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THE NEW YORK PRACTICE A TREATISE UPON PRACTICE AND PLEADINGS '2.ctxonB anh Special |)r0aebingi COURTS OF RECORD STATE OF NEW YORK By JOEL TIFFANY and HENRY SMITH COUXSELOES AT LAW VOLUME n ALBANY WEAEE 0. LITTLE LAW BOOKSELLER AND PUBLISHER 1865 -3M-<^0^./<^ T Entered according to Act of Congress, in the year one thousand eight hundred and sixty-four, by WEARE C. LITTLE, In the Clerk's Office of the District Court of the United States for the Northern District of New York. Weed, Parsons and Company, Stereotypers and Printers, 59 State Street, Albany. TABLE OF CONTENTS. YOLUME II CHAPTER I. JUDGMENTS IN" SPECIAL CASES. Page. Foi* and against one or more of several parties, 1 Where the liability is only joint, 3, 4, 5 When the equitable rights of the parties are to be settled, 4 In what cases defendant may have affirmative relief, 4 Judgment against executors, &c., 6 Judgment for equitable relief, 6 What is case of default for want of an answer, 7 In actions for the recovery of personal property, 8 In actions for the recovery of real property, 9 In actions in the nature of waste, 10 In actions in the nature of nuisance, 10 In actions against corporations, 11 CHAPTER II. OF THE AMENDMENT OF JUDGMENTS. When and how the same may be amended, 11 By what court to be ordered, 11 Where the application to amend must be made, 11 Upon what grounds an amendment will be allowed, 12 The Code does not authorize amendments correcting judicial errors, 12 yi CONTENTS. Page. How to amend when the verdict is larger than damages claim- ed in tlie complaint, 13 Wlien the judgment may be set aside, 14, 15 Not for mere teclmical irregularities, 15 The application to vacate, how made, and where, 16 By whom to be made, and when, 16 "When in case of service of process by publication, 17 Of the satisfaction of judgment^ its discharge^ Sc. How satisfaction to be made and entered, 17, 18 "What is a satisfaction, 18 "When, by a levy, 18 "When, by another action, &c., 19 "When, by payment, '19 "When, by taking defendant in execution, 19 CHAPTER HI. THE EXECUTION. The several kinds of executions, 20 "When the execution may issue, 20 "When an alias execution may issue, 21 "When the right to issue may be suspended, 21 To what county it may issue, 22 Must issue against property before against the body, 22 "When necessary to apply for leave to issue, 23 The form and requisites thereof, 25 Particular form of the execution, 26 Its dii'ections, &c., 27 Against executors, administrators, &c., 27, 28 "Where the judgment is against a testator or intestate who has since died, &c., 28 Order of surrogate to be obtained, 28 To whom the execution is to be directed, 29 Against attached property, 30 Directions to be indorsed on the execution, 31 Indorsement by the sheriff, &c., 33 Effect of lodging the execution with the sheriff, 34 "dpon what property to be levied, 34 Property exempted from levy, 36 to 39 "Who may claim the privilege, 39 Lien of the execution, 40 Effect of a levy, &c., 42 This volume completes the work according to the original plan. The Bench and Bar have suggested the importance of a Book of Forms in connection with the Practice. Acting on these suggestions, the publisher will issue early in January, 1865, a Book of Forms, as an Appendix to the work, adapted to the subjects treated in this and the preceding volume. CONTENTS. Vll Page. What constitiites a levy, 43 Executions, how become dormaut, 44 Custody of the property levied upon, 45 Proceedings when the property is claimed by a third person, 47 Stay of execution in the hands of the sheriff, 48 The sale under, &c., 49 What notice to be given, 50 Property must be present at the sale, &c., 50 Articles sold must be pointed out, 50 When sheriff may not take the highest bid, 50 Sale must be at public vendue, 51 And in suitable lots or parcels, 51 Priority in case of several executions, 52 Sale of real estate, &c., 53 What interest may be sold, 53 The advertisement in such case, 55 Must sell according to his advertisement, 56 Must sell no more than is necessary, 56 Must sell in the county where it lies, 56 Certificate of sale, ., 57 Effect of sale, 57 Application of the proceeds of, &c., 58 Right of redemption, 59 By whom may be exercised, 59 Mode of acquiring title of orginal purchaser, 61 When a miscalculation as to the amount will not vitiate, 62 What the affidavit must state, 62 Requisites to be observed in such proceeding, 62 In what funds the sheriff may receive payment, 63 Redemption by the debtor will restore the lien, 64 Time to redeem may be extended by agreement, 65 Sheriff's deed, 66 Its requisites, 67 Manner of enforcing judgment for the delivery of possession of personal property, 67 Arrest on execution^ 67 In what cases allowable, 68 Order for arrest, &c., 69 When and when not necessary, 69 Pre-requisite to issuing ca. sa., 72 What to be stated in execution, 72 Defendant being arrested, how may be discharged, 72 Committing defendant to jail, 72 II— B viii CONTENTS. Page Jail libovtios, etc., 73 to 79 Disfhargo uiuler insolvent laws, 79 When discharge void, 81 Return of the execution, when and by whom, 82 Manner of compelling a return, 84 Execution of a decree, &c., 84 CHAPTER ly. PROCEEDINGS SUPPLEMENTARY TO EXECUTIONS. When and how to be instituted, 85 Before whom to be instituted, 86 Nature of these proceedings, 88 Against whom and in what cases, 89 What must appear to confer jurisdiction, 90 Order for an examination, how applied for, 91 Who may apply, 92 The order, and by whom, 92 Service of the order, 94 The examination, &c., ,». 95 A reference, when to be had, 97 Examination of a third party, 99 Examination of witnesses, 102 What property may be reached under these proceedings, .... 103 Appointment of a receiver, when necessary, 104 Action by the receiver, 106 Costs, ] 08 Orders, how enforced, &c., 108 CHAPTER V. APPEAL, AND OTHER MODES OF REVIEW. General observations, 109 When an appeal will lie from a judgment or an order, Ill Questions of fact not reviewable in the court of appeals, 112 The order must be final, 112 No appeal from order in the discretion of the court, 113 No appeal from a determination made final by statute, 114 Error of fact, how reviewed, 114 Who may appeal, 115 Parties, how designated, 115 Appeal, how made, 115 CONTEIfTS. IX Page. What to be reviewed, 116 When judgment is reversed or modified, 116 Irregiilarities in appeal, 117 Party dying pending, &c., how continued, 117 When appeal is waived, 117 Judgment by default, 117 CHAPTER VI. APPEALS TO THE COURT OF APPEALS. In what cases, &c., 118 When the appeal must be brought, 119 Notice of appeal, 119 How served, 119 The undertaking, 119 Its essential requisites, 119 What necessary to a stay, &c., 119 Of judgment for money, 119 Of judgment for the delivery of documents, 120 Of judgment for sale or delivery of real property, 120 Of judgment for the execution of a conveyance, 120 Extent of the stay, 121 When security may be dispensed with, 121 Anaount of, limited or waived, 121 Undertaking must be filed, 121 Surety must justify, 122 When stay, without any undertaking, 122 In case of perishable property, 122 Excepting to sureties, 122 Justification of sureties, 123 Allowance of bail, 123 When additional security required, 124 Deposit in lieu of undertaking, 124 Respondent's appearance, 124 Filing return, 124 Appellant failing to procure the return, &c., 124 Time to file return, how extended, 125 Order for further return, 125 Case on appeal, 125 Printing and serving case, 125 Relief from dismissal, 126 The return or case being imperfect, what, 126 X CONTENTS. Page. Whore no case is made or served, 127 Notice of argument, 127 Calendar, 127 l*rcparation for argument, 128 Calendar practice, 128 Submitting causes, 129 Argument, 129 Errors in case, 129 Re-argument, 129 The decision and remittitur, 130 Entry of judgment, 130 Appeals from orders, 131 Motions, 131 Action upon undertaking, 131 Discontinuing appeal, 131 CHAPTER Vn. APPEAL TO THE GENERAL TERM OF THE SUPREME COURT FROM AN INFERIOR COURT. From what an appeal taken, 132 Time within which to appeal, 132 Notice of appeal, 133 Security, 133 TF7ien the appeal is from a judgment. Return thereof, 133 Notice of argument, 133 Note of issue, 133 Case on appeal, 134 Points, &c., 134 Argument, what to be furnished, 135 Decision, 135 What errors reviewable, 135 Judgment, 136 Appeals from order's. From an order of the county court or county judge, 136 Order must be entered, 137 Notice of appeal, undertaking, costs, 137 When county judge acts as justice of the supreme court, . . 137 Preparation for argument, 137 Decision, 137 Judgment, 137 CONTENTS. Xl CHAPTER Vm. APPEALS FROM SUKKOGATES' COURTS. Page. In all cases taken to general term of supreme court, 138 When an appeal will lie, 138 When to be brought, 138 Who may bring the appeal, 139 Manner of bringing the same, 139 Bond, &c., 140 Stay of proceedings, 140 Petition of appeal, 141 What it must state, 141 Where respondent is a minor, 142 Where appellant omits to file petition of appeal, 142 Form of, 142 Serving petition of appeal, 143 Respondent failing to answer, what, 143 Dismissal of appeal, 143 Notice of appearance, and order that petition, &c., be served, . . 144 Answer thereto, 144 Return, 144 Form of answer to, &c., 144 Compelling a return, 145 Failure to procure a return, 145 Defective return, 145 Hearing appeal, 145 Determination of appeal, 146 Costs, judgment and appeal, &c., 147 CHAPTER IX. APPEALS LN" THE SUPRE5IE COURT, SUPERIOR COURT AND COURT OF COMMON PLEAS, FROM A SINGLE JUDGE TO THE GENERAL TERM. From judgments, 147 When must be brought, 148 Notice of appeal, 149 Security, stay of proceedings, 149 How brought to a hearing, 150 Motion to dismiss, 150 Hearing and determination, 150 How determined, 152 Costs, 152 Xii COKTENTS. Page. Jiulgmeut, and coercing the entry thereof. 153 Appeals from orders. When such appeal lies, 153 Within what time to appeal, 154 Notice thereof, when and how given, 154 How prepared for a hearing, 154 How determined, and what is determined, 155 Costs, &c., 155 CHAPTER X. CASE AND EXCEPTIONS. Definition of a case, 156 Bill of exceptions mider the former practice, 156 How, under the present practice, 156 In what cases a case must be made, &c., 156 When a case for a new trial, 156 What it should contain, 156 When the case should contain exceptions, 157 When the trial is by judge or referee, what to contain, 157 A special case, what, 157 Case, when and how made, 157 Pages and lines to be numbered, 157 Copy to be served on opposite party, and when, 157 Amendments of case, how prej^ared and served, 157, 159 Notice of settlement, when given, 157 Party submitting case for settlement to mark thereon his al- lowance or disallowance of amendments, 157 Settlement of the case, 158 Power of the judge therein, 158 The settlement is a judicial act, 158 Judge dpng before settlement, what, 158 Case, how waived, 158 When deemed settled, 158 Time may be extended, 158 Fihng case and its effect, 158 Resettlement of the case, 159 CHAPTER XI. CONTEMPTS, AND PUNISHMENTS AS FOR CONTEMPTS. The power of the court to punish, &c., 159 In what case these proceedings apply, r and agai7Xst one or more of several parties. Judgment may be given for or against one or more of several plaintiifs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side as between themselves.^ The Code has introduced the chancery rule in place of that of the common law, which was that on an alleged joint contract the plaintiff must recover against all the defendants or none. Hence, in actions of a legal nature, as well as those of an equitable character, a several judgment may be rendered against the one found liable, although others are united with him as defendants in the action.^ So where two defendants are sued jointly on a contract, which on its face is the joint contract of both, but which in fact and legal effect is the contract of only one of the defendants, judgment may be rendered against the party liable and in favor of the other.^ Thus where the action was brought against two defendants as partners, and it ' Code, § 274, subd. 1. » Claffin v. BaUerly, 2 Abb., 446 ; S. C, 5 Duer, 327. 2 ADMINISTEATION OF CIVII; JUSTICE. appeared that only one had made himself liable, as he had acted without authority from his partner, it was held that the plaintifl" was entitled to judgment against the one who was liable.' The principle is, the plaintiff may have judg- ment against one or more of several defendants whenever ni)on the facts of the case a cause of action is made to appeap against such defendant.^ Upon the same principle, where an action is brought against two or more defendants upon a contract made by or in behalf of an association or a firm, if one of the defendants sued makes default and others appear and answer, the plaintiff may prove on the trial that the con- tract was made by the firm or association, and that the defendants appearing are members thereof; but it will not be necessary for him to prove that the defaulting defendant is also a member.^ This principle will also apply when it appears that one of the parties sued was never liable. Thus, in an action on a bond, joint and several in its character, purporting to have been issued by the defend- ants, when in fact only one of them signed it, the ])laintiff may have his judgment against the one executing the bond." Where the plaintiff sues some only of the defendants liable on a joint and several contract, and the defect of parties does not appear on the face of the complaint, the defendants, if desirous of taking advantage of the non- joinder, should plead it; but omitting to do so, the plain- tiff may recover against the parties sued, although it appear on the trial that others also were jointly liable with those sued.^ Xon-joinder of party defendants must be taken advantage of by demurrer*' or by answer.'^ In actions for torts each defendant is jointly and severally liable; and the plaintiff has his election to proceed against them all jointly, or against any number of them, and their non-joinder cannot be taken advantage of, either by demurrer, answer, or upon the trial. The rule, in this ' Claffin V. Batterly, 2 Abb., 446; S. C, 5 Duer, 327 ; see also Parker v. Jackson, 16 Barb., 3?,; and Brumskill v. James, 11 N. Y., 294; see opinion of Gardner, J., in same. "^ Harrington v. Higham, 15 Barb., 525; Bonsteel v. Vande7-Mlt, 21 Barb., 26; Marquat v. Marquat, 12 N. Y., 342; Feojile v. Cram, 8 How., 151; Witherhead V. Allen, 28 Barb., 661. ' Downing v. Mann, 9 How., 204 ; 4 E. ' Fowler v. Kennedy, 2 Abb., 347. D. Smith. 36. » Code. § 144. * People V, Cram, 8 How., 151, '' Code! § 147. JUDGMENTS IN SPECIAL CASES. 3 respect, remains the same as before the Code.^ Where on trial the plaintiff produces no evidence against any of the defendants, such defendants will be entitled to judgment; so also where nothing appears in the pleadings or evidence to charge a portion of the defendants, they may be dis- charged.^ Wliere the lidbility is only joint there can be only a joint recovery and judgment; and no judgment can be entered by the plaintiff until all the defendants served have had their full time to answer.^ And when a number of de- fendants are sued upon a joint liability, and some of them defend, while one fails to answer, the defense put in pre- vents the plaintiff" from taking any judgment against either of the defendants until the issue raised has been disposed of.* In an action for lands bought by husband and wife, where the husband is entitled to the whole rents and profits of the property if recovered during their joint lives, if there are no children, and dimng his life, if there are children, a separate judgment in favor of the wife and against the husband cannot be given. They must recover jointly or not at all.^ Where a judgment has been reversed and the complaint is necessarily dismissed as to some of the defendants, it will not be dismissed as to all of them, provided it appear from the facts stated and established on the trial that the plaintiff is entitled to some relief against a part of the defendants ; and the court will retain the action against such defendants, that the plaintiff may have such relief against them as he may prove himself entitled to.^ By abolishing the formal distinctions between actions at law and suits in equity, and between judgments and decrees, the Code properly jDrovides for the determination of the ultimate rights of the parties on each side, as between themselves : that is, the Code gives to the court or judge, in making up the judgment, the power of the ' Montford v. Hvxjhs, 3 E. D. Smith, 591 ; Wagner v. Bill, 19 Barb., 321 ; Wood- burn V. Chamberlain, 17 Barb., 446; Parker v. Jackson, 16 Barb., 33. * Woodbum V. Chamberlain, 17 Barb., 446. ' Jivjjues V. Greenwood, 1 Abb., 230 ; Mechanics' & Farmers^ Bank v. Rider, 5 How., 401 ; see particularly the dis.senting opinion of Justice Parker. * Catlin V. LaUon, 4 Abb., 248; Catlin v. Billings, 13 How., 511; Bacon v. Corn- stock, 11 How., 197; Sluyter v. Smith, 2 Bosw., 673: LaFarge v. Chilson, 3 Sandf., 752. * Bartow v. Draper; 5 Duer, 130. * Williams v. Christie, 4 Duer, 29. 4 ADMINISTRATION- OF CIVIL JUSTICE. chancellor, to settle the rights and equities of the jjarties necessarily involved in such adjudications ; and gives to the indgnient, in its substance and scope, when necessary, the character of a decree.^ It provides further, that the court, in giving judgment, may grant to the defendant any affirmative relief to which he may be entitled.^ The affirmative relief which the court is authorized thus to grant to the defendant, is affirmative relief against the plaintiff only, not against a co-defend- ant.^ And when the defendant would be entitled to affirmative relief against the plaintiff, he must put him- self in the position of an actor, in bringing the cause to trial, if he would demand it.^ After issue joined, if he seeks judgment for more than a dismissal of the com- plaint, hemust notice the cause for trial .^ He may obtain such affirmative relief as he is entitled to, if the cause comes on to a trial either upon his own or the plaintifi\s notice.*^ The Code further provides that in actions against several defendants, the court man, ^'*' ^^■'»' (discretion, render judgment against one or more of tliem, leaving the action to irroceed against the others, whenever a several judgment may he pro- per.'' From this, it will be perceived, that there may be cases where a several judgment against defendants would not be proper ; as on a joint contract, where, by the terms thereof, it is only joint." This provision of the Code can only apply in cases where the defendants are severally liable. And further, this authority for severing the defendants in pronouncing judgment, is to be exercised onlj^ in the discretion of the court ; therefore, it would be irregular for a plaintiff, without an order of the court for that pur- pose, to enter judgment against one defendant, and con- tinue the action as to others of them.^ The principle is this, the plaintiff is not authorized to sever defendants who are jointly before the court, without the order of the court. Therefore, where a number of defendants are sued ' Code, § 274, subd. 1, last clause. * Roy v. Thompson, 8 How., 253. ' Code, § 274, subd. 2. ' Wilson v. Wheeler, 6 How., 49; Pot- ' Mechanics' Savinr/ Inst. v. Rohberts. 1 ter v. Davidson, 8 Abb., 43. Abb., 381 ; Tracy v. Sleam Faucet * Roy v. Thompson, 8 How., 253. Co., 1 E. D. S., 349. ' Code. § 274, subd. 3. * See Mechanics^ & Farmers' Bank v. Rider. 5 How., 401; and particularly the dissenting opinion of Justice Parkkr ; Jacques v. Greenwood, 1 Abb., 230. ' Bacon v. Coynstock, 11 How.. 197. JUDGMENTS IX SPECIAL CASES. 5 on a joint liability, and some defend, and one fails to answer, the plaintiff is not entitled to judgment against the defendant not answering until the issues raised by the other defendants are disposed of.^ The Code nowhere authorizes a several judgment against a defendant only jointly indebted. It provides^ that where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed, if the action be against defendants jointly indebted upon contract, against the defendants served, unless the com-t otherwise direct ; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served ; and, if they are subject to arrest, against the persons of the defend- ants served.^ Substantially the same provisions are made by the Eevised Statutes. Similar i)owers are given to proceed against the joint defendants served with process the same as though all had been served.^ And by the second section of the act it is provided, that such judgment shall be conclusive evidence of the liability of the defendants served with process in the suit, or who appeared therein ; but as against all other defendants, it shall be evidence only of the extent of the plaintiff's demand, after the lia- bility of such defendant shall have been established by other evidence.* The provisions of the Eevised Statutes are not repealed by the Code, and may be followed as before.^ Therefore, in all such cases, whether under the statute or the Code, the judgment should be entered against all the defend- ants, whether they have been served with process or not.^ This principle, however, does not apply to the heirs of a person dying intestate, when they are sued for the debts of the intestate. Although the statute" requires them to be sued jointly and not sej^arately, their interests are several, and each is severally liable for his proportion.^ ' Cailin V. Latson, 4 Abb., 248. * 2 R. S., 377, § 2. * Code, § 136. » Sterne v. Beritky, 3 How., 331; 1 C. ' 2 R. S., 377, § 1. R., 109. ' Merrifield v. Cooky, 4 How., 279; see also 5 How., 401 ; Stannard v. Mattice, 7 How., 4; Crandall v. Beach, 7 id., 271; Bridge v. Peysnn, 5 Sand., 210. ' L 1837, 537, § 73. " Kellogg v. Olmsted, 6 How., 487. AD:\rrN"ISTRATION OF CmJj JUSTICE. Judgtnents against Executors. In proceedings against executors and administrators as such, to recover against the estate which they represent, the entry of judgment should be special. The statement that the judgment is against them as executors is not sufficient. It should be against them as executors, &c., of the last will and testament of A. B., deceased, «S:c., to be levied, in a due course of administration, out of the goods and chattels which were of the said A. B., deceased, at the time of his death, and which have come to the hands of the said E. F. and G. H., executors, as aforesaid, to be administered, &c.^ At common law a judgment against an executor was never general, as against one x^ersonally liable ; it was always special. And there is nothing in the Eevised Statutes or in the Code to dispense with the necessity of these special forms of judgment ; and such special forms are peculiarly proper where the proceeding is limited to a remedy against the estate of the deceased in the hands of his executor.* In such case a general judgment that the plaintiff recover of the defendants, as executors, the amount so ordered to be paid, and interest and costs, and that the property and estate of J. T., deceased, be applied to the payment thereof, and that the defendants pay the same to the plaintiff, and that he have execution therefor, is erroneous.^ Judgment for equitable relief. A judgment, under the Code, being the final determi- nation of the rights of the parties in an action,* embraces what were known, under the former practice, as decrees in chancery, so far as proceedings in chancerj^ are in- cluded in the term, "civil actions."^ And it has been suggested, that that class of proceedings in equity were included, where the principal bill or complaint prayed the decree of the court touching some right claimed by the party exhibiting it, in opposition to some right, real or supposed, claimed by the party against whom it was ' See remarks of Mitchel, J., in Mills ' Mills v. Thurshy, svpra, 334, 335. V. Thursl/ij, 2 Abb., 440. " Code, § 245. » Idem., 436, 437. * See ante, voL 1, p. 109. JUDGMENTS IX SPECIAL CASES. 7 exliibited. That is, the term "civil action" of the Code embraces such ijroceedings in equity ouly as were had by origiual bill praying relief against the plaintift''s adver- sary. Other proceedings in equity are in their nature special proceedings, according to the classification of the Code.^ Where equitable relief is sought by a complaint in the nature of an original bill praying relief against the plain- tiff's adversary, the judgment of the court, if relief be granted, will be in the nature of a decree under the former system of practice, and its form and requirement will vary according to the peculiar circumstances of each, particular case. Care must be taken to see that the formal judgment or decree be in strict accordance with the prayer of the complaint, except so far as the court may direct in disposing of the equities between the par- ties. It should be full and explicit on every point. So that there may be no uncertainty as to the rights adjudi- cated and settled, and as to the manner of executing the decree. Where no ansAver is put in by the defendant, it is deemed a confession of the plaintiff's rights, as set up in his complaint; and, therefore, the plaintifl" will be entitled to such judgment or decree as he, in his complaint, has shown that justice demands, and no other. It is, there- fore, provided that the relief granted to the plaintiff, where there is no answer, cannot exceed that which he shall have demanded in his complaint.^ Hence, where the complaint asks for specific relief, and the defendant makes no defense, the plaintiff cannot take judgment for a greater amount than is asked for in the complaint.^ Thus, where the complaint asked that notes, to the amount of 85,000, be delivered up to be canceled, and that judgment of $2,000 be given, but on default, the plaintiff took judgment for $7,000, it was held erroneous, and the judgment was reversed.* But in an action for a specific Ijerformance, the court may give damages for a non-per- formance where no answer is i)ut in.^ So, also, in an action to reform a contract, the court may order the con- * Code, § 3. * Hwrdv. Levenworth, 1 Codo R. fN. S.l, « Code, § 275. 278. * Uurd V. Levenworth, 1 Code R. [N. S.], * Marquat v. Marqmt, 12 N. T., 336. 278. 8 ADMENISTRATION OF CIYIL JUSTICE. tract to be reformed, and may also give damages for the breach of it as reforaied.^ Where the comphdut asks an accounting, and a judgment for the bahmce ascertained to be due, instead of asking for a specitied sum, it is necessary, in case of failure to answer, that an account should be taken by a referee.^ So in an action against heirs and devisees for a debt of the testator, although the complaint demands only a personal judgment, the court may, in furtherance of justice, give judgment or decree that the plaintiff's debt be levied of the lands of the testator described in the complaint.^ In case the defendant answers, the plaintiff, in his relief, is not confined to the particular demand of his complaint. Under the Code^ he has the benefit of the general prayer for other and further relief. But the relief given must be consistent with the facts stated.^ Jiidgnient hi actions for the recovery of personal property. In an action to recover the possession of personal pro- perty, judgment for the i)laintift' may be for the possession, or for the recovery of the possession, or for the value thereof, in case a delivery cannot be had, and also for damages for the detention thereof.^ K the plaintiff has already obtained possession, judgment is for the posses- sion of the property and for damages against the defend- ant for its detention. If he has not obtained possession, the judgment is for the recovery by him of the possession, with damages, «&c., or that he recover the value of the property, and damages, in case possession cannot be had. In the latter case he must take judgment in the alternative form prescribed, either for a return, or for the value of the property, in case a return cannot be had. He cannot, at his election, abandon the property and take a judgment for its value.'' But, should he do so, the defect in his judgment may be amended,^ and the appellate court will disregard it, unless excepted to in the court below.^ > Bidwell V. Astor Mutual Ins. Co., 16 * Code, § 215. N. Y., 263. * Emery v. Peo^e, 20 2^. Y., 62 ; Mar- « Porter v. Lent, 4 Duer, 671 ; 2 Abb., quat v. Marquat, 12 N. Y., 836. 115. » Code, § 277. » Woodv. Wood, 26 Barb., 356; 2 E. S., 454. ' Fitzhv/fh V. Wi'man, 9 N. Y., 559; Rockiuell v. Saunders, 19 Barb., 473; Van Neste V. Connover, 20 Barb., 547; Dolus v. Rv^h, 28 Barb., 157; Ingersoll v. Bast- •wick, 22 N. Y, 425. * Fitzhugh v. Wimans, supra. = Johnson v. CarnUy, ION. Y., 570. JUDGMENTS IS SPECIAX. CASES. 9 If the property lias been taken and delivered to the plaintiff, and the defendant claim a return, and he be entitled to judgment, judgment may be for a return of the property, or the value thereof in case a return cannot be had, and for damages for taking and withholding the same.^ The defendant, as well as the plaintiff, must take his judgment in the alternative under those circumstances, as he no longer possesses the right of electiug to take judgment for the value only.^ For, in such case, the Ijlaintiff may elect to return the property instead of pay- ing its value.^ On taking judgment the prevailing party must attend particularly to the finding of the value of the property, and also to the proper assessment of damages for the detention thereof, as these are to be included in the judg- ment. For in an action to recover the possession of per- sonal property, if the plaintiff' recover less than fifty dollars damages he can recover no more costs than damages, unless he also recover proI)ert3^ the value of which, with the damages, amounts to fifty dollars; or unless the pos- session of the property be adjudged to him, the value of which, with the damages, amounts to fifty dollars; and such value must be determined by the jury, court or referee, by whom the action was tried.* Where the complaint is dismissed for a defect in the evidence, the defendant will be entitled to judgment for a return of the goods without any evidence of his own title,^ and costs are to be allowed to the defendant unless the plaintiff is entitled thereto. tTudgments in actions for the recovery of real property. Judgment in ejectment must be for the recovery of the possession of the premises, according to the verdict of the jury, when such verdict has been had ; but if there be no verdict, as if by default, then it will be according to the description of the premises in the complaint, Avith costs to be taxed.*^ The plaintiff is also entitled to recover damages against the defendant for the rents and profits of the premises recovered, excepting when the action is brought • Code, § 277. ^ Dwight V. Em.-!, 9 N. T., 470; Seaman v. Lii/:e, 23 Barb., 240; Wilson v. Wlieder. 6 How., 49. '■> Ilann v. Yoiomjlovv, 27 Barb., 430. ■* McCurdy v. Broiun, 1 Duer, 101. * Code, § 304. snbd. 4. • 2 R. S., 308, § 33. II.— 2. 10 ADMINISTRATION OF CIVIL JUSTICE. for the recovery of dower.^ " The jndgment should contain an exact description of the premises and provide for the recovery thereof It is a proceeding, in substance, under the Eevised Statutes, and cannot be extended beyond such statutory provisions.' Should the rights of the plaintiff tt) the possession of the premises cease during the pendency of the action, he can take judgment only for his costs and damages and not for the possession.^ Wciste, actiojis in the nature of it. The formal action of waste is abolished by the Code.^ But that class of wrongs which, under the former practice, were remedied by that action, may still be pursued under the provisions of the statute without regard to the form of the action so far as the same are applicable.^ The jndgment in such action may be for damages, forfeiture of the estate of the party offending, and eviction from the premises." But judgment of forfeiture and eviction can be given in favor of the person entitled to the reversion against the tenant in possession, only when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate or unexpired term, or to have been done in malice.'^ When the judg- ment is to be for damages, eviction and forfeiture, all the necessary facts to sustain such judgment according to the provisions of the statute^ should be averred, proved and found.'* In such case the jury should designate the place alleged to be wasted and the amount of damage; and if the plaintiff fails to prove that the injury to his estate is equal to the value of the defendant's estate, he cannot have judgment to recover the place wasted and treble damages, for such an allegation in the complaint is not admitted by the default of the defendant.^ N'uisance. Judgment in actions in the nature of the former action of nuisance are likewise special, and may be for damages, or abatement of the nuisance, or for both.^" ' § 43. * § 450. ' Code, § 455; see Thompson v. Slier- ' Code, § 451. rard, 35 Barb., 593; 22 How., 155; * Code. § 450. 12 Abb., 427. ' Code,' § 452. ^ Lanq V. Wilbraham, 2 Diier, 171. = 2 R. S., 334, §§ 5, &c. ' Harder v. Harder, 26 Barb., 409. For practice in these cases, see, posi~ Action in, the nature of waste. "Code, § 454; see, _pos<, Action for nuisance. OF THE AMENDMENT OF JUDGMENTS. 11 Cori^oratlons. Where iu an action against a corporation in which it shall be adjudged that by neglect, abuse or surrender, it has forfeited its corporate rights, privileges and franchises, the judgment may be so rendered as to exclude it from using such corporate rights, privileges and franchises, and may dissolve the same.^ CHAPTER 11. OF THE AMENDMENT OF JUDGMENTS. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceed- ing to the facts proved.^ But such amendment can be ordered only by the court in which the action is com- menced or where it originated.^ Consequently the supreme court has no power to amend the record brought into it on an appeal from an inferior court.^ The application to amend should be made in the court below, and where the amendment has been made, the copy furnished the appel- late court may be amended to conform thereto.* Upon an appeal to the general term, the court, however, may treat the pleading as having been amended so as to con- form to the facts proved, in any respect in which such amendment should be allowed on application to the special term,^ and the same has also been done in the court of appeals.^ * Code, § 442. * Boiodoin v. Coleman, 3 Abb., 431 ; ' Code. ^ 173. Harrower v. Harth. 19 Barb., 331. ' Gouhl V. Gould. 19 Barb., 186. " Bate v. Graham, U N. Y., 237. * Luyster v. Sniffin, 3 How., 250. 12 ADMINISTRATION OF CIA^IL JUSTICE. To entertain an application of this kind the court must be satisfied that there has been some mistake or omission in the original proceedings.^ The court will not entertain a motion to correct a final decree regularly entered and enrolled unless by the consent of the i)arties. The only method by which that can be elfected is by bill of review.^ The amendments authorized by the Code' do not include judicial errors in rendering the judgment itself.* This extraordinary power vested in the discretion of the court to allow a pleading to be amended after judgment, by inserting new allegations material to the case, Avill only be allowed for the i)urpose of sustaining the judgment.' The object to be gained by allowing to the court the exer- cise, in its discretion, of this power, is the furtherance of justice; consequently, when that end will be likely to fail unless this power is exercised, the court will prudently exercise it. Thus, when the complaint was for goods sold, the agistment of cattle, and for use and occupation ; and on trial before the referee, he found as a fact, that the defendant had agreed to pay the plaintitf on settlement, one hundred dollars ; and, basing his decision on that agreement, he found for the i)laintiff $100; on appeal from the judgment on the referee's report, advantage was sought to be taken of the variance between the i)leadings and the proof. To obviate this difficulty the plaintiff moved, at special term, for leav-e to amend his complaint so as to conform it to the proof. He was permitted to amend on terms of paying defendant's costs, and the costs of the motion.*^ The jury cannot properly give damages for a larger amount than is claimed in the complaint ; and where they do so the clerk should enter it for only the amount thus churned. The practice usually is for the plaintiff" to remit the excess." But the plaintitf' may have leave to amend his complaint by increasing his damages, where justice requires that it should be allowed. It has been said that this leave will be granted only on condition of submitting •32 Barb., 534; 20 How., 225; 11 ' § HS. Abb., 419; 21 How., 360. * kotailing v. Marsh, 14 Abb., 161. ^ Picdbia v. EcLvxirda, 4 How., 113. ^ See Field V. Eawkshurst, 9 How., 75; Egert v. Wicker, 10 How., 193; Engless V. Furniss, 3 Abb.. 82 ; Gasper v. Adams, 24 Barb., 288. * Prindk v. Aldrich, 13 How., 466. ' 5 Hill, 16; 4 M. & S., 94; Corning v. Corning, 1 Code Rep. [N. S.l 351; 6 N. Y., 97. OF THE AMENDMENT OF JUDGMENTS. 13 to a new trial.^ There may be eases, however, where justice would require that the pkiiutilf should have leave to euhirge his damages without such terms ; as iu case of protracted litigatiou ou the part of the defendant, where by reason of the delay occasioned, the interest added to the principal would cause the sum to exceed the amount named in the complaint. Perhaps there are no cases in the books authorizing- the exercise of so large a discretion ; but the 'f furtherance of justice " aimed at bj' the Code would, nevertheless, require it. Such amendments of proceedings prior to judgment for the purpose of sustaining the judgment are not unfrequently allowed to be made nunc pro tunc for the purpose of curing mere irregularities.^ A technical defect in the summons may be amended f so in respect to proof of service ;* so, likewise, a technical defect in any of the proceedings, as an omission to enter a formal rule carrying into effect the decision of the courts f so, also, the docket of a judgment may be amended.^ The court will sometimes allow the phnntiff to amend so as to cure an irregularity which would otherwise have been fatal to his judgment, when the defendant has been guilty of laches in applying to vacate such judgment.^ Jurisdictional defects cannot thus be amended ; such as an imperfect service by publication and the like.*^ When the jurisdiction of the court is strictly statutory, it can be acquired only iu the manner prescribed by statute. Thus, where the affidavit, upon which an order of service of summons by publication was granted, did not show that the residence of the defendant was unknown and could not, with reasonable diligence, be ascertained, the court did not acquire jurisdiction to proceed in respect to such defendant.^ Where the court has not obtained jurisdic- tion, its proceedings will be void, and no amendments can remedy the defect. * Bowman v. Earle, 3 Duer, 691. ' Crofjhan v. Livingston, 17 N. Y., 218; Wright v. Aldm, 3 How., 313; Van ■Wycfi-e V. Hardy. 20 How., 222; Lewis v. Jones, 13 Abb., 427. ^ Sluyter V. Smilh, 2 Bosw., Q13. ' Wlntehead v. Pecare. 9 How., 35; * 17 How., 477 ; 9 Abb.. 61. Dart v. McAdam, 27 Barb., 187. ° Scars V. Burnham. 17 X. Y., 445. ^ Jones V. The United Slates Slate Co., 16 How., 129. ' Kendall V. Washburn, 14 How., 380: diok v. Farrm. 34 Barb., 95; 21 How., 286; 12 Abb., 359; FiskY. Anderson, 33 Barb., 71; 12 Abb., 8. " Cook V. Far r en, supra. 14 AD^rCSriSTEATION OF CIVIL JUSTICE. It is to be observed that tbese amendments can be made only upon the order of the court, which should specify the particular amendment to be made, and which should also be appended to the judgment record. There should be no erasures in the record. The proper method of making- such amend luent is, by including the parts stricken out, by brackets or lines drawn around them, together with an entry in the margin referring to the order. If the party desire it, the judgment may be entered at length as amended.^ W/iefi judgments may he set aside. When there has been any substantial irregularity in the proceedings by which judgment has been obtained, it will lay the foundation for an order to vacate the same. Thus, where there has been an insufficient service of the summons, as putting the defendant in the unknown pos- session thereof; so as to conceal from him the knowledge which it is the purpose of the law to give him by the service of the summons;^ or, when the service, by mis- take, was made upon the wrong person, although the summons afterwards came to the possession of the defend- ant;^ or where, under the act "to facilitate the services of process in certain cases,"* service is made at the residence of the defendant in New York, while the plaintiff knew the defendant was absent in California,^ because the ijlain- tift" is not entitled to substituted service under that act, when the papers show where the absent defendant can be found.'' So, also, when the judgment was based upon an amended complaint served upon the person of the defendant after he had appeared by attorney, rather than upon his attor- ney, the judgment was vacated upon motion ;" or where judgment was taken without service of a copy of the complaint after it had been demanded.^ So when the defendant is entitled to notice of assess- ment of damages, and the judgment is entered up without such notice, it will be irregular f so, likewise, on default, if judgment be taken for relief not demanded by the com- ' Sluyter v. Smith 2 Bosw., 678. ° Foot v. Harris, 2 Abb., 454. ^ See Bulkley v. Bulkley, 6 Abb., 307. ' 7 Abb., 325. * 16 How., 144. » 8 Abb., 418. * L. 1853, ch. 511. * Quinn v. Tillon, 2 Duer, 648. * Jones V. Derby, 1 Abb., 458. or THE AMENDMENT OF JUDGMENTS. 15 plaint, or in excess of tbat demanded;^ so, likewise, a refer- ence to ascertain damages, where tbey should be assessed by a sheriff's jury, is an irregularity which will vitiate the judgment/ When an attorney who is insolvent has appeared for a party without authority, and his insolvency is made to appear in the moving papers, the judgment may be opened and the party be let in to defend.^ Although it might be otherwise if the attorney were responsible.' It has been held, however, that the court will not compel the party to seek his remedy against the attorney in such case.* If, pending a stay of proceedings binding upon the parties, a judgment be entered, it will be irreguhir and may be set aside.^ It will be the same if the judgment be entered Avith knowledge that a stay of proceedings had been granted, altliough it was done before the actual service of the order.'' Tlie rule would seem to be that when there is a substan- tial irregularity in any part of the proceedings to obtain the judgment, by which the defendant might have been deprived of any of his rights in making his defense, it lays the foundation for a motion to vacate a judgment based thereon. Where the irregularity complained of is merely technical in its character, possessing no real merit, involving no question affecting the jurisdiction of the court, no surprise of, or unfairness toward, the party complaining, the judg- ment will not be disturbed." Thus, when the defendant's attorney sends a person to serve an answer upon the attorney of the plaintiff, which answer is rejected because not served in season, and is sent back, and the same answer is sent a second time, and not again sent back, it is a mere technical objection that the plaintiff's attorney omitted to send back the answer a second time ; and the judgment entered as for want of an answer will not be disturbed on such objection.^ The court is bound to disre- gard, or order amended, any defect in the entry of judg- ment, which does not affect the substantial rights of the ' 20 How.. 484. ° 12 Abb., 187. * 8 How.. 346. ' 13 How., 405: 20 id., 215; 13 Abb., ' See 2 Hilt.. 236; 9 How., 442. 427. •31 Barb., 134. « 6 Duer, 689. ' 10 Abb., 448; 12 id., 388. 16 ADMINISTRATION OF CIVIL JUSTICE. adverse party.' So, when the title of the party to have .iudii'ineiit is luiqiiestionable, it will not be vacated even ilioiiiih it has been somewhat irregularly entered.^ The application to vacate a judgment for irregularity in the proceetlings is made hj motion on service of the ordi- nary notice that such application will be made, which notice must specify distinctly the irregularities upon which the motion for relief is based.^ The affidavit accompanying the motion must clearly establish the irregularities complained of, and should embrace all the grounds upon which the party relies for setting aside the judgment; as the moving i)arty is bound to bring- forward all his objections in the first instance, and cannot renew the motion upon new grounds known to him at the time of making his first motion.* This application should be made at special term, even when the judgment has been entered at the general term, if the point in respect to which the irregularity was involved was not before the general term.^ But when the irregularity complained of has resiject to the action and judgment of the general term, then the motion should be made at the general term.'^ The motion should be made immediately on the discov- ery of the irregularity complained of; and any unreason- able delay after such discovery might b6 a caase for refusing the order to vacate, and allowing the ft^Tversary to amend his proceedings,'^ especially is this tfe^ case when the irregularity is in the preliminary proceedings." In every l^se the motion must be made within one year from the entry of tJlae judgment.^ This motion can only be made by a party to the record.^ When an execution has been issued upon the judgment and put into the hands of the sheriff previously to the granting of the order, it would be proper for the prevail- ing party to serve upon such sheriff a certified copy of the order vacating such judgment. So, also, when transcripts of such judgment have been sent to different counties for the inirpose of obtaining liens on property, special instruc- ' 9 How.. 35. = 11 How., 91: 16 id., 129. ^ 8 Abb.. 49. ' See 4 E. D. Smith. 428. ^ Rule 39; 22 How.. 477. « Code. § 174; 8 How., 312; 2 R. S., * Fattiton v. Bacon, 21 How,, 478; 12 359. § 2; 2 N. Y. S. at L., 371. Abb.. 142. . » 9 N. Y., 73. ^9 How., 573; 1 Abb., 130. OF THE AMEilDMENT OF JUDGMEXTS. 17 tions to the clerks of such counties may be iucluded in the order, directing the clerks to make the proper entries in the judgment books, for the purpose of discharging the liens thus attaching to real property. When the judgment has been rendered in a case where the service of process was by pubUcation, the relief to be granted is a matter of special provision, as provided for by the Code,^ In such case the application must be made within one year after notice of the judgment, and within seven years after its rendition. The application under these provisions is upon motion, notice and affidavit, showing upon its face the date of the entry of judgment, and the nature of the action, that the notice of the judg- ment had not been received by the applicant until within one year previous to such application; together with the date and manner of receiving such notice ; showing, also, good cause why such applicant should be allowed to defend, and also the nature of the defense, and it would be advisable to have prepared and submit with the moving papers, the answer proposed to be tiled. This application is addressed to the discretion of the court, and will be granted upon such terms as may be deemed just, allowing the judgment to stand as security, when the same is deemed to be reasonable.^ Of the satisfaction of judgment^ its discharges. The docket of a judgment rendered in a court of record may be canceled and discharged by the clerk of the court, upon filing with him an acknowledgment of satisfaction, signed by the party in whose favor it was obtained, or by his proper representati^-e.^ But such acknowledg- ment must be made before a judge of the court in which the judgment was rendered, or before some judge of the county courts, or commissioner of deeds, who must certify that the party making the acknowledgment is known to the officer, or was made known by competent proof.* Or the same acknowledgment may be made by the attorney of record of the party in whose favor the same was rendered within two years after the filing of the record of such judgment, in the same manner and with » Code, § 135. * 2 R. S., 362, § 22; 2 N. Y. S. at L., « 12 How., 445. 375. * Idem., § 23. II.— 3 18 ADMimSTEATIOK OF CIVIL JUSTICE. the like effect as if made by such party himself. But such satisfaction is not to be conclusive in respect to any person having notice of the revocation of the authority of such attorney, prior to any payment on such judgment, or the purchase of any property bound by it.^ The judg- ment is also satisfied by the satisfaction of an execution issued thereon; the judgment will be satisfied to the same extent as the execution issued thereon.^ But if the sheriff fails to execute the process according to the due course of the law, and improperly returns the execution as satisfied, it will be no satisfaction of the judgment ; as, where the sheriff, instead of making a levy, took the defendant's note and receipted it as a payment in full, and returned the execution satisfied, it was held that the sheriff had no power to discharge an execution unless he proceeded to execute it in due course of law.^ It was formerly held that a levy on personal property suflicient to satisfy the execution operated, -per se, as an extinguishment of the judgment on which the execution was issued.* But the more modern doctrine seems to be that such a levy is only a satisfaction siib moclo, and does not amount, necessarily, to a satisfaction ^?er se.^ That where the levy fails to produce satisfaction, in fact, with- out any fault of the plaintiff, he may still proceed to obtain execution of his judgment;^ as where the levy was not proceeded with on account of doubts existing as to the right of property, raised by the defendant himself." But a levy upon sufficient personal in'operty to satisf}^ the execution, voluntarily relinquished by the plaintiff, would be an extinguishment of the judgment as to a subsequent bona fide purchaser, for a valuable consideration, of lands bound by the judgment.^ A levy upon land is not, in any sense, a satisfaction of the judgment. But if the plaintiff purchases land, under his execution, for an amount sufiicient to satisfy it, his judgment is extinguished, even though, by reason of a defect in the title, he is still a creditor of the defendant.^ Though a creditor, he is not a judgment creditor, &c. ' Idem., § 24. '4 Hill, 621 ; 23 Wend., 490. ' Idem., § 26. ^ 23 Wend., 490. ' 1 Cow., 46. ' 8 Cow., 192. * 2 Ld. Rayra., 1072, 1 Salk., 322; 4 ^3 How., 262; 12 Johns., 207; 4 Cow., Mass., 403 ; 12 John., 207 ; 4 Cow., 417 ; 7 id., 21. 418; 7 id., 20. " 1 Barb., 238; 3 Wend., 637. OF THE AMENDMENT OF JUDGMENTS. 19 An action brought upon a judgment, and a judgment recovered therein, is not a satisfaction of the original judgment, when both judgments are equal in degree.^ But it is otherwise when a judgment thus recovered, is set up by way of set-otf, in an action brought by the original debtor, aud the jury find in favor of such debtor? So, where there are two suits for the same cause of action and both joroceed to judgment, a satisfaction of either judgment is a satisfaction of both.^ Payment also satisfies the judgment, so that it cannot be kept alive to cover new demands/ But a judgment against the maker and indorser of a note under the act authorizing such parties to be joined is not extinguished by being paid and assigned to the indorser. For the pur- pose of preserving the rights of the parties it is to be deemed a several judgment.^ The taking of the defendant in execution is, to a certain extent, a satisfaction of the judgment.'' Hence a judg- ment creditor who has taken his debtor in execution cannot afterwards be a petitioning creditor under the insolvent act.'' So, when the plaintiff, having the defendant in execution, consents to his discharge, it is equivalent to a release or discharge of the judgment f so, also, a volun- tary discharge of the defendant from the jail liberties, discharges the debt although not so intended.^ An assent or agreement subsequent to the escai)e that the debtor may remain at large has not such an effect.^" But such taking of a defendant in execution is not an actual discharge or satisfaction of the judgment so as to bar the plaintiff from taking out execution against other persons liable for the same debt or damages." But where the plaintiff consents to discharge one of several defend- ants taken on a joint capias ad satisfaciendum, he cannot afterwards retake him or any of the other defendants.^^ The discharge of one of two defendants, taken on a joint writ, under the insolvent debtors' act, does not operate as a discharge to the other,'^ for it is not by the consent of the plaintiff, &c. ' 1 Cow., 118. '' 1 Johns. Ch., 430. ^ 1 Cow.. 208. * 11 John., 476; 4 Burr, 2482. ^ 9 Johns.. 221; 4 id., 469. » 3 Wend., 184; 5 Johns., 363. * 6 F. Y., 74". '" 16 John.s., 181. * 3 Barb., 12; 21 id., 531; 14 id., 481; " 5 Taunt, 614. 1 1 How., 209. " 6 Burn. & East., 525. * Tidd Pr., 1069. " 5 East., 147. 20 ADMINISTKATION OP CIYIL JUSTICE. CHAPTER III. THE EXECUTION. A jndgmeTit of the court is to be executed either by a person acting as an officer of the court, under its warrant or process, or by attachment. The Code provides that where a judgment requires the payment of money or the delivery of real or personal property, it may be enforced in those respects by execution as provided for therein; and where it requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given, or the person or ofiicer who is required thereby by law to obey the same and his obedience thereto enforced. And if he refuse, he may be punished by the court as for a contempt.^ There are three kinds of executions: one against the property of the judgment debtor; another against his person ; and the third for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same. They are the processes of the court, though not under seal or subscribed by any of its oflicers.^ When it may he issiced. The party iu whose favor judgment has been heretofore or shall hereafter be given, may, at any time within five years after the entry of judgment, proceed to enforce the same by execution in the njanner prescribed by the Code.^ But an execution upon a judgment cannot be issued upon application on the part of a deceased plaintiff; the pro- visions of sections 283 and 284 are held to be applicable only when the parties are living.'* The judgment roll must be filed before the issuing of the execution, or it will be set aside, on motion, for irregu- ' Code. § 285. * Thruston v. King. 1 Abb., 126 ; Wheeler * Code, I 286, V. Dakin, 12 Hov?., 537. • Code, § 283. THE EXECUTION. 21 larity,^ altliougb if issued previously on the same day, and the moving party has not been injured thereby, it will not be deemed irregular.^ The execution may, in fact, be delivered to the sheriff before judgment perfected, with instructions to indorse it as received at a time after the filing of the record, which, if obeyed, will be regular.^ An alias execution may be issued when the original one has been ineffectual for collecting the amount of the judg- ment. Such further executions may be issued as often as necessary until the judgment is satisfied. The mere issuing of an execution, or even a levy thereof, when the property has not been removed or sold, is not a satisfaction of the judgment,* and such execution may be issued at any time after five years from tbe rendition of the judgment, pro- vided an original execution has been issued within five years and has been returned unsatisfied. So where the debtor has been taken in execution, and has escaped, a new execution against his body may be issued, or an execution against his property, in the same manner as if his body had never been taken.^ So likewise where the judgment debtor dies in execution a new one may be issued;^ but it must not be levied upon any real estate sold by the deceased in good faith after the rendi- tion of the judgment against him,^ nor upon any real estate actually sold under any other prior or subsequent judgment against the debtor dying in execution.^ A fur- ther execution may also be issued when a sale of real estate under a prior one has been set aside and the pur- chaser has been evicted and the purchase-money recovered back.^ The right to issue an execution upon a judgment may be temporarily suspended by the death of the party after judgment,'" so also where a default has been opened and the judgment has been allowed to stand as security until the final disposition of the matter." 'No execution against the body can be issued while there * Barrie v. Dana, 20 Johns., 307; and ' Idem., § 29. see 5 Wend., 109. « Idem., § 30. » 3 Cow., 19; 4 Denio, 41. ' 2 R. S., 375, § 69; 2 N. Y. S. at L., * Walters V. S^A;e5, 22 Wend., 566. 389; see also 19 Wend., 80; 5 * Peek V. Tiffany, 2 N. Y., 451. Cow., 280. " 2 R. S., 364, § 8; 2 N. Y. S. at L., " 2 R. S., 368, § 27; 2 N. Y. S. at L., 377; see also §§ 6, 7. 381. * 2 R. a, 368, § 28; 2 N. Y. S. at L, " 9 Abb., 416. 38L 22 ADlVrmiSTEATION OF CIVIL JUSTICE. is one against liis property unreturned ; nor can an execu- tion against tlie property of a party be issued while there is one against his body unreturned, unless by order of the court.^ So where the body of a party has been taken on execution issued for that puri)ose, no other execution can be issued against him or his property, except in cases specially provided by law.^ To xohat county to issue. AYhen the execution is against the property of the judg- ment debtor, it may be issued to the sheriff of any county where judgment is docketed. When it requires the de- livery of real or personal property, it must be issued to the sheriff of the county where the property or some part thereof is situated. And executions may be issued at the same time to different counties,^ and when the execution is issued upon a judgment in an action in which the de- fendant might have been arrested, as provided in sections 179 and 181 of the Code, if it be against the person of the judgment debtor, it may be issued to any county within the jurisdiction of the court, after the return of an execu- tion against the debtor's property unsatisfied in whole or in part,* and such execution thus returned unsatisfied must have been issued to the county where the defendant resides, or where he is taken in execution.^ The Code has not required the execution to be issued to the county where the defendant resides f it will be suflicient if it be issued to the county where he is arrested, but it should be issued to the one or the other of such counties. The object of requiring the x)laintiff first to issue an execution against the property of the defendant is to pre- vent him from taking an execution against the body of a defendant who might have property enough to pay the debt; and, therefore, when several defendants in several counties were held to bail, at the suit of the plaintiff, and he obtained judgment against them and issued a ji. fa. against all the defendants to the sheriff of the county in which one only of them was subsequently arrested, and it was returned nulla hona; and thereupon the plaintiff " 2 R. S., 364, § 6; 2 N. Y. S. at L., * Code, § 288. 377. ^ 2 R. S., 363, § 4; 18 Johns., 305. « Idem., § 7. » 3 Abb., 229. » Code, § 287. THE EXECUTIOJf. 23 issued an execution against the defendants, directed to the sheriff of a different county into which no fieri facias had been issued, and one of the defendants was there arrested, it was held to be irregular, not being in accordance with the statute, and the defendant, thus arrested, was dis- charged.^ WTioi necessary to apply for leave to issue. The Code, according to the provisions of which execu- tions for the enforcement of judgments are to be issued, provides that after the lai)se of five years from the entry of judgment an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or a non-resident, or cannot be found to make such service, in which case such service may be made by publication, or in such manner as the court shall direct. And that such leave shall not be given unless it be established by the oath of the party, or other satisfactory proof, that the judgment, or some part thereof, remains unsatisfied and due. Such leave, however, is not necessary when execution has been issued on such judgment within the five years and returned unsatisfied in whole or in part.^ It further provides that where the judgment on which execution is sought to be issued had been rendered in a coiu-t of a justice of the peace, or in a justices' or other inferior court in a city, and docketed in the ofiice of the clerk of the county, application for leave to issue an execution must be to the county court of the county where the judgment was rendered, or, in the city and county of Kew York, to the court of common pleas of that city or county.^ Where application for leave to issue execution on a judgment after the lapse of five years from its rendition is made, and it is made to appear to the court that the judgment debtor holds a judgment against the party making the application greater in amount than that on which the application is based, the court should not grant the leave but should put the party upon his action that the debtor may avail himself of his equitable offset.* ■ 18 Johns., 305. " Code, § 284, note. But if an execution be issued without leave after the lapse of five years, it is not void but only voidable. Bank of Genesee v. Spencer, 18 N. Y., 150; see al.so 21 Barb., 311. * Idem. ♦ Belts v. Garr, 1 Hilt., 411. 24 ADMINISTRATION OF CIVIL JUSTICE. But on such application for leave to issue execution, it is no objection that the plaintiff has recovered a new judg- ment therein which has not been satisfied.^ The application for leave to issue execution under section 284 of the Code should not be made until the expiration of live years from the entry of judgment.^ Where property had been sold on a void execution, and the i>laiutiif, three years after the rendition of the judgment, applied and obtained leave to issue a new one, and Ave years later issued it ; on motion to set the new execution aside, it was held to be irregular on the ground that the leave granted was not such as is contemplated by section 284 of the Code.^ Upon such application the court cannot go behind the judgment or inquire into its validitj'.^ So where an execution is to be issued against an execu- tor or administrator before a final settlement of his accounts, an order must first be obtained from the surrogate who appointed him,* and where the testator or intestate has deceased after the rendition of judgment, the executor or administrator must be cited to show cause why the judg- ment should not be enforced against the estate of the judgment debtor in his or their hands,^ and no execution can be issued until a new judgment is entered upon such citation.^ But in cases where no executor or administrator have been appointed, the statute of 1850'' provides that notwithstanding the death of a party after judgment, execution thereon against the property, lands, tenements, real estate or chattels real, upon which such judgment shall be a lien, either at law or in equity, may be issued and executed in the same manner and with the same effect as if he were still living, except that such execution can- not be issued within a year after the death of the defend- ant, nor in any case, unless upon perujission granted by the surrogate of the county having jurisdiction to grant administration or letters testamentary on the estate of the deceased judgment debtor.' Under these provisions the creditor is not required to wait until letters of administra- tion are granted on the estate of the deceased debtor as Small V. Wheaton, 2 Abb., 316; S. * 2 R. S., 88, § 32; 2 N. T. S. at L., C, 4 E. D. Smith, 427. 90, § 32; see also Mills v. Thursby, Field V. Paulding, 1 Hilt., 187 ; S. C, 2 Abb., 432, 437. 3 Abb., 130. » Code, § 376. ' Lee V. Watkins, 3 Abb., 243 ; S. C, ^ Bellinger v. Ford, 21 Barb., 311. 13 How., 178. "• L. 1850, ch. 295. THE EXECUTION". 25 under the Code,^ but may proceed, after the lapse of a year from the death of the judgnieut debtor, upon the permis- sion of the proper surrogate. In proceeding under the provisions of the act of 1850. beside the permission of the surrogate, the plaintiff should also make application to the court for leave to issue execution under that act, whether five years from the rendition of the judgment have elapsed or not. At least such is the opinion of the supreme court as expressed by Justice James.^ He there held that the death of the defendant, having suspended the plaintilF's right to have execution without application to the coiu-t after the lapse of one year, this act puts the plaintiff in a position to ask the court to declare the suspension of that right at an end, and that execution might issue. He further held that such application should be upon affidavit setting forth all the facts, together with the surrogate's peiTnission. That on presenting such papers to the court an order should be made for all persons interested in the estate to show cause, at special term, why execution on such judgment should not issue, and also directing the manner, and on whom, such order should be served.^ If upon any motion or application for execution questions of fact arise as to the rights of persons not parties to the record, a reference may be made under the provisions of the Code,* in which the rights of all parties interested can be ascertained and reported upon. So also it is irregular to issue an execution upon a judg- ment or decree which is i^rima facie no longer in existence as a subsisting debt against a bankrupt or his property, without previously applying to the court upon notice to the bankrupt.^ Nor can an execution be issued upon a judgment in rem without application to the proper tribunal for authority to do so, unless such directions are contained in the judgment itself.^ Its form and requisites. An execution is a process of the court issued in the name of the people, tested in the name of a justice of the ' § 376. " Boyd v. Vanderkemp, 1 Barb. Ch., » Alden v. Clark, 11 How,, 209. 273; Alcott v. Avenj, Id., 847. » See Code, § 284; 11 How., 214. " Chapman v. Ltnion, 11 How., 235. * § 271 ; opinion of James, J., in Alden V. Clark, 11 How., 215. II.— 4. 26 ADMINISTRATION OF CIVIL JUSTICE. court out of which the process is issued, and is subscribed by the party issuing it or by his attorney. Preliminary to the issuing of an execution a judgment must be en- tered, and it must be docketed in the county to which the execution is issued.^ It has been supposed that an execu- tion against personal property might be issued to the sheriff of a county in which the judgment had not been docketed ;^ but the better and surer way is, to docket the judgment in each county to which it is proposed to issue an execution.^ For under the Code the execution against the property of the judgment debtor may be issued to the sheriff of any county where the judgment is docketed.* A judgment originally entered by a justice of the peace may become a judgment of the county court by being docketed in the office of the clerk of the county where the judgment was rendered; and from the time of the docket- ing of the same, it becomes a judgment of the county court,^ which likewise may be docketed in any other county of the state on the filing of a certified transcript of such judgment in such other county.^ When the execution is issued upon such judgment, it should be issued and sub- scribed by the clerk of the county. The execution may be issued by an attorney other than the one by whom the judgment was recovered, and will not be set aside for irregularity on that ground ; and thus though the attorney issuing the execution had not been substituted for the original one.'' JParticuIar form of the execution. The execution must be directed to the sheriff of the county, or to the coroner where the sheriff is a party or interested therein, subscribed by the party issuing it, or his attorney, and must intelligibly refer to the judgment, stating the court, the county where the judgment roll or transcript is filed, the names of the parties, the amount of the judgment if it be money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued, requiring the officer substantially : 1. Where it is against the property of the judgment debtor, > Code, § 28Y. * Code, § 281. =■ 1 C. R., 123. 6 Code, § 63. * See Sioutenburgh v. Vandenburgh, 7 ® CboA; v. -DJcH«5cm, 1 Duer, 679 [687]; How., 229, 233; and De Agreda v. citing Graham's Pr., 356; Code, § Mantel, 1 Abb., 130. 289. THE EXECUTION. 27 to satisfy the judgment out of the personal property of such debtor, and if sufficient personal property cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter ; or, 2. If it be against real or personal property in the hands of personal representatives, hebs, devisees, legatees, tenants of real property or trustees, to satisfy the judgment out of such property; or, 3. If it be against the person of the judgment debtor, to arrest such debtor and commit him. to the jail of the county until he shall pay the judgment or be discharged according to law ; or, 4. If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs, damages or rents and profits recovered by the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein. If a delivery thereof cannot be had, and if sufficient per- sonal property cannot be found, then out of the real property belonging to the party on the day when the judgment was docketed or at any time thereafter; and in that respect the execution is to be deemed to be against property.^ If the party desire to issue an execution against an executor, &c., he must first obtain leave of the surro- gate. For the statute provides that "no execution shall issue upon a judgment against an executor or administra- tor until an account of his administration shall have been rendered and settled, or unless on an order of the surrogate who appointed him."'^ In an execution against executors, the directions to the sheriff should be to collect the judgment out of the per- sonal property of the testator — naming him — in the hands of the defendants as his executors. If the defendants be merely named as executors, the sheriff might levy on their individual property unless the directions were specific.^ The Code is imperative that the execution shall require the officer to satisfy the judgment out of the property, which, according to the judgment, is liable for its payment.* ' Code, § 289. * 10 How., 217. " 2 II. S., 88, § .32; 2 N. Y. S. at L., 90. * § 289, subd. 2. § 32 ; Mills v. Thursby, 2 Abb., 432 [437]. 28 ADMINISTRATION OF CIVIL JUSTICE. If, at the time of issuing the execution, the defendant's accounts Iiave been rendered and settled, no orders of the surrogate granting leave to issue the same will be neces- sary ;"and the execution in such case will issue for only the sum which shall appear on the settlement to have been a just proportion of the assets applicable to the judgment.^ The order of the surrogate is obtained on the application of the creditor, who has obtained a judgment against the executor or administrator, for an order against such execu- tor or administrator, to show cause why an execution on such judgment should not be issued.^ On such application the surrogate issues a citation requiring the executor, &c., complained of, at a certain time therein named, to appear and account before him. And if upon such accounting there appear to be assets in his hands applicable to the payment, in whole or in part, of the judgment so obtained, the surrogate must make the order that execution be issued for the amount so applicable.^ "If the whole sum for which a judgment may have been obtained shall not be collected on the execution so di- rected to be issued, and assets shall thereafter come into the hands of such executor or administrator, the surrogate shall make a further order for issuing execution upon the application of the creditor, his personal representatives or assignees, and shall proceed in the same manner from time to time whenever assets shall come to the hands of the executor or administrators until such judgment be satis- fied."* But execution is not to issue against the body, nor against the proper goods and chattels, lands and tene- ments of any executor, administrator, heir, devisee or legatee, except in cases specially provided by law.^ Where the judgment is against the testator or intestate who has since died, his personal representatives may be summoned at any time within one year after their appoint- ment, to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively.^ Such summons must be subscribed » 2 R. S., 88, § 32; 2 N. Y. S. at L., 120, § 20; see also further provi- so, § 32. sions in S3 21, 22, &c. « 2 R. S..- 116, § 19 ; 2 N. T. S. at L., * Idem, § 22. 120, § 19. 6 2 R. g": 363 § 3; 2 N. Y. S. at L., 2 R.S., 116, §20; 2 N. Y. S. at L., 376. * Code, § 376. THE EXECUTIOIT. 29 by the judgment creditor, his representative or attorney, and must describe the judgment and require the persons summoned to show cause within twenty days after the service thereof, and must be served in the same manner as the original summons.