. 168 SELECTIONS FROM THE Title 2. — Of the nature and qualities of estates in real property, and the alienation thereof. 3. — Of estates in dower. 4. — Of estates for years, and at will, and the rights and duties of land- lords and tenants. 5. — Miscellaneous provisions of a general nature. TITLE I. OF THE TENURE OF REAL PROPERTY AND THE PERSONS CAPABLE OF HOLDING AND CONVEYING ESTATES THEREIN. Art. 1. — Of the tenure of real property. 2. — Of the persons capable of holding and conveying lands. The people ori- ginal owners of lands in this state. To hold es- ciieated land subject to trusts, &c. How trusts, &c. executed. All lands allo- dial. ARTICLE FIRST. Of the Tenure of Real Property. Sect. 1. People of this state deemed original owners of lands therein. 2. Escheated land to be held subject to trusts, &c. ; how executed. 3. Lands declared allodial ; feudal tenures abolished. 4. Abolition of tenures not to affect certain rights or powers of courts. 5. Guardianship of infants owning lands, to whom it belongs. 6. Provisions respecting guardians in soccage to apply to them. 7. Superseded by appointment of testamentary or other guardian. Section 1. The people of this state, in their right of sovereignty, are deemed to possess the original and ulti- mate property in and to all lands within the jurisdiction of the state ; and all lands, the title to which shall fail, from a defect of heirs, shall revert or escheat to the people.* § 2. All escheated lands, when held by the state, or its grantees, shall be subject to the same trusts, incumbrances, charges, rents, and services, to which they would have been subject had they descended ; and the court of chan- cery shall have power to direct the attorney-general to convey such lands to the parties equitably entitled thereto, according to their respective rights, or to such new trustee as may be appointed by such court. § 3. All lands within this state are declared to be allo- * 1 R. L. p. 380, <j 2. IsEW YORK REVISED STATUTES. 169 dial, so that, subject only to the hability to escheat, the entire and absolute property is vested in the owners, ac- cording to the nature of then* respective estates ; and all feudal tenures, of every description, with all their inci- Feudui tenures dents, are abolished.* a ois e . § 4. The abolition of tenures shall not take away or Cenain rights, discharge any rents or services certain, which at any time '^^. not to be heretofore have been, or hereafter may be, created or re- served; nor shall it be construed to affect or change the powers or jurisdiction of any court of justice in this state* § 5. Where an estate in lands shall become vested in Who to be guar- an infant, the guardianship of such infant, with the rights, „;","]' "/ilnds"*' powers and duties of a guardian in soccage, shall belong, 1. To the father of the infant. 2. If there be no father, to the mother. 3. If there be no father or mother, to the nearest and eldest relative of full age, not being under any legal incapacity; and as between relatives of the same degree of consanguinity, males shall be pre- ferred. § 6. To every such guardian, all statutory provisions Subject to cer- that are or shall be in force relative to guardians in ^'^'" ''"^* soccage shall be deemed to apply. § 7. The rights and authority of every such guardian When super- shall be superseded in all cases where a testamentary or *^ ^ * other guardian shall have been appointed under the pro- visions of the third Title of the eighth Chapter of this Act. ARTICLE SECOND. Of the Persons capable of holding and cojiveying Lands. Sect. 8. Citizens of United States capable of holding, &c. lands in this state. 9. Titles of possessors, at certain time, of lands, not to be afiected by alienism, &.c. 10. Who capable of aliening lands. 11. Purchases from Indians since certain time voitl, &C. 12. Indians cannot dispose of or contract for, ^:c. land, except, &.c. * 1 R. L, p. 70, § 2 to 6. 170 SELECTIONS PROM THE Wlio capable to hold lauds. Certain titles not to be af- fected b_y alienisai. Who cajjable of aliening lands. Certain pur- chases from In- dians void. Sales, &c. by Indians pro- hibited. 13. Heirs of certain Indian patentees may convey in certain manner. 14. Occupants of lands so conveyed to be paid for improvements. 15. Resident aliens may make certain deposition. 16. Right thereafter to hold lands and make certain dispositions of them. 17. Not to hold lands acquired previous to making such deposition. 18. If alien die within six years, his heirs may inherit lands. 19. Aliens may take mortgages on sales of certain lands, &;c. 20. Liabilities and incapacities of aliens holding lands. § 8. Every citizen of the United States is capable of holding lands within this state, and of taking the same by descent, devise or purchase. § 9. No title or claim of any citizen of this state, who was in the actual possession of lands on the twenty-first day of April, one thousand eight hundred and twenty-five, or at any time before, shall be defeated or prejudiced on account of the alienism of any person through or from whom his title or claim to such lands may have been derived. § 10. Every person capable of holding lands (except idiots, persons of unsound mind and infants,) seised of, or entitled to, any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect, and subject to the restrictions and regulations provided by law.* § 11. No purchase or contract for the sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventy-five, or which may hereafter be made, with the Indians in this state, is valid, unless made under the authority and with the consent of the legislature of this state.f § 12. No Indian residing within this state can make any contract for or concerning the sale of any lands within this state, or in any manner give, sell, devise or otherwise dispose of any such lands, or any interest therein, without the authority and consent of the legislature of this state, except as hereinafter provided.^ * 1 R. L. p. 70, $ 1, and p. 74, § 5. t Const. Art. 7, § 12. t 2 R. L. 153, § 1. NEW YORK REVISED STATUTES. 171 § 13. The heirs of every Indian to whom land has been iieiisof certain granted for military services rendered during the war of the cwiteT/&c! revolution, shall be and are capable of taking and holding any such lands by descent, in the same manner as if such heirs were citizens of this state, at the death of their ancestors ; and every conveyance executed by such pa- tentee, or his heirs, after the seventh day of March, one thousand eight hundred and nine, to any citizen of this state, for any such land, shall be valid, if executed with the approbation of the surveyor-general of this state, to be expressed by an endorsement made on such conveyance and signed by him.* § 14. If any land so conveyed shall have been occupied Improvements or improved, at the time of such conveyance, the occupant, ° '' ^'" his heirs or assigns, shall be entitled to be paid for the improvements made by them, or either of them, in the manner provided in the second section of the act, intitled " An Act concerning Lands in the Military Tract," passed April 8, 1813,* § 15. Any alien who has come, or who may hereafter Resident aliens come, into this state, may make a deposition or affirmation "('jon™^^. to'bc in writing, before any officer authorised to take the proof filed, &c. by of deeds to be recorded, that he is a resident in this state, state.'' and intends always to reside in the United States, and to become a citizen thereof, as soon as he can be naturalized, and that he had taken such incipient measures as the laws of the United States require, to enable him to obtain naturalization ; which shall be certified by such officer, and be filed and recorded by the secretary of state, in a book to be kept by him for that purpose. And such cer- tificate, or a certified copy thereof, shall be evidence of the facts therein contained. f § IG. Any alien who shall make and file such deposition Entitled thoie- shall thereupon be authorised and enabled to take and P*^'" ^° ''"'^ 1 n 1 • ^ • lands; may hold lands and real estate, of any kind whatsoever, to him, dispose of ihcm, but not to lease. * 2 K. L. 175, § 55. t Laws of 1825, p. 427, § l,2&i3. 172 SELECTIONS FROM THE his heirs and assigns for ever, and may, during six years thereafter, sell, assign, mortgage, devise and dispose of the same, in any manner, as he might or could do if he were a native citizen of this state, or of the United States, except that no such alien shall have power to lease or demise any real estate, which he may take or hold by virtue of this provision, until he becomes naturalized.* Not to hold § 17. Such alien shall not be capable of taking or lands previously J^olding any lands or real estate which may have descended, acquired. o j j ^ or been devised or conveyed to him previously to his having become such resident, and made such deposition or affirmation as aforesaid.* Hei IS to inherit § 18. When sucli alien shall die within six years after in ter ain case. j^jg^]^jj^g g^j^j filing sucli deposition, intestate, leaving heirs inhabitants of the United States, such heirs shall take by descent, and hold any real estate of which such alien died seised, in the same manner as they would have inherited if such alien had been, at the time of his death, a citizen of this state.f Onsaleofcer- § l^- If ^ny alien shall sell and dispose of any real tam lands, aliens estate, whicli he is entitled by law to hold and dispose of, may take niort- , •, . , . -, . , . gages, and may he, his heu's and assigus, may take mortgages in his or repiirc ase^ their own name, as a collateral security for the purchase certain cases, money due thereon, or any part thereof; and such mort- gagee, his heirs, assigns or legal representatives, or any of them, may re-purchase any of the said premises, on any sale thereof made by virtue of any power contained in such mortgage, or by virtue of any judgment or decree of any court of law or equity, rendered in order to enforce the payment of any part of such money, and may hold the same premises, in the like manner, and with the same authority, as the same were originally held by such mort- gagor.J Liabilities and § ~0. Every alien who shall hold any real estate by incapacities of yirtuc of any of the foregoing provisions, shall be subject * Laws of 1825, p. 427, ^ 1, 2 & 3. t Laws of 1826, p. 348, $ 2. ; 2 R. L. p. 542, sS 2. NEW YORK REVISED STATUTES. 173 to duties, assessments, taxes and burthens, as if he were a citizen of this state; but shall be incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury.* TITLE II. OF THE NATURE AND QUALITIES OF ESTATES IN REAL PRO- PERTY, AND THE ALIENATION THEREOF. Art. 1. — Of the creation and division of estates. 2. — Of uses and trusts. 3. — Of powers. 4. — Of alienation b) deed. ARTICLE FIRST. Of the Creation and Division of Testates. Sect. 1. Enumeration of estates in land. 2. Estates of inheritance, a fee simple, when a fee simple absolute. 3 & 4. Estates tail abolished and to be fees simple; remainders thereon, when valid. 5. What to be estates of freehold, chattels real and chattel interests. 6. Estates for life of tliird person, when freehold, when chattels real. 7. Division of estates into those in possession and those in expectancy. 8. Definition of those estates respectively. 9. Enumeration of estates in -expectancy. 10. Definition of a future estate. 11. When a future estate is a remainder. 12. Definition of a reversion. 13. When future estates are vested, when contingent. 14. Certain future estates void : when power of alienation deemed sus- pended. 15. How long power of alienation may be suspended. 16. In certain case a contingent remainder in fee may be created. 17. Limitation of successive estates for life. 18. Remainders upon estates for life of third person. 19. When remainder to take ell'ect, if estate be for life of more than two persons. 20. Contingent remainder on a term for years. 21. Estates for life, as remainders, on a term for years. 22. Cleaning of " heirs" and " issue" in certain remainders. 23. Limitations herein prescribed, to apply to chattel interests in lands. * Laws of 1825, p. 427, § 4. ^^^ SELECTIONS FROM THE Sect. 24. Remainders, future and contingent estates, how created. 25. Two or more future estates, in the alternative, may be created. 26. Future estates not to be void on ground of improbability, &c. 27. Remainder upon a contingency ; its effect. 28. Heirs of a tenant for life, when to take as purchasers. 29. Construction of certain remainders. 30 & 31. In what cases posthumous children to take, or defeat, future estates. 32. Expectant estates not to be defeated by owners of precedent estate, &c. 33. But such estates may be defeated by means provided by the grantor. 34. Remainder not to be defeated by termination of precedent estate. 35. Expectant estates descendible, devisable and alienable. 36. Limitations on the disposition of future profits of lands. 37. Accumulations of profits of land, how and for whom may be directed. 38. Other directions for accumulation, when void in part, when wholly void. 39. When profits, &c. may be applied to education, &c. of infants. 40. To whom rents and profits of lands, in certain cases, to belong. 41. What deemed the time of creation of expectant estates. 42. Expectant estates not herein enumerated abolished. 43. Nature, &:c. of estates in severalty, joint tenancy and in common. 44. What to be deemed estates in common, what in joint tenancy. Enumeration of § 1 . Estates in lands are divided into estates of inherit- estates m land, ^j^ce, estates foi' life, estates for years, and estates at will and by sufferance. What estate a §2. Every estate of inheritance, notwithstanding the fee simple. abolition of tenures, shall continue to be termed a fee simple, or fee ; and every such estate, when not defeasible or conditional, shall be termed a fee simple absolute, or an absolute fee. Estates tail § 3. All estates tail are abolished ; and every estate Their nVure which would be adjudged a fee tail, acccording to the declared. j^w of this State, as it existed previous to the twelfth day of July, one thousand seven hundred and eighty-two, shall hereafter be adjudged a fee simple ; and if no valid remainder be limited thereon, shall be a fee simple abso- lute.* Certain remain- § 4. Where a remainder in fee shall be limited upon ders valid. ^^^^ estate, which would be adjudged a fee tail, according to the law of this state, as it existed previous to the time * 1 R.L. p. 52, «i. NEW YORK REVISED STATUTES. 175 mentioned in the last section, such remainder shall be vahd as a contingent limitation upon a fee, and shall vest in possession, on the death of the first taker, without issue living at the time of such death. § 5. Estates of inheritance and for life shall continue Freeholds; chat- to be denominated estates of freehold; estates for years l^,^- \^'^ ; ^iiat- ' •' tel interests. shall be chattels real; and estates at will or by sufferance shall be chattel interests, but shall not be liable as such to sale on executions. § 6. An estate during the life of a third person, whe- Estates for life ther limited to heirs or otherwise, shall be deemed a free- whenfreehour hold only during the life of the grantee or devisee, but ^^^ after his death it shall be deemed a chattel i*eal. § 7. Estates, as respects the time of their enjoyment, In possession or are divided into estates in possession, and estates in ex- ^^P^^'*"*^^' pectancy. § 8. An estate in possession is where tlie owner has an Definition of immediate right to the possession of the land. An estate '*^^^ *^^ " ^*' in expectancy, is where the right to the possession is post- poned to a future period. § 9. Estates in expectancy are divided into — Enumeration of 1. Estates commencing at a future day, denomi- pectancy. nated future estates : and, 2. Reversions. § 10. A future estate is an estate hmited to commence Futmc estates. in possession at a future day, either without the interven- tion of a precedent estate, or on the determination, by lapse of time or otlierwise, of a precedent estate, created at the same time. § 11. Where a future estate is dependent on a prece- When they are dent estate, it may be termed a remainder, and may be f^'"=""^'^fS' created and transferred by that name. § 12. A reversion is the residue of an estate left in the Reversions, grantor or his heirs, or in the heirs of a testator, com- mencing in possession on the determination of a particular estate granted or devised. 176 SELECTIONS FROM THE Vested and con • tingent future estates. Void future estates. Suspending power of aliena- tion. How long it may be suspended. Contingent re- luainder in fee. Limitation of successive es- tates for life. Hemainder upon certain estates for life. § 13. Future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect remains vmcertain. § 14. Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this article. Such power of alienation is suspended, when there are no per- sons in being, by whom an absolute fee in possession can be conveyed. § 15. The absolute power of alienation shall not be suspended by any limitation or condition wdiatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case mentioned in the next section. § 16. A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age. § 17. Successive estates for life shall not be limited, unless to persons in being at the creation thereof: and where a remainder shall be limited on more than two suc- cessive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, and upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estates had been created. § 18. No remainder shall be created upon an estate for the life of any other person or persons than the grantee or devisee of such estate, unless such remainder be in fee, nor shall a remainder be created upon such an estate in a NEW YORK REVISED STATUTES. 17T term for years, unless it be for the whole residue of such term. § 19. When a remainder shall be created upon any When remain- such lire estate, and more tlian two persons snail be f^^^ j,, certain named, as the persons during whose lives the life estate '^'•^'^s. shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced. § 20. A contingent remainder shall not be created on a Contingent ic- p 1 ,1 i i? ii i' niainder on a term ot years, unless the nature or the contingency on ^^^^^^ j.^,. ^.^ which it is limited be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof. § 21. No estate for life shall be limited as a remainder Remainder of „ • 1 • . ,1 estates for life. on a term or years, except to a person m being at the creation of such estate. § 22. Where a remainder shall be hmited to take effect Meaning of on the death of any person without heirs, or heirs of his « js^ne" in cer- body, or without issue, the words " heirs" or " issue" ^""* "•emamders. shall be construed to mean heirs or issue, living at the death of the person named as ancestor. § 23. All the provisions contained in this Article, relative Limitations on to future estates, shall be construed to apply to limita- ^ "" tions of chattels real, as well as of freehold estates, so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee. § 24. Subject to the rules established in the preceding Remainders, fa- _,..., Pill ^. 11 tufe and contin- sections ot this Article, a freehold estate as well as a gent estates, chattel real may be created, to commence at a future day; ''°^^ created. an estate for life may be created in a term of years, and a remainder limited thereon ; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years ; and a fee may be limited on a fee, upon a contingency, which, if N 178 SELFX'TIONS FROM THF. it should occur, must happen within the period prescribed in this Article. Two or more ^ 25. Two or more future estates may also be created, tutuie esliiles. irr»'ii • i 'o i n • to take eiiect m tlie alternative, so that if the nrst in order shall fail to vest, the next in succession shall be substituted for it, and take eftect accordingly. Certain future ^ 26. No future estate, otherwise valid, shall be void on estates not to , i ^ i i i -t • i i •!