^ The summons nnist be accom- panied by the affidavit of the i)erson subscribing it, stating that the judgment has not been satisfied,to his linowledge or information and belief, and specify the amount due thereon.^ The party summoned may appear and answer and defend by setting up any new defense which may have arisen subsequent to the judgment; or he may deny the judg- ment, and, in certain cases,^ he may make the same defense as he might have made to the original action, except the statute of limitations.^ The subsequent pleading and proceedings are the same as in action ; the issue is to be tried and judgment is to be given in the same manner, Avhich judgment is enforced by execution in the same man- ner, ami, if necessary, the application of the property charged to the i)ayment of the judgment, may be compelled by attachment.* The answers and replies in these x>ro- ceedings are to be verified.^ These are the steps necessary to be taken before an execution can be issued to enforce the collection of a judgment against the estate of one who has died after the rendition of judgment against him; and the proceeding- is very analagous to the former proceeding by scire facias. To tchom directed. The execution must be directed to the sheriff of the county into which it is issued; and if more than one exe- cution is issued at the same time, each must be directed to the sheriff* of the particular county where it is to be executed.^ If the sheriff in any county to which an execution is issued be a party, or be interested therein, the execution should be directed to the coroner of the county; and if there are several coroners in the same county, then to the coroner of the particular district in which it is to be executed.''' And in case both the sheriff' and coroner be interested or parties, then it will be necessary to obtain » Code, § 377. ♦ Code, § 380. 'Code, §378. » Code, § 381. » Code, § 379. • Code, g 287. 30 ADMmiSTRATIOK OF CIVIL JUSTICE. au appointment by the court or judge, of some disinterested person therein, by special order, who shall be authorized to execute the same.^ The statute provides^ that in all cases where a judgment shall be obtained in any court against the sheriff of any county, instead of directing the execution thereon to the coroner of the county, it may be directed and delivered to any person except the party in interest in the suit, who shall be designated by the court in term time by an order to be entered in the minutes, or by a judge thereof in vacation, by an order to be indorsed on such execution ; and that the person so designated and receiving such exe- cution to execute the same, shall, in respect thereto, be deemed a coroner of the county, &c.^ The Code provides that where the execution requires the delivery of real or personal property, it must be issued to the sheriff of the county where the property, or some part thereof, is situated,^ and that it must be directed to the coroner where the sheriff is a party or interested ;* so that perhaps it may be questionable whether, under the Code, the practice under the statute of procuring the appointment of a disinterested person to execute an exe- cution in such case against the sheriff is not superseded, unless by the term coroner, the Code is supposed to include persons so appointed to execute the process of the court. Mcecution against attached property. Where an attachment against a foreign corporation is levied, and an execution be directed to issue against such property, it must be directed to the sheriff who levied the attachment, though he be out of office.^ It is apparent from the several provisions on this subject^ that the pro- perty attached, both real and personal, is to be held under the attachment by the oflBcer from the time of the seizure imtil the rendition of the judgment, in order that it maj'" be applied in satisfaction of the debt ; and that the right thus to apply relates back to the seizure. The proceeding to judgment is a mode of liquidating the demand of the attaching creditor with a view to such application, instead * 2 R. S., 364, §§ 11, 12; 2 X. T. S. at ' American Exchange Bank v. Morris L., 377. Canal Co., 6 Hill, 362. ^ Idem, § 12. » 2 R. S., 460, §§ 21, 22, 15; 2 N. Y. * Code, § 287. S. at L., 480. * § 289. THE EXECUTION. 31 of appointing trustees for that purpose, as in tlie case of absent or absconding debtors. Tlie sheriff making the seizure is the one who should complete the proceedings. The property is in his custody, and he is to safely keep it to answer any judgment which may be obtained in the suit.^ Directio'ns to he indorsed thereon. Attention should be given to making the proper indorse- ments upon the execution. Ordinarily it is suflScient to indorse on the back thereof the title of the cause, and the name and address of the attorney issuing the same, or that of the party acting in person, directing the sheriff to levy the same, stating the amount called for, together with interest, and also the amount of his fees and expenses. K the execution be against executors or administrators as such, then a special direction must be indorsed, directing the sheriff that he collect the judgment out of the personal property of the testator or intestate — naming him — in the hands of the defendants as his executors.^ So where the execution is issued on a decree against heirs and devisees among whom are infants, the attorney must indorse thereon the names of the defendants who are infants, and direct the sheriff not to execute the same against such infants until the expiration of one year after the rendition of such decree.^ In an action on a bond with a penalty, though the judg- ment is for the penalty, the execution is only for damages and costs.* Thus in an action on the penal bond to the sheriff for the jail liberties, though the judgment is for the whole penalty, execution cannot issue for more than the original debt with interest and costs.^ So also in an action on a money bond conditioned for the payment of money by installments, judgment should be entered for the full penalty of the bond and for costs of suit, and execution be issued with directions indorsed to levy the installment due ; and thus on, from time to time, as the installments become due.^ ' 6 Hill, 367, Per Nelson. J. ; see also McKay v. Harrovjer, 27 Barb., 463 ; Code, eg 232, 237; 2 R. S., 438, § 69, subd. 5; 2 N. Y. S. at L., 457. '"" Mills V. Thursby, 2 Abb., 432; also = 2 R. S., 455, §§ 54, 55 ; 2 N. T. S. at 10 How., 217. L., 475; see also 2 R. S., 368, &c. * 1 R. L., 349; Hodges v. Sufelt, 2 Johns. Cases, 406; and Claverly v. Nichols, 4 Johns., 189; also 6 Johns., 2S3: 12 Johns., 350. ' Sprague v. Seymour, 15 Johns., 474. • Harmon v. Hedrick, 3 Barb., 192; Wood v. Wood, 3 Wend., 454; and also 17 Wend., 331. 32 ADMimSTRATION OF CIVIL JUSTICE. So also where a judgment by confession has been en- tered without action for money to become due, or to secure a person against contingent liability on behalf of the defendant, according to the provisions of the Oode,^ and the debt for which the judgment is recovered is not all due, or is payable in installments, and the installments are not all due, the execution on such judgment is issued In the usual form, but a direction to the sheriif must be indorsed thereon by the attorney or person issuing the same, to collect the amount due on such judgment, with interest and costs, which amount (interest and costs) must be stated,^ and the amount is to be ascertained by the statement made and verified by the defendant at the time of the entry of such judgment.^ Whenever a judgment has been recovered against a sheriff and his sureties, a direction must be indorsed on the execution issued thereon by the attorney issuing the same, to levy the amount of such execution, in the first place, of the property of such sheriff", and if sufficient property of such sheriff" cannot be found to satisfy such execution, then to levy the deficiency of the property of the sureties.'* So when the plaintiff" has recovered judgment for the penal sum of any bond other than for the i^ayment of money, and the jury have returned their verdict for damages according to the provisions of the statute in such cases made and provided,^ the execution upon such judg- ment must be upon the judgment in the usual form in actions of debt; but the attorney issuing the same must indorse thereon a direction to the sheriff" to collect the amount of damages so assessed, which amount must be stated, with the interest thereon, from the time of the assessment, and the costs of suit.^ So also where the judgment shall be recovered for a debt secured by mortgage of real estate, or for any part of such debt, and execution against the property of the mortgagor shall be issued thereon, the plaintiff's attorney must indorse thereon a brief description of the premises ' ^§ 382. 383. ' Code, § 383. - Code, § 384. * 2 R. S., 478, § 15; 2 N. Y S. at L., 500 g 15. * 2 R. S., 379, § 10; 2 N. Y. S. at L., • Idem. 393. THE EXECUTION. 33 mortgaged, referring to the page and book of tbe record in which the mortgage is recorded, with directions to the sheritt' not to levy snch execution upon the said in'emises or any part thereof.^ When the execution is issued upon a judgment against two joint debtors, in which, however, only one of them has been served with process, the execution must be, in form, against both defendants; but specific instructions must be indorsed thereon not to levy the execution ujjon the sole property of the part}- not served.^ When it is required to issue an execution against a married woman, the direction to the officer must be to levy and collect tlie amount of the judgment from her separate propert}' and not otherwise.^ Indorsement hy the sheriff. The execution is made returnable within sixty days after its receipt by the officer, to the clerk with whom the record of judgment is liled.^ It is made the duty of the sheriff, on the receipt of the execution, to indorse thereon the year, month, day and hour of the day on which he re- ceived the same,^ and, if required by the party delivering the same, and on i)ayment of his legal fees, he must give to such i)erson a written minute signed by himself, si)eci- fyingthe names of tlie parties in such process, the general nature thereof, and the day of receiving the same." The judgment on which the execution is issued must be docketed in the county where it is to be executed prior to the indorsement thereon by the sheriff, or the execution will be irregular.' But the party delivering the execution to the sheriff maj' instruct him to indorse the execution as at a time subsequent to the docketing of the judgment; and if his instructions are obeyed, the execution will bo regular.'* It is usual, on issuing an execution to a distant connty where the judgment has not been docketed, to inclose to the sheriff a transcript of the judgment, with ' 2 R. S.. ?SA, 53 .Tl, :!2; 2 N. Y. S. ' 2 R. S.. 440, § 75; 2 N. Y. S. ai L., at L.. 382. 458. • 2 R. S., 377, §5 3, 4; 2 N. Y. S. at ' Code. § 287; see 20 Johns., 307; 3 L., 392. Cow., 30. * Code, g 287. • See Cluiit v. Cluie, 4 Denio, 241 : WaU * Code, § 290. ttrs v. Sykts, 11 Wend., 566. • 2 R. S'., 361, § 10 ; 2 N. Y. S. at L., 377. II.— 5. 34 ADMINISTEATION OF CIVIL JUSTICE. the execution, for the purpose of havmg tlie judgment docketed, instructing the sheriff to tile the transcript with the county clerk in his office, prior to indorsing the execu- tion, and to charge payment in the account of his fees, &c. The effect of such lodgment. As soon as such execution is properly lodged with the sheriff, the goods and chattels of the defendant in execu- tion within the jurisdiction of the officer with whom it is lodged, become bound to answer its requirements; but they are bound only from the time of the delivery of the same for execution.^ Where several executions, issued out of a court of record against the same defendant, come to the hands of the sheriff to be executed, they have prefer- ence in the order of their delivery without regard to the particular one levied.^ But any execution or attachment issued out of any court not of record, if actually levied, has precedence over one of a court of record not pre- viously levied.^ The lien upon real estate commences with the docketing of the judgment in the county where the same is situated,^ and does not depend upon delivering an execution to the sheriff. Upon what property the execution may he levied. In general, the execution may be levied upon all per- sonal goods and chattels of the judgment debtor not specially exempted hj law. Wheat growing on the ground is a chattel, and as such, is subject to being taken and sold.^ So also the growing crops on leased land, being chattels, are liable to be taken and sold on an execution against the lessee." Things annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support, are also deemed chattels." Thus looms placed on the floor of a woolen factory and fastened to the floor by means of screws, for the purpose of keeping them steady, are chattels.^ Property which, were it not for an agreement in respect thereto, would become realty, may ' 2 R. S., 365, § 13; 2 K T. S. at L., " As chattels: Shepard v. Philbrick, 2 379, §§ 13, 14, &c. Denio, 174; Whipple v. Foot, 2 " Idem, § 14; see Peck v. Tiffany, 2 K Johns., 418. Y.. 457. 6 Stewart v. Doughty, 9 Johns., 108. ^ Idem, § 16. ' Murdoch v. Gifford, 18 N. Y., 28. * Code, g 282. » Idem. THE EXECUTIOlf. 35 preserve the character of personalty according^ to its essen- tial nature, and the mode in which it is affixed to the realty; thus, whether it can be removed without serious damage to the freehold, or without substantially destroying its own quality and value.^ Money, as bank bills, may be taken and sold on execu- tion.^ But where the sheriff receives money, in coin, in I)ayment of an execution in his hands in favor of the Ijlaintitf, and at the same time has an execution in his hands against the iilaintiff, and upon which he is unable to find property to satisfy, except the coin in his hands, he cannot levy on such coin and so apply it to the satis- faction of the execution against the j)laintiif.^ The money in the hands of the officer, or in the hands of the court, is not the money of the party for whom it is collected or paid until paid over.^ But surplus moneys arising froni the sale of defendant's goods, and remaining in the hands of an officer after satisfying an execution against the de- fendant, belongs to the defendant, and are subject to levy as such.^ The interest of the mortgagor of chattels in the chattels mortgaged, while he is rightfully in possession of the same, may be levied upon and sold.*^ The principle is, that the mortgagor of a chattel having a right to the possession of the same, has a leviable interest, and the purchaser of such interest acquires his right to redeemJ But where the mortgagee has a right to the immediate possession, it is otherwise.'' The interest of the pledgor in goods pledged may also be taken and sold,'^ and if not redeemed or redeemable immediatel}', they should be delivered to the pledgee, to whom the purchaser must look for them.^ So also the interest of bailees or pledgees for goods which they hold for security, maybe taken and sold; and the purchaser acquires their right and interest therein.^" The movable property of a railroad company as the ' Fordv. Cobb, 2 K Y., 344. id., 202; Asseler v. Goulet, 22 N. 'Handy V. Dobbin, 12 John."?., 220; 2 Y., 225. R. S., 366, § 18. ' Bank of Lansingburgh v. Gary, 11 ' Miificott V. Woolworth, 14 How., 477. Barb., 542. * Dubois V. Dv.bois, 6 Cow., 404 ; see ' 6 Duer, 83. aLso Betts v. Iloyt, 19 Barb., 412. " Bakewell v. Ellsworth, 6 Hill, 484; and ' Wheeler w. Smith. 11 Barb., 345. see also 10 Wend., 318; see also "Midi V. Carnly, 11 N. Y., 501; 17 Steif v. Hart, 1 N. Y., 20. " 9 How., 569. 36 ADMINISTRATION OP CIVIL JUSTICE. rolling- stock, and general implements thereof, may be taken in execution as chattels.' In case of joint debtors their joint or several pro])erty may be levied upon ; and in such case the court will not look into the state of the accounts between them.^ So also the interest of one of the i)artners in partnership pro[)erty may be sold subject to an accounting between tlie partners on a dissolution of the lirm.^ But in case of judgment against joint debtors, the ])ro])erty of a defend- ant not served with a process, we have alreadj^ seen, must not only not be levied upon, but the sheriff must be in- structed not to levy on the sanie.^ But mere choses in action are not thus subject to levy and sale; as, bank or library shares,^ a promissory note," &c., and the Code has not changed tlie law in this respectJ So a mortgagor of chattels who has no right of possessiou for a delinite period, and has merely a naked right of redemption, has no leviable interest.** So a fraudulent purchaser of goods, as against the vendor, has no title.' Pro]oertij exempted from execution. The law has also exem])ted certain property from levy and sale on execution, as sinnning- wheels, looms and stoves, and a sew ing machine.'" Likewise books, as family bible, pictures, school books, and family library not ex- ceeding $50 in value." Under the latter subdivision, it lias been held that the professional books necessary to a jirofessional man who supports his family by the imictice of his profession are, to a reasonable extent, exempt, as a part of his family library.'^ The stjitute also exempts a seat or pew occupied by such person or family in any house or place of worship.'" Also all sheep to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same; one cow, two swine, the necessary food for them; all necessary pork, ' Beardslij v. O.itario Bank. 31 Bnrb., " MatUson v. Bancu-s, 1 N. Y., 295. G19; ixnd Sf'iveiis Y. Biifrah & K Y. ° Root v. French., 13 Wend., 570; 3 Citij R. R. Co., Idem., 590. Johns., 238. * Godfrey v. Gibbons, 22 Wend.. 5G9. " 2 R. S., 367, § 22, subtl. 1 ; aa ' 11 How., 46; also 34 Barb., 553. amended L. 1860, eh. 152; 2 N. Y. * Ante. pp. 4 and 33. S. at L.. 380. ' Benton v. Livingston, 9 Jolins.. 96. " Idem, § 22, snbd. 2. * Lir/alh V. Lord, 1 Cow., 240 : 9 Johns., '" See 3 Abb., 460. ioo. ■ "Idem, § 22, subd. 3. ' Ranson v. M«e»-, 3 Sandf., 692. I THE EXECUTION. 37 beef, fisb, flour and vegetables actnally provided for family use; and necessary fuel for the use of the family for sixty days.' Under the same provision of the statute in the justice's act,^ it is liehl that a householder not owning any sheep may hold to the number of ten tleeces exempt from execution.' The necessary vegetables exempted may be in any stage of culture, or they may be in store, ^ and the restriction to sixty days supply applies only to the fuel. The food for cattle exemi)ted must be determined by the season; in the fall, it means enough to last through the winter, &c.'^ So likewise that part of the statute exempting necessary pork, beef, hsh, «&c., provided for family use, was intended to protect such a quantity of the specitied articles as would be necessary for the family until the next annual period for laying up such provisions.*^ The statute also exenii)ts all necessary wearing apparel, beds, bedsteads and bedding for the householder and family, arms and accoutrements required by law to bo kei)t by such person, necessary cooking utensils, one table, six chairs, six knives and forks, six plates, six teacu])S and saucers, one sugar dish, one milk pot, one tea pot and six spoons, one crane and its appendages, one pair of andii'ons and a shovel and tongs.' Under this i:)rovision it is held that the necessary wearing apparel for the family, to be exempted, must be owned by the householder or head of the family. That the clothing of one living in the family merely is not exempt." The tools and imi)lements of any mechanic necessary for the carrying on of his trade, to the amount of twenty- five dollars, are also exempted from such sale.'' So also the statute further provides'" that in additi(ni to the fore- going necessary household furniture and working tools, and team owned by any ])erson being a househofder, or having a family for which he provides, not exceeding $150 (now .$250) in value, are exempt. And by the statute of 1858," ii is provided that these provisions shall not apply ' 2 R. S.. 3C7, § 22, subd. 4 ; 2 N. Y. " Idem., Por Broxson, J. S. at L, 380. ' 2 R. S., 307, ij 22. subd. 5 ; 2 N. Y. « 2 R. S., 255, § 169. subd. 4. S. at L., 380. * Hall V. Penny,']l Wend., 44; Brackdt " Bowne v. Will, 19 Wend.. 475. V. Watkim, 21 Wend., C8. " 2 R. S., 3G7, § 22, subd. 0; 2 X. Y. * Carpenter v. ILivriajtoii, 25 Wend., S. at L , 380. 370. " Ii 1842, eh. 15G. '' Fund V. mghlij, Hill & D. Sup., 87, " Ch. 107, ^ 1; amended L. 1850, cli. Tcr Bko.nSu.v, J. 134, p. 343. 38 ADMLNISTKATION OF CIVIL JUSTICE. to judgments for claims accruing for ser\dces performed in a family as a domestic.^ Necessary hoiishold furniture, working tools and team. The question whether a team is necessary or not cannot be determined by the question whether the debtor has other means to pay the debt.- The law is intended for the benefit of all persons, no matter what their calling or profession, whose team is necessary to the successful or convenient prosecution of their business. Thus, the horse of a country physician, whose patients reside at too great a distance to visit them on foot, is a "necessary- team."^ So a carman's horse, with his cart and harness, constitute his team within the exemption.^ So a single horse used by a householder having a family for which he provides, is a team.* Also the necessary food for such team for the period of ninety days, is exempted.^ The surgical instruments of a practicing physician are his working tools, and as such, are exempted.^ The exemption under the law of 1842" cannot be set up where the execution is issued upon a judgment founded on a demand for the purchase-money of such furniture, tools or team, or the food for such team. Such exemptions as are allowed by that law are not available against exe- cutions issued to collect the purchase-money ; but property exempted by preexisting statutes cannot be levied upon for the purchase-money of other exempt property.*^ But any article exempted by the act of 1842 may be levied upon to satisfy a judgment recovered for the purchase- money of that or any other article exempted either by that act or by the Eevised Statutes; but articles exempted by the Eevised Statutes cannot be levied on to satisfj^ a judg- ment recovered for the purchase price of the article itself.^ Under the act of 1842, in order to make the provision that the execution should be for the purchase-money of the article exempted, apj)licable, it will be sufficient if it be for the purchase-money of some of the exempted pro- perty ; and it need not be for the identical property levied ' Ch. 107 § 1 ; amended L. 1859, ch. •• Lockioood v. Yoimglove, 27 Barb., 505. 134 p. 343. ^ L. 1859, eh. 134. » Wceeler y. Cropsey, 5 How., 283; 8 ^ RoUmoiiY. Case, 3 Abb., 466. Id-, 75. ' Amended 1859. eh. 134. * Hutchinson V. Chamberlain, 11 N. Y. ' Cole v. Stevens, 9 Barb., 677; 6 How., L. 0., 248; see also 8 How., 75 ; 1 414; see also 10 Barb., 91. Duer, 606. » Coz v. Stafford, 14 How., 519. THE EXECUTION. 39 on. But a judgment for taking and converting plaintiff's property, witliout his consent, is not a judgment for the purchase-money.^ The "purchase-money" intended is the original demand, &c.^ Real property exempted from levy. 1. A seat or pew in a place of worship is exempted.^ 2. Burying grounds. Lands set apart, and a portion of which has been actually used for a family or private burying ground, are not subject to levy and sale. But this exemption extends only to one-fourth of an acre of land, and will include no other buildings or erections thereon than a vault or other place of deposit for the dead.* 3. Under the Homestead Exemption Act, a lot and buildings thereon occupied as a residence and owned by the debtor, he being a householder and having a family, to the value of one thousand dollars, may be exempt by law from sale on execution for debts contracted after the passage of said act.^ And such exemption, when secured by complying with the provisions of that act, continues after the death of the householder for the benefit of the widow and family, while some of them occupy it during the life of the widow and until the youngest child becomes twenty-one years of age.^ But a judgment in a case where the cause of action arose out of a tort, is not a debt con- tracted within the meaning of the act.^ Who may claim the privilege. The right to the statutory exemption of goods from sale on execution is strictly a personal right and will not avail another; thus, a mere bailee of goods exempt from execu- tion cannot maintain an action for the taking of them on execution. ]S"one but the actual owner has a right to object.' The word "householder" in the statute" meaus the head, master or person who has charge of, and provides for, a family ; but it does not apply to the subordinate members * 15 Barb., 568. necessary to secure the exemption, » 10 Barb., 91. see L. ISfjO, ch. 260, § 2. » 2 R. S., 367, § 22, subd. .3 ; 2 N. Y. ' See Cook v. Newman, 8 How., 523 ; S. at L.. 380. see Id., 527. * L. 1846, ch. 85, p. 91; see the act ^ Eark v. Gamp, 16 Wend., 562; Smith requiring the recording of notice to v. Uill, 22 Barb., 656 ; Mickles v. secure the exemption. Idem. Toushy, 1 Cow., 114. * April 10, 1850; L. 1850, cli. 260, took ' 2 R. S., 367, § 22. effect Jan. 1, 1851: as to what is 40 ADMINISTRATION OF CIVIL JUSTICE. or iumates of the liousehold.' The term is to be construed as cxteiulin^c: to every family so long as they remain to- gether as such, even though they may be houseless; as Avhere the father or head of the family had left the state, leaving the wife and children living together, and they were changing their residence when the levy was made.* So a woman keeping a house of ill-fame is a householder within the meaning of the exemption law.^ So one having, and providing for, a household, although storing his goods temporarily, is a householder.* So a man and his daughter living together, the wife and mother being dead.^ So also one having a house and keeping boarders.*^ So one having children which he maintains, though temporarily absent; to be educated," has a tamily within the act of 1842, It has been held that the exemption act of 1842 extends to judgments and executions on debts contracted prior to its passage, and is constitutional;" that being positive they cannot be waived, although there be an express stix)ulatioii to that effect in the original contract.^ The person who claims the exemption must show him- self entitled thereto by establishiug affirmatively all essen- tial facts to bring himself within the jn-ovisious of the statute.'" Zilen of the exe'iittion. In respect to real estate, the lien depends npon the dock- eting of the judgment, and not upon the delivery of the execution or the levy thereof.^' But it is otherwise in respect to personal property. In such case the execution does not bind tlie goods of the debtor, until delivered to the sheriff, '- and then only those goods which are within the jurisdiction of the otticer. But on the delivery of an execution to the sheriff, a lien is created upon the personal property, except as to one, who, between the delivery and the levy, becomes a hona fide purchaser, or mortgagee, without notice.'^ * See 19 Wend., 475. " M>iir v. Litch, 1 Barb., 341 ; 2 R. S., « 18 Johns.. 400. 3G0, ij 12; 2 N. T. S. at L,, ;$73; " .-{ Code 11., 17. 5 Hill, 228. * 14 Barb., 456. " 2 R. S., 365. § 13; 2 N. Y. S. at L., ' 14 How.. 519. 379; 21 BaiV, 469; 5 Denio, 198; • 11 N. Y. L 0., 248. idem. 619. ' 3 Abb., 466. " Thompson v. I^n VecJiten, 5 Abb., 458 ; • Morse v. Gmld, 11 N. Y., 281. Heals v. Allen, 18 Johns., 363; also » 31 Barb., 179; 22 N. Y.. 249. idem, 311. ^^ EMlnian V. Caswell. 8 How., 75; 14 Barb., 456; also Id., 9. THE EXECUTION. 41 As between the parties, tbe debtor's goods are not bound until an actual levy by the otticer ; and until then the sheriff has no such proi)ert3^ therein as will enable him to maintain trover against one who converts them.^ But such execution in the sheriff's hands, though not levied, is entitled to preference over a subse(pient mortgage or assignment to secure antecedent debts." Under the statute,^ the title of any purchaser in good faith, acquired prior to the actual levy, without notice of the execution being issued, is complete and cannot be divested by the fact that an execution against the goods had been delivered to the sheriff". If the execution becomes dormant in the hands of the shei'iif, the sale of a particular chattel for a fair price, without any fraudulent intent on the part of the pur- chaser, will not be void ; as, where an execution has laid in the hands of the sheriff", without any levy, for a year,* so where the plaintiff" ordered the sheriff", after levy, to suspend further proceedings until he should give further directions, it was held that the execution became dormant, and that a purchaser from the defendant acquired a good title."^ So where the sheriff* was directed not to sell unless forced to do so by subsequent judgments, until further orders, the execution was held to be dormant.*^ Where the evidence warrants the inference that the plaintiff's issued their execution, not with an absolute intention to collecting their debt, but partly, at least, with a view to cover the .i)roperty of the debtor for his use, and the execution has not been enforced, it becomes dormant, and constructively fraudulent as against subsequent execu- tions,' and also as to bona fide purchasers.** But an execution does not become dormant by the neg- lect of the sheriff" merely without any act of the plaintiff"; and the neglect of the ])laintitt", for six months after the return day, to take measures to compel a return, will not render it dormant." But when the sale of the goods is l)ostponed for a long time, necessarily to prevent a sacrifice of the property levied upon — as hides in the tan-vats — » Hokhkiss v. Mc Viclcer, 12 Johns., 403 ; " Kimhall v. Munrjer, 2 Hill, :;G4. see 4 Cow.. 4G1. ' Kelloqg v. Griffin. 17 Joiin.s.. 274. « 3 Barb. Cli.. CSO; 11 Paige. 21. " Ball v. Shell. 21 Weiul., 222. ^ 2 R. S., 3GG, § 17. " Iiu.s,sell v. Gibhs, 5 Cow., aOO; sec nlsf) ♦ Bliss V. Ball, 9 JoJins., i:{2. 9 Weiul., 258; 4 Id., 332; G Hill, * Jlickolc V. Coaks, 2 Wend., 419. 232, 5 Abb., 458. II.— 6. 42 ADMmiSTEATION OF CIVIL JUSTICE. even tliougli at the direction of the plaintiff, the execution will not become dormant.^ Only a creditor or a hona fide purchaser can object that an execution has become dormant.^ T/ie effect of a levy and the proceedings thereafter. Where the goods are permitted to remain in the posses- sion of the debtor after the levy, the execution is deemed fraudulent as against subsequent executions, especially where the creditor directs delay .^ But merely leaving the goods in the possession of the defendant for a short time, where there is a reasonable excuse for the same, will not defeat the levy ;* so a returning of the goods to the posses- sion of the debtor after levy, in pursuance of the directions of the creditor, but without any direction to suspend or delay the execution, will not necessarily render the execu- tion fraudulent or void.^ After levy the property is deemed to be in the custody of the law; consequently, it is not liable to be replevied^ nor distrained for a taxJ The goods are in the possession of the officer ; and one with whom he leaves them for safe keeping is merely his servant.^ The property being in the custody of the officer of the law, the plaintiff in execution has no property therein and can maintain no action for a wrongful taking of the goods by a third person.^ When the execution has been levied upon sufficient property to satisfy it, the officer cannot make a second ievy.^" Where a second execution is received after a levy has been made by the sheriff on a prior execution, the first levy will answer for both;" having levied the first the property is in his custody, and the receipt of the second execution operates as a constructive levy upon the same property.^^ But if the first levy should prove a nulUty, then a levy of the others would be necessary.^^ The allowance of a writ of certiorari, if served after a > 7 Cow., 560. " Smith v. Burtis, 6 Johns., 197 ; Bur- « 9 Wend., 258. rell v. Ackei; 23 Wend., 606 ; 3 HUl, * Storm V. Wood, 11 Johns., 110; Reed 215. V. Barber, 3 Cow., 272; RusseU v. " 1 Denio, 335; 3 Barb., 518. Gihhs, 5 Cow., 390. " 12 Johns., 207 ; 22 Barb., 522. * 11 Wend., 548; Farrington v. Sin- " 17 Johns., 116. Clair, 15 Johns., 428. « 1 Hill, 559; 11 Paige, 21; 2 N. T., * Reed v. Barber, 3 Cow., 272. 451. * 2 Wend., 475; 5 Denio, 619. " 1 Barb., 542. * 17 Johns., 128; 7 Abb., 12. THE EXECUTION. 43 levy has been made, does not operate as a supersedeas} But under the provisions of the statute,^ a writ of error, accom- panied with an order, stays further i)roceedings on an execution which has been levied; for a mere levy is not deemed to be a full execution within the meaning of the statute.' What constitutes a levy. A manual interference is not requisite to constitute a levy and transfer of the chattel. The i)roperty being present, subject to the control of the officer who declares the levy, and asserts his authority over the same in virtue thereof, is sufficient.* But the mere fact that the goods are within the view and control of the officer during the life of the execution, will not be sufficient to constitute a levy, unless he asserts his authority over, and title to, the goods, by virtue of the execution.^ So merely seizing a few articles outside a warehouse, and proclaiming a levy on the goods locked up within, is not sufficient. If he would levy on the goods in the building, he should enter it and have them within his view and power; and, if necessary to accomplish this, he may break open the building for that purpose, and he should seize the goods and make an in- ventory of them.^ As the officer should assert his title to the goods by virtue of his levy, the goods must be brought within his view and be subject to his control. Thus, where an officer went with the debtor on to his farm, and saw and inven- toried several articles, and also inventoried, at the instance of the debtor, cattle which were in another field and out of view behind a hill, it was held to be no levy upon the cat- tle as against a purchaser in good faith.' It is the policy of the law to require the officer to so act in making the levy, that it can be publicly known that the property levied upon is in his possession — at least constructively — and hence his acts should be open and unequivocal and publicly performed." To bind the defendant in execution a less formal levy » 3 Hill, 230; 17 Johns., 34. * Haggerti/ v. Wilber, 16 Johns.. '287. « 2 R. S., 596, 597, §§ 29, 30; 2 N. Y. ' Van Wyck v. Pine, 2 Hill, 666; see S. at L., 619. also 19 Wend., 495. ' See 3 Hill, 473. " Beekman v. Lansing, 3 Wend., 446; * Barker v. Binningcr, 14 N. Y., 270. also 14 Wend., 123; 5 Denio, 198. » Westervdlv. Finckney, 14 Wend., 123. 44 ADMINISTRATION OF CIVIL JUSTICE. may be sufficient,^ but where the rights and interests of innocent parties are concerned, the lev}^ can be made only by liavinii' the goods within view and subject to the con- trol and disposition of the officer, he asserting his author- ity and control publicly by virtue of the execution.^ "Where the othcer levies upon property which cannot be reduced to possession immediately, as upon growing- crops of corn or wheat, &c., it will be sufficient to make the levy openly and publicly, and the sale may be delayed until the time of the harvest.^ In respect to real estate, it is held that a formal levy upon the land is unnecessary. That the judgment binds the land, and the execution comes as a power to sell, that is, in all cases where the judgment is a lien on the land, a formal levy is unnecessary.'* Therefore, it was held that where the real estate had been sold for an amount only sufficient to satisfy the judgment in part, and the judgment debtor redeemed so that the purchaser got back his ])ur- chase-money, the lien of the judgment still continued on the land, and the sheriff might proceed to sell the same again on the original execution, without a new levy, to satisfy the balance of such judgment.* Dormant executions. Executions lose their lien on jn'operty by becoming dormant in the hands of the officer. An execution is given the party for the ])urpose of enabling him to collect his judgment debt, not for the purpose of obtaining security or covering the property of the debtor. When the sheriff has received an execution, the law points out his duty in respect thereto and holds him res])onsible for performing- it. If the plaintiff interfere with the execution of the process, and seek to pervert it to other than legal puri)oses, he does so at his peril, and will thereby be liable to lose all rights which accrued to him by the delivery thereof to the sheriff". It is a well settled principle that mere neglect or delay on the part of the officer will not render the execution dormant in his hands. But if such neglect or delay was occasioned by any interference of the party in interest in the execution, then the execution will become dormant * See J/ii/is V. Thurslij, 11 How.. 121. " Wood v. Colvin, 5 Hill, 22S; see 23 " Eay V. Harcort, 19 Weud., 495. Wend 498. ' 2 Johns., 418. , THE EXECUTION. 45 aiul will be of no force against subsequent jndgmcnt creditors or bona fide piu'chasers.^ Thus, where after levy the sberiif was instructed to delay the sale until a junior execution was received,'- or where the i^laintiff directed a stay, after levy, until further directions, and in the mean time the property was sold by the defendant to a hona fide purchaser.' So also when he directed a levy to be made and yet to be kept secret from the defendant/ So where the defendant was permitted to use and consume the goods levied on/ In these and other similar cases, the condnct of the plaintiff was deemed to be fraudulent in such a use of the execution, and all the rights which he might have acquired by its delivery, and in its i)roper use as against subsequent judg'uient creditors and hona fide purchasers, were lost to him. The law simply requires the party using' its process to act promptly and in good faith, and not to attempt to pervert it to uses not legall}' intended. The mere leaving the property levied upon in the possession of the defend- ant is not, of itself, a fraudulent act, and unless there is some other mark of fraud attending it, as delaying the sale or permitting the deiendant to use or consume the proi)erty, will not render the execution dormant." Any indulgence which the plaintiff may give the defendant that does not, of itself, interfere with the timely execntiou of the process, will not be deemed a fraud upon the law.' TJie custody of the property. Having made a valid levy, and taken the goods into his possession, the sheriff is bound to exercise ordinary dili- gence in taking care of them. He is not an insurer of the goods, and is not liable for loss bj' fire," or by theft, robbery or accident, unless it was the result of negligence or carelessness on his part.^ In case of loss or destruction while in his custody, he is required to give clear and satis- factory evidence that it was not occasioned by his neglect » 12 Wend., 404; 5 Cow., 390; 5 Ilill, ' G Hill. 232 ; 12 Wc:kI., 404; UJolins., 380. 1 1 0. « :C<)W..560: 2Hill,3G4; llJoIins., 110. ' See Crock. SlicrifT, § 412. * 2 WciHl., 419. " 5 Ilill, r)91 ; 5 Doiiiu, 593. « IG Barb.. 589. " G Jolm.s., 12; 9 Jolius., 385. *2 Wend., 419; 15 Jolins., 428; 17 Id., 332. 46 AMINISTRATION OF CIYTL JUSTICE. or want of such care as a prudent man would take of his own property.^ The sheriff may leave the property levied upon with the defendant, but it will be at his own risk if the same be lost or distroyed, unless by the act of God, or the public enemies. For his own security, however, he shoidd cause the property levied upon to be removed, unless a responsi- ble person will receipt the property upon an inventory made of the same, agreeing to return the same to the sheriff, at a time and place specified therein, or when thereunto demanded, or to pay the debt? The receipt for the property given to the sheriff in such case, should state the receiving of the same from the sheriff who had levied upon it, and that the receiptor would return the same and every part thereof, to the sheriff on demand, or pay the debt. Such receipt is a valid and binding agreement,^ but as security, it should not extend beyond the legal liability of the sheriff, lest it should thereby become void.* If the property, thus taken by the sheriff, and receipted to him as above, be in reality the property of the judgment debtor, and is not forthcoming on demand by the sheriff, the undertaking or receipt being for the whole debt, is a payment of the judgment, and a satisfaction of the execu- tion : and the sheriff cannot seize other property of the defendant, even though the property taken was insufficient to pay it. He can only look to his receiptor's undertaking, and depend upon that for his remedy.^ But if the property taken, was not subject to levy, and had been retaken by the defendant ; or was not his property, but that of another, who had repossessed him- self of it, it would be otherwise. For it is now a well settled rule, that when the defendant has neither paid the debt nor lost his property by reason of the levy, such levy is no satisfaction of the execution.^ The sheriff may pay the execution, and then repossess himself of the property receipted to him, whether he find it in the hands of the receiptor, or other person, either for the purpose of selling it or returning it to the defendant, &c.^ The receiptor, refusing to deliver the property to ^ See 5 Denio, 595. ^ 12 Johns., 207. * Crock. Sherifif, § 415. ^ 1 Denio, 574 ; 23 Wend., 490 ; I Sand. = 23 Wend., 606. Ch., 195 ; Crock. Sheriff, 166. * 5 Hill, 588. •' 23 Wend., 606. THE EXECUTION. 47 the sheriff on demand, will be liable to him on his under- taking or receii^t to pay the whole debt. Proceedings ichen tlie pro2:)erty levied on is claimed by third persons. In levying upon property the sheriff must act upon his own responsibility. Having received an execution against property, he must make reasonable inquiry to ascertain if the defendant has any property in his county subject to levy ; and finding him in the possession of property, whether claimed b}' him or others, it is his duty to make a lev}^ thereon ; and neglecting to do so, and being sued for such neglect, the burden of proving that such property was not subject to levy is thrown upon him.^ On the contrary, levying on the same when it does not belong to the defendant, he renders himself liable to the true owner for an unwarranted interference with such property. Being thus situated in respect to possible liabilities, either to the judgment creditor or other persons, the law permits the sheriff to protect himself, to a certain extent, in cases where the plaintiff in execution does not tender the proper indemnity to him, by permitting him to summon a jury to try the question of property, on giving to the parties due notice of the time and place of such hearing. Thus, where a third person claims the property levied ui3on, and the sheriff has reason to doubt that it belongs to the defendant, and the plaintiff in execution does not tender to him jjroper indemnity, he may proceed and sum- mon a jury to try the title of the i)roperty. In such case he summons twelve qualified jurors, and gives the parties notice of the time and place of hearing, and he presides and swears the jurors and witnesses. The attendance of witnesses is enforced by subpoena out of the court from which the execution issued. The jury, hearing the testi- mony, retire from all others for the purpose of delibera- tion, and make and sign their inquisition, stating in whom they find the property to be invested, which finding or inquisition is also signed by the sheriff. If they find the title not to be in the defendant in execution, the slieriff will be justified in returning the execution nulla J)ona, unless indemnified to proceed by the plaintiff, in which case he must proceed to sell.^ But if indemnity is not 5 Denio, 203. ^ 1 Hall, 595; 8 Cow., 65; 1 Wend., 238. 48 ADMINISTRATION OF CIVIL JUSTICE. tendered, the inquisition is conclusive in favor of the Blieriff, so that lie will not he liable to the ijlaiutiff for a falsii return in returning- nulla l)0)m} Tile inquisition, however, not proceeding from the court, but being intended merely to indemnify the sheriff in making his return, is not conclusive in his favor, in an action against him for taking the goods.- The plaintiff in execution is not bound to tender an indemnity until the jury have passed upon the question of property.'' The stay of an execution in the hands of the sheriff. Where an execution has been put into the hands of the sheriff, it is liable to be stayed by an appeal from the judgment on which it issued, or by an order of the court, or by an injunction, &c. The execution in the hands of the ofiicer, is subject to the control of the court, at all times, and the officer is required to obey the orders of the conrt thereon, and, therefore, an order or an injunction staying the execution of such process, will be a sufficient excuse for the sheriff for not executing the process accord- ing to its mandate. 13ut in general the sheriff is not bound to regard or notice any injunction, order or appeal until it is duly served upon him ; and when such notice is duly served upon him, he is bound to obey by suspending further i)ro- ceedings on such execution. In case of appeal from the judgment on which execution issued, directing the i)a3'- ment of money, there is no stay of execution until security lias been filed according to the provisions of the statute.* If the judgment appealed from, direct the assignment or delivery of property, the execution thereof will not be stayed by appeal, unless the things required to be assigned or delivered, be brought into court, or placed in the custody of such officer or receiver as the court shall appoint; or unless an undertaking be entered into on the part of the appellant, by at least two sureties, and in such amount as the court or a judge thereof, or a county judge shall direct, to the effect that the appellant will obey the order of the appellate court u{)on the appeal.^ And if the judgment appealed from, directs the sale or delivery ' Crocker's Slieriff, 180. § 438. ' S Cow., 65. M Hall. 595; 2 H. Bl., 437; Grab. ■■ Code, § 335. Pr., 371. "Code, §336. THE EXECUTION. 49 df possession of real property, the execution thereof will not be stayed by appeal unless a written undertaking be executed on the part of the appellant with two sureties, to the effect that, during the possession of such property by the appellant, he will not commit, or suffer to be com- mitted, auy waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of the possession thereof pursuant to the judg- ment, &c.^ The sheriff having the process of execution upon such judgments, and being charged with the execution of the same, is notified of the compliance of the appellant with the provisions of the statute by which further proceedings thereon are stayed, by service upon him, of a certificate of the clerk of the court, stating the due filing of the proper security, or the performance of such other act as bj^ law is required to be performed, and until thus served, he should proceed with the execution of such process, and if the sureties are excepted to, and they or others do not justify according to the rules of practice, the appeal will be regarded as if no undertaking had been given. ^ The granting and service of an injunction, or order, or th0 bringing of an appeal and notice thereof, does not undo anything that has been i^reviously done by the sheriff in the execution of the process. Having arrested the person of the defendant, or attached property, he still retains him or it in his custody as if no stay had been granted. And when he has thus levied or attached property, he may proceed to perfect his inventory and complete the ijossessiou of the same,^ but must not pro- ceed to sell. If the execution is stayed by special order of the court, the party i)rocuring the order may see that the sheriff is duly served with a copy of the same, or he may leave it with the plaintiff in execution to see that no further pro- ceedings are had thereon, after he has been duly notified. The sale. WTiere the sheriff has levied the execution upon property his next duty is to sell the same in the manner pointed ' Code, § 338. » Crock, sheriff, § 35. *• Code, I 341. n.— 7 60 ADIVITNTSTEATION OF CIVIL JUSTICE. out by law. Under the provisions of the statute there can be no sale of any goods or chattels by virtue of any exe- cution unless previous notice of such sale shall have been given six days successively, by fastening up written or printed notices thereof in three public places of the town where such sale is to be had, specifying the time and place where the same is intended to be had.^ It is a penal offense for any person to take down or deface any such notice prior to the time of sale therein specified, unless upon satisfaction of the execution, or with the consent of the proper parties.^ But the taking down or defacing such notices, or the omission of the sheriff to set them up, does not affect the validity of the sale to a purchaser in good faith, without notice of such offense or omission.^ Furthermore, personal property must be present and ex- posed to view at the time of the sale, and it must be within view of those attending the sale; and must be- offered in such lots as are calculated to secure the highest price.* But where the various articles are at the same place, but cannot be gathered so as to be in view without great ex- pense, or where the sheriff sell stereotype plates by pro- ducing an impression from them, the plates not being produced in view, such being the usage of the trade, the sale is valid.^ So also the articles sold must be pointed out to the bid- ders and sold specifically, or the purchaser will acquire no property therein.*^ Thus, if an ojQicer sell a certain number of sheep of a flock, without designating which are intended to be sold, the sale will be void.' A sale of property out of view and incapable of being pointed out, and being in the possession of a third party under claim of right, confers no title.'^ The sheriff is required to exercise a sound and just discre- tion in the sale of the property. He is not always justified in selling to the highest bidder where that is greatly under value. If he cannot obtain a reasonable price, he should adjourn the sale and return that the i)roj)erty taken * 2 R. S., 366, § 21; 2 N. Y. S. at L., * Idem.. 367, § 23; see 14 Johns., 352. 330: 1 Abb., 162. » 2 E. D. Smith, 440. » 2 R. S., 369, § 39; 2 N. Y. S. at L., " 14 Johns., 352 ; 17 Id., 116. 383. •> 4 Barb., 484. ' Idem., § 40. * 1 N. Y. L. 0., 346. THE EXECUTION. 61 remained unsold for want of bidders.^ Where the sheriff refuses to exercise such discretion, and, at the instigation of the plaintiff, insists upon selling at a great sacrifice of defendant's property, the court, on motion, will set the sale aside. They will not permit unnecessary oppression to be practiced under color of legal authority.^ So like- wise a sale may be adjourned, after it has been commenced, to a different place. And where there has been no fraud on the part of the officer, or abuse of his discretion, he will not be liable as a trespasser.^ The sale must be at public vendue between the hours of nine o'clock in the morning and the setting of the sun."* It is held that the sale of property upon execution after sunset is void, and that the proceedings of the sheriff" are thereby rendered void ab initio.^ Although the sale is required to be in such lots as is^ calculated to secure the highest price, yet at the request of the parties interested, a number of articles may be sold in one lot.*^ And where the goods are sold in mass at the defendant's request, one who is not a creditor cannot object or avoid the sale on that ground.' The sheriff having levied upon defendant's goods, can- not lawfully deliver them to the plaintiff in execution, in satisfaction of his debt,^ nor can he pay the plaintiff with his own money and keep the goods for his own use, or afterwards levy upon them, even though it had been agreed between him and the defendant that he might retain the execution and use it for his own indemnity.^ A title can- not be acquired under an execution issued upon a judgment which had been paid;'" for where a judgment has been satisfied, there is no longer any power to sell.^^ The sheriff has no right to sell for the purpose of col- lecting his fees after due notice of settlement and a discharge of the judgment.^^ But the goods may be sold to the plaintiff, and may be delivered to him without x^iiyinent, unless the purchase- money amount to more than is due him, in which case the '2 Cow., 139; 3 Camp. Rep., 521; * 28 Cro. Eliz., 504. Stark. Rep., 43. * Beed v. Pryne, 7 Johns., 426; 12 Id., ' McDonald v. Neilson, 2 Cow., 139. 207 ; 15 Id., 443. » 5 Johns., 345. " 1 Cow., 622. * 2 R. S., 369, § 36. " 2 Hill, 566. * Carnrick v. Myers, 14 Barb., 9. " Craft v. Merrills, 14 N. Y., 456; see * 2 E. D. Smith, 440. also S How., 104 ; 4 Wend., 474, ^ 9 Cow., 274. 52 ADMINISTKATION OP CIVIL JUSTICE. surplus sboulcl be paid over,^ and where after sale to the creditor, and the execution was set aside as fraudulent, and the sheriff was directed to apply the moneys collected on that execution to satisfy other executions in his hands ; but the sheriff not having received any money, returned nulla hona to an execution delivered to him prior to the order of the court setting aside the other execution, it was held that he was not liable for a false return.^ As to 2y>'ionti/ lohere there are several executions. Executions duly delivered to the sheriff take precedence according to their order where levies are made under them prior to the sale of the property. Thus it was held that where two executions were duly delivered to the sheriff, and he levied the last one delivered, that the first had the precedence provided an actual levy was made under it prior to the sale.^ But where, after levy, the plaintiff in execution directs an indefinite delay, as "not to sell until further orders," such precedence may be lost.* But his consent to a postponement of the sale until after the return day, without giving to the debtor the use of the property, or agreeing to any other advantage to him, will not render an execution first received dormant as to other executions.^ If two executions are delivered together, and issued upon judgments docketed at the same time, the money collected is to be applied equally until the lesser one is satisfied.^ The latest period for making a levy is on the return day of the writ."^ So where the sheriff, having two exe- cutions against the same defendant, levies a part of the amount of the prior execution, and after the return day of that execution proceeds to make another levy, the sum made on the second levy must be applied on the junior execution.^ Having a number of executions with liens of different dates, the sheriff must apply the bid on the first parcel sold in satisfaction of the oldest lien.^ Where goods, after the delivery, but before actual levy, have been removed to an adjacent county by the debtor, ^ 19 Jolins., 84. " 1 Gov.'., 215. " 19 Johns., 84. ' 13 Johns., 255. ' Camp V. Chamherlahi, 5 Denio, 198 ; * 13 Johns., 255 ; see also 4 Johns., 5 Cow., 390; 5 Barb., 385. 450. * Krm'jer v. Barnard, 5 Hill. 377. ' 1 How., 77. •See 5 Cow., 395; 3 Id., 280; 12 N. Y. L. 0., 7. THE EXECtlTIOX. 63 and have been there taken and sold by the sheriff under a junior execution, the i)roceeds in the hands of the sheriff may be ordered to be applied first to the first execution.^ An execution against all the members of a partnership firm, takes precedence over one previously issued against a single member thereof.^ Consequently, when the sheriff had levied an execution against an individual member, and subsequently he receives one against the firm, he is required to sell on the latter execution, and, if necessary, return niiTla hona as to the former/ Where the sheriff had two executions fi'om different plaintiffs, claiming the prior one to be dormant in his hands, and he sold the property to the plaintiff in the prior execution, and delivered the same to him, who refused to pay for it, insisting upon his right to a^jply the money to his own execution, and the sheriff brought an action to recover the pm^chase-money, the court were of the oijinion that the sheriff was not entitled to recover. That in case of contest, it was proper for the sheriff to bring the money into court ; when the property had been sold and the purchaser refused to pay, he should not deliver the propertj^ but might sell again. But if he chose to deliver the proj)erty, and sue for the money, the pur- chaser might defend by showing that the money belonged to him.* WhcU interest in real estate tnay he sold under execution. The execution commands the officer, if sufficient goods and chattels cannot be found, that he then cause the amount of such judgment to be made of the real estate of the person against whom such judgment was rendered, which such person shall have had at the time of docketing such judgment — specifying such time — or at any time afterwards, in whose hands soever the same may be.' And when the judgment is against any person as ter- tenant, heir or devisee of a deceased person, the execution commands the officer to make the amount of said judg- ment of the real estate whereof the ancestor, testator or person was seized at the time the said real estate became ' 18 Jolans., 311. * 5 Cow., 390. » 1 Wend., 311; 2 Id., 533 ; IG Jolma., » 2 li. S., 267, § 24; 2 N. Y. S. at L., 102 ; 12 Id., 131. 381. ' 2 Wead., 553. 54 ADMINISTRATION OF CIVIL JUSTICE. liable, or at any time afterwards, or at the time of the death of such ancestor, testator or other deceased person, accord- ing as the case may require, unless such heir, devisee or terteuant shall have made his own estate liable to such judgment.^ Lands, tenements and real estate, bolden by any one in trust, or for the use of another, are liable to debts, judg- ments, decrees, executions and attachments, against the cestui que trust, in the cases and in the manner prescribed in the statute.^ The trusts to which the statute here refers, are, probably, those which, by law, are deemed to be executed, vesting the legal title in the beneficiary, and excluding such as are expressly authorized by the statute, or such as are resulting trusts.^ In general, mere trusts, w^hether expressed or implied, are not subject to sale on execution. But where the statute executes the use declared, and vests the legal title in the cestui que use, the interest or estate becomes the subject of sale on execution/ An estate for years is a chattel real, and as such is sub- ject to sale on execution.* The equity of redemption is liable to be taken and sold under execution, except where the judgment is for the debt secured by the mortgage ; in ■which case the statute provides that the equity of redemp- tion shall not be sold under such execution.^ Where the debt upon which the judgment is based and the execution is issued is secured by mortgage of real estate, the attorney must indorse on such execution a brief description of the premises mortgaged, referring to the page and book of the record in which the same is recorded, with directions to the sheriff not to levy thereon."^ The interest of persons holding contracts for the pur- chase of real estate, are not bound by the docketing of a judgment or decree, nor are they bound by execution issued thereon."^ But such interest of the debtor may be ascertained and sold under a decree of the court."^ A mere naked claim of ownership of land, unaccompa- ' Idem, § 25. * 2 R. S., 368, § 31; 2 N. T. S. at L., 'Chap. 1, Pt. 2, R. S.; 2 R. S., 727; 382. § 45: 15 N. Y., 481 ; 3 Barb., 574. " Idem, § 32. » Garfield V. Eatmaker, 15 N. Y., 481. '' 1 R. S., 744, § 4, 1 N. Y. S. at L., * 2 R S., 359, § 3 ; 2 N. Y. S. at L., 696. 371. * Idem, § 5. THE EXECUTION. 55 nied by possession, is not sucli a riglit, title or interest in land as can be sold on execution.^ Lands which have been fraudulently conveyed away for the purpose, and with the intent, to hinder, delay or defraud creditors, or other persons, of their lawful suits, damages, forfeitures, debts or demands, are liable to seizure and sale on execution, the same as before such conveyance, as the statute declares such conveyances void,* except as to purchasers for a valuable consideration, without notice of such fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.^ iSak of real property. It is the rendition and docketing of the judgment which binds the real estate, and not the levy of an execution thereon ; therefore a formal levy on land is unnecessary ; the judgment binding the land, the execution comes as a power to sell.* Before real estate can be sold upon execution, the time and place of such proposed sale must be publicly adver- tised previously for six weeks successively in the following manner : First, a written or printed notice thereof must be fastened up in three public places in the town where such real estate is to be sold, and if the place of sale be in a town other than the one in which the premises are situated, then such notice is also to be fastened up in three different places in the town where the premises are situated ; Second, a copy of such notice must be printed once in each week in a newspaper of such county, if there be one ; Third, if there be no newspaper printed in such county, and the premises to be sold are not occupied by any person against whom the execution is issued, or by some person holding the same as tenant or purchaser under such person, then such notice must be published in the state paper, once in each week,^ and such notice must describe the premises to be sold with common certainty, by setting forth the name of the township or tract, and the number of such lot, if there be any, and if there be none, > 1 Wend., 502. * Wood v. CoMn, 5 Hill, 228 ; Cm- » 2 R. S., 137, § 1 ; 2 N. Y. S. at L., ningham v, Cassidy, 17 N. Y., 278, 142 ; See numerous issuea uader per Denio, J. the latter statute. * 2 R. 3., 368, 369, § 34; 2 N. Y. 3. at • Idem, § 5. L., 382. 56 ADMINISTEATION OF CIYIL JUSTICE. then by some other appropriate description.^ The publi- cation of notice must commence six fall weeks previous to the day of sale. But it is sufficient to post a notice as required by statute, forty-two days j^revious to the sale, and to publish a copy thereof in six successive numbers of a weekly newspaper, although the first publication in the paper may be less than six weeks prior to the day of sale,^ and, under the statute,'^ the omission of the sheriff or other officer to give the notice of sale required thereby, or the taking down, defacing the notices when put up, will not affect the validity of auy sale made to a purchaser in good faith, without notice of such omission or offense.^ A sheriff advertising land for sale on but one execution, cannot proceed to sell on that, and also on another execu- tion coming to his hands subsequently to such advertise- ment. Having advertised on but one, he can state no other in his certificate or deed of sale. The whole sum bid, however, should be inserted, that the debtor or a cred- itor, coming to redeem, may know the auiount to be paid, and the purchaser may be secure to receive the amount he has paid.* The sheriff should sell no more real estate than is neces- sary to satisfy the execution,^ and when such estate consists of several known lots, tracts or parcels, they must be sold separately ; and any x^erson claiming to be the owner of them or any of them, or claiming to be entitled by law to redeem any such portion, may require of the sheriff', that he expose such portion for sale separately.^ The statute, in this provision, is held to be directory merely,® and a sale in violation of the above requirement, is voidable only and not void.^ The Code provides, that real property adjudged to be sold, must be sold in the county where it lies, by the sheriff of the county or by a referee appointed by the court for that purpose, &cJ This provision hardly seems applicable to sales under executions, but rather to sales on partition, foreclosure, or in other cases where the order of sale was a part of the determination of the court. » Idem, § 35. * 2 R. S., 369, § 38; 2 N. T. S. at L., » Olcott V. Eobins, 21 N. T., 150. 383. » 2 R. S., 269, § 40; 2 N. Y. S. at L., « Cunningham v. Ca-ssidy, 17 N. T., 383; 13 N. Y., 189; 22 Barb., 171. 276; see 2 Paige, 54; 18 Johns., * Mastcraft v. Van Antwerp, 3 Cow., 355; 13 How., 555. 334. ■> Code, § 237, last clause. THE EXECUTION. S7 Tlie certificate of sale. The title of land sold under execution is not vested in the purchaser until fifteen months after the sale,' therefore the sheriff does not execute his deed immediately after sale ; but instead thereof, he gives to the purchaser a certificate of the sale and files a duplicate of the same in the office of the clerk of the count}' within ten days after such sale, and where there are two or more purchasers, a certificate must be delivered to each.^ It is the duty of the clerk or register of the county receiving such duplicate, immedi- ately to record the same in a book provided for that pur- pose, and to properly index the same in the name of the defendant or defendants in the judgment,^ which record, or a certified copy thereof, is made evidence of the facts therein contained in all courts, &c.^ The certificate given by the sheriff must contain the following particulars: 1. A particular description of the premises sold; 2. The price bid for each distinct lot or parcel; 3. The whole consideration money paid; 4. The time when such sale will become absolute.'* An omission to file this certificate of sale by the sheriff will not preju- dice the title of the purchasers, as the statute requiring the same is directory merely.^ The effect of the sale. The seizure and sale of the defendant's land under exe- cution does not divest the estate^ of the debtor until the purchase-money is paid and the' deed delivered.® The certificate of sale conveys no title, but the debtor is still entitled to the enjoyment of the land and the rents and profits thereof until the time of redemption has expired.'^ But though the debtor is entitled to the possession and enjoyment of the land during the fifteen months for re- demption, j^et he will be liable for any waste committed by him after the sale.^ The sale under the judgment con- verts the general lien into a specific one to the amount of the bid and the interest thereon.^ * 2 R. S., 370, § 45; 371, § 50; 2 N. * CuUin v. Jackson, 8 Johns., 520; Cun- Y. S. at L., 384, 385. ningham v. Cassidy, 17 N. Y., 279; « 2 R. S.. 370, §^ 42, 43. see 17 How.. 10; 15 Wend., 260. » L. 1857, ch. gV, p. 93. '' 20 Johns., 3; 2 Wend., 507 ; 4 Barb., * 2 R. S., 370, § 42; 2 X. Y. S. at L., 159; 17 Id., 157. 383. * 3 Denio, 79; 14 N, Y., 474. * Jackson v. Youn/f, 5 Cow., 2G9. * 11 Paigo, 71. II.— 8 58 AD:vnNISTRATIOX OF CIVIL JUSTICE. The purchaser, under a judgment, acquires all the right and title of the judgment debtor therein, including all covenants and estoppels running with the laud,^ but if that interest terminates before he is entitled to the enjoyment of it — as purchasing the title of a tenant from year to year — the deed from the sheriff will give him no title to the premises.^ ISTor will the purchaser, under an execution, acquire rights which are merely equitable in their character ; as such cannot be sold under an execution^ — as, the interest of a purchaser under an executory contract.* The application of the proceeds of the sale. Where the oflScer has sold the premises under a particu- lar execution, he may, at any time before the return of the process, apply the proceeds upon another execution which he, subsequent to the sale, discovers to be prior to that under which he sold.^ The prior execution having been constructively levied, the sheriff is at liberty to apply thereon so much of the proceeds of the sale as will satisfy it."^ If there is surplus money in the hands of the sheriff after paying off the execution, it will be subject to the control of the court, and a junior judgment creditor may obtain an order for the payment of it upon his execution,^ even though his lien had expired.^ But the court will not interfere, on motion, in the disposition of the surplus money in the sheriff''s hands when the rights of the claim- ants are not clearly ascertained.^ Where other judgment creditors have liens upon the lands sold on a prior execution, their liens are transferred to the surplus, if any remains, which must be applied to them in their order of priority.^" So a grantee of the debtor is entitled to the surplus in preference to creditors obtaining judgments subsequent to the grant.^^ Right of redemption. The statute has provided that the real estate sold under execution, or any district lot, tract or portion thereof, * 1 Paige, 473 ; 4 Id., 578. ° Idem. « 17 Barb., 394. ' 1 Wend., 87. » Garfidd v. Hatmfiker, 15 N. Y., 475. » 18 Wend., 628. *\1 Barb., 394; 1 R. S., 744, § 4; 1 « 5 Johns., 163. N. Y. S. at L., 696; see also 9 N. "6 Barb., 470; I Paige, 558. Y., 49. " 7 Weud., 259. * Peck v. Tiffany, 2 N. Y., 45 L THE EXECUTION. 69 which may have been separately sold, may be redeemed bj^ the payment to the purchaser, his personal representa- tives, or assignees, or to the officer making the sale, for the use of such purchaser, of the sum of money bid on the sale of such lot or tract, together with the interest on such sum from the time of sale at the rate of ten per cent per annum, provided such payment be made within one year from such sale.^ Leasehold estates or terms for years and chattel interests were not deemed to be within these I)rovisions of the Revised Statutes.^ But by the amend- ment of 1837,^ when the lessee or assignee of leasehold property has an unexpired term of five years in the premises sold, also any buildings erected thereon, he may redeem."* The five years unexpired time refers to five years from the time of sale.^ This right may be exercised by the person against whom the execution was issued, and whose right and title were sold in piu-suance thereof; and if such person be dead, then by his devisee of the premises sold ; and if the premises shall not have been devised, then by the heirs of such person ; or by the grantee of such person, who shall have acquired an absolute title thereto by deed, sale under mortgage, or under an execution, or by any other means.'' The trustees of an absent debtor, being vested with all his estate by the statute,'^ are entitled to redeem his real estate from sale under execution within one year," and in case none of the persons so entitled to redeem the premi- ses, shall do so within the year, then any creditor, having in his own name, or as assignee, trustee, representative or otherwise, a decree in chancery or judgment at law, ren- dered at any time before the expiration of fifteen months from the time of such sale, or having a mortgage duly recorded within the same period, and which shall be a lien or charge upon the premises sold, or upon any parcel thereof which shall have been separately sold, may acquire the right of the original purchaser, by paying the sum of money which was i3aid on the sale of such premises or upon any parcel thereof sold separately, together with the * 2 R. S., 370, § 45 ; 2 N. Y. S. at L., ' 1 Hill, 150. 384. * Idem. § 46. » 2 Cow., 497; 19 Johns., 73; 2 Wend., ' 2 R. S., 15, g 3; and 41, § 6. 507. « 15 Wend., 248; 2 R. S., 370, § 46j » L. 18,^7, cli. 4G2. 2 N. S. at L., 384. * 20 Wend., 417. 60 ADXIXISTRATION OF CIVIL JUSTICE. interest thereon, at the rate of seven per cent per annum from the time of such sale.^ The creditor acquiring the title or rights of the original purchaser is liable to be defeated by any like creditor in the following manner : The latter creditor may reimburse the former, or his personal representatives or assigns, by paying the sum he may have paid to the original i)ur- chaser, with seven per cent interest ; and also paying to such creditor the amount of any prior lien he may have had on such premises at the time he acquired the title.^ In the same manner any third or otlier creditor may, in accordance with the foregoing provisions, acquire the title of the original purchaser, from the second, third, or any other redeeming creditor, he being within, and complying •with, the foregoing provisions.^ So, likewise, the original purchaser being a creditor of the defendant within the foregoing provisions, may acquire the title of any pur- chaser, &e.* The fact that the judgment of the redeeming creditor •was confessed for the exi)ress jmrpose of enabling him to redeem, is no objection, if it was on full consideration,^ and a judgment obtained intermediate the sale and the time fixed for redemption, is a lien within the law author- izing redemption.'^ A sale under a judgment for less than its amount, and a deed to the purchaser, extinguishes its lien upon the land, so that such judgment creditor cannot redeem from a sale under a senior judgment.' Nor can the plaintiff in an execution, under which the land was sold, redeem, even though the purchase-money was wholly applied to prior executions. In such case, he should have withdrawn his execution, or bid higher.