• r t be void. the ground or the probabihty or iniprobabihty or the con- tingency on which it is limited to take eftect. Remainder 5; 27. A remainder may be limited on a contingency, upon aeon- i *• i • • i i i i -n i • i tingency. which, ill casc it should happen, will operate to abridge or determine the precedent estate ; and every such re- mainder shall be construed a conditional limitation, and shall have the same effect as such a limitation would have by law. Heirs of a te- ^ 28. Where a remainder shall be limited to the heirs, wiien to take as or heirs of the body of a person to whom a life estate, in purchasers. ^jjg Same premises, shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them. Construction of ^ 29. When 3 remainder on an estate for life, or for de'rs.' '"' years, shall not be limited on a contingency defeating or avoiding such precedent estate, it shall be construed as intended to take eftect only on the death of the first taker, or the expiration, by lapse of time, of such term of years. Posthumous § 30. Where a future estate shall be limited to heirs or issue, or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parent, lb. § 31. A future estate depending on the contingency of the death of any person without heirs or issue, or children, shall be defeated by the birth of a posthumous child of such person, capable of taking by descent. NEW YORK REVISED STATUTES. 179 § 32. No expectant estate can be defeated or barred Expectant es- by any alienation or other act of the owner of the inter- IfJ^jf^tTj '^^.^ mediate or precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger, or otherwise. § 33. The last preceding section shall not be construed When to be to prevent an expectant estate from being defeated in any manner, or by any act or means, which the party creating such estate shall, in the creation thereof, have provided for or authorised ; nor shall an expectant estate thus lia- ble to be defeated be on that ground adjudged void in its creation. § 34. No remainder, valid in its creation, shall be defeated Remain. lers not by the determination of the precedent estate, before the [,%ertaln c'ases. happening of the contingency on which the remainder is limited to take effect ; but should such contingency after- wards happen, the remainder shall take effect, in the same manner and to the same extent, as if the precedent estate had continued to the same period. § 35. Expectant estates are descendible, devisable, and Qualities of ex- alienable, in the same manner as estates in possession. pectant estates. § 36. Dispositions of the rents and profits of lands, to Future profits of accrue and to be received at any time subsequent to the ' execution of the instrument creating such disposition, shall be governed by the rules established in this Article in re- lation to future estates in lands. § 37. An accumulation of rents and profits of real estate, Accuuuiiation of for the benefit of one or more persons, may be directed '^^^^^^ "' '" ^' by any will or deed, sufficient to pass real estate, as fol- lows : — 1. If such accumulation be directed to commence on the creation of the estate, out of which the i-ents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority. 2. If such accumulation be directed to commence at any time subsequent to the creation of the estate n2 void 180 SELECTIONS FROM THE out of which the rents and profits are to arise, it shall commence within the time in this Article per- mitted for the vesting of future estates and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority. Other directions, 5, 35. If^ in either of the cases mentioned in the last when void in . it • n i 1 • i n 1 r' part, section, the direction tor such accumulation shall be tor a longer term than during the minority of the persons in- tended to be benefited thereby, it shall be void as respects lien wholly the time beyond such minority. And all directions for the accumulation of the rents and profits of real estate, except such as herein allowed, shall be void. Application of ^ 39. Where such rents and profits are directed to be suppo^it, &c.of accumulated for the benefit of infants entitled to the ex- infants, pectant estate, and such infants shall be destitute of other sufficient means of support and education, the chancellor, upon the application of their guardian, may direct a suit- able sum out of such rents and profits to be applied to their maintenance and education. In certain cases, ^ 40. When iu cousequencc of a valid limitation of an profits of land, expectant estate, there shall be a suspense of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate. "Expectant es- §41. The delivery of the grant, where an expectant detm'ed created, estate is created by grant, and where it is created by de- vise, the death of the testator, shall be deemed the time of the creation of the estate. Certain expect- § 42. All expectant estates, except such as are enume- ant estates abo- ^.^^^j ^^^^1 defined iu this Article, are abolished. Iished. ' Estates in seve- § 43. Estates, in respect to the number and connexion ralty, joint te- of their owners, are divided into estates in severalty, in nancy, and in _ ' -^ _ common. joint tenancy, and in common ; the nature and properties of which respectively shall continue to be such as are now NEW YORK REVISED STATUTES. 181 established by law, except so far as the same may be mo- dified by the provisions of this Chapter. § 44. Every estate granted or devised to two or more Wiiat to be i» .1 . • 1 . I 11 1 i • common, what persons, in their own right, shall be a tenancy in common, injoim tenancy. unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested, as to estates hereafter to be granted or devised.* ARTICLE SECOND. Of Uses and Trusts. Sect. 45. Uses and trusts, not herein authorised, abolished; estates in land, legal rights. 46. Existing executed uses confirmed as legal estates. 47. Persons entitled to possession of lands declared the legal owners thereof. 48. Last section not to affect active trusts. 49. No estate granted for the use of another to vest in the trustees, 50. Previous sections not to apply to resulting or implied or express trusts, 51. Grant to one, for consideration paid by another, vests title in grantee. 52. But trust to result in favour of creditors of person paying consideration. 53. Preceding 51st section not to extend to certain cases. 54. Purchasers in good faith not to be affected by implied trusts, &:c. 55. For what purposes express trusts may be created. 56. Certain devises in trusts to be deemed powers. 57. In certain cases, profits of land liable to creditors. 58. Express trusts not before authorised to be powers in trust. 59. In such case, land to remain in and descend to persons entitled. 60. Trustees under valid express trusts to have whole estate. 61. Qualification of last section. 62. Estates, &c. not included in express trust to remain in grantor. 63. Powers of parties interested in certain trusts over them. 64. Conveyances not declaring trust, absolute in certain cases. 65. Sales, &c. contrary to the trust expressed in instrument void. 66. Misapplication of money received by trustees not to affect others. 67. Estate of trustee to cease when purpose of trust ceases. 68. Disposition of trust, &c. on death of surviving trustee. 69. Wlien and how trustee may resign. 70. When and how trustee may be removed. 71. Appointment of trustees in place of those resigning or removed, &c. 72. Three last sections applicable only to express trusts. • 1 R. L. p. 54, ^6 Sx.7. [H2 SELECTIONS FROM THE Certain uses and trusts abolished. Executed uses existing. Right to posses- sion of lauds creates legal ownei'shij). Active trusts not afiected bj last section. Trustees of es- tate for use of another take no interest. Preceding sec- tions qualiried. Grant to one for money paid by another no trust to result. § 45. Uses and trusts, except as authorised and modi- fied in this Article, are abohshed ; and every estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise pro- vided in this Chapter. § 46. Every estate which is now held as an use, exe- cuted under any former statute of this state, is confirmed as a legal estate. § 47. Every person, who, by virtue of any grant, as- signment, or devise, now is, or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest.* § 48. The last preceding section shall not divest the estate of any trustees in any existing trust, where the title of such trustees is not merely nominal, but is connected with some power of actual disposition or management, in relation to the lands which are the subject of the trust. § 49. Every disposition of lands, whether by deed or devise, hereafter made, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of, or in trust for, such person ; and if made to one or more persons, to the use of, or in trust for, another, no estate or interest, legal or equitable, shall vest in the trustee.* § 50. The preceding sections in this Article shall not extend to trusts arising or resulting by implication of law, nor be construed to prevent or affect the creation of such express trusts as are hereinafter authorised and defined. § 51. Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; * 1 R. L. p. 72, $1,2,& 3. NEW YORK REVISED STATUTES. 183 but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.* § 52. Every such conveyance shall be presumed fraudu- Exceju for be- lent as against the creditors, at that time, of the person "^^^ ^^,*^'^'^ paying the consideration; and where a fraudulent intent is not disproved, a trust shall result in favour of such cre- ditors to the extent that may be necessary to satisfy their just demands.* § 53. The provisions of the preceding fifty-first section Sectional qua- shall not extend to cases where the alienee named in the ' " ' conveyance shall have taken the same as an absolute con- veyance, in his own name, without the consent or know- ledge of the person paying the consideration, or where such alienee, in violation of some trust, shall have pur- chased the lands so conveyed with monies belonging to another person.* § 54. No implied or resulting trust shall be alleged or Purchasers pro- established to defeat or prejudice the title of a purchaser '^'^^'^^• for a valuable consideration, and without notice of such trust. § 55. Express trusts may be created for any or either of For wiiat pur- .1 p 11 • poses express the foUowmg purposes :— \,,,^,, .J^ be 1. To sell lands for the benefit of creditors. cre;ited. 2. To sell, mortgage, or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of lands, and ap- ply them to the education and support, or either, of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first Article of this Title. 4. To receive the rents and profits of lands, and to accumulate the same for the purposes and within the limits prescribed in the first Article of this Title. » 1 R. L. 74, j 4. 184 SELECTIONS FROM THE Certain di'viscs ill frusl to be ilccnied powers Profits of land liable to credi- tors ill certain cases. Otlier express trusts to be powers in trust. And land, &:c. to descend to persons entitled. Trustees of ex- press trusts to have whole estate. Last section qualified. § 56. A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power. § 57. Where a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable, in equity, to the claims of the creditors of such person in the saine manner as other personal property, which cannot be reached by an execution at law. § 58. Where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees ; but the trust, if directing or authorising the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third Article of this Title. § 59. In every case where the trust shall be valid as a power, the lands to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power. § 60. Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. § 61. The preceding section shall not prevent any per- son creating a trust from declaring to whom the lands to which the trust relates shall belong, in the event of the failure or termination of the trust ; nor shall it prevent NEW YORK REVISED STATUTES. 185 him from granting or devising such lands, subject to the execution of the trust. Every such grantee or devisee shall have a legal estate in the lands as against all per- sons, except the trustees and those lawfully claiming under them. § 62. Where an express trust is created, every estate Interests re- and interest not embraced in the trust and not otherwise grantoi^of ex- disposed of, shall remain in, or revert to, the person pf<;ss trust. creating the trust, or his heirs, as a legal estate. § 63. No person beneficially interested in a trust for the Powers over receipt of the rents and profits of lands, can assign or in inteiested. "^ ^ any manner dispose of such interest ; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created are assignable. § 64. Where an express trust is created, but is not Effect of contained or declared in the conveyance to the trustees, °'""^"'^S trust J ' in conveyance. such conveyance shall be deemed absolute, as against the subsequent creditors of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration. § 65. Where the trust shall be expressed in the instru- Certain sales, ment creating the estate, every sale, conveyance or other ^^^[^ y tmstees act of the trustees, in contravention of the trust, shall be absolutely void. § 66. No person who shall actually and in good faith Others not to pay a sum of money to a trustee, which the trustee as misconduct of such is authorised to receive, shall be responsible for the trustees. proper application of such money according to the trust; nor shall any right or title dei'ived by him from such trustee, in consideration of such payment, be impeached or called in question, in consequence of any misapplica- tion by the trustee of the monies paid. § 67. When the purposes for which an express trust When estate of shall have been created shall have ceased, the estate of the trustees shall also cease. § 68. Upon the death of the surviving trustee of an Trust estate not express trust, the trust estate shall not descend to his *" "^*<^^" > "*=• 18G SELECTIONS FROM THE Trust to vest in chancery, &c. When and how trustee may re- Wheii and how trustee may be removed. How places suppUed. Application of three last sec- tions. heirs, nor pass to his personal representatives ; but the trust, if then unexecuted, sluill vest in the court of chan- cery, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court. § 69. Upon the petition of any trustee, the court of chancery may accept his resignation, and discharge him from the trust, under such regulations as shall be esta- blished by the court for that purpose, and upon such terms as the rights and interests of the persons interested in the execution of the trust may require. § 70. Upon the petition or bill of any person interested in the execution of a trust, and under such regulations as for that purpose shall be established, the court of chan- cery may remove any trustee who shall have violated or threatened to violate his trust, or who shall be insolvent, or whose insolvency shall be apprehended, or who, for any other cause, shall be deemed an unsuitable person to execute the trust. § 71. The chancellor shall have full power to appoint a new trustee in place of a trustee resigned or i-emoved ; and when, in consequence of such resignation or removal, there shall be no acting trustee, the court, in its discretion, may appoint new trustees, or cause the trust to be exe- cuted by one of its officers under its direction. § 72. The three last sections shall extend only to cases of express trusts. ARTICLE THIRD. Of Powers. Sect. 73. Powers as they now exist abolished ; future powers to be governed by this Article. 74. Definition of a power. 75. Who capable of granting powers, 76. Division of powers, general or special, and beneficial or in trust. 77 & 78. Definitions of general and special powers. 79. W'hen a general or special power is beneficial. 80. Married women may execute general and beneficial powers. NEW YORK REVISED STATUTES. 187 81. Absolute power of disposition in tenant for life, &c. creates a fee, &c. 82. Like power to any other creates absolute fee as to creditors, &c. 83. When grantee of such power entitled to absolute fee. 84. Power to devise inheritance to be deemed absolute power in certain cases. 85. Power to dispose of fee in certain cases absolute power of disposition. 86. Effect of reserving power of revocation. 87. To whom special and beneficial powers may be granted. 88. Power of tenant for life to make leases not assignable, 6cc. 89. To whom it may be released. 90 & 91. Effect of mortgages by persons having power to make leases. 92. Future beneficial powers not herein enumerated invalid. 93. Liability of beneficial powers in equity to creditors. 94. When general powers are in tnast. 95. When special powers are in trust. 96. Trust powers imperative, unless expressly made optional. 97. Ert'ect of a right of selection by grantee of power. 98 & 99. Powers to distribute among several persons, how to be construed. 100. Chancery to execute power on death of trastee having right of selection. 101. Also where person to execute power is not designated. 102. Certain prior sections to apply to power in trust. 103. Creditors, &c. of objects of trust when to compel execution of powers. 104. Effect of assignments under insolvent acts, &c. upon beneficial powers. 105. Powers that may be reserved by grantors in conveyances. 106. By what instruments powers may be granted. 107. When powers to be recorded. 108. Powers irrevocable unless authority is expressly reserved. 109. In whom powers may be vested; by whom exercised. 1 10. JMarried women, when and how to execute powers. 111. jNIarried women not to execute power until of age. 112. Powers to be executed by all surviving grantors thereof. 113. By what instruments powers to be executed. 114. Such instruments to be deemed conveyances. 115. Power to dispose by devise, how executed. 116. Power to dispose by grant cannot be executed by will. 117. Executions by married women to be acknowledged. 118. Execution governed by preceding rules although otherwise directed by grantor. 119. Useless formalities directed, dispensed with. 120. Nominal conditions may be disregarded. 121. In other respects, directions of grantor to be observed. 122. Consent of third persons to execution of power, how evidenced. 123. Dispositions not void on account of being too extensive. 124. Instruments executing power valid although power not recited. 125. Such instruments affected by fra\id. 12G. General terms in a will sufficient to execute power to devise. 188 SELECTIONS FROM THE Powers as they now exist abo- lished. Future novrers. Definition of a power. Who may grant powers. Division of powers. Definition of general powers. Definition of special powers. Beneficial powers. Powers to mar- ried women. Sec. 127. Estates given to descendants by virtue of certain powers to be advancements. 128. How term during which alienation may be suspended to be computed. 129. Who capable of taking in execution of power. 130. Authority of married women under powers. 131. Defective executions of powers corrected in equity. 132. Relief to purchasers under defective executions. 133. Powers to sell in mortgages to pass to assignees thereof. 134. This Article not to extend to simple powers of attorney, &c. 135. Definition of the terms " grantor of a power" and " grantee of a power." § 73. Powers, as they now exist by law, are abolished ; and from the time this Chapter shall be in force, the creation, construction and execution of powers shall be governed by the provisions of this Article. § 74. A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform. § 75. No person is capable in law of granting a power, who is not at the same time capable of aliening some in- terest in the lands to which the power relates. § 76. Powers, as authorised in this Article, are general or special, and beneficial or in trust. § 77. A power is general where it authorises the alienation in fee, by means of a conveyance, will, or charge, of the lands embraced in the power, to any alienee whatever. § 78. A power is special, 1. Where the persons or class of persons, to whom the disposition of the lands under the power is to be made, are designated. 2. Where the power authorises the alienation, by means of a conveyance, will, or charge, of a parti- cular estate or interest less than a fee. § 79. A general or special power is beneficial, when no person other than the grantee has, by the terms of its creation, any interest in its execution. § SO. A general and beneficial power may be given to NEW YORK REVISED STATUTES. 189 a married woman to dispose, during her marriage and without the concurrence of her husband, of lands con- veyed or devised to her in fee. § 81. Where an absolute power of disposition, not ac- Estate of tenant companied by any trust, shall be given to the owner of a ["hen^Jhan'r ^ particular estate, for life or years, such estate shall be into a fee. changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be exe- cuted, or the lands should not be sold for the satisfaction of debts. § 82. Where a like power of disposition shall be given Certain powers to any person to whom no particular estate is limited, '''^'"*^ ^ ee, 6ce. such person shall also take a fee, subject to any future estates that may be limited thereon, but absolute in re- spect to creditors and purchasers. § 83. In all cases where such power of disposition is lb. given, and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee. § 84. Where a general and beneficial power to devise Effect of power the inheritance shall be given to a tenant for life or for iL^J.^j'Sice'l-' years, such tenant shall be deemed to possess an absolute tain cases. power of disposition within the meaning and subject to the provisions of the three last preceding sections. § 85. Every power of disposition shall be deemed abso- Power to dis- lute by means of which the grantee is enabled, in his life- ^°^^ ° time, to dispose of the entire fee for his own benefit. § 8G. Where the grantor in any conveyance shall re- Power to re- serve to himself, for his own benefit, an absolute power of "" ^' revocation, such grantor shall still be deemed the absolute owner of the estate conveyed, so far as the rights of cre- ditors and purchasers are concerned. § 87. A special and beneficial power may be granted. Special and 1. To a married woman to dispose, during the mar- powersrwho riage and without the concurrence of her husband, ""^y take. 190 SELECTIONS FROM THE Power to make leases by tenant for life. Release of such power. Mortgages by party having power to lease, &c. Effect thereof. Future bene- ficial powers. Beneficial powers liuble to creditors. General power* when in trust. of any estate less than a fee, belonging to her, in the lands to which the power relates. 2. To a tenant for life of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life. § 88. The power of a tenant for life to make leases is not assignable as a separate interest, but is annexed to his estate, and will pass (unless specially excepted) by any conveyance of such estate. If specially excepted in any such conveyance, it is extinguished. § 89. Such power may be released by the tenant to any person entitled to an expectant estate in the lands, and shall thereujoon be extinguished. § 90. A mortgage executed by a tenant for life having a power to make leases, or by a married woman, by virtue of any beneficial power, does not extinguish or suspend the power ; but the power is bound by the mortgage, in the same manner as the lands embraced therein. § 91. The effects of such a lien by mortgage on the power, are, 1. That the mortgagee is entitled, in equity, to an execution of the power so far as the satisfaction of his debt may require. 2. That any subsequent estate created by the owner, in execution of the power, becomes subject to the mortgage, in the same manner as if in terms em- braced therein. § 9f3. No beneficial power, general or special, hereafter to be created, other than such as are already enumerated and defined in this Article, shall be valid. § 93. Every special and beneficial power is liable, in equity, to the claims of creditors, in the same manner as other interests that cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled. § 94. A general power h in trust, when any person or NEW YOHK REVISED STATUTES. 191 class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the aliena- tion of the lands, according to the power. § 95. A special power is in trust, Special powers, 1 TT7-1 1 T •• I'l- 1 • • 1' • 1 when ill trust. 1. VV hen the disposition which it authorises is limited to be made to any person or class of persons, other than the grantee of such power, entitled to the proceeds or any portion of the proceeds, or other benefit to result from the execution of the power. 2. When any person or class of persons, other than the grantee, is designated as entitled to any benefit from the disposition or charge authorised by the power. § 96. Every trust power, unless its execution or non- Trust powers execution is made expressly to depend on the will of the '™l^"'^ '^ grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity for the benefit of the parties interested. § 97. A trust power does not cease to be imperative EiiVct of right where the grantee has the right to select any and exclude others of the persons designated as the objects of the trust. § 98. Where a disposition under a power is directed to Construction of be made to, or among or between several persons, without '^^'^ ^"' l'°"''^'^- any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion. § 99. But when the terms of the power import that the lb. - estate or fund is to be distributed between the persons so designated, in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons, in exclusion of the other. § 100. If the trustee of a power, with the right of selec- when chancery tion, shall die, leaving the power unexecuted, its execution '" execute . . jjower. shall be decreed in equity for the benefit equally of all the persons designated as objects of the trust. 192 SELECTIONS FROM THE When cliancery to execute power. Application of certain prior sections. Execution of trust power H lien compelled bycreditois, &c. Beneficial powers, &c. how affected by in- solvent assign- ments, &c. Reservation of powers ill con- veyances. How powers to be granted. When powers to be recorded. § 101. Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery. § 10^. The provisions contained in the second Article of this Title, from section sixty-six to section seventy-one, both inclusive, in relation to express trusts and trustees, shall apply equally to powers in trust and the grantees of such powers. § 103. The execution in whole or in part of any trust power may be decreed in equity for the benefit of the creditors or assignees of any person entitled as one of the objects of the trust, to compel its execution when the in- terest of the objects of such trust is assignable. § 104. Every beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass to the assignees of the estate and efi^ects of the person in whom such power or interest is vested, under any assignment authorised by the provisions of the fifth Chapter of this Act. § 105. The grantor in any conveyance may reserve to himself any power, benefical or in trust, which he might lawfully grant to another; and every power thus reserved shall be subject to the provisions of this Article, in the same manner as if granted to another. § 106. A power may be granted, 1. By a suitable clause contained in a conveyance of some estate in the lands to which the power relates. 2. By a devise contained in a last will and testament. § 107. Every power shall be a lien or charge upon the lands which it embraces, as against creditors and pur- chasers in good faith and without notice, of or from any person having an estate in such lands, only from the time the instrument containing the power shall be duly re- corded. As against all other persons, the power shall be a lien from the time the instrument in which it is con- tained shall take effect. NEW YORK REVISED STATUTES. 193 § 108. Every power, beneficial or in trust, is irrevocable When powers unless an authority to revoke it is granted or reserved in "'"'^^'O'^"'^'''- the instrument creating the power. § 109. A power may be vested in any person capable Who to cxicuie in law of holding, but cannot be exercised by any person ^°'^'''''* not capable of aliening lands, except in the single case mentioned in the next section. § 110. A married woman may execute a power during JMuiricdwoniLn, her marriage, by grant or devise, as may be authorised by the power, without the concurrence of her husband, unless by the terms of the power its execution by her, during marriage, is expressly or impliedly prohibited. § 111. No power vested in a married woman, during lb. her infancy, can be exercised by her until slie attains her full age. § 112. Where a power is vested in several persons, all Execution by must unite in its execution; but if previous to such exe- *"'^'^"'*' cution one or more of such persons shall die, the power may be executed by the survivor or survivors. § 113. No power can be executed except by some in- Huw ixecutcd. strument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner. § 1 14. Every instrument, except a will, in execution of Injiruinunts di^i 1 ii 1 f> defined con- altnougn the power may be a power or revo- vcvances. cation only, shall be deemed a conveyance within the meaning, and subject to the provisions of tlie third Chapter of this Act. § 115. Where a power to dispose of lands is confined Execuiion of to a disposition by devise or will, the instrument of exe- p"sc^by"(iev7se, cution must be a will duly executed according to the pro- visions of the sixth Chapter of this Act. § 116. Where a power is confined to a disposition by ib. to dispose grant, it cannot be executed by will, although the dispo- ^'y S"^'""- sition is not intended to take effect until after the death of the party executing the power. r<j4 SELECTIONS FROM THE Married women to acknowledge executions. Directions hy grantor. lb. Nominal con- ditions. When direc- tions of grantor to be observed. Consent of tiiird persons to execution of power. Certain disposi- tions not void. § 117. If a married woman execute a power by grant, the concurrence of her husband, as a party, shall not be requisite, but the grant shall not be a valid execution of the power, unless it be acknowledged by her on a private examination, in the manner prescribed in the third Chapter of this Act, in relation to conveyances by married women. § 118. Where the grantor of a power shall have di- rected or authorised it to be executed by an instrument not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules before prescribed in this Article. § 119. When the grantor shall have directed any for- malities to be observed in the execution of the power, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power. § 120. Where the conditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favour, they are to be performed, they may be wholly disregarded in the execu- tion of the power. § 121. With the exceptions contained in the preceding sections, the intentions of the grantor of a power, as to the mode, time and conditions of its execution, shall be ob- served, subject to the power of the court of chancery to supply a defective execution, in the cases hereinafter provided. § 122. When the consent of a third person to the exe- cution of a power is requisite, such consent shall be ex- pressed in the instrument by which the power is executed, or shall be certified in writing thereon. In the first case, the instrument of execution, in the second the certificate, shall be signed by the party whose consent is I'equired ; and to entitle the instrument to be recorded, such signa- ture must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of lands. § 123. No disposition, by virtue of a power, shall be NEW YORK REVISED STATUTES. 195 void in law or in equity, on the ground that it is more ex- tensive than was authorised by the power ; but every es- state or interest so created, so far as embraced by the terms of the power, shall be valid. § 124. Every instrument executed by the grantee of a Omission to re- power, conveying an estate or creating a charge, which such grantee would have no right to convey or create, unless by virtue of his power, shall be deemed a valid ex- ecution of the power, although such power be not recited or referred to therein. § 125. Instruments in execution of a power are affected Fraud. by fraud, both in law and equity, in the same manner as conveyances by owners or trustees. § 126. Lands embraced in a power to devise shall pass Power to ik- vise, by a will purporting to convey all the real property of the terms ot" will. testator, unless the intent that the will shall not operate as an execution of the power shall appear expressly or by necessary implication. § 127. Every estate or interest given by a parent to a Certain estates descendant, by virtue of a beneficial power, or of a power ll^pii^g** vauce- in trust with a right of selection, shall be deemed an ad- vancement to such descendant, within the provisions of the second Chapter of this Act. § 128. The period during which the absolute right of Computation of ... , 111 • , • term of 5us|)en- alienation may be suspended by any mstrument m execu- sion. tion of a power, shall be computed not from the date of such instrument, but from the time of the creation of the power. § 129. No estate or interest can be given or limited to Who ma^- take 1 . , , . J.' c under powers. any person by an mstrument ni execution or a power, ' which such person would not have been capable of taking under the instrument by which the power was granted. § 130. \\ hen a married woman, entitled to an estate in ftiiinied women, fee, shall be authorised by a power to dispose of such ^^.'^ ' ' estate during her marriage, she may, by virtue of such power, create any estate which she might create if un- married. o2 196 SELECTIONS FROM THE Defective cxe- § 131. Where the execution of a power in trust shall be defective, in whole or in part, under the provisions of this Article, its proper execution may be decreed in equity in favour of the persons designated as the objects of the trust. ^^- § 132. Purchasers for a valuable consideration claiming under a defective execution of any power shall be enti- tled to the same relief in equity as similar purchasers, claiming under a defective conveyance from an actual owner. Powers to sell § 13S. Where a power to sell lands shall be given to the in mortgHKes. ^ • , ,i • , i i , ^ ° grantee m any mortgage or other conveyance mtended to secure the payment of money, the power shall be deemed a part of the security, and shall vest in, and may be exe- cuted by any person who, by assignment or otherwise, shall become entitled to the money so secured to be paid. Application of § l,'iJ4. The provisions of this Article shall not extend this article. j. • i r> i i • i to a sunple power or attorney to convey lands m the name and for the benefit of the owner. Terms " grantor § 135. The term " grantor of a power" is used in this " grantee oA Article, as designating the person by whom a power is power" (ledned. created, whether by grant or devise ; and the term " gran- tee of a power" is used as designating the person in whom a power is vested, whether by grant, devise, or reserva- tion. AKTICLE FOURTH. Of Alienation by Deed. Sect, 1-36. Feofi'ment with livery of seisin abolished. 137. Grants in fee or of freehold, how executed ; when to take eHijct. 138. Delivery essential to grants. 139. Covenants not implied in mortgages ; remedy of mortgagee. 140. No covenants to be implied in conveyances of real estate. 141. Lineal and collateral warranties abolished ; liability of heirs, &c. 142. Deeds of bargain and sale, and of lease and release, deemed grants. 143. No greater estate to pass by a conveyance than such as grantor had. 144. Grants conclusive against certain purchasers. 145. Conveyances of greater estate by tenant for life or for years. 146. Conveyances of lands occupied, when valid without attornment. 147. Grant of lands possessed by claimant under adverse title void. 148. But mortgages of such lands may be given ; elTect thereof. NEW YORK REVISED STATUTES. 197 § 136. The mode of conveying lands by feoffVnent with Lh cry of seisin. livery of seisin is abolished. § 137. Every grant in fee or of a freehold estate shall Grants of fee or be subscribed and sealed by the person from whom the i,ow executed ; estate or interest conveyed is intended to pass, or his law- "l!^" *° ^'^^^ ful agent ; if not duly acknowledged previous to its deli- very, according to the provisions of the third Chapter of this Act, its execution and delivery shall be attested by at least one witness ; or if not so attested, it shall not take effect as against a purchaser or incumbrancer until so ac- knowledged. § 138. A grant shall take effect, so as to vest the estate Ddiverj'. or interest intended to be conveyed, only from its delivery ; and all the rules of law now in force in respect to the de- livery of deeds shall apply to grants hereafter to be exe- cuted. § 139. No mortgage shall be construed as implying a Covenants in covenant for the payment of the sum intended to be se- '"""^ g^§^^- cured ; and where there shall be no express covenant for Remedies of such payment contained in the mortgage, and no bond or '"0''s^g*^f- other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage. § 140. No covenant shall be implied in any conveyance Covenants in of real estate, whether such conveyance contain special comcvantes. covenants or not. § 141. Lineal and collateral warranties, with all their Lineal and col- incidents, are abolished ; but the heirs and devisees of I?^'^'^''' "•''"^"' ties. every person who shall have made any covenant or agree- ment, shall be answerable upon such covenant or agree- ment, to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law.* § 142. Deeds of bargain and sale, and of lease and re- Certain deeds lease, may continue to be used, and shall be deemed ''^'^''"'^^ K"""""- grants ; and as such shall be subject to all the provisions of this Chapter concerning grants. * 1 II. L. p. 525, § 26. 198 SELECTIONS FROM THE Effect of certain § 143. No greater estate or interest shall be construed conveyances. ^^ ^^^^ 1^^ ^^^ grant or Conveyance hereafter executed than the grantor himself possessed at the delivery of the deed or could then lawfully convey, except that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent. How far conclu- ^ 144. Every grant shall also be conclusive as against cliasers. Subsequent purchasers from such grantor, or from liis heirs claiming as such, except a subsequent purchaser in good faith and for a valuable consideration, who shall ac- quire a superior title by a conveyance that shall have been first duly recorded. Conveyances by § 145. A couveyaucc made by a tenant for life or years or for years. of a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the title, estate, or interest, which such tenant could lawfully convey. Attornment by | 146. Where any lands or tenements shall be occupied unnecessary. ^7 ^ tenant, a Conveyance thereof, or of the rents or pro- fits, or of any other interest therein, by the landlord of such tenant, shall be valid without any attornment of such Liabilities of tenant to the grantee ; but the payment of rent to such tenant. grantor by his tenant before notice of the grant shall be binding upon such grantee ; and such tenant shall not be liable to such grantee for any breach of the condition of the demise until he shall have had notice of such grant.* Conveyance of § 147. Every grant of lands shall be absolutely void if possesseX^^ ^ ^^ ^^^^ ^™^ ®^ ^^^^ delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor .f Mortgages may § 148. But every person having a just title to lands, of e given. wliicli there shall be an adverse possession, may execute a Effect thereof, mortgage on such lands ; and such mortgage, if duly re- corded, shall bind the lands from the time the possession thereof shall be recovered by the mortgagor or his repre- Priority of lien, seutativcs. And every such mortgage shall have prefer- * 1 R. L. p. 525, § 25. t lb. p. 173, § 8. NEW YORK REVISED STATUTES. 