^ But a creditor having two judgments, may sell on the junior, and redeem under the senior judgment.^ The statute has not provided for the concmTent redemption by several judgment creditors, holding judgments docketed at the same instant.^'' * 2 R. S., 371, § 51 ; 2 N. T. S. at L., p. 385. The same rights are also extended to a creditor by mortgage on real estate, his assignee or representative. See L. 1856, ch. 525, § 1. ' 2 R. S., 372, § 55, as amended by L. ■= 1 Cow., 443 ; Id., 501: 7 Id., 540. 1847, ch. 243, § 2; N. Y. S. at L. ' 8 Johns., 333: 4 Cow!, 133. 386. * 4 Hill, 544. See also 20 "Wend., 602; » Idem, § 56. 2 N. Y.. 484; 10 Paige, 249. * Idem, § 57 ; 7 Cow., 658. " 4 Denio, 137 ; 2 N. Y., 484. * 2 Cow., 518. " 1 Hill, 639. THE EXECUTION. 61 Any heir, devisee or grantee, having acquired title to any portion of the premises, or to any separate part thereof, may redeem the premises as if he were tlie grantee of the whole ; and has his remedy for contribution against the owners of the residue thereof.^ So likewise joint tenants and tenants in common in the premises sold, or in any particular lot or tract thereof, can redeem their share by paying to the purchaser or officer as above directed, a sum that will bear the same proportion to the whole pur- chase-money bid for the premises, &c., as the share pro- posed to be redeemed bears to the whole number of shares in such premises, with interest at the rate of ten per cent.^ But the right to redeem is ojily co-extensive with the lien, therefore a judgment creditor of one of several tenants in common, has no right to redeem from a pur- chaser who acquired the whole estate.^ At such sale by the sheriff, a person, not the debtor, having become the owner of the land which is subject to the judgment lien, may become the purchaser at such sale, and acquire a title under it which will not merge in the title he previously held, consequently in such case another judgment creditor may, under the statute, redeem or acquire the interest of such purchaser, and thus become entitled to the sheriff's deed.^ The mode of acquiring the title of the original purchaser, or of redeeming the land sold, or to become substituted as a purchaser from any other creditor, is to present and leave with such purchaser, or creditor, or othcer who made the sale, as the case may be, the evidence of his right to redeem or be substituted, &c., which is : 1. A copy of the docket of the judgment or decree under which he claims the right to purchase, duly certified by the clerk of the court or of the county in which the same is docketed ; or, 2. A copy of the mortgage under which he claims the right, duly certified by the clerk of the county where it is regis- tered and recorded ; 3. A verified cojjy of all assignments of such judgment or decree so far as they are necessary to establish his claim ; or, 4. A verified copy of all assign- ments, if any, of the mortgage under which he claims his rights; 5. An affidavit of the amount due on such judg- ment or decree at the time of claiming such right ; or of » Idem, § 47. * 19 Johns., 379. " Idem, I 48. * 19 N. Y., 369. 62 ADMINISTRATION OF CIVIL JUSTICE. the true amount due or to become due on sucli mortgage at sucli time, over and above all payments.^ The whole bid, with interest, must be paid by the redeeming creditor without preference to priority of liens. If his judgment is intermediate to two judgments on which the land is sold, and it was sold for enough to pay both, he cannot redeem by i^ayment of the senior judgment.' If the payment to redeem be short through the mis- take or miscalculation of the sheriff, it will not affect the redemption.^ But it is otherwise when the wrong compu- tation is made by the party himself, or his agent,* though a slight deficiency of a few cents may be disregarded.^ And when, by mistake, as to the sum required to be paid, the redeeming creditor pays to the sheriff but a part of that which is required, he cannot remedy the defect by subsequently paying the balance and taking a deed." And if there are other matters to be established to show the right of the applicant to redeem, &c., then such other matters are to be set forth in like manner, as, when an executor or administrator applies to be substituted, &c., the letters of administration or letters testamentary must also be proved by duly authenticated copies thereof. The affidavit of the one seeking to acquire the title must state positivelj^ the amount of his demand in such a manner that, if his statement be false, perjury can be assigned thereon. If it be less positive than this it will be fatally defective.' Although a mere error in stating the amount, if made in good faith, will not invalidate the affidavit.^ Xor will a mistake made by the sheriff in computing the amount be permitted to invalidate the pro- ceedings.^ The person seeking to acquire the title of the land sold, must be careful that all copies of assignments, &c., be dul.y verified by the oath of the proper person, or his pro- ceedings will be defective. Thus, the copy assignment must be verified by the i)arty himself, a subscribing wit- ness, or by some person who saw it executed.^" The statute further provides^^ that all redemptions here- ' N. Y. S. at L., 387, § 60. « 1 Denio. 272. ' 7 Hill, 159: 1 How., 77. ' 20 X. Y., 354. ^ 1 Cow., 481 ; 7 Cow., 540 ; 9 Barb., * 7 Barb., 341. 17; 3 Barb. Ch., 639; 1 Barb. Cli., ' 9 Barb., 17. 53. "2N. Y., 484; L. 1836, cli. 325, § 2. ♦ 1 Barb. Ch., 53. » L. 1847, ch. 410, § 3. ' 9 Barb., 17. THE EXECUTION. 63 after made for any creditor, on or after the last day of the fifteen months, shall be made at the office of the sheriff of the county in which the sale took place. It is also made the duty of the officer making the sale? to attend at said office during the last day for making such redemp- tions, and during the time thereafter in which such redemptions may be made ; and in case of the absence of such officer from such office, at such time, then the redemp- tion may be made to the sheriff, and, in his absence, to the under sheriff, or any deputy present at such office.^ The payment by a judgment debtor, for the purpose of acquiring the rights of the purchaser, &c., to the county clerk, who had no special deputation for that purpose, to act in the sheriff's behalf in receiving money for the redemption of real estate sold upon execution, is of no avail, although the sheriff has no other office than that of the clerk, and is not present, either by himself or deputy, to receive the money .^ But the officer selling the land has authority to appoint a i)erson his agent, to compute and receive the amount required on redemption.^ The sheriff may receive payment in good bank bills,'* although a check on a bank is not good, unless presented and paid within the time for redeeming. So the sheriff may take foreign coin at their current value.^ So he may take the transfer of j)roperty or securities to which ail parties in interest are agreed.^ If the redemption be made prior to the last day of the fifteen months, the officer to whom it is made, must immediately tile in the office of the clerk of the county a statement of such redemption, which shall contain the title of the cause, or, in case of mortgage, the parties thereto, the amount of the judgment, decree or mortgage, the assignee, representatives or trustees thereof, if any, and the amount paid to redeem, the time when the redemption was made, and the sum claimed to be due upon such judgment, decree or mortgage at the time of the redemption." It is further provided'' that any creditor having the right to redeem, may redeem within twenty-four hours after any preceding redemption ; and that no deed upon any ' Laws 1847, ch. 410, § 3. '4 Hill., 613. ' 15 N. y., 528. " 2 How., 117. ' 9 Barb., 17. ^ Laws 1847, ch. 410, § 3. * Idem. • Idem, § 4. 64 ADMINISTRATION OF CIVIL JUSTICE. sale or redemption shall be executed until after the lapse of twenty-four hours after the last redemption. It is also made the duty of the officer making such sale, or any other x)erson lawfully acting in his behalf, when- ever any such redemption shall be made, to execute to the person making such redemx)tion, his certificate, truly stating all such facts transpiring before him at the mak- ing of such redemption as shall be sufficient to show the fact of such redemption,^ which certificate being proved or acknowledged as deeds are required to be, to entitle them to be recorded in the clerk's office of the county in which the real estate sold is situate, is to have the effect as against subsequent incumbrancers and purchasers as deeds and conveyances duly proved and recorded, to be proved in courts as such deeds and conveyances, &c., are proved.^ An equitable owner of real estate may maintain pro- ceedings to set aside a sale as fraudulent during the time allowed for redemption, as the sheriff's certificate is a cloud upon such title f or such owner may redeem the land from the effect of such sale, and then obtain a temx)orary injunc- tion to prevent the sheriff paying over the money to the purchaser of such land under the execution, and litigate with such purchaser for the money rather than for the land.* Eedemption by the debtor will continue or restore the liens of a junior judgment, even where the sale had been had under such junior judgment, but which was over- reached in the application of the jjroceeds to the senior judgment.^ So also the lien of a junior judgment attaches when the land has been sold by a receiver by order of the court, in a case where the senior judgment creditor filed a creditor's bill to set aside a fraudulent conveyance of the judgment debtor, procuring a receiver to be appointed, and a conveyance to be made by the debtor to such receiver, such junior judgment creditor not being a party to such proceedings.^ The principle involved is, that the receiver only conveys the title he received from the judgment debtor, which -was subject to the lien of such junior judg- ment at the time of such conveyance, and consequently such junior judgment creditor may proceed to have such lands resold to satisfy his judgment.^ ' Idem, § 5. M How., 329; see also 16 N. Y., 567. " Idem, § 6. » 18 N. Y., 347. « 18 N. Y., 516. • 19 K y., 369. THE EXECUTION. 65 The defendant in the execution, or his grantees, &c., can- not redeem after the year.* The day of the sale is excluded in computing the time to redeem.^ The judgment credi- tors whose right to redeem is postponed until after the year, may do so within the next three months, or within fifteen months from the day of sale ; and the fifteen months al- lowed are calendar months, not hmar.^ And when the last day happens on Sunday the redemption must be made the day before.* If the day of sale be July 18, 1835, the debtor's year will expire July 18, 1836, and the creditor's fifteen months will include the 18th of October, 1836." The hour may be any time before midnight of the last day.^ The time may also be extended by a valid agreement made in good faith, between the judgment debtor and the purchaser, and a subsequent judgment creditor will be bound by such agreement made prior to his judgment. This is upon the principle that it is competent for the purchaser to release his interest, which is that which alone is redeemable." Where, after a sale of land upon execution by a sheriff, the time for redemption by a creditor has expired, the sale and deed by the sheriff cut off all judgment liens junior to the judgment on which the sale was had, and the holder of such junior liens cannot redeem upon a subsequent sale under a judgment senior to the one on which the first sale was made.^ So where there were five judgments which were suc- cessive liens against the same debtor, and his lands were sold under the first, second and fourth for a sum sufficient to pay the first two and part of the fourth, and the re- spective creditors in the third and fifth judgments, in order to acquire the title of the purchaser, each delivered the proper papers, and each paid the amount of the bid, but neither paid the other's judgment, it was held that the creditor in the third judgment was entitled to the convey- ance.^ A creditor, by redeeming, takes the place of the pur- chaser and is bound to extinguish intermediate liens to protect the purchaser; but his judgment is not thereby satisfied.'" ' 1 Cow., 443. • 1 Hill, 111. » 2 Cow., 518. ' 4 N. Y., 544. » Idem. ' 1 Denio, 633. * 1 Wend., 42 ; 1 Cow., 147. • 2 N. Y., 484. • 19 Wend., 87. " 20 Wend., 50; 8 Paige, 286. II.— 9 66 ADMINISTRATION OF CIVIL JUSTICE. On redemption by the debtor or his grantees, &^., within the year, the certiticate of sale becomes void, and a deed subsequently executed by the sheriif is inoperative.^ A slight variance between the judgment and execution will not vitiate the title of the purchaser; in fact, any variance which might be amended, as, of course, should be deemed immaterial.^ The sheriff' 's deed relates back to the time of sale in favor of a bona fide purchaser,^ especially is this so where there are no rights of third parties to be aflfected thereby ;* although it is held that under the act of 1820, the sheriff's deed takes effect from, and should be dated at, the expira- tion of the time to redeem.^ The deed is null where there was not a subsisting power in the sheriff' to make it at the time of its execution,*^ as where it had been redeemed, &c.^ But where he has full power to make the deed, and he executes it, and it is unambiguous, it is conclusive" and cannot be contradicted in its averment of facts by parol proof. If there has been any irregularity in the sale, or the sheriff's deed be untrue in point of fact, the party injured has his remedy, by motion, in court or by bill." Sheriff^s deed. By ivliom executed. It may be executed by his deputy, in the name and on behalf of the sheriff.^ If the sheriff who sold the real estate die or is removed from office be- fore executing the conveyance in pursuance of such sale, such conveyance may be executed by his undersheriff' in the same manner and with the like effect as if done by the sheriffV" and if there is no undersheriff, then the court from which the execution issued may, on application of the plaintiff, appoint some suitable person to proceed on such execution and complete the same, and on the appli- cation of any person entitled to a conveyance, the court may appoint a proper person to execute the same," and there being no money to be collected or other act to be ' 15 Wend., 248. ' 11 Wend., 422; 12 Id.. 248. » 4 Wend., 462 ; 18 Johns., 7 ; 8 Wend., * 1 Wend., 83 : 11 Id., 422. 676; 4 Id., 585. » 10 .Johns., 223; 12 id., 162. ' 15 Johns., 309. " 2 R. S., 374, § 65 ; 2 N. T. S. at L., * 3 Cow., 75. 308. ' 20 Johns., 3 ; 2 Wend., 507. " Idem, § 66. * 12 Barb., 240. THE EXECUTION. 67 done, security will not be required of tue person so ap- pointed.^ Its requisites. The deed must specify, with certainty, the lands sold and to whom they were sold.- The descrijjtion must be such that the land sold can be definitely located and de- termined; and where the description of the premises sold is correct, a variance between it and the certificate will not affect the purchaser's title.^ It need not recite the judgment and execution. It will be sufficient if it appears that the judgment and execution were the authority under which the sheriff acted.* Manner of enforcing an execution for the delivery of possession of real or personal property . The judgment being for the delivery of the possession of real or personal property, the sheriff is required to deliver the possession of the same — particularly describing it — to the party entitled thereto, and the execution at the same time may require the officer to satisfy any costs, damages or rents, profits recovered by the same judgment, out of the i)ersonal i^roperty of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein, if a delivery thereof cannot be had ; and if sufficient personal property cannot be found, then out of the real i)roperty belonging to him on the day when the judgment was docketed, or at any time thereafter.^ The arrest of the defendant. Where the action is one in which the defendant might have been arrested as provided by the Oode,^ an execution may issue upon the judgment recovered therein against the person of the judgment debtor to any county within the jurisdiction of the court, after the return of an execu- tion against his property unsatisfied, in whole or in part."' But in such case no execution can issue against the per- son of such judgment debtor, unless an order of arrest ' 10 Wend., 562. ' Code, § 289, 4tli clause. ' 2 Jolins., 248; 2 Cain, Gl, " i^g 179, 181. » 4 Wend.. 585. ^ Code, § 288. ♦ 4 Barb., 180; 10 Johns., 381 ; 5 Cow., 529; 9 Id., 182. 68 ADMINISTRATION OF CIVIL JUSTICE. has been served as provided by the Code/ or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179 of the Oode.^ Those causes of action referred to, where a statement of facts in the complaint would be likely to show a cause of arrest, are: 1. Where the action is for an injury to person or character; or, 2. For injuring or wrongfully taking or wrongfully detaining or converting property; or, 3. For a fine or x>enalty; or, 4. On a promise to marrj''; or, 6. For money received or property embezzled or fraudu- lently misapplied by a public officer, or by an attorney, solicitor or counselor, or by an officer or agent of a cor- poration or banking association, in the course of his employment as such, or by a factor, agent or broker or other person in a fiduciary capacity ; or, 6. For any mis- conduct or neglect in olBce or in a professional employ- ment ; or, 7. For the recovery of the possession of personal property unjustly detained when the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof; 8. Where the action is against the defendant for a debt fraudulently contracted, or for the taking, detention or con- version of property fraudulently concealed or disposed of by him. In other cases, where the cause of arrest does not appear in the complaint, an order of arrest must have been served before the docketing of the judgment in which the execution against the person is sought to be obtained.^ Where the cause of action is so stated in the complaint that there could have been a recovery without finding the facts alleged to make the defendant liable to arrest, and there is a general finding for the plaintiff, an execution cannot issue against the person of the defendant ; but in such a case, if the defendant recover, he can issue an exe- cution against the person of the plaintiff for costs.^ Where the defendant has been arrested at the commence- ment of the suit or before judgment, the plaintiff" must proceed within a reasonable time after judgment to charge him in execution, or he will be entitled to an order of ' Idem., § 183. » MiUer v. Scheider, 2 N. Y., 262. •Hoflf. Bov. Rem., 103; Code,.§ 183. TE[B EXECUTION. 69 supersedeas} The statute provides^ tliat where any defend- ant, at the time judgment is rendered against him in any court of record, shall be in custody, either upon process or by surrender of bail in such suit, that the plaintiff shall charge him in execution thereon within three months after the last daj^ of the next term following that at which such judgment shall have been obtained, and wheii the de- fendant shall be in custody upon a surrender in discharge of bail made after judgment obtained against him, and the bail are discharged or exonerated, that the plaintiff shall then charge the defendant in execution thereon within three months after such surrender, or if an execution against property has been issued, then within three months after the return of such execution.^ The plaintiff neglecting thus to charge the defendant in execution, the defendant may be discharged bj' supersedeas^ to be allowed by any judge of the court in which such judgment was obtained, unless good cause can be shown why he should not be, and the defendant being so dis- charged, cannot be again arrested upon an execution issued upon such judgment.^ 77ie order for arrest. An execution against the person of the defendant may be issued without an order of the judge in all causes where the right to the same is apparent upon the record. But where extrinsic facts are to be established to the satisfac- tion of the judge before such right is manifest, then there must be a proceeding before the judge to obtain the proper order. Where the plaintiff has inserted in his complaint allegations of fact not strictly necessary to establish his right of action, and which might be stricken out as sur- X)lusage on motion of the defendant, if such allegations show the cause of action to be one entitling the plaintiff to an order for an arrest of the defendant, it would be proper for the defendant to move to have such allegations stricken from the complaint; and oniitting to do so, after judgment obtained therein, he might be liable to arrest in execution without an order for that jjurpose.'^ He certainly would be, if the allegations were deemed to be admitted by the pleadings or established by the verdict or judgment. • 2 Abb., 20. *See 17 How., 481: 12 Abb., 430; 4 » 2 11. S., 556; 2 N Y. S. at L., 571. Bosw., 646; 18 How., 469. /Idem, § 37. 70 ADMINISTEATION OF CIVIL JUSTICE. But if the facts alleged as constituting the liability of the (lefendaut to arrest were negatived by the verdict, although the plaintitf recover judgment, an execution against the person of the defendant, in such case, could not be issued.^ So when the allegations are merely col- lateral, and not essential to the plaintiif 's cause of action, a judgment by default does not establish such collateral facts sufticientiy to justify the issuing an execution against the person of the defendant without an order.^ It has been held that an execution could not be issued against the person of the defendant upon the judgment, in an action of ejectment, even though the action were for the wrongful withholding of the property therein named.^ On the contrary, it has also been held, that in an action to recover the possession of real property, and damages for the unlawful withholding of the same, the defendant may be arrested and held to bail.* The latter decision is upon the ground that the action of ejectment and the action to recover the mesne profits are substantially actions of tres- pass for unlawful entries upon real property ; and as such the defendant is liable to arrest under section 179 of the Gode.^ In cases where the right to arrest is apparent upon the record, if the plaintiff fails in his action and judgment is entered against him for costs, &c., he will also be liable to arrest on execution issued on such judgment.^ The question, when an execution might issue against the person of the defendant without an order, is very fully considered in the case of Hinnplirei} v. Brown,' by Hoge- BOOM, J. He lays down the following : " An execution may issue against the person of the defendant without an order, 1. Where the action is one iu which, from its very nature, and from the facts necessarily stated in the com- plaint as the cause of action, the j)laiutiff would neces- sarily have been entitled to an order of arrest ; 2. Where the action is one in which the facts entitlino- the plaintiff to an order of arrest is not inherent in the cause of action itself, but independent thereof, if an order of arrest has ' 3 E. D. Smitli, 1. * Idem, 68; see the reasoning of Brown, " 17 How., 481 ; 11 Abb., 62 ; 4Bosw., J., in this case. 627. « 30 Barb., 61 ; 2 N. Y., 262 ; 4 Sandf., ' 18 Barb.. 441; 10 How., 37 655. * 30 Barb., 61. ^ 17 How., 481. THE EXECUTION. 71 been in fact granted and enforced ;^ 3. Where the right to arrest depends upon facts extrinsic to the cause of action, and the complaint sets out acts of fraud, such as would have entitled the plaintiff to an order of arrest, aud the defendant has not answered ; 4. In an action upon a fraud, and the fraud is established on the trial, and the fact is incorporated in the decisiou of the court and made a part of the record ; 5. Where an order of arrest in the action is made and submitted to by the defendant ; or where, upon controversy, it is adjudged to be proper." He held that an order of arrest would be necessary in the following cases : 1. Where it does not appear, by the record, that the case is one which necessarily justifies an arrest, unless an order were previously granted; 2, Where no facts justifying an arrest are stated in the complaint, and no order of arrest is made ; 3. Where the facts justi- fying an order of arrest are set forth in the complaint, but are extrinsic of the cause of action itself, and the defend- ant suffers default. It is further held that where the right to hold to bail depends upon extrinsic facts, and not upon the nature of the cause of action itself, that right must be asserted and enforced before judgment, in the manner prescribed by the Code ; and if not so asserted no execution against the j)erson of the defendant can be issued upon the judgment.^ As the provisions of the Code prohibiting arrest in civil cases do not apply to or affect the act abolishing imprison- ment for debt, and to punish fraudulent debtors,^ the plaintiff having omitted to jjrocure an order of arrest prior to judgment in certain cases, where the facts entitling him to such an order, are extrinsic to his cause of action, may still obtain his warrant of arrest, after he has obtained his judgment or decree, under the provisions of the act known as the " Stillwell act."* Requisites of tJie execution against the person, &c. As a prerequisite to an execution against the person of the defendant, one must have been issued against his pro- Ijerty, and returned unsatistied in whole or in part, there- fore the execution against the body should show upon its face that such prior execution has been properly issued and ' 13 Abb., 241, and note. ^ L. 1861. ch. 300, § 1 ; 4 N. Y. S. at »17 How., 481; 18 How., 469; 4 L., 465. Abb., 102. * Idem, § 4. 72 ADMINISTKATION OF CIVIL JUSTICE. returned ; and failing to do so, it is liable to be adjudged irregular, and to be set aside.' It is not necessary that the statutory period of sixty days for the return of the execu- tion against property should have intervened between its issuing and return ; a hona fide return within that period is proper.^ In general, it is not necessary that the facts rendering the defendant liable to arrest, should be stated in the exe- cution. It will be sufficient if they exist. The nature of the action and the return of an execution against property unsatisfied is sufficient.^ Further than this, it must require the sheriff to arrest such defendant and commit him to the jail of the county until he shall pay the judgment or be discharged according to law,^ although an omission in the direction, of the words "or be discharged according to law," will not vitiate the process,^ and the execution may, in such mere formal matters, be amended. It is not neces- sary that the execution should have the seal of the court or the signature of the clerk.'^ The defendant having been arrested on an execution against his body properly issued, he may be discharged therefrom by paying the amount for which he is charged in execution ; or he may avail himself of the privilege extended to insolvent debtors, and obtain his discharge under the provisions of the insolvent debtor's act ; or he may be discharged voluntarily by the plaintiff in execu- tion — after he shall have been in custody for thirty days — with a view of preserving his remedy against the property of the defendant.' Committing the defendant to jail. It is a part of the command of the execution against the person of the defendant, that he be conmiitted to the jail of the county until he pay the sum named in the exe- cution, or be otherwise discharged according to law. It therefore becomes the duty of the sheriff, having arrested the defendant, to commit him to jail unless he pay the demand or be otherwise legally discharged ; and the sherift' having taken the defendant into custody, becomes ' 19 How., 91 ; 9 Abb., 220 ; 4 Bosw., * Code, § 289, subd. 3. 384. ' 9 N. Y., 208. ' 5 Duer, 681. » Code, § 286. ' 9 N. Y., 208; 18 Barb., 441. ' L. 1857, ch. 127. THE EXECUTION. 73 responsible for his safe keeping until he is legally dis- charged. Jail liberties. The jail liberties are considered as an extension of the walls of the prison, and a confinement of the debtor within the liberties of the prison, is a compliance with the requirements of the execution,^ and although it is sufficient if the debtor be confined on the liberties, yet the sheriff is not bound to enlarge his confinement beyond the prison walls, unless the debtor executes to him a bond according to the provisions of the statute for his indemnity in case of the escape of the debtor. The provisions of the statute are, that every person who shall be in the custody of the sheriff of any county by virtue, 1. Of any capias ad res- pondemlum ; or, 2. Of any execution in a civil action ; or, 3. By virtue of any attachment for the non-payment of costs in a civil action ; or, 4. In consequence of a surrender in exoneration of his bail, — shall be entitled to the liber- ties of the jail, which shall have been established in such county according to law, upon executing a bond to the sheriff and assigns of the following character :^ 1. It shall not be less than double of the amount of the sum in which the sheriff is required to hold the defendant to bail, if he be in custody on mesne process, or be surrendered in exoneration of his bail before judgment docketed against him ; 2. It shall not be less than double the amount directed to be levied by the execution or attach- ment, if he be in custody upon attachment or execution ; 3. It shall not be less than double the amount for which judgment shall have been rendered against him if he be surrendered after judgment docketed,^ and such bond shall be conditioned that the person, so in custody of the sheriff, shall remain a true and faithful prisoner, and shall not at any time or in any manner, escape or go without the limits, and boundaries of the liberties established for the jail of such county, until discharged by duo course of law." This bond is given for the indemnity of the sheriff, and when sufficient, he is required to accept it and grant the '3 Johns. Cas., 73; C Johns., 121; 2 'Idem, § 41. 2 P. & D. Pr., 395. * Idem. § 42. • 2 R. S., 433, § 40 ; 2 N. Y. S. at L., 452. II.— 10 74 ADMTNISTRATION OF CIVIL JUSTICE. liberties of tlie jail to the debtor ;^ but not until sucb lib- erties are legally defined ;^ and when they are defined, it is the duty of the debtor to ascertain their boundaries and observe tliem.^ The bond being merely for the indemnity of the sheriff, he is at liberty to waive the bond and grant the liberties upon his own responsibility." So if the sheriff, having taken any such bond, shall discover that any surety to the same is insufiicieut, he may commit the prisoner to close confinement until other good and sufficient sureties are offered.^ The liberties of the jail for each county of the state, where they are not especially defined by statute, are to be designated by the court of common i)leas of such county — now county courts'' — and may be altered in their dis- cretion, not oftener than once in three years.' They are to consist of a reasonable space of ground adjacent to the jail, laid out in a square or parallelogram as near as may be ; but any stream of water, canal or highway, may be adopted as an exterior line, notwithstanding the same may not be a straight line or be at right angles with the other exterior lines of such liberties, they are not to exceed five hundred acres in extent; a minute description of the boundaries of which are to be entered on the minutes of the court, with their extent; and such boundaries and limits are to be designated by monuments, or enclosures, or posts, or other visible and permanent marks.^ For the i)urpose of making known the liberties of the jail a copy of the minutes of the court — county court — establishing such liberties, and of the minutes making subsequent alterations, made and certified by the clerk of the county, must be delivered to the keeper of the jail; and certified copies of any original establishment of liber- ties, and all alterations made in respect thereto, must be, immediately after their entiy in the minutes of the court, made out and delivered to the keeper of the jail, who must keep them exposed to public view in some open and public part of such jail; and the jailor is required to ex- hibit the same to every person admitted to such liberties * 3 Jolins. Gas., 73; 2 Id., 205. = L. 1851, ch. 26, § 1. ' 5 Johus,. 89. '' 2 R. S., 432, §§ 33, 34; 2 N. Y. S. at ^ 7 Johns., 168. L., 451. * 6 Johns., 121: 3 Johns. Gas.. 73. " 2 R. S., 433, § 34; 2 N. T. S. at L., * 2 R. S., 434, § 44 ; 2 N. Y. S. at L., 451. 453. THE EXECUTION. 75 at the time of his executing his bond for that purpose.' Should there be any uncertainty as to the limits as de- scribed in the map or survey on the record, the reputed lunits have been held to be the best evidence of the actual liberties.^ B}' the provisions of the act to supi)ress intemperance,^ it is declared that in any judgment rendered or recovered on any bond to be given under such act, or for any penalty incurred thereunder, the person or persons against whom such judgment shall be rendered shall not be entitled, under any execution issued on such judgment, to the liberties of the jail,^ The statute provides that "all prisoners committed to any jail upon jjrocess of contempt, or committed for mis- conduct in the cases prescribed by law, except on attach- ments for the non-payment of costs, shall be actually confined and detained within such jail until they shall be from thence discharged by due course of law, or shall be removed to some other jail or place of confinement, in the cases ijrovided by law ; and if any sheriff or keeper of a jail shall permit or suffer any prisoner so committed to such jail to go or be at large out of his prison, except by virtue of some writ of luibeas corpus or rule of court, or in such other case as may be provided by law, he shall be liable to the party aggrieved for his -damages thereby sus- tained, and shall be deemed guilty of a misdemeanor.* So also if any prisoner committed to any jail by virtue of any capias ad respondendum or other 'mesne process, or upon any surrender in exoneration of his bail, made either before or after judgment rendered, shall go or be at large without the limits and boundaries of such jail without the assent of the party at whose suit such prisoner shall have been committed, the same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail, shall be answerable' therefor to the party in an action of trespass on the case, to the extent of the damage sustained by liim.^ So, also, if any prisoner committed to any jail in execu- tion in a civil action, or upon attachment for the non- payment of costs, shall go or be at large without the » 2 R. S., 433, §§ 38, 39; 2 N Y. S. at * 2 B,. S., 437, § 61; 2 N. Y. S. at L., L., 452. pp. 455, 456. "•? Jolins., 175. 'Idem, § 62. »L. 1857, ch. G28; 4 N. Y. S. at L., 40 (55), § 32. 76 ADMLNISTRATIOIT OF CIVIL JUSTICE. boundaries of tlie liberties of such jail without the assent of the party at whose suit such prisoner was committed, the same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail shall be answerable therefor to such party for the debt, damages or sum of money for which such prisoner was committed, to be re- covered by an action of debt.^ The going at large within the limits of the liberties of the jail by any prisoner who has executed a bond for the limits, or by one who would be entitled to the liberties of the jail upon executing such bond, is not to be deemed an escape ; but going beyond such limits without the assent of the party at whose suit such prisoner is in custody, is to be deemed an escape, and forfeiture of his bond for the limits, and in such case the sheriff may pursue after and retake the prisoner as if he had escaped £'om jail.^ Where there has been an escape the sheriff is not per- mitted to allege error or irregularity as an excuse therefor.^ Thus, where the defendant had been discharged from im- prisonment under the insolvent law, and in a suit on the original judgment he omitted to plead his discharge and was taken in execution in the second suit and escaped, in an action against the sheriff for such escape, it was held that he could not set up such former discharge as an excuse or justification therefor/ vSo even he would be liable, though the debtor were improperly discharged by the order of a judge or commissioner on luibeas corpus^ So a slight departure trom the limits of the liberties is an escape even though the deviation was to avoid a bank of snow in the ijath,^ or where the debtor departed about sixteen feet from the limits and entered an office, and re- turned within an hour.^ So also an escape of a prisoner while in a state of insanity renders the sheriff liable." The creditor in his action against the sheriff, must show his judg- ment and execution, the prisoner taken, jfnd afterward, without the four walls of the prison. The sheriff must then justify his being at large by showing the liberties established and defined according to law; failing in this, his defense fails.' If the debtor in execution leave the liberties of the jail by the consent of the judgment creditor, such consent will ' Idem, § 63. ■• 15 Johns., 152. » 2 R. S., 434, § 47 ; 2 N. Y. S. at L., * 5 Johns., 89. 453. « 1 Paine, 295. • 15 Johns., 152 ; 13 Id., 378. '' 5 Johns., 96. THE EXECUTION. 77 not only excuse the escape but likewise discharge the judg- ment. But the consent must be given prior to the escape ; for the right of action having accrued can only be defeated by a release under seal, or an agreement for a valuable consideration.^ But where the creditor, after an escape, agreed with the sheriff, in consideration that he would not retake the debtor, that he would not sue him without notice, and a reasonable time to retake the debtor, it was held to be a valid agreement, and that the creditor could not sue without such notice.^ The statute further provides that "in every action against a sheriff or other officer, for the escape of any prisoner, the defendant may plead or give notice that before the commencement of such action, such prisoner voluntarily returned to the jail from which he had escaped, or to the liberties thereof; or that such defendant retook such prisoner and had him within the jail from which he had escaped, or within the liberties thereof, before the commencement of such action, and, in either case, that the escape was made without the consent of the defend- ant.' ~ The sheriff permitting a voluntary escape cannot retake the prisoner without new authority from the plaintiff,* nor will the voluntary return or assent of the prisoner prevent the sherift 's liability in such case,* unless the plaintiff does some act, showing his election to hold the debtor on the old process.^ In an action against a sheriff for an escape if he has neglected to return and file the execution, and has refused to produce it at the trial, after having been duly notified to do so, parol evidence is admissible to show the issuing of the execution, its delivery to the sheriff, and the arrest of the party upon it.^ The sheriff' cannot avail himself of his neglect of duty to defeat an action against him for au escape.^ To make the sheriff liable for an escape not voluntarily permitted, the action against him must have been com- menced before the recapture of the prisoner, or before his return into custody. As to what constitutes a commence- ' 16 Johns., 181 ; 1 Paine's, 290; 2 P. * 2 Term Rep., 25; 2 Johns. Cos., 3: 15 & U. Pr.. 405. Johns., 25G. * 1 Cow., 274. ' 15 Johns., 256. » 2 R. S., 437, § 64; see 10 Johns., 549, " 13 Johns., 529. 563 ; 2 N. Y. S. at L., 456 ; 6 Cow., 132. 78 ADMENISTKATION OF CIVIL JUSTICE. meut of the action against the sheriff, it has been held that the issuing and service of the process on Sunday- being illegal and void, both by common law and statute, it is not such a commencement of the action as will make the sheriff liable.^ The writ must be actually delivered to the coroner, or left at his oftice, or be issued and sent to him with the absolute and unequivocal intention to commence the suit while the prisoner is off' the liberties. It is not sufhcient to hand the writ to a person with instructions to go and see the prisoner off the limits, and then to deliver the writ to the coroner.^ But it will be sufficient if the writ is delivered to the coroner's wife at his dwelling house, in his absence, while the prisoner is beyond the limits.^ Where the sheriff becomes liable for an escape from the limits, if the creditor is willing to take the bond executed to the sheriff by the debtor and his sureties, he can take an assignment thereof, and prosecute the same.* But if he refuse to do so, and prosecute the sheriff' for such escape, the court in which such action shall be pending is required by rule to stay all proceedings against the sheriff, until he shall, have had a reasonable time to prosecute the bond taken by him, and to collect the amount of any judgment recovered thereon.^ But the above does not apply to cases of voluntary escapes by the sheriff.*^ When the defendants are sued by the sheriff on their bond for the limits, they are permitted to plead a volun- tary return of the prisoner to the jail from which he escaped or to the liberties thereof, or the recapture of the prisoner by the sheriff from whose custody he escaped before the commencement of such action ; and may give evidence thereof in bar of such action ; and the defendants are likewise i^ermitted to make any other defense to such suit which might be made by the sheriff, to an action against him for such escape.^ When the action is commenced against the sheriff for such escape, he may notify the defendant and his sureties, who executed the bond for the jail liberties, of the com- mencement of such action for such escape, to enable them » 1 R. S., 675 ; 12 Johns., 178. * 2 R. S., 436, § 59 ; 2 N. T. S. at L. " 18 Johns., 496 ; 4 Cow., 158. 455. = 17 Johns., 63. « Idem, § 60. * 2 R. S., 436, § 55; 2 N. Y. S. at L., '' 2 R. S., 435, § 48; 2 N. Y. S. at L., 454. 453. THE EXECUTION. 79 to (Jefend the same ; in wliich case the judgment against the sheriff becomes conchisive evidence of his right to recover against the prisoner and his sureties, to whom such notice was given, in the action on such bond, as to all matters which were or might have been controverted in the action against the sherifi'.^ In the action brought by the sheriif on such bond, if it appear to the court that judgment has been rendered against the sheriff for the escape of the prisoner, and that due notice of the pendency of the action against the sheriff had been given to the prisoner and his sureties, to enable them to defend the same, the court is required to render judgment in the suit on such bond at the same term in . which the writ by such action shall be commenced, and be returned served,^ provided the sheriff shall have tiled his declaration and prove to the court that he had given the defendants twenty days' notice of the motion for such judgment.^ But if on the hearing of such motion it appear that the defendants have a meritorious cause of defense which was not controverted in the action against the sheriff", and which, by law, could not have been, the court must sus- pend the proceedings on such judgment until a trial in such action can be had ; the judgment remaining a secu- rity for the sheriff,* and if such defense is established the court will then vacate such judgment, and render judg- ment as in other cases.^ In every action brought hj the sheriff on such bond, the recover}^ of judgment against him for an escape of the prisoner, is evidence of the damages sustained by him in the same manner as if such judgment had been collected, and he is also entitled to recover the costs and his reason- able expenses in defending the suit against him, as part of his damages.'^ Discharge under the insolvent laws. There are two methods in which the debtor may be discharged from imprisonment in civil actions, and" yet leave the judgment in full force against his property ; and there are other methods by which he is wholly discharged 'Idem, § 49. "Idem, § 52. ' Idem, ^ 50. " Idem, | 53. » Idem, g 51. • Idem, § 54. 80 ADMIOTSTRATION OF CIYTL JUSTICE. from liis debts. The first method, by which he is only discharged from imprisonment, is as follows : The insol- vent presents his petition to the proper officer,^ praying that his estate may be assigned for the benefit of all his creditors, and that his person may thereafter be exempted from arrest or imprisonment by reason of any debts arising upon contracts previously made, and if in prison, that he may be discharged from such imprisonment.^ On liresenting such petition, the insolvent miist deliver therewith a schedule containing an account of his creditors and their jDlace of residence, and an inventory of his estate both real and x^ersonal, in law and equity, of the incum- brances existing thereon, and of all books, vouchers and securities relating thereto,^ and must annex to such peti- tion and schedule the following affidavit, to be taken and subscribed before the officer to whom such petition is presented : " I, , do swear (or afiirm) that the account of my creditors, with the jjlaces of their residence, and the inventory of my estate, with the evidences of my title thereto which are herewith delivered, are in all respects just and true ; and that I have not at any time or in any manner whatsoever, disposed of, or made over, any part of my estate for the future benefit of myself or family, or in order to defraud any of my creditors, and that I have not paid, or secured to be paid to, or in any way compounded with, any of my creditors, with a view that they or any of them should abstain or desist from opposing my discharge."* Upon receiving such petition, schedule and affidavit, the officer must make an order requiring the creditors of such insolvent to show cause, before such oflicer, at a time and place to be specified therein, why the prayer of such petitioner should not be granted. Notice of the con- tents of such order must be published once in a week for six weeks successively, and if any of the creditors reside more than one hunclred miles from the place at which they are required to show cause, the notice must be pub- lished once in a week for ten weeks successively.^ Every creditor oj^posing the discharge of the insolvent, may demand a jury to determine upon the matter, and is • See 2 R. S., 34, § 1 ; 2 K Y. S. at » 2 R. S. 28, § 2 ; idem, 17, § 5; 2 N. L., § 1, as to what oflBcer; also, Y. S. at L., 29; 2 idem, 18. idem, 28, § 1. « 2 R. S., 28, § 2 ; 2 N. Y. S. at L., 29. » 2 R. S., § 1 ; 2 N. Y. S. at L., 29. » Idem, § 4. and p. 9, § 11. THE EXECUTION. 81 entitled thereto on filing with the oflScer at or before the, first hearing- on such petition, a specification in writing, of the grounds of his objections.^ The manner of drawing the jury, and the mode of trial before them, is particu- larly set out in the statute.^ The debtor himself may be examined before the jury or the ofiicer as provided by law.^ If the jury find in favor of the petitioner, or if there be disagreement, or if there be no jury required, and the ofiicer is satisfied that the petitioner is unable to pay his debts, that his account and inventory jjresented with his petition are true ; that he has not been guilty of any fraud or concealment in violation of these i^rovisions, but has in all things conformed thereto, then the otficer must direct an assignment to be made to an assignee or assignees appointed by him, of all the estate of such debtor, excepting such articles as are exempted from exe- cution.* The insolvent producing and proving a certificate of the assignee, and of the county clerk, according to the provisions of the statute,^ of the execution and recording of such assignment, and of the delivery of the property assigned, or of so much as is capable of delivery, with the books and papers relating to the same, the otficer must grant him a discharge under his hand and seal, forever exempting him from imprisonment by reason of any debt due at the time of making such assignment, or contracted before such time ; and by reason of any liabilities incurred by him, by making or indorsing any promissory note or bill of exchange, or incurred by him in consequence of the payment by any party to such note or bill, of the whole or any part of the money secured thereby, &c.'' He is also to be discharged from imprisonment, if imprisoned on any such liability, by exhibiting his certificate of dis- charge." The discharge is to be void: 1. Where the insolvent has sworn false in his affidavit annexed to his petition, or upon his examination, in relation to any material fact concerning his estate or his debts, or to any other mate- ' Idem, § 5. MR. S., 29, § 8; 2 N. Y. S. at L, »2 R. S., 19, §§ 14, 15, IG, 17, 18, 19; 80. 2 N. Y. S. at L., 19 and 20, » 2 R. R., 21, § 29 ; 2 N. Y. S. at L., 22. » 2 R. S., 29, § 7 ; see, also, idem, 19, "2 R. S., 30, g 10 ; 2 N. Y. S. at L., 30. § 20; 2 N. Y. S. at L., 20 aud 30. ' Idem, § 11. II.— 11 82 ADMINISTRATION OF CIVIL JUSTICE. rial fact ; 2. Where, after the presentation of his petition, he sells, or in any way transfers or assigns, any of his property, or collects any debts dne him, withont giving a jnst and true account thereof on the hearing of his appli- catiou, and does not pay or secure the payment of the money so collected, or the value of the projjerty assigned ; 3. AVhere he secretes any part of his estate, or any books or writings relative thereto, with intent to defraud his creditors ; 4. Where he fraudulently conceals the names of any of his creditors or the amount due any of them ; or, 5. Where he is guilty of anj'^ fraud whatever in procuring his discharge.^ A second method by which an insolvent may become discharged from imprisonment or arrest for his debt is provided for those who are actually imprisoned by virtue of one or more executions in civil causes upon which there is due a sum not exceeding five hundred dollars. The particular manner of conducting such proceeding is de- scribed in the statutes,^ to which reference is made for instruction therein. In connection with these xiroceedings provision is made to prevent a debtor, charged in execution for three months, from wasting his property in confinement. The object of this provision is to compel the debtor to make his appli- cation for a discharge within a reasonable time by some of the methods founded by statute, or to be precluded from afterwards obtaining it. Such provisions are found in the Eevised Statutes.^ The methods by which the insolvent may be wholly discharged from his debts are too lengthy to be inserted herein. They will be found in detail by reference to the Revised Statutes.^ 'When retumahle and by vihom. The execution is made returnable within sixty days after its receipt by the oflflcer to the clerk with w^hom the record of judgment is filed.^ The sheriff is entitled to the full sixty days within which to execute his writ, and cannot be compelled to return it sooner.^ But lie is at liberty to ' 2 R. S., 30, § 13;. 2 N. Y. S. at L.. = 2 R. S., 33, §§ 16, 17; 2 N. Y. S. at 31 ; see 2 R. S., 23, § 35 ; 2 N. Y. L., 34. S. at L., 24. " 2 R. S., 16-28 ; 2 N. Y. S. at L., 16-23. » 2 R. S., 31-35; 2 N. Y. S. at L., 31- ^ Code, g 290. 35. ^ 17 How., 157 ; 9 Abb., 382. THE EXECUTION. 83 return it sooner, when he has collected the debt, or has become satislied that there is no property on which to levy it. But he must act in good faith, if his return is to be made the basis of other proceedings against the defend- ant or his property.^ The propriety of a short return can- not be questioned by a third party, but the question, if raised at all, must be upon a direct application by the debtor himself.^ If the sherifi' delay the return of the execution beyond the time allowed by law, he may be compelled to do so by a process of contempt. The method of compelling such return, is for the party aggrieved to serve on the officer a notice to return the execution within ten da^s, or show cause at special term to be designated in said notice, why an attachment should not issue against him.' His return should be according to the facts ; if he has made the money on the execution in whole or in part, he so states the fact ; if he could not find property whereon to levy, such fact is also stated ; if he has levied upon goods which remain unsold for want of bidders, he returns such fact. The return of the sheriff may be amended or corrected by leave of the court. The supreme court has power to authorize the sheriff to withdraw from the files an execu- tion, and to cancel a return of niiUa bona made thereon. And such return, thus canceled by permission of the court, will not estop the sheriff' from suing for a conversion of the property committed before the return was made.* But after he has returned as satisfied, or nulla bona, the execution under which he levied, he has no longer a right to a return of the property in a replevin action in which it was taken from him after the levy.^ He might, however, obtain leave of the court to correct his return if it were just for him to do so. The court may also compel a correct return, whenever the legal situation of the parties require it.*' The slieriff" is required to execute and return the execu- tion upon his own responsibility, and the court is not bound to give him directions in respect to his duty.'^ But See 15 How., 410; 18 Id., 33; 17 Id., M4 N. Y., 270. 157. ' 2 How., 51. 33 Barb., 327. " 2 Duor, G45. Rule 8; see also 2 R. S., 440, § 77 ; '4 Diier, 676; 2 Abb., 101. 2 N. Y. S. at L., 459. 84 ADMINISTRATION OF CIVIL JUSTICE. "where the plaintiff or his attorney interferes with the pro- ceedings of the sheriff in the execution of such process, any dehiy or loss occasioned by such interference will not be charged to the sheriff"/ bnt in such case the sheriff must have pursued the directions given or he will not be exonerated.^ The return must be made by the sheriff", or in his name. A return by a deputy sheriff" in his own name is not suffi- cient." It is his duty to see that the execution, with the return properly indorsed, is filed with the clerk of the pro- per court, and he may, if he chooses, return the money col- lected to such clerk instead of paying it over to the party. The manuner of executing judgments and decrees when they require the performance of other acts than the pay- ment of money, will be considered in the chapter upon punishment as for contempt. Tlie manner of compelling a return thereof. At any time after the day when it is the duty of the Bheriff", or other officer to return, deliver or file any process, undertaking, order or other paper, by the provisions of the Code, any party entitled to have such act done may serve on the officer a notice to return, deliver or file such pro- cess, undertaking, order or other paper, within i^w days, or show cause, at a special term to be designated in said notice, why an attachment should not issue against him.* Tlie execution of a judgment in the nature of a dea-ee^ or order. When a judgment requires the performance of any other act than the payment of money, a certified copy of the judgment may be served upon the party against whom it is given, or the person or officer who is required thereby, or by law, to obey the same, and his obedience thereto enforced. If he refuse, he may be punished by the court as for a contempt.^ The Code prescribing no special course of proceedings in cases of this character, the i)rac- titioner will necessarily have recourse to the statutes for instruction.'' The further consideration of this subject will be postponed to the chapter on contempts. » 24 Barb., 278. ♦ Code, Rule 8, Aug.. 1858. 'ION. Y., 398. * Code, §285. • 2 Gai., 61. • 2 R. S.,"534 to 541 : 2 N.Y. S. at L., 552. SUPPLEMENTARY TO THE EXECUTION. 85 CHAPTER IV. i PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION. The plaintiff having exhausted the means given him by execution to satisfy his judgment, without complete suc- cess, is authorized to institute sui)plementary i^roceediugs before a judge, requiring the judgment debtor to appear before such judge and answer respecting his property. The Code^ provides that when an execution against pro- perty of the judgment debtor, or any one of several debtors in the same judgment, issued to the- sheriff of the county where he resides, or has a place of business, or if the debtor do not reside in the state, then to the sheriff of the county where a judgment roll, or a transcript of a justice's judgment for twenty-five dollars or upwards, exclusive of costs, is filed, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return made, is entitled to an order from a judge of the court, or a county judge of the countj* to which the execution was issued, or a judge of the court of common pleas for the city and county of New York, where execution was issued to such city and county, requiring such judgment debtor to appear and answer concerning his property before such judge, at a time and place specified in the order, within the county to which the execution was issued. That after the issuing of an execution against x)roperty, and upon proof by affidavit of a party or otherwise, to the satisfaction of the court, or a judge thereof, or a county judge, or any judge of the court of common i)leas for the city and county of Kew York, that any judgment debtor residing in the county where such judge or ofiicer resides, has property which he unjustly refuses to ap])h' towards the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place to answer concerning the same ; and such proceedings may thereupon be had for the appli- cation of the i)roperty of the judgment debtor towards the satisfaction of the judgment, as are xn'ovided upon tho return of an execution. And whenever it is made to > § 292. 66 ADMINISTRATION OF CIVIL JUSTICE. appear, by affidavit, to a justice of the supreme court, that such comity judge or judge of said court is incapacitated from acting iu any of the proceedings whatever herein authorized, from any cause or causes whatsoever, such justice of the supreme court shall have the same power and authority in all cases whatever, as are hereby conferred on him as to cases of judgments in the supreme court. That on an examination under this section, either party may examine witnesses in his behalf, and the judgment debtor may be examined in the same manner as a witness. That instead of the order requiring the attendance of the judgment debtor, the judge may issue a warrant upon proof by affidavit or otherwise to his satisfaction, that there is danger of the debtor's leaving the state, or con- cealing himself, and that there is reason to believe he has property which he unjustly refuses to apply to such judg- ment, which warrant shall require the sheriff of any county where the debtor may be to arrest him and bring him before such judge. That upon being brought before such judge, he may be examined upon oath, and if it then appear that there is danger of the debtor leaving the state, and that he has property which he has unjustly refused to apply to such judgment, he may be ordered to enter into an undertaking, with one or more sureties, that he will, from time to time, attend before the judge as he shall direct, and that he will not, during the pendency of the fjroceedings, dispose of any portion of his property not exempt from execution ; and, in default of entering into such imdertaking, he may be committed to prison, by war- rant of the judge, as for a contempt. That no person thus examined shall be excused from answering any question on the ground that his examina- tion will tend to convict him of the commission of a fraud.^ Kor shall he be excused from answering any question on the ground that he has, before the examination, executed any conveyance, assignment or transfer of his property for any purpose. But his answer shall not be used as evidence against him iu any criminal ijroceediug or i)rose- cution.^ Before whom these proceedings may he instituted. Generally, under the provisions of this section of the Code, the proceedings are instituted before a judge, and » Code, § 292. SUPPLEMENTARY TO THE EXECUTION. 87 not before the court as siich.^ Although, under the pro- vision for an examination of the judgment debtor respect- ing property which he unjustly refuses to apply toward the satisfaction of the judgment, the court or judge may make the order requiring him to appear at a specified time and place, to answer concerning the sanie.^ But, ifc is held that in the ordinary proceedings under this chapter, the authority is personal, and is vested in the judge before whom the proceeding is originally commenced. That the authority being statutory, the provisions of the statute must be strictly observed.^ Hence, it was held, that a motion made and decided at special term that an attach- ment issue against the defendant for neglecting to deliver his property to a receiver, appointed in such i)roceedings, should have been made before a judge out of court, as the court had no jurisdiction to make such an order.* After the proceedings have been duly instituted, the jurisdiction of the judge remains until the examination of the debtor is completed, and all orders made by the judge in respect to the property of the judgment debtor, are fully executed,^ So when he makes an order appoint- ing a referee to examine as to the property of the judg- ment debtor,'^ he is the one to whom the referee must certify his examination.^ The law, however, as applicable to the first judicial district, is held to be difterent. By the Code,'' every pro- ceeding, in that district, commenced before one of the judges of said court, may be continued before another of the judges in said district. Under this provision it has been held, that a proceeding commenced in said district by a judge competent to institute it therein, may be con- tinued in such district, before any other judge competent to have commenced it.^ But the power to punish a party for disobeditnice of an order of the judge is given to the judge and not to the court,'" and the attachment in such case should be made returnable before the judge and not before tlie court,^" and being returned before the court the defendant would, necessarily, be discharged from custody." * Miller v. Rossman, 15 How., 10. ° Code, § 209. 'Code, § 292, sub. 2; 17 How., 80. ' Smith v. Johnson, 7 How., 39; 6 "Belling v. Vandenburyh, 17 How., 80; Id., ;550. Webber v. Ilobbie, 13 How., 382. ' § 27. * Idem; see also 13 How., 173. ° Dresser v. Van Pelt, 15 How., 19. * 13 How., 382. ■" Shepherd v. Dean, 13 How., 173. 88 ADMINISTRATION OF CIVIL JUSTICE. By the provisions of the Code, a county judge of the county to which an execution is issued is authorized to take cognizance of these proceedings ; consequently, it has been held that all officers invested by statute with the powers of a county judge may exercise jurisdiction in these cases.^ Hence, the recorder of the city of Troy has jurisdiction in supplementary proceedings.^ So also has the recorder of Oswego, &c. But proceedings supplementary to execution are held to be, in no sense, identical with the ordinary chamber busi- ness, but are of a special and higher nature — a substitute for an action in chancery. Hence, the court held, that an officer, merely invested with the powers of a judge of the supreme court at chambers, is not thereby vested with jurisdiction over proceedings supplemental to executions ; and that the city judge of Brooklyn had no such jurisdic- tion to entertain these prceedings on a judgment of the supreme court.^ A judge of the supreme court, as such merely, has no jurisdiction over proceedings under the judgment of the county court, or of the New York court of common pleas,' except when it is made to appear by affidavit, to the satis- faction of the justice of the supreme court, that such county judge or judge of the court of common pleas is incapacitated from acting in any of the proceedings what- ever, authorized b}^ such provision of the Code, in which case such justice of the supreme court obtains the same power and authority in all cases as if the same was a pro- ceeding under a judgment in the supreme court.* The nature of the proceeding. The supplementary proceeding is a proceeding in the action, rather than a new or original one, or a "special proceeding,"^ although, in respect to remedies provided against third persons not parties to the suit, it partakes somewhat of the nature of a special proceeding. In many respects these proceedings are a substitute for the old mode of proceeding by creditor's bill under the statute, and it has been held that the rules settled in reference to the proceedings under tliese bills, may be regarded as * Hayner v. James, 17 N. Y., 316. * Code, § 292. * 13 How., 495. ' Bank of Genessee v. Spencer. * 1 Code R., 79, note. SUPPLEMENTAEY TO THE EXECUTION. 89 controlling, when not altered by the Code, or the practice under it.^ The supplementary proceedings of the Code are de- signed more particularly for reaching the property of the judgment debtor, where there is no dispute as to the title, and where nothing is required to be done except to ascer- tain its existence, and provide for its application to the satisfaction of the judgment. But if there is any contro- versy as to the title, or if the relief sought involves the exercise of high chancery powers, such as setting aside conveyances, and the like, then the proceeding hj credi- tors' bill will be more appropriate f which remedy is still preserved, the Code having repealed no part of such pro- ceedings, except that part which authorizes a discovery.^ Against tohom, and hi what cases, this jyi'oceeding aj^pUes. This preceeding may be had against the judgment debtor, or any one of several judgment debtors in the same judgment, after an execution against the property of such debtors has been properly issued, and returned in good faith by the proper ofiicer, " unsatisfied in whole or in part."* The amendments of 1863' also provide, that these proceedings'' may be taken upon the return of an execution "unsatisfied," issued upon a judgment recovered in an action against joint debtors, in which some of the defendants have not been served with the summons by which such action was commenced, so far as relates to tho joint property of such debtors ; and that all actions by creditors, to obtain satisfaction of judgments out of the jjroperty of joint debtors, are maintainable in the like manner and to the like effect. The proceedings mentioned in section 292 of the Code, are held to be applicable only in cases of judgment and execution against natural persons, capable of having a residence in the common acceptation of that term, and, hence, not applicable to judgments against corporations. That, where resort must be had against corporations in such cases, the remedies prescribed b}^ the statute against corporations are still in force and should be pursued."' ' 2 Abb., 457, (458.) ■■• Catlin v, Doughty, 12 llow., -157. * 12 How., 307 ; id., 457. * Code, g 292. » L. 18G:'., GGl, cli. 392 ; see also 1 Code Rep., 94'; 1 Sandf., 722. ' Code, §5 292 and 294. ' 10 How., 487 ; id.. 403 ; 2 R. S., 463; 2 N. Y. S. at L., 483. II.— 12 90 ADMINISTKATION OF CIVIL JUSTICE. Nor are such proceedings applicable to insolvent corpora- tions,^ nor to a case against a foreign consul, who has permitted judgment by default,=^ nor in any case where, iu the eye of the law, the judgment has become dis- charged. WJiat must appear to confer jurisdiction. The powers given by the Code ^ for proceedings in these cases are merely statutory ; consequently, the facts neces- sary to bring the case within the provisions of section 292 must be proved, to give the judge jurisdiction. The mere appearance of the judgment debtor and his examination without objection does not confer jurisdiction.* But the judge having acquired jurisdiction, it will continue until the proceedings are terminated.* Before the execution creditor is entitled to this remedy, it should appear that his remedy on the execution is really exhausted. There must be nothing like the appearance of collusion or want of good faith in the return of the execution. If it appear that the execution has been re- turned unsatisfied at the request of the execution creditor, and not by the sheriff in the responsible discharge of his ofiicial duty, the order will not be granted; or if granted, will be revoked.^ The execution must have been returned unsatisfied in whole or in part, before the judgment creditor is entitled to this remedy," except as to the relief contemplated in the second part of this section. Under the provisions of the second part of section 292 of the Code, this relief may be had, provided, after the execution has been issued and before it has been returned, the creditor can prove to the satisfaction of the judge that the debtor has property not subject to levy, or which is so kept by him that it cannot be clearly identified, or, with ordinary care and diligence, be reached by execution.^ But if it appear that the property referred to be claimed to belong to another, as the wife of the debtor, these summary proceedings will not be applicable.'* It is not necessary that the sheriff should retain the ' 11 How., 29. « 7 Abb., 234; 6 Id., 211; 15 How., * 2 Diier, 658. 410. ' § 292. "• 10 How., 560. * 10 How., 561. » Code, § 292, subd. 2; 10 How., 560; * 13 How., 383. 13 id., 137. SUPPLEMENTARY TO THE EXECUTION. 91 execution in his hands for the period of sixty days before returning it. If he returns the execution " unsatistied," upon his othcial responsibility, and without fraud or col- hision, before the ex[>iration of the period allowed for returning- the same, the order may be properly granted.^ The order for an examination., hoio applied for, and the affidavit. The application for the order for an examination of the judgment debtor is made by aflSdavit, setting forth all the statutory requisites, such as the entry of judgment, the issuing of execution to the proper couutj^ and the return of the same "unsatistied," in whole or in part,^ and every other fact or circumstance necessary to give validity to the proceedings in the particular case.^ The affidavit setting forth, in general terms, the neces- sary preliminary facts essential to such ijroceedings, need not go into the lesser details of the same, although care should be taken to set them forth with sufhcient certainty to show the party entitled to this remedy. It has been held, however, that the judgment creditor has a right to the examination under the Code, whenever an execution has been returned ''unsatisfied,'' in whole or in part,* and that this right to an examination is, like the right to dis- covery in the creditor's action, unqualitiedly given under such circumstances.* An omission to state in the affidavit, in direct terms, that the execution was against proijerty, will not be fatal as the presumption will be that it was;^ but, nevertheless, omissions of that character in the state- ment of facts should be avoided. Where the ai)plication is by an assignee of the original judgment creditor, his title to the judgment must be al- leged for the purpose of showing his right to move in the premises." So, also, where the defendant has been once examined, and a second examination is sought, the reasons for such second examination should be stated in the affi- davit.' The affidavit must truly describe the judgment upon which the ijroceedings are based, or the proceedings them- » 2 Paige, 418; 2 Sand., 679; 5 How., ^ 9 Abb., 180; 9 Barb., 378. 39G. ' 13 Abb., 418, Dote. * Owen V. Du'pignac, 9 Abb., 180; see this case for form of aflSdavit and order, &c., or the manner of stating the facts. » 1 Code R. [N. S.], 211. '' 2 Hilt., 534. • 5 How., 508; 18 Id., 96; 1 Code Rep. [N. S.], 232. 92 ADMINTSTEATION OF CIVIL JUSTICE. selves will be void.' But an omission to allege that a justice's judgment was for more than $25, exclusive of costs, when the court can see from the amount of it that it must have been so, will not vitiate.^ It is said that in proceedings before a county judge, the rule is more strict than before a supreme judge or judge of the court. The reason assigned is, that the county- judge being an inferior officer, all facts upon which his jurisdiction is based must be shown affirmatively, as nothing can be presumed in favor of a limited or inferior jurisdiction.^ "Who may apply for the order. In general, the judgment creditor is the proper person to make the application for the order, and to make the affidavit. If there are substantial reasons why the judg- ment creditor cannot make the application, &c., those reasons appearing, it may be made by his agent or attor- ney. But, if possible, the affidavit should be made by the party himself. The assignee of a judgment may institute these pro- ceedings, although he become such, after the execution has been returned.* And where the affidavit shows the credi- tor to be assignee of the judgment, it sufficiently shows his authority to proceed,^ and the proceedings by assignee may be either in his own name or in the name of the nominal plaintiff."