199 ence over any judgment or other instrument subsequent to the recording thereof; and if there be two or more such mortgages, they shall severally have preference ac- cording to the time of recording the same respectively. TITLE III. OF ESTATES IN DOWER. Sect. 1. Of what widows shall be endowed. 2. Widows of aliens, if inhabitants, entitled to dower. 3. Dower in case of exchange of lands. 4. Dower in lands mortgaged before marriage. 5. In lands mortgaged for purchase money. 6. Claim to one-third of surplus proceeds of sale in such case, 7. Widow of mortgagee not entitled to dower. 8. Dower forfeited by divorce for her misconduct. 9. Settlements by jointure, with her assent, to bar dower, 10. How her assent to jointure to be evidenced. 11. Pecuniary provision in lieu of dower, when to bar it. 12. If jointure, &c. made without her assent, she to elect. 13. If provision in lieu of dower be made by will, to elect. 14. Deemed to have elected, unless she enter or sue within a year. 15. Jointures, &c. in lieu of dower, forfeited in same cases as dower. 16. Acts of husband, judgments, &c. not to affect right to dower, .ic. 17. Widow entitled to remain in husband's house 40 days. 18. Widow to demand her dower within 20 years after husband's death . exceptions. 19. When entitled to damages on recovering dower. 20. Measure of such damages in different cases. 21. Not to be estimated on certain improvements. 22. Damages against heir for land aliened by him. 23. Assignment of dower in satisfaction, to bar further claim. 24. Infant heirs not to be prejudiced by a collusive recovery of dower. 25. Widow may bequeath crops growing in her dower land. § 1, A widov/ shall be endowed of the third part of all Dower of the lands whereof her husband was seised of an estate of ^ '"^ inheritance, at any time during the marriage.* § 2. The widow of any alien, who, at the time of his widows of death, shall be entitled by law to hold any real estate, if "'"'"*• * 1 R. L. p. 56, § 1. 200 SELECTIONS FROM THE Dower in case of excliange of lands. Lands mort- gaged before marriage. In lands mort- gaged for pur- chase money. In such case extent of claim to surplus pro- ceeds of sale. Widow of mort- gagees. she be an inhabitant of this state, at the time of such death, shall be entitled to dower of such estate, in the same manner as if such alien had been a native citizen. § 3. If a husband seised of an estate of inheritance in lands exchanges them for other lands, his widow shall not have dower of both, but shall make her election to be endowed of the lands given or of those taken in exchange ; and if such election be not evinced by the commencement of proceedings to recover her dower of the lands given in exchange, within one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange. § 4. Where a person seised of an estate of inheritance in land shall have executed a mortgage of such estate be- fore marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged, as against every per- son except the mortgagee and those claiming under him. § 5. Where a husband shall purchase lands during co- verture, and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming under him, al- though she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons. § 6. Where, in such case, the mortgagee, or those claiming under him, shall, after the death of the husband of such widow, cause the land mortgaged to be sold, either under a power of sale contained in the mortgage, or by virtue of the decree of a court of equity, and any sur- plus shall remain after payment of the monies due on such mortgage and the costs and charges of the sale, such widow shall nevertheless be entitled to the interest or in- come of the one-third part of such surplus for her life, as her dower. § 7. A widow shall not be endowed of lands conveyed NEW YORK REVISED STATUTES. 201 to her husband by way of mortgage, unless he acquire an absokite estate therein during the marriage. §; 8. In case of divorce, dissolving the marriage con- Wlica dower tract for the misconduct of the wife, she shall not be ^' '^"^ ' endowed.*. § 9. Whenever an estate in lands shall be conveyed to When barred a person and his intended wife, or to such intended wife ^yjo'"^"^^- alone, or to any person in trust for such person and his in- tended wife, or in trust for such wife alone, for the pur- pose of creating a jointure for such intended wife, and with her assent, such jointure shall be a bar to any right or claim of dower of such wife in any lands of the hus- band .f § 10. The assent of the wife to such jointure shall be Evidence of her evidenced, if she be of full age, by her becoming a party to the conveyance by which it shall be settled ; if she be an infant, by her joining with her father or guardian in such conveyance. § 11. Any pecuniary provision that shall be made for When dower the benefit of an intended wife and in lieu of dower, shall, „ia"y proVision. if assented to by such intended wife, as above provided, be a bar to any right or claim of dower of such wife in all the lands of her husband. § 12. If before her coverture, but without her assent, or When to elect if after her coverture, lands shall be given or assured for ture '^^"''a'nd the jointure of a wife, or a pecuniary provision made for dower. her in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whe- ther she will be endowed of the lands of her husband, but she shall not be entitled to both.i" § 13. If lands be devised to a woman, or a pecuniary or When between other provision be made for her by will, in lieu of her jy^^'^r' *^' ^" dower, she shall make her election whether she will take the lands so devised, or the provisions so made, or whe- ther she will be endowed of the lands of her husband. * 1 R, L. p. 53, § 7, and 2 R. L. p. 196, ^ 8. t 1 R.L.p. 58&59, §8 & 9. 202 SELECTIONS FROM THE When deemed § 14. When a woman shall be entitleJ to an election, to have elected, m^jg^ either of the two last sections, she shall be deemed to have elected to take such jointure, devise, or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. When jointure, § 15. Every jointure, devise, and every pecuniary pro- c. or eitc . vision in lieu of dower, shall be forfeited by the woman for whose benefit it shall made, in the same cases in which she would forfeit her dower ; and upon such forfeiture, any estate so conveyed for jointure, and every pecuniary provision so made, shall immediately vest in the person or his legal representatives, in whom they would have vested on the determination of her interest therein, by the death of such woman. Right to dower, ^ 16. No act, deed, or conveyance, executed or per- by acts of ims^- formed by the husband without the assent of his wife, band, nor by evidenced by her acknowledgment thereof, in the manner agatnst hira. required by law to pass the estates of married women, and no judgment or decree confessed by or recovered against him, and no laches, default, covin, or crime of the hus- band shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.* May remain in § 17. A widow may tarry in the chief house of her hus- 40'days.' ''°"'" band forty days after his death, whether her dower be sooner assigned to her or not, without being liable to any rent for the same, and in the mean time she shall have her reasonable sustenance out of the estate of her husband.t Dower to be § 18. A widow shall demand her dower within twenty in'^20" e'ars"kc! years after the death of her husband ; but if at the time of such death she be under the age of twenty-one years? or insane, or imprisoned on a criminal charge or convic- tion, the time during which such disability continues shall not form any part of the said term of twenty years.:|: * 1 R. T-. p.57 &59, § 4cV 10. tlb. §1. t lb. p. 60, § 1. NEW YORK REVISED STATUTES. 203 § 19. Whenever, in any action brought for the purpose, wiien toreco- a widow shall recover her dower in lands of which her ^'"'^ amages,. husband shall have died seised, she shall be intitled also to recover damages for the withholding of such dower.* § 20. Such damages shall be one-third part of the an- Measure of nual value of the mesne profits of the lands in which she ''"""ses; shall so recover her dower, to be estimated in a suit against the heirs of her husband from the time of his against heir; death ; and in suits against other persons, ft'om the time against others. of her demanding her dower of such persons ; and in all cases to be estimated to the time of recovering judgment for such damages, but not to exceed six years in the whole in any case. § 21. Such damages shall not be estimated for the use Not on improve- of any permanent improvements made after the death of her husband by his heirs, or by any other person claim- ing title to such lands.t § 22. Where a widow shall recover her dower in any Damages against lands aliened by the heir of her husband, she shall be en- i^^^\^ ^ "^""'S titled to recover of such heir in an action on the case her damages for withholding such dower from the time of the death of her husband to the time of such ahenation by the heir, not exceeding six years in the whole ; and the ft> i^e deducted, amount recovered from such heir shall be deducted from the amount she would otherwise be entitled to recover from such grantee, and also any amount recovered as da- mages from such grantee shall be deducted from the sum she would otherwise be entitled to recover from such heir. § 23. Where the widow shall have accepted an assign- Claim when bar- ment of dower in satisfaction of her claim upon all the mcntot"*dower. lands of her husband, it may be pleaded in bar of any fur- ther claim of dower by the heir of such husband, or any grantee of such heir, or any grantee of such husband. § 24. Where a widow not having a right to dower, Coihisive reco- shall, during the infancy of the heirs of her husband, or "^'•X ""7° P^*-- ' o J ' judice nifant any of them, in any suit commenced either by the widow heirs. » 1 R. L. p. 57, §2. t lb. p. 60, § 1. 204 SELECTIONS FROM THE or by the guardian of any heir, or upon any application to the supreme court, court of common pleas, or surrogate, recover by the default or collusion of such guardian, such infant heir shall not be prejudiced thereby, but when he comes of full age he shall have an action against such widow to recover the lands so wrongfully awarded for dower.* Maj- bequeatii ^ 25. A widow may bequeath the crop in the ground ^'^^^^' of the land holden by her in dower.t TITLE IV. OF ESTATES FOR YEARS AND AT WILL; AND THE RIGHTS AND DUTIES OF LANDLORDS AND TENANTS. Sect. 1. Construction of certain agreements for use of lands, &c. in New York. 2. Effect of new lease after surrender of former lease. 3. Attornments by tenants void except in certain cases. 4. 5. & 6. Remedy in equity against land held under contract for purchase. 7. Tenancy at will or by sufl'erance may be terminated by notice. 8. How notice to be served. 9. Rights of landlord on expiration of notice. 10. Penalty on tenant for not yielding possession after giving notice. 11. Penalty on tenants, &c. for holding over after notice to quit. 12. Landlord may notify officer levying execution of rent due to him. 13. Officer to collect rent due and pay it to landlord unless bond be given. 14. Rent to be first satisfied from money collected. 15. Levying of rent prevented by bond ; its penalty and condition. 16. Duty of officer holding the execution upon bond being given. 17. Penalty on landlord for collecting more rent than is due. 18. Right to distrain for rents or services declared. 19. Remedy by action for rent due on leases for life. 20. Rents dependent on life of another, how recovered after his deatli. 21. Remedy of executors, &c. for arrears of rent. 22. Rights of executors, &c. of tenant for life having rent due. 23. Rights of grantors, assignees, &c. of lessor of demised lands. 24. Rights of lessors and their assignees, &c. 25. Two last sections to extend to leases in fee for life or for years. 26. When landlord may recover for use and occupation. 27. Penalty on tenant for not delivering process, notices, &c. served on him. Duration of cer- § 1. Agreements for the occupation of lands or tene- tain agreements in New York. * 1 R. L. .57, § 5 & 6. t lb. p. 368, ^ 17. NEW YORK REVISED STATUTES. 205 ments in the city of New York, which shall not particu- larly specify the duration of such occupation, shall he deemed valid until the first day of May next after the possession under such agreement shall commence, and the rent under such agi'eement shall be payable at the usual quarter days for the payment of rent in the said city, un- less otherwise expressed in the agreement.* § 2. If any lease be surrendered in order to be re- Effect of new newed, and a new lease be made by the chief landlord, render of former such new lease shall be good and valid to all intents and '^^^s'^- purposes, without a surrender of all or any of the under leases derived out of such original lease so surrendered ; and the chief landlord, his lessee, and the holders of such under leases shall enjoy all their rights and interests in the same manner and to the same extent as if the original lease had been still continued ; and the chief landlord shall have the same remedy by distress or entry upon the demised premises for the rents and duties secured by such new lease, so far as the same do not exceed the rents and duties reserved in the original lease so surrendered. ■f' § 3. The attornment of a tenant to a stranger shall be Aitommenis by absolutely void, and shall not in anywise affect the pos- *'^"'^"'^- session of his landlord, unless it be made, 1. With the consent of the landlord: or, 2. Pui'suant to, or in consequence of, a judgment at law, or the order or decree of a court of equity ; or, 3. To a mortgagee after the mortgage has become forfeited.f § 4. The interest of any person holding a contract for Remedy in the purchase of lands shall not be bound by the docketing ^'"',7 if '"*[ ' ./ f3 haid licid under of any judgment or decree, nor be sold by execution upon contractfor any such judgment or decree; but whenever an execution l'"""*^ '''*'^* against the property of such person shall have been issued on a judgment or decree, and shall have been returned unsatisfied, in whole or in part, the party suing out such * Laws of 1820, p. 178, §4. i \ U. L, p. 442, ^ 26 & 28. 206 SELECTIONS FROM THE Interest of dc- fciidant may be sold, &c. Specific pc forraance. Interest of de- fendant how applied. Tenancy at will &c. terminated by notice. How served. Rights of land- lord. execution may file a bill in chancery against such defend- ant and the party bound to perform such contract, to pre- vent the transfer of such contract, and to obtain satisfac- tion of the sum remaining due on such judgment or decree out of the interest of the defendant in the said contract. § 5. The interest of the defendant in such contract may be sold under the decree of the court, or transferred to the complainant, in such manner and upon such terms as the court shall deem most conducive to the interests of the parties ; and the court shall have power in such suit to decree a specific performance of such contract, either in favour of the complainant or in favour of the pur- chaser, if the interest in the contract shall be directed to be sold. § 6. The value of the interest of the defendant holding such contract shall be ascertained by the court, and the same, or so much thereof as may be necessary for that purpose, shall be applied to the payment of the judgment or decree of the complainant, and the residue applied to the benefit of the defendant. § 7. Wherever there is a tenancy at will, or by suf- ferance, created by the tenant's holding over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice in writing to the tenant re- quring him to remove therefrom.* § 8. Such notice shall be served by delivering the same to such tenant, or to some person of proper age residing on the premises ; or if the tenant cannot be found, and there be no such person residing on the premises, such notice may be served by affixing the same on a conspi- cuous part of the premises where it may be conveniently read.* § 9. At the expiration of one month from the service of such notice, the landlord may re-enter or maintain ejectment, or proceed in the manner prescribed by law Laws of 1820, p. 177, proviso to $ 1. NEW YORK REVISED STATUTES. 207 to remove such tenant, without any further or other notice to quit.* § 10. If any tenant shall give notice of his intention to Penalty on quit the premises by him holilen, and shall not accordingly y'jei'IiiL^posses- deliver up the possession thereof at the time in such sion after giving notice specified, such tenant, his executors or administra- tors, shall, from thenceforward, pay to the landlord, his heirs or assigns, double the rent which he should other- wise have paid, to be levied, sued for and recovered, at the same time and in the same manner as the single rent ; and such double rent shall be continued to be paid during all the time such tenant shall continue in possession as aforesaid .+ § 11. If any tenant for life or years, or if any other Penalty on person, who may have come into the possession of any foHioWini'^ over lands or tenements, under or by collusion with such "f'.t'r notice to tenant, shall wilfully hold over any lands or tenements ^"' " after the termination of such term, and after demand made and one month's notice, in writing, given in the manner herein before prescribed, requiring the possession thereof by the person entitled thereto, such person so holding over shall pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the lands or tenements so detained, for so long a time as he shall so hold over or keep the person entitled out of possession ; and shall also pay and remunerate all special damages whatever to which the person so kept out of possession may be subjected by reason of such holding- over; and there shall be no relief in equity against any No relief in recovery had at law under this section. :{; equity. § 12. If an execution be levied upon any goods or Proceedings bjr chattels in or upon any demised iiremises liable to distress '''"'"'^"' to *■ •' * ^ secure rent, for i*ent, the landlord of such premises, to whom any rent when goods of such premises may be due, may, at any time before a execution " sale of such goods by virtue of such execution, give notice * Laws of 1820, p. 177, proviso to H- +1 1^- L. p. 440, § 22. t lb. ^21, and Laws of 1820, p. 179, $ 8. 208 SELECTIONS FROM THE to the party in whose favour such execution shall be issued, or to the officer holding the same, of the amount claimed by such landlord to be due, and the time during which the same accrued, and shall accompany such notice with his own affidavit, or that of his agent, of the truth thereof.* Officer to col- § 13. Upon receiving such notice and affidavit, the lect rent, &c. officer holding such execution (unless prevented by the tenant of such premises executing a bond as herein-after provided) shall levy the amount of the rent so claimed to be due, in addition to the sum directed to be raised on such execution, and shall pay such additional sum to such But not to ex- landlord or his agent ; but the amount of rent to be levied rent. ''^' ^'^'^^ ^ Under this section shall not exceed the last year's rent of such premises.. Rent to be first § 14. In case there shall be a deficiency of goods and ^ chattels to satisfy both such execution and rent, the amount levied shall be first applied to the satisfaction of such rent, and the balance, if any, shall be applied upon such execution. Levying of rent § 15. If any tenant against whom an execution shall be b""bond'"'^'''' issued shall deny that rent is due to his landlord as claimed, he may prevent the levying thereof by virtue of such execution as herein before provided, by delivering to the officer holding such execution a bond, with two sufficient sureties, to be approved by such officer, in a penalty double the amount of the rent so claimed, to be executed to such landlord, with a condition that the obligors therein will pay all rent then due to such land- lord, not exceeding one year's rent of the premises. Dut_y of officer § 16. Upon such bond being executed and delivered, on reccivnig ^^^^ officer holding such execution shall proceed in the bond. '^ . . } . I, collection thereof, notwithstanding any claim or notice of claim for rent which may have been made or given ; and he shall deliver such bond to the landlord making such claim or his agent, who shall be authorised to prosecute the same for the recovery of the rent due to him. * 1 K. L, p. 437, ^ 12. NEW YORK REVISED STATUTES. 209 § 17. If any landlord shall, under the foregoing provi- Penalty on land- sions, claim more rent than is due to him, and such excess shall be collected as herein provided, the tenant may maintain an action against such landlord for such excess ; and if he recover therein, shall be entitled to judgment for double the amount of such excess. § 18. When any certain services or certain rent reserved Rigiit to dis- out of any lands or tenements shall not be paid or ren- dered when due, the person entitled thereto may distrain for the same. § 19. Any person having any rent due upon any lease Remedy on for life or lives, may have the same remedy to recover such arrears by action of debt, as if such lease were for years.* § 20. Every person entitled to any rents dependent Rents de- upon the life of any other may, notwithstanding the death ,^f "f,o"|'e°." '''^^ of such other person, have the same remedy by action or by distress for the recovery of all arrears of such rent that shall be behind and unpaid at the death of such other person, as he might have had if such person was in full life.* § 21. The executors or administrators of every person Remedy of exe- to whom any rent shall have been due and unpaid at the arrears of rem. time of his death, may have the same remedy by action or by distress for the recovery of all such arrears that their testator or intestate might have had if living.* § 22. When a tenant for life, who shall have demised Executors, &c. any lands, shall die on or after the day when any rent ^''^^"^"^'"rlife. became due and payable, his executors or administrators may recover from the under tenant the whole rent due ; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his death.* § 23. The grantees of any demised lands, tenements, Rights of rents or other hereditaments, or of the reversion thereof, ?'''»"tees, as- ' _ ' signecs, &c. of the assignees of the lessor of any demise, and the heirs lessor of de- mised lands. * 1 R. L. p. 438, § 16, 18, 19, 20 & 27. P 2\0 Rights of lessees and their as- signees, &c. Application of two last sections. When landlord may recover for use and oc- cupation. Penalty on tenant for not delivering, &c. notice served on him. SELECTIONS FROM THE and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action, distress or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor.* § 24. The lessees of any lands, their assigns or per- sonal representatives, shall have the same remedy by action or otherwise against the lessor, his grantees, as- signees, or his or their representatives, for the breach of any covenant or agreement in such lease contained, as such lessee might have had against his immediate lessor, except covenants against incumbrances, or relating to the title or possession of the premises demised.* § 25. The provisions of the two last sections shall ex- tend as well to grants or leases in fee, reserving rents, as to leases for life and for years.* § 26. Any landlord may recover in an action on the case a reasonable satisfaction for the use and occupation of any lands or tenements, by any person under any agree- ment not made by deed ; and if any parol demise or other agreement not being by deed, by which a certain rent is reserved, shall appear in evidence on the trial of any such action, the plaintiff* shall not on that account be debarred from a recovery, but may make use thereof as evidence of the amount of the damages to be recovered.^ § 27. Every tenant to whom a declaration in ejectment, or any other process, proceeding or notice of any pro- ceeding, to recover the land occupied by him, or the pos- session thereof, shall be served, shall forthwith give notice thereof to his landlord under the penalty of forfeiting the value of three years' rent of the premises so occupied by him, which may be sued for and recovered by the land- lord or person of whom such tenant holds.J 1 R. L. p. 363. t lb. p. 444, $ 31. t lb. p. 443, § 29. NEW YORK REVISED STATUTES. 211 TITLE V. MISCELLANEOUS PROVISIONS OF A GENERAL NATURE. Sect. 1. Words of inheritance not necessary to convey a fee, &c. 2. Intent of parties to conveyances to be carried into effect. 3. Purchasers from heirs not aifected by will unless it be recorded, 6cc. 4. Heirs and devisees to extinguish mortgages on lands coming to them. 5. Mortgages for purchase money to be preferred to previous judgments. 6. When persons on whose lives estates depend to be deemed dead. 7. Liability of guardians, &c. holding over after their estates have ceased. 8. Remedies of reversioners and remainder men for injuries to estates. 9. Remedies of joint tenants and tenants in common against each other. 10. Definition of terms " real estate and lands." 1 1 . Vested rights and construction of instruments not to be affected. § 1 . The term " heirs," or other words of inheritance, Certain words shall not be requisite to create or convey an estate in fee; pass^afte?"^^ and every grant or devise of real estate, or any interest therein hereafter to be executed, shall pass all the estate All the estate of or interest of the grantor or testator, unless the intent to uX'ss Scc.'^^^^ pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant. § 2. In the construction of every instrument creating Duty of courts or conveying, or authorising the creation or conveyance '" '^°"*^''"'"f JO' o .' conveyances. of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument and is consistent with the rules of law. § o. The title of a purchaser in good faith and for a Wills of real valuable consideration from the heirs at law of any person pfj^Jg^^and re- who shall have died seised of real estate, shall not be de- corded within feated or impaired by virtue of any devise made by such cent when' de- person of the real estate so purchased, unless the will or ^isee under dis- T -1 • . 1 1 • 1 11 1 1 T 1 1 ability, or will codicil containing such devise shall have been duly proved has been con- as a will of real estate, and recorded in the office of the sealed, surrogate having jurisdiction, witiiin four years after the death of the testator : except, I. Where the devisee shall have been within the age of twenty-one years, or insane, or imprisoned, or a p2 212 SELECTIONS FROM THE Mortgages on land inherited or devised, by whom to be paid. Preference to mortgages for purchase money. Presumption of death in certain Liabilitj' of guardians, &c. holding over after their estates have ceased. married woman, or out of the state at the time of the death of such testator : or, 2. Where it shall appear that the will or codicil con- taining such devise shall have been concealed by the heirs of such testator or some one of them. In which several cases the limitation contained in this section shall not commence until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative, or to the proper surrogate. § 4. Whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator that such mortgage be otherwise paid. § 5. Whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time to secure the payment of the purchase money or any part thereof, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser.* § 6. If any person, upon whose life any estate in lands or tenements shall depend, shall remain beyond sea, or shall absent himself, in this state or elsewhere, for seven years together, such person shall be accounted naturally dead in any action concerning such lands or tenements in which his death shall come in question, unless sufficient proof be made in such case of the life of such person.f § 7. Every person who as guardian or trustee for an infant, and every husband seised in right of his wife only, and every other person having an estate determinable upon any life or lives, who, after the determination of such particular estate, without the express consent of the • 1 R. L. p. 375, $15. t lb. p. 103, $ 1. NEW YORK REVISED STATUTES. 213 party immediately entitled after such determination, shall hold over and continue in possession of any lands, tene- ments or hereditaments, shall be adjudged to be a tres- passer ; and every person and his executors and adminis- trators who shall be entitled to such lands, tenements or hereditaments, upon the determination of such particular estates, may recover in damages against every such person so holding over, and against his, her or their executors or administrators, the full value of the profits received during such wrongful possession.* § 8. A person seised of an estate in remainder or rever- Remedies of re- sion, may maintain an action of waste or trespass for any '^'^■"'O"*^'^*' '^^ injury done to the inheritance, notwithstanding any inter- vening estate for life or years.f § 9. One joint tenant or tenant in common, and his Remedies of executors or administrators, may maintain an action of J^|.'" ^^"=""^' account, or for money had and received, against his co- tenant for receiving more than his just proportion; and the like action may be maintained by them against the executors or administrators of such co-tenant.J § 10. The terms " real estate" and " lands," as used " I^eal estate" in this Chapter, shall be construed as co-extensive in defined. meaning with lands, tenements and hereditaments. § 11. None of the provisions of this Chapter, except Vested rights those convertino- formal trusts into le^al estates, shall be !»"ci'^""stiiictioii ^ ... . °' instruments construed as altering or impairing any vested estate, in- not to be af- terest or right ; or as altering or aifecting the construction of any deed, will or other instrument, which shall have taken effect at any time before this Chapter shall be in force as a law. * 1 R. L. p. 167, § 7. + lb. p. 527, § 33. * lb. p. 90, § '2. fected. 214 General rule as to the order in SELECTIONS FROM THE CHAP. II. Of Title to Real Property by Descent. Seci. 1. General rule as to the order in which real estate shall descend. 2. Rule as to lineal descendants in equal degrees of consanguinity. 3. Rule when any children are living and any have died leaving de- scendants. 4. Rule in last section to apply to all descendants of unequal degrees. 5. In what cases inheritance to go to father. 6. When inheritance to go to mother for life, when in fee. 7. When collateral relatives to inherit; rule if there are several of equal degrees. 8. Brothers and sisters and their descendants, when and in what shares to inherit. 9. Rule in last section to apply to all other direct lineal descendants of brothers and sisters of unequal degrees. 10. Brothers and sisters of father and their descendants, when and in what shares to inherit. 11. When brothers and sisters of mother and their descendants to inherit. 12. In what case brothers and sisters of mother and their descendants to be preferred to those of father. 13. When brothers and sisters of both father and mother and their de- scendants to inherit equally. 14. When mother of illegitimate intestate and her descendants to inherit. 15. Rule as to relatives of the half blood. 16. In cases not provided for, rules of common law to prevail. 17. Rule when but one heir, when several to hold as tenants in common. 18. Posthumous descendants and relatives to inherit as if born in life of intestate. 19. Illegitimate children and relatives not to inherit. 20. This Chapter not to affect estates by the curtesy or in dower, or limi- tation by deed or will. 21. Descent of estates in trust. 22. Alienism of ancestor not to preclude inheritance. 23. Advancement of real and personal estate, if equal to share of an heir, to be set off against it. 24. If not equal, to be deducted so that all the shares may be equal. 25. Value of advancement, how ascertained. 26. Certain expenses and gifts not to be deemed advancements. 27. Definition of terms " real estate" and " inheritance." 28 & 29. Construction of certain expressions used in this Chapter. Section 1. After this Chapter shall take effect, the NEW YORK REVISED STATUTES. 215 real estate of every person who shall die without devising which real estate the same, shall descend in manner following :— '^"" ''"'-■'"^• 1. To his lineal descendants. 2. To his father. S. To his mother : and 4. To his collateral relatives. Subject in all cases to the rules and regulations herein- after prescribed. § 2. If the intestate shall leave several descendants in Lineal descend- the direct line of lineal descent, and all of equal degree of g„uai deg'Jees. consanguinity to such intestate, the inheritance shall de- scend to such persons in equal parts, however remote from the intestate the common degree of consanguinity may be.* § 3. If any of the children of such intestate be living Children living and any be dead, the inheritance shall descend to the otdcadchii- children who are living and to the descendants of such ^'^'"• children as shall have died; so that each child who shall be living shall inherit such share as would have descended to him if all the children of the intestate who shall have died leaving issue had been living ; and so that the de- scendants of each child who shall be dead shall inherit the share which their parent would have received if living.f ^5 4. The rule of descent prescribed in the last section '^"•^^ '" ''***' ^^'^' , ,, , . , 11 1 , p 1 . tioi' t'> apply to shall apply m every case where the descendants ot the ni- all desLciuiants testate, entitled to share in the inheritance, shall be of °' i">^'4"''' ^^'^- grecs. unequal degrees of consanguinity to the intestate ; so that those who are in the nearest degree of consanguinity shall take the shares which would have descended to them had all the descendants in the same degree of consanguinity, who shall have died leaving issue, been living; and so that the issue of the descendants who shall have died, shall respectively take the shares which their parents if living •would have received.f § 5. In case the intestate shall die without lawful de- When fuiier to inherit. * 1 11. L. p. 52, § 3, first rule. t lb. second rule. 216 When niollier to inherit for lier life. When to in- herit in fee. Collateral rela- tives. Rule when all of different de- grees. Brothers and sisters. Their de- scendants. Rule if such de- scendants are of unequal de- grees. SELECTIONS FROM THE scenclants and leaving a father, then the inheritance shall go to such father, unless the inheritance came to the in- testate on the part of his mother.* § 6. If the intestate shall die without descendants and leaving no father, or leaving a fother not entitled to take the inheritance under the last preceding section, and leaving a mother, and a brother or sister or the de- scendant of a brother or sister, then the inheritance shall descend to the mother during her life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, ac- cording to the same law of inheritance hereinafter pro- vided. If the intestate in such case shall leave no brother or sister, nor any descendants of any brother or sister, the inheritance shall descend to the mother in fee. § 7. If there be no father or mother capable of in- heriting the estate, it shall descend, in the cases herein- after specified, to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall de- scend to them in equal parts, however remote from the intestate the common degree of consanguinity may be.f § 8. If all the brothers and sisters of the intestate be livino-, the inheritance shall descend to such brothers and sisters ; if any of them be living and any be dead, then to the brothers and sisters and every of them who are living, and to the descendants of such brothers and sisters as shall have died; so that each brother or sister who shall be living shall inherit such share as would have descended to him or her if all the brothers and sisters of the intestate, who shall have died leaving issue, had been living ; and so that such descendants shall inherit the share which their parent would have received if hving.f § 9. The same law of inheritance, prescribed in the last section, shall prevail as to the other direct lineal de- scendants of every brother and sister of the intestate to * 1 R. L. p. 52, § 3, third rule. t lb. fourth and fifth rules. NEW YORK REVISED STATUTES. 217 the remotest degree, whenever such descendants are of unequal degrees. § 10. If there be no heir entitled to take under either Brothers and of the preceding sections, the inheritance, if the same amrtiidr de-*^'^ shall have come to the intestate on the part of his father, scendants. shall descend, 1. To the brothers and sisters of the father of the intestate in equal shares if all be living. 2. If any be living and any shall have died leaving issue, then to such brothers and sisters as shall be living, and to the descendants of such of the said brothers and sisters as shall have died. 3. If all such brothers and sisters shall have died? then to their descendants. In all cases the inheritance shall descend in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. § 11. If there be no brothers and sisters, or any of Brothers and them, of the father of the intestate, and no descendants ^i*'*^' '' °f 1?°' ' ' tlier and their of such brothers and sisters, then the inheritance shall descendants. descend to the brothers and sisters of the mother of the intestate, and to the descendants of such of the said brothers and sisters as shall have died, or if all shall have died, then to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the father. § 12. In all cases not provided for by the preceding in what case sections, where the inheritance shall have come to the in- "^.'otfiers and sisters ot nio- testate on the part of his mother, the same, instead of ther and their descending to the brothers and sisters of the intestate's be'pre'rcrrcd To father and their descendants, as prescribed in the pre- those of father. ceding tenth section, shall descend to the brothers and sisters of the intestate's mother and to their descendants, as directed in the last preceding section ; and if there be no such brothers and sisters or descendants of them, then such inheritance shall descend to the brothers and sisters 218 When brothers and sisters of both father nnd mother, &c. to inherit equally. Mother, &c. of illegitimate in- testate. Relatives of the half blood. Common law when to pre- vail. Rule as to one heir. Several heirs, how to hold. Posthumous descendants and relatives. SELECTIONS FROM THE and their descendants of the intestate's father, as before prescribed.* § 13. In cases where the inheritance has not come to the intestate on the part of either the father or mother, the inheritance shall descend to the brothers and sisters both of the father and mother of the intestate, in equal shares, and to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. § 14. In case of the death, without descendants, of an intestate who shall have been illegitimate, the inheritance shall descend to his mother ; if she be dead, it shall de- sc-end to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate. § 15. Relatives of the half blood shall inherit equally with those of the whole blood in the same degi'ce; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood; unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance. § 16. In all cases not provided for by the preceding rules, the inheritance shall descend according to the course of the common law.f § 17. Whenever there shall be but one person entitled to inherit, according to the provisions of this Chapter, he shall take and hold the inheritance solely ; and whenever an inheritance, or a share of an inheritance, shall descend to several persons, under the provisions of this Chapter, they shall take as tenants in common in proportion to their respective rights. § 18. Descendants and relatives of the intestate, be- gotten before his death, but born thereafter, shall in all cases inherit in the same manner as if they had been born in the life-time of the intestate and had survived him.| * 1 R. L. p. 52, $ 3, third rule. + lb. fifth rule. t lb. p. 54, « 5. NEW YORK REVISED STATUTES. 