^ The order^ and by whom. The affidavit being properly prepared, the application for an order for examination of the judgment debtor is made to the judge of the court, or to a county judge, &c., according to the circumstances. The debtor can be brought up for examination only in the county in which he resides, or has his place of business ;" and in case of a judgment of a local court of another county, the order must be obtained from a county judge.'' Since the amend- ment of 1858, the debtor may be brought up for examina- » 10 Abb., 62. * 1 C. R. N. S., 232. ' 1 Abb., 320. s 3 Sandf., 376. ' 5 How., 44G. ' Code, § 292. * Orfs Case, 2 Abb., 457. * 1 Duer^ 594. SUPPLEMENTARY TO THE EXECUTION. 93 tion in tlie county where be has his place of business, even though be sboukl not reside in such county.^ It must also be remembered, that when an execution is issued on a judgment of a county court, or of a justice of the peace, a justice of the supreme court has no jurisdic- tion to make the order, except in cases where it is made to appear to his satisfaction b}^ aifdavit, that such county judge, or judge of said court of common x>leas of the city and county of New York, is incapacitated ii-om act- ing, &c.^ Where a judge, residing in one county, requires a judg- ment debtor, residing in another county, to appear before him and be examined, under section 292 of the Code, the order is irregular, and would be set aside. But such irregularity is confined to such specific order, and would not attect another order made by the same judge and at the same time, under section 298 of the Code forbidding the debtor to interfere with his property.^ We have already seen that the court has no authority to interfere in supplementary proceedings excex)t on appeal, and except under the provisions of the second division of section 292, and that the special term has no jurisdiction to make any order coucerning such proceedings or con- cerning the property discovered by means thereof.* Where the debtor has property in his possession open and notorious, and which is within reach of execution, and he shows no design of removing it, or of fraudulently disposing of it, supplementary proceedings cannot be maintained without a return of the execution. In order to authorize the proceedings after nierel}' issuing the exe- cution, property not subject to levy, or so held that it Cimnot, with diligence, be reached by execution, must be shown .^ A warrant may be issued for the arrest of the judgment debtor, upon proof, by affidavit or otherwise, that there is danger of the debtor leaving the state or concealing himself, and that there is reason to believe that he has property which he unjustly refuses to apply to such judgment, which warrant will require the sheriff" of any county where such debtor may be to arrest him and bring him before the » L. 1858, p. 493, § 10. '9 How., 39. » See Code, § 292. as amended in 1 859 ; M 7 How., 80. Bee G How., 108; also 1 Code Rep., * 10 How., 560. N. S., 79. 94 ADMINISTRATION OF CIVIL JUSTICE. judge issuing the same. This warrant is issued in place of an order for the examination of the del)tor.^ The granting of an order does not, of itself, create any iien or charge even upon the property of the judgment debtor.^ But if the proceedings are carried forward and perfected by the appointment of a receiver, the lien will then not only attach but will relate back to the date of thj original order. •* The order usually contains the injunction clause pro- hibiting the judgment debtor from transferriug or disposing of any of his properly not exempt from execution, because th3 judgment creditor has a right to have satisfaction of his judgment out of the property of the defendant; and where the original order does not contain that clause, a further order may be obtained for that purpose.* An in- juuction granted in connection with the original order will not necessarily be vacated on account of any irregularity in the order, provided such part as is necessary to sustain the iuj unction be regular.^ Service of the order. This is made usually by serving a copy of the original order upon the defendant personally, and at the same time giving him copies of the affidavits upon which the order was obtained. The original order should also be exhibited to the defendant at the time of serving such copies.® Proof of this service is made by affidavits, whether served by sheriff or otherwise.' The defendant having been served with such order must obey it, or he will be liable to a proceeding as for a contempt. Where there is a valid objection to the order, such as is fatal to it, it may be made available on the plaintiff's motion founded on a default of appearance. The usual method of taking such objection is at the time of appearance, by refusing to answer. It may be taken on special motion, made upon ijreliminary notice to that effect.* > Code, § 292, sub. 4. ' See WiUon v. Andrews, 9 How., 39. " Edmonston v. McLoud, 16 N. T., 543; ^8 How., 313; 17 Id., 498; 4 Abb., 2G Barb., 569, 435 ; 9 Id., 385, note, ' Porter v. Williams, 9 N. Y., 142. '' 17 How., 498. * 3 How., 313. * 12 How., 359; 3 Abb., 96. SUPPLEMENTARY TO THE EXECUTION. 95 All mere formal objectious are waived by appearance.^ So, also, submitting" to an examination is a waiver of a formal objection to the jurisdiction of the officer,^ although it is otherwise when the objection goes to the substance.' The examination. The time and place. The debtor being a resident, the examination must be had in the county where he resides, or in which he has a place of business.^ Not being a resi- dent of the state, the examination may be in a county in which the judgment roll is filed; or if the execution be issued upon the judgment of a justice, exceeding twenty- five dollars, exclusive of costs, then in the county in which a transcript thereof has been filed.^ If there are several judgment debtors to be examined, residing in different counties, each debtor must, undoubtedly, be reached by I)roceedings had in reference to him. When the debtor has left the county after the issuing of the execution, his examination may be had in the county where he resided when the execution was issued." The time of the examination is determined by the order, and is fixed in the discretion of the judge. The party is entitled to reasonable notice, and, consequently, a reason- able time should elapse between the service of such notice and the time of the examination. The appearance. If neither the plaintiff or his coimsel do appear at the time of the examination, it will be deemed a discontinuance of the proceedings on his part, and the defendant will be discharged from further attendance; and no order vacating the proceedings will be necessary.'' So, if the judge should be absent, the case would fail. But a mere temporary absence of the judge would not excuse the immediate departure of the defendant, as, the judge appearing within a reasonable time, the proceed- ings would be had, and, the defendant being absent, he would be liable as for a contempt.'' The judge has no authority to adjourn the examination without the consent of the party against whom the pro- ceeding is had f with that consent, it may be adjourned ' 17 How., 498; 8 Id., 313. ' 14 Abb., 257. » 5 Diier, 672; 3 Abb., 119. ' 1 Bosw., 690 (093). * 10 How., 560. * 20 How., 454. * Code, § 292, sub. 1. ' 5 How., 446. * Idem. 96 ADMINISTRATION OF CIYIL JUSTICE. from time to timeJ Sliould there be a failure from acci- dent to the plaiutiff, so that jjroceedings should cease, he will be obliged to commence de novo; and in such com- mencement give some valid excuse for such neglect or default.^ When there has been a proper appearance by all the i)arties, and an adjournment becomes necessary, the plaintiff, as a matter of precaution, should obtain the written consent of the defendant to such adjournment. This becomes proper, as, in case of adjournment, it may become necessary for him to prove that such consent was given. So also the signature of the judge or officer to a short memorandum of the adjournment should be pro- cured.^ Examination of the defendant. The object of the examination of the defendant, or of witnesses on either side, is to ascertain whether the debtor has any property subject to, or exempt from the execution which ought to be applied to the extinguishment of the plaintiff's judgment.* And as the judgment debtor may be examined in the same manner as a witness, his exami- nation will be subject to similar rules as that of a party to the action.^ The examination is, in itself, in the nature of a cross-examination ; and may be prosecuted to any reasonable extent for the purposes of such an examination. Leading questions may be asked of the defendant. But he may refuse to answer them at his peril of being judged in contempt, if they should prove to be proper questions. In the case of Le Roy v. Halsey, above cited, Justice Mason remarked that it was impossible to lay down any particular rules on this subject which would be universally applicable, further, than that the whole examination must have for its single object to ascertain whether there is any property of the debtor which ought to be applied to the payment of the plaintiff's claim ; and the extent of the inquiry in each particular case must be left to the good sense of the officers under whose direction the examina- tion takes place, having in view this general object." As the judgment debtor may be examined as a witness in his own behalf, his examination and cross-examination • 1 Ck)de R. (N. S.), T5 (79). • 1 Duer, 589. » 1 Bosw., 696. • I C. R. (N. S.), 277 ; see also 2 Abb., •Idem. 462; 6 Idem, 212. * LeRoyv. ffalsey, 1 C. R. (N. S.), 275. SUPPLEMENTAKY TO THE EXECUTION. 97 are liable to be rebutted.^ When the examination only leads to the discovery of property in the possession of a third person claiming title in himself, no order can bo made to compel the defendant to deliver it over; con- sequently the investigation in that direction is at an end in these proceedings; for it is a general rule, in these proceedings, that the examination can onlj' be extended to the discovery of property either in the possession or under the control of the defendant. When it is in the possession and control of third parties, the remedy is by action.^ But when the debtor discloses that he still retains an interest in the property sold, the inquiry may be still further pursued.-' These examinations and answers, whether had before a judge or referee, are to be upon the oath of the party or witnesses examined, except in cases where a corporation answers, it is to be upon the oath of an officer thereof.'* After the examination is complete, it will be necessary for the plaintiff to move the judge for such further order as is necessary to carry out the objects of such examina- tion. Should the parties, after the examination is con- cluded, leave the matter without an adjournment, or the appointment of a receiver, or any other order in the premises, the proceedings will be deemed to have been abandoned. A reference^ when had. Where the investigation in these proceedings is likely to l)ecome protracted or difficult, it is the practice of the judge to order a reference to report the evidence or the facts,^ otherwise the examination is had before the judge at chambers; at least, it has been laid down as a general rule, that a reference will not be made against the wishes of either party except under such circumstances.'^ On an application to a judge for an order for the exami- nation of the judgment debtor, he may at once order a reference and appoint a referee to take the examination. He need not first bring the debtor before him before making such an order.' The referee need not, necessarily, reside in the same county with the judgment debtor where the ' Code, §§ 393, 395. » Code, § 300. » 4 Bosw., 683. • 3 Sand., 742. • 2 Hilt., 438. ' 11 How., 446; 8 Id., 313. * Code, § 29G. II.— 13 98 ADMINISTR/VTION OF CIVIL JUSTICE. proceeding is under subdivision three of section 292 of tlie Code. In that case, the judge has authority to issue Lis warrant for the arrest of the debtor residing in any other county in his judicial district,^ requiring him to be brought before such judge, or a referee by him appointed, to take such examination. Generally, the referee is subject to the same restrictions, as to the plan of conducting the examination, as is the judge by whom he was appointed. The referee has no control over the person of the judg- ment debtor, to compel an appearance, or to punish him for disobedience of orders. He can only report to the judge appointing him.^ Nor has the referee any authority to adjourn the examination without the consent of the defendant, and then summon him to appear again at a future day.^ He properly may decide what effects are to be delivered to the receiver, sjiecifying them particularly,'* and if the articles are iDonderous, he should designate a time for the debtor to attend at the place of delivery. When the debtor is entitled to exemption, the referee should specify and otherwise designate the property of the debtor to be excepted and exempt from delivery to the receiver, as it is not the design of the law to permit the receiver to go and seize, under a general direction to take possession of the debtor's elfects, all such property as, in his discretion, he might deem to fall within the scope of the order.^ The defendant having ])een summoned before a referee under an order of reference to appoint a receiver, and having appeared and been examined on oath as to his proi)erty, and having delivered such property to the receiver, the power of the referee is at an end, and he cannot require the defendant to appear for a second examination without a fm'ther order from the court or officer appointing him.^ The referee making the examination, reports the same according to the order making the reference, to the judge from whom he received his appointment, and not to any other judge of the same court, because the jurisdiction is personal in such judge. It is held, however, that when the reference is made under the 2d division of section 292, ' 9 How., 39. » See 1 Sand., 724, and the remarks of « 8 How., 318. San-dforf., J. » 11 Paige, 180. « 11 Paige, 180: 2 Abb., 457. ♦ 1 Sand., 724. SUPPLEMENTARY TO THE EXECUTION. 99 the referee may report to the court in the usual manner. If required to report the facts of tlie case, he is not at liberty to report the evidence instead ; and if he does so his report will be sent back. There is no case where it is proper, on supplementary proceedings, to review the merits of the original action.^ The examination of a third party. It appearing to the judge, by affidavit, either after the issuing or the return of the execution, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding ten dollars, he may, by order, require such i^erson or corporation, or any officer or member thereof, to appear at a specified time and place, and answer concerning the same. And, if he think proper, he may require notice of such proceeding to be given to any party in the action, in such manner as to him shall seem proper.^ But such notice to the debtor of the examination of a third person is not essential.^ It has been held that this proceeding is merely in aid of the principal proceeding against the judgment debtor, and must be had in connection with it,^ and that, consequently, this order cannot be made after the death of the judgment debtor, and if so made, the proceedings will abate.^ But a contrary doctrine has also been held, that the examina- tion contemplated by § 294 of the Code is a jn'oceeding quite distinct from the execution ; that this examination may be had pending the life of the execution, or after it has been returned ; but that the object of the examination is not to remove obstructions to the execution, that it maj' be satisfied bj" full execution thereof; that whatever is dis- covered or obtained under such examination, is to be applied directly to the extinguishment of the debt embraced in the judgment, and not to the execution; and that, conse- quently, an order staying proceedings on an execution, will not prevent the creditor from i)roceeding under section 294 to make the examinations therein contemplated.^ It would seem, however, that the proceedings contem- plated by section 294 of the Code, might or might not be » 1 E. D. Smith, 404; 1 llilt., i09; S. * 12 How., 136; 10 How., 487; 2 Abb., C, 3 Abb., 96 ; 12 How., 359. 230, « Code. § 294. * 2 Abb. 230. * 4 How., 178; 12 How., 136; 10 Abb., ' Lowber v. The Mayor, dc, of Kew 460. York, 5 Abb., 268. 100 ADMINISTRATION OF CIVIL JUSTICE. in aid of the execution, according to the circumstances under which the order for examination was made. If, at the time of applying for tlie order, the execution remained in the hands of the sheriff unexecuted for want of pro- perty whereon to levy, and the examination should disclose the existence of property liable to levy, there could be no objection to a levy on such property ; or the judge, inider section 297, might order the same to be applied towards the satisfaction of the judgment, by levy and sale on such execution. But if such proceedings were instituted after the return of the execution, and the examination should disclose property or money belonging to the debtor, the judge might order, under proper circumstances, a direct application of the same to the extinguishment of the judg- ment, without any other reference to the execution than the fact that it had been properly issued and returned. The affidavit to obtain an order for the examination of a third party should state affirmatively a sufficient ground for the order. It is not sufficient to state in the alterna- tive, that the third party "has property, &c.," or is indebted, &c.^ The affidavit should state the judgment, the issuing of the execution, and the return of it, if it has been returned, stating the return thereon ; that the person or corporation nought to be examined, has property of the judgment debtor, or is indebted to him in an amount exceeding ten dollars, as the case may be ; each of which allegations may be in general terms, but must be positive and certain, and not in the alternative.^ The examination of sucli third party may be ordered in the county in which he resides without reference to the residence of the judgment debtor. The place, in that respect, may be fixed with reference to the convenience of the parties.^ To lay the foundation for such examination, it will be sufficient to issue the execution to the county where such property is expected to be found, and where such third person resides,^ and it is only necessary that the execution shall have been issued at the time the order is obtained.* It has also been held that proceedings under section 294 of the Code are not applicable to corporations, on the ^ 1 Code R., 38. * 4 Sand., 640. « 8 Abb., 407 ; S. C, 18 How., 258. * 10 Abb., 460. SUPPLEMENTAKY TO THE EXECUTION. 101 principle that an examination under it is merely auxiliary to au examination instituted under section 292, and cannot be set on foot as an independent proceeding.^ There seems to be no substantial ground lor such restriction ; and beside, in the first judicial district, the practice is uni- form to allow an examination of a person indebted to a judgment debtor independently of an examination of such "debtor.^ So where a judgment had been recovered against a joint stock association, sued in the name of its president or treasurer, under the act of 1849, it was held that such officer might be examined in supplementary proceedings under section 294, on showing him to be indebted to the association in a sum exceeding ten dollars.^ So, likewise, the treasurer of a municipal corporation having funds in his hands belonging to the corporation, may be examined.* And persons having funds in their hands belonging to either domestic or foreign corporations, or being indebted to them in a sum exceeding ten doHars, maj^ be examined under section 294.^ But it has been held that public moneys raised by a municipal corporation by tax for pur- poses of government, and in the hands of its fiscal officer, are not the property of the corporation, or a debt due to it, within the meaning of such section.'' So, also, an officer of the court having custody of a fund, cannot be examined either as a person or a corporation under such section. The remedy in such case would be by petition, &c." The order for the examination of such third person must particularly specify the person to be examined, and must designate the time and place for such examination, and require the party to appear at such time and ])lace, either before the judge or a referee, to be examined con- cerning the property in question. This order should be personally served upon such person in season to enable him to obey it at the time specified. Notice of this order need not be served upon other parties to the suit, unless the judge, in his discretion, shall require it. " 12 ITow., 136. ' Idem; 28 Barb., 47G; S. C, 1 Abb., » 5 Abb., 271, note. 347. » 1 Hilt.. 109; S. a, 3 Abb., 9C; 12 * 7 Abb., 248. How., 359. ' 1 Code K. (N. S.), 211. * 5 Abb., 268. 102 ADMINISTRATION OF CIVIL JUSTICE. The person tlius served may be required to attend and submit to such examination, and if be refuse, be may be compelled by process of attachment. A person examined under this section (294) is in effect a party to the proceedings, and his examination is to be conducted on the same principle and in the same manner, as that of the judgment debtor under section 292. His examination is in the nature of a cross-examination, and lie may have the benefit of counsel for advice and instruc- tion in framing his answers.^ The answers to the inter- rogatories being tal^en orally, great liberality is allowed in correcting errors and mistakes, which is done by supple- mental statement, leaving the original unaltered.^ The examination being in the nature of a cross-examination, leading questions are allowable.^ As the examination is to be in respect to property belonging to the judgment debtor which might be ordered to be applied to the extinguishment of the judgment, whenever it appears that the person examined claims the property as his own, the examination is at an end. It is held, however, that the claimant may be examined as to the extent of his claim, though not in respect to his title ; as the validity of his claim must be settled by an action bropght by a receiver, in which he can have the usual advantage of a part3^^ When the party examined claims a lien on, or interest in, the property, he may be examined as to the manner in which, and the time when, the pro- perty came into his hands, as well as into the nature and extent of the lieu claimed.^ The examination of toitnesses. Witnesses also may be examined on any proceedings supplementary to execution, and they may be required to appear and testify in the same manner as upon the trial of an issue.* The examination of the witnesses will be upon oath, and it has been held that they cannot be ex- amined by commission on proceedings under this chapter.* These witnesses are called, either for the purpose of dis- covering proi3erty of the debtor, which may be made subject to the payment of the judgment ; or, for the pur- '5 How., 16. M C. R., 72. * See 3 Code Rep., 157 ; also, 5 How., ♦ Code. § 295. 446; 21 How., 17; Code, § 299. ' 14 How, 52; 6 Duer, 678. SUPPLEMENTARY TO THE EXECUTION. 103 pose of rebutting tlie testimoDy of others given upon that subject ; and the examination may be full as to all matters within the legitimate scope of the inquiry being made. The witness is bound to answer all such questions as may be put to him concerning such property of the judgment debtor, and will not be excused though he should set up a claim to the property iu himself.^ "Wluit property may he reached under these proceedings. It is provided that the judge may order any property of the judgment debtor, not exempt from execution, in the hands of the debtor or of any other person, to be applied towards the satisfaction of the judgment, except that the earnings of the debtor for his personal services, at any time within sixty daj'S next preceding the order, cannot be so applied when it is made to appear, by the debtor's attidavit or otherwise, that such earnings are necessary for the use of a family supported wholly or i)artly by his labor.^ These proceedings will not reach money not actually due to the judgment debtor, but to become due on a con- tingency, or on an executory contract,^ nor will they reach property acquired by the debtor after the commencement of these proceedings,* or movables assigned for the benefit of creditors, even while the execution was in the hands of the sheriff', if it be returned without levy.^ Nor will these proceedings reach the interest of a debtor as a cestui que trust, under a will, by which the executors are to apply the annual income of a fund to the judgment debtor for life.*^ The remedy in such case would be by creditor's bill to sequestrate such annual fund as was not necessary for the maintenance of the debtor." So money due to the debtor on an insurance policy by reason of a loss which accrued after the appointment of a receiver, is subse- quently acquired property, and does not i^ass to tho receiver.^ ' 2 Abb., 4=62. ' 4Sandf., 700; 9 Cow., 728. » Code, § 297. ' 6 Diier, 672; 1 Hilt., 505 » 7 N. Y., L. 0., 184. ' G Duer, 672. * 13 Barb., 335; IG How., 275. ' 8 Abb., 343. 104 ADMINISTRATION OF CIVIL JUSTICE. The appointment of a receiver. The judge before whom these proceedings are instituted has authority to appoint a receiver of the property of the judgment debtor; but before doing so, he must ascertain, upon the oath of the party or otherwise, whether any other supplementary proceedings are pending against such debtor ; and if any such are so pending, the plaintiff therein must liave notice to appear, and must likewise have notice of all subsequent proceedings in relation to such receivership ; and no more than one receiver of the property of the judgment debtor can be appointed. The order for the appointment of the receiver of the debtor's property must be filed in the office of the clerk of the county where the judgment roll in the action is filed, or the transcript of the justice's judgment, as the case may be, npon which the i)roceedings are taken ; and the clerk must record the order in an order book kept for that i^nr- pose, and note the time of the filing of said order. He then delivers to the receiver named therein a certified copy of said order, and the receiver becomes vested with the title to the property of the judgment debtor from the time of the filing and recording of said order.^ But before the receiver becomes vested with the title to auj-^ real property of the judgment debtor, a certified copy of the order must also be filed and recorded in the office of the clerk of the county in which such real estate of the judgment debtor is situate, and also in the office of the clerk of the county in which he resides.^ And the re- ceiver thus appointed is subject to the control of the court in which the judgment was obtained npon which the pro- ceedings are founded ; and where the judgment is upon a transcript from justice's court, filed in the county clerk's office, then he is subject to the direction and control of the county court.^ When the title to the fund in question is disputed so that the title of a third jjarty comes in question, it becomes the duty of the judge to appoint a receiver who should proceed to institute the proper action, under subdivision 5 of section 244 of the Code, to try the title to such pro- perty.^ In the case of Hodman v. Henry,^ Johnson, Ch. ' Code, § 298. * 9 How., 97; 5 Id., 446. ' L. 1803, ch. 392, p. 651. ' 17 N. Y., 482. ' Code, § 298. SUPPLEMENTAUT TO THE EXECUTION. 105 J., remarked, tLat it was the obvious purpose of the series of provisions — from sections 294 to 297 of the Code — "to give the creditor an immediate and summary remedy against the debtor's property, but not to permit the rights of third persons to be brought into litigation excejit in a regular way by suit.'" To authorize the appointment of a receiver under section 298 of the Code, proceedings must have been instituted against the judgment debtor to reach his property generally, and u))on notice to the debtor. A receiver cannot be ap- pointed on the mere examination of a third jjerson under section 294.^ The motion for the appointment of a receiver should be made to the judge granting the order for an examination,^ as no other judge out of court has that power.* The application for such appointment may be made at any time after it becomes apparent that such an appoint- ment will become necessary. If not made while the judg- ment debtor is present at the examination, the motion for such appointment should be upon the ordinary notice to him; and if other supplementary proceedings have also been instituted against such debtor, then also upon notice to the plaintiff in such other proceedings,^ serving only the notice of the motion for such appointment." Where, on the examination of a judgment debtor, it ap- pears that subsequent to the service of an order for the examiuation, the defendant has conveyed, by bill of sale, personal property owned by him, to a creditor who claims to be a bona fide purchaser for value, the judge has no authority to go and try the disputed question of title to such jjroperty. That can only be determined by legal proceed- ings commenced for that purpose by the receiver appointed.' A receiver may be a[)pointed even before it actually appears that the judgment debtor has any property," and the debtor cannot object to such appointment on the ground that the examination has not shown him to be the owner of any property.'' For if he possess no property, he can- not be injured by the appointment of a receiver. The order appointing the receiver should also direct the ' n N. Y., 482. "4 3311^,094. ' 4 How., 178; 5 Id., 29. ■" Tdkrv. Randall, 2G How., 155; seo » 7 How., ?.0. also, 17 X. Y., 482. ♦ Code, §s 292, 296, 298; G How., 350. ' 2 Abb., 470; G Id., 92. » Code, § 298. • 2 Abb., 476; 4 Paigo, 574; 8 Id., 5Ga 106 ADMINISTEATION OF CIVIL JUSTICE. judgment debtor to deliver bis property to sucb receiver, so tbat tbe debtor may be punished as for a coutempt on refusing to do so.^ But the judge bas no authority to direct an assignment as to personal property. He can only forbid any transfer or other disposition of such pro- perty until the receiver has an opportunity to sue for the same.* Nor is such an assignment necessary as the i^ro- l)erty is transferred to such receiver by his appointment under section 298 of the Code; and he may bring an action to set aside, on the ground of fraud, an assignment of real and personal property made by the judgment debtor. He not only stands in the place of the judg- ment debtor, but he also represents the creditors.^ The order should also contain a clause prohibiting the debtor from transferring his property, &c., to others than the receiver, or from any interference therewith.^ It has been already remarked that no actual lien is acquired as against the property of the judgment debtor until the appointment of a receiver has been perfected.' But being perfected, the lien attaches and dates back to the making of the original order,'' and has been enforced, as against a levy and sale by a subsequent creditor, inter- mediate the making of the order and the axjpointment of a receiver.^ The title of the receiver does not extend be- yond the right of the judgment debtor so as to work any prejudice to prior liens.^ The action by the receiver. Whenever it appears that a person or corporation alleged to have property of the judgment debtor, or, alleged to be indebted to him, claims an interest in the property adverse to such debtor, or denies the debt, then such interest or debt can be recovered only in an action against such per- son or corporation by the receiver.^ This section applies only to actions between third persons, and not to those between judgment creditor and judgment debtor only. Under section 297 the judge is invested with authority to order property of the judgment debtor, in the hands of himself or of any other person, or due to the judgment * 5 Duer, 629. " 5 Sandf., 610. * 5 How., 446. '' 3 Bosw., 550. » 9 N. Y.. 142; 16 N. Y., 543. " 17 How., 549; 9 Abb., V9. * Code, § 298 ; see 8 How., 313. » Code, ^ 299. * 16 N. Y., 543. SUPPLEMENTARY TO THE EXECUTION. 107 debtor, to be applied toward tlie satisfaction of the judg- ment. Tliis summary authority to be exercised without action, is broad enough to include property claimed by third persons. Therefore, to ijrevent the exercise of such power when third persons made claim, the 299th section was framed, giving an action by the receiver instead of such summary method, and making such action the oidy method of determining the rights of third persons in the premises.' It thus authorizes an action by the receiver, and prohibits a summary order when third persons are concerned.' Besides, it is confined in its operations to cases where proceedings supplementary to execution have been instituted, antl is not in the way of an action in the nature of a creditor's bill, for the ])urpose of having an assignment or disposition of jn-operty by the judgment debtor, declared fraudulent.'^ Thus, an action by a receiver will be necessary to settle the rights of the parties concerned, whenever a third party is in possession of the propertj^ of the judgment debtor, claiming an interest therein adverse to such debtor ; or is indebted to such debtor, and denies the debt. The receiver of the property and effects of a judgment debtor, unless restricted by s])ecial order of the court, has general power to sue for and collect the debts, demands, &c., of such debtor. But he ought, generally, to obtain leave before bringing the action, lest he render himself liable to be charged with the costs.^ Such order to bring action, may be made at the time of the appointment of the receiver, or afterwards. But it has been held that when the action was brought in good faith without leave of the court, even, he shall not be made liable for costs, (that) he shall stand upon the footing of an executor or administrator prosecuting in behalf of the estate.'* As the receiver represents the interest of the creditors, he may maintain an action in the nature of a creditor's bail to set aside a fraudulent assignment, by the debtor, or to remove any simihir obstruction in the way of securing the proper api)lication of the debtor's property to the payment of the judgment.^ " Callin V. Doughty, ] 2 How.. 457. (459). * 9 How., 34.3. » Goodyear v. Belts, 1 How., 187. ' 9 N. Y., 142 j 10 Abb., 197 ; 15 How., * See ante, vol. 1, p. 189, rule 92. 335. 108 ADMINISTRATION OF CIVIL JUSTICE. Costs. On the examination of the debtor in these proceedings, if no projjerty is discovered, the plaintiff will be ordered to pay costs to the debtor, unless a sufficient excuse is shown,^ and a counsel fee is a proper item of costs.^ Wit- ness fees are also allowable, and thej^ may be insisted on preliminary to an attendance or examination, as in other cases.^ The application for costs may be made at any time before the final order of the judge for the api)licatioa of the fund in the hands of the receiver.* The costs in a proceeding as for contempt may be added to those of supplementary proceedings, and the defendant be ordered to stand committed until full payment is made/ Orders, how enforced. Orders of the court, or of the judge, made in these pro- ceedings, are enforced by punishing disobedience of them as contempt of the authority of the officer, or of the court, as the case may be. The ijower thus to punish is given to the judge, by the Code.*^ Its language is: '' If any per- son, i)arty or witness disobey an order of the judge or referee, duly served, such person, party or witness may be punished by the judge as for a contempt." And in all cases of commitment under this chapter, the person committed maj', in case of inability to jjerform the act required, or to endure the imprisonment, be discharged from imprisonment by the court or judge committing him, or the court in which the judgment was rendered, on such terms as maj^ be just.'' The further consideration of this subject will be postjjoned to the chapter on Contempts. » 3 Sandf., 725; S. C, 1 Code R. (K * 13 How., 382. S.), 113. *3 Sandf., 670. « 11 How., 446. " Code, § 302. * 4 How., 190 ; seo also Code, § 301. APPEAL AND OTHER MODES OF REVIEW. 109 CHAPTER V. APPEAL AND OTHER MODES OF REVIEW. General observations. Under the new organization of the court, the former Court for the Correction of Errors has been abol- ished and the Court of Appeals has taken its place. It is authorized to review upon appeal every actual determi- nation made at general term by the supreme court, the superior court of the city of New York, or the court of common pleas for the city and county of New York, or the superior court of the city of Buffalo: 1. In a judgment in an action commenced in such courts or brought there from another court; also upon an appeal from sucli judg- ment to review any intermediate order involving the merits and necessarily affecting the judgment; 2. Also, to review any order affecting a substantial right made in such action where such order, in effect, determines the action and prevents a judgment from which an appeal might be taken, or when such order grants or refuses a new trial ; 3. Also to review any tiual order affecting a substantial right made in any si)ecial i)roceeding, or upon a summary appli- cation in an action after judgment.^ And such court, on such review, has power to reverse, affirm or modify the judgment or order appealed from, in whole or in part, as to any or all of the parties thereto.^ The former Court for the Correction of Errors had full power to correct and redress all errors that happened in the court of chancery or in the supreme court.^ And for that purpose, it was the duty of that court to examine and correct all errors that were assigned or found in any record brought from the supreme court, or in any i)rocess or proceeding touching the same; and thereupon to review or aflirm the judgment of the supreme court, or to give such other judgment as the law might allow.* » Code, § 11. =■ 2 R. S., IGG, § 24; 2 N. Y. S. at L. » Code, § 12. « Idem, § 25. 110 ADMINISTRATION OF CIVIL JUSTICE. This court, like the court of appeals, wliicli now performs its duties and exercises its functions, onlj^ acted upon the actual and final jndgments and orders of the supreme court, &c. Its rule was that every liual or definitive sentence or decision of the supreme court, by which the merits of the cause were determined, although not technically a judg- ment, or a proceeding- capable of being enrolled, so as, technically, to constitute a record, was, nevertheless, a judgment within the meaning of the law, and as such, subject to review in that conrt.^ But mere interlocutory orders, or such as were only auxiliary to the prosecution of the action, were not such determinations as could be thus reversed.^ This court, like tlie court of appeals, was strictly an appellate court, established for the re-examination and correction of erroneous decisions actually made by other tri- bunals upon questions actually presented to them for their detirmination; and the rules of practice were such that every conceivable error aflbrding a sufKcieut ground for review, which could occur in the proceedings in the inferior court, could be distinctly presented to such inferior court, by the part}' thereby aggrieved, for their decision in the first in- stance; and which, if decided against the party, he could properly bring before this court for review.^ The same general distinction, as to the land of eiTors to be corrected in the highest appellate court, and those to be corrected in the inferior courts, is also maintained. In the language of Chancellor Walworth,^ " there is a mani- fest ditference to be observed between the ijroceedings on writs of error in this court — the court for the correction of errors — and the proceedings of the supreme court on writs of error to inferior tribunals. The supreme court are bound to correct all errors in the proceedings of infe- rior tribunals, which are brought before them, whether they relate to decisions actuallij or nominalhj made by the court below; or to matters out of the record, usually denominated errors of fact. But in the organization of this court, it was evidently the intention of the framers of the constitution, that it should be strictly an appellate court, for the re-examination and correction of erroneous » 12 Johns., 31; 6 Id., 337; see also, " 12 Johns., 31. 18 N. Y., 4U. '2 Weed., 145. APPEAL AND OTHEE MODES OF REVIEW. Ill decisions actually made by other tribunals, upon questions actually presented to them for their determination."^ By the Code, writs of error in civil actions are abolished, and the only mode of reviewing- a judgment or an order in such actions, is by appeal ;' and, for such purpose, any party aggrieved by the decision can bring his appeal.' This provision of the Code, however, does not extend to proceedings on mandamus or prohibition,* therefore the I)roper method of reviewing the determinations of the supreme court in such proceedings, prior to the enact- ment of 1859,^ was by wr>!; of error.'^ But, since the law of 1859, the method of reviewing such determination is by appeal." And a judgment on an award is also to bo reviewed by writ of error.' The right of appeal is also given in the case of any judgment or order in a special proceeding f but that right is held to be confined to a review of the decision of the special term, by the general term, of the same court ; and does not extend to cases where the action of a court of ui/f-y/or jurisdiction is sought to be reversed in a highei- court.'" That the reme- dies in use antecedent to the Code must be resorted to in such cases. When cm appeal ioill lie from a judgment or order. A judicial determination is essential to the validity of an appeal.^' And the appeal will not lie until the suit is at an end in the court of original jurisdiction ;'^ and the judgment must have been tinal, so that there could be no further litigation under its provisions." And it should be the actual (letermination of the general term of the court below.^* A mere fonnal judgment submitted by stipula- tion to the general term of the sui)reme court, will not be sufficient.^' A judgment is not final so long as a question, which it was one of the objects of the suit to determine, remains ' 2 Wend., 145; 2 Cow., 31 ; 12 Jolins.. 493; 13 Johns.. 361 ; 19 N. Y., 534; 2 N. y., 188; 15 N. Y., 593- G How., 230. « Code, § 323 ; Code, § 457. " L. 1854, cli. 270. 'Code, § 325; 9 How., 152; 1 Abb., " IG How., 57G; 4 Id., 432. 155; 2 Abb., 209. " 22 N. Y., 67. • Code, §471. "4X.Y., 415; 15 N. Y., 593. » L. 1859, cl). 174, p. 421. " 19 N. Y., 534. • 18 N. Y., 487. " 2N. Y., 188; 15 N. Y., 593. "• 20 N. Y., 529. " 6 How., 280. • 19 N. Y., 584. 112 ADMINISTRATION OP CIVIL JUSTICE. undetermined.^ But an order, which is all the determina- tion a cause can receive, is, in its nature, final. Thus, an order awarding a fund, and which embraces every matter which would have belonged to a final decree in an inter- pleader suit, is, in substance, a judgment under the Code from which an appeal will lie.^ So a judgment may- become final by a confirmation of the report of the referee, where no questions are reserved.^ Questions of fact are not reviewable in the court of appeals. The general term of the supreme court has the power of determining finally the correctness of decisions of fact, made by a referee or a single judge ;* although questions arising out of facts found, may be reviewed on appeal.^ But an appeal from the supreme court is upon the law only.^ Tlie several classes of orders from which an appeal lies to the court of appeals, embrace those which, in their effect, are in the nature of a final judgment, or which, in some manner, involve the merits of tlie cause and neces- sarily affect the judgment to be rendered, or, which deter- mine the action or prevent a judgment from which an appeal might be taken. A final order affecting a sub- stantial right made in a special proceeding, or upon a summary application, in an action after judgment, is like- wise appealable ; but in this latter case, the order must be based upon a judgment, and its validity must be assumed.' As, when the supreme court had set aside a judgment and execution for irregularity, leaving the other proceedings in the action unaffected. If the action had ever been commenced, the order left it still pending and undeter- mined; and, hence, it did not, in elfect, or otherwise, determine the action. If the action had not been legally commenced, the order setting aside the judgment and execution was manifestly right, and should be affirmed, and in either event, the appellant had no standing in the appellate court.^ An appeal will lie from an order reversing a surrogate's decision admitting a will to probate,' or from an order dis- missing an appeal from a judgment at special term, as ' 19 N. Y., 534; 15 Id., 593. • 18 N. Y., 573; 20 Id., 528; 14 Id., » 18 N. Y., 484. 310; 19 Id., 207. »14N. Y., 415. '16N. Y., 242; 2 Id., 186; 3 Id., 341 ; ♦ 7 N. Y, 530 ; 18 Id., 573 , 20 Id., 251 ; 11 Id., 274. 17 Id., 34; Code. § 271, sub. 3. ' 16 N. Y., 244, • 18 N. Y, 484. ' • 23 N. Y., J7. APPEAL AND OTHER MODES OF REVIEW. 113 being too late,' or from an order reversing a surrogate's decree, dismissing proceedings on a citation for an account- ing.^ So, from an order which is all the determination a cause can receive, and which is tiual in its nature.^ So an order which vacates a judgment finally, by deciding its merits, is one which prevents a judgment in an action,* and is appealable. A final order at general term, in proceedings to compel infant heirs to perform specifically the contract of an an- cestor,^ or an order charging costs on a party commencing Buit in the name of a nominal plaintiff, being a final order made upon summary application after judgment," or an order of the supreme court vacating satisfaction and re- storing the judgment,' are appealable under the third subdivision of section 11 of the Code. Prior to the amendments of 1857," an order reversing a judgment and awarding a new trial was not deemed final, and, therefore, was not appealable.^ But the amendment of 1857 [u-ovided that an order granting or refusing a new trial should be appealable. It has been held, however, that an appeal should not be taken from such an order, unless it can be shown that the order is founded on erroneous conclusions of law; (and) that the case should negative any inference that the court granted the new trial, because of difierent conclusions of facts from those found in the original trial.'" And the party appealing, and stipu- lating for final judgment in case the order is affirmed, concedes to his adversary every conclusion of fact ever so slightly supported by the evidence,'^ and an appeal to this court from an order granting a new trial lies only where the party obtaining the verdict is willing to fail wholly if he cannot maintain the same.'^ Where the order is for a new trial, unless the plaintiff will remit a part of the verdict, he cannot appeal and retain the benefit of tlio alternative judgments.''^ No api)eal lies from those determinations or orders which rest in the discretion of the court making them. Thus, an ' 20 N. Y., 525. " 2 Lnws 1857, cli. 723 ; sec Code, § 11, ' 3 N. Y., 54G. sub. 2. •18N. Y., 484. 'SN. Y., 545. « 17 N. Y., 158. " 20 N. Y.. 522. » 11 N. Y., 52. " 19 N. Y., 207. • 12N. Y., 32. " 18 N. Y., 493. ' 19 N. Y., 581. II.— 15 114 ADMINISTRATION OF CIVIL JUSTICE. order setting aside a sale in a foreclosure siiit,^ an order setting- aside a verdict for excessive damages,^ or an order of the supreme court refusing to set aside an execu- tion issued without leave after five years,^ or orders grant- ing, continuing and dissolving a temporary injunction,'' are each within the discretion of the court and not appealable. So, also, orders on questions of practice, being witbin the discretion of the court, are not reviewable.^ But a refusal to exercise a discretionary power, on the ground that it does not exist, is error and may be reviewed." No appeal lies from a determination of the court whose decision in the matter is made tinal by statute. Thus, in proceedings to assess damages on the taking of lands for railroad corporations, the order of the supreme court, on appeal, is made final and conclusive. It is the intention of the act^ to provide in itself a comi)lete system for ascer- taining the value of the land in such cases, and commits the determination thereof to the discretion of the supreme court, from which there is no appeal.^ The same is true under the thirty-seventh section of the plankroad company act;^ the decision of the supreme court is final, ^" and where the statute provides that the decision of the supreme court shall be final and conclusive, there is no appeal to the court of appeals.'' Important changes were made by the Code in reference to the practice in reviewing judgments and orders. Writs of error are abolished, and the only mode of reviewing a judgment or order in a civil action is that prescribed by the Code.'^ Errors of fact ^ how revieiced. In cases of trial by jmy, the correctness of their verdict, or the accuracy of the decisions of the judge ui)on the trial, may be reviewed without an appeal; the former by a motion upon the judge's minutes made at the circuit at wliich the cause was tried, to set aside the verdict and for a new trial, or upon motion at special term, upon a case made, or by procuring an order at the circuit that the ex- ' 23 N. Y., 160. ■' L. 1850, p. 211, § 18. » 22 N. Y., 517; 14 Id., 310. " 11 N. Y., 276. ^ 18 N. Y., 150; Code, § 174. • L. 1847, ch. 210. * 1 N. Y., 53.3. "• 10 N. Y., 353. ° 17 N. Y., 72. " 12 N. Y., 406. « 20 N. Y., 81. " Code, § 323. APPEAL AND OTHER MODES OP REVIEW. 115 ceptions be heard in the first iustance at the general term, wliere a motion can be made upon a case containing- the exceptions for a new trial. So where a specific question of fact involved in an action, other than that of the Avhole issue, or where any question of fact not put in issue but ordered to be tried by a jury or a referee, has been ordered and a trial has been had, if either party desire to apply for a new trial, on the ground of an error of the jury or referee, or on the ground that the verdict or report is against evidence, a motion may be made at special term, on a case or a case and exceptions, for a new trial. ^ In case it is desired to review the report of a referee, other than one determining tlie issue, exceptions thereto must be filed and served within eight days after notice, in writing, of the filing the same. A certiorari also lies, in a great variety of cases, to re- view the decisions of courts and officers. An appeal is in the nature of a new action brought by the party ap})ealing.^ Who may appeal. Any party, or any one of several par- ties conceiving himself aggrieved, may appeal.' This embraces only such persons as are technically parties to the action, or their representatives.^ Parties, how (lesif/nated. The party appealing is called the a[>pellant, and the adverse party the respondent, but the title of the action should not be changed in consequence of the appeal; that is, the plaintiff must continue to bo named lirst in each entitling of the cause.^ The attorneys in the action or proceeding froui a determination in which an ai)j)eal is brought, are deemed to be continued on the appeal until others are substituted. Appeal, lioiv made. An ap})eal is made by the service of a notice in writing on the attorney of record of the adverse I)arty in the court below, and on the clerk with whom tho judguKjnt or order appealed from is entered, stating fill; appeal from the same or some part thereof.*^ Tho notice of api)eal nuist be given properly and in good faith, within the time allowed by law for appealing, or the right is lost ; the court cannot relieve the party who has omitted this; but where a party shall, in good faith ' S. C.y Rule 33. ■* Martin v. Kanouse, 2 Abb. Tr. R., 390, » Pratt V. Allen, 19 How. Pr. R., 450. ' Code, § .^2G. ' Code, § 325 ; J/a««(?« V. ./ywes, 9 How. "Code, §327; Triiyp v. De Bow, 5 Pr. R., 152. How., 114. IIG ADMINISTRATION OF CIVIL JUSTICE. and within tbe proper time, give notice of appeal, and Bliall omit, through mistalie, to do any other act necessary to perfect the appeal, or to stay proceedings, the court will permit an amendment.* The notice of appeal may, like liny other notice, be served upon the attorney by mail ;' but the provision of the Code authorizing mail service does not ai)ply to the clerk; upon him the service should be personal; at least it should be shown that the clerk has received the notice in due time." The time to bring an appeal cannot be extended beyond the time allowed by law; and the failure properly to serve notices of ai)peal within the time allowed, renders the appeal a nullity.* Although an appeal is in most respects regarded as a new suit, the notice of appeal is not, in our opinion, an original process by which a suit is commenced, within the provisions of the act of congress to provide internal reveiuie, and does not, therefore, need to have a revenue stamp atHxed to it.-' Judgment on appeal. Upon an appeal from a judgment, the court may review any intermediate order involving the merits, and necessarily affecting the judgment, and may reverse, affirm or modify any judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties ; and may, if necessary, order a new trial." Only such parts of the judgment or order as are appealed from can be reversed ;'' and where there are several parties, and the case is one •where separate judgments would have been proper in the court below, the judgment may be affirmed as to one party, and reversed and a new trial ordered as to an- other." So, where one of several parties against whom a judgment is entered appeals, the court may reverse the judgment as to him, and allow it to stand as to the other. So, where there are distinct items embraced in one action, the court may affirm as to one item and reverse as to others.'* When the judgment is 7'eversed or modified. The appel- late court may make complete restitution of all property ' Code, § 327. « Code. § 329 and 330. » Code, g 408. ' Kel.sey v. Weste7-n. 2 N. Y., 500. ' Crittenden v. Adams, 5 How., 310. ' 2 Sold., 86; 4 Seld., 107. ♦ Wail V. Van Allen, 22 N. Y., 319. • Fields v. MoreU, 15 Abb., 6. * Jackson v. Allen, 2G How. P. R., 119. APPEAL AND OTHER MODES OP REVIEW. 117 and rights lost by the erroneous judgment, and may allow the prevailing party the costs from the commencement of the action.^ Irregularities in appeal. If the appellate court has no jurisdiction to hear the appeal, the objection may bo taken on the argument ; but Avhere there is merely an irregularity in bringing the appeal alleged, the objection can only be taken by motion to set aside or dismiss the appeal.^ And when it is intended to move on an irregu- larity, it should be done before the respondent appears in the cause ; for if the respondent's attorney gives notice of retainer, or does any other act submitting to the jurisdic- tion of the appellate court, he might be deemed to have waived the alleged irregularity.^ Where an api)eal is not well brought, it may be dismissed upon the appellant's own motion.^ The motion to dismiss an appeal should be made in the appelhite court, for it is the province of that court to determine whether the case is one in which it has jurisdiction, and whether questions are regularly brought into that court.^ How continued. If either party dies during the pendency of an ai)peal, the motion to continue the cause in the name of the legal representative, should be made in the appellate court.'' Apiyeal wlien ivaived. When a party has stipulated that the determination shall be final, he will be deemed to have waived his right of appeal.' So where an order of refer- ence is granted, upon the moving party paying the costs of the term, the other party, by accepting the costs, waives the right to api)eal, but payment of the judgment does not waive such right.^ Judgments hy default. An appeal will not lie from a judgment by default.^. ' Code, 380. ' Toivnsend v. Masterton Co., 15 N. Y, " Parjitt V. Warner, 13 Abb. P., 471. 587. * Fltjnn V. Hudson R. R. Co., 6 How. * Lewis w Irving Ins. Co., 15 Abb. P., P. R., 308; Cuoley V. Lawrence, 12 140; Radway v. Graham, 4 Abb. How. P. R., 176. P., 4G8. * Burnett v. Harkness, 4 How. P. R., 1 58. "* Dorr v. Birge, 8 Barb., 35 1 ; Henry v. '' Barnum v. Seneca Co. Bank, G How. Cuyler. 17 Job ns., 469; Strong v. P. R., 82. Hardenburgh, 25 N. Y., 428. * Hastings v. McKinley, 8 How. P. R., 175. 118 ADMINISTRATION OF CIVIL JUSTICE. CHAPTER VI. APPEALS TO THE COURT OF APPEALS. Ill tvhat cases. The cases in wliicli an appeal may be taken to the court of appeals, have already been noticed.^ When from a judgment. An appeal does not lie from a. judgment unless it is the final judicial determination of the general term of the court in which the judgment is entered,^ but where all the questions of law have been determined by the general term, and the case is sent back and judgment is given b}^ a single judge, on a subsequent trial, it seems a judgment may be taken directly to the court of appeals from that judgment.^ A judgment is not final so long as there may be any further litigation.* Nor where it is for the sale of lands, and depositing of proceeds in accordance with the report to be made on a reference therein ordered f nor where the answer sets up several distinct defenses, to two of which a demurrer is filed and sustained both at special and general term f nor w^here there remains undetermined a question which it is one of the objects of tlfe suit to determine ;' nor is the determination in partition, declar- ing the rights of the parties, and appointing commis- sioners.*' To render a judgment appealable, it must have been upon an actual determination. A formal judgment made pro forma lit general term by consent is. not suthcient." For further remarks as to the jurisdiction of the court, and cases in which an appeal may be brought, reference may be had to the chapter upon the jurisdiction of this court.'" ' Vol. 1, p. 5. ' ThompJcins v. Hyatt, 19 N. Y., 534. ' In matter of Cooper, 22 N. Y., 67 ; ' Paddocks v. Springfield Lis. Go., 12 19 Id., 534; 4 Id., 415; 2 Id., 188; N. Y.. 591. 15 Id . 593. ' Thompkim v. Hijatt, 19 N. Y, 534. ' Cook Dry Dock Co., 18 N. Y., 229. » Beehe v. Grifing, 6 N. Y., 465. * Thompkius v. Hyatt, 19 N. Y., 534; * Gridleyv. Daggett, 6 How., P. R., 280. S'wartwout v. Curtis, 4 N. Y., 415. ■" Ante, vol. 1, p. 4. APPEALS TO THE COURT OF APPEALS. 119 When an appeal must he hrought. An appeal from a judgment must be brought within two years after the judgment shall be perfected by filing the judgment roll ; if from an order, it must be taken within sixty days after written notice of the order shall have been given to the partj' appealing.^ Notice of appeal. The first step in bringing an appeal is to make and serve a notice of appeal. This notice must be in writing, and should be addressed to the attorney in the court below, who is deemed the attorney in this court until another has been retained and notice thereof served on the adverse party ;- and also to the clerk of the county where the judgment or order appealed from is entered.^ It should give notice that the party appeals from such judg- ment or order, describing it with sufficient particularit}' as to date, amount, &c., identifying the judgment or order appealed from. If the a})peal is from an order granting a new trial, it must also contain an assent on the part of the ai)pellant that if the order be affirmed, judgment abso- lute shall be rendered against him.^ Notice, liow served. The notice must be served in the manner already pointed out.'^ Undertaking. The undertaking must be in writing, and must be executed by at least two sureties. The several undertakings required may be in one instrument or seve- ral, at the option of the appellant;'^ it must be filed with the clerk with whom the judgment or order appealed from was entered," and a copy must be served on the attorney of the adverse party, with the notice of appeal, including the names and residence of the sureties. An undertaking may be waived by written consent of the respondent. To render an appeal effectual for any purpose wliatever, ihn undertaking must be to the effect that the appellant will pay all costs and damages which may be awarded >f / ' against him on the appeal, not exceeding t»©""hundred P'- aMi. feto dollars, or that sum must be deposited Avith the ■clerk with whom the judgment or order was entered, to abide the event of the appeal." If no stay of proceedings is desired, this is the only security required in the appeal. Where the judgment is for the recovery of money, and a ' Code. § 3:n. * Ante, vol. 2, 116. " C. of A. Rule 7. • Code. § 340. ' Code 8 .'527. ' Code' § 343. * Code, g 11. « Code, §§ 334, 340. 120 ADMINISTRATION OF CIVIL JUSTICE. stay is desired, the nndertakiji*,^ must also provide that if the judgment appealed from, or any part thereof, be afhrmed, or the appeal dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be athrmed, if it be attirmed only in part, and all damages which shall be awarded against the appeHant upon the appeal.^ If the judgment he for the delivery of documents or per- sonal property, and a stay is desired, the undertaking must provide that the sureties will pay such sum as the court or the judge thereof, or a county judge, shall direct, in default of the appellant obeying the order of the appellate court on the ai)peal. The amount thus to be mentioned in the undertaking can be fixed by an ex parte motion founded upon an affidavit setting forth the circumstances of the case. In default of such an undertaking, the things required to be assigned or delivered must be placed in the custody of such officer or receiver as the court shall appoint.^ Where the judgment is for the sale or delivery of real pro- perty, the execution of the judgment will not be stayed unless a written undertaking be executed on the part of the appellant, to the effect that during the possession of such property by the appellant, he will not commit or suffer to be committed any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of the possession thereof, pursu- ant to the judgment, not exceeding a sum to be fixed by a judge of the court in which the judgment was rendered, and which shall be s]>ecihed in the undertaking. When the judgment is for the sale of mortgaged i)remises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.^ The sum to be fixed in this undertaking can be ascer- tained by an ex parte motion to the court upon an affidavit of the facts and circumstances of the case. If the execution of a conveyance or other instrument is directed, the judgment is not stayed by the ax)peal until the instrument shall have been executed and deposited » Code, § 335. ' Code, § 338. " Code, § 336. APPEALS TO THE COURT OF APPEALS. 121 with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.^ Extent of stay. Whenever an appeal is perfect in a case where the judgment is for the recovery of money or for the delivery of documents, for the execution of a convej'- ance or other instrument, or for the sale or delivery of the possession of personal property, it stays all proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein, but the court below may proceed upon any other matter included in the action and not afiected by the judgment the same as if no appeal Lad been brought.^ And an ai)peal is deemed perfected under this section when the proper undertaking for a stay has been filed and notice thereof given, and the notice of appeal has been served on the clerk and the attorney of the adverse party. When seciiritij may he dispensed with. When the appel- lant is an executor, administrator, trustee or other person acting in another's right, thecourt in which the judgment ap- pealed from is entered may, in its discretion, dispense with or limit the security required to stay proceedings where the judgment appealed from is for the recovery of money, or where the judgment directs the assignment or delivery of documents or personal property, or the sale or deliv- ery of possession of real property, but in no case is any authority given to waive the undertaking for two hundred and fifty dollars heretofore mentioned.^ Where amount of security limited or security waived. Where the judgment directs the assignment or delivery of documents or personal property, the execution of a con- veyance or other instrument, or the sale or delivery of possession of real property, and the amount of security required would exceed fifty thousand dollars, the court in which the judgment is entered may limit the security to an amount not less than that sum." An undertaking may be waived by a written consent on the part of the respond- ent.^ Undertakings must he filed. The undertaking must be filed with the clerk with whom the jndgment or order appealed from was entered,^ and this should be done at the time of the service of the notice of appeal upon such clerk. • Code, § 337. ' Code, § 334. » Code, § 339. * Code, § 343. XL— 16 122 ADMINISTRATION OF CIVIL JUSTICE. . Surety to justify. Au undertaking on appeal is of no effect unless it be accompanied by an affidavit of the sureties that they are each worth double the amount speci- fied therein,' and in all cases the execution of the under- taking- should be acknowledged. When stay where no undertaking is given. In other cases than those we have mentioned, where security is required, the perfecting of an appeal by giviug the undertaking for two hundred and fifty dollars, which, as stated, is required in all cases, stays all proceedings upon the judgment ajjpealed from.^ As to perishable 2)roperty. Where the judgment appealed from directs the sale of perishable property, the court in which the judgment was entered may, notwithstanding the appeal, order the property to be sold and the pro- ceeds thereof to be deposited or invested, to abide the judgment of the appellate court.^ Stay on appeals from orders. There does not seem to be any i^rovisions of statute staying i)roceedings upon an order appealed from. In these cases the appeal does not operate as a stay of proceedings, and where, in such a case, a stay is desired, a motion for that purpose should be made in the court granting the order, and that court may, on such terms as it shall think proper as to security, or otherwise, grant the stay. J^zceptiny to sureties. If the respondent is not satisfied with the sureties, he may, at any time within ten days after service upon him of the notice of appeal, or after the tiling of the undertaking, serve upon the appellant's attorney a notice to the effect that he excepts to the sufficiency of the sureties.'* The appellant's attorney should thereupon give notice that the sureties will attend for the purpose of justification, before a judge of the court below, or a county judge (naming him) of the county where such sureties reside, at a time and place within the county where such sureties reside, to be therein specified. The time specified in the notice for justification, must not be more than ten days from the time of resi)ondent's ' Code, § 341. ' Code, § 342 ; Griswold v. Fowler, 13 Abb. P. R., 348 ; People ex rel. Thomas v. Conneis dtc, 25 How. P. R., 257. = Code, § 342. , * Code, § 341 ; Webster v. Stephens, 3 Abb. P. R., 227. APPEALS TO THE COURT OF APPEALS. 123 service of notice, excepting to tlie sureties, and the justi- fication shall be upon a notice of not less than tive days.^ Justification of sureties. For the purpose of justitication, each of the bail shall attend before the judge at the time and place mentioned in the notice, and may be examined on oath on the part of the respondent, touching his suthciency, in such manner as the judge shall think proper. The examination shall be reduced to writing, and sub- scribed by the bail if the respondent desire it. The party excei)ting is the actor in this proceeding, and no steps are necessary to be taken before the officer, except on his requisition, and he waives his exception by omitting to attend pursuant to the notice, although the sureties also fail to attend.'^ If, for any good cause, notice of justifica- tion cannot be given in due time, or the justification cannot be consumated at the time specified, an order should be obtained from a judge extending the time for justification, and new notice of justification should be given where the olficer or bail did not attend in time upon the first notice. AUou'ance of hail. If the judge find the bail sufficient, he should annex the examination to the undertaking, or a coj)y thereof, endorse his allowance thereon, and cause the same to be filetl with the clerk where the judgment is entered. If the bail fail to Justify, others who can justify may be substituted ; such sureties may file a new nnder- taking, but they must justify on the spot. If it is appa- rent that the appellant is i)roceeding in good faith, and his bail fail to justify, the court will doubtless allow him to give a new undertaking and furnish new sureties, but in that case it is the practice to require the appellant to give the usual notice, and have the bail justify without the respondents having excepted to them. If the hail fail to justify the appeal is to be regarded as if no undertaking had been given. Additional securiti/, when required. Whenever it is made satisfactorily to appear to the court that since the execu- tion of the undertaking the sureties have become insolvent, the court may, by rule or order, recpiire the appellant to execute, file and serve a new nndertaking, if the appeal be from a judgment for the recovery of money ; and in case of neglect to execute such undertaking within twenty * Code, 341, 195, 196. ' Ballard v, Ballard, 18 N. Y., 49L 124 ADMINISTRATION OF CIVIL JUSTICE. days after the service of the rule or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed with costs.^ This motion should be made in the appellate court. Deposit in lieu of undertaldng. In lieu of any under- taking required, the party required to give security may deposit with the clerk or in court the amount for which such undertaking is to be given, and the court may direct how such deposit shall be invested.^ BesjwndeaV s appearance. The appeal having been regu- larly perfected, the resi)ondent's attorney should serve upon the other party a notice of retainer ; but this is not necessary if the same attorney is to continue who was the attorney in the court below.^ Filing return. When the appeal is perfected by the filing of the undertaking, and the service of the notice of appeal, the appellant must, within twenty days thereafter, cause the proper retnrn to be made and filed with the clerk of the court of appeals.^ Return to appeal. The return is made by the clerk with whom the judgment or order appealed from is entered, and it is his duty forthwith, at the expense of the appel- lant, to transmit to the appellate court, by delivering the same to the clerk of that court, a- certified copy of the notice of appeal and of the judgment roll, and if the ap- peal be from an order, or any part thereof, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court acted in making the order."* When the appellant fails to procure the proper return to he filed within twenty days after the appeal is perfected, the respondent may cause such return to be made, and, if he succeeds on the appeal, may charge the expense thereof as a disbursement on the appeal, in case the judgment is, in whole or in part, alfirmed,^ or in case the appellant fail to procure the return to be filed within twenty days after the appeal is perfected, the respondent may, by notice in writing, require such return to be filed within twenty days after the service of such notice, and if the return is not tiled within the time specified in such notice, the appel- lant will be deemed to have waived his appeal.*^ » Code, § 335. " Code, § 328 ; Court of Appeals, Rule I. " Court of Appeals, Rule i. ' Code, § 328. * Court of Appeals, Rule 2. ' Court of Appeals, Rule 2. ^ APPEALS TO THE COURT OF APPEALS. 123 The respondent should then prepare an affidavit show- ing when the appeal was perfected, and the service of the notice requiring- that the return should be filed, and pro- cure from the clerk of the court of api^eals a certificate that no return has been filed. Upon presenting and filing with the clerk these papers, the respondent has a right to enter a rule with the clerk to the effect that the appeal is dismissed for want of prosecution, with costs, and there- upon such proceedings may be had as if no appeal had been brought.^ Time to file return, Iww extended. If, for good cause shown, the appellant is not able to procure the return to be filed within the proper time, ujjon that fact being made to ai)pear by atfidavit, the court of appeals, or either of the judges of that court, may grant an order extending the time for filing the return.- The default in not filing the return in time will, be re- lieved against on proper terms, in all cases where it appears that the appeal is brought in good faith; but the appeal will not be reinstated without the appellant establishes a clear case of diligence on his part, and shows that the unexcusable default of the clerk, or an unavoidable acci- dent, prevented the filing of the return or the extension of the time of filing it.