219 S 19. Children and relatives who are illegitimate, shall Illegitimate - ,,, .1. 1 r ^ •• o children and re- not be entitled to inherit under any ot the provisions oi latives. this Chapter. § 20. The estate of a husband as tenant by the curtesy, Certain estates, or of a widow as tenant in dower, shall not be alFected by a^ej."ed *" ^ any of the provisions of this Chapter ; nor shall the same affect any limitation of any estate by deed or will.* § 21. Real estate held in trust for any other person, if Estates in trust. not devised by the person for whose use it is held, shall descend to his heirs, according to the provisions of this Chapter.t § 22. No person capable of inheriting under the pro- Alienism of visions of this Chapter, shall be precluded from such in- ^"'^^**°''' heritance by reason of the alienism of any ancestor of such person. § 23. If any child of an intestate shall have been ad- When advance- vanced by him, by settlement or portion of real or per- ™j|" sonal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate, de- scendible to his heirs, and to be distributed to his next of kin, according to law; and if such advancement be equal or superior to the amount of the share which such child would be entitled to receive of the real and personal estate of the deceased as above reckoned, then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.4: § 24. But if such advancement be not equal to such when to be share, such child and his descendants shall be entitled to '^^""'^'"• receive so much only of the personal estate, and to inherit so much only of the real estate, of the intestate as shall be sufficient to make all the shares of the children in such real and personal estate and advancement to be equal as near as can be estimated. j § 25. The value of any real or personal estate so ad- Value of ad- vanced shall be deemed to be that, if any, which was * 1 R. L. p. 54, $ 4. t lb. p. 74, $ 4. % lb. p. 313, § 16. ,^220 SELECTIONS FROM THE Expenses, &:c. not advance- ments. Terms " real estate" and " inheritance" defined. Construction of certain expres- Meaning of certain otlier expressions. acknowleclged by the child by an instrument in writing; otherwise such vahie shall be estimated according to the worth of the property when given. § 26. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement. § 27. The term " real estate," as used in this Chapter, shall be construed to include every estate, interest and right, legal and equitable, in lands, tenements and heredi- taments, except such as are determined or extinguished by the death of an intestate, seised or possessed thereof, or in any manner entitled thereto, and except leases for years, and estates for life of another person ; and the term " inheritance," as used in this Chapter, shall be vuider- stood to mean real estate, as herein defined, descended according to the provisions of this Chapter. § 28. Whenever, in the preceding sections, any person is described as living, it shall be understood that he was living at the time of the death of the intestate, from whom the descent came ; and whenever any person is described as having died, it shall be understood that he died before such intestate. § 29. The expressions used in this Chapter, " where the estate shall have come to the intestate on the part of the father," or " mother," as the case may be, shall be construed to include every case where the inheritance shall have come to the intestate by devise, gift, or descent, from the parent referred to, or from any relative of the blood of such parent. NEW YORK REVISED STATUTES. 221 CHAP. III. Of the Proof and Recording of Conveyances of Real Estate, and the Cancelling of Mortgages. Sect. 1. Conveyances of real estate where to be recorded; consequences of omission. 2. Deeds and mortgages to be recorded in different sets of books. 3. Defeasances, 6cc. of deeds to be recorded with them. 4. Officers in this state and in United States authorised to take proof, &c. of deeds. 5. Ambassadors, consuls, &c. in Europe, Sec. may take proofs, &ic. 6. In Great Britain, &c. consuls, &c. may take proof, &c. 7. Proofs, &c, how certified by mayors, consuls, and ambassadors ; effect thereof. 8. Proofs, &c. before special commissioners appointed by chancery. 9. Identity of person acknowledging deed to be known or proved. 10. JMarried women in this state to be examined, &c. 11. Proof, &c. of conveyances by married women residing out of this state. 12. Proof of deeds by subscribing witness how made. 13= When and how witnesses to deeds compelled to testify concerning them. 14. Penalty and proceedings on refusal, &c. to appear or to testify. 15. Certificate of proof, &c. to be endorsed on deed ; its contents. 16. Conveyances so proved and certified evidence, and entitled to be re- corded. 17. Record and transcript evidence ; proof, &c. may be contested. 18. Certificates of certain judges and commissioners when and how to be authenticated. 19. Last section not to apply to deeds of agents of certain estates. 20. Certificates to be recorded with conveyance ; effect of omission. 21. Conveyances by treasurer of Connecticut how verified. 22. This Chapter not to affect conveyances heretofore proved, &;c. 23. Conveyances heretofore executed but not proved how to be proved, &c. 24. Conveyances to be recorded in order of delivery and deemed then re- corded. 25. Entry of time of recording, &c. to be made and endorsed on deed. 26. Transcripts of records how to be verified in order to be evidence, 27. Conveyances of lands out of this state how to be proved, &;c. 28. Upon what proof records, ike. of mortgages to be discharged. 222 SELECTIONS FROM THE 29. Certificate of discharge and proof, &c. to be recorded ; in the minutes of discharge a reference to be made to the page where certificate is recorded. 30. When witnesses to conveyance dead before whom it may be proved. 31. What proof to be made ; matters to be stated in certificate. 32. Deed so proved on being deposited may be recorded. 33. Effect of recording and deposit, as notice, as evidence. 34. Punishment for recording deeds, &c. without being proved, &c. 35. Punishment of judges for malfeasance in executing powers herein given. 36. Definition of term " real estate," as used in this Chapter. 37. Construction of the term " purchaser." 38. Meaning of term " conveyance." 39. Last section not to extend to powers of attorney, but they and contracts for land may be proved, &c. and recorded ; effect thereof. 40. Letter of attorney recorded not aflfected by revocation until it be re- corded. 41. Recording assignment of mortgage not to be notice to mortgagor, &c. 42. This Chapter not to extend to leases for life or years in certain counties. 43. What provisions of this Chapter apply to register in New York. Conveyances to SECTION 1 . Evei'y Conveyance of real estate, within this county°deri's ^^^^^> hereafter made, shall be recorded in the office of office. the clerk of the county where such real estate shall be situated ; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good [Wills to be re- faith, and for a valuable consideration, of the same real du 1^. titk 5. estate, or any portion thereof, whose conveyance shall be § 3.] first duly recorded.* Different books § 2. Different scts of books shall be provided by the mort'^a'^es^"'^ clcrks of the Several counties for the recording of deeds and mortgages ; in one of which sets, all conveyances ab- solute in their terms, and not intended as mortgages, or as securities in the nature of mortgages, shall be recorded ; and in the other set, such mortgages and securities shall be recorded. Certain deeds § 3. Every deed conveying real estate, which, by any Inortgages"'^^ Other instrument in writing, shall appear to have been in- tended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage ; and the person for whose be- * IR. L.p. 369, 372; Laws of 1819, p. 269; of 1821, p. 127 ; of 1822, p. 261.284; of 1823, p. 412. NEW YORK REVISED STATUTES. 223 nefit such deed shall be made, shall not derive any advan- tage from the recording thereof, unless every writing operating as a defeasance of the same, or explanatory of Defeasances, its being designed to have the effect only of a mortgage, corded. ^ '^^' or conditional deed, be also recorded therewith, and at the same time.* § 4. To entitle any conveyance hereafter made to be Officers may recorded by any county clerk, it shall be acknowledged by ^c^oTdceds- the party or parties executing the same, or shall be proved by a subscribing witness thereto, before any one of the following officers : 1 . If acknowledged or proved within this state ; the la this state : chancellor, justices of the supreme court, circuit judges, supreme court commissioners, judges of county courts, mayors and recorders of cities, or commissioners of deeds ; but no county judge, or commissioner of deeds for a county or city, shall take any such proof or acknowledgment out of the city or county for which he was appointed. 2. If acknowledged or proved out of this state, and I" ^".v other . , . , xr ® 1 o 1 ^ ■ n- ' 1 part of United withm the United btates; the chier justice and as- states. soiate justices of the supreme court of the United States, district judges of the United States, the judges or justices of the supreme, superior, or cir- cuit court, of any state or territory within the United States, and the chief judge, or any associate judge, of the circuit court of the United States, in the district of Columbia ; but no proof or acknow- ledgment taken by any such officer shall entitle a conveyance to be recorded, unless taken within some place or territory to which the jurisdiction of the court to which he belongs shall extend.f § 5. If the party or parties executing such conveyance. Ambassadors, shall be or reside in any state or kingdom in Europe, or S^?"^"'*' ^*^- '" •' _ o t ' Lurope, etc. in North or South America, the same may be acknow- ledged or proved before any minister or plenipotentiary, * 1 R. L. p. 372, j 3 ; Laws of 1822, p. 262, § 3. f 1 R- L. p. 369, § 1. S24 SELECTIONS FROM THE or any minister extraordinary, or any charge ties affaires of the United States, resident or accredited within such state or kingdom. If such parties be or reside in France, such conveyance may be acknowledged or proved before the consul of the United States appointed to reside at Paris ; and if such parties be or reside in Russia, such conveyance may be acknowledged or proved before the consul of the United States appointed to reside at St. Petersburgh.* Mayors, con- § fi- If the party to such conveyance be or reside suis, &c.in within the United Kingdom of Great Britain and Ireland, (jrcat Britain. . , ° , ' or the dominions thereunto belonging, the same may be acknowledged or proved before the mayor of the city of London, the mayor or chief magistrate of the city of Dublin, or the provost or chief magistrate of the city of Edinburgh, or before the mayor or chief magistrate of Liverpool, or before the consul of the L'nited States ap- pointed to reside at London. f Proofs, &c. iiow § 7. Such proof or acknowledgment, duly certified un- der the hand and seal of office of such consuls, or of the said mayors or chief magistrates respectively, or of such minister or charge des aff^aires, shall have the like force and validity as if the same were taken before a justice of the supreme court of this state.J Proofs of, &c. § 8. Every such conveyance hei'etofore made or here- coiuinissionfroni '^^f^^' ^^ ^^ made, may be acknowledged or proved, with- diancery. out the United States, before any person specially autho- rized for that particular purpose by a commission under the seal of the court of chancery of this state, to be issued to any reputable person residing in or going to the coun- try where such proof or acknowledgment is to be taken ; and the acknowledgment or proof so taken shall be of the like force and validity as if the same were taken before a justice of the supreme court of this state. § ^r "*'bd5°' § 9. No acknowledgment of any conveyance having certified in fo- reign countries aciinowledg- nicnts, * Laws of 1816, p. 118. t 1 R. L. p. 370, $ 3 ; Laws of 1817, p. X Lawsof 1816, p. 118; 1 R. L. 370 ; Laws of 1817, p. 58. « Lawsof 1817, p. 58, § 1 6c 2. NEW YORK REVISED STATUTES. 225 been executed shall be taken by any officer, unless the officer taking the same shall know or have satisfactory evidence that the person making such acknowledgment is the individual described in, and who executed, such con- veyance.* § 10. The acknowledgment of a married woman residing Requisites for within this state, to a conveyance purporting to be exe- menir'when" cuted by her, shall not be taken, unless, in addition to the made by mar- . . • 1 • 1 T • 1 1 ""ied women in requisites contained m the preceding section, she acknow- tiiis state. ledge, on a private examination, apart from her husband, that she executed such conveyance freely, and without any fear or compulsion of her husband ; nor shall any estate of any such married woman pass by any convey- ance not so acknowledged.* § 11. When any married woman not residing in this Married women state, shall join with her husband in any conveyance of any [f,is s^fte""'" real estate situated within this state, the conveyance shall have the same effect as if she were sole ; and the acknow- ledgment or proof of the execution of such conveyance by her may be the same as if she were sole.* § 12. The proof of the execution of any conveyance Proof by sub- shall be made by a subscribing witness thereto, who shall scribing ^it- state his own place of residence, and that he knew the person described in and who executed such conveyance ; and such proof shall not be taken unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person who was subscribing witness to such instrument.* § 13. Upon the application of any grantee in any con- when and how vevance, his heirs or personal representatives, or of any "'fn^^sscs to '' , . deeds compelled person claiming under them, verified by the oath of the to testify con- applicant, that any witness to the conveyance, residing in '^'^'"'"S the county where such application is made, refuses to appear and testify touching the execution thereof, and that such conveyance cannot be proved without his evi- * 1 U. L. 369, §\k2. Q 226 SELECTIONS FROM THE Penalty, &c. fur refusal to appear or to testify. Certificate of proof, &c. to be endorsed on deed ; its con- tents. Effect of proof, &c. Record, &c. evidence. Certificate not conclusive. dence, any officer authorised to take the acknowledgment or proof of conveyances, except a commissioner of deeds, may issue a subpoena requiring such witness to appear and testify before such officer, touching the execution of such conveyance. § 14. Every person, who, being served with such sub- poena, shall, withoi^t any reasonable cause, refuse or neg- lect to appear, or appearing shall refuse to answer upon oath touching the matters aforesaid, shall forfeit to the party injured one hundred dollars; and may also be com- mitted to prison by the officer who issued such subpoena, there to remain without bail, and without the liberties of the jail, until he shall submit to answer upon oath as aforesaid. § 15. Every officer who shall take the acknowledgment or proof of any conveyance, shall endorse a certificate thereof, signed by himself, on the conveyance ; and in such certificate shall set forth the matters hereinbefore required to be done, known, or proved, on such acknow- ledgment or proof, together with the names of the wit- nesses examined before such officer, and their places of residence, and the substance of the evidence by them given.* § 16. Every conveyance acknowledged or proved, and certified in the manner above prescribed by any of the officers before named, may be read in evidence without further proof thereof, and shall be entitled to be re- cord ed.f § 17. The record of a conveyance duly recorded, or a transcript thereof duly certified, may also be read in evidence with the like force and effi^ct as the original conveyance. Neither the certificate of the acknowledg- ment, or of the proof of any conveyance, nor the record, or transcript of the record, of such conveyance, shall be con- clusive, but may be rebutted, and the force and effect thereof may be contested by any party affected thereby 1 K. L. p. 369, §1 ik2. t lb. «J5. NEW YORK REVISED STATUTES. 227 If the party contesting the proof of a conveyance shall ^^-J^" "J"* *° ^^ make it appear that such proof was taken upon the oath of an interested or incompetent witness, neither such conveyance, nor the record thereof, shall be re- ceived in evidence until established by other competent proof.* § 18. Where any conveyance shall be proved or ac- Certificates of knowledged before any judge of the county courts, not and ofcomniis- ofthe degree of counsellor at law in the supreme court, sioners of deeds, or before any commissioner of deeds appointed for any cated in certain county or city, it shall not be entitled to be read in evi- ^Jf^'^^' ^y *^°""*->' dence, or to be recorded in any other county than that in which such judge or commissioner shall reside, unless in addition to the preceding requisites there shall be sub- joined to the certificate of proof or acknowledgment, signed by such judge or commissioner, a certificate under the hand and official seal of the clerk of the county in which such judge or commissioner resides, specifying that such judge or commissioner was, at the time of taking such proof or acknowledgment, duly authorised to take the same, and that the said clerk is well acquainted with the handwriting of such judge or commissioner, and verily believes, that the signature to the said certificate of proof or acknowledgment is genuine.f § 19. The last section shall not apply to any convey- Last section ance executed by any agent for the Holland Land Com- '^"'^ ' pany, or by any agent of the Pulteney estate, lawfully authorised to convey real estate. S 20. The certificate of the proof or acknowledgment pert'fifatcs to "^ ^ _ ^ ^ be recorded of every conveyance, and the certificate of the genuine- wiiii convey- ness of the signature of any judge or commissioner, in the ''"*^*^' cases where such last mentioned certificate is required, shall be recorded, together with the conveyance so proved or acknowledged; and unless the said certificates be so EiTect of omis- recorded, neither the record of such conveyance, nor the transcript thereof, shall be read or received in evidence.^ * 1 R. L. p. 369, § 5. t Laws of 1818, p. 44, § 5 & 8. t Laws of 1818, p. 44, § 5. Q 2 Q28 SELECTIONS FROM THE Conveyance l>y treasurer of Connecticut. This Chapter no! to effect (■oiive\ ances heretofore prov- efl, &c. Existing con- veyances not proved. Order of re- coriiing, &c. Time of record- ing to be enter- ed and endorsed on deed. § 21. All conveyances of real estate, executed since the tenth day of March, one thousand eight hundred and twenty-five, or hereafter to be executed by the treasurer of the state of Connecticut, which shall be acknowledged by him before the secretary of state of the state of Con- necticut, and the acknowledgment of which shall be certi- fied by the said secretary, under the seal of the said state, in the manner herein prescribed, may be recorded in the proper offices viithin this state without further proof thereof; and every such conveyance, or the record thereof, or the transcript of such record duly certified, may be read in evidence, as if such conveyance had been acknowledged before a justice of the supreme court.* § 22. Every conveyance of any real estate within this state heretofore executed, and heretofore acknowledged or proved and certified in such manner as to be entitled to be read in evidence, or recorded under the laws now in force, but which has not been so recorded, shall be enti- tled to be read in evidence in all courts, and to be re- corded in the proper office, in the same manner and with the like effect as if this Chapter had not been passed. § 23. Every such conveyance not already proved or acknowledged, may be proved or acknowledged in the same manner as conveyances hereafter executed, and when so proved, acknowledged, or recorded, shall have the like efl'ect. § 2 k Every conveyance entitled by law to be recorded, shall be recorded in the order, and as of the time when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded from the time of such delivery.t § 25. The recording officer shall make an entry in the record immediately after the copy of every conveyance recorded, specifying the time of the day, month, and yeai', when the said conveyance was recorded, and shall endorse upon every conveyance recorded by him a certificate. Laws of 1825, p. 35. t 1. R. L. p. 370J5. NEW YORK REVISED STATUTES. 229 stating the time as aforesaid when, and the book and page where, the same was recorded.* § 26. To entitle the transcript of any record of such Transcripts of 1 p 1 -n records, liow to conveyance recorded as aioresaid, and ot the certificates be veriiu-d. of the acknowledgment or proof thereof, and of the ge- nuineness of any signature to such certificate, to be read in evidence, the same shall be certified to be a true copy of such record by the clerk of the county in whose cus- tody the same shall be, under the seal of the court of common pleas of the county of which he is clerk, or by the register of the city and county of New York, when such record shall be in his custody. t § 27. Every conveyance of real estate situate without Proof, &c. of this state heretofore made, or hereafter made, and which )^°,"[out of tiiis shall be acknowledged or proved in the manner pre- ''ate. scribed by the laws of this state, in relation to convey- ances of lands within this state, may be read in evidence in any court without further proof thereof, in the same manner and with the same effect as if such conveyance related to real estate within this state; but this section shall not be construed to prevent the reading in evidence of any conveyance of lands within any other of the United States, which shall have been duly authenticated accord- ing to the laws of such state, so as to be read in evidence in the courts thereof.;|; § 28. Any mortgage that has been registered or re- Dibcharge of re- corded, or that may hereafter be recorded, shall be dis- '^ord-^c. of ' -' ' mortgages. charged upon the record thereof by the officer in whose custody it shall be, whenever there shall be presented to him a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified as hereinbefore prescribed, to entitle convey- ances to be recorded, specifying that such mortgage has been paid or otherwise satisfied and discharged. § § 29. Every such certificate and the proof or acknow- Certificate of ledgment thereof shall be recorded at full length ; and a discharfie, &:c. to be lecorded. * 1. R. L. p. 370, §5. lib. J Laws of 1817, p. 58, $2, § 1 R. L. p. 373, § 4. 2S0 SELECTIONS FROM THE Euftrence in reference shall be made to the book and page contaming minute ot dis- , i-i • o ^ ■>• i pi a. ciinrge. sucli recorcl in tbe mmute or the discharge ot such mort- gage, made by the officer upon the record thereof.* Proof of deed § 30. Where the witnesses to any conveyances autho- iiiedead. I'ised by this Chapter to be recorded shall be dead, then the same may be proved before any officer authorised to take the proof and acknowledgment of deeds, other than commissioners of deeds and county judges not of the de- gree of counsel in the supreme court. What proof to § 31, Xhe proof of the execution of any conveyance in be made, how i ii 1 i i • p • i c r. certified. such case shall be made by satisfactory evidence or tiie death of all the witnesses thereto, and of the handwriting of such witnesses or any one of them, and of the grantor; all which evidence, with the names and places of resi- dence of the witnesses examined before him, shall be set forth by the officer taking the same in his certificate of such proof. When deed to ^ 32. Any Conveyance proved and certified pursuant to the two last sections, may be recorded in the proper office if the original deed be at the same time deposited in the same office, there to remain for the inspection of all persons desiring to examine the same. Effect of record- § 33. Xhe recording and deposit of any conveyance, ing and deposit. , , .n^ t..i •• p^i proved and certified according to the provisions of tlie three last sections, shall be constructive notice of the exe- cution of such conveyance to all purchasers subsequent to such recording; but such proof, recording, or deposit, shall not entitle such conveyance, or the record thereof, or the transcript of such record, to be read in evidence. Punishment for ^ 34. No clerk of any city or county shall record any deeds,'&c. with- Conveyance, by which any interest in real estate is or may out being prov- jjg [y^ ^ny Way afFcctcd, unless the same shall have been ed, &c. duly acknowledged or proved, and such acknowledgment or proof duly certified according to law ; and any such officer offending herein shall be adjudged guilty of a mis- * 1 R. L. p. 373, ^ 4. NEW YORK REVISED STATUTES. 231 demeanour, and on conviction shall be subject to fine and imprisonment.* § 35. Every judge, officer, or other person within this PimishniCiit of state authorised to take the acknowledgment or proof of j^^.^fo; nSfoi- any conveyance, and every clerk of any county, or his sance. deputy, who shall be guilty of any malfeasance or frau- dulent practice in the execution of his duties prescribed to them by law, in relation to the taking or certifying the proof or acknowledgment, or the recording or certifying any record of any such conveyance, mortgage, or instru- ment in w riting, or in relation to the cancelling of any mortgage, shall upon conviction be adjudged guilty of a misdemeanour, and be subject to punishment by fine and imprisonment, and shall also be liable in damages to the party injured. f § 36. The term " real estate," as used in this Chapter, Term " real es- shall be construed as co-extensive in meaning with ''^'^ ^^ ' "land, tenements, and hereditaments," and as embracing all chattels real, except leases for a term not exceeding three years. § 37. The term " purchaser," as used in this Chapter, Term " pur- shall be construed to embrace every person to whom any *^''^^^''- estate or interest in real estate shall be conveyed for a va- luable consideration, and also every assignee of a mort- gage or lease, or other conditional estate. §38. The term "conveyance," as used in this Chap- Term "convej- ter, shall be construed to embrace every instrument in ""'^'^•' writing, by which any estate or interest in real estate is created, aliened, mortgaged, or assigned; or by which the title to any real estate may be affected in law or equity ; except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands. § 39. The preceding section shall not be construed to ^"'f* section not - , p , . to inclutie pow- extencl to a letter of attorney, or other mstrument con- crs of attorney ; taining a power to convey lands as agent or attorney for ^^^ ^'"^'-' "'"^ ° *■ •' ° •' coiitructs for * 1 R. L. p. 371, ,< 8. t Laws of 1823, p. 15. p^n^edYnd're- corded 232 SELECTIONS FROM NEW YORK REVISED STATUTES. Effect of re- cord, ixc. Loiters record- ed howrevoked. Record of as- signment of mortgage not notice, &. Certain leases in counties named, not af- fected. Regisler in New York. the owner of such lands; but every such letter or instru- ment, and every executory contract for the sale or pur- chase of lands, when proved or acknowledged in the manner prescribed in this Chapter, may be recorded in the clerk's office of any county in which any real estate, to which such power or contract relates, may be situated; and when so proved or acknowledged, and the record thereof when recorded, or the transcript of such record, may be read in evidence in the same manner and with the like effect as a conveyance recorded in such county. § 40. No letter or other instrument so recorded shall be deemed to be revoked by any act of the party by whom it was executed, unless the instrument containing such revocation be also recorded in the same office in which the instrument containing the power was recorded. § 41. The recording of an assignment of a mortgage shall not be deemed, in itself, notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the mortgagee. § 42. The provision of this Chapter shall not extend to leases for life or lives, or for years, in the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware, and Schenectady.* § 43. All the provisions of this Chapter, excepting the eighteenth section, conferring any powers or imposing any duties, obligations, or penalty, upon a county clerk, shall extend and apply to the register of the city and county of New York, in the same manner as if he were county clerk of the said county. • Laws of 1823, p. 413, « 5. INDEX, WITH REFERENCE TO THE NUMBER OF THE RULE. A. Absent defendants, reference in case of . . Accounts, to be in form of debtor and creditor with banks, how kept of guardian, &c., rendered periodically to be examined Affidavits, how entitled to obtain reference in divorce causes Agreements between solicitors to be in writing Agents to be appointed by solicitors , , service may be on double time of service on Amendments to bill, when allowed after demurrer after exceptions. Answers, how entitled on oath, how waived before whom sworn to cross bill when demandable to bill for partition not replied to, effect of to be put in within 40 days further time for, how obtained on exceptions submitted to on exceptions allowed further time for, to be fixed by master to dissolve injunction Appearance, when and where entered order for, in ten days on return of attachment served penalty for refusing to enter Appeal from vice chancellor, deposit on no transcript required from interlocutory orders when heard from surrogates, how proceeded on RULE. 25 107 127 154 156 95 165 121 13 14 15 43 44 45 95 40 41 42 176 40 24 125 58 59 55 37 22 23 27 28 116 119 120 118 234 INDEX TO THE RULES, Appellant to give notice and make deposit to file petition and procure transcript Argument of exceptions to answer Attachment, when made returnable neglect to appear on proceedings on, to compel appearance on third answer reported insufficient RULE. 117 118 62 26 •27 28 64 B. Bank, accounts with, how kept orders on, how drawn Bills to be addressed to the chancellor manner of stating matters in of non-residents not to be filed without secur for injunctions to be served in six days not sworn to, amendable may be amended after demurrer on exceptions allowed dismissed for want of prosecution for defect of proof of review not filed without leave for divorce, Sec, to be sworn to for partition to be sworn to of foreclosure, how to state incumbrances order to deliver copy of, in 20 days by feme coverts for separation, &c. Bonds on appeal, by whom approved 127 128 10 18 17 35 43 44 45 66 79 173 163 174 132 29 163 116 Caption of orders and decrees to state where made Calendar, how made up causes may be entered on, in term Case to be furnished at hearing on application for new trial Chancellor, bills to be addressed to process to be tested in his name Clerks to keep necessary books, &:c. list of agents to engross and file testimony when settled to take down testimony before vice chancellor to issue commissions to examine witnesses not to file papers not paged, &:c. . . to report delinquent guardians, Sac. to report as to incumbrances in partition fees on monies paid out 10 98 91 92 90 140 10 19 6 13 81 82 69 95 155 178 124 INDEX TO THE RULES. •235 Commissions to examine witnesses, of course joining in special of masters, registers, and clerks Commissioners' fees in cases of lunacy, &c. Committees of lunatics, &c. to file inventory, &c. Complainant's name to be placed first Complainant, non-resident, to give security Conveyances not executed before enrolment Copy of injunction bill to be served in six days of bill, order to deliver in 20 days of certain rules to be furnished Copies of pleadings for court on hearing by whom furnished to be paged, &c. Costs of amendment after answer demurrer, &c. of exceptions submitted to for scandal subpoena for, abolished order for further answer, and for taxed bill to be served of exceptions, penalty for not paying to be all included in the same regulated in certain cases may be taxed by master in absence of vice to be paid on taxed bill when charged on complainant on defendant on disclaimer of false claim to overplus on sales on sale of infants' estates, limited interlocutory, when payable on suppression of improper evidence on answer in partition Counsellors to be examined and licensed who are entitled to examination as Cross bill, when to be answered D. Date of issue Decrees, where to be entered caption of, to state where made to be enrolled before execution . . on petition may be enrolled ■ for sale of mortgaged premises . . for divorce, &c. not granted by default by default at hearing RULE. . 69 . 70 71 . 124 . 162 . 154 . 95 17 . Ill . 35 . 29 . 155 . 93 . 94 . 95 . 43 . 44 . 50 . 57 . 58 . 59 . 60 . 61 bill . . . 63 . 130 chancellor . 129 . 131 . 132 . 133 . 136 . 161 . 171 . 85 . 176 11 12 . 42 . 91 . 98 10 . Ill . 123 . 135 . 170 . 96 236 INDEX TO THE RULES. nULK. Defaults may be set aside on terms . . . . . . . . . . 126 Demurrer for want of parties . . . . . . . . . . . . 44 overruled as frivolous or otherwise . . . . . . • • 49 either party may notice for hearing . . . . . . . . 47 how placed on calendar . . . . . . . . . . 91 Deposit, on appeal to chancellor .. .. .. .. .. ..116 to be made within time for appealing . . . . . . . . 117 on rehearing .. .. .. .. .. .. ..115 on filing bill of review . . . . . . . . . . . . 173 Depositions, to be returned and filed by examiners . . . . . . 87 to be paged . . . . . . . . . . . . . • 95 how taken before vice chancellors . . . . . . . . 78 examiners, &c. . . . . . . . . 84 masters .. . . .. . . . . 105 improper, may be suppressed . . . . . . . . 85 Dismissing bill for want of prosecution . . . . . . . . . . 66 for want of replication . . . . . . . . . . 167 for insufficiency of proof . . . . . . . . . . 79 Divorce, bills for, to be sworn to .. .. .. .. . .' ..163 reference of . . . . . . . . . . . . 164 affidavit to obtain reference . . . . . . . . 165 order for feigned issue .. .. .. .. .. 167 matters set up in bar to . . . . . . . . 168 Documentary evidence . . . . . . . . . . . . . . 75 E. Enrolment of decrees .. .. .. .. .. .. ..Ill on petition . . . . . . . . . . . . 123 Entitling of papers . . . . . . . . . . . . . . . . 95 Evidence, improper, may be suppressed . . . . . . . . . . 85 Examination of parlies, &c., before master . . . . , . . . 105 accountmg . . . . . . . . . . 107 Examiners to return and file depositions . . . . . . . . . . 87 to proceed de die in diem . . . . . . . . . . 84 may decide in certain cases . . . . . . . • . . 85 Exceptions in injunction causes . . . • . . . . . . . . 38 to be filed in 20 days . . '. 50 not submitted to, referred . . . . . . . . . . 51 for scandal or impertinence . . . . . , . . . . 53 to be staled on reference of 2d answer . . . . . . 52 master's report on, when procured . . . . . . . . 54 when absolute . . . . . . . . 56 to report on exceptions, how heard . . . . . . . . 62 limited to objections before master . . . . . . . . 106 costs on, to be in one bill . . . . . . . . . . 63 further time to file .. .. .. .. .. ., 125 INDEX TO TlIK RULES. ■2:il Exceptions to prevent motion to dissolve injunction Exhibits, to be produced before examiner to be returned and filed before hearin Fees, on commission of lunacy on sales by master to be detailed in bills of costs limited on sales of infants' estates . . Feigned issue, case to be made on motion for new on bills for divorce, &c. to try legitimacy Feme covert to sue by next friend Further answer, order for, on submission . , on report G. uri.E. n 39 75 87 . . 162 . . 124 130 161 trial of 140 167 169 163 58 59 Guardians ad litem, officers may be appointed petition for . . who may be . . by whom allowed not to receive infants' property general, not to receive proceeds of sales security on appointment of . . petition for appointment of . . reference to master . . report of master appointment of, and bond special, security required petition for . . certificate of master . . reference to master . . to bring proceeds into court to file inventories and account to receive copy of certain rules accounts to be examined . 143 . 144 . 145 . 146 . 147 . 149 . 148 . 150 . 151 . 152 . 153 , 157 . 158 . 159 . 160 . 161 . 154 . 155 . 156 H. Hearing, may be noticed by either party on bill and answer notice required case to be furnished on . . on exceptions to report on exceptions calendar of causes for . . to be noticed for first day of term papers to be furnished on 65 89 90 62 91 92 93 238 IXDEX TO THE RULES. I. Incumbrances, not to be stated at length Infants, guardians ad litem of general guardians of special guardians of guardians of, to file inventories Injunctions, by whom allowed when to be allowed by court granted ex parte, dissolved before answer to stay suits at law retained till hearing in certain cases masters appointed in each circuit to enter all applications may require security may direct order to show cause may allow time to answer, (kc. guardians ad litem to examine accounts annually Interrogatories, to examine foreign witnesses Inventories, to be filed by receivers. Sec. . . Issue, on filing general replication note of, to be delivered four days before term causes to have priority from date of nuLE. 132 143 148 157 154 30 31 34 33 37 30 9 31 32 125 146 156 72 154 65 92 91 L. Lands, notice required on sales of to be sold in separate lots . . of infants, how sold proceedings foi partition of Life interest in monies, how estimated Lunacy, fees to commissioners in Lunatics, committees of, to file inventory 139 138 157 174 179 162 154 M. Master, to keep register and enter proceedings to report on exceptions in 20 days to fix time for further answer to issue summons and fix time of service may allow another party to proceed may settle order of proceeding may direct as to production of papers may proceed ex parte in his discretion may examine parties, &c. orally 9 54 55 100 101 102 103 104 105 INDEX TO THE RULES. Master may proceed on exceptions before him may examine accounting party may make separate report to fix time to settle report not to convey before enrolment commission on sales by . . ... to cause mortgages to be recorded to sell real estate in parcels to require sureties to justify Money, orders for payment of Motion days, in vacation . . in term Motions to stand over in absence of chancellor special, notice of . . to dissolve injunction before answer to dismiss bill to suppress improper evidence for reference in divorce causes for feigned issue . . Mortgage cases, proceedings in notice to be filed and served reference to compute amount in decree for sale reference as to surplus . . to be recorded premises to be sold in parcels N. Ne exeat, by whom allowed dissolved before answer retained till iiearing in certain cases Note of issue, when delivered Notice, when served on agent when double time required of application for injunction of examination of witnesses of hearing and special motions to attend on reference of appeal of hearing, to be for the first day of term of claim to surplus of sales of land to be filed in mortgage cases partition cases Nullity of marriage, bill for reference to take proof feigned issue affidavit to obtain reference 239 RLLE. 106 107 108 109 111 124 137 138 172 128 3 5 4 89 34 66 85 164 167 132 133 134 135 136 137 138 30 34 39 92 14 15 32 74 89 100 117 92 136 139 133 174 163 164 167 165 240 INDEX TO THE RULES- o. Officers, to serve poor persons gratis to act as guardians ad litem to require sureties to justify Order, for examination of counsellors and solicitors to abridge time of clerkship for attachment for not appearing . . that defendant appear in 10 days that defendant answer in 40 days for absent defendant to appear that defendant's appearance be entered on attachment on attachment, to take bill as confessed to deliver copy of bill for injunction or ne exeat . . in special cases to show cause to answer cross bill to amend before replication after demurrer on exceptions allowed of course, how entered to refer plea of matter of record . . on overruling plea or demurrer to refer exceptions to answer second or third answer exceptions for scandal to expunge impertinent matter for further answer on submission . . on report of master on default in answering exceptions for attachment, on third answer reported insufficient to dismiss bill for want of prosecution to examine witnesses before vice chancellor to produce witnesses in 40 days for special commission to examine defendant as witness . . to prove exhibit at hearing to assign time for taking testimony to examine defendant before vice chancellor to dismiss bill for want of proof . . for further time to draw up testimony to suppress improper evidence to enlarge time to produce witnesses of hearing causes at term . . to dismiss bill for default at hearing RULE. 142 143 172 11 12 22 23 24 25 27 28 29 30 31 32 42 43 44 45 46 48 49 61 52 53 57 58 59 61 64 66 67 68 71 73 75 77 - 78 79 81 85 86 91 96 INDEX TO THE RULES. 