^ Order for further return. If the return made by the clerk is defective, either party may, on affidavit specifying the defect, apply to one of the judges of the court of ap- peals for an order that the clerk make a fuither return without delay. Case on apical. The return having been duly filed, the next step in the cause is for the appellant, to prepare a case which consists of a coi)y of the return of the clerk, co[)ies of the opinions delivered or reasons given for the judgment in the court below, both at special and general term, and if the case is voluminous, an index to the plead- ings, exhibits, deposition and other principal matters cm- bodied in the case. If the opinions or reasons of the court below caimot be obtained, an affidavit that the same cannot be obtained, should be inserted in the case.' Printinff and serving case. The case being prepared it nuist be printed, and within forty days aft<3r the appeal ' Court of Appeals, Rule 2. 407; Spoore y. Tannain, 16 N. Y. ' Coiu-t of Appeals, Rule 18. U., G20. * Waiernan v. Whilnty, 1 How. Pr. R., * Court oC Appeals, Rulo 5. 126 ADMINISTRATION OF CIVIL JUSTICE. sliall liavc been perfected, the appellant must serve three printed copies of the case on the respondent's attorney. If the appellant fails to do this in proper time, the re- spondent may serve a notice in writing upon the appellant's attorney, requiring the service of such printed copies within ten days after the service of such notice. If the copies are not served within the time specified in such notice, the appellant will be deemed to have waived his appeal. The respondent should then prepare an affidavit showing- when the. appeal was perfecteil, the service of the notice mentioned after the lapse of the forty days, and the appellant's default in not serving the case within the time Gpesified in the notice. This affidavit should then be filed with the clerk of the court of appeals, who will thereupon enter an order to the effect that the appeal is dismissed for want of prosecution, and the court below may then proceed as if there had been no appeal.* ildu'f from dismissal. If the proceedings by which the order dismissing the appeal are in all respects regular, and the remittitur has been made and filed in the court below, the court of appeals has no further jurisdiction over the case, and the only remedy the appellant has is to bring a new appeal.^ IfAvill be irregular to bring the new appeal Avithout first paying the costs of the former appeal, and if such costs are not paid, the second appeal will be dis- missed. If the order dismissing the appeal was irregularly en- tered or entered upon a false affidavit, the court of appeals will entertain a morion to set aside the order dismissing the appeal, and the remittitur, which, if granted, restores the appeal f but the court to which the remittitur is sent cannot inquire as to its propriety; it is the duty of that court to proceed ujjon it if it is regular upon its face. Although the proceedings of the respondent in dismiss- ing of the ai)peal for the omission to file, return or serve a case may be strictly regular, the court of appeals may, before the remittitur is tiled, relieve the party on motion from the default, but this will only be allowed where a clear case of diligence is shown.'' When return or case is imperfect. Where the return filed or the case served is imperfect, the remedy is by motion to ' Court of Appeals. Rule 7. - Newton v. Harris, S Barb., 306. = Dressn'- v. Brooks,4. How. Pr. R., 207. " Spoore v. Tannain, 16 N. Y. R., 620. APPEALS TO THE COURT OF APPEALS. 127 tbe court upon notice. The right to dismiss the appeal by common rule applies only to those cases where there is an eutire failure to tile a return or serve copies of the case.^ Where no case is made or served on appeal, the resj)on- dent may, instead of taking proceedings to dismiss the appeal by common rule, wait until the cause is regularly called on the calendar, and then take judgment of aftirm- ance by default. He is not bound to move to dismiss the a])peal. This is much the better practice to adopt in those cases where the undertaking was given before the late amendment of the Code, requiring surety to be given as well against a dismissal as an affirmance. Notice of argument. The notice of argument nuisfr spe- cify the judicial district in which the appeal arose; it must be for the first day of the term, and must be served, at least eight days before the term, upon the attorney of the adverse party and the clerk of the court. The notice served on the clerk must be accompanied by due admis- sion or proof of service of notice of argument upon the adverse party, and unless such proof is furnished, the clerk will not put the case on the calendar.^ If the cause is duly noticed for the January term in any year, it will be considered as noticed for all subsequent terms in the year. Any party claiming a preference, must state in his notice of argument to the op[)osite part}', and to the clerk, the ground of such preference, so as to show to what class of preferred cases the cause belongs. Calendar. It is the duty of the clerk to make up a cal- endar for the Jaimary term of each year, which stands as the calendar for the entire year. Preferred causes are placed on the calendar in the following order: 1. Oriminal actions; 2. Cases of probate in which the appeal prevents the issuing of letters testamentary or of general adminis- tration; 3. Appeals in which the sole plaintiffs or defend- ants are executors or administrators; 4. All other preferred causes. Then follows the other causes, arranging tliem in the order in which returns are filed, specifying the Judicial district in which the causes originated respectively. After the January term in each year, no causes except such as are by law entitled to a preference will be per- ' Botver.s v. Tullmadge, 20 N. Y. R., 516. " Court of Appeals, Rules 8, 24, 27. * By n lute rule it i? required that the notice of argument shall be served on the clerk before the Qfteciith of December. 128 ADMINISTRATION OF CIVIL JUSTICE. luitted to be placed on the calendar without the direction of the court. There is no advantage in noticing any other than a preferred cause for any otlier than January terms. A calendar of preferred causes is made up for each term, and when that is disposed of at the second and each subse- quent term in the year, the call of the calendar will com- mence at the point where it terminated at the previous term. Preparation for argument. Each party should prepare a brief statement of tlie leading- facts of the case which he deems established, with a reference to the folios where the evidence of such facts may be found, together with the points on which he intends to rely, with a reference to the authority which he intends to cite. These points must be printed in the same manner as the case. Calendar practice. Any cause, except the first ten upon the calendar, on consent of the parties who placed the same thereon, may, at any time, during the first week of the term, be struck therefrom, by the clerk, of course, and without prejudice to its being placed on the calendar for the next year. Ten causes only will be called on any day, but after such call, cases ready on both sides will be heard in their order. Causes upon the calendar may be exchanged one for another, of course, on filing with the clerk in court a note of the ])roposed change, with the numbers of the causes, signed b}' the respective attorneys or counsel. Upon all subsequent calendars, each of said causes will take the place due to the date of the filing of the return in the other. A cause cannot be reserved or set down for a i)articular day except in extraordinar}' cases. When a cause is called, it is the duty of the appellant to deliver to the clerk in court fourteen copies of the printed case and his points, and the respondent a like number of his printed points. The clerk will dispose of them as follows: He will deliver a co})y to each of the judges, one copy to the state reporter, one copy shall be deposited in the state library, one copy Khali be deposited in each branch of the library of the court of ai)peals, one copy shall be deposited in the New York law institute, and one copy of each shall be kept by the clerk with the records of the court. If the cause is called and the respondent does not appear, the appellant shall furnish the court with the usual number of printed copies of the case and points, and shall furnish to the clerk another printed copy of the points, to be by him delivered to the APPEALS TO THE COURT OF APPEALS. 1^9 other party when called for. If the respondent appears and the appellant does not appear, he shall hand to the court the copies of the case served on him and fonrteen printed copies of the points, and shall also hand to the clerk a copy of his points for the opposite party. The party appearing alone, may, at his option, snbmit the case on his brief or argue it. At any time within twenty days after the cause has been so submitted or argued, the opposite party may furnish to each member of the court, and serve upon the opposite party a printed ans-wer to such brief, which may be replied to within fifteen days after such service. If neither party appears when the case is called, it will be passed, and it will be placed on all subsequent calen- dars as if the return had been filed on the day when it was so passed ; and if it is a preferred cause, it thereafter looses its preference, except that any cause that is passed will resume its original ijlace upon the calendar for the ensuing year. Suhnitting causes. Causes which have not been exchanged may be submitted at any time on printed arguments. Exchanged causes cannot be submitted until they are reached od the calendar. Argument. In the argument of causes only one counsel on each side will be heard unless the court shall otherwise direct. The appellant's counsel opens the argument, to which the respoudeut's counsel replies when the appel- lant's counsel closes, by replying to any new points taken by respondent. Ko extended discussion is allowed upon any mere question of fact, and no more than two hours shall be occupied by each counsel except by the express permission of the court. Errors in case. If the case does not present questions that can be properly examined in the court of appeals, that court will dismiss the appeal whether a motion has been made for that purpose or not ; but if it should apjiear that the defect in the case is a clerical or accidental omission, and that the party has acted in good faith, the court will order the case to stand over and order the omission to be supplied. lie-argument. If the unsuccessful party thinks it clear that the appellate court has, through error or misapi)rehen- Bion, erroneously decided his case, and that he will be able to satisfy the court of this, he may prepare papers on which to move for a re-argument, and on these motion n.— 17 / 130 ADMINISTRATION OF CIVIL JUSTICE. papers procure from tbe court or a judge thereof, an order staying tbe sending down of the remittitur until he can be heard on his motion. If the court have reason to believe that there has been any misapprehension of the case on the part of the court, that would be likely to vary th(5 result, it may order a re-argument, in which case it would again go upon the calendar as we have already .shown. 2Vte decision and remittitur. The decision haviug been made by the court, and tiled by its clerk, it is his duty to I)repare the remittitur, which shall contain a statement of the judgment of the court of appeals, aud the return made by the clerk of the court below, and shall be sealed with the seal, and signed by the clerk of the court. The successful party should see that this remittitur is properly made and tiled- with the clerk where the judgment appealed from is entered. Entry of judgment. The remittitur having been pro- perly filed, the successful party can proceed to tax his costs before the clerk of the county where the judgment appealed from was entered, and he may there enter in the oltice of the same clerk a judgment to the effect directed by the court of a])peals. The court of appeals may, in its discretion, award cnts,^ and should piny that the respondents named be re- quired to answei' tlie petition of appeal.'- If the decree is not claimed to be wholl}- erroneous, the errors claimed should be set out ; and this extends to i)er- sons interested in maintainin 3 Johns. Cas., 568. * 1 Diier, 516; 2 R. S., 534, § 1. » 2 R. S., 534, § 1 ; 2 N. Y. S. at L., ' See Reviser's Notes to title 2 of ch. 3 553. of part 3 of Revised Statutes. » See Reviser's Notes; 5 N. Y. S. at L., ' 2 R. S., 692, § 14. 502. ■* 1 Duer, 512. CONTEMPTS A^TD PUNISHMENTS AS FOK CONTEMPT. 163 But the court may proceed further and punish the accused as being guilty of a criminal contem])t.' Where the proceeding is as for a contempt for the pur- pose of enforcing a civil remedy, the cause for such pro- ceeding will usually be found among those enumerated in the statute,^ among which are contempts in not paying- money ordered to be paid, where, by law, an execution cannot be awarded for its collection.^ Where the disobe- dience is for non-x)ayment of costs, it is confined to attor- neys, solicitors, counselors and officers of court ordered to pay costs for misconduct as such, and to witnesses ordered to pay costs on attachment for non-attendance/ In such cases where the order for payment of money has been made, and the accused has disregarded it, the party seeking to enforce the order makes proof, by affidavit, that a personal demand of such payment has been made upon the accused, and that he has refused to pay it,^ and if the person demanding payment under the order is not the party to whom the money was directed to be paid, then such person should show that he was authorized to receive it f and upon such proof being made, the court will issue its warrant to commit the person so disobeying, to prison, until such sum and the costs and expenses of the xn'oceed- ing are paidJ Where the order is for the payment of money, it should specify the time within which the money is to be paid," although it is not necessary that the amount to be paid should be named in the order.^ So, also, persons may be i)unished as for contempt for disobedience to any lawful order, decree or process of the court.^" Thus, it is a contempt to disregard an order of injunction granted in a case in which the court has juris- diction.^^ And the party thus enjoined must not only desist from further proceedings in the premises, but must direct all under his control, also to desist, such as servants, officers of court, &c.^^ So confessing a judgment with a view of defeating the remedy of the plaintiff in a credi- > 1 Duer, 512. * 2 Barb. Ch., 272. '2 R. S., 534, § 1. M Hill, 154. ' Idem, subd. 3. »» 2 R. S., 535, § 1, subd. 3; 2 N. T. S. * L. 1847, 491. at L., 553. * 2 R. S., 535, § 4; 2 N. Y. S. at L., " 1 Duer, 512: 2 Paige, 326; 4 Id., 554, § 4; 9 Paige. 609. 444; 9 N. Y., 263. * 2 Barb. Ch., 272. " 5 Abb., 244; 15 How., 81. » 2 R. S., 535, § 4 ; 2 N. Y. S. at L., 554, § 4; 1 Hill, 168; 9 Paige, 609. 164 ADMINISTRATION OP CIVIL JUSTICE. tor's suit, and interposing delays so as to secure the prior appointment of a receiver in a proceeding upon the con- fessed judgment, are a violation of the injunction in the creditor's suit.^ The mere confession of the judgment might not, of itself, be a violation of the injunction, but any active interference with the property of the defendant, such as procuring an execution to be issued thereon, or taking the property to the sheriff, would be.^ Where a confession is collusive, with a view to evade the injunction and defeat the object of the suit in which it was granted, it might, of itself, become a violation of the injunction.^ But merely carrying into effect a previous agreement is not a violation of an injunction ; as, where an officer having unaudited claims against a county, assigned specific por- tions to various persons in payment of debts, agreeing to give orders in favor of the assignees, and was afterwards served with an injunction in a creditor's suit; and, subse- quently, when the claims were audited, requested the supervisors to issue orders in pursuance of his previous assignments ; this was held to be no violation of the in- junction.* So, likewise, a debtor proceeding to judgment in a suit commenced before the injunction was served upon him is not guilty of such a breach of the injunction as will render him liable to be punished as for a contempt.^ A person to whom a writ of habeas corpus is directed, will be guilty as for a contempt, if he make an evasive or insufficient return thereon, as denying the custody of the body while the person is in the charge of a subordinate officer acting under his authority.^ It is likewise a contempt of the authority of the court to take measures to defeat its process ; as, where a plain- tiff, learning that the defendant had subpenaed a witness to bring certain papers, obtained possession of them in order to defeat such subpoena, and neglected to produce, them on trial, in pursuance of the notice of the defendant, etc., he was held to be guilty of contempt, and might be punished as for the same."^ So also, it is a contempt to sue a ward of court without authority from the court for that purpose. So, likewise, it is a contempt to sue a lunatic without permission, after » Ross V. Classman, 3 Sandf., 676. * 10 Paige, 485. ' 7 Paige, 364. • 10 Johns., 328. •4 Paige, 378. * 8 How., 226. * 9 Paige, 243 ; see also, 3 How., 244. CONTEMPTS AND PUNISHMENTS AS FOR CONTEMPT. 165 notice of inquisition.^ So the issuing of an execution against the estate of a hmatic without permission, after the appointment of a committee, will be punished as for a contempt.^ So where a receiver or other custodian, who represents the court, has the rightful possession of j)ro- perty, any one attempting to interfere therewith, as by execution, distress for rent, or the like, will be deemed guilty of contemiit.^ An examination of the statute, and also of the books, will show that there is a very great number and variety of acts, omissions and negligences of parties, officers of coiu'ts, witnesses, &c., which may be punished as for contempt, for the purpose of enforcing civil remedies and securing the ends of justice. The general declaration of the statute is, that every court of record may punish by fine and im- prisonment, or either, any neglect or violation of duty, or any misconduct hy which the rights or remedies of aimrty in a cause or matter depending in such court, may he defeated, impaired, impeded or prejudiced, a list of cases, seemingly broad enough to embrace all cases which could probably arise.* The manner of proceeding against a person as for a contempt. Before proceeding against a party, as for a contempt, it becomes necessary to determine where such a proceeding is proper in any given case. If the supposed contempt be for the disobedience of an order of the court or judge, it is necessary to bring home to the accused a knowledge of the existence of such order. This is usually done by serving upon the accused, personally, a copy of such order. In such cases it is the disobedience of the order of the court which constitutes the contempt, and, therefore, although the court requires of the party availing himself of its order, a substantial compliance with its rules and practice upon that subject, it will not allow the effect of its orders to be lost, where the party sought to be bound thereby, had actual knowledge or notice of its existence.'^ It has, there- fore, been held, that personal service of the order upon the accused is not always necessary to charge him with know- ledge of its existence.® He may have been in court w^hen • 2 Paige, 422; 3 Id., 199. • 9 N. Y., 263, 278; 6 Abb., 251; 4 » 6 Paige, 489. Myl. & Cr., 498. ' 7 Paige, 573 ; 9 Id., 372. • 4 Paige, 405. * See 2 R. S., 534, § p . 166 ADMENISTBATION OF CIYIL JUSTICE. the order was made/ or he may have been informed thereof by a person who was i^resent at the time.^ As a general rule, it would be proper to hold the party as bound by any such informal notice, where it is evident that he had attempted to take advantage of want of per- sonal service as an excuse for disregarding such order. But if the case were one wh^e the obligation to act or not, depended not only on the existence of the order, but also upon its being served in a particular manner, then it would be proper not to hold the party guilty of disobedience for not observing such order until he had been shown the original and also served with a copy of the same.^ An injunction order may be served by copy, without an exhi- bition of the original.* By this statute, only courts of record are authorized to institute proceedings, as for a contempt, to enforce civil remedies and protect the rights of parties in civil x>roceed- ings.^ But other statutes have conferred a similar juris- diction upon certain other courts, not of record. Thus, upon the surrogate's court,^ also upon a judge in summary proceedings, as well as upon the court of which he is judge,^ and the application to punish the party for a contempt, must be made to the court in which the cause or matter prejudiced by such disobedience was depending.* If the misbehavior or disobedience be at the circuit, the applica- tion is made in the supreme court.^ If before a referee, the application is to the judge making the order, or ap- pointing the referee,^" or it may be made to the court." A referee has likewise authority, the same as the court, to preserve order and punish all violations thereof upon trials before him, and to compel the attendance of witnesses, and to punish them as for contempt for non-attendance or refusal to be sworn or testify.^* AVhen the contempt charged consists in disobedience to an order made by a judge or referee in supplementary pro- ceedings, the application is to the judge making the order ' 2 Barb. Ch. R., 275; 12 Yes., 202. '' Code, § 302 ; 13 How., 331. « 3 Edw. Ch., 236. » 2 R. S., 534, § 1. ' 3 Duer, 554. ' Idem, 539, § 33. * 5 Abb., 244. " Code, § 302. » 2 R. S., 534, § 1 ; 2 N. T. S. at L., 553. » 13 How., 331 ; 6 Abb., 217, note. • 2 R. S., 22], §§ 6 & 9: L. 1837, p. " Code, § 272. 535, § 67; 10 Barb., 524; 11 N. Y., 324. CONTEMPTS AOT) PUNISHMENTS AS FOR CONTEMPT. 167 or appointing the referee ;^ but it has been held that the court also may entertain jurisdiction to punish disobedience to the judge's order in such case ; but upon a full view of the subject, such authority may be doubted. The person aggrieved makes application to the proper authority for the proceedings to be instituted, where the misconduct, &c., was not committed in the immediate x^re- sence of the court ; and such application is based upon aflSdavits setting out the necessary facts which constitute the neglect or violation of duty complained of; and the affidavits must be such as to satisfy the court of the facts charged, and that a sufficient cause exists for instituting such i^roceedings ; a copy of which affidavits must be served on the party accused a reasonable time before he is called upon to make his defense ; except in cases where the disobedience is to a rule or order requiring the pay- ment of money, or disobedience of a subpoena.^ There are two methods of proceeding on the application of the aggrieved party against a part j' as for a contempt to enforce civil remedies — except in cases for the nonpajment of monej^ — one by attachment to bring the party into court to answer the alleged contempt, or by an order for the accused to show cause why he should not be punished for his alleged misconduct.^ When the proceeding is by attachment, copies of the affidavits and other legal evidence showing the party to be in contempt, must be served upon the party accused a reasonable time before he is required to make his defense ; and they may be served simultaneously with the attach- ment.* The order for the attachment merely directs that an attachment be issued, it appearing to the court that there is probable cause for issuing the same, and directs the amount of the penalty in which the defendant may give bond for his appearance to answer.^ The proceedings in these cases, including the affidavits, attachment, &c., are entitled in the original cause f the attachment is directed to the sherift' of the county, or the coroner, as the case may be, and made returnable at a special term ; and tested, signed and sealed like the ' See Code. § 302 ; 13 How., 174. * 2 Sandf., T28. ' 2 R. S., 535, § 3 ; 2 N. Y. S. at L., 554. ' 2 R. S., 53G, § 10 ; 2 N. Y. S. at L, ■ » 9 Paige, 372; 2 Sandf., 724; 2 R. S., 555, § 10. 635, § 5. • 4 Paige, 3G0 ; 1 Barb., 227. 168 ADMINISTEATION OF CIVIL JUSTICE. ordinary process of the coiirt.^ On the attachment should be indorsed, by the clerk, the amount in which to hold to bail, and also, that it is issued by the special order of the court.^ Upon arresting the defendant upon such attachment to answer for any alleged misconduct, the sheriff must keep him in his actual custody, and bring him personally before the court issuing the attachment ; and must thus detain him in his custody until the court make some order in the premises, unless the defendant entitles himself to a dis- charge by giving bail as prescribed by statute f and if no sum be specified in which to take bail of the defendant, where the attachment is issued by special order of the court, then he will not be entitled to discharge by gi^ing bail.* In such cases he can be discharged only by special order.* In cases where the party is entitled to an attachment without a special order of the court, if he wish the defend- ant held to bail, he must make application to a judge of court, or to some officer authorized to perform the duties of such judge, to direct the penalty in which the defendant shall give bonds for his appearance to answer the matter alleged against him ; and upon due proof of the facts and circumstances, such officer shall direct the amount to be required which shall be indorsed on such attachment.' And no such sum being thus indorsed thereon, the defend- ant may be discharged by giving bond in the penalty of one hundred dollars, with sureties, as prescribed by statute.® A special order of the court, or a special application thereto for such order, is not necessary to the issuing of an attachment against an officer or person for disobedience of a rule entered in such court according to the practice thereof, requiring such officer or person to return a process of the court directed and delivered to him."^ At any time after the day when it is the duty of the sheriff or other officer to return, deliver or file any process, undertaking, order or other paper according to the provi- sions of the Code, any party entitled to have such act done may serve on such officer a notice to return, deliver ' Rule 40, S. C, 1858; 15 How., 494. ' Idem, § 11. • 2 R. S., 536, § 14. • Idem, % 15; 21 Wend., 57. » 2 R. S., 537, §§ 12, 13 ; 2 N. Y. S. at ^2 R. S., 536, § 6; 2 N. Y. S. at L., L., 555. 554. ♦ Idem, § 14. I CONTEMPTS AKD PUPriSHMENTS AS FOR CONTEMPT. 169 or file such process, order, undertaking or other paper within ten daj^s, or show cause at a special term to be desig- nated in said notice, why an attachment should not issue against him ;^ also, in other proceedings than those relating to actions under the Code, the party interested may serve a notice as above at any time before the retm^n day of the writ, requiring the officer to return the same within twenty days after the service of such notice, and if the same be not so returned, upon filing in the office of the clerk of the county in which the writ is returnable, an affidavit of the service of such notice, and of the delivery of the writ, the officer's default may be entered and an attachment be issued, of course.^ In case the defendant should be in custody of any officer by virtue of an execution against his body, or by virtue of any process for other contempts or misconduct, any judge of the coiu-t, or any officer authorized to perform the duties of such judge in vacation, may award a writ of habeas cor]nis to bring up such defendant before the proper court or officer.^ Upon returning any attachment, the officer executing the same must return also the bond of the defendant, if any is taken by him, which bond must be filed with the attachment. And the sheriff or other officer to whom any attachment is directed, must return the same by the return day specified therein, without any previous rule or order for that purpose ; and if he fail to do so, an attach- ment may issue against him of course, upon being allowed by a judge of the court, or by some officer authorized to perform the duties of such judge, upon proof of such default.* The defendant having been arrested and brought before the court, or having appeared therein, and denied the alleged misconduct, the court must require interroga- tories to be filed, specifying the facts and circumstances alleged against the defendant, and requiring his answer on oath, within such reasonable time as the court may allow. The court irhj also receive other affidavits and proofs contradictory of the answer of the defendant, or » Supreme Court, Rule 8, 1858. ' 2 R. S., 536, § 8; 2 N. Y. 3. at L., » Supreme Court, Rule 13, 1847. 555. * 2 R. S., 337, §§ 16 and 17; see 23 Wend., 102; 1 Paige, 435; note. When the attachment is not received by the sheriff in time to serve, and return it at the time and place specified, ho should return it without service, see 4 Paige, 3G0. n.— 22 170 ADMrNISTEATION OF CIYIL JUSTICE. in confirmation thereof, and upon all the affidavits and, papers thus produced, including the original ones, it shall be determined whether the defendant has been guilty of the alleged misconduct, &c.^ The defendant having been arrested and discharged on giving bonds, under the statute, to appear and answer at the time and place specified therein, must appear on the return day , and if he fails to do so, the court may either award a second attachment, or order the bond, given for his appearance, to be prosecuted, or both proceedings may be had.^ And when the bond is ordered to be prosecuted, the order should specify the name of the party aggrieved, authorizing him to prosecute the same ;^ and when there is no aggrieved party, then the order should direct the attorney-general, or the district attorney of the county, in which the bond was taken, to prosecute the same, in the name of the officer who took the bond.* When the court orders the party aggrieved to prosecute such bond, such order operates as an assignment of the same, and the aggrieved party can maintain an action in his own name thereon, as the assignee of the sheriff or other officer taking such bond.^ When the suit is prose- cuted by the attorney-general, &c., the whole of the bond is recoverable ; and the court will make such disposition of the money collected thereon as is required to pay the costs of the proceedings in attachment, &c., and satisfy any injury the prosecuting party may have sustained ; and the residue, if any, must be paid into the treasury of the state.^ Under the authority to impose a fine sufficient to indemnify the party aggrieved, and to satisfy his costs and expenses, a reasonable counsel fee may be allowed as a part of his expenses.'^ Order to show cause. In instituting proceeding against a person as for con- tempt, the usual method is to apply for an order that the party accused show cause why he should not be proceeded against as for a contempt, which application, like that for an attachment, is founded upon an affidavit showing the ' Idem, § 19; 11 N. Y., 69. » Idem, §§ 27, 28. * 2 R. S., § 27. "2 R. S., 539, § 31. » Idem, § 28. '4 Duer, 148. * Idem, § 30. CONTEMPTS AND PUNISHMENTS AS FOE CONTEMPT. 171 misconduct alleged,^ and it is brought on, like other motions of the like character. In such cases, the order to show cause, together with copies of the affidavits and other papers used to obtain the same, must be served upon the accused party a reasonable time before the time for hear- ing, which must be specified in such order.^ The service should be personal upon the party, unless such service is positively dispensed with on special grounds. If the defendant appear at the time specified in the order and deny under oath the alleged misconduct, the order to show cause may be discharged, or the court or judge may allow interrogatories to be tiled ; and it may direct a refer- ence to take the answers of the accused to such interro- gatories, and take such other proofs as either party may wish to submit, and report the same to the court. Upon which aflSdavits — including the original affidavits and proofs — the court or judge, as the case may be, determines the guilt or innocence of the accused.^ If the defendant does not appear at the time appointed, or at such other times as may be designated for the hear- ing of the cause, or, if appearing, he does not deny the alleged misconduct, the court may at once proceed to a final determination of the matter. Of the filing of inter)' og atones. In general, where the party accused has been brought into court on attachment in these proceedings, or where he appears therein and denies the allegations of miscon- duct, &c., charged upon him, it is necessary that interroga- tories should be filed for him to answer respecting the same. These interrogatories should be confined to the subject- matter of the misconduct alleged, and should not extend to other proceedings.* Where they are improper, the defend- ant may except to them as where they relate to other alleged contempts than that for which he is attached.* If defective, they may be amended, when necessary, for the purpose of obtaining full answers to matters already stated.* They should be filed — when the attachment is returna- ble at special term of the supreme court — within two days from the retimi,^ and a copy should be served upon ' See 2 R. S., 535, § 3, also § 5; 2 N. * 1 Barb., 228; 9 Paige, 376. Y. S. at L., 554. " 6 Cow., 41 ; i Johns., 31. * Idem, § 6. 'IS How., 494. * See 9 Paige, 375; 4 How., 369. 172 ADMINISTRATION OP CIVIL JUSTICE. the defendant.^ Where there is no special rule on the subject, the interrogatories should be filed within a reasonable time, or the defendant may move to be dis- charged out of custody ; but such interrogatories may be filed at any time before such motion is made.^ Under the former practice, the interrogatories were to be filed within four days after the return of the attachment, and the defendant either remained in custody or put in bail for his appearance to answer, or he was recognized from day to day.^ The sheriff was required to take him before a judge who exercised a sound discretion under the circumstances, whether to let the defendant to bail at all, and upon what terms.* The interrogatories being filed the defendant must an- swer them, so far, at least, as they are material to show the misconduct alleged, or the true nature and character of the misconduct as the quo animo of the accused.^ The order directing the filing of the interrogatories will fix the time within which they are to be answered by the defend- ant, and the manner in which they are to be answered, as that the defendant put in written answers thereto, upon oath, and file the same within twenty-four hours.'' The party i)rosecuting these proceedings should see that all these matters are settled in the order, and that the defend- ant is duly served with the same. If the defendant neglects or refuses to answer the inter- rogatories under oath, he subjects himself to further punishment; as being out on bail, another attachment may be awarded against him, or being before the court, he may be recommitted and the bond taken on his arrest may be ordered to be prosecuted.^ If he answers within the time and files the same, the court then may proceed at once to determine whether the defendant is guilty of the alleged misconduct, or it may look into other afiidavits and proofs which either party may produce.^ The court likewise may, in its discretion, order a reference to some proper person, to take the answers of the defendant to the interrogatories ; and also to report such other evi- dence as either party may desire to produce before him in * 2 Paige, 103. » 1 Duer, 512. » 1 Gr. Pr., 696; 2 Wend., 617. * 2 Paige, 103. » 1 Johns. Cas., 31 ; 3 Cow., 341. ' 2 R. S., 537, § 13 ; see alao § 27. ♦ 3 Cow., 341. * Idem, § 19. CONTEMPTS AND PUNISHMENTS AS FOR CONTEMPT. 173 respect to the alleged misconduct.^ During these examina- tions, ex parte affidavits of witnesses will not, in general, be received, but the witnesses should be produced and exam- ined before the referee, that they may be cross-examined.* The answers of the defendant to the interrogatories must not be evasive ; if they are insufficient, the court will send them back to be made more definite.^ The referee must report the proofs and answers taken, to the court, and not his mere opinions.* The amount of the relator's loss may also be ascertained, by reference for that purpose ; but it would be improper to unite the inquiry as to his damages, with that in relation to the misconduct charged.^ The defendant being found guilty of the alleged mis- conduct, the statute requires the court to determine whether it was calculated to, and actually did, defeat, impair, impede or prejudice the rights or remedies of any party, iu a cause or matter depending in such court, and in such case to pro- ceed to impose a fine, or to imprison the defendant, or both, as the nature of the case might require.^ The statute, however, confers upon the court the discretionary power — in case of the inability of the defendant to perform the requirements imposed — to relieve him in such manner and upon such terms as they should deem just and proper.^ The fine required to be imposed must be sufficient to indemnify ia party who has sustained an actual loss or injury by the alleged misconduct, and also to satisfy his costs and expenses ; and such amount must be paid over to such party, on the order of the court, which, if accepted, becomes a bar to any further action against the defendant by such aggrieved party, to recover damages for such injury.' The actual losses intended by the statute are those which are pecuniary in their character and are capa- ble of being estimated with reasonable certainty.^ In other cases, the fine cannot exceed two hundred and fifty dollars over and above the costs and expenses of the proceedings f and where the misconduct complained of •TPaifce, 372; 2 Barb. Ch. Pr., 277, amending same ; 2 N. T. S. at L., and note; 8 How., 61. 566. * 7 Paif^e, 60H. '' Idem, § 21 ; 7 PaiRe, 364 ; 1 Duer, 513. »2 Barb. Gh. Pr., 277. " 1 Duer, 512; 4 Paige, 164, 456; 7 ♦ 7 Paige, 372. Paige, 364; 2 Donio, 570; 11 N. • 2 Barb. Ch. Pr., 279. Y., 62. • 2 R. S., 538, § 20 ; Laws 1843, ch. 9, » Idem, § 22. 174 ADMmiSTRATION OF CIYIL JUSTICE. consists in the omission to perform some act or duty yet in the power of the defendant to perform, the court must imprison him until the same is performed, and until he shall have paid the fine imposed, and the costs and expenses of the proceedings,^ in wliich case the order and process of com- mitment must specify the act or duty to be performed, and the amount of fine and expense to be paid.^ In all other cases, where there is no special provision, if imprisonment be ordered, it must be for some reasonable time, not exceed- ing six months, and until the expenses of the proceeding are paid, and in case of a fine, until it be paid ; and the duration of the imprisonment must be expressed in the order and process of commitment.^ If it shall be found that the misconduct complained of was willful on the part of the accused, the court will pro- ceed to punish the defendant by fine and imprisonment, independent of any loss or injury on the i)art of the relator. For the misconduct being willful, the defendant is guilty of a criminal contempt, and is liable to be punished criminally as well as civilly. A willful contempt also constitutes an indictable offense.* Suit on bond. When the defendant has been duly served in attach- ment, and has given bond to appear and answer, and does not appear, the court may order the bond taken on the arrest to be prosecuted,^ and such order operates as an assignment of the bond to the aggrieved party, who is authorized to maintain an action thereon in his own name, &c.^ The complaint in such action should show, by proper averments, that the party bringing the action is the party aggrieved ; it should show the connection of the party with, and his relation to, the attachment proceedings ; and how, and to what extent such party has been aggrieved ; it should also show that prosecution of the bond has been ordered by the court, and that the plaintiff has been author- ized to prosecute the same.'' > Idem, § 23. • Idem, § 28. " Idem, I 24 ; see 1 Hill, 154 and 168. " 7 Barb., 581; 21 Wend., 57; see ' Idem, § 25. Crarj's Spc. Bo., 402. *Idem. § 26; 1 Duer, 512. » 2 R. S., 539; § 27; 2 N. Y. S. at L., 567. THE ACTION OF QUO WAHEANTO. 175 CHAPTER XII. THE ACTION OF QUO WARRANTO. The former proceeding by information in the nature of quo warranto, and the writ of quo ivarranto, are abolished by the Code, and the remedies formerlj' attainable by such forms and proceedings, are obtained by civil actions.^ An exami- nation of the provisions of the statute under which the for- mer proceedings were had, by information in the nature of a quo warranto, and the provisions of the Code by which a civil action is substituted as a means of attaining the same remedies, will show that the former proceeding by information, and the latter by action, are substantially the same ; almost every provision of the Code is a re-enactment of the same or similar provisions of the statute ; conse- quently, the practice under the Code will diifer from that under the statute only as the practice in civil actions may differ from that in special proceedings. The differences between the two modes of proceeding will be pointed out during the progress of this chajjter. Against cor])orations. According to the provisions of the Code, the attorney-general, whenever directed by the legislature, may bring this action in the name of the peo- ple of this state against a corporation, for the purpose of vacating or annulling the act of incorporation, or an act renewing its corporate existence, on the ground that such act or renewal was procured upon some fraudulent sug- gestion, or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent.^ Or the attorney-general may bring the like action on leave granted for that purpose by the supreme court, or a judge thereof,^ for the purpose of vacating the charter, or annulling the existence of a corporation — other than municipal — whenever such corporation shall, either: 1. Offend against any of the provisions of the act or acts creating, altering or renewing such corporation ; or, 2. "When it shall have violated the provisions of any law by » C!ode, § 428. ' See 2 R, S., 583, § 41. » Code, § 429. 176 ADMINISTRATION OF CIVIL JUSTICE. "which such corporation shall have forfeited its charter by abuse of its powers ; or, 3. Whenever it shall have forfeited its privileges or franchises by failure to exercise its powers ; or, 4. Whenever it shall have done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises ; or, 5. Whenever it shall exer- cise a franchise or privilege not conferred upon it by law ; and it is made the duty of the attorney-general, whenever he has reason to believe that any of these acts and omis- sions can be established by proof, to apply for such leave ; and upon leave being granted, to bring such action, in every case of public interest, and also in every other case where satisfactory security for costs and expenses shall be given.^ Actions of this character must be brought by the attorney-general, in the name of the people of the state.'' Leave, hoiv obtained. Leave to bring the action is granted upon the apfjlicatiou of the attorney-general ; and the court, in its discretion, directs notice of such application to be given to the corporation or to its officers, previous to granting such leave ; and it may hear the corporation in opposition thereto.^ These provisions of the Code for pro- ceedings against corporations are the same as they were by statute.* The statute provided that leave to file the information might be granted by the supreme court, in term time ; or by any justice thereof, but by no other officer, upon the application of the attorney-general, in vacation.^ The same is probably applicable under the Code, although it does not specify that the application shall be to the supreme court, in term time, and to a judge thereof in vacation. The Code has not specified any particular practice in the action of quo ivarranto; probably the practice under the statute, so far as the same may be applicable, would be fol- lowed in aid of the civil practice. Under the statute, the attorney-general, obtaining leave to file his information, caused the same to be indorsed thereon, under the hand of the clerk of the court, or by the justice granting the same, and forthwith filed the same f and thereupon a wrrit of summons was issued against the corporation, directed to the sheriff of the county where the principal office of the corporation or place of business are situated, command- ' Code, § 430 ; see 2 R. S., 683, § 39. * 2 R S., 583, § 39. » 12 How., 187. ' 2 R. S., 583, § 40. • Code, § 431. • 2 R. S., 584, § 41. THE ACTION OP QUO WARRANTO. 177 iDg him to summon the corporation to appear in the supreme court and answer the information filed.' The summons thus issued was served, in proper time, on the presiding officer, the cashier, the secretary or the treasurer of the corporation ; and when there was no such officer in the corporation, then the court directed on what officer or other member of the corporation the service should be made, or in what manner it should be done.^ Under the former practice, the information filed by the attorney-general performed the office of the complaint, to be filed on leave in the civil action under the Code ; and the substance and form of the complaint to be filed must necessarily be like that of the information under the former practice. Every averment essential to a valid information must be contained in the complaint ; and the summons issued against the corporation, under the present practice, can diffijr in nothing material from the summons issued upon the former information filed. Under the former practice, where the corporation ap- peared by counsel on the application for leave to file an iuformation, and was heard in opposition to granting such leave, the issuing of process might be dispensed with on filing such iuformation ; for the corporation was already sufficiently informed of the pendency of such proceedings against it.^ In the absence of any provision changing the practice, in this respect, it is presumed the old practice would be followed. In an action against such corporation, if it shall be adjudged that, by neglect, abuse or surrender, it has forfeited its corporate rights, privileges and franchises, judgment must be rendered that the corporation be excluded from such corporate rights, privileges and fran- chises, and that the corporation be dissolved.* And in Buch case, or in case the judgment be against persons claiming to be a corporation, the court may cause the costs therein to be collected by execution against the per- sons claiming to be a corporation ; or, by attachment or process against the directors or other officers of such cor- poration.* And when judgment is thus rendered against a corporation, the court has power to restrain the corpo- ration, or to appoint a receiver of its property, and to take »2R.S., 584, §41. ♦Code, §442. » 2 R. S., 458, § 5. • Code, § 443. • 2 R S., 584, § 41. IL^23 178 ADMINISTRATTOX OF CIVIL JUSTICE. an account and make a distribution thereof among its creditors, according to the provisions of the statute made in case of voluntary dissohition.^ And it is made the duty of the attorney-general to institute proceedings for such purpose, immediately after the rendition of such judgment.^ Actio?i upon information or complaint of course against individuals. The Code further provides that an action may be brought by the attorney-general in the name of the people of the state, upon his own information, or upon the complaint of any private party, against parties offending in the follow- ing cases : 1. When any person shall usurp, intrude into, or unlawfully hold or exertjise any public oflSce, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state ; or, 2. When any public officer, civil or militarj^ shall have done or suffered an act which, by the provisions of the law, shall make a forfeiture of his office ; or, 3. When any association or number of persons shall act within this state as a corporation, without being duly incorporated.^ Under the old practice, information in the like cases might be filed by the attorney-general, either upon his own relation or upon that of any private party; to be tiled in the supreme court, either in term time or in vacation ; and no application to the court for leave to file the same was necessary.* And where several persons claimed to be entitled to the same office, or franchise, one information against them all was sufficient,^ as is now one suit in the like case.^ In an action under the Code, brought by the attorney- general on the relation or information of a person having an interest in the question, the name of such person must be joined with the people as plaintiffs.'^ The Code also provides, that whenever such an action shall be brought against a person for usurping an office, » 2 R. S., 467 ; 2 N. T. 3. at L., 483. * 2 R. S., 581, § 28. ' Code, § 444. ' 2 R. S., 584, § 45. » Code, § 432. ' Code, § 440. * Code § 434. The People on the relation of A. B. against C. D. is the form used. In this action, brought on the relation of the person claiming the office against the party usurping it, the one claiming the office should be joined ; and the complaint must state fiicts showing that he is entitled to the office. People v. Ryder, 12 N..Y., 433; 12 Barb., 304. I THE ACTION OF QUO WAERANTO. 179 the attorney-general, in addition to the statement of the cause of action, may set forth in the complaint the name of the person rightfully entitled to the office, with a state- ment of his rights thereto ; and in such case, upon proof by affidavit that the defendant has received fees or emolu- ments belonging to the office, and by means of his usurpa- tion thereof, an order may be granted by a judge of the supreme court for the arrest of such defendant, and hold- ing him to bail ; and under such order he may be arrested and held to bail, in the manner and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest.^ The rules of pleading to, or answering the allegations of, the complaint, are the same as in other civil actions. Judgment in such actioiis. In such cases the judgment may be rendered upon the right of the defendant, and also u]3on the right of the party alleged to be entitled ; or, it may be upon the right of the defendant only, as justice may require.^ In such action against an intruder into a public othce, if the judg- ment of the court is for the plaintiff, it has been held that it can only be a judg-meut of ouster, and for costs; that the plaintiff's claim for damages against the defendant to recover for fees collected, &c., must be asserted in a separate action.' This was different under the Eevised Statutes. If fees had been received by the defendant, the plaintiff alleged it by suggestion after judgment, in the proceedings of quo warranto; and this suggestion was filed and served as a declaration, in a personal action, and went on to issue, trial and judgment for the amount of fees and emoluments shown to have been received by the defendant, in the same manner as an ordinary suit at law.* But under the provisions of the Code, which, in most respects are substantially those of the statute, an action for the damages sustained by the plaintiff by the unlawful intrusion, is substituted for the proceeding by suggestion.^* When judgment has been rendered ui)on the right of the person alleged to be entitled to such office, and in his favor, 'Code, §435; seethe same provision *2 R. S., 582, 583, §§ 31, 34, 38; 3 in the statute ; 2 R. S., 582, § 30. Abb., 233. * Code, § 43G, same provision ; 2 R. S., ' Code, § 439. 582, § 3] ; 2 N. Y. S. at L., 603. * Note. » 3 Abb., 233. 180 ADMINISTRATION OP CIVIL JUSTICE. he then becomes entitled, after taking the oath of oflBce, and executing such oflBcial bond as may be required by law, to take upon himself the execution of the office ; and it becomes his duty thereupon, immediately to demand of the defendant in the action, all the books and papers in his custody or within his power, belonging to the office from which he shall have been excluded.^ The rendition of the judgment of ouster against the defendant and in favor of the plaintiff, operates, upon the instant, as an ouster of the usurping incumbent ; and the party adjudged to be entitled to said office, upon taking the official oath, giving bonds, and doing whatever the law requires to entitle him to said office, becomes invested with the office, and entitled to demand and have the books, papers, «&c., belonging thereto.^ But such party can institute no proceedings to compel the delivery of such books and papers, until after a judgment of ouster has been rendered against the defendant, and in his favor, and he has made himself entitled to the posses- sion of the same.^ The relator having been adjudged to be entitled to the office, must immediately proceed to qualify himself for the legal occupancy of the same ; and it is the duty of the defendant to deliver up, on demand, all books and papers in his custody or within his power, belonging to such office, to the relator.* And such defendant, refusing or neglecting to deliver over such books and papers, pur- suant to the demand, is deemed guilty of a misdemeanor, and is subject to be proceeded against under the provisions of the statute entitled proceedings to compel the delivery of books and papers by public officers, to their successors.* Where the defendant thus neglects to deliver over any books and papers as required, the party entitled to the possession of the same makes complaint thereof, upon oath, to any justice of the supreme court or first judge of the county where the defendant resides, and if the judge or officer be satisfied, by the oath of the complainant, and such other testimony as shall be offered, that any such books or papers are withheld, he grants an order directing • Code, § 437. » 7 How , 282 ; Code § 437. » 14 Barb., 396; 7 How., 173. * Code, § 437 ; 2 R. S., 532, § 32 ; 2 N. Y. S. at L., 603. » 1 R. S., 124 and 125 §§ 50-56; 1 N. Y. S. at L., 114. THE ACTION OP QUO WAEKAFTO. 181 the defendant to sliow cause before him, within a short and reasonable time, why he should not be compelled to deliver the same.^ Such complaint should state every essential particular necessary to show the party applying to be entitled to the order. A general allegation that a judgment had been rendered and duly perfected in an action in the nature of a quo ivarranto, brought by the people to try the right of an individual to an office on a certain day, without stating in what court the judgment was rendered, or whether under the direction of a single judge, or at general or special term, is not sufficient, especially if the allegations are denied.^ Where the relator proposes to proceed against an oflBcer de facto, to compel the delivery of books and papers, &c., his title to the office should be unquestioned, if it has not been previously settled by adjudication. If his title to the office be not clear, his remedy is by action in the nature of a quo warranto,^ and not by a proceeding under the statute.'' Where proceedings have been instituted under the statute to obtain the possession of the books and papers, &c., and the defendant has been ordered to show cause, the officer at the time appointed for that purpose, or to which such matter may be adjourned, must proceed to inquire into the circumstances. It* the person thus charged appear and make affidavit before such officer, that he has truly deliv- ered over to the relator all such books and papers in his custody or appertaining to his office within his knowledge, all further ijroceediugs before such officer must cease, and the defendant be discharged.^ But the defendant not making any such oath, and it appearing that such books and papers are withheld, the officer issues his warrant to commit the defendant to the jail until he deliver the books and papers, or be otherwise discharged.^ The officer may also issue his warrant, directed to any sheriff or constable, requiring him, in the day time, to search such places as he shall designate in such warrant, for such books and papers, and seize them and bring them before him,"' who shall inquire into and examine whether • 1 R. S., 125, § 51. ♦ 1 R. S., 125, §8 51, 52, 53. • U Barb., 396. » Idem, § 52. • Jn matter of Daniel S. Baktr, 11 How., ' Idem, g 53. 418. ' Idem, § 54. 182 ADMINISTRATION OF CIVIL JUSTICE. the same belong to said office, and if he shall so find, he must cause the same to be delivered to the complainant.^ Action to vacate a patent. The attorney-general may also bring an action in the name of the people of the state, for the purpose of vacat- ing or aimulling letters patent granted by the people of this state, in the following cases : 1. When he shall have reason to beheve that such letters patent were obtained by means of some fraudulent suggestion, or concealment of a material fact, made by the person to whom the same were issued or made, or with his consent or knowledge ; or, 2. When he shall have reason to believe that such letters patent were issued through mistake, or in ignorance of a material fact ; or, 3. When he shall have reason to believe that the patentee, or those claiming under him, have done or omitted an act in violation of the terms and conditions on which the letters patent were granted, or have by any other means forfeited the interest acquired under the same.' Upon the rendition of a judgment against a corporation, or for vacating or annulling of letters patent, it is the duty of the attorney-general to cause a copy of the judgment roll to be forthwith filed in the office of the secretary of state.^ And when the record relates to letters patent, the secretary, thereupon, makes an entry in the records of the commissioners of the land office, of the substance and efi'ect of such judgment, and of the time when the record thereof was docketed ; and the real property granted by such letters patent may thereafter be disposed of by such commissioner, in the same manner as if such letters had never been issued.* ' Idem, § 55. ' Idem, 8 445. ' Code, § 433. * Idem, § 446. OF MANDAMUS AND PROHIBITION. 183 CHAPTER XIII. OF MANDAMUS AND PROHIBITION. Mandamus. General observations. The writ of maudamus is a high prerogative writ, issued in the name of the people, by the supreme court, and directed to any person, corporation or inferior jurisdiction, within the state, requiring the doing of some particular thing therein specified, which pertains to the office or duty of such person, corporation or inferior jurisdiction, and which such court has i3reviously determined, or at least supposed, to be consonant to right and justice.^ This writ is issued or withheld in the discretion of the court, and the court, in issuing it, will be governed by what seems to be necessary and proper to be done in the jDremises, for the purposes of justice.^ It will not be issued in cases of doiibtfid right. The legal right of the party to that which he demands in the writ must be clearly established,^ and to entitle a party to this writ, it must appear that there is no other specific legal remedy to which he can resort for the enforcement of his right. "SMiere the party has an adequate remedy by action, this writ will not be awarded,* and it is granted only for public purposes to compel the performance of puhlic duties,* and there must have been a neglect or a refusal to perform such duties, after a demand had been made for their per- formance.^ It will not he issued ivhere it would he unavailing. Thus, it is held that a mandamus should not be granted where it would be unavailing from a want of power in the defend- ants ; for the court should refuse the writ if it be manifest that it would be vain and fruitless. Thus, a mandamus ' See 3 Bl. Com., 110; 12 Wheat., 561; 2 Johns. Cas., 217, 2d ed., note. ' 4 Hill, 583 ; 15 BarV>., 607. But the exercise of a discretionary power may b« compelled. 13 Barb., 206. ' 11 N. Y., 5C3 ; 13 Barb., 444; 8 Pet., ' 2 Johns. Cas., 217, note; 3 Bl. Com., 291; 11 How. U. S. R., 272. 110. * 10 How., 544 ; 6 Hill, 243 ; 25 Wend., « 7 Lond. Jur., 233. 680; 11 N. y.. 563. 184 ADMINISTRATION OP CIYIL JUSTICE. to compel a board of canvassers to do certain acts, after they have ceased to exist as a board, would be futile.^ The supreme court may interfere to control the action of a board of canvassers while they exist as a board ; but it can be done only while such board has a legal existence.^ And where a mandamus is asked, it should appear that the defendants have it yet in their power to perform the duty required of them.^ Thus, a mandamus should not be issued to direct commissioners of excise to entertain the applica- tion of the petitioner after the board had met and com- pleted the ten days limited in the act.^ This writ lies to compel the performance of ministerial acts, and is also addressed to subordinate judicial tribunals, requiring them to exercise their judicial functions by ren- dering some judgment in cases legally before them, where there would be a failure of justice from a delay or refusal to act. But there is this difference ; with respect to judicial tribunals, they will require them to act, in giving judg- ment, &c., without assuming to determine what that action shall be, or to control such action ; but in respect to min- isterial action, it specifies the particular act to be done."* Although a mandamus does not lie to control a discre- tionary power, yet it will compel the exercise of such power in cases where it legally exists, as, where an officer is invested with power, and is required to grant a license to the applicant, on his complying with certain conditions, to be determined by said officer, and the applicant has complied with the necessary conditions, but the oflBcer refuses to grant the license, upon the ground that he has concluded to grant no licenses ; in such case a mandamus will lie.^ In general, the supreme court should not interfere by mandamus, with that portion of the practice of inferior courts, which does not depend upon established principles or is not regulated by fixed rules.® Agahist whom, and when the writ wUl lie. The writ, in proper cases, will lie against inferior courts, corporations and ministerial officers. » 12 Barb., 217; 11 How., 89; 15 Barb., Dowl. & Ryl., 334; 5 Halst, 57; 7 607. Id., 179. » Supra, and 16 Barb., 52. » 13 Barb., 206; 1 Hill, 655 ; 19 Johns., * 7 Abb., 34. 259 ; 12 Id., 414 ; 6 Hovsr., 81. ♦ 3 DalL, 42; 13 Peters, 279, 404; 7 * 15 How., 385; 2 Id., 59; 5 Wend., 114. OP MAinOAMUS AND PEOHTBITION. 185 Against inferior courts. This writ lies to set an inferior court in motion, where it refuses to act ; but it will not require that court to come to any particular decision, or to retrace its steps where it has acted.^ Nor will it be granted where the court has acted judicially in making its decision, for the purpose of reviewing or correcting such decision,^ not even for the purpose of enabling the party applying to bring error.' The writ of mandamus cannot be awarded for the correc- tion of judicial errors* Nor has the court jurisdiction, by mandamus, to review the decisions of a subordinate court in a matter of which such subordinate court had judicial cognizance.^ When the writ is directed to judicial oflScers, its mandate is, that they proceed — adjudicate — exercise a discretion upon a particular subject. It will direct the judge or court to proceed to render judgment, tut will not direct wliat judg- ment shall le rendered.^ Thus the court, by mandamus, will require a subordinate court to settle a case after the denial of a motion to set aside the report of a referee, so as to enable the party to briug error ; but it will not direct what facts shall be inserted in the case? So, the supreme court will require an inferior court to proceed in the exer- cise of its judicial discretion, but it will not attempt to control that discretion.* As this writ will not lie to control or direct the discretion of the court, it will not be allowed to compel a subordinate court to grant a new trial upon the merits f nor to vacate a rule granting an amendment in any case within the power of the court ;"* nor to vacate a rule setting aside a regular default and permitting the defendant to plead, on payment of costs ;^^ nor, generally, will it be granted for the pur- pose of controlling the practice in other courts.'^ But this writ will be granted for the purpose of compel- ling an inferior court to do some act belonging to its duty. Thus, it will compel an inferior court to give judgment, in '2 Denio, 192; 18 Wend., 79; 13 '20 Pick., 484; 13 Pet, 219, 404; 7 How., 277 ; 20 Wend., 658 ; 1 Dowl. & Ryl., 334. Halst., 157 ; 5 Id., 57 ; 2 Bibb., ' 20 Wend., 663. 573. »19 Johns., 260; 18 Wend., 92: 12 » Idem ; 20 Wend., 658. Barb., 446. •2 Denio, 191. '2 Cow., 479. ♦ Per Bronson, Ch. J., 20 Wend., 653. " IG Wend., 617 ; 20 Id., 658. •18 Wend., 79; 10 Pick., 244; 13 Pet., " 6 Cow., 392. 279, 404. " 16 How., 200 ; 15 Id., 392. 186 ADMINISTRATION OF CIVIL JUSTICE. order that an appeal may be brought ;^ or -will compel a justice of the peace to issue an execution upon a judgment rendered by him -^ or a court of sessions to enter judg- ment on a verdict where the court had no power to grant a new trial ;^ or to settle a case after denial of a motion to set aside the report of a referee, so as to enable the party to appeal.* This writ will not be granted to be directed to a court acting under a special commission, which had expired by its own limitation prior to the application for the writ.^ A mandamus will not lie to the common pleas, to correct the taxation of a bill of costs in items dependent, in a measure, upon discretion ; thus, how many folios should be disregarded as unnecessary f nor will it lie to review the determination of a question of fact on the weight of evidence, as an order setting aside the report of referees.' Against corporations. This writ also lies against corporations, to compel them to perform the duties which the law imposes upon them. But it lies only in those cases where the party has not an adequate remedy by action f as, where a corporation improperly refuses to transfer stock ; the party has an ample, though not a specific, remedy by action, and for that reason a mandamus will not lie.^ Nor will it lie against a municipal corporation to compel it to file and confirm an assessment of damages for the laying out of a street. If the relator's rights are vested, he should sue in assumpsit for the money, or in case, for the refusal to pro- ceed.'" The general rule applicable in these cases is, that a mandamus will lie only to enforce a clear legal right, where a remedy at law is either wanting or doubtful." Although it is a general rule that a mandamus will not be granted where the applicant has a legal remedy, but in cases of corporations and ministerial officers, they may perhaps be compelled by mandamus to exercise their func- ' 2 Johns. Gas., 215. ' 2 How., 109. * 1 Joha.s. Gas., 179. * 20 Wend., 66.3. * 10 Wend., 108. * 19 Wend., 113. * 19 Wend., 68. "2 Gow., 444; 1 Wend., 318. • Per Bronson, Ch. J., 6 Hill, 243 ; 20 Wend., 91; 22 Wend., 348; 10 Johns., 484. » 1 Wend., 318. " 2 N. y., 490 ; 11 N. T., 563 ; 5 Mete, 73 ; 26 Barb., 73. OF MANDAMUS AKD PROHIBITION. 187 tions according to law, notwitlistandrng they may be liable to au action for refusal.^ Agamst officers. Where subordinate public agents refuse to act, or enter- tain a question for their discretion in cases where the law enjoins them to do the act required by law, the court may enforce obedience to the law by mandamus, where no other remedy exists.^ As, where the supervisors of a county refuse to allow a claim, on the ground that it is not a county charge, when by law it is such charge, a man- damus lies to compel them to admit it as such, and to exercise their discretion as to the amount to be allowed.^ But if their discretion extended to allowing or rejecting the claim, a mandamus would not lie to compel such allowance.* As against corporations and ministerial officers, a man- damus may be granted not only requiring them to proceed in the discharge of their duty, but also directing the man- ner in which they shall act, and, specifically, what they shall do.^ Thus a writ has been allowed to compel super- visors of a county to allow the expenses of a county clerk incurred by him according to law.^ So, also, to compel them to restore the names of certain banks which have been stricken from the assessment roll as made by the assessors.' Also, to issue warrants for the military com- mutation ; and, being neglected at their annual meeting, they have been comiDelled to meet again and perform that duty.^ Mandamus is also the appropriate remedy by which the supervisors are compelled to levy and collect money which, by statute, is made a county charge f or to levy and collect the amount of damages sustained by the owners of land taken for the improvement of a public highway.'" But it will not lie to compel them to allow the compensation of a district attorney for his services on certiorari in a criminal case, which has been certified by a justice of the peace. Because, if they have a discretion ' 23 Wend., 448; 2 Barb., 397; but see 11 N. Y., 563. » 6How., 81; 19 Johns., 259; 1 Cow., ' 18 Johns., 242 ; 1 How., 1G3. 417. ' 4 Hill, 20. • 19 Johns., 259; 1 Hill, 50. " 8 N. Y.. 318. • 25 Wend., G92. ' 10 Wend., 363. • See 20 Wend., 658 ; 19 Johns., 2G3 ; '" 4 Barb., 64. 13 How., 277. 188 ADMINISTRATION OF CIVIL JUSTICE. as to its allowance, it cannot be controlled ; if not, that is if the certificate is conclusive, the remedy is by action.^ Mandamus is also the proper remedy to compel the board of supervisors of the city and county of New York to reduce a tax imposed on the real property of the plaintiff, on the ground that the valuation of the land was too high. The rule laid down is, that where a specific duty is im- posed on the supervisors, or any other public ofiicer, by statute, and they do not conform to the statute, and the omission to conform affects a particular party only, and not the whole assessment list, a mandamus will issue to compel such officers, &c.* Commissioners of highways may be compelled by man- damus to discharge their duties.^ But a mandamus should not be resorted to to compel them to open a highway when its necessary effect would be to subject them to an action of trespass.* So a mandamus lies to compel the supervisors and over- seers of the poor of towns, created by a division of a former town, to make an apportionment of the expenses of pau- pers, who were omitted by them in the division of paupers, unless they had acted on the case, and adjudged the per- sons in question, not to be paupers.^ So a mandamus was granted where a judge of the county court omitted to file his decision in a case for more than twenty days after the court at which the trial took place.^ So it is the proper remedy to compel the proper ofiicer to administer the oath of office to a party entitled to enter upon an office.^ It is the appropriate remedy to compel a county treasurer to pay, when he refuses to pay a demand, legally audited and allowed by the board of supervisors and directed to be paid.^ But it will not be awarded to compel him to pay a demand, not a legal charge against the county, although it has been allowed by the supervisors.^ This writ is allowable whenever a party has a legal right, and is entitled to a specific remedy to enforce it, and a public officer whose duty it is to afford that remedy, refuses to afford it. Thus it will lie to compel the clerk of an » 14 Barb., 52. • 2 Cow., 485. •12 How., 224; 19 Jolins., 259; 1 ' See Code, § 26T ; 5 How., 47, Hill, 362 ; 4 Paige, 399 ; 10 Wend., "• 4 Abb., 35 ; 3 HiU, 42. 393; 18 Id., 659. * 19 Barb., 468. ' 19 Wend., 56 ; 1 Cow., 23. • 23 Barb., 349 ; see 6 Hill, 244. *27 Barb., 94; 3 Hill, 458. OP MANDAMUS AND PROHIBITION. 189 inferior court to issue an execution on a judgment which an appellate court, without jurisdiction, assumed to reverse.^ But when the question is one of irregularity and not of jurisdiction, the irregularity will be waived by arguing the appeal on its merits, and a mandamus will not lie.^ A mandamus will also be awarded to compel the attor- ney-general to give a certificate, that a suit was duly instituted as required by law, when such certificate is necessary in order to collect costs against the state.^ The performance of an official duty, not limited in respect to the particular person holding the office, or the time of per- formance, may be enforced by mandamus, notwithstanding the term of office is about to expire.* And the mandamus may be awarded requiring the sheriff* to execute a deed, even where he has already executed one to a third person, who has conveyed the premises to a bona fide purchaser.^ The sheriff" must do his duty, although the act be incon- sistent with what he had previously done.* This writ is sometimes resorted to for the purpose of restoring an individual to an office, where he has been illegally deprived of the possession thereof^ But the court will not grant a mandamus to admit a person to an office, where the office is already filled by another person, who has been admitted and sworn and is in by color of right.'^ Says Justice S. B. Strong: 1. "A mandamus is inappro- priate where there is a real and substantial dispute as to the title to an office ; 2. Where the right of the applicant is clear and unquestionable, and the possession of the books and papers is all that is necessary to enable him to per- form fully and satisfactorilj^ the duties of the office, a resort to the summary process of the court given by statute to obtain such books, &c., renders a mandamus unneces- sary. But when the title to the office is indisputable, and the objection thereto is wholly frivolous, and the books and pai)ers would not give him the entire control of the office, the remedy by the proceedings substituted by the Code for the writ of quo warranto, would, in many cases, be so dilatory as to amount to a failure of justice ; and that » 3 Abb., 309 ; 13 How., 260; 2IIow., * 19 Wend., 56. 109. '2 N. Y., 484. • 10 How., 199. '2 Johns. Gas., 217. • 17 How., 10. ' 3 Johns. Gas., 79 ; 20 Barb., 302. 190 ADMINISTRATION OP CIVIL JUSTICE. in such cases a mandamus would be proper and should be awarded.^ Against private persons and officers of corporations. When a director of a bank is deprived of his right to inspect the books of the bank, he may have a mandamus to enforce his right,^ and the writ maj' be directed to the cashier, he having charge of the books.^ So the secretary of a turnpike corporation may be compelled by mandamus to allow the relator, or a director of the company to exam- ine the books of the corporation.^ When there is a right to execute an oflSce, perform a service, or exercise a franchise, and especially if it be a public concern, and attended with profit, and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, the court ought to assist by mandamus/ Thus, a mandamus lies to com- pel trustees of a religious corporation to induct a pastor, regularly apijointed by the jjroper ecclesiastical authority.^ So, also, to compel a medical society to restore a party to membership when he had been illegally expelled.® The writ of mandanvus and the proceedings thereon. The proceeding will be for a jieremptory mandamus, an alternative mandamus, or an order to show cause, which is in the nature of an alternative mandamus. A peremp- tory mandamus is seldom granted in the first instance, unless both parties have been heard upon the application therefor, and there exists no dispute about the facts, the law being with the applicant.'' If it be apparent to the court that no excuse can be given for the non-performance of the act, and the rights of the part}^ may be endangered by delay, a peremptory mandamus will be granted.'' So it is directed by the statutes^ to be granted, where a ver- dict on an issue of fact is found for the relator, or where judgment upon demurrer or on default, is rendered in his favor.^° Where the facts, on which the applicant relies, are in dispute, an alternative mandamus issues. The alternative ' 7 How., 128. • 24 Barb., 570. * 12 Wend., 183. ' See 7 Cow., 526. » 1 How., 247. » 14 Johns.. 325. * 7 How., 124; 3 Barb., 397. » 2 R. S., 587, g 57. * Idem; 3 Burr.. 1265. "> See 3 How., 380. \ OF MAm)AMUS AND PROHIBITION. 191 mandamus brings the questions to be decided, before the court, by a statement of the facts upon which the appli- cation for relief is founded, and the return of the defend- ant made upon such writ, either, admitting, or denying such statement, or confessing and avoiding the same. The usual practice is to grant an order to show cause instead of issuing an alternative mandamus, especially when the application is to compel the performance of an act by a subordinate court.^ In such case the questions arising upon the application are discussed upon affidavits, and no formal judgment is given. Formerly the only practical difference between the proceeding upon an order to show cause, and an alternative mandamus, was, that in the former case the decision of the court was filial ; while in the latter case the decision might be reviewed.^ But as the law now stands, either party may appeal from the decision of the court made at special term on an order to show cause.^ Substantially the same end was accom- plished under the former practice on an order to show cause ; for the court on application of either party, per- mitted the alternative mandamus to issue, and a formal record to be made up, on which the party desiring might have the case reviewed.* But generally, whether the proceeding is by obtaining in the first instance an alternative writ, or a rule to show cause, the defendant vShould in every instance, before a peremjitory mandamus is awarded against him, have the usual time allowed upon other motions, to present his defense. No motion, which in its operation is to have the effect of a final judgment, ought to be granted with- out giving the party against whom it is made, an t)ijpor- tunity of being heard.^ The application for the icrlt — affidavit. The application for the writ of mandamus is based upon affidavits, stating the facts upon which the api)licant relies for relief, and showing that he is entitled thereto," and where the matter relates to private or corporate rights, such facts should also be stated as to show the title of the 'See 10 Wend., 30; 9 Id., 472; 2 M2 Wend., 183; 10 Id., 31 ; 20 Barb. Johns. Cas., G8. 86. » 3 How., 165 ; 10 Wend., 30. ' 3 How., 164 ; 15 Johns., 537, » 6 N. Y. S. at L., 133 ; 4 Id., 681. * 1 Johns. Cas., 134. X92 ADMINISTRATION OF CIVIL JUSTICE. relator, otherwise a stranger might obtain a mandamus officiously, and for purposes not desirable to the real party.^ Thus, an affidavit for an order to show cause, why a mandamus should not issue to compel a court to restore an attorney to his office, should show that the court below acted improperly, or that the charge against the attorney was founded in error.^ The facts should be set forth with precision, so that an indictment for perjury could be maintained upon them if false,' and they should anticipate and answer every possible objection or argu- ment in fact which it may be expected will be urged against the claim.* Thus, it should show a default on the part of the court, corporation or individual proceeded against, as, that the applicant had applied to the defend- ant to do the thing which he requires the court to command him to perform, and that there was a refusal or neglect on his part to do the same.^ It should show that the appli- cant had complied with everything necessary to constitute his right,^ and entitle him to the relief he prays.' In an affidavit, as a foundation for a mandamus to com- pel an admission or restoration to an office, the nature of the office, its duties and other facts to show that it is of a public nature, should be stated f and where it is by char- ter, the substance, as applicable, should be stated therein.' So likewise, the election and other circumstances, under which the applicant claimed and still claims to be admit- ted, must be distinctly stated, and shown to have been according to the charter, &c.^ A deficiency in the affida- vit of the applicant is sometimes cured by statements in the affidavit of the defendant ; for the court will grant the writ whenever the proper case is made out.^" It is held that the affidavit should not be entitled in the court where the application is made, and the reason assigned is, that there is no cause pending of which it could be entitled ; and an indictment for perjury in making such an affidavit must fail, as it could not be shown that such a cause existed in the court in which the affidavit •was made." But if the entitling be such only as is fairly » 19 Wend., 56 ; 1 How., 186. • 1 Johns. Cas., 134; 3 Term R., 575; » 5 Term R., 466. • See 2 Johns. Gas., 217, 63, note. • 1 Term R., 403 ; 2 Id., 334. • BuU. N. R, 201. ' East., 345 ; 2 N. Y., 490. • 1 Chit. Gen. Pr., 808. • Bull. N. R, 200. "S Term R., 596; 3 Steph. N. P., 2319; 2 Johns. Cas., 217, note, 63. " 1 Wend., 291, per Savaqe, J. OF MAXDAMUS AIsT) PROHIBITION. 193 descriptive of the case, it will not come within such rule.^ The application for the writ is made to the supreme court at special term,^ and should be heard at special term.^ But after the defendants have made and filed a retm'n to an alternative mandamus, it will be too late for them to object to the form of the writ, or that it is not made return- able at special term.^ This application may be made ex parte, but the relator may (and in many cases it is the better practice), instead of applying for an order to show cause, or makiug an ex parte application for an alternative writ, to give the ordi- nary notice of motion, upon the affidavits, that a writ of mandamus will be applied for when the motion comes on to be heard ; if material facts appear to be in dispute between the parties, an alternative writ may be allowed, which will lead to the forming of an issue to be tried by jury, as will be hereafter shown ; if there is no material fact in dispute, the court can at once grant or deny the peremptory writ, thus at once disposing of the questions of law, and making an order thereon that can be reviewed in the general term and court of appeals. Order granting writ. If the court decides to allow the writ, an order granting it should be prepared and entered in the county where the proceeding is instituted. The order should set forth substantially what the writ allowed may command the defendants to do. The alternative mandamus. The alternative mandamus is issued in the name of the people of the state of Xew York, and is directed to the one who, by law, is obhged to execute it, or do the thing rtKiuired to be done. It recites briefly the facts which pre- cede the injury complained of, and upon which it is based; it then states the proceeding complained of, as stated in the complaint of the relator ; it then proceeds to order or com- mand the defendant that he act in the premises, or that he do the particular thing required to be done, substan- tially according to the order of the court allowing the issuing of the writ, or that he show cause to the contrary ' See 6 Cow., 61. = 11 How., 89. ' Supreme Court, Rule 40, 1858 ; 12 Barb., 219. IL— 25 194 ADMINISTEATION OF CIVIL JUSTICE. thereof, before the supreme court at the next special term thereof, to be holden, &c., and also that he return in what manner he execute the writ, &c. This writ is in the nature of a declaration, and must state a good title in substance.^ The relator is bound to set forth therein suflQcient facts to entitle him to the relief he claims.^ The reason is, that if the material facts on which the relator founds his claim are not stated in the writ, the defendant is deprived of the power of traversing- them, for he can only traverse what is stated in the writ.^ But the most cogent reason is, the process is considered as a declaration, and the relator, the actual x>laintifif ; and the familiar rule that he must succeed, if at all, upon the strength of his own allegation, is applicable. Thus, where the controversy arises upon a demurrer to the defendant's return, it is competent for the defendant to avail himself of any material objection to the writ, agreeably to the established rule, that the party committing the first error in substance, in pleading, must fail on a general demurrer.* Thus, where the relator sets forth in the alternative mandamus, that he has acquired the rights of the original purchaser at sheriff sale, first as assignee, and, secondly, as a subsequent judgment creditor, it will be a fatal objec- tion to his claim as assignee, that he has not filed the assignment to him, in the office of the clerk of the county in which the real estate sold is situated.^ So, also, where he claims in the character of a redeeming judgment credi- tor, it must appear that he has presented to, and left with, such purchaser or officer who made the sale, a copy of the docket of his judgment, a copy of the assignment of it, if any, duly verified, and an affidavit of the amount due at the time, &c. Without this, he had no right to acquire the title of the original purchaser.*' The title of the relator must be clearly and distinctly stated in the alternative mandamus, so that the facts stated may be admitted or traversed. It is not enough to refer in the writ to the affidavits and other papers on file, in which the order for the mandamus was made, although such reference may be made to show the amount 1 2 N. Y., 490. '' 2 R. S., 373, § 60; 2 ?T. Y. S. at L,, " 10 Wend.. 25. 387, ^ 60 ; 2 N. Y., 492. ' 3 Barn. & Aid., 221. « Idem, § 60 ; 2 N. Y., 493. * 2 N. Y., 492, per SiROXa, J. OF MA]!a)AMUS AKD PROHIBITION. 195 of the money claimed, but not the right of the relator thereto.^ Where the writ enjoins the performance of a duty, it should set out the duty to be performed,^ although it need not set out by what authority the duty exists.^ So, in commanding a person to undertake an office, it is sufficient to show the general liahility of the defendant to serve, and to allege that he was elected, and, without reasonable cause, refused to undertake the office ; but it need not be averred that he was able and^f to serve.* If the object of the writ is the production of records, a general description thereof will be sufficient.^ And so, an alternative mandamus to a court of common pleas, com- manding it to seal a bill of exceptions, need not set forth such bill; it may be served by copy, at the same time showing the original.^ This writ is tested, signed and sealed in the usual man- ner, although not a process within the meaning of the statute regalating the test and return of process.' To whoin directed. The writ must be directed to the one whose legal duty requires him to execute it, or do the thing required to be done. If the du-ection of the writ include any who are not authorized to act in the premises, it will be bad ; as, where it was directed to the mayor and clerk of Hereford, when in fact the mayor only was authorized to act.^ And for a similar reason, the same writ of mandamus cannot be directed to the township committees of two several townships, to compel them to proceed to do their duty in a matter of a road.^ Where the mandamus was sued out to commissioners of highways, to require them to act as such commission- ers, it was held, that in the first instance, it need not be directed to them by their individual names, it being only in case of disobedience to the writ, they were liable to be proceeded against individually.^" ' 7 Term R.. 52 ; 7 East., 345 ; 25 Wend.. 32 ; 10 Wend., 25 ; 15 Barb., 607. » Per Lee, Ch. J., Sayre, 37, '' 2 R. S., 197, § 5; 13 Wend., 649, ' Str., 897. 655, note ; 3 How., 1G4. ' 2 Lev., 200. » 2 Salk., 699, 701 ; 2 M. & S., 598 ; 5 ' 1 Lid., 31 ; 3 Steph. N. P., 2321, Abb., 241. 2322. • 5 Halst., 292. • 4 Cow., 73. " 16 Johns., 61. 196 ADMINISTEATION OF CIVIL JUSTICE. Where the writ is directed to a corporation or a select body, it must be directed to them in their ])voper name and also in their proper capacity, and the application shouhl state in what capacity it is intended the writ should be directed to them.^ Thus, the direction of a writ to the members of a town council, should be by their cor])orate name, for that is their legal description as long as they continue to have a corj)orate existence.* Sow served. The alternative mandamus may be served by showing the original and delivering a copy,^ and the party to whom it is directed must make his return without the writ.^ It should be served at least eight days before the time for showing cause specified in the writ,^ and may be served either in term time or vacation,^ unless it be an application to compel an inferior court to try a cause, when the service should be in term time."^ When it may he amended. The writ being in the nature of a declaration, it may be amended at any time before it is returnable.'' But amend- ments will not be allowed after the return, especially where the return has been traversed.^ The statute, however, provides that the court in which any action shall be pend- ing, shall have power to amend any process, pleading or proceeding in such action, either in form or in substance, for the furtherance of justice,^'' and this provision is made applicable to all writs of mandamus and prohibition." 3£otion to quash or set aside the icrit. The defendant, in analogy to the old practice in actions at law, after the service of the alternative writ, may appear and move the court to quash or set the same aside.^* This motion is in the nature of a demurrer,^^ and should be made before the return to the writ, unless the motion to quash is based \x\)on a defect iu substance, in which case it may ■ 2 Johns. Gas., 217, 65 note ; 3 Barn. & ' 1 How., 1 14. Ores.. GS5. * 6 Mod.. 133. » 2 M. & S.. 598; 1 Ld. Raym., 559. ' 4 Term R., 689; 5 Abb., 241. ' 1 Johns., 64. " 2 R. S., 424, § 1. * 4 Cow-.. 73. " Idem, § 10. » 3 How., 164. " 4 Cow., 73. * 4 Cow., 73; 1 Johns., 64. " 7 How., 290. OF MAin)AI^IUS AJSD PEOHIBITIOX. 197 be taken advantage of at any time before the peremptory mandamus is awarded.^ This is further in analogy with the old practice ; where the motion to quash or set aside is for some formal or technical defect in the writ, it is in the nature of a special demurrer, and must be taken advan- tage of before pleading to the action ; and where the motion is based upon some defect in substance, it is in the nature of a general demurrer; and such defect might be taken advantage of at any time before judgment, &c. Where the defendant desires further time to make his return, he must apply to the supreme court or to a justice thereof for an order enlarging the time.^ This the court has power to grant, the same as in personal actions. It is merely asking for further time to answer the complaint or writ. If the defendants fail to make a return according to the command of the writ, the statute provides^ that they shall be proceeded against as provided in the act regulating pro- ceedings, as for contempts to enforce civil remedies.* This branch of the i^roceediug differs somewhat from the ordi- nary proceeding in an action. If the defendant is in default of an answer, his default is taken, and judgment entered thereon. But in these proceedings, there is some- thing usually required to be done ; and the proceeding is designed to put the defendant in motion; therefore, if he fails or neglects to obey the mandate of the writ, he is to be proceeded against as for a contempt. The attachment in such cases is granted against those particular persons who refuse to obey the writ, even when the mandamus was directed to a corporation ; and when it is directed against several defendants in their natural capacity, the attachment will issue against them all, if they neglect or refuse to obey the writ. The members of a town council, or of the common council, may render themselves personally liable as for contempt, by their efforts to evade the force of the writ.^ ' 10 Wend., 31 ; 2 N. Y., 492 ; 5 Burr., » 2 R. S., 58G, § 34. 2740. * 2 R. S., 534; 2 N. Y. S. at L., 552. » 2 R. S., 587, § 59; 2 N. Y. S. at L., » 10 Mod., 56; 1 Duer, 451, 512; 9 N. 608; 3 How., 164; 4 Cow., 73; Su- Y., 263. preme Court, Rule 22. 198 ADMTNTSTEATION OF CIVIL JUSTICE. The return of the lorit. As the writ corresponds to the comj^laint or declaration of the plaintiff, so the return also corresponds to the defendant's answer or plea; and hence, it should deny the facts stated in the writ qh which the claim of the relator is founded, or it should show that they are not sufficient in law to sustain his claim ; or, admitting the facts, it may show other facts sufficient in law to defeat the claim of the relator.^ But if the return set forth mat- ters of evidence from which certain facts may be inferred, instead of positively and distinctly alleging the facts relied upon in answer to the mandamus, it will be bad on demur- rer.^ The same general rules api^licable to a plea or answer, are also applicable to the defendant's return. Thus, it should be positive and certain f must not be argumenta- tive,^ nor evasive.* Any matter of which the defendant proposes to avail himself, in making his defense, should be set forth with all the particularity essential to an answer or i)lea. Thus, when the objection to the validity of a law springs out of ihe failure of the legislature to comply with the provisions of the constitution, which is not apparent upon the act itself, it should be distinctly set forth in the return. A mere assertion in the return, that the law was oppressive and unconstitutional in its passage, is not enough.^ Such allegation is not a fact, but merely an argument or an aver- ment of a principle of law.^ Several matters may be set up in the return, provided they are essential to a legal and valid defense ; but such matters must be consistent with each other, for if other- wise, the whole will be quashed, as the court will not know which to believe.'^ But if such independent matters are not inconsistent with each other, some being good and others bad, the return may be quashed as to the bad, and the relator may be put to plead as to the remaining.' The defendant is only called upon to answer the allega- tions of the writ, in his return ; and if he goes beyond, and his return contains any thing more than a full answer '10 Wend., 25; 5 Term R., •?4; IG * 8 N- T., 317. Barb., 52 ; 8 How., 358 ; 11 Id., 89. " 11 How., 89. ' 2 N. Y., 496 ; 1 Ld. Ravm., 559. ' 2 Salk., 436. * 5 Term R., 66; 6 Mod.,"309. • 2 Term, 456; 5 Id., 66 ; 6 Id, 493. * 1 Barb., 34. OF MANDAMUS AND PROHIBITION. 199 to the substantial averments in the writ, such matter may be rejected as surplusage, or be stricken out on motion ; such surphisage does not aftbrd proper ground for a demurrer.^ It is held that the i)leadiugs in mandamus are the same as under the former system of pleading, and that the rules prescribed by the Code have no application to them.^ The return, like an answer, may be amended by permis- sion of the court, and x)robably upon similar terms f cleri- cal mistakes can be amended after the return is filed. The return beiug defective upon its face, may be quashed by the court, upon the motion of the relator,* either in whole or in part.^ The motion to quash the return is also in the nature of a demurrer to the plea, under the old practice.'^ So, also, where the return contains anything more than a full answer to the substantial averments of the writ, such additional matter becomes surplusage, and may be rejected.'^ The same general rules apply to the answer as to the writ, for they are to each other as declaration and plea. Hence the reply must not be argu- mentative, double, &c.^ But it is held that the court will not permit subordinate tribunals to be harrassed with special demurrers to returns made by them. If the relator is dissatisfied with a return made, conceiving it to be evasive, or the construction of any matter alleged in it to be of doubtful character, upon suggestion of its insufii- ciency, a further or suijplementary return will be ordered, and thus the rights of the party be effectually protected, as if permitted to demur specially.^ Under the statute^" the party prosecuting the writ may demur, or plead to all or any of the material allegations or facts contained in the return, to which also the defend- ant is to reply, take issue or demur. Thus the issue is to be formed, and the like proceedings are to be had for the determination thereof, as in actions on the case for a false return.'" The practice under these provisions is laid down by Justice Sutherland thus: "Although these statutes con- template formal written pleadings, in the ordinary mode of conducting suits, the practice of the court is virtually ' 2 N. Y., 490 ; 11 How., 89. ' 2 N. Y., 496. » 16 How., 4; 6 Id., 179; Codo, § 471. '*See 11 How., 89; 8 Id., 358; Code, » 7 Term R., 699. § 471 ; 16 How., 4; 6 Id., 179. * Cowp., 413 ; 2 Salk., 436. " Per Sutherland, J., 9 Wend,, 429, » 2 Term R., 456. " 2 R. S., 686, § 55. • See 9 Wend., 429. 200 ADMINISTRATION OF CIVH; JUSTICE. to allow pleadings ora tenus : that is, the relator is per- mitted to discuss the return, and to ask for a peremptory mandamus, and whilst he has not put in a, formal demurrer, the case is considered as embraced in the description of non-enumerated business, and is heard as such. But if a formal demurrer is interposed, it becomes enumerated business, aud can be heard only at the stated term. It is optional with the relator whether it shall be considered enumerated or non-enumerated business, unless the court specially direct formal pleadings to be interposed. jSTo injury can result to the defendant in consequence of this privilege allowed the relator ; for if he wishes to carry up the cause for review, the court permits him, after its deci- sion to make up and file formal pleadings, so that the record may be made iip ; which i)rivilege, however, is not granted to the relator, who has chosen to ask for a peremp- tory mandamus, without formally demurring. If dissat- isfied with the decision of the court, he cannot carry up the cause for review."^ In this latter respect, how ever, the practice is now different. The relator can now have the case reviewed by apjyeal, although he has not formally demurred to the return.^ After the return to the writ of mandamus has been filed, the party making the return may serve notice upon the relator requiring him to demur, or plead thereto within twenty days after such service ; and if no plea or demurrer to such return be interposed within that time, either party may notice the matter for a hearing at the next or any subsequent special term at which the same may, according to the practice of the court, be heard as a non-enumerated motion, and the same may be heard or disx)osed of on the said return.' A failure to demur or plead to the return by the relator, admits the return to be true, and the court can decide thereon as upon a demurrer.^ Plea and demurrer. The relator may demur or plead to any or all the material facts contained in the return.^ He may demur to part of the return and plead to the rest ; but cannot both demur and plead to the same allegations.^ The defendant may reply, take issue or demur to the defendant's plea. '6 Wend, 559, 560; see, also, 10 * See 6 Wend., 559; 7 Id., 475; 10 Wend., 632. Id.. 632; 1 Barb., 379. ' L. 1854, 592 ; 19 Barb., 657. " 16 Johns., 61. • Supreme Comt, Rule 51, 1858. « 4 Wend., 38. OF MAITDAMUS AKD PROHIBITION. 201 Issues. The issues raised in the proceedings are either issues of law or of fact, as in actions at law, and they are tried in the same manner. Issues of law are tried by the court, and are raised by demurrer to the writ, or to the return, or to some subsequent pleading awarded in such proceed- ings. These issues of law are raised on motions to quash or set aside the writ or return, &c. And so, likewise, an application for a peremptory mandamus without formally demurring to the return, is equivalent to a demurrer. In such case the facts set forth in the return are admitted to be true, and it becomes a question of law whether a peremptory mandamus should be awarded.^ But where a question of fact is raised by the writ and return thereto, or by the pleadings in the case, the cause must go to the circuit to be tried by a jury. And such issues of fact are to be tried in the county within which the material facts contained in the writ are alleged to have taken place.^ The i)reparation of the case, and the mode of trial, are the same as in personal actions. In general the relator holds the affirmative, and, therefore, the return is taken to be true until falsified upon the trial ; although allegations in the return, which are denied by the relator in his reply, and not proved, are not to be taken as true on the trial.' If, upon the issue, the finding is in favor of the relator, whether it be an issue of fac^ or of law, or if judgment be given by default, the relator recovers his damages and costs, the same as in an action on the case for a false return,* which damages are assessed by a jury on the trial of issues of fact joined, or are assessed on a writ of inquiry, where the judgment is by default or on demurrer.^ The judgment is entered on the determination of the court, or the verdict of the jury, as in personal actions. But judgment for costs, or for damages and costs, in such cases, can be entered only by the special order of the court ;'^ and execution issues thereon as in personal actions. ' 7 Wend., 475 ; 6 Id., 559. * 2 R. S., 587, § 57. » 2 R. S., 586, § 56. * 2 Biirr. Pr., 179. •12 How., 51. '3 How., 379. II. 202 ADMINISTRATION OF CIVIL JUSTICE. Tlie finding and judgment. The order for a peremptory mandamns corresponds to a judgment upon the findings of the court or jury. If a verdict on the trial of an issue of fact be found for the relator, or if judgment be rendered for him upon demurrer or by default, the statute requires a peremptory manda- mus to be granted to him without delay.^ Notwithstand- ing the language of the statute, it has been held that the relator, to obtain a peremptory mandamus, must move the court on notice to the opposite party, after the facts of the case are settled, either by default or verdict, &c., when the court can, in view of the whole case, pronounce upon the rights of the respective parties.^ The peremp- tory mandamus is the determination or judgment which the relator seeks as the ultimate of the proceeding before the court, and the motion therefor is upon the principle of motion for judgment. It is optional with the relator, unless the court specially direct the interposition of formal pleadings, to consider the motion for a peremptory mandamus as enumerated or non-enumerated business. If he prefer to bring it on as a mere motion, there being no formal issue in the case, it will be heard as a non-enumerated motion.^ But if there is a demurrer to the return, or if an issue of law is raised upon the pleadings, the case will be put down upon the calendar as an enumerated motion.* But in either case, it should be noticed for special term.^ Co8t8. In these proceedings the court awards costs in its discretion,^ as the equity of each case may require ;'' and they will not be entered against the party except by special order.^ AVhen allowed, costs will be given at the rate allowed for similar services in civil actions.^ Enforcement of the writ. Obedience to the peremptory writ is enforced by attach- ment. This is issued upon affidavits showing the service of the peremptory writ upon the proper parties, and that ' 2 R. S., 587, § 57. • L. 1833, 395, § 6 ; L. 1854, 692, § 3; = 3 How., 380. 19 Barb., 657. ' 6 Wend., 559, Rule 51. '' 1 Barb., 557. * Idem. * 3 How., 280. ' Rule 40, 10 How., 353, » L. 1854, cb. 271, § 3. OF MANDAMUS A^TD PEOHIBITION. 203 it has not been obeyed.^ A defendant tvLo has prevented the service of such writ by keeping out of the way, may be ordered to show cause.^ The statute directs a fine in certain cases.^ Appeal. Since 1854, the decisions of the court in these cases are reviewed by appeal.* Either party may have the decision or order of the court granting or refusing a mandamus, reviewing on appeal, in all cases, whether the order is made on the original apphcation for the peremptory man- damus in the first instance, or on the application for the peremptory writ on the return of an order to show cause, or on the application for the peremptory writ after a return to the alternative writ has been put in, without formally demurring or pleading to such return.* It may also be taken from the final judgment after issue joined, &c., on the return of the alternative mandamus.^ The practice on appeal in these proceedings is, in most respects, like the usual practice on appeal, from orders and judgments in civil actions ; that is, it is like such practice so far as the same may be applicable. The appeal is taken from the order or judgment of the court at special term to the general term.^ The act of 1854 refers especially to sections of the Code 327, 329, 330 and 332, as applicable in cases of appeal in special proceedings. If on an appeal a stay of proceedings is desired, an application to the court or to a justice thereof for such an order must be made, which order will fix the terms as to security, &c., which is not to exceed the amount required on an appeal to the court of appeals.'' An appeal may likewise be taken to the court of appeals from the order or judgment at general term,'^ and the prac- tice in such cases is substantially the same as appeals from judgment and orders in civil actions. JProhibition. The writ of prohibition is issued to prohibit a court and party to whom it is directed, from proceeding in a suit or ' 2 Cai., 97. ' 11 N. Y., 563. » See 12 Mod., 312. • L. 1854, 592. » 2 R. S., 587, § GO. ' Code, § 11. * L. 1854, 592 ; 19 Barb., 657. 204 ADMINTSTRATION OF CIYIL JUSTICE. matter depending before such court, upon the suggestion that the cognizance of such suit or matter does not belong to it. The olfice of a prohibition is to prevent courts from going bej'ond their jurisdiction in the exercise of judicial and not ministerial power,^ and should not be issued where there are other perfectly adequate remedies.^ This writ can be issued only by the supreme court,^ and is to be issued upon affidavits, by motion, in the same manner as writs of mandamus. The superior court of the city of Buffalo, has, within that city, concurrent jurisdic- tion with the supreme court to issue such writ.^ It is granted or denied in the discretion of the court.* The writ of prohibition does not lie to a ministerial officer, to stay the execution of process in his hauds,^ nor does it lie to prohibit the exercise of ministerial power on the part of a judicial officer. Thus, it does not lie to pro- hibit the issuing of an execution, which is a ministerial power.^ Where the court has erred in the decision of a matter within its jurisdiction, the remedy is by appeal, error, or certiorari, as the case may be ; and not by prohibition. "^ The writ when issued, is directed to the court and party, commanding that they desist and refrain from any farther XJroceedings in the suit or matter specified therein, until the next term of the said supreme court, and the further order of the said court thereon, and that they then show cause, why they should not be absolutely restrained from any further proceedings in such suit or matter.' When served, it stays both the court and the party from proceed- ing in the matter or suit.^ The writ is served upon the court and party to whom it is directed, in the same manner as a writ of mandamus f and the return thereto is also to be made by the court in the like manner ; which return may be enforced by attach- ment.^ After the return to the writ has been filed, the party making the return may serve a notice upon the relator, requiring him to demur or plead thereto within twenty days after such service,^ and if no plea or demurrer is ' 2 nm, 367; 1 Id., 201; 19 Wend., ^ 1 Hill, 195; 7 Wend., 486. 154. « 2 Hill, 367. "2 R. S., 587; §G1; 2 N. Y., S. at ' 2 R. S.. 587, § 61; 2 N. Y. S. atL., 609. L., 609. ' 7 Wend.. 518; 19 Id., 154. » 1 L., 1857, 752. ° 2 R. S., 587 ; § 62, ante. ' 2 Hill, 367. " Supreme Court, Rule 51, 1858. OF MANDAMUS AND PROHIBITION. 205 interposed within the time required, either party may notice the matter for hearing at the next or any subse- quent special term at which the same, according to tlie l)ractice of the court, may be heard, as a non-enumerated motion, and will be heard and disposed of on the said return.^ If the party to whom such writ of prohibition is directed, bj' an instrument in writing signed by such party, and annexed to the return of such writ, adopt the return, and rely upon the matters therein contained as a sufficient cause why such court should not be restrained as men- tioned in the writ, such party is thereupon to be deemed defendant in such matter ; and the person prosecuting such writ may then reply, take issue, or demur to the mat- ters so relied upon, and the like proceedings are then to be had for the trial of issues of law or fact joined between the parties, and for the rendering of judgment thereupon, as in personal actions.^ But when the party to whom such writ of prohibition is directed does not adopt such return, then the party prose- cuting brings on the argument of such return, as upon rule to show cause ; and he may, by his own affidavit and other proofs, controvert the matters therein set forth. Judgment. The court, after hearing the proofs and alle- gations of the parties, renders its judgment, either that a irroliibition cibsolute, restraining the said court and party from ijroceeding in such suit or matter, do issue, or that a writ of consultation^ authorizing the court and party to jH'Oceed in the suit or matter in question, be issued.^ So also, where the party has adopted the return of the writ as before stated, if the court renders judgment for the party prosecuting, a prohibition absolute issues ; but if for the defendant, a writ of consultation is awarded.* Amendments of the writ and of the pleadings may be made, by leave of the court, as in the proceedings by man- damus.^ Costs are also awarded, in the discretion of the court,*^ and are to be at the rate allowed for similar services in civil actions." Appeals may be taken from the decision of the court at special term, to the general term, the same as in manda- mus ; also from the general term to the court of appeals.'' ' Supreme Court, Rule 51, 1858. ' 2 R. S., 425, § 10. ' 2 R. S., 587, § 62. ' Laws 1854, 592, § 3. ' Idem, § 04. 'Code. § 11; Laws 1854, 592; 19 * Idsm, § 65. ' Barb , 658. 206 ADMDflSTRATION OF CIYIL JUSTICE. CHAPTER XIV. HABEAS COEPUS AKD CEETIOKAKI. General observations. The writ of habeas corj)us is issued to inquire into the grounds upon which any person is restrained of his liberty ; and when it is found that the restraint is illegal, to deliver him from such restraint.^ The statute provides that every person committed, detained, confined, or restrained of his liberty, within this state, for any criminal or supposed criminal matter, or under any pretense whatsoever, except in certain cases therein specified, may prosecute a writ of habeas corpus, or of certiorari, according to the provisions therein contained, to inquire into the cause of such impri- sonment.^ The persons not entitled to the writ are : 1. Persons committed or detained by virtue of any process issued by any court of the United States, or any judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or where exclusive jurisdiction has been acquired by the commencement of suit in such courts ; 2. Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon any such judgment or decree.^ in general, this writ to inquire into the cause of deten- tion, in all cases, whether under the statute or at the com- mon law, except when issued by the supreme court or one of the justices thereof, can only be allowed for the purpose of delivering the person for whose relief it is asked, from illegal imprisonment or restraint. The only exception is in the case of an infant of such tender years, as to be inca- pable of making a choice for itself.* While the writ of habeas corpus is prerogative in its character, it is, nevertheless, a writ demandable as of right, on a proper foundation being made out by proof,^ ' 3 Hill, 647, note. * 14 N. T., 575, aflf'g 22 Barb., 179, 188; ' 2 R. S., 563, § 21; 2 N. Y. S. at L., 1 Duer. 709, &c. 584. * 3 Hill, 649, note. • Idem, § 22. HABEAS CORPUS AND CERTIOEAEI. 207 and it lies in all cases of imprisonment by commitment, detention, confinement or restraint, for whatever canse or under whatever pretense ; in which respect the statute and common law writs are the same.^ This writ frequentlj^ issues for purposes connected with the administration of justice, as for the purpose of bring- ing the body of a prisoner before the court to testify, or to be arraigned upon an indictment, or for the purposes of exonerating his bail from liability,^ &c. Althongh the nature of the writ is, like other preroga- tive writs, appellate in its character, in that it looks to the case only as it is presented upon the return thereof, yet it will not lie to review the judgment or decision of a court or officer having competent jurisdiction.^ Thus, where the licibeas corpus showed that the person sought to be relieved was detained under a commitment by a magistrate for contempt as a witness, in refusing to answer questions relating to a criminal complaint, it was held that the offi- cer before whom the writ was returnable had no right to inquire into the truth of the facts adjudged by the com- mitting magistrate, nor whether the questions put to the witness were proper, nor whether he was privileged from answering the same.* The officer may inquire whether the process of commitment is valid on its face ; or, whether any thing has arisen since the commitment for i)utting an end to the imprisonment ; or, whether the committing magistrate had jurisdiction, &c.,* even though the neces- sary jurisdictional facts are recited in the commitment ;* but he cannot rejudge the judgment of the committing court or magistrate.^ The writ of liaheas corjyus is not the proper remedy by which to try the right to the guardianship of an infant,'^ nor to determine the sufficiency of an affidavit upon which an attachment for a contempt is issued." The attachment iu such case is issued, in the discretion of the court, upon due proof, and upon Avhich the court is to decide as to its sufficiency.'' When the court has jurisdiction, both of the person and of the subject matter, the officer issuing the writ of liahms corpus cannot, in general, look beyond what appears upon the face of the commitment." ' 2 R. S., 564, §§ 21, 23; 3 Bl. Com., » Per Bronson, J., 5 Hill, 1G8, ciling 3 128-138. Wend., 220. ' 7 Wend., 132. • 8 Paige. 47. * 5 Hill, 164; 22 Barb., 178. ' 2 Sandf., 724. * 5 Hill, 164; 2 R. S., 667, § 42. * See 1 Hill, 159 ; 2 Sandf., 729. 208 ADMINISTRATION OF CIVIL JUSTICE. The application for the writ, to whom and how made. The application for sucli writ is by i)etition, signed either by the party for whose relief it is intended, or by some person in his behalf, either to the supreme court,* during its sitting ; or, during any term or vacation of such court, to the chancellor, or any one of the justices of the supreme court, or any ofiicer who may be authorized to perform the duties of a justice of the supreme court at chambers,! being or residing within the county where the prisoner is detained ; or, if there be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or having refused to grant such writ, then to some ofiicer having such authority residing in any adjoin- ing county.^ And whenever an application for any such writ is made to an officer not residing within the county where the prisoner is detained, he must require proof, by the oath of the party applying, or by other sufficient evidence, that there is no officer in such county authorized to grant such writ, or, if there is such an officer, that he is absent, or has refused to grant the writ, or for some cause, to be specially set forth, is incapable of acting.^ The restriction that the application for such writ must be to an officer residing within the county where the prisoner is detained, applies only to that class of officers designated as " authorized to perform the duties of a justice of the supreme court at chambers."^ Where the applica- tion is made to the supreme court or to any one of its jus- tices, it may be made in any county in the state, without * The like authority is also given to the superior court of the city of Buffalo, and to each of the justices thereof, to issue the writ within the city of Buffalo (Laws 1857, vol. 1, 752); also to the city judge of the city of Brooklyn (Laws 1849. 174-, § 26); and to the city judge of the city of Sevf York, within that city. (Laws 1850, 388; 6 Abb., 139, 146.) f The officers authorized to perform the duties of justices of the supreme court at chambers, under the Revised Statutes, were supreme court commissioners (2 R. S., 280). which office was abohslied by the Constitution of 1846 (art. 14, § 8); the judges of the superior court of the city of New York (2 R. S., 281, § 33) ; the judges of the court of common pleas for the city and county of New York (Laws 1847, 281, § 7); the recorders of cities and judges of the county courts, being of the degree of counselor at law. (2 R. S., 281, § 32; see also 3 How., 32. 40, 172.) Tlie authority of the cliancellor to award a habeas corpus was transferred to the justices of the supreme court by the judiciary act and the Constitution of 1846. ' 2 R. S., 563, § 23 ; 2 N. Y. S. at L., 581. ' 8 Abb., 190 ; 3 How., 39. "2 R. S., 564, § 24; 8 Abb., 183. HABEAS CORPUS AND CERTIORAKI. 209 reference to the place of the detention of the prisoner ;^ and when the application is thus made in a conuty other than the one where the prisoner is detained, such conrt or judge, in its discretion, may make such writ returnable before some officer authorized to issue such writ, in the county where the prisoner is detained.' But the city judge of th^ city of Brooklyn has no power to issue such writ running into another county, without proof that there is in such count}', no officer authorized to grant the writ.^ The statute has provided what, in substance, the petition shall contain. It must state : 1. That the person in whose behalf the writ is applied for, is imprisoned or restrained in his liberty ; the officer or person by whom he is confined or restrained, and the place where ; naming both parties when their names are known, or describing them if they are not known ; 2. That such person is not committed or detained by virtue of any process issued, or judgment or decree rendered, by any competent tribunal of civil or criminal jurisdiction, or by virtue of anj" execution issued upon any such judgment or decree; 3. It must also set forth, according to the best knowledge and belief of the applicant, the cause or pretense of such confinement or restraint ; 4. The statute also imposes upon the supreme court, and its several justices, the duty of issuing the writ of habeas corpus in certain cases, even though no petition has been presented or application has been made for such writ. This is required when they shall have evidence, from any judicial proceeding had before them, that any person within the county in which such court or officer shall be, is illegally confined and restrained of his liberty.' Form of the writ. The statute also prescribes the form of the writ to be used. It is issued in the name of the people of the State of New York, and is directed to the person or officer by whom the prisoner is detained, com- manding him to have the body of the prisoner, together with the time and cause of such imprisonment and deten- tion, by whatsoever name the prisoner shall be called or charged, before the justices of the supreme court, or some officer, &c., as the case may be, forthwith, or at a specified time to be named therein, &c.'* The writ may also be » 8 Abb., 190 ; 3 How., 39; Laws 1837, ' Idem, 565, § 30. 230; 4 N. Y. S. at L., 681. ♦ 2 R S., 565, § 27; see form in the •8 Abb., 190. statute. II.— 27 210 ADMINISTRATION OF CIVIL JUSTICE. directed to any person who is charged with participating in the illegal detention of the prisoner, though he may not be the immediate actor.^ The writ should state the jjlace of the return as well as the officer or court before whom it is returnable.^ If the confinement or restraint is by virtue of any war- rant, order or process, a copy thereof must be annexed ; or it must be averred, that by reason of such prisoner's being removed or concealed before the application, a demand of such copy could not be made, or that such demand was made, and that legal fees therefor were tendered to the officer or jjerson having such prisoner in his custody, and that such copy was refused. 5. If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality consists ; 6. It must si3ecify whether the party api>lies for the writ of habeas corpus, or for the writ of certiorari; .7 And it must be veri- fied by the oath of the party making the application.^ Wben the object of the writ is to determine the rightful custody and disposition of an infant, the application should be made to the supreme court or to one of its justices. The application, in such case, is at the common law, and not under the statute; unless the proceeding is upon the application of the husband or wife, made under the stat- ute, representing that the wife or her husband has attached him or herself to the society of shakers, and detains a child of the marriage between them, &c.* A judge of the superior court of the city of New York is not clothed with the discretionary powers of a judge in equity, in relation to the custody and disposition of infants.^ Nor is a recorder of a city, a county judge, or a judge of the court of common pleas of the city and county of New York; nor is a justice of the supreme court, in respect to the statutory writ of Jiaheas corpus, returnable before him at chambers, clothed with such discretionary powers. In such cases, the petition must be addressed to the supreme court in equity, and then it may be presented to a justice thereof, at chambers, out of term, and such justice would have power to entertain such proceeding.^ The statute also provides that any court or officer empowered to grant any writ applied for under that act, • See 3 HiU, 406. * 2 R. S., 149, § 4. ' 2 R. S., 574, § 15. ' 1 Duer, 709 ; 8 How., 288. ■» 2 R. S., 564, § 25; 2 N. Y. S. atL., 585. " 22 Barb., 179 ; 14 N. Y., 575. HABEAS CORPUS AND CERTIOEART. 211 to whom siicli petition shall be presented, shall grant the writ without delay; unless it appear from the petition itself, or from the documents annexed, that the party applying- therefor is, by the provisions of the statute, prohibited from prosecuting such writ.^ And if any court or officer, thus authorized to issue such writ, refuse to issue the same, when legally applied for, every member of such court assenting to such refusal, and every such 'officer, severally, forfeits to the party aggrieved the sura of one thousand dollars.^ Seal of what court. The statute also provides that the writ must be under the seal of the court by which it is awarded; and when awarded hy an officer out of court, then, under the seal of the court before which the writ is made returnable; and, if made returnable before some body other than a court of record, or before an officer out of court, then it is to be under the seal of the supreme courc.^ The indorsement. The writ must also be indorsed with a certificate that the same has been allowed, together with the date of its allowance. When the writ is awarded by the court, the indorsement must be signed by the chief justice or other presiding officer of such court; if awarded by an officer out of court, the indorsement must be signed by such officer; and whenever the writ is required in an action or matter to which the people of the state are parties, on the application of the attorney-general, or district attorney having charge of the same, the fact that it was issued upon such application must be stated in their indorsement of the allowance.'' So, when the charges for bringing up the prisoner are to be paid by the petitioner, the indorsement of the allowance must also specify the amount of such charges to be paid.^ The officer bringing up the prisoner may require his charges therefor to be I)aid by the i)etitioner, if so allowed by the court or officer granting the writ. Such allowance may be had, when the writ is to be directed to any other than a sheriff', coroner, constable or marshal." This writ may be amended, on motion, like other pro- cesses, in the discretion of the court.'' • 2 R. S., 5G4, § 2G. ' Iilem, § 84. ' Idem. 565, S5 :51. • 2 R. 8., 575, § 84. • 2 R. S., 574,"§ 74 ; 2 N. Y. S. at L., 594. ' 3 Hill, G57, note, &c. ♦Idem, § 77. 212 ADMINISTRATION OP CIVIL JUSTICE. The statute, having given the general form of the writ, provides fiirtlier, that a defect of form, in the writ, will not excuse a disobedience thereof. That the person hav- ing the custody of the prisoner may be designated either by his name of ofltice, if he have any, or by his name; or, if both such names are unknown or uncertain, then he may be described by an assumed appellation; and that any one who may be served with the writ shall be deemed the person to whom it is directed, although it be directed to such person by a wrong name or description, or to another person. So, also, if the person directed to be produced be designated by name; or if his name be uncertain or unknown, he may be described in any other way, so as to designate the person intended.^ The form of a writ of certiorari, to be issued in pursu- ance of these provisions, is also given in the statute.* ITow and by whom the writ to he served. The statute provides that the writ of habeas corpus can only be served by an elector of some county within the state; and to be deemed complete service, the party serv- ing the same must tender to the person in whose custody the prisoner may be, if such person be sheriff, coroner, constable or marshal, the fees allowed by law for bringing up such prisoner; nor, unless he shall give bond to the sheriff, coroner, &c., as the case may be, in a penalty double the amount of the sum for which such ])risoner may be detained, if he be detained for any specific sum of juoney; and, if not, then in the penalty of one thou- sand dollars, conditioned that such person will pay the charges of carrying back such prisoner, if he shall be remanded, and that such prisoner will not escape by the way, either in going to, or returning from, the place to which he is to be taken.' These provisions, however, do not apply to any case where the writ is sued out by the attorney-general or district attorney.* The writ is served by delivering the same to the person to whom it is directed, and if he cannot be found, it may be served by being left at the jail or other place in which the prisoner may be confined, with any under officer, or other person of proper age, having charge, for the time, » 2 R. S., 565, § 29. » 2 R S., 574, § 78 ; 2 N. T. S. at L., 596. • 2 R. S., 565, § 28, * Idem, § 79. HABEAS COBPUS AND CERTIOKAM. 213 of such prisoner.^ And if the person upon whom it ought to be served, conceal himself or refuse admittance to the party attempting to serve the same, it may then be served by affixing the same in some conspicuous place, on the outside, either of his dwelUng house or of the place where the party is confined.^ After such writ has been thus served upon any sheriff, coroner, constable or marshal, whether the same was directed to him or not, and upon the payment or tender of the charges allowed by law, and the delivery or ten- der of the bond before described, it becomes his duty to obey and return the same, according to the exigency thereof; and so, likewise, if it be served upon any other person having the custody of the individual for whose benefit it was granted, it becomes the duty of such person to obey and execute such writ according to tlie command thereof, without requiring any bond, or the payment of any charges, unless the same had been previously required by the officer granting the writ.^ It is hkewise the duty of the person upon whom the writ of certiorari, issued in pursuance of these provisions, shall have been served, and upon the payment or tender of fees allowed by law for making a return to such writ, and for copying the warrant or other process to be annexed thereto, to obey and return the same according to the exigency thereof. Proceedings in case of disobedience. If the party served refuses or neglects to obey the same, by producing the party named in such writ of habeas cor- pus, and making a full and explicit return thereto within the time therein required, and show no sufficient excuse for such neglect or refusal, it then becomes the duty of the court or officer before whom such writ is made returna- ble, upon due proof of the service thereof, forthwith to issue an attachment against such person, directed to the sheriflF of any county within the state, commanding him forthwith to apprehend such person, and bring him imme- diately before such court or officer. And on such person being so brought before the court, &c., he shall be committed to close custody, in the jail of » 2 R. S., 574, § 78; 2 N. Y. S. at L., ' 2 R. S., 675, § 81. 595, § 80. » Idem, g 82. 214 ADMINISTRATION OF CIVIL JUSTICE. the county in which such court or officer shall be, without being allowed the liberties thereof until he make return to Buch writ, and comply with any order that may be made by such court, &c., in relation to the person for whose relief such writ was issued.^ If the sheriff has been guilty of such neglect, the attachment may be directed to the coroner or such other person as may be designated therein, who will have full power to execute the same, and the sheriff may be committed to the jail of any county except his own.^ In addition to the attachment thus directed, a precept may likewise be issued at the same time, to the same officer or other person, commanding him to bring forthwith before the court or officer the party for whose benefit the habeas corpus was issued, and such person shall remain in the custody of the person holding such precept, until he be discharged, bailed or remanded, as the court or officer shall direct.^ In the execution of the attachment or precept, the power of the county may be called to the aid of the person executing it.* The return of such writ. Such writ is made returnable at a day certain, named therein, or forthwith, as the case may require.^ If the writ be made returnable at a certain day, the writ must be returned and be produced at the time and place speci- fied therein; and if it be returnable forthwith, and the place be within twenty miles of the place of service, the return must be made and the prisoner be produced within twenty-four hours, and the like time shall be al- lowed for every additional twenty miles.^ The person upon whom the writ is served must state in his return, plainly and unequivocally : 1. Whether he has or has not the party in his custody or under his power or restraint; 2. If he has, then the authority and true cause of such imprisonment or restraint, setting forth the same at large; 3. If the party be detained by virtue of any writ, warrant or other written authority, a copy thereof must be annexed to the return, and the original be pro- duced and exhibited on the return of the writ, to the court or officer before whom the same is returnable ; 4. If the ' 2 R. S., 566, § 34. » 2 R. S., 574, § 75. 'Idem, § 35. •Idem, 575, § 86; 2 N. Y. S. at L., » Idem, § 36. 596. * Idem, § 37. HABEAS CORPUS AND CERTIORARI. 215 person upon whom sucb writ shall have been served, shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return must state particularly to whom, at what time, for what cause, and by what authority such transfer took place ; and the return must be signed by the person making- the same, and except where such person shall be a sworn public officer, and makes his return in his oflScial capacity, it must be verified by his oath.^ Besides this return upon the writ, the body of the person in custody must be produced according to the command of the writ except in case of sickness, &c.^ And whenever, from sickness or infirmity of the person directed to be produced by such writ, such person cannot be produced before the court without danger, the party in whose cus- tody he is may state that fact in his return and verify the same by his oath ; and the court, being satisfied of the truth of such allegation, will then proceed to examine and dis- pose of the cause the same as upon certiorari? Otherwise, to excuse the non-production of the body, the return must show that the prisoner is neither in the defendant's custody or within his possession or power.* The return may be amended by leave of the court at any time before the decision is made, and it may be amended either in its substance or its form,^ and it should be amended by the one making the defective return.^ Proceedings after the return of the wi-it. Notice to other parties. When the return to the writ shows that the party is in custody on any process under which any other person has an interest in continuing his imprisonment, or restraint, no order will be made for his discharge until it is made to appear that the party thus interested, or his attorney has had hke notice of the time and place at which such writ was made returnable, as is required to be given of special motions in the supreme court.^ Notice must be given even where the party does not reside in the county where the party sought to be relieved resides, or where the proceeding is to be • 2 R. S., 5G6, § 32. * 10 Mod., 102. * Idem, §§ 33, 49. • 3 Hill, 657, note. • Idem, § 49. '2 R. S., 509, § 4G ; see 1 vol. 429, ♦ 10 Johns., 328; 3 Hill, 657. 430; Code, §§ 410, 412 and 413. 216 ADMINISTRATION Oi?* CIVIL JUSTICE. had. The party interested is entitled to notice of the proceedings, without regard to his place of residence,^ although copies of the petition and other papers need not be served upon him.* Such interested parties residing in other counties, notice may be served upon them by mail, when the communication is regular between them. In such case, the service is made by enclosing the notice in a wrapper, and putting the same in the post-office, properly directed, and paying the postage thereon.^ Where the party is detained upon a criminal accusation, the district attorney must also be notified of the time and place at which such writ is to be returned. The notice must be given to the district attorney of the county in which the prisoner is detained.' The court or officer before whom the party is brought on habeas corpus, must proceed immediately after the return thereof to examine into the facts contained in such return, and into the cause of the confinement or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter or not.^ If the facts are not denied, the law of the case is alone inquired iuto.^ But if issue is taken upon mate- rial facts in the return, or if other facts are alleged to show the imprisonment to be illegal, or that the party is entitled to his discharge, the court or officer proceeds at once to hear the allegations and proofs, and disposes of the party according to the justice of the case."' If no legal cause be shown for such imprisonment or restraint, or for the continuation of the same, the party must be discharged from the custody or restraint under which he is held.^ But if it shall appear that he is detained in custody either, by virtue of process issued by any court or judge of the United States, in a cause where such judge or court has exclusive jurisdiction ; or by virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree ; or for any contempt specially and plainly charged in the commitment, by some court, officer or body having authority to commit for the contempt so charged ; and that the time during which • 14 Wcnd., 48. » 2 R. S., 267, § 38. » 12 Wend., 229. • 3 Hill, 658; note pi., 28; 4 Barb., 41. » Code, § 410. •' 2 R. S., 569, § 48. *2R. S., 569, §47, Laws 1837, 231; 'Idem, 567, § 39; 15 Barb., 153; 1 5 Hill, 169; 10 Paige, 611. Duer, 709. HABEAS CORPUS AND CERTIORAEI. 217 such party may be legally detained, has not expired, it becomes the duty of the court or oihcer making such examination forthwith to remand such i)arty.^ If it appear on the return, that the prisoner is in cus- tody by virtue of civil process from any court legally constituted, or issued by any oflflcer in the course of judi- cial proceedings before him, authorized by law, such prisoner can be discharged only in one of the following cases : 1. Where the jurisdiction of such court or officer has been exceeded, either as to matter, ijlace, sum or per- son ; or, 2. Where, the original imprisonment being lawful, by some act, omision or event which has subsequently taken place, the party has become entitled to be dis- charged; or, 3. Where the process is defective, in some matter of substance required by law, rendering the same void ; or, 4. Where the process, though in proper form, has been issued in a case not allowed by law ; or, 5. Where the person having the custody of the prisoner under such process, is not the person empowered by law to detain him ; or, 6. When the process is not authorized by any judgment, order or decree of any court, nor by any pro- vision of law.^ But on the return of such writ, no court or officer has any power to inquire into the legality or justice of any process, judgment, decree or execution, specified in the twenty-second section of the haheas corpus act,^ nor into the justice or propriety of any commitment for a contempt made by any court, officer or body, according to law, and charged in such commitment.* But if, on examination, it appear that the party has been legally committed for any criminal offense, or if, by the testimony offered with the return of the writ, or upon the hearing thereof, he appear to be guilty of such offense, although the commitment be irregular, such party will not be entitled to a discharge ; but he may be let to bail, if the offense be bailable and good bail be offered, otherwise he is to be remanded.^ Being remanded, he is idaced under the restraint from which he was taken, unless the person holding him under such restraint was not entitled » 2 R. S., 567, § 40 ; see 29 Barb., 625 ; ' See 2 R. S., 563. 5 Hill, 167; 19 Paige, 284; 8 How., 'Idem, §42; 15 Barb., 153; 5 IIUl, 480 ; see alflo 2 R. S., 44, § 15. 167 ; see 2 R. S., 44, § 15. • 2 R. S., 568, § 41 ; see 29 Barb., 78; » Idem, §43; 26 Barb., 80; 1 Sandf., 11 Abb., 147; 19 How., 477; 15 702. lb., 211. n.— 28 218 ADMINISTRATION OF CIVIL JUSTICE. to do SO, in which case he is to be committed to the cus- tody of such person or officer as by law is entitled thereto.* During the examination and before judgment is given upon the return, the prisoner remains in the custody of the sheriff, or other officer or person, as the court shall direct.^ The officer issuing the writ of habeas corpus is not authorized to permit the prisoner to go at large until his decision of the case upon the return.^ If the prisoner is imprisoned on execution, the sheriff will be liable for an escape if he voluntarily suffers him to go at large without restraint.^ It is held, however, that the habeas corpus relieves the prisoner temporarily from the duress of im- prisonment under the execution, and that he is not then enduring the restraint created thereby with the view of coercing payment/ Therefore the sheriff is not bound to keep the prisoner always in sight with the same strictness as before.* What may he inquired into^ on the return of the writ, by the court or officer hearing the same. When it appears, by the return, that the prisoner is detained by virtue of any civil process from any court, legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, and the process is valid upon its face, the presumption will be in favor of the legality of such imprisonment ; and the burden of impeaching its legality will be thrown upon the prisoner. But he is at liberty to impeach it, by show- ing want of jurisdiction in the court or magistrate from whence it emenated,^ or that the court had exceeded its jurisdiction in that particular case, either as to matter, place, sum or person.^ The process may also be attacked by showing that there has been some act, omission or event, which has taken place since the issuing of such process, which entitles the party to be discharged therefrom.'^ The court may also inquire whether the process, though proper in form, was issued in a case legally allowable, or whether it was issued in accordance with any provision of law.* Thus, if the » 2 R. S., 563, § 44. "2 R. S., 568, § 41, sub. 1. " Idem, § 45 ; 10 Paige, 610. '' Idem, sub. 2 ; 1 Hill, 337; 25 Wend., » 10 Paige, 606. 483. * 18 Jolms., 48; 7 Wend., 132. 'Idem, sub. 4, 6; 3 Hill, 661, note pL *3 Hill, 661, note pi. 31; 1 Sandf., 31, 37. 302; 2 Park. Cr. R., 650. HABEAS CORPUS AND CERTIORARI. 219 defendant has been taken in execution, the court may inquire whether the judgment authorized the issuing of an execution against the body of the defendant ; and if not, whether there is record evidence sufficient to justify issuing the same.^ Thus, where an execution was issued on a judgment rendered in an action against an innkeeper, for the loss of the baggage of his guest, and the defendant was taken in execution, the court held, that on a habeas cor- pus issued to inquire into the cause of the caption and deten- tion of defendant, it might proceed to .inquire wiiether the process, though proper in form, was allowable by the law in the case, and whether it was authorized b}^ a judgment or decree of a court, or by a provision of law.^ And where an order of court was necessar}^ to the issuing of such execution, such order should also appear, or at least, the facts entitling the judgment creditor to such an order should appear to have been established.^ But, on such return, the court cannot inquire into the legality or justice of any process, judgment, decree or execution specified in the twenty-second section of the Iwheas corims act,^ nor into the justice or propriety of any commitment for a contemjjt made by an}' court, officer or body, according to law, and charged in such commitment.* Thus, where the return shows that the prisoner is detained under a commitment for contempt as a witness, in refusing to answer questions relating to a criminal complaint, the court has no right to inquire into the truth of the facts adjudged by the committing magistrate, nor as to the pro- priety of the questions put to such witness, nor as to his privilege from answering the same.^ But the question of the jurisdiction of the court commit- ting, is open to inquiry, eveu where the imprisonment is under the asserted authority of the United Htates.*^ And the jurisdiction may be inquired into where the commit- ment recites the necessary facts to confer jurisdiction.^ Under the statute, the party brought b(,'fore the court on haheas corpus, is permitted to deny any of the material facts set forth in the return, or allege any fact to show either that his imprisonment or detention is unlawful, or that he '26 Barb., 80; 15 How., 211. *''5Hill, 1G4; 11 How., 418. * 26 Barb., 80. " 3 Hill, G51, note; 6 Johns., 337. *2R. S., 563. '5 Hill, 104, 168; 5 Abb., 281; 15 ♦ Idem, 568, § 42; 2 Park. Cr. R., 650; How., 210. 16 Barb., 363. 220 ADMINISTRATION OF CIVIL JUSTICE. is entitled to his discliarg-e.^ It is held that this provision of the statute does not authorize a summary trial as to the guilt or innocence of the prisoner; but only to enable him by evidence aliunde the return, to dispute the facts of his detention on the process or proceeding set forth ; or to impeach it for lack of jurisdiction ; or to show that by some subsequent event, as pardon, a reversal of judgment, &c., it had ceased to be a lawful detention.* Accordingly, where the return shows the party to be detained on pro- cess, the existence and validity of the process are the only material facts, within this provision of the statute, upon which issue can be taken.^ Where the process is sufficient to protect the officer and party, the imprisonment is law- ful.^ In x)roceedings under this writ, the court or officer is confined to questions of jurisdiction, and to what may be called prima facie appearance of the proceedings, without raising any collateral issues, or impeachments of records, deeds or papers fair on their face.* Thus, where a pardon was alleged in answer to a return on a habeas corpus, the court cannot go behind the pardon and inquire whether it was fraudulently obtained.* Bronson, J., held that this provision of the statute^ was intended mainlj'^ for cases where the party was restrained of his liberty without the authority of legal process.'' Evidence. It is held that the prisoner may prove the writings or document on which his arrest is founded, and what they contain, by the best evidence at hand, or which he can procure with reasonable diligence, without regard to the ordinary rules of evidence.^ But the prisoner him- self is not a competent witness to support the application for his discharge,^ and the Code has not changed the rule in this respect.^ Sow far the decision on habeas corpus is conclusive on the parties. Such adjudication is conclusive upon the same parties in all future controversies relating to the same subject matter, and upon the same state of facts.'" But where circum- stances have so far changed as to affect the application of » 2 R. S., 569, § 48. , • 5 Hill, 168. " 1 Hill, 337 ; 25 Wend., 483, 570. » Hurd on Hab. Cor., 304 ; 1 Sandf., 702. » 3 HUl, 658, note. « 5 Hill, 17. ♦ 8 How., 488, 483; see 1 Barb., 340, 'Code, §471; 1 Park Cr. R., 169; B also 193 ; 1 Park Cr. R, 187. N. Y., 383. » Code, § 48, " 25 Wend., 64 ; 1 Park Cr. R., 129. HABEAS CORPUS AND CERTIORARI. 