241 nuLE. Order, special, where entered . . . . . . . . . . . . 98 of reference, by whom executed . . . . . . , . . . 99 application to expedite .. .. .. .. 101 to confirm report of master .. .. .. .. ..110 affecting merits to be enrolled Ill for rehearing, when applied for 112 to stay proceedings, and to show cause .. .. .. .. 113 for further time to return transcript .. .. ,. .. 118 nisi, to be order of eight days .. .. .. .. ..122 on petitions, how entered . . . . . . . . . , . . 123 for further time to answer, &c. .. ,. ., .. .. 125 to extend time in other cases . . . . . , . . . . 126 on bank for payment of monies . . . . . . . . . , 128 of reference, to compute amount on mortgage . . . . . . 134 for sale of mortgaged premises . . . . . . . . . . 135 of reference as to surplus . . . . . . . . . . . . 136 on petition of poor person . . . . . . . . 141 for leave to prosecute as poor person .. .. .. ..142 to appoint guardian ad litem .. .. .. .. .. 144 for guardian ad litem, by whom granted .. .. .. .. 146 to appoint general guardian . . . . . . . . . . 153 special guardian .. .. .. .. .. 160 of reference in divorce causes .. .. .. .. .. 164 for feigned issue in divorce causes .. .. .. ..167 to pay costs, how enforced .. .. .. .. ..171 for leave to file bill of review . • . . . . . . ..173 of reference in partition causes .. .. .. .. ..177 as to incumbrances .. .. .. ..178 Partition, bill or petition for .. .. .. .. .. ..174 of all lands held in common .. .. .. ., ..175 general answer in . . . . . . . . . . . . 176 reference to ascertain rights . . . . . . . . ..177 as to incumbrances .. .. .. ..178 Parol agreements between solicitors, not allowed . . . . . . 121 Petitions, when to have preference . . . . : . . . . 5 to be addressed to chancellor . . . . . . . . . . 10 how entitled . . . . . . . . . . . . . . 95 of appeal, to be filed in certain cases .. .. .. ..118 not required in certain cases .. .. .. 119 orders on . . . . . . . . . , . . . . 123 for leave to prosecute as paupers .. .. .. ..141 to appoint guardians ad litem . . . . . . . . . . 144 general guardians .. .. .. .. ..150 special guardians .. .. .. .. .,158 242 INDEX TO THE RULES. Petitions for partition Plea, overruled as frivolous, &c. . . reference of . . allowed, may be replied to . . Pleadings, to be fairly written and paged where to be filed to be abbreviated for hearing by whom furnished on hearing Poor persons, how admitted to prosecute officers to receive no fees from Process, to be tested in name of chancellor of subpoena, form of . . — 174 49 48 47 95 8 93 94 141 142 19 20 R. Real estate, to be sold in parcels . . . . . . . . . . 138 how advertised .. .. .. .. .. .. 139 proceeds of, belonging 1o infants . . . . . . . . 149 Receivers, to file inventories and to account . . . . . . . . 154 Reference, in case of absent defendants . . . . . . . . 25 to ascertain truth of plea . . . . . . . . . . 48 of exceptions to answer . . . . . . . . . . 51 of second or third answer . • . . . . . . . . 52 of exceptions for scandal . . . . . . . . . . 53 by whom executed . . . . . . . . . . . . 99 proceedings on, and notice . . . . . . . . . . 100 application to expedite . . . . . . . . . . 101 to compute amount due on mortgage . . . . . . 134 as to surplus on mortgage sale . . . . . . . . 136 on petition to sell infants' estate . . . . . . . . 160 to ascertain rights in partition .. .. .. .. 177 incumbrances .. .. .. .. .. 178 Register, to keep list of stated terms . . . . . . . . . 2 necessary books, &c. . . . . . . . . . . 6 separate books for vice chancellor . . . . . 7 list of agents . . . . . . . . . . . . 13 to issue commissions to take testimony . . . . . . 69 not to file irregular papers . . . . . . . . . . 95 fees on monies paid out . . . . . . . . . . 124 to report delinquent guardians, &c. . . . . . . . . 155 as to incumbrances in partition .. .. .. 178 Rehearing, when applied for .. .. .. .. .. ..112 petition, certificate of counsel, &c. on application for . . 113 deposit to be made in ten days . . . . . • . . 115 Replication, when to be filed . . . . . . . . . . . . 65 Report of master, objections to . . . . . . . . • . 106 when settled and filed . . . . . . • • 109 INDEX TO THE RULES. Report of master, order to confirm nisi on exceptions, to specify time for further answer to be made of delinquent guardians, &c. on annual accounts of receivers, &c. Retaxation, to be granted by chancellor 243 RULE. 110 65 155 156 129 s. Security, to be given by non residents on appeal from vice chancellors required of general guardians of special guardians on bill of review Separation, bill for, by feme covert reference to take proof complainant may be examined not granted of course in any case Service on agent, in certain cases double time required by affixing in office not required where defendant has not appeared of subpoena, how made Solicitors, to designate papers for vice chancellor to be examined and licensed when entitled to admission to have agents to receive no fees from poor persons to act as guardians ad litem Submissions of causes, how made Subpoena to appear and answer, form of to contain names of all the defendants for costs and better answer, abolished for witnesses, to specify place of appearance Summons, time of service required on to see draft of report, not necessary to be served on incumbrancers Surplus on sales, distribution of . . Sureties required to justify 17 116 148 157 173 163 164 166 170 14 15 16 17 21 7 11 12 13 142 143 97 20 21 58 76 100 109 136 136 172 T. Terms of the court Time of service on agent, double of examination, to be fixed by vice chancellor of service of summons on rules and orders, how estimated to answer, allowed by vice chancellor, &c. 1 15 77 100 122 125 244 INDEX TO THE RULES. Terms of court may extend in all cases Testimony, how taken before vice chancellor to be drawn up and settled how taken before examiner improper, may be suppressed to be returned and filed before hearing before master, to be taken down Transcript, to be returned and filed in thirty days not required on appeal from vice chancellor Taxing master, to be appointed in each circuit V. Vice chancellor, may fix time to take testimony may dismiss bill for want of proof may order party to be examined may allow time to answer may approve appeal bonds may allow injunctions . . may allow guardians ad litem may allow orders to show cause w. Witnesses, when to be examined before vice-chancellor . , out of state, to be examined on interrogatories not compelled to travel over 40 miles names to be furnished before examination how examined before examiner objections to competency of, when made RULE. 126 78 81 84 85 87 105 118 119 129 77 79 78 125 116 30 146 32 67 72 76 83 84 85 INDEX TO THE SELECTIONS FROM THE REVISED CHANCERY STATUTES. A. Abatement of suits Absentees, proceedings against reference when bill is taken as confessed may be let in to answer Accounts of monies deposited in court of register and clerks to be exhibited to court of giiardians to be rendered periodically Adultery, proceedings to obtain divorce for of complainant, a bar to divorce of wife, a bar to right of dower Answer to bill for divorce may be without oath . . on oath may be waived in other cases to petition of revivor Appeals from common pleas in cases of drunkards from decrees of vice chancellors . . to the court of errors not to stay proceedings without security from surrogates to circuit judges to chancellor from decisions of circuit judges from surrogates to chancellor from decree of surrogate, to stay proceedings Applications for injunctions restricted Appearance may be entered by special order of court Assistant register to give security Attornies' fees in court of errors . . PAGE. 105 107 109 109 89 90 120 79 81 82 80 94 105 72 98 121 123 125 127 127 128 91 99 87 134 B. Banks in which deposits of court are to be kept . . chancellor to direct manner of keeping accounts in accounts in, to be transferred to successor, 6<c. Bills, &c. to be addressed to chancellor . . Bills for less than 100 dollars to be dimissed 88 89 90 96 92 246 INDEX TO THE SELECTIONS Bills to discover fraud in judgments Bills may be taken as confessed . . of foreclosure, to state proceedings at law Blank process to be furnished to solicitors Bond, to obtain injunction after verdict . . to be given by register, &c. of guardian, for sale of infants' estate on appeal to the court of errors required to stay proceedings on appeal on appeal from decision of circuit judge on appeal from surrogate to chancellor Books, &c. may be transmitted from one office to another PAGE. 93 99 115 98 111 87 119 122 123 127 127 Chancellor, to have custody of idiots, &c. may annul illegal marriages . . authorised to grant divorces for adultery may decree separation for ill treatment vested witli general chanceiy powers may refer causes to vice chancellors to make rules concerning deposits, &c. to establish and revise rules of practice may regulate practice before vice chancellors to regulate appeals from vice chancellors may regulate and prescribe form of process to prescribe rules for examination of witnesse may hear causes commenced before vice chancellors to regulate practice on appeals from surrogates Children, when to inherit after sentence of nullity may be decreed illegitimate in certain cases may be supported out of estate after divorce Circuit judges to be vice chancellors in chancery to hear appeals from surrogates fees on appeals Clerks of vice chancellors of equity courts to deliver over books. Sue. Clerks in chancery to give security to render account to register to docket decrees fees of Clerks' fees in the court of errors . . Commissions to examine witnesses, &c. . . Commissioners' and examiners' fees Committees of idiots, &:c. to file inventories to convey estate held in trust Common pleas, power as to habitual drunkards . . 71 76 79 83 85 86 89 94 95 97 98 101 98 129 77 81 81 85 125 127 86 88 87 89 102 141 131 99 138 72 75 71 FROM THE REVISED STATUTES. Complainant, examined in certain cases . . may receive certain deposits filing bill for less than 100 dollars to pay Copies of pleadings to be served . . Costs may be taxed by vice chancellors . . of prolix depositions, &c. in suits to annul marriages . . and expenses in suits for divorce, or separation of prolix pleadings to be paid by solicitor against parties refusing to revive security for, to be given on appeals allowed on appeal to circuit judge security for, on appeal to chancellor Counsellors' fees in court of errors in chancery Criers' fees in court of errors 247 PAGE. 109 112 92 99 86 104 79 84 94 107 121 126 128 132 141 132 D. Damages by injunctions, how ascertained Decrees and orders, how entitled may be made by default for money, to be docketed docketed, to bind real estate may be enforced by execution against absentees, how enforced on foreclosure against absentees against mortgagors for surplus against sureties for surplus for payment of instalments for specific performance by infant how enrolled .... Delivery of securities, &c. may be enforced pending appeal Deposits of court, where kept on death of register, &cc. to go to successor not to be drawn out unless by order of court on injunctions after verdict may be dispensed with in special cases on appeals to court of errors Disbursements allowed on taxation Divorces on the ground of nullity for adultery not to affect property of innocent party for ill treatment, or separations . . Docketing of decrees, for payment of money Dower of wife, forfeited by adultery in estates of infants sold 113 97 99 102 103 104 109 110 114 115 116 118 102 122 88 90 90 111 113 121 144 76 79 82 82 102 82 120 248 INDEX TO THE SELECTIONS Drunkards, chancellor to have care of when to be restored to their estates committees of, to file inventories PAGE. 71 76 72 E. Effect of sales of estates of idiots, &c, under decree of foreclosure of conveyance by infants' trustees of sales of infants' real estate Enrolment of decrees, when and how made Equity courts abolished Estates of lunatics, &c. how sold . . of infants, how sold Examiners' and commissioners' fees Execution, may issue to enforce decree of decrees against absentees of decrees pending appeal in certain cases Expenses of overseers in certain cases, how paid of court of chancery, how paid 75 115 118 120 102 88 73 118 107 104 109 122 72 92 F. Fees of circuit judges on appeals from surrogates of clerk of court of errors of crier in court of errors of solicitors on appeal to court of errors of counsel in court of errors . . of masters in chancery of vice chancellors of sergeant-at-arms .. of sheriff as sergeant of vice chancellor of register and assistant register of clerks in chancery of examiners and commissioners of counsellors and solicitors in chancery Feme covert, may sue for adultery in her own name Foreclosure of mortgages, proceedings on Fraud in judgments, bills to discover 127 131 132 133 132 134 137 141 141 141 141 137 141 80 114 93 G. Guardians, to sell infants" estates to account periodically appeals from orders appointing 119 120 128 FROM THE REVISED STATUTES. 249 H. Habitual drunkards and their estates appeals from common pleas . . Hearing, brought on by notice, under rules before vice chancellors, to be regulated by chancellor of appeals to circuit judges PAGE. 71 72 101 95 125 I. Idiots, &c. to be under care of chancellor marriages of, may be annulled Infant trustees, may be ordered to convey Infants, estates of, may be sold, and how Injunctions not to be applied for twice not to issue till bill filed to stay proceedings at law deposit required after verdict, &c. to stay proceedings in ejectment Inventories to be filed by committees, &c. Investment of monies paid into court of proceeds of infants' estates Issues to be tried by jury in matrimonial cases 71 76 118 119 91 99 111 111 112 72 89 120 94 J. Jurisdiction of the court of chancery of vice chancellors Judgment creditors, may compel discovery, &c. 92 85 92 L. Leases by committee of lunatics, &c. limited Levy necessary to bind personal property Limited divorces, or separations Lis pendens, notice thereof to be filed Lunatics, &c. to be under care of chancellor marriages by, may be annulled estate may be sold, and how 75 105 82 93 71 76 73 M. Marriages, void and illegal, may be annulled may be dissolved for adultery of adulterer prohibited Masters' fees in chancery . . designated to tax costs 76 79 82 134 86 260 INDEX TO THE SELECTIONS Mortgages, proceedings to foreclose suits at law on, prohibited foreclosure of, against absentees I' AGE. 114 114 110 N. Non-residents, proceedings against Notice of suit, when and where to be filed to creditors, &c. how published of hearing on appeal to circuit judge to absentees, how published of appeal from surrogate Nullity of marriage may be decreed 108 93 105 126 108 129 76 o. Oath not required to answer in adultery cause to answer, may be waived Off-sets allowed in chancery Overseers of poor, duty as to drunkards expenses, how paid Orders and decrees, how entitled to take testimony before vice chancellors 80 94 93 71 72 97 100 Payment may be decreed against mortgagor decreed against surety of mortgagor Performance of decree enforced by execution by absentee Perishable property may be sold pending appeal Personal property not bound by execution till levy Petition to revive suit Pleadings, &c. where to be filed copies of, to be served Practice in chancery, how regulated on appeals from surrogates, &c. Process, form of, regulated by chancellor in blank, to be furnished to solicitors Prolixity in pleadings, how punished in depositions, to be disallowed Publication of notice to creditors, &c. to absent defendants Purchaser, how charged with notice of suit 114 115 104 109 124 105 105 96 99 94 129 98 98 94 104 105 107 94 R. Real estate of idiots, &c. when sold 73 FROM THE REVISED STATUTES. Real estate bound by docketing of decree of infants, may be sold Records, &c. may be removed Reference on bills for divorce, &c. on bills against absentees Register, ex officio clerk of vice chancellor to give security to exhibit accounts to court to enrol and docket decrees fees of . . Return of surrogate on appeal to circuit judge Revival of suits, how made 251 PACE. 103 118 88 80 108 86 87 90 102 138 125 105 S. Sales of estates of idiots, &c. not affected by appearance of absentees of mortgaged premises decreed on decrees, how made of infants' estates not to be made contrary to will, &c. Seals of the court Security for support of wife, &c. to be given by register, &c. in case of absent defendants on obtaining injunction . . on appeals Separations or limited divorces Sequestration of estate of absentees Sergeants to attend court fees of Set-oflPs allowed in chancery Service of pleadings required Sheriffs to execute process and attend court fees as sergeants to vice chancellors Solicitors' fees, on appeal in chancery allowed for disbursements Specific performance, by lunatics, &c. by infant heirs Stated and special terms of the court Stocks, &c. to be in name of register or clerk Subpoena not to issue till bill filed to hear judgment abolished in blank, to be furnished Suits, for less than 100 dollars, prohibited 73 110 114 115 118 119 98 84 87 109 111 121 82 109 91 141 93 99 91 141 183 142 144 75 118 95 90 99 101 98 92 252 INDEX TO THE SELECTIONS. Suits at law, on mortgages, prohibited Surplus on mortgage sales to be invested PAGE. 114 116 T. Taxing masters to be appointed Testimony to be reduced to writing may be taken pending appeal Terms of the court and mode of proceeding of vice chancellors, when held by others Time for appealing from vice chancellors from decree of chancellor to circuit judge from circuit judge from surrogate to chancellor . 86 . 101 . 124 . 95 . 95 . 97 . 121 . 125 . 127 . 129 V. Vice chancellors, jurisdiction and powers may tax costs to hear causes where chancellor is a party when to hear causes for each other to proceed on bills filed before them to take testimony in special cases fees in chancery 85 86 86 95 96 100 137 w. Witnesses, when examined before vice chancellor how examined before examiners Wife may file bill for divorce 100 101 80 INDEX THE PRECEDENTS. PAGB. 1. Writ of Assistance 145 2. Writ of Attachment 146 3. Writ of Injunction 147 4. Writ of Execution in the nature of a ca. sa. to compel the performance of a specific duty . . . . . . • • • • • • • • 148 5. Writ of Execution in the nature of a fi. fa. where a sum is decreed to be paid, with or without costs . . . . . • • • • • 150 6. Testatum Fi. Fa. for the residue . . . . • • • • • 151 7. Fi. Fa. for costs on dismissal of bill .. •• •• •• •■ 152 8. Ca. Sa. for costs on dismissal of bill . . . . • • ■ • • • 153 9. Fi. Fa. for sum decreed and costs, after affirmance by the court of errors . . . . • • • • • • • • • • • • 154 10. Precept to commit a party to prison for non-payment of interlocutory costs . . . . • . • . • • • • • • ■ • 155 11. Commission to inquire of habitual drunkenness .. .. .. 156 12. Commission to commit person and estate of habitual drunkard .. 158 13. Master's report on bill of foreclosure taken as confessed .. .. 159 14. Order to sell mortgaged premises on bill taken as confessed . . . . 161 15. Costs on the foreclosure of a mortgage when the bill is taken as con- fessed .. .. .. : .. .• .. ■• 163 Lately published, by the same Author, 1 vol, 8vo. l5s. 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