221 the principal of the decision to the particular case, the former proceedings would not be a bar to future action in respect thereto. Thus, when a father obtained a luibeas corpus for his infant child, detained by its mother, and the court had on several occasions refused to interfere with the custody of the mother on account of the tender ago of the clrtkl, j^et about eighteen months afterwards the court held that the former proceedings were not a bar to the proceedings then being had, by reason of the greater age of the child at that time. That the circumstances had so changed by reason of the greater age of the child as to render it proper that the father's rights should be enforced,' The question whether a proceeding by luibeas corpus is barred by a previous proceeding, is to be determined by the identity or non-identity of the questions to be settled by such several adjudications.^ CoJicealing the prisoner with intent to dude the service of the writ^ penalty therefor. The statute further provides that any one having in his custody or under his power, any person, who, by the provisions of the statute, would be entitled to a writ of habeas corpus or certiorari, to inquire into the cause of his detention, who shall, with intent to elude the service of such writ, or to avoid the effect thereof, transfer any such prisoner to the custody, or place him under the power or control, of another, or conceal him, or change the place of his confinement, shall be deemed guilty of a misdemeanor. So, likewise, doing the same in respect to one for whose relief a writ of habeas corpus has issued is made a misde- meanor; or, any one aiding or assisting another in doing the same, is guilty of a misdemeanor, and, on conviction thereof, is to be punished by fine or imprisonment, or both, in the discretion of the court ; the fine not to exceed one thousand dollars, and the imprisonment not to ex- ceed six months.^ So, also, any officer, or other person, refusing to deliver a coi)y of any order, warrant, process or other authority by which he detains any person, to any one demanding Buch copy, and tendering the fees therefor, forfeits two hundred and fifty dollars to the person so detained.* • 3 Hill, 400. * 2 R. S., 571 ; §§ 61, 62, 63 and G4. » See 3 Park Cr. R., 631. * Idem, § 72. 222 ADMINISTRATION OF CIVIL JUSTICE. Proceedings in respect to infants. In cases affecting the custody of infants, it is held that the writ of habeas cotpus is issued at common law and not under the statute, except in certain cases hereinafter no- ticed.^ In such cases the court acts in virtue of its equity powers; and a justice of the court, in virtue of his powers as chancellor.^ The authority of the court in such cases is that which is inherent in a court of equity and is derived from the common law, but to be exercised in conformity to the provisions of the statute to the extent they are applicable.^ As a general rule, the father is entitled to the custody of his infant children; but he holds this right subject to the supervision of equity,* which will award the custody of the infant, in accordance with what the interest and welfare of the infant demand. As between the father and mother, where they are living separate, if the infant be of tender years and the mother be a suitable person to have the custody of it, it will be awarded to the mother.^ So when the conduct of the father is brutal, or where his principles and habits are immoral, he may forfeit his right to the custody of his child.^ The wish of the child will also be consulted when of sufhcient age to exercise a liroper choice.'' But where the child is too young to be capable of determining for itself, the court will determine for it, and in doing so, will have respect to the future wel- fare of the child.^ Where the child is old enough to understand its own interest, and to have a will in respect thereto, the court will see that it is left free to exercise its own choice.^ The course and practice of the court in these cases is to deliver the party from illegal restraint; and, if competent to form and declare an election, then to allow the infant to go where or with whom it pleases ; but if, in the opinion of the court, the infant be too young to » 1 Duer, 109, '725; 22 Barb., 179; 14 = 18 Wend., 637; 19 Id., 16; 24 Barb., N. Y., 575; 8 How., 288. 521. * 1 Duer, 709; 8 How., 288. ' 1 Sandf., 672 ; 8 Johns., 329; 8 How., ' 14 N. Y., 575; 8 Paige, 47; 2 R. S., 288. 573, § 73. » 6 Barb., 366; 22 Id., 178; 14 N. Y., « 3 Hill, 400 ; 18 Wend., 637 ; 24 Barb., 575. 521. » 1 Sandf., 672 ; 8 Johns., 329 : 8 How. » 25 Wend., 64. 288; 13 Johns., 418; 3 Burr., 1436. HABEAS CORPUS AND CEETIOKAEI. 223 form a judgment, then the court is to exercise its own judgment in that respect.^ It is not the object of this writ to try the right of parents or guardians to the custody of infants, but to deliver them from unjust imprisonment and illegal restraint; when, therefore, the infant has been brought before the court, if of proper age, it has been consulted in relation to its wishes.^ Statutory provisions in reject thereto. It is provided by statute that when the husband and wife shall live in a state of separation, without being divorced, and shall have any minor child of the marriage, the wife, being an inhabitant of this state, may apply to the supreme court for a habeas corpus to have such minor child brought before such court; and that on the return of such writ, the court, on due consideration, may award the charge and custody of the child to the mother, for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require. Which order may be annulled, varied or modi- fied by the said court at any time thereafter.^ The application for the writ, in these cases, is to the supreme court,* and is addressed to its discretion. It will, therefore, be necessary for the applicant to disclose fully all the facts in the case, that the court may see the I)ropriety of granting the writ. In determining the ques- tion of the custody of the infant, the court, as its legal guardian and protector, has reference to its interest and welfare, and will make such determination in the premises as its interest and welfare seem to demand.^ The ability and fitness of the parent to provide for the child will be examined into, in determining such question.^ In these cases, the statute authorizes the court to inter- fere only on the application of the wife. This is upon the hypothesis that the husband and father is entitled to the custody of his children. But the father has not an abso- lute and inalienable right to such custody. He may be disqualified from exercising it, or he may, by misconduct, " 4 Johns. Cli. R., 80; see 1 Str., 579; * 24 Barb.. 521. 2 Ld. Raym., 1.333 ; 3 Burr., 143G ; ' Iliird on llab. Cor., 504, citing 5 Binn., 1 Str., 444; 3 P. Wms., 151 ; llurd 520; 3 Burr., 143G. on Hab. Cor., 474. • 2 How., CI ; 18 Wend., 037 ; 8 Paige, » 8 Johns., 328. 48. • 2 R. S., 148, §§ 1, 2, 3. 224 ADMmiSTRATION OF C5IVIL JUSTICE. &c., forfeit Lis right. He is subject to control hy a court of equity, which has a supreme supervision in these mat- ters.^ Where the proceeding is a contest between parents in relation to the future charge and custody of their children, and not for the purpose of delivering the infant from any improper restraint, it is not necessary, although it is not improper, for the court to consult the children in relation to their situation and wishes for the future, ^t^or will the court interfere, as a matter of course, but only upon suflBcient grounds.^ In deciding upon the question of the infant's custody, the courts are governed by what appears to be for the interest of the infant, and not the superior rights or claims thereto of the respective parents. To ascertain what is for the interest of the infant, the court will look into all the circumstances of the case. And as one of the circum- stances, when the infant is of suitable age, the court will consult its wishes, not because the infant has a legal right to determine the question by its will, but because its will is one of the circumstances which it is proper for the court to consider in determining its rightful custody.' The statute also provides for a proceeding by luibeas corpus by either a husband or wife under the following circumstances: "Whenever application is made to [the chancellor] a justice of the supreme court, or any [circuit judge] by any husband or wife, representing that the wife or husband has attached him or herself to the society of shakers, and detains a child of the marriage between them, the officer must inquire into the circumstances; and, if satisfied, by due proof of the facts represented, he must allow a writ of habeas corpus to bring such child before him.* It further provides that in case the child is concealed or secreted by or among any society of shakers, the officer may also issue his warrant to the sheriff of the proper county, commanding him, in the daytime, to search the dwelling houses and other buildings of the society, or the dwelling houses and buildings of any of the members thereof, or of any other buildings specified therein, for such child, and to bring him before such officer.^ The » 25 Wend., 64; 6 Rich., 344; 13 Johns., * 2 R. S., 149, § 4; 2 N. Y. S. at L, 418; 1 P. A. Browii, 143 165. • 18 Wend., 637, per BnoN30N, J. • Idem, § 5. • Hurd on Hab. Cor., 527. HABEAS CORPUS AND CERTIORARI. 225 child being produced before the oflBcer, its custody may be awarded to that parent which has not joined the shakers, for such time, under such regulations, and with such pro- visions and directions, as shall be deemed proper.^ It would not seem, from the language of the statute, that the oflBcer is bound to deliver the infant in such case to the custody of that parent w^hich had not united with the shakers ; but was left to exercise his discretion in view of all the circumstances. Thus, the oflBcer might free the infant from all restraint, and permit it to exercise its own choice as to the parent with whom it would remain.^ Proceedings in this class of cases are properly conducted according to the provisions of the forty-eighth section of the Juibeas corpus act.^ The oflBcer before whom the infant is brought will hear all the proofs and allegations of the parties for the purpose of determining the question of the lawfulness of the detention. The infant being detained by parental authority, and not being entitled to be free therefrom, if it is properly exercised, the court is at liberty to give any latitude to the investigation necessary to deter- mine what the welfare of the infant demands. When the tcrit should be certiorari. The statute provides that whenever an ajjplicatiou shall be made for a writ of habeas corpus, according to the pro- visions of that act, to anj^ oflBcer or court, if it appear to such court or oflBcer, upon the facts set forth in the petition, that the cause, matter or offense for which the person is confined or detained is not bailable, according to the provisions of the law, instead of awarding a writ of habeas corpus, a writ of certiorari may be granted, directed to the oflBcer or person in whose custody or under whose control such jjrisoner is alleged to be, in like manner as if such writ of certiorari had been applied for by the prisoner.* The proceedings upon the return of such writ, are the same as upon the return of writs of habeas corpus, and the proofs of the parties in support of, and against the re- turn made, are the same f and it appearing that the person • Idem, § 6. « 2 II. S., 5G9, § 50 : 1 Barb., 349; I 'See 1 Sandf., G75. Hill, 391. • 2 R. S., 5G9, § 48 ; 2 N. Y. S. at L., ' Idem, § 57. 690; See 18 Wend., 640; 3 Ilill, 647. II.-29 226 ADJUTNISTEATIOK OF CXVIL JUSTICE. detained is illegally imprisoned, confined or restrained of his liberty, a writ of discharge is granted, commanding those having him in custody to discharge him forthwith ; it appearing that he is legally detained, and that he is not entitled to bail, all further proceedings thereon cease.^ But if it appear that the i^erson detained is entitled to bail, the court or officer hearing the cause shall, by order, certified by the clerk of the court, or by the ofiicer grant- ing the same, direct the sum in which he shall be admitted to bail, and the court at which he shall be required to appear ; and on such order being complied with, by giving the required bail, he shall be discharged.^ The statute further provides that upon the production of such order to any judge of the county courts of any county, he shall be authorized to take the recognizance of lii« person so detained, and of two sufiicient sureties in the sum so directed, with a condition for the appearance of such j)erson at the court designated in such order. But the judge must first be satisfied, by the oath of the per- sons oftering themselves as sureties, that they are house- holder in the county, and are severally worth double the sum in which they shall be required to be bound, over and above all demands against them.^ And the recognizance thus taken must be filed by the judge with the clerk of the court before which the prisoner is bound to appear ; and the judge must also certify, on such order, the compliance therewith ; which order, thus certified, being produced, will entitle the prisoner to his discharge.'* This writ of discharge, or order for the same, may be enforced by the court or officer issuing the writ or making the order, by attachment, in the same manner as is provided for a neglect tf) make a return to a writ of liabeas corjnis, and with the like eftect in all respects ; and the person guilty of such disobedience forfeits to the aggrieved party, one thousand two hundred and fifty dol- lars, in addition to any special damages such party may have sustained/ The person thus discharged is not liable to be re-arrested, &c., for the same cause ;" and any person, either solely or as a member of any court, or in the execution of any order, ' 2 R. S., 569, § 52. * Idem, § 56. ' Idem, §§ 54, 70. * Idem, i? 57. ndem, § 55. Mdem, | 59. HABEAS CORPUS AKD CEETIOKAEI. 227 judgment or process, knowingly recommitting such person for the same cause, or aiding in the same, is guilty of a misdemeanor, and forfeits to the party aggrieved, one thousand two hundred and fifty dollai's.^ The statute, however, provides that it shall not be deemed the same cause, when : 1. The party shall have been dis- charged from a commitment on a criminal charge, and afterwards be committed for the same offense, by the legal order or process of the court, wherein he shall be bound by recognizance to appear, or in which he shall be indicted or convicted of the same offense ; or, 2. Where, after a discharge for defect of jiroof, or for any material defect in the commitment, in a criminal case, the prisoner is arrested again on sufficient proof, and committed thereon; or, 3. Where, in a civil suit, the party has been discharged, from any illegality in the judgment or process hereinbe- fore specified, and is afterwards imprisoned by legal pro- cess for the same cause of action ; or, 4. Where, in any civil suit, he shall have been discharged from commitment on mesne process, and shall afterwards be committed on execution in the same cause, or on mesne process in any other cause, after such first suit shall have been discon- tinued.^ Where, from sickness or infirmity of the person detained, he cannot be brought up on a writ of luibeas corpus, issued for that purpose, ^vdthout danger, and the party in whose custody such person may be, states such facts in his return, and verifies the same by his oath, the court, being satisfied of the truth of such return, will proceed to hear such cause as upon certiorari.^ The general provisions of the statute applicable to the writ of habeas corpus, are likewise api)licable to the writ of certiorari. The ax^plication for the writs are the same ; they must specify which are applied for.'' They are neither to be disobeyed for a defect in form.^ Either may be issued without petition in certain cases.*^ Same character of return upon each.^ Same i)eualty for disobedience of the command of the writs.** Same restriction of inquiry into the legality and justice of the i)rocess, judgment, &c.'* The >2 R. S., 5G9, §G0. • Idem, § 31. ' Idem, § 59, subs. 1, 2, 3, 4. ' Idem, g '^'2,. ' Idem, 5G9, § 49. " Idem, § 34-37. ♦ Idem, 564, § 25, sub. 6. " Idem, § 42. * Idem, § 29. 228 ADMINISTRATION OF CIVrL JUSTICE. proceedings before any oflScer may be removed by ceriio' rari into the supreme court, to be there examined and corrected. But such writ must be allowed by a justice of the supreme court after a fiual adjudication has been had by such officer, upon the claim of the party to be discharged or bailed.^ This allowance of certiorari may now be made by a judge of the court of appeals, or by a county judge, or an officer elected to perform the duties of a county judge.^ This review is confined to matters of law, and if there has been no error in law, the proceeding cannot be corrected by this method of review.^ The certiorari is brought to a hearing by either party upon the usual notice of argument, and has the preference on the morning of any day during the first week of the term.^ Appeal to the court of appeals. The decision of the supreme court in these matters, is now reviewed by appeal to the court of appeals.^ A prisoner whose discharge is refused upon the writ of luibeas corpus, may i)rosecute his appeal to the court of appeals.^ This appeal is taken after the supreme court has made a final determination upon the writ. Where the commitment is upon some criminal accusation, or the prisoner is detained in a civil suit, in the former case, the attorney-general, in the latter, the party aggrieved may appeal.^ The court of appeals has power to make all necessary orders, and to issue all such writs as are necessary for the discharge or re-commitment of the prisoner, according to the judgment given by it.' The statute provides, that except where it may be neces- sary to carry into full effect the provisions of the habeas corpus act, the provisions of the common law are abrogated; and that the authority of the courts and officers to award such writ, or to proceed thereon, by the common law, shall be exercised in conformity to the luibe 2 R. S., 541, § 1. * 21 N. Y., 148. « Idem, § 2. "2 R. S., 541, § 1 ; 2 N. Y. S. at L., 560. » 24 Wend., 258; 2 Hill, 271, and note; " Laws 18G0, ch. 90 ; Laws 1862, ch. 4 N. Y., 157. 172 ; 4 N. Y. S. at L., 515. 238 • ADMrsnSTRATION OF CIVIL JUSTICE. ter, the same as if she were sole, is fully conferred. Having such general powers under the statute, to use and control her own separate property, there seems to be no good reason why she may not execute a valid submission to arbitration of any controversy which may arise in respect to such property. What effect such statutes may have upon the above exceptions is worthy of consideration. A railroad com]Dany authorized to acquire land for the construction of its road by purchase, may submit to arbi- tration the price to be paid for such land ; and where its oflScers are intrusted with the power of making purchases, and are in the habit of agreeing upon the price by sub- mission to arbitrators, and the awards in such cases are paid by the financial agent of the company, under a gene- ral resolution to pay the amount awarded, the oflScers have power to bind the company by such submission, as to the price.^ The general rule is, that where there is a capacity to contract, and a liability to pay, there is, generally, a power to arbitrate.'^ Thus, a municipal corporation maj^ submit to arbitration, and may do so by resolution.^ So, a guar- dian may submit on behalf of his ward ;* attorneys on behalf of their clients.^ What matters may he siihmitted. Under the statute any matter which may be the subject of an action at law, or of a suit in equity, may be submitted, except claims to any estate, in fee or for life, to real estate.*^ This exception applies only to claims where the controversy is for the legal title, and not where the equitable title is in dispute.'' Thus, where the legal title is admitted to be in the defend- ant, but the relief sought is a specific ijerformance of an agreement in respect to the lands, or for damages for the non-performance, such controversy may be properly submitted.^ The statute itself permits any claim to an interest in lands less than a freehold estate, as, an interest for a term of years, or for one year or less, to be thus sub- mitted to arbitrators.** The same was law prior to the statute. A fi?eehold or inheritance in the land could not be determined by arbitration.^ ' 8 N. Y., 160. ' 2 Hill, 271 ; 23 Wend., 366. "" 3 CaL, 254; 3 Esp., 101 ; 3 Bam. & ' 2 R. S., 541, § 2. Aid., 47. ^ 14 N. y., 32. ^ 1 Barb., 584 ; 1 HUt., 469 ; -23 Wend., " 2 R. S., 541, § 2, 366. » 1 RoU., 242, L. 10. ♦ 3 Cai., 253. AEBITRATIOIS'. 239 Although a religious corporation may have power, gene- rally, to contract, and may be liable to pay, yet it cannot submit to an arbitrator the question whether it shall sell its real estate, where it has no power to sell the same.^ The principle applicable is, that the party cannot submit to an arbitrator the decision of questions calling for the doing of that which the party has no authority to do. Thus, neither individuals or associations have any autho- rity to confer judicial powers upon a body of men to be created or selected by them, from time to time, to act in respect to their common interest. Such powers must originate with, and be conferred by, the sovereign power of the state or nation. Hence, a lodge of Odd Fellows cannot confer judicial powers in respect to property in which they have a common interest, upon a body of men or oflflcers, to be, from time to time, selected out of the association at large, as a tribunal having general authority to adjudicate upon alleged violations of rules of the asso- ciation, and to decree a forfeiture of the rights of such property by the parties adjudged to have been guilty of such violations, &c^. Upon the same principle, it is not competent for two adverse parties in a religious corpora- tion to submit to arbitration the question, who are the duly elected trustees of such corporation.^ The submission. This is the authority given by the par- ties thereto to the arbitrators, empoAvering them to inquire into, and determine, the particular questions therein sub- mitted. This submission may be by parol, or in writing. K it is a submission under the statute, it must be in writing ; but at common law it might be by parol, except in certain cases, where a written submission was deemed to be necessary, because of the importance of the subject submitted ; as in case of controversies in respect to title to real estate ; or in respect to other matters in which the law deemed a parol contract not valid and binding.* Inasmuch as a submission is an agreement between the parties thereto, by which certain persons as arbitrators are emi)owered to decide questions of riglit ])etween them, it would seem to follow that such matters only could be sub- mitted to such determination by parol as can be disposed of by parol agreement. ' 23 Barb., 327; 4 Abb., 182. « 2 Barb. Ch., 4.30; 2 Hill., 272; Kyd » 16 N. Y., 112. on Awards, 7. * 23 Barb., 327 ; 4 Abb., 182. 240 ADMINISTRATION OF CIVIL JUSTICE. The submission may be general or special ; that is, it may submit, generally, all matters in controversy between the parties, or it may only submit particular matters. But as it is the instrument conferring the authority by which the arbitrators are to act in the premises, it should care- fully define the extent of authority intended to be conferred, and the arbitrators must confine themselves strictly to the authority thus conferred.^ Where the submission is of all demands, it is general and includes all questions relating to real or personal estate.* So, where the submission specifies particular questions, and then adds, " and divers other matters," it is equivalent to a general submission.^ Where the submission is of " all the demands which either party has against the other," ■whatever constitutes a demand is included.* So, where the submission is between several persons " of all matters between them," it imports a submission of all matters that either had against the other, jointly or severally.^ Where the submission is of special matters, they should be so clearly defined that there can be no difficulty in determining how much is submitted ; for if the arbitrators go beyond the authority contained in the submission, their award would be vitiated. Thus, where the submission empowered the arbitrator simply to ascertain the change in cost of the defendants' work by reason of deviation from the building plans, and the arbitrator made allowances, by way of deduction against him, for workmanship and mate- rials alleged to be defective in parts of the building which had not been altered, it was held that he had exceeded his authority and his award of a gross amount was void.*' So, where there is a submission to settle the terms of the dis- solution of a partnership, it does not include a note held by one of the partners against the others, it not being shown that it was given for a debt growing out of the partnership.' Of the construction of a submission. Like other agree- ments, it is to be construed according to the manifest intention of the parties, and, if possible, it should be so construed as to accomplish the end sought by the parties. Thus, where a matter is submitted to arbitration, it is » 6 Johns., U; 4 N. Y., 157; 7 Hill, * 12 Johns., 311; 23 Barb., 187. 329. ' 19 Wend., 285. • 5 Wend., 268 ; 15 Johns., 197. * 1 Barb.. 325. »2Cai., 320. M Wend., 511. AEBITKATI02f. 241 implied that the parties agree to be bound by the award, although the submission contain no express agreement to that eSect.^ So a submission of a difference respecting one-eighth part of a lottery ticket, and the prize drawn thereon, embraces the question of payment as well as that of sale and liability to pay ; and an award is conclusive on the parties as to the legality of the lottery.^ So a submis- sion to hear evidence in relation to a lease, to the end that all matters in controversy might be concluded, shows an intention to terminate the lease.^ Bonds of submission are to be liberally construed to authorize an award made.* An agreement to submit a cause pending in court to an arbitration, operates as a discontinuance of the cause, even before the arbitrators have taken upon themselves the burden of the submission.^ But a valid submission may be made without that effect where it appears from the agreement itself, that such was the intention of the parties. A general agreement to submit to arbitration operates as a discontinuance merely, from the implied understanding that the suit is to be no farther prosecuted.^ Of the revocation of a submission. As an agreement to submit matters to arbitrators is a mere authority to them to act in the premises, such submission is revocable by either party. This formerly might be done at any time before the arbitrators had executed, and made ready to be delivered, their award." This right has been somewhat modified by the statute. It provides that neither party can revoke the submission after the cause has been finally submitted to the arbitrators for a decision, upon a hearing of the parties.^ This provision of the statute applies to all cases of submission to arbitration, whether the submission authorizes a judgment on the award or not.^ But it does not apply where the submission is by parol.^" Where the submission is under seal, a parol revocation is not sufticient." '^ov can a matter be withdrawn by parol, from a submission under seal.'^ The power to revoke must be the sanje that made the submission ; thus, where two parties have jointly submitted the question on their part, ' 2 Barb. Ch., 430. ' IG Johns., 205. » 12 Wend., 377. • 2 R. S., 544, § 23 ; 20 Barb., 262 ; 11 ' 20 Barb., 481. Paige, 529. * 2 Cai., 320. » 5 Paige, 575. '2 Wend., 505: 12 Id., 503; 15 Id., " 4 Denio, 348. 293; 2 Hill, 387 ; U How., 355. " 8 Johns., 125. • 15 Wend., 103 ; 20 Barb., 2G8. " 1 Hill, 44. IL— 31 242 ADMnriSTEATION OF CIVIL JUSTICE. one of such parties alone has not power to revoke such submission.^ The particular form of the revocation is immaterial, so that the intention is clearly expressed, and must have been understood by the other party and the arbitrators.^ The statute has further provided, that whenever any submission to arbitration shall be revoked by a party thereto, before the publication of an award, the party so revoking, shall be liable to an action by the adverse party, to recover all costs, expenses and damages which he may have incurred in preparing for such arbitration.^ And if the submission, so revoked, was contained in the condition of any bond, the obligee in such bond is entitled to prose- cute the same, in the same manner as other bonds with conditions other than for the payment of money, and to assign such revocation as a breach thereof, recovering for such breach, as damages, his costs and expenses incurred, and. the damages sustained by him in preparing for such arbitration.* l^o other sum to be recovered for any such revocation, except as above.^ The arbitrators and umpire. The powers and authority of a person acting as an arbitrator, and the powers and authority of one acting as umpire, are widely different. Where an umpire has been appointed, and in consequence of a disagreement of the arbitrators, has entered upon the performance of his duties, the authority to make a final decision on all the matters embraced in the submission, is vested exclusively in him, and the original powers of the arbitrators cease to exist. Such umpire is not bound to meet or consult with them at all, and if he do so, their action or advice does not affect the award ; and such arbitrators joining in the award, act as mere strangers, and their action is superfluous and unmeaning.^ It is otherwise where the two arbitrators, being unable to agree, are, by the terms of the submission, authorized to call to their assistance a third person to act with them. In such case, the authority to make the award is vested in ' 12 Wend., 578. ' » 2 R. S., 544, § 25. ' 1 Cow., 335. = 4 Duer, 318 ; 3 Burr., 1474 ; 4 Taunt., ' 2 R. S., 544, § 23. 252 ; 9 Barn. & Cress., 407 ; 2 * Idem, § 24; 30 Barb., 228; 7 Cow., Johns. Ch. R., 339; 1 HiU, 489; I 622. Barb., 333. AEBITKATIOX. 243 them jointly, and the award must be shown to be the result of their joint deliberations. Notice of the time and place of every meeting for consultation thereon, must be given to each ; and although a refusal to attend by one, might not vitiate the award made by two of them, yet the third must have been notified ;^ and where the award is made by all who have authority to make it, its execution being in its nature a judicial act, the better opinion seems to be, that it must be executed by all, at the same time and place, or at least, in the presence of each other.^ Where the submission provides for the appointment of an umpire, in case the arbitrators shall not make their award in season, or in case of their disagreement, the umpire may be appointed at any time within which he is limited to act ; and it will not be necessary to show any disagreement on the part of the arbitrators before the appointing of such umpire.^ The appointment of the arbitrators, and the authority to appoint an umpire, is contained in the submission. The parties to the submission select such persons as they see proper, as they alone are the judges in that matter, as to the competency and fitness of the persons selected. Any defect of character or fitness in the arbitrators selected, if known to the parties at the time of the sub- mission, or any interest they may have in the subject matter of the controversy, if likewise known, will not be regarded ; although, if such objections to the arbitrators were not known at the time, or if thej arose subsequently, relief might be granted.* The authority of the arbitrators to act under a submis- sion, ceases after they have made their award. Such is the case, even, where thej' have made a void award ; for, having expressed their opinion in the premises, they are no longer impartial between the parties.* So also their authority ceases when, being unable to agree, they have appointed an umpire^ in accordance with their authority in the submission.** Where the authority to appoint an umpire is contained iu a submission under seal, the appointment of the umpire '4 Duer, 325; 3 Ad. & El., 245; 5 »2 Johns., 57 ; 1 Hill, 489; 1 Barb., Gran. & Man., 374; 3 Barb., 275; 325. 7 Cow., 290; 2 Wend., 494. * 1 Barb., 336. * 4 Duer, 325 ; 13 Mees. & Wels., 465 ; '1 Barb., 325 ; 4 N. T., 567. 8 East, 319; 2 Id., 244; 3 Term, • 4 Duer, 318. 38. 244 adjViinistration op civil justice. cannot be made by parol. But where the submission is by parol, the appointment of the umpire may also be by paroO The testimony of the arhitrators cannot be received lor the purpose of contradicting or impeaching their award,^ except in cases -where their powers have been terminated by the appointment of an umpire.^ But they may be examined, where fraud is not alleged, for the purpose of showing that matters were taken into consideration, and embraced in their award, which were not included in the submission ; or that particular matters were not taken into consideration.* Proceedings on the submission, notice, &c. The statute provides that the arbitrators selected shall appoint a time and place for the hearing, and shall ad- journ the same from time to time as shall be necessary ; and that on the application of either party, and for good cause, they may postpone such hearing to a time not extending beyond the day fixed in such submission for rendering their award.^ An award made without notice to the parties of the hearing would be void.^ Arhitrators to he sworn. Before proceeding to hear any testimony, the arbitrators must be sworn, faithfully and fairly to hear and examine the matters in controversy, and to make a just award, according to the best of their understanding; and such oath may be administered by any judge of any court of record, or commissioner of deeds, or by any justice of the peace.' The above provi- sion has reference to arbitrations under the statute. At common law the award would not be void because the arbitrators were not sworn. Nor would such an award be void, even though the parties intended to make it effectual under the statute, so long as it was good as a common law award.^ When the parties permit the arbi- trators to proceed without being sworn, they cannot object after it is too late to obviate the objection.^ The » 5 Weud., 516; 23 Id., 628. * 3 Barb., 275; 23 Wend., 628; 6 Cow., =■12 Wend., 212; 3 Paige, 124; 1 103; 8 Pet., 178. Barb., 326; 20 Id., 482. '' 2 R. S., 541, §§ 4 and 5; L. 1843, 246. » 1 Barb., 326. * 1 Denio, 440 ; 24 Wend., 258. • 20 Barb., 410. ' 1 Barb. Oh., 173: 1 Denio, 440; 4 N. ' 2 R. S., 541, § 3; 2 N. Y. S. at L., Y., 157; 24 Wend., 258. 560, § 3. ARBITRATION^. 245 provision of the statute requiring' the arbitrators to be sworn, does not ai)ply when the submission is by parol.^ The examination of witnesses^ <&c. Witnesses may be compelled to appear before such arbitrators, by subpoenas, issued by auy justice of the peace, in the same manner, and with the like effect, and subject to the same penalties for disobedience, as in cases of trials before justices of the peace.^ These witnesses may be sworn by the arbitrators, or any of them, when the proceeding is under the statute ;^ otherwise, where it is not, as where the submission is by parol.^ And where an arbitrator, who is not authorized, administers the oath, the objection is not waived by not being taken at the hearing. Arbitrators may recall witnesses in the absence of the parties, to explain testimony about which the arbi- trators differ.* The hearing of the arbitrators. Before proceeding with the hearing of the cause, the parties must be duly notified, that they may have an opportunity of being heard in relation to the matters submitted ; and an award made without a reasonable notice of the time and place for the hearing to the losing party, and without his being present, is void.^ The arbi- trators are authorized to determine what is a reasonable notice to be thus given, and, acting in good faith, their determination will not be reviewed.^ And, after an award, such notice will be presumed, and the party impeaching must prove the contrary.^ All the arbitrators must meet together, and hear the proofs and allegations of the parties ; but an award by a majority of them is valid, unless the concurrence of all be expressly required in the submission.'^ All the arbitrators should be notified of the time and place of hearing, and they must meet together and hear the i)roofs and allega- tions ; and where it does not appear on the face of the award that they did thus meet, &c., such fact may be proved, aliunde.^ Or when they have all met and heard • 4 Denio, 347. » 23 Wend., 628. * 2 R. S., 541, § 6. "1 HilL 489; 1 Barb., 325. •L. 1843, 246; 2 N. Y. S. at L, 560, ' 2 R. S., 542, § 9 ; 4 N. Y., 56T ; 1 561; 5 How., 315. Hilt., 471. ♦ 1 Johns. Ch., 101. • 7 Cow., 290; 3 Sandf., 405. 246 ADMINISTRATION OF CIVIL JUSTICE. the case, and then adjourned for making their decision, and one is absent at the time appointed for making their decision, the other two may proceed and make the award.^ The arbitrators must act in good faith, and not be guilty of any irregularity in their proceedings. In general, they are the judges of what is jjroper testimony to be received by them on the hearing, and they are not confined to the strict rules of evidence applicable to the trials of issues before the court. They may hear the statement of the parties themselves.^ They must not, however, refuse to hear testimony which is pertinent and material, and which is offered by either of the parties.^ The, award. The award, to be binding so as to be enforced according to the provisions of the statute, must be in writing, sub- scribed by the arbitrators making the same, and attested by a subscribing witness.^ In the absence of such a requisition in the submission, it is not requisite that all the arbitrators should concur in the decision of every question arising as to the admission of evidence. If all hear the cause and join in the award, it will be sufficient.^ Where the three arbitrators could not agree as to the sum to be awarded, and they added their different esti- mates together and divided the sum by three, and then awarded the result, it was held that such irregularity was cured by their assent to the result, which they awarded as manifested in signing their award.^ The award must be made in piu'suance of the authority contained in the submission, and whenever that authority is terminated, the further power to make an award is at an end. Thus, where the arbitrators had declined acting, or had resigned before making their award, and their resig- nation had been accepted, any award made by them afterwards would be void.' So, where they had made and delivered an award, declaring the amount to be due, and subsequently met again and made a new award, the second award was void : it was held, in an action on the second award, that the arbitrators had no power to make it f they ' 3 Sandf., 405. ^ 3 Paige, 124. " 21 Barb., 382. ^ Hoff., 110 ; 4 Johns., 487. » 2 R. S., 542, § 10 ; 17 Johus., 406. ^ 2 Wend., 602. « 2 R. S., 542, § 8. U N. Y., 568. AEBITKATIOF. 247 had exhausted all their authority and power in making the first award. An award under the statute. The provisions of the Eevised Statutes in respect to arbitrations have not abrogated the common law, but have left the parties to proceed as before the statute, except where the award is to be enforced, vacated or corrected, in the manner pointed out by stat- ute.^ And if the parties do not begin under the statute, their subsequent proceedings cannot be aided or injured thereby.'^ Under the statute, the parties cannot authorize an award on matters arising after the submission.^ Whe7i the aioard must he made. The submission determines the time within which the award must be made; and it must be made within the time therein limited,* unless the time be enlarged by a subsequent agreement f and where no time is fixed by the submission, it may be fixed by a subsequent agreement.^ It may also be fixed by implication, as where the sub- mission did not fix the time for making the award, but provided that the party who should be found indebted should pay by a certain day;^ and no time being fixed, it must be made within a reasonable time, if requested by a party.^ The making of an award being a judicial act in its nature, it would be void if made and published on Sun- day ;^ although, if carried into effect by subsequent acts, such acts would be deemed valid. Where the award bore date on the day after the time within which it was to be made, according to the submis- sion, and was not delivered until the day of its date, and there was no other evidence as to when it was actually made, it was presumed that the arbitrators performed their duty, and had the award ready within the time fixed. The mere date at the end of the paper was not deemed enough to establish the contrary.^" The award need not be delivered within the time limited for the making thereof, if it is made and ready to be • 15 Wend., 99; 2 Hill., 271, " 22 Wend., 125. » 4 Denio, 347. ' 5 How.. 315. * Idem, 249. « 22 Wend., 126, ♦ 2 R. S., 541, § 3. "8 Cow., 27. • 2 Paige, 575 ; 2 Edw., 452 ; 22 Wend., " 23 Barb., 187. 125 ; 5 How., 315. 248 ADMTNISTEATION OF CIVIL JUSTICE. delivered on payment of the fees of the arbitrators, it is ready to be delivered within the legal meaning of the sub- mission.^ But the award must be in writing, and ready within the time limited to be delivered to the parties. A readiness to deliver to one party is not sufiicient.* It should be prepared in two separate i^arts, that each party might have the award within the time limited.^ This may be excused or waived by the parties, or either of them, by telling the arbitrators they need make no counterpart, for he would not receive it, &c.^ By ivhom made. The award, if not under the statute, must be made by the concurrence of all the arbitrators, unless it is otherwise provided in the submission. This is upon the principle, that where there is a delegation of power to several individuals for private purposes, the con- currence of all is necessary to the proper exercise of such power.^ But where the submission is under the statute, a majority of the arbitrators have authority to make the award, unless the submission require otherwise.^ Where the submission provided that the decision of the majority of the arbitrators should be binding, and the bond executed under such submission provided that the award should be subscribed by the arbitrators, it was held that the submission and bond should be taken together, and that the award signed by two of the three arbitrators was valid.'^ If the submission provides, that in case the arbitrators cannot agree, they shall choose a third person to arbitrate in conjunction with them, and, upon not agreeing, such third person was chosen, he becomes one of the arbitrators, and must act with them ; but in such case, the award, signed by two of the arbitrators, was held suflScient.^ The mode of appointing the arbitrators shows that the concur- rence of two was to be deemed sufficient. Where the submission provides, that in case the arbitra- tors cannot agree, they are to choose an umpire who is to decide, and such umpire is chosen, the authority of the arbitrators is at an end, and the award is to be made by ' 3 Barb., 57. Johns., 39 ; 4 Denio, 347 ; see 23 « 1 Hill, 321 ; 6 Johns., 14. Barb., 304. » 10 Johns., 144; 15 Id., 197. ' 2 R. S., 542, § 7 ; 4 N. Y., 567 ; 3 * See 1 Hill, 322. Sandf., 405. " I Bos. & P., 23G; 3 Term, 592; 6 M Hilt, 469. • 13 Johns., 187. AEBITEATION. 249 the umpire.^ The award, however, will neither be aided or injured by the fact that the arbitrators advised with him, or even signed the award with him.^ The authority of the arbitrators in making their aioard. As their whole authority to act in the premises is derived from the submission, the award must be limited, in its findings and requisitions, to the matters submitted. Thus, where the submission provided that A. should deliver his receipt in full, and G. his note for five hundred dollars, to the arbitrators, and that the arbitrators should ascertain the damages of A., and, by indorsement, if necessary, reduce the note accordinglj'-, and then deliver the note and receipt to the respective parties ; and A. appeared and gave evidence before the arbitrators, but G. did not appear, the arbitrators awarded that G. should pay to A. five hun- dred dollars damages, to be paid in money. It was held that such an award was unauthorized ; that the parties having neglected to deliver the note and receipt according to the submission, it was a mutual abandonment of the agreement, and the arbitrators had acted without autho- rity.^ So also, where there was a submission as to the change in the cost of a building constructed by the jjlain- tiff under a contract, by reason of a deviation from the original i)lan, it was held, that an allowance by the arbi- trators for defects in other parts of the building than those comprised in the deviations, was in excess of their powers, and that such an award would be void.^ But where the matter awarded is such as necessarily pertained to the determination contemplated by the sub- mission, as, where the submission was of sundry contro- versies touching division fences, and sundry roads and paths ; and the award directed the conveyance by one party, of a piece of salt meadow, known as " A.'s road," it was held that the award was authorized, it being appa- rent that the meadow must be one of the roads referred to in the submission.^ It is also held, that the poAver to award costs is necessarily incident to the general authority of the arbitrators to determine the matters in controversy.^ But the successful party will not be entitled to costs, unless UDiier, 318. ♦ 2 Cai., 320. » 9 Barb., 246. • 1 Hill, 319. »7 Hill, 329; 1 Barb., 325. II.— 32 250 ADMUriSTEATIOl?' OF CIVIIi JUSTICE. either the agreement to submit to arbitration expressly impose them, or the arbitrators, under implied authority from the terms of the submission, expressly award them ;^ although, if the submission be under the statute, they will not be authorized to award against a party, the costs and expenses of the arbitration, unless the submission, in express terms, authorizes it.^ If the subject of the contro- versy is an action then pending in court, the arbitrators may award as to the costs of such action, without any express authority for that purpose.^ An award requiring a third party or stranger to do an act which it does not appear the party can control, as, that tenants should be caused to give up possession of land, is, to that extent, void.^ So also an award that the sum claimed is due to the claimant from a third party, who is a stranger to the submission, is not valid.* It must he complete. The awurd must embrace all matters submitted to the arbitrators. Where the submission is made conditional by the ita quod clause, and recite several distinct matters which are specifically submitted, and the arbitrators omit to decide one of the matters, there being no general words in the award which can be construed to embrace a decision on such matter, the whole award will be void.^ The rule is invariable where the submission is special, and the bond of submission contains the ita quod clause, unless the award comprehend all the matters submitted, it will be void f and where the submission is general, though the award may be presumed to cover all that was brought before the arbitrators, yet where it appears on the face of the award, that the arbitrators had notice of a matter and refused to decide it, the award would be void.^ The award will be presumed to be complete, and to cover the whole matter brought before them, unless the contrary appear. Thus, where the submission, dated the first of December, 1842, was, that the arbitrators award : 1. The amount which had been paid on a certain contract, and to indorse it on the contract ; 2. All other matters in contro- ni How., 21; 22 Wend., 125; 4 * 12 N. T., 9. Denio, 249. * 5 N. Y., 485 ; 14 Johns., 96. " 4 Denio, 249. * 5 Cow., 197. » 13 Johns., 264. AEBITKATIOIf. 251 versy ; and the award recited that the arbitrators had heard the proofs and allegations of the parties, and exam- ined the matters in controversy submitted to them ; and as to the first point, they awarded, by indorsement on the contract, that " the whole amount which has been paid actually, on the within contract, up to January 1, 1841, is $530.62 ;" it was held, that it must be intended that there was no evidence before the arbitrators, of any payments on or after the 1st of January, 1841, and that the award embraced all payments up to the date of the submission.^ Where the recitals in the award show that the whole subject embraced in the submission had been considered and acted upon, it will be sufficient.^ The mvard must de certain to a common intent.' It must be so certain that each party can know precisely what he is required to do, and what he has a right to require of the other party.* It is sufficiently certain for the adjustment of a loss, if data are given from which, by calculation, it can be rendered certain.^ So, where the award shows the legal liability, and fixes the amount, it is sufficient, though it does not expressly charge the party with the payment thereof.^ A thing extrinsic, ordered to be done by an award, where it may be certain, is intended to be, until the contrary appear. Thus, where the submission is of partnership mat- ters, and the award requires one party to pay the partner- ship debts, it is sufficiently certain.'^ When there is necessarily an uncertainty as to what would be a comx)liance with its requirements, it would be bad. Thus, an award directed that A. should pay a cer- tain sum, and that if he gave B. good and sufficient security for the payment, possession was to be delivered to him. It was held that the provision for the security was bad, for uncertainty, in not defining the nature and extent of the security to be given ; but A.'s title being admitted, he might recover without tender of security.* So, where it does not definitely require the performance of the act, &c., as, where the award directed that if V. should keep the stove, he should pay S. fifty shillings for ' 5 N. T., 482 ; 19 Wend., 288 ; 2 HOI, ' 3 Johns. Cas., 534. 75 ; 2 Johns. Ch., 276 ; 8 East, 450. * 16 Barb., 576. •8N. Y.. 160. '2 Hill, 75. * 1 Cai., 304 ; 14 Jolms., 96. • 9 Johns., 43. ♦ 2 Cai., 235. 252 ADMINISTRATION OF CIVIL JUSTICE. it, &c.^ So, where there is nothing described to which the act or order can apply, as, that the one party should deliver to the other " his right and claim to the said farm," when no farm was mentioned in the submission or in the previous part of the award.^ But if the award definitely refers to extrinsic circumstances by which it may be made certain, as to its requirements, it will be sufficient.^ It viust be final. Its order must be such that, if obeyed, the matter awarded upon between the parties will be finally settled. Thus, where a suit is submitted to arbi- tration, the arbitrators must not only determine the amount of damages to be paid, with the costs, but they should also direct the suit to be discontinued.* So, where it directs money to be paid as the price or value of certain stock, it should also provide for a transfer of such stock.^ The award must also he mutual. But an award ordering the payment of a sum of money, carries in itself a mutu- ality, as it must be held to be in satisfaction of the matter submitted f and is no objection that one is to perform on his part, before the other is to execute the release, where other matter is awarded to be done by the latter, independ- ent of the release.' And to make an award binding, it is not necessary that all the parties upon one side be bound by the submission, as, where a submission is executed by a partner in the name of his firm, without authority to do so.^ The form of the award. Under the statute, the award is good provided it be executed by a majority of the arbitra- tors, and attested by a subscribing witness, unless the concurrence of all be required in the submission.^ There- fore, where the submission requires the award to be in writing, to be subscribed by the arbitrators, or any two of them, and to be attested by a subscribing witness, an award signed by the three arbitrators, with a witness to the signature of two of them, will be intended to be the award of the two and not of the other.'" And where the award is made by two of the three arbitrators, it is not necessary that the award should show that all met and heard the arbitration ; such fact may be proved alimuW^ ' 2 Cai., 235. « 3 Cai., 253. « 3 Cow., 70. ' Cai., 320. 'See 14 Johns., 96; 2 Hill, 75: 23 M 5 Barb., 524. Barb., 187. ' » 2 R. S., 542, § 7. ♦ 14 Johns., 302. '" 4 Barb., 250; 5 N. T., 482. • 4 Deaio, 195 ; 2 Cow., 649. " 1 Cow., 290; 3 Sandf., 405. AKBITRATION. 253 Nor is it necessary that the award show upon its face that the parties had notice of the hearing.^ The award must be in form according to the require- ments of the submission. Where the submission provides that the award shall be in writing, under the hands and seals of the arbitrators, an award in writing signed by, but not under the seal of the arbitrators is bad.^ But the award need not be sealed unless the submission stipu- lates that it be. The mere fact that the submission is under seal does not make any difference.^ So, where the submission is merely oral, without providing that the award shall be in writing, a verbal award is valid ;* and it has been held that where the submission required the award to be in writing, and to be subscribed by the arbitra- tors, that, the parties could orally authorize the arbitrators to render a parol award.^ The interpretation oftlie aivard. There are certain well settled rules of interpretation to be observed in the con- struction of awards; as, the award is to be liberally construed in order to the upholding thereof;*^ as, that a misrecital may be disregarded ;^ or, a variance, where the intent and meaning is obvious.^ So, likewise, the pre- sumption is against the supposition that the arbitrators have exceeded the powers granted by the submission.^ Where there are irreconcilable contradictions between the several parts of an award, the first part is to prevail over the latter.^" The effect of a void part of an aivard. Where the award is good in part and bad in part, if the parts are dependent upon each other, the award is wholly vitiated. Thus, where the award is void in one particular, and that particu- lar is the only act which the party is required to perform, and constitutes the consideration intended for the act the other party is required to x>erforra, the whole award is void." But where the void part is not necessarily con- nected with the parts which are valid, and does not necessarily affect the justice of the case, the award is void only pro tantoP So a i)ortion of the award deciding mat- ■ 1 Barb., 325. ' 11 Johns., 103. * 11 Johns., 133. "3 Saiidf., 405. * 23 Barb., 187. * 13 Johns., 27; Kyd., 170. * 2 Barb. Ch., 430. " 2 Cow., 638. * 20 Barb., 481. " 22 Wend., 125; 2 Cai., 235. * 14 Johos., 9G. " 2 Cow., 038 ; U Johns., 96, 264 ADMINISTKATION OF CIVIL JUSTICE. ters not submitted, is of no effect, and may be rejected, as where the award found the sum due, and directed that a general release should be executed ; the clause as to the release, not being included in the submission, may be rejected.^ The effect of the award. When the submission is of a particular matter in controversy between the parties, an award thereon can only extend to such matter; and a valid award will be a bar to any action for the original cause thus submitted f and it is not necessary that the award shall have been performed.' If the submission is general, of all demands which either party has against the other, the award made in pursuance of such submission would bar an action for any demand existing at the time of the submission.* JProceedings after the award, under the statute. Confirmation of the award, and judgment thereon. The statute provides that upon such submission being proved by the affidavit of a subscribing witness thereto, and upon the award made in pursuance thereof being proved in like manner, or by the affidavit of the arbitra- tors, within one year after the making of the same, the court designated in such submission shall, by rule, in open court, confirm such award, unless the same be vacated, or modified, or a decision thereon be postponed, as provided by the statute.^ Upon the confirmation or modification of such award, the court proceeds to render judgment in favor of the party to whom any sum of money or damage is therein awarded ; and if the award orders any act to be done by either party, then judgment is entered that such act be done according to such order.^ The costs of the proceed- ings are taxed as in suits ; and if no provision for the fees and expenses of the arbitrators have been made in the award, the court makes an allowance the same as for referees ; but no costs must be taxed for any other services or expenses prior to such application.' ' 15 Barb., 524. ' 2 R. S., 542, §9:6 HilL 304. ' 6 N. T., 44; 1 Hill, 69. • 2 R. S., § 43 ; § 14. ' 12 N. Y., 9. ' Idem, § 14; 21 N. Y., 149 ; 4 Denio, « 12 Johns., 311. 252. AEBITEATION. 255 Proceedings to vacate an award. The statute proTides that any party complaining of such award, may move the court designated in the submission, to vacate the same upon either of the following grounds : 1. That such award was procured by corruption, fraud, or other undue means ; 2. That there was evident partiality or corruption in the arbitrators or either of them ; 3. That the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown ; or in refusing to hear any evidence, pertinent and material to the contro- versy, or any other misbehavior, by which the rights of any party has been prejudiced ; or, 4. That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final and definite award on the subject matter submitted, was not made.^ These provisions of the statute for proceedings to vacate an award, have reference only to an award made in a case where the submission was under the statute,^ although the statute has not changed the law as to the power of the court to set aside an award for partiality or corruption on the part of the arbitrators,^ or in cases where the parties have not had an opportunity of being heard.* The court will not interfere where the arbitrators have committed an error only in respect to the law or fact. The court will not look into the merits of the controversy for the purpose of determining what the award should have been.^ It was the intention of the legislature to give relief in cases of corruption or improper conduct on the part of the arbitrators or parties, or where there was a want of jurisdiction, or where the award was not final.^ The award may also be modified or corrected, on motion of a party to the submission, made to the court designated therein, in the following cases : Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in such award ; or where the arbitrators have awarded upon some matter not submitted to them, not aftecting the merits of the decision upon matters submitted ; or where the award is imperfect in some matter of form, not affecting ' 2 R. S., 542, "8 10; 2 N. Y. S. at L., * 3 Barb., 275. 561 ; 4 N. Y., 568. » 5 Cow., 425 ; 24 Barb., 147 ; 10 ' 9 Johns., 213 ; 7 Hill, 331 ; 3 Sandf., 4. Wend., 589. » 10 Wend., 589 ; 17 Id., 413. • Per Savage, C. J., 10 Wend., 591. 256 ADMIXISTEATION OF CIVTL JUSTICE. the merits of the controversy ; and where, had it been a verdict, such defect could have been amended or disre- garded by the court, according to the i)rovisions of law.^ The application to vacate or modify an award as above, must be made to the proper court, at the next term after the publication of such award, upon the same notice to the adverse party as in other cases of special motions, if there be time for that purpose ; and if there be not time, such court, or any judge thereof, may, upon good cause shown, order a stay of x>roceedings on such award, either abso- lutely or upon such terms as appear just, until the term of the court next after such first term.^ This application is made at special term,^ and may be founded upon the submission and award, and also upon the afiQdavits of the parties or of the arbitrators.* The poiver of the court, on such application. The court may jjroceed, on such application, to vacate such award in any of the specified cases ; and where the time within which the award must be made will permit, the court, in its discretion, may direct a rehearing by the arbitrators. The court may also, in the specified cases, modify and correct the award so as to effect the intent thereof, and to promote justice between the parties.^ After a judgment is entered upon an award, as provided by statute, a record of such judgment is to be made. This record must commence with a memorandum reciting the submission ; then stating the hearing before the arbitra- tors ; next, their award ; then the proceedings of the court thereupon, in modyfying and confirming the same ; and the judgment of the court for the recovery of the debt or damages awarded, and that the parties perform the acts ordered by the award, and for the recovery of the costs allowed.^ This record must be filed and docketed, the same as records of judgments in other cases ; and they are to have the same force and effect in all respects ; be subject to all the provisions of law in relation to judgments in actions, and may, in like manner, be removed and reversed (by writ of error) for error ; and execution against property or persons, issues upon the same as upon other judgments.'' ' 2 R. S., 542, § 11 ; 4 N. T., 568 ; 21 * 4 Denio, 194; see also 3 Paige, 124, Id., 149; 7 Barb., 431; 17 Wend., 12 Wend., 212 , *12. i 2 R. S.. 543, § 13. ' 2 R. S., 542, § 12. "Idem, §15. Supreme Court, Rule 40, of 1858. ' Idem, ij IG. ARBITRATION. 257 It is to be understood that the foregoing is a method of proceeding where the submission was made under the pro- visions of the statute, which thus authorizes a judgment to be summarily entered upon the award. There are, however, a class of cases, not under the statute, where judg- ment may be entered upon the award. Thus, where there is an agreement to refer a matter in suit, then pending, to arbitrators, and that a judgment iu the action shall be entered according to their decision, this Avill justify the entry of such judgment, and it will be binding upon the parties as a judgment by consent.' So where the parties refer a matter, not referable under the statute, to referees, either by stipulation or rule of court, authorizing a judgment to be entered according to the finding of the referee, such judgment may be entered and will be bind- ing.* Appeals^ &c. Formerly the remedy for reviewing a judgment on an award under the statute, was by writ of error,^ But now the remedy of the aggrieved party is by appeal under the Code, the same as in actions.* When the appeal is brought, the appellant should cause to be filed certified copies of the original papers used upon the application in relation to the award, such as the original affidavits, and also of all other affidavits and papers relating to such application, and these papers should form a part of the return.^ Any objections to informalities of the proceedings not affecting the merits should be taken in the court below, or it will be too late to take advantage of them. The party, while in the court below, should submit his objections iu writing to the court, then they can be certified and returned with the other papers.^ An appeal also lies upon an order vacating an award, the same as upon other orders in courts. And certified copies of the order, and of all affidavits and papers used on such application, are to be used on such appeal ; and if such order shall be reversed in the api)ellate court, the proceedings may be remitted to the court from which • 11 Paige, 529; 12 Wend., 212; IG * Code, §§ 8, 323, 333 to 348, 457,471; Barb.', 578. L., 1854, 592; 24 Barb., 149. » 13 Wend., 293; 19 Id., 21, 108. * 2 R. S., 543, § 17. • 2 R. S., 643, § 16. • 6 Hill, 303, 307. II.— 33 258 ADMINISTKATION OF CIVIL JUSTICE. the judg-ment was taken to proceed thereon ; or, the appel- late court may proceed theieon, after due notice to the l>arty c()mphiinin 2 R. S., 552, § 10. * 2 R S., C49, § 50. » 2 R. S., 543, § 3, sub. 1. * Idem, 545, § 3, sub. 3. » 2 R. S., 648, § 46. ' Seo 11 Barb., 191. ♦ 12 How., 444; 11 PaigR, 624. n.— 34 266 ADMINISTEATION OF CIVIL JUSTICE. gai^e. subsequent to the same ; and of every person having any lien or claim by or under such subsequent judgment or decree, icho shall have been served ivith notice of said sale^ as required hj laiv} " Aside from the statute, service upon the heir would seem to be necessary, even more so than upon the personal representati ve. The personal representatives are interested to prevent a deficiency on the sale for which the estate might be liable. They are interested in the equity of redemption Avhere the mortgaged premises consists of a term for years, and also where there is a probability of the personal estate of the mortgagor being insufficient to pay his debts. Those are the only cases in which the personal representatives are interested. And because they are thus interested, to require service of notice upon them for the heirs, would aftbrd no safety or possible advantage to the latter, for the reason that it would be only when there was a probability of the mortgaged premises proving worth- less, or of no value to the heirs, that the personal repre- sentatives would have any interest whatever in the sale. The interest of the heir, however, is diftereut. The title to the premises, except when it consists of a term of years, vests in them, with all the rights and incidents of absolute ownership. The title vests, too, charged with the payment of the very mortgage which is being foreclosed, and which the heirs must pay out of their own property, without resorting to the estate of the mortgagor."^ " In suits in equity for the foreclosure of mortgages, the heirs are indispensable parties -^ and, as a foreclosure under the statute, is equivalent to a foreclosure and sale under a decree of a court of equity, so far as to be an entire bar to the rights of the heirs in the equity of redemption, there can be no substantial reason why the notice should be served upon them in the one case and not in the other."* When the subsequent mortgagee has assigned his mort- gage, and the assignment is on record, notice should be served upon such assignee,^ as well as upon the mortgagor. Notice must, in any event, be served upon the mort- gagor, if he be living, although he is not the owner of the equity of redemption at the time of the foreclosure :^ and * 2 R. S., 546, § 8, as amended bylaws ^ Crarv's Spe. Pro., CD, note. 18i4, 530, (5 4. MO How., 51. * 1 R. S., 749, § 4. 6 20 Barb., 18. » 2 Baib. Ch. Pr., 176 ; 10 Paige, 410. OF THE FORECLOSURE OF MORTGAGES. 267 an omission to serve notice upon him would render the sale void.^ As before stated, a married woman may confer on tbe mortgagee, his heirs, &c., a i>ower to sell, in default of payment, and she may, therefore, be a mortgagor upon whom such notice must be served.^ So, also, if tlie mort- gage is executed by the husband and wife, slie is a mortgagor within the meaning of the statute, and must be served with notice as Avell as her husband,^ whetLer the mortgage be foreclosed in his lifetime or afterwards.' It has already been stated, that in case notice of any sale, by virtue of such mortgage, is. published in the state paper, because of the refusal of publishers in the proper county to publish such notice for the jjrice allowed by law, that a copy of such, notice shall be served upon the person in possession of the mortgaged premises, when such i)re- mises are occupied ; and if not occupied, if the mortgagor or his heirs or personal representatives reside in the county where the mortgaged premises are situated, then iipon such mortgagor, his heir or jjersonal representatives.^ How served. Notice must be served upon the proper parties person- ally, or by leaving the same at their dwelling house, in charge of some person of suitable age ; or by depositing the same in the post-office, properly folded and directed to such parties, at their respective places of residence.^ Since the amendatory act of 1844, the three modes of giving notice prescribed by the act as amended — publication, posting, and personal service or by mail — must all be taken, or the foreclosure will be void.*^ Where the death of the mortgagor is proved, service will be dispensed with, unless it be shoAvn that there are personal representatives.' That is, the absence of service will not, yer se, vitiate the proceedings ; l)ut it may well be questioned whether the heirs of the mortgagor not served, would be barred of their rights tliereby." When the service is by mailing, the notice to the mort- gagor may be deposited in any post-office in the state f Ml Barb., 193; 17 Id., 100; 9 Id., 'OBarb., 27S; 11 Id., 191 : 16 Id., 9; 284; 16 Id., 9. 20 Id., 18; 9 Abb., 60, note. » 3 Johns. Cli., 129; 7 Id., 45. ' 20 liarb., 18. ' 1 1 Barb.. 193 ; Paige, 474. " See ante. * 2 R. S., 049, § 50. "10 Barb., 347. • Idem, 545, § 3, sub. 3. 268 ADMINISTRATION OF CIVIL JUSTICE. and, as the statute requires the notice to be folded and directed, the direction, when the envelope is unsealed, must be upon the notice itself; a direction upon the unsealed envelope will not be sufficient.* Postponement of the sale. The sale of the mortgaged premises may be postponed from time to time, by inserting notice, as soon as practi- cable, in the newspaper in which the original advertise- ment was published, and continuing it till the time to which the sale is postponed.^ And such publication is a sufficient service of a notice of i30stponement.' If the postponement is made at the time and place appointed for the sale, by stating to those present the time and place to which the adjournment is made, the subsequent notice, to be inserted and continued in the newspaper until the time of sale, must conform to the adjournment as thus announced.* And when the day appointed for the sale fell on Sunday, it was held to be competent for the mort- gagee to postpone the sale to a subsequent day.^ And having publicly postponed the sale to a subsequent day, the mortgagee cannot disregard such adjournment and proceed under the original notice.^ The sale. The sale must be at public auction, in the daytime, in the county where the mortgaged premises, or some part of them, are situated ; and if the premises consist of dis- tinct farms, tracts or lots, they must be sold separately ; and no more farms, tracts or lots can be sold than are necessary to satisfy the amount due on such mortgage, at the time of the first publication of notice of sale, with interest, and the costs and expenses allowed by law J The sale should take place at the time and place stated in the notice of sale, unless there has been a legal postponement; and where there has been a public postponement, the mortgagee cannot disregard it and sell under the original notice, and, if he do so, the sale will be irregular.^ When the day first appointed in the notice for sale hap- » 9 Abb., 66, note. s 7 How., 372 ; see 12 "Wend., 57. ' 2 R. S., 546. § 5 ; 7 Johns., 217. « 7 Johns.. 219; 4 Denio, 107. 7 How., 372. ■'2 R. S., 546, § 6. 4 Demo, 104. « 7 Johns., 219 ; 4 Denio, 104. OF THE FORECLOSUEE OF MORTGAGES. 269 pens to be Simday, a postponement from that day will be regular ;^ although selling under a statute foreclosure, not being a judicial proceeding, it will be legal if the sale take place on Sunday.^ The statute providing that if the premises consist of distinct farms, tracts or lots, they shall be sold separately, does not apply in cases where, at the time of giving the mortgage, they constituted but one farm, tract, &c., but, subsequent to the mortgage, were subdivided by the mort- gagor for the more convenient occupation or sale. In such case, equity alone can protect the rights of the sub- sequent purchasers of separate iDarcels, if they have any.' If rights have been acquired subsequent to the mort- gage, by individuals who have become purchasers of portions of the mortgaged premises, thus subsequently divided by the mortgagor into separate and distinct par- cels, and if the rights of both the mortgagee and such subsequent purchasers or grantees can be protected, there can be no doubt that equity might interfere, and compel that portion owned by the mortgagee to be first sold for the satisfaction of such mortgage; and, if it became neces- sary to sell any portions of the remainder, to order their separate sale, in the inverse order of their alienation. But without such an order on the part of the court, the mort- gagee would not be bound to sell in sej^arate parcels. In cases where the premises do not consist of distinct farms, tracts or lots, the whole may be sold together; and the mortgagee may apply the avails to the satisfaction of his mortgage, whether the same be then due, or thereafter to become due.'' AVhere, on foreclosure by advertisement of a mortgage payable by installments, the mortgagee sells only for the amount due, subject to the residue of the mortgaged debt, instead of selling for the whole debt, the land becomes the primary fund for the payment of such residue, and the mortgagor is entitled to any surplus proceeds of the sale.^ If, on such sale, the mortgagee becomes the purchaser, the whole mortgage debt will be extinguished ; but if a third person becomes the purchaser, and the mortgagor is compelled to pay the residue of the mortgage, he is > 7 IIow., 372. * 7 Paige. 211 : 16 Barb., .350; Crary'a » 12 Wond., 57. Spe. Pro., 71. » 8 Barb., 9. » 1 Paige, 248 ; 2 Johns. Ch., 125. 270 ADMINISTRATION OF CIVIL JUSTICE. entitled to an assignment of the mortgage, that be may reimburse liiinself ifrora the land.^ AUbougb the authority to sell, and the exercise of it, is a matter of i)rivate contract between the parties, and not one of jurisdiction, yet the sale must be made at public auction, after and in pursuance of the notice prescribed by tlie statute, to bar the right of redemption, although the mortgage, b^' its expressed terms, authorizes the mort- gagee, on default, &c., to sell the premises at private sale to satisfy the debt.^ This is nnder that rule of equity, that a court of equity will not ijermit a creditor, by mortgage, to obtain a collateral or additional advantage through tlie necessities of the debtor, be3ond the payment of principal, interest and costs; and that equity will let a man loose from his agreement, and even against his agreement admit him to redeem his mortgage.^ And in pursuance of this princi[)le, the statute, admitting the ^•alidity of the power of sale, has attempted to regulate the manner of its exercise, for the protection of the rights of the mortgagor, and others deriving their rights through Iiim. The principle is, if no notice is given to the owner of the equity of redempticm on a foreclosure of a mort- gage by advertisement, the sale is void as to him.'' The statute provides that the mortgagee, his assigns, and his and their legal representatives, may fairly and in good faith purchase the premises so advertised, or any part thereof, at such sale.^ When the mortgagee advanced less than the face of the mortgage, when it was given, and, nnder the power of sale, has advertised, claiming the whole face of the mortgage as due, he may be restrained from Celling, by the grantee of the mortgagor, until proceedings can be had to ascertain the amount actually due." The payment of a mortgage extinguishes the ])ower to sell contained in it. By payment, the whole moitgage is extinct, and it ceases to operate either at law or in equity, and the whole title reinvests in the mortgagor.'' There- fore, if a statute foreclosure afterwards takes i)lace, for the benetit of an assignee of the mortgage, and the property is bid in by him at the sale, he "acquires no title. The 7 Piu^'e, 248 ; 2 Johns. Ch., 125. » 2 R. S., 546, 8 7; 2 N. Y. S. at L., M:!N. Y., 200. 5GG. ' Idem., per Gardxeu. Ch. J., 209. " Clark. ;-!Gl. * 17 B;irb., 100; see 20 Wend., 2G0; '5 Hili, 272, perCowEN'. J. ; 18 Johns., J^^'l^-. 278. 1^ 12; 21 Wend., 483. OP THE FORECLOSURE OP MORTGAGES. 271 purchaser is not within the statute, for he has no power to sell, and is not a purchaser in good faith,^ Surjjlus money arishuj from the sale. If there is any surplus money, after satisfying the claim of the mortgagee, and paying him his costs and expenses allowed by hiAV, it belongs to the mortgagor or to his legal representatives, unless subsequent incumbrancers, by mortgage or otherwise, have a claim ; in which case, the mortgagee should retain the surplus, in trust for (ho proper parties, until their rights can be ascertained and adjusted." The mortgagee owning another mortgage, which is sul)se(pient to the one foreclosed, or having a judgment against the mortgagor, may retain the surplus, and a!)i)ly it to the payment of such other mortgage or judgment y or, if the mortgage is payable by installments, and all aro not due, he may apply such surplus toward Xha payment of such as are thereafter to become due/ It is otherwise, however, when the premises are sold subject to such install- ments to become due. In that case, the suri)lus belongs to the mortgagor, and the land sold becomes the ])rinjai'y fund for the i)ayment of future installments,* an 5 Hill, 272. ' 11 Barb., 549; Vi AYeud., 488. " See 7 Pui''e, 1G8, 250; 11 Id., G24. " 1 Paijro, 248. 272 ADMINISTRATION OP CIVIL JUSTICE. ftball have been served with notice of said sale as required by law.' It is the policy of the statute to make these foreclosures and sales under a power, when free from fraud and gross irregularity, final and conclusive.^ But, as the proceeding is carried forward without the attendant supervision of a judicial tribunal, under the particular directions of the statute, all the provisions of the statute must be complied with, to render the foreclosure valid. Any omission to serve the notice of sale upon the parties entitled to such notice, will render the sale irregular as to them, and, as to certain parties, irregular as to all.^ The effect of a statute foreclosure is to transfer to the purchaser the rights of the mortgagee, so far as he has any, in the mortgaged premises, as a security for his debt, and so much of the equity of redemption as was not bound by the lien of a junior mortgage or judgment.* And, further, a bona fide purchaser at such sale is not to be defeated or prejudiced by the fact that the mortgage was given for a usurious debt.* But the foreclosure of a mort- gage by virtue of a power of sale, under the statute, is a conclusive bar only in favor of a bona fide purchaser, without notice ; while the mortgagee, if he is party to a usurious contract, is in no better situation as purchaser than if no foreclosure had taken place.® And where the mortgage is usurious, and the mortgagee forecloses by sale under the statute, the purchaser, if he has actual notice of the usury, or if he is the personal representative of the mortgagee, cannot claim to be a homifixU purchaser, and acquires no title.' Nor would a sale by such pur- chaser to a third party, for a valuable consideration, without notice of the usury, convey a good title.' In general, the sale on a statute foreclosure will be void as to those parties in adverse interest, on whom no notice of the foreclosure is served. Thus, if no notice is given to the owner of the equity of redemption, the sale will be void as to him.^ So, where no notice is served on the mortgagor, even though he has parted with the equity of redemption, the sale is void. ' 2 R. S., 546, § 8 ; 2 N. Y. S. at L., 566, « 4 Paicre, 526. as amended by Laws 1844, ch. 346, * 10 Johns., 185. Laws 1857, cli. H08. • u Johns., 435. 1 Johns. Ch. R., 50 ; 2 Cow., 195; 1 ' 10 Barb., 553. Paige, 70; 4 Id., 531. '17 Barb., 100; 20 Wend.. 260; 9 •SBarb., 284; Hid., 191; 17Id.,100. Barb., 278. OF THE FORECLOSmiB OF MOKTGAGES. 273 Affidavit of sale. Where any party other than the mortgagee has become the purchaser, under the sale of the mortgaged premises upon a statute foreclosui-e, and has received a conveyance from the mortgagee, without affidavits, &c., the publica- tion of notices, and the circumstances of the sale, may be proved by common law evidence ; but if the mortgagee becomes the purchaser, the foreclosure is not complete without the affidavits, as they stand in the place of the conveyance.^ The provisions of the statute are, that an affidavit of the fact of any sale, pursuant to such notice,^ may be made by the person who officiated as auctioneer at such sale, stating the time and place at which the same took place, the sum bid, and the name of the purchaser, which is to be annexed to a iDrinted copy of the notice of sale.^ That an affidavit of the publication of such notice of sale, and of any notice of postponement, may be made by the printer of the newspaper in which the same was inserted, or by his foreman or i)riucipal clerk ;* and an affidavit of affixing a copy of such notice on the outward door of the court house may be made by the person who affixed the same, or by any other person who saw such notice so posted during the time required ; and an affidavit of the affixing a copy of such notice in the said books so to be provided and kept by the clerk pursuant to law,^ may be made by the county clerk, or by any other person who saw such notice so affixed during the time required ; and the affidavit of the serving a copy of such notice on the persons entitled to service thereof, may be made by the person who served the same. These affidavits may be taken and certified by any judge of a court of record, or any commissioner of deeds,'' or before any justice of the peace," and may be filed in the office of the clerk of the county where such sale took Ijlace,^ and must be recorded at length by such clerk in a book kept for the record of mortgages ; and such original ' Per Broxson, J., in Arnot v. McClure, ' See notice and how served, ante. 4 Deriio, 41. ' 2 R. S., 546, § 9. * The aflidavit of the publisher of a newspaper is sufficient. He is the printer within the statue; l(j Barb., 347. ' L. 1857, ch. 308, § 1. '' L. 1840, p. 187. ''2R. a, 547, §11. '2 R. S., 547, § 11. n.— 35 274 ADMIKISTEATION^ OF CIVIL JUSTICE. affidavits, the record thereof, and certified copies of such record, are presumptive evidence of the facts therein con- tained.* When the aflQdavits are properly made and filed, they become a substitute for a deed ;^ but until they are made, filed and recorded, or a deed given in pursuance of the sale, no title passes to the purchaser.^ Consequently, when they are made subsequent to the commencement of an action by the purchaser, &c., they will not sustain the proceedings in such action.^ The fourteenth section of the act,^ which provides that the affidavits of the publication, and of affixing notice of sale, and of the circumstances of such sale, shall be evi- dence of the sale, and of the foreclosure of the equity of redemption, &c., without any conveyance being executed, &c., since the law of 1844,^ must be read with reference to such amendment, and the affidavits, in order to operate as a conveyance, must state the service of notice as therein required, which is, that, in addition to the publishing and posting of the notice of sale for the time therein i)rescribed, a copy of such notice shall be served, at least fourteen days prior to the time therein specified for the sale, upon the mortgagor, &C.'' An examination of the statutes will show that the right of the mortgagee to acquire the title to the mortgaged premises on the sale, is given, and the manner in which the title is to be transferred to him is regulated by statute. The statute of 1808 provided no substitute for a convey- ance, and contained no provision in relation to it ; and, from necessity, it was held that the title passed, under the statute, 1)1) the fact of the sale. The provision of the Ee- vised Statutes," that the affidavits therein mentioned, when the mortgagee was the purchaser, should take the place of a conveyance, supplied this defect. The effect of that section, as amended in 1838, was to allow the substitution of those affidavits for a conveyance, in all cases, so that a person becoming the purchaser at such sale, this statute conveyance became operative as to him ; and he need not ' 2 R. S., 54T, § 12. 5 2 R. S., 547, 8 14. =■ L. 1838, ch. 266, § 8 ; 2 R. S., 547, « L. 1844, 529, ch. 246. § 14:- '20 Barb., 559 (562 and 563), ' 13 Barb., 13T; 4 Denio, 41. " 2 R S 547 S 14. * 20 Barb., 559; 27 Id., 503. ' OF THE FORECLOSFEE OF MOETGAGES. 275 take a conveyance from the mortgagee, as was necessary prior to the amendment of 1838.^ In accordance with the foregoing, it is hekl that the proper affidavits of the regularity of the sale being recorded, they are a sufficient memorandum in writing to take the case out of the statute of frauds.^ Costs. Costs and expenses in this proceeding are, in general, to be collected out of the mortgaged premises when sold. The rule is, that the one who claims the surplus as heir- at-law of the mortgagor, and who has been recognized as a claimant, by being made defendant in an action of inter- pleader to determine the right to the surplus is, within the statute,^ a party liable to pay the costs, and, as such, enti- tled to notice of taxation.* The statute provides that the taxation of costs in these cases shall be as follows: For drawing and copies of the advertisement of foreclosure and sale, affidavits of the publication, posting and serving the same, and of the cir- cumstances of the sale, and the deed thereof, the same allowance as made to attorneys in the supreme court for drawing and copies of pleadings, and one dollar for serving- each copy of the notice of sale required by law to be served f a fee, also, of ten dollars, for suijerinteuding the sale thereof, and attending to the execution of the necessary papers f and the exi)enses of publishiiig the ad- vertisement according to the rates therein allowed, for a period not exceeding twenty-four weeks; the exjicuse of posting such advertisement and inspecting the same, not exceeding one dollar ; the expense of recording the neces- sary affidavits, and of the proving or acknowledging of the deed, and of its being recorded, and of necessary postage and searches.' By the act of 1857," the clerk of the county is also entitled to twenty-five cents for affixing the notice of sale to the book kept in his office for that I)urpose.* The printer's fees, for publishing notice of sale in the newspaper, are seventy-five cents per folio for the ' 20 Barb., 563, per Green, J. » 2 R. S., 653, § 4, sub. 1. ' 4 Cow., 266 ; 1 Paige, 48. " Idem, sub. 2. = 2 R. S., 652. ' Idem, sub. 3. * 6 How., 263. " L. 1857, cli. 308, § 1. 276 ADMLtflSTKATION OP CrVTL JUSTICE. first insertion, and thirty cents per folio for each subse- quent insertion.^ The allowance of one dollar for serving each copy of the notice of sale, is in addition to the charge of making the copy.^ The expense of taxation is fifty cents, which are fees paid the taxing officer,^ unless such ofiQcer be a judge of the court. The oflQcers authorized to tax costs in these cases, are justices of the supreme court, and county judges of the degree of counselor of the supreme court.* CHAPTER XVIII. ADMEASUREMENT OF DOWEK BY PETITION. The statute provides that any widow, who shall not have had her dower assigned to her within forty days after the decease of her husband, may^pply, by petition, to the supreme court, or to the county court of the county in which the lands subject to dower lie, or to the surrogate of the same county, for the admeasurement of her dower, specifying in her said petition the lands to which she claims dower.^ In the city of New York, she may also apply to the court of common pleas of that city, when the lands are situated therein ; and in the city of Buffalo, she may also apply to the superior court of the city of Buffalo, when the lands are situated within that city. A copy of the petition, with notice of the time and place where it will be presented, must be served, at least twenty days previous to its presentation, upon the heirs of her husband ; or, if they are not the owners of the lands sub- ject to dower, then upon the owners of such lands claiming a freehold estate therein ; or their guardians, when such hehs or owners are minors.^ A tenant for years is not ' 2 R. S., 648, § 45; Laws 1859, ch. 252. * 2 R. S., 488, § 1 ; Laws 1847, 328, § " 6 How., 493. 29 ; Laws 1854, 464, § 6 ; Code, ' 2 R. S., 631, § 19. § 30, sub. 5. * 3 How., 32. 2 R. S., 488, § 2, ADMEASUKEMENT OF DOWEB BY PETITION. 277 entitled to the service of such notice. If snch tenants are incommoded by the admeasurement, they must seek their remedy against their landlords.^ Such notice may be served personally on any party of full age, or npon the guardians of minors, or by leaving the same with any person of proper age, at the last resi- dence of such party or guardian, in case of his temporary absence ; and where such heir or owner is a resident out of the state, the service of such notice may be upon the tenant in actual occupation of the lands, or, if there is no tenant, by publishing the same for three weeks succes- sively, in some newspaper printed in the county where such lands are situated.^ Appointment of guardians. Where the owners or heirs are minors, and have no guardians, the widow applies to the court or surrogate to appoint some discreet and sub- stantial freeholder a guardian of such infants, for the sole purpose of appearing for, and taking care of the interests of such infants in the proceedings f in which case, the notice of the application for admeasurement, and all notices in the subsequent pisoceedings, must be served on such guardian, whether the infant reside within the state or not.* This proceeding under the statute is the more exi^edi- tious course to be pursued by the widow, in procuring herself to be endowed of her husband's estate in lands ; but these proceedings are no evidence of title, or of any thing more than that the part assigned belongs to the widow, after a title is shown to the whole.^ There is no provision for trying, before the surrogate, the title to dower. The proceedings under the act, are founded npon the assumption that the widow is entitled to be endowed out of the estate in question ; and the admeasurement of dower under the surrogate's order, can- not affect or prejudice the right of dower, or the legal or equitable bar to it.'' After the exi^)iration of forty days from the death of the husband, his heirs or any of them, or tlie owners of the land subject to dowdr^claimiug a freehold estate therein, or the guardians of any such heirs or owners, may, by notice M 2 Wend., 137, 138. ■* 5 Cow., 168, 299; 6 Id., 3IG; 17 ' 2 R. S., 488, § 3. Johns., 123 ; 12 Wend., 137. » Idem, § 4. "9 Jolins., 246. * Idem, § 5. 278 ADMIXISTKATION OF CIVIL JUSTICE. in writing, require the widow of such husband to make demand of her dower, within ninety days after the service of such notice, of the lands of her deceased husband, or of such part thereof as shall be specified in such notice.^ And the widow, failing to make her demand of dower, within the time specified in such notice, by commencing a suit, or by an application for an admeasurement, as pro- vided by statute ; or not making a demand within one year from the death of her husband, although no notice to that eifect shall have been given ; the heirs of the hus- band of such widow, or any of them, or the owners of any laud subject to dower, claiming a freehold interest therein, or the guardian of any such heirs or owners, may apply, by petition, to the supreme court, or to the county court of the county where such lands are situated, or to the surrogate of the same county, for the admeasurement of the said widow's dower of the lands of her husband, or of such part thereof as shall be specified in said petition.^ A copy of such i)etition, with notice of the time and place of presenting the same, must be personally served on such widow, twenty days previous to its presentation.^ Order of admeasurement. The court, upon the hearing of such application, made, either by the widow, or by any heir or owner, or guardian of such heir or owner, may order that admeasurement be made of such widow's dower of all the lands of her husband, or of such part thereof as shall have been specified in such application.* A2)2)oint comraissio^iers to admeasure. The court making such order, thereupon appoints three commissioners, who must be reputable and disinterested freeholders, for the purpose of making such admeasure- ment, by an order which must specify the lands of which dower is to be admeasured, and the time at which the commissioners must report.^ It is held, that the surro- gate's order appointing commissioners and specifying a day for making their report, is in the nature of an adjourn- ment or continuance of the proceedings ; and upon the coming in of the report at the time, it may be confirmed, on motion of either party, without notice to the other for that purpose.^ 2 R. S., 489, § 6. " Idem, § 9. Mdem, § 7. ^ Idem, 10. Idem, § 8. » 2 Hill, 543. ADMEASUREMENT OF DOWEE BY PETITION. 279 The oath of the commissioners. Before entering upon their duties, the commissioners so appointed must be sworn, either before the surrogate appointing them, or before some other officer authorized to take affidavits, that they will faithfully, honestly and imi^artially discharge the duty and execute the trust reposed in them by such appoint- ment.^ And any such commissioners so appointed dying, resigning, or neglecting or refusing to serve, others may be appointed in their place by the court or surrogate appointing the first commissioners, and such newly ap- pointed commissioners must take the same oath above stated.^ It is held that where one of the commissioners die before the execution of his trust, the vacancy may be supplied by a new appointment made by the surrogate for the time being, although the original appointment was made by his predecessor.^ JSbw the commissioners are to execute their duties. 1. They are required to admeasure or lay off, as speedily as possible, the one-third part of the lands embraced in the order for their appointment, as the dower of such widow, designating such jjart with posts, stones or other permanent monuments. 2. In making such admeasurements, they must take into view any i^ermanent improvements made upon the lands embraced in said order, by any heir, guardian of minors, or other owners since the death of the husband of such widow, or since the alienation thereof by such husband; and, when practicable, must award such im- provements within that part of the lands not allotted to the widow; and where not so practicable to award the same, they must make a deduction from the lauds allotted to such widow proportionate to the benefit she will derive from such part of the said improvement, as shall be included in the portion assigned to her.** 3. They must make a full and ample report of their pro- ceedings, with the quantity, courses and distances of the * Previous to the adoption of the Revised Statutes, tlie widow wlioso husband died seised, was entitled to dower accordiuj? to tlio imi)roved viihio at the time of the assignment, including improvements made on the premises by the lieir or hi3 alienee. 6 Johns. Ch., 259 ; 4 Kent. Com., 65; 2 Johns., 485; 11 Id., 510; 13 Id., 179. • 2 R. S., 489, § 11. *2 R. S., 490, § 13; 4 Barb., 23; 10 » Idem, § 12. Paige, 72; 10 Wend, 483. '8 Wend., 4G0. 280 ADMmiSTKATIOK OF CIVIL JUSTICE. laud admeasured aud allotted by tlieua to the widow, with a description of the i)osts, stones and other permanent monuments thereof, and the items of their charges, to the court by which they were appointed, at the time specified in the order for their appointment. 4. They may employ a surveyor, with necessary assist- ance to aid them in such admeasurement.^ It is impracticable, sometimes, to assign dower by metes and bounds, as in the case of a mill which is not divisible. There the widow may be endowed in a special manner, as by having every third toll dish, or the entu-e mill every third year or month, or by taking a share of the profits in some other form. So, likewise, in the case of incorporeal hereditaments, dower must be assigned in a special man- ner, having respect to the nature of the subject aud the mode of enjoyment.^ And in mines which have been opened in the lifetime of the husband, if dower cannot be assigned by metes and bounds, the x>arties may have alternate occupancy of the whole, or the widow may take a third of the rents aud profits.^ So, in respect to a dwell- ing house, a woman may have a rent allowed to her out of a house, for her dower of the house, or she may have a chamber of the same house assigned to her in allow- ance of her dower of the house.* But in case of a room or chamber in a house is assigned, it would seem that the widow must assent thereto, or she would not be bound to accept it.** Enlarging tlie time of the commissioners. The court or surrogate appointing such commissioners may, upon their application, or the application of either party, enlarge the time for making their report ; and may, by order, compel such report, or discharge the commissioners neglecting to make the same, and may appoint others in theu' places.^ Rej^ort of the commissioners. The report is to be made to the court or smTOgate appointing the commissioners, and when made, must be filed and entered at large in the minutes of the court, or in a book provided by the surro- gate for that purpose, when made to him.'' And the court or surrogate to whom the report is made, may, at the time appointed for receiving the same, or at such other time to ' 2 R. S., 490, § 13. ' Perkins, § 342. ' See Perkins, § 342 ; Rop. Hus. and ^ See 2 Hill, 548, 549. Wife, 395-399 ; Park on Dow., 251. » 2 R. S., 490, § 14, * 1 Cow., 460. ' Idem, § 15. ADMEASUEEMENT OP DOWEE BY PETITION. 281 wMcli the hearing shall have been adjourned, on good cause shown, set aside the said report, and appoint, as often as maj^ be necessary, new commissioners, who are to pro- ceed in the manner above directed. But if the report be not set aside, the same will be confirmed by order of the said court or surrogate.^ The effect of the admeasurement. Such admeasurement, so made and confirmed, and not appealed from at the expira- tion of thirty days trom the date of such confirmation, becomes binding and conclusive as to the location and extent of the said widow's right of dower, on the parties apply- ing for the same, and upon all parties duly notified as above directed. But no person is thereby precluded from controverting the right and title of such widow to the dower so admeasured.^ This proceeding is not a substitute for proceedings by action, under the Code, for dower. The widow may still proceed by action, that is, by summons and complaint, which is a substitute for the former proceeding by bill in equity.^ The proceeding under the statute is usually resorted to, because it is the more expeditious course. But, in these proceedings, there is no trial of the title of the widow to dower, and consequently these proceedings are no evidence of title, nor of anything more than that the part assigned belongs to the widow, after title shown, &C.'' Ejectment to recover dower admeasured. At the expiration of thirty days from the date of confirmation, if there has been no appeal therefrom, the widow may bring and main- tain an action of ejectment, to recover i)ossession of the lands so admeasured to her for her dower.^ In defense to this action, her right of dower may be controverted.^ In bringing this action, the plaintiff should declare for the specific premises admeasured, and not declare generally for an undivided third part.^ The action is commenced by summons, or summons and complaint, under the Code, and the general provisions of the statute relating to actions concerning real property apply to the action.'^ Appeals. Where the commissioners have been appointed by a county court or by a surrogate, the widow and any ' 2 K. S., 490, § 16. * 5 Cow., 168, 299 ; 6 Id., 316 ; VI * Idem, § 17 ; 5 N. Y., 394 ; 9 Wend., Johns., 123 ; 12 Wend., 137. 310; 17 Johns., 122. » 2 R. S., 491, § 18. • 2 Sandf., 711, 715 ; 4 Paige, 98. • 9 Wend., 310. n.— 36 ' See 2 R. S., 302 ; Code, §§ 455, 471. 282 ADMLSnSTKATIOX OF CIVIL JUSTICE. heir or owner of lands affected by the proceeding, or the guardian of such heir or owner, may, within thirty days after the order of confirmation of the report of the com- missioners, by such court or surrogate, appeal from such order to the supreme court.^ Where the commissioners are appointed at the special term of a court, the confirma- tion is made at its special term, and the appeal is thence to the general term. Thus, where the order of confirmation is made by the court of common pleas of the city and county of New York, the appeal is to the general term of said court.^ The appeal must be filed with the surrogate or with the clerk of the court granting such order ; but it is not effec- tual or valid for any purpose, until a bond to the adverse party shall be executed by the appellant, and filed with such surrogate or clerk, with security, to be approved by the surrogate or a jndge of the court by which such order was made, and to be indorsed by an indorsement on such bond, in the sum of one hundred dollars, conditioned for the diligent prosecution of such appeal, and for the pay- ment of all costs adjudged by the supreme court, &c., against the appellant ; and no other notice or i)roceeding is necessary to perfect such appeal.^ Papers to le certified. The surrogate, or the clerk of the court with whom the appeal bond is filed, on the receij)t of his fees for such services^ must transcribe the petition, afiidavits, notices, orders, reports, and all other proceed- ings on the said application, together with the said appeal, and certify them under his ofiicial seal, and transmit them to the appellate court.* And the court must proceed to hear and determine said appeal, and review all the pro- ceedings upon the said application, and do whatever is just in the premises.^ The court will look only to the papers returned.^ The appeal is to be heard at general term, and is brought on by notice, and conducted as other appeals from orders. Notices of the hearing, and all other necessary notices in said court, may be rirved on any party not residing within the state, by leaving the same with the surrogate or clerk » 2 R. S., 491, § 19. « Idem, § 21. ' Code, §§ 8, 348, 349, 471 ; 9 How., ^ Idem, § 22. 304, 311 ; Laws 1854, cM. 270, § 1. '2 HilL 543. ' 2 E. S., 491, § 20. ADMEASUEEXEXT OF DOWEE BY PETITION. 283 of the court from whose order the appeal is made, for the use of such party.^ The supreme court may, by rule, direct further returns to be made whenever necessary. It may also establish such rules to regulate the practice on appeals as it deems expedient.^ What OR reversal of admeasurement. In case of the reversal of the order of confirmation, the court must cause the same to be certified to the surrogate, or court below, to the end that new commissioners may be appointed, or a new admeasurement may be had, as the supreme court shall direct; or, the supreme court may proceed to ap- point commissioners to make admeasurement, in the same manner as upon an original application to such court; and the like in'oceedings must be had thereon.^ Wliat on affirmance. In case of affirmance of the order of confirmation, the supreme court may, in its discretion, award the costs to be paid by the appellant, and to be taxed as the court shall direct ; and the original order of confirmation, and the admeasurement thereby confirmed, become binding and conclusive, and authorize an action of ejectment.^ The costs in these proceedings. The fees allowed to commissioners are two dollars for each day's actual and necessary service.^ When a sur- veyor is employed, he is allowed for actual service in surveying, laying out, marking and mapping the premises of which dower is admeasured, two dollars and fifty cents per day, and for each of his necessary chain and flag bear- ers, and other necessary assistants, one dollar per day.^ When the proceedings are in county court or before the surrogate, the costs are to be taxed at the rate allowed for such services in those courts prior to the adoption of the Code.^ But in the supreme court or court of common pleas of the city of ^qvi York, costs are allowed in the discretion of the court; and, when allowed, they are taxed at the rate allowed for similar services in civil actions. "^ On appeal, the costs are paid by the party applying for ' 2 R. S., 492, § 27. ' Idem, § 34. * Idem, 8 23. " Code, § 471 ; 1 Brad., 37. » Idem, § 24. ' L. 1854, 592. 2 R. S., 643, § 35. 284 ADMINTSTKATIOir OF dVIL JUSTICE. the admeasurement, and in case of affirmance, the court, in awarding costs, will require the appealing party to pay one-half the costs and expenses, &c.^ The supreme court may, also, in its discretion, award costs of the appeal to be paid by the appellant, and to be taxed as the court shall direct.^ CHAPTER XIX. GENEEAL LIEX LA.W OF MECHA]STCS, &C. ; NOT APPLICA- BLE TO THE CITY AED COUNTY OF NEW YOKK AND THE COUNTY OF EEIE. In what cases and how a lien is created. Any person who shall jDerform any labor in erecting, altering or repairing any house, building, or appurtenances to any house or building, and every resident who shall fur- nish any materials therefor, shall, on filing with the town clerk of the town in which the property is situated, the notice required by statute, have a lien for the value of such labor and materials, upon such house or building and appurtenances, and upon the lot, parcel or farm of land upon which the same shall stand, to the extent of the right, title and interest of the owner of the property existing at the time of filing the said notice.^ The person having the legal title to the land on which the erection is made, is not, necessarily, the owner of the building within the meaning of the statute. Thus, where the owner of land contracted with a purchaser to convey the land to him for a certain sum, and to loan him money, from time to time, for the erection of a building thereon, the price of the land and the money loaned to be secured by mortgage upon the premises, at the completion of the building, at which time the land was to be conveyed, it was held that the vendor of the land was not the owner of the building, within the meaning of the mechanics' lien ' 2 R. S., 492, § 26. 3 j^^ws 1854, ch. 402, § 1 ; Laws 1858, Idem, ^24; 2 HUl, 544. ch. 204; 4 N. Y. S. at L., 673, 679. GENEKAL LIEN LAW OF MECHANICS. 285 act ;^ and that the person furnishing materials for such building could not, under that statute, compel payment for those materials furnished to the purchaser out of the money agreed to be advanced hj the seller of the land to the purchaser thereof. Such money is money agreed to be loaned, and not a debt agreed to be paid, and is not within the statute.^ The lien attaches wherever the labor is performed or materials furnished for a building under a contract with the owner thereof, however temporary may be his interest in the land on which it stands, to the extent of his interest. Thus, it exists upon a building erected by a tenant from year to year or at will, when, as between landlord and tenant, the latter has the right to remove the building.^ But the owner must have some title at the time of liling the notice with the clerk.^ The word " owner," within the meaning of this statute, is held to mean the person employing the contractor to do ^ the work, and for whom the work is clone f and any person I may acquire the lien who has i^erformed the labor or fiir- '( nished the materials for the building, &c., excepting that the statute requires that the person furnishing the mate- rials shall be a resident of one of the counties over which this act extends, and, perhaps, of the county in which the building is situated.^ The language of the statute is confined to the person performing the labor or furnishing the materials, uts in his answer in writing, duly verified, together with a bill of particulars of any • 4 N. T. S. at L., G75, § 8. " Idem, § 11. " Idem, 676, §§ 9, 10. ' See post. ' Idem, § 9. n.— 37 290 ADMENISTRATION OF CIVIL JUSTICE. off-set he may wisli to make.^ The verification should be by the owner or his agent, to the effect that the answer is in all respects true.^ The trial of the issue thus formed is conducted in the same manner as other issues in the justice's court; and costs, judgments and appeals are taxed, entered and carried forward as in other cases in that court. Hoxo the action is commenced iti the supreme court and county court. The action is commenced by serving a notice, containing a statement of the facts constituting the claim, and the amount thereof, and also a bill of particulars of the amount claimed, upon the owner of the property, or his agent, requiring the said owner to appear, in person or by attor- ney, within thirty days after such service, and answer the same, and serve a copy of such answer, together with a notice of any set-off that he may have, on the claimant or his attorney ; or, in default thereof, that the claimant will take judgment against the said owner, for the amount claimed to be due for the labor performed or the materials furnished, with interest thereon, and costs.^ Where the amount claimed is for one hundred dollars or under, the action may be commenced in a justice's court, in the town where the property is situated.* The notice is to be served personally, if possible, on such owner or his agent ; but where this cannot be done, by rea- son of absence from the state, or concealment therein, then it is made by leaving a copy of such notice at the last place of residence of such owner, and publishing a copy thereof, for three weeks successively, in a newspaper published in the county where the property is situated ; in which case, the said thirty days commences to run from the date of the first publication of such notice.^ The bill of par- ticulars need not be published with such notice." When the complainant has followed the precise course prescribed by the statute to create the lien, and to bring it to a close, and has served his complaint, or his statement and bill of particulars to obtain an issue, if it should become M N. T. S. at L., 67G, § 12. ' Idem. § 1. " Laws 1854, ch. 402, § 6; 4 N. Y. S. at L., 675, §§ 6, 10; the bill of particu- lars should contain all the items of the plaintiff's claim, and he can recover for none not contained therein, 3 Abb., 475. * Idem, § 8. • Idem, 8 10. ' Idem, § 9. GENERAL LIEN LAW OF MECHANICS. 291 necessarj'^ to bring in another party, tliat the court might do full justice to all interested, such party may then be brought in, on the order of the court, made on motion or petition.^ Objection cannot be taken to the proceeding, because of the omission of such party. Proceedings in case of default. In case the defendant does not appear, as required by the notice given, if the action be in the supreme court or the county court, the claimant, on filing with the county clerk an affidavit of the service of such notice and bill of particulars, and of the failure of the defendant or owner of the property to appear as therein required, may have the amount of his said claim assessed by said clerk, and judgment may be entered for the damages so assessed, and for costs ; and execution may be issued thereon as upon other judgments in said courts, in actions arising on contract for the recover}^ of money only, except that the execution shall direct the ofiicer to sell the right, title and interest which the owner had in the premises at the time of filing the notice prescribed.^ In his recovery, he is limited to the amount of his claim as stated in his notice filed, with interest and costs.-^ If the notice to enforce the lien was served by publica- tion, the affidavit of service must show the fact of publi- cation in the manner directed, and also the facts justifying such service by publication ; and, upon the assessment of his damages, the plaintiff" must produce evidence to estab- lish the value of his labor or materials, and that the same was performed or used by the said owner or his agent, original contractor, or assignee of such contractor, in the erection, altering or repairing of such house, building or appurtenance.* He should also produce a copy of the notice of lien, duly certified by the town clerk, whose cer- tificate should show the fact and time of filing such notice.' The appearance of the defendant. Within thirty days after the service of such notice and bill of particulars, upon the owner or defendant, such defendant must personally serve the claimant or his attor- ■ See 1 E. D. Smith, 719. * 4 N. Y. S. at L., G75, § 5. ' 4 N. Y. S. at L., 676, § 11. » Nott's Lien Law, 206. ' 1 E. D. Smith, 671. 292 ADMINISTRATION OF CIATEL JUSTICE. ney with a copy of Lis answer, and notice of set-off, if any be bas, duly verified by bis oatb, or tbe oatb of bis agent or contractor, to tbe effect tbat tbe same is, in all respects, true ; and, failing to do tbis, bis detault may be entered, and judgment be taken.' In bis answer, tbe defendant may set up a set-off or demand against tbe claimant, otber tban one arising out of tbose matters connected witb sucb contract.^ Tlie issue, how formed. The action having been brought in the supreme court or in the county court, tbe issue is formed by the service of tbe notice and tbe bill of particulars, on tbe part of tbe claimant, and tbe owner's answer, duly verified, with a bill of particulars of set-off, if any, annexed to the answer.^ Tbe answer and bill of particulars of set-off of the defend- ant, must be served personally upon tbe claimant.* A bill of particulars is required to be -served by tbe defendant, only when be claims a set-off; and the bill con- sists of the particulars of sucb set-off. If the defendant seeks to recouj) his damage for imperfections in the work, be need not serve a notice of set-off for that purpose.^ Proceedings after is&ae. After the issue shall have been joined in the supreme court or in the county court, and at least ten days before tbe commencement of the court, tbe case may be noticed for trial, and be put upon the calendar of said court, by either party furnishing tbe clerk of the court witb a note of issue, as is required in other actions, and thereafter tbe proceedings shall be had as in otber actions in said courts, arising on money demands upon contracts.^ The proofs required to be made by tbe claimant, aside from tbat which tbe statute especially imposes upon him, to show that be is properly in court, according to the pro- visions of the lieu law, are tbe same as would be required of him were he seeking to recover, in an ordinary action, for work performed and materials provided. The addi- tional proofs required are, that the labor performed or materials furnished, were so performed and furnished as to M N. Y. S. at L., 675, § 7. " Idem, § 7. " 1 E. D. Smith, 691 ; 4 Hill, 193. '' 1 E. d! Smith, 697. " Laws 1854, ch. 402, § 13 ; 4 N. T. S. ' 4 N. Y. S. at L., 677, § 14. at L., 677, § 13. GENERAL LIEN LAW OF IIECHANICS. 293 bring him within the provisions of the statute ; and also, tbat he had acquired a valid lien upon the premises, as against the owner. The proceeding to foreclose such lien, is a proceeding in rem ; and the tkst step in the proceeding, after the parties are in court, is to establish a lien, without which there is no foundation for the proceeding.^ Therefore, all facts necessary to establish the existence of such lien upon the premises, as against the owner, must be proved. He should show the notice of lien, and that the same was properly filed. This is done by producing a copy of the original notice, duly certified by the county clerk, stating the fact and time of its filing.^ The owner may make either a defense generally, which he would be entitled to make in an ordinary action for the recovery of the value of the work performed or for mate- rials furnished, and, beside, he may avail himself of any failure or omission on the part of the claimant to comply with the essential requirements of the statute to establish or enforce such lien. After the issue is joined as provided by statute, and the cause is placed upon the calendar, the action is to be governed and tried in all respects as upon issues joined and judgment rendered in other actions arising on money demands upon contracts in said courts.^ tTudgment. It would seem that the judgment is to be general in its character ; that is, the statute makes no provision for any other judgment than a general one to be rendered in these cases.^ The judgment thus rendered becomes a lien upon the real property of the party against whom it is rendered, the same as other judgments. The transcript of judgments taken under this act, headed "Lien docket," is to be furnished by the clerk of the county where the same was rendered and docketed, to the successful party, who may file the same with the count}^ clerk of any other county, and thereby obtain a lien upon the real proi)erty of the judgment debtor in such county.^ If the judgment is against the claimant, the lien is discharged, ami the town clerk is required to enter the word "Discharged," under the last head in his lien docket, on receiving a transcript of such judgment.* ' 1 E. D. Smith, 663. =" See §§ 11, 14. » 4 N. Y. S. at L., 677, § 14. * Idem, § 17. * 294 ADMINISTEATION OF CIVIL JUSTICE. Execution. The executions issued ou judgments in these proceed- ings, are both general and special in their character. They ' are general in this, that they are issued upon such judg- ments for the collection and enforcement of such claims, in the same manner as executions upon other judgments in said courts, in actions arising on contract for the recovery of money only. They are special, in that the execution must direct the officer to sell the right, title and interest which the owner had in the premises at the time of filing the notice of said lien.^ It is to be observed that the execution directs the sale of the owner's interest in the property, rather than the sale of the property itself ; therefore, an execution directing the sale of the property itself would "be irregular.^ But when the execution is against other property, in another county, it would be in the usual form, and be directed and executed in the usual manner. So, if the execution is against the claimant for costs, it is in the usual form. Costs and disbursements. Costs and disbursements are to be allowed to either party, upon the like principles and rules as in actions at law arising on contract, and must be included in the judgment.^ On judgment being rendered against the owner, and in favor of any laborer, or person furnishing materials, and the owner has funds in his possession due to the con- tractor, the costs of the proceeding are to be deducted from such funds, unless otherwise directed by the court in which the action is brought.* Ajypeals. Appeals from judgments in this proceeding are had and conducted in the same manner, and within the like time, as in appeals taken in actions for the recovery of money arising on contract.^ Note. For further information upon the subject of the practice under the Me- chanics' Lien Law, reference is made to Nott's Lien Law, and Crary's Special Proceedings. This work is confined to a very brief statement of the practice there- under, deemed, however, to be sufiScient for the general practitioner. MN. Y. S. atL., 676, § 11. ' See 4 Abb., 205, 208, note. =• 4 N. Y. S. at L., 677, § 16. * Idem, § 15. " Idem, 678, § 21; Code, §§ 323, 348. PKOCEEDENGS m CASES OF IDIOTS, ETC. 295 CHAPTER XX. PROCEEDINGS IN CASES OF IDIOTS, LUNATICS AND HABITUAL DRUNKARDS. Ji(7'isdiction. The care and custody of idiots, lunatics and persons of unsound mind, and habitual drunkards, and their estates, was vested, by statute, in the chancellor, who was directed to provide for their safe keeping, maintenance, and for the maintenance of their families, and the education of their children, out of their personal estates, and the rents and profits of their real estates.^ In cases where the property of habitual drunkards did not amount to two hundred and fifty dollars, the court of common pleas had concurrent jurisdiction with the chan- cellor.^ The powers and duties or the chancellor are now vested in the supreme court.^ County courts, also, have jurisdiction respecting the care and custody of the per- sons and estates of idiots, lunatics and habitual drunkards residing within the county."* The overseers of the poor may institute proceedings in the county court, where the drunkard's property does not exceed two hundred and fifty dollars.^ The court of common pleas of the city and county of New York has the same jurisdiction in these cases as the county courts in their counties.*^ The superior court of the city of Buffalo has concurrent jurisdiction in these cases with the supreme court, where the parties reside in the city of Buffalo.' In order to confer jurisdiction, the person must reside or have property, within the jurisdic- tion of the court.^ A committee appointed abroad has no power over property here, nor can such committee be authorized to sell the property of their cestui que trust ' 1 R. S., 147, § 1 ; L. 1821, 99, § 1. ' 2 R. S., 52. "2 R. S., 53, § 3. 'L. 1854, 464. « L. 1847, ch. 280. ' Idem, 225, § 11. • Code, § 30, sub. 8 and 11; 16 How. » 2 Barb. Ch., 305. Pr. 567. 296 ADMTNISTEATION OF CIVIL JUSTICE. situate witliiu this state.^ In cases not entirely free from doubt as to jurisdiction, tlie proceedings should always be instituted in the supreme court. The practice and pro- ceedings are the same in all courts. Who are the persons contemplated hj the statute. The language of the statute is : " Idiots, lunatics, persons of unsound mind, and persons who shall be incapable of conducting their own atfairs in consequence of habitual drunkenness."^ An idiot is a natural fool, or a fool from birth. If a person has any reason whatever he is not an idiot. For- merly, persons born deaf, dumb and blind were regarded the same as idiots. This doctrine no longer prevails in this country, for one born deaf and dumb is not of neces- sity an idiot, and the presumption is that every person is sane until the contrary appears.^ A lunatic is one who has had understanding, but whose reason has become impaired or wholly lost.* He may have lucid intervals ; but where the lunacy is general, such person is within the operation of the statute. A lunatic may have the power of reasoning through imagi- nary or false principles. Indeed, delusion generally char- acterizes this condition of the mind. Dr. Haslam, in his work on insanity, says that "■false belief is, the essence of insanity." This, perhaps, is generally true ; but there are cases where belief does not characterize the delusion. To use the language of Stock : " The varieties of lunacy are as numerous as the varieties of human nature, its excesses commensurate with the force of human passion, its phan- tasies co-extensive with the range of human intellect." Persons of unsound mind. This term not only includes idiots and lunatics, but all persons who have not a sound and disposing memory. It is not sufiScient that a person be of weak understandiug and no resolution of mind ; but the party should be found to be of unsound mind; noii compos mentis.^ The defect of mind xaust be plain and unequivocal.*^ That kind of mind which the law holds to be sound, is where a party has understanding to dispose of, or mind to manage, his estate, with judgment and discretion; ' 2 Johns Ch., 124; 2 Paige, lU; 9 * 2 Black. Com.. 304. W., 416. s 2 Vesey Sen., 408 ; High, on Lun., 5. » 2 R. S., 53, § 1. « 8 St. Tr., 322. ' 4 Johns. Ch., 441 ; 2 Park. Cr., 28. PEOCEEDDfGS IN CASES OF IDIOTS, ETC. 297 and this is to be ascertained from his words, actions and behaviour.^ It is evident, from the language of the statute, that the term unsound mind applies to a class of persons not included in the words "idiot" or "lunatic," otherwise the legislature would not have added this term. While the courts, generally, have refused to appoint a committee, unless the jur}^ found the party to be of ^'un- sound mind,'''' this rule seems to have been technical, and has gradually been enlarged.^ The rule now is, that whenever a party, from any cause, becomes manifestly incapable of managing his affairs, the court has jurisdic- tion, and will grant its protection by issuing a commis- sion.^ In the case of Baker,^ Chancellor Kent directed a com- mission to issue, to inquire whether the party was of ^^ unsound mind,'''' or ^^ mentally incaimMe of managing his affairs^ It is evident that the learned chancellor under- stood the two terms as meaning substantially the same thing. The care and custody of these persons, and their estates, is confided to the courts without any restriction or limitation, and the manner in which such control is to be exercised is entirely a matter of discretion. If from the finding of the jury enough appears to enable the court to adjudge the party to be within some one of the classes of persons over whom the statute has given it jurisdiction, it is sufficient.^ Hahitual drunkards. Those referred to in the statute are, " persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness." In these cases there must not only be imbecility and habitual drunkenness, but the imbecility nmst be the result of such habitual drunkenness, and this should be alleged in the inquisition, although proof of incapacity need not in all cases be made. The fact that a person is, for 2tMy consideraMe portion of his time, intoxicated to such * Highmore on Lun., 4; 1 Fen. Eq, 10. * In the matter of Mason, per TIarris, « 6 Vesey, 273 ; 8 Id., 65 ; 2 Jolms. J., 1 Barb., 441 ; see, also, 1 Johns. Ch., 233 ; 12 Vesey, 445. Ch., 600. • 12 Johns. Ch., 232. n.— 38 298 ADMINISTRATION OF CIVIL JUSTICE. • a degree as to deprive him of liis ordinary reasoning facul- ties, is at least prima facie evidence of his incapacity to manage and control his property.^ An liaUtual dranTiard is a person who, from the exces- sive and frequent use of intoxicating drink, has lost the power or will to control his appetite for it.^ The drunken- ness must become a fixed and settled habit, and not occasional or periodical, and of such a degree as to render the party incapable of managing his own affairs by reason thereof. Application, who may apply., and how and where made. The practice is to apply to the court by petition, pray- ing that a commission in the nature of a writ de lunatico inquirendo may issue. The application is usually made by a near relative of the party. It may be made by a creditor or tenant of the party f or, by an executor under a will against a legatee under the same will ; or, by the attorney general in behalf of the people ; or, bj' a trustee against his cestui que trust; or, even a stranger, if the case is clear.* In respect to habitual drunkards, the statute makes it the duty of the overseers of the poor of the city or town in which they reside to apply.^ This does not prevent others from making the apjilicatiou, when they apply first. Applicatio7i, how made. The petition should state the facts on which the appli- cation is based, and show upon its face that the case is within the jurisdiction of the court to which the applica- tion is made.^ The petition should be verified, and be accompanied by afiidavits, setting forth explicitly the con- dition of the party proceeded against, and clearly show that such party is a proper subject for the protection of the court. It is frequently advisable to present with the petition the affidavit of one or more respectable physicians. In all cases the papers should show a clear prima facie case. * Walavorth, Chancellor, 1 Paige, 583. ■• 1 Russ, 348. ', Bouvier's Law Die. * 2 R. S., 53. * Shelfer Lun., 93. « 2 Barb. Cli. R., 305. PEOCEEDINGS IN CASES OF IDIOTS, ETC. 299 Where made. The application is made by an ex parte motion, and if to tlie supreme court, the motion must be made to the court at a special term. If the application be to the county court, it may be made any time.^ A proper case being made, the court will grant an order directing that a commission issue. The usual number of commissioners is three, but this matter is discretionary with the court. The general prac- tice is to nominate, as commissioners, a counselor-at-law, a physician and one other intelligent man. The order being entered in the proper clerk's office, a commission must be prepared. The commission must direct an iuquirj^ tfe to the mental condition of the party proceeded against ; how long he has been in such condi- tion ; who are his next of kin and heirs, and the value of his real and personal estate, as well as the annual value of the rents and profits thereof. The commission should be sealed with the seal of the countj', and the due allow- ance thereof should be certified by an indorsement thereon by the clerk.^ Persons dealing with the party proceeded against after the issuing of the commission, with knowledge of this fact, do so at their peril ; for if a committee be appointed, they may sustain an action to set aside a conveyance made by the party proceeded against while the i3roceedings are pending.^ The court has no jurisdiction to appoint a committee over an alleged lunatic, or order a sale of his property, upon mere i^etition, before a commission has been issued and returned.* The return of the commission is a judicial determination that the party proceeded against is one of the class of per- sons referred to in the statute. Mcecution of Che commission. The execution of the commission must be public.^ Pend- ing the execution of the commission the court will make all orders necessary for its i)roper execution, such, as an ' Code, § 31. * Matter of Payn, 8 How., 220. " 2 Barb. Ch., 229. » Coll. on Luu., 131. ' 15 Barb., 1520. 300 ADMIN^ISTKATION OF CIVIL JUSTICE. order for the production of the alleged lunatic, where the party who has custody of him, refuses to produce him before the commission,^ or restraining his removal out of the county, or improper interference with his person or property.^ In all these cases sufficient grounds must be shown for these summary proceedings. . A certified copy of the order, together with the commis- sion, should be left with the commissioners. They may then issue a precept directed to the sheriff of the county in which the commission is to be executed, to summon a jury, at a time and place named therein. The usual prac- tice is to name in the order the place for executing the commission, and the precept should conform to the order. If the party proceeded against reside within the juris- diction of the court, the practice is, in 'the order to direct that the commission be executed at or near his place of residence.^ The convenience of witnesses may be consulted.* The sheriff, on receipt of the precept, should summon not less than twelve, nor more than twenty-four, jurors, whose names he should annex to the precept. It is the duty of the sheriff to select the jurors, and the commis- sioners have no right to interfere with him in the discharge of this duty.^ The manner of executing the precept is the same as in other cases. The service must be x^ersonal, and should be a reasonable time before the day appointed for the hearing. The commissioners may require the sheriff to be present at the time of the hearing, to attend upon the jury, but it will be irregular if he is present with them when they deliberate upon their verdict ; and where the sheriff improperly interferes with the deliberations of a jury, their inquisition will be set aside.^ Notice of executing commission. ]S^otice of the time and place of executing the commission must be given to the party proceeded against, and he has a right to be present ; and this notice may be required, although the party does not reside in the state. If peculiar circumstances render it improper or unsafe to give such notice, they should be stated in the petition to the court, so that a special provi- sion may be inserted in the commission, dispensing with ' Idem, 143. * Shelf, on Lun., 96. ' Shelf, on Lim., 100. » 6 Pai^e, 11. » 2 VeaeySen., 401 ; 19 Vesey Jr., 340. « 2 Hoff. Ch. Pr., 255 ; 1 Paige, 49T. PROCEEDINGS DT CASES OF IDIOTS, ETC. 301 notice to the party .^ Due proof of the service of this notice should he made. The duty, power, 22 Barb., 319; Rule 33, S. C. ' Idem, § 21. » 2 R. S., 55. § 18. * L. 1864, cli. 417, § 1. 316 ADMItnSTKATION OF CIVIL JUSTICE. party making the application must execute and file with the clerk of the court a bond to the lunatic, in such penal sum, with such sureties, and in such form, as the court shall direct, conditioned for the faithful performance of the ti'ust, &c., &c. Under the Ee vised Statutes it is discre- tionary with the court to require additional security, or not. If the bond be forfeited, the court shall direct it to be prosecuted for the benefit of the party injured. The principal change that seems to be effected by this statute is the enlargement of the power of the court, by providing for many cases, as has already been shown, in which the real estate of a lunatic may be sold, where it could not have been under former statutes. Removal of Committee. Committees may be removed for malfeasance, or mis- feasance, in the discharge of their duties. They must obey all orders of the court in the matter, or they will be liable to removal, and to be punished for contempt. The permanent change of residence of the committee to a place out of the jurisdiction of the court, is a sufficient cause for removal.^ If a temporary removal only is con- templated, the court may refer it to a referee to approve of a proper person to be entrusted with the care of the person and estate of the ward.^ Bankruptcy in the committee of the estate is good cause for removal.^ In vesting a portion of the lunatic's money on mortgage, without order of the court ; using a portion for his own advantage ; rendering deficient accounts, &c., are good causes of removal.* Where a stranger was appointed committee, without a reference, and without notice to the persons prospectively interested in the estate, the appointment was set aside.^ The application to remove should be made by petition, charging explicitly the acts complained of. It should be supported by affidavits, and made to the coui't appointing the committee, and on due notice to the committee. The application may be made by any person having a suffi- cient interest in the matter to apply for a commission and the appointment of a committee. . Should a stranger »Jac. R, 94. * Idem, 167. ' Shelf, on Lun., 170. * 11 Abb., 274. •Idem, 169. PKOCBEDINGS IS CASES OF IDIOTS, ETC. 317 make the application, he should make a clear case, and it should be well supported by incontestible affidavits, or the court might order him to pay all the expenses of the com- mittee in opposing the application. Setting aside the inquisition. The inquisition may be set aside for irregularity in the proceedings, or want of jurisdiction in the court. The application may be made by an 3^ jjerson whose interests are anywise affected by it. The application is made by motion or petition, and if made for an irregularity merely, it should be made as soon as the party moving has notice of the irregularity and before the confirmation of the inquisition. If the inquisi- tion be confirmed, and the lunacy unquestioned, the inqui- sition will not be set aside for mere irregularity.^ The notice of application should si^ecify particularly the defects and irregularities comjjlained of, and if these do not appear on the face of the proceedings, the application should be supported by affidavits, copies of which should be served, with the notice of the application, on the party prosecuting the proceedings, or his attorney. Suspending the inquisition., &c. It is sometimes desirable to suspend the operation of the commission and inquisition to enable the party under it to do a particular act. This has been done to enable the party to make a will that might be free from the legal pre- sumption of invalidity.^ The court has unlimited power in the matter, and will modif}^ or suspend the inquisition in such manner, and to such extent, as the condition of the party under it and the circumstances warrant and require.^ The application may be made tx ]^arU or on notice, with or without affidavits, so that the court becomes satisfied that the case is a proper one for the exercise of this power. The application should be made by the party under inquisition. Superseding and discharging the comniissio7r. If a person under inquisition becomes restored to sound mind, or if he be an habitual drunkard and becomes thus ' 11 Abb., 274. ' 7 Paige, 312. » 2 Barb. CL, 208 ; 4 How. Pr., 34. 318 ADMDaSTRATION OF CIYEL JUSTICE. restored and continues permanently sober, his estate may- be restored to him and the commission suspended. The appHcation should be made by the party himself, on due notice to his committee, by petition, setting forth the find- in f of the inquisition, his restoration to a sound mind and understanding, «&c., and praying that the inquisition may be superseded, and for the appointment of a referee to take and state the account of his committee. If the party's disability was caused by drunkenness, the petition should state facts constituting a permanent reform- ation, such as entire abstinence from all intoxicating liquors for at least one year immediately preceding the application, as well as competency to manage his affairs, as it seems to be necessary to establish this fact to author- ize the court to presume a permanent reformation.^ The petition should be verified and be supported by atfidavits of competent and disinterested persons, of the most posi- tive and circumstantial character. If the restoration be from lunacy, the affidavits of the party's physician should be i)resented, or of other medical gentlemen who are acquainted with the party or have examined him. The partj^ should be present at the making of the application that the court may inspect and converse with him if desired. The matter of proof on superseding the commission, lies in the sound discretiou of the court, and may be done with or without a reference. If the application is opposed, or if serious doubts exist as to the sanity of the petitioner, the court will usually refer the matter to a referee to examine the party, take the testimony and report the facts, with his opinion thereon,^ or if the court think proper, it may direct an issue to be made up and tried by a jury.^ In cases of great doubt as to the mental condition of the petitioner, it is believed that the latter mode is more satistactory. The statute declares that " in case any luna- tic or other such person shall be restored to his right mind and become capable of conducting his affairs, his real and personal estate shall be restored to him."^ This is a mat- ter of right, and a party should have the right to a verdict of a jury in this case, if he desired it, as well as when it is taken from him. The practice in the reference, &c., in this case, is the ' 7 Paige, 312. » 3 Johns. Ch., 567. ' 6 Johns. Ch., 440. * 2 R. S., 56, § 24. PROCEEDINGS BY AND AGAINST INFANTS. 319 same as in similar cases in these proceedings hereinbefore treated. An appeal would lie from an order denying the applica- tion, as such an order would affect a substantial right. CHAPTER XXI. SPECIAL PROCEEDINGS BY AND AGAINST INEANTS. The appointment of guardian. In the eye of the law an infant has not, in general, the capacity to manage his estate, &c., and, therefore, it be- comes a necessity that he should have a guardian for that purpose; and where there is no testamentary guardian, and the infant has personal property, a general guardian must be appointed. This appointment may be made by the surrogate, or by the supreme court, in virtue of its equity powers, derived, not from special statute, but from its succession to the powers and authoritj^ of the chancel- lor, embracing that part of equity jurisdiction extending over minors and their estates.^ This power of the court as a court of equity continues over the infant during the period of his minority, and over all guardians of the infant, and is plenary for the purpose of taking care of the infant and his estate. In the appoint- ment of guardian, if the minor is over the age of fourteen, his wishes are to be consulted in the selection. But he must select a suitable person, or the court will not appoint him; for the court is not bound to make such appoint- ment without regard to the character or competency of the individual.' The statute, in its provisions determining who shall have the natural guardianship of infants in whom an estate in lands becomes vested, has indicated the natural order of preference, and is the order observed by a court of equity where the same is practicable. Thus the statute ' 2 Kent Com., 226, 227. 320 ADMINISTRATION OF CIYIL JUSTICE. provides that the giiardiansbip of such infant, with the rights, powers and duties of a guardian in socage shall belong : 1. To the father of the infant ; 2. There being no father, then to the mother thereof; 3. There being no father or mother, then to the nearest and oldest relative of full age, not being under any legal incapacity; and as between relatives of the same degree of consanguinity, males shall be preferred.^ And an uncle of the father's side has preference over an uncle on the mother's side.^ The court, acting in virtue of its equity jmisdiction and authority, while it will consider the wishes of the infant and those of its near relatives, will be governed by what it considers to be the true interest of the infant in making such an appointment. There is no arbitrary rule govern- ing the appointments, but the matter is within the sound discretion of the couit, to be exercised with a view to the social relation and welfare of the minor.^ Proceedings to appoint a general guardian. K the infant is of the age of fourteen years, or upwards, he presents a petition for the appointment of such guar- dian ; if he be under that age, some relative or friend may present such petition to the court, which petition must state 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.* This petition is presented to the court at special term, and ujay be ex parte. The petition cannot be heard at chambers, unless the sitting be that of special term. Upon presenting the petition, the court, by inspection or otherwise, ascertains the age of the infant ; and if of the age of fourteen years or upwards, the court must examine him as to his voluntary nomination of a suitable and proper person as guardian. The court must 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 must also > 1 R. S., 718, § 5; 1 N. Y. S. at L., 667; see 31 Barb., 289; 30 Id., 635: 1 Cow., 38 ; 5 Paige, 41 ; 15 Wend., 633. * 2 Kent's Com., 226, note e. * Rule 63. • 1 Brad., 143. PEOCEEDrSGS BY AJH) AGAINST INTAlfTS. 321 ascertain the sufficiency of the security offered by the guardian.^ The usual method of determining the facts set forth in the petition is by a reference for that purpose, the order for which, directs the referee to inquire into the truth of the matters set forth in the petition, and, also, into such other matters, specifying them, as, by rule, it is necessary for the court to be informed of, to discharge its duty in the premises. When a referee is appointed by the court for such pur- pose, he proceeds, as in other cases of reference, to ascer- tain the facts involved in the case as presented by the petition, and required to be ascertained by the rules of court, and reports thereon to the court. His report con- tains a statement of the facts found by him in obedience to the requirements of the order. He should be careful to find, and specifically and definitely state, every fact neces- sary to be known by the court, to enable it to fully discharge its duty in the appointment of the general guardian. The referee, unless ordered to do so, is not required to give notice of his proceedings to the relatives of the infant. He may or may not do so, in his discretion. His report may be filed according to the provisions of the rule,^ or it may be presented to the court directly.^ The court, where there is no sufficient reason to the contrary, will confirm the report, and appoint the person, reported to be suitable and proper, general guardian. Such appointment becomes complete on the entry of the order, and on executing and fifing the necessary security required by such order.* The security to be given by a general guardian must be a bond, in the penalty of double the amount of the per- sonal 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 must be worth the amount specified in the penalty of the bond, over and above all debts. Instead of personal security, the guardian may give security by way of bond and mortgage on unincumbered real property of the value of the penalty of the bond. This security ' Rule 64. ' 2 Van Sant. Eq. Pr., 302. » Rule 32. « 15 How., 583. n.— 41 322 ADMINISTEATION OF CIVIL JUSTICE. may be varied in the discretion of the court, where, from the 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 the stocks of the state of New York or of the United States, or with the New York Life Insurance and Trust Company, the United States Trust Company, or on bond and mortgage, for the benefit of the infant, and that the interest or income thereof only be received by the guardian.^ The powers and duties of the general guardian. After his appointment is complete, and be thus becomes vested with the powers incident to his office, it is his duty to take possession and care of his ward's personal estate, which he may dispose of without any previous order of the court.^ But he cannot convert his ward's personalty into realty, nor can he buy land with his money ; and if he do so, his ward will be entitled, when he arrives at full age, either to take the land, or the money with interest.^ The general guardian has no further control over the real estate of his ward than to manage and improve it accord- ing to his best skill, to receive the rents and profits of the same, and to lease it during the minority of his ward. Whatever act is done hy the guardian without authority, will not be deemed to be done for the ward, unless the act is benjeticial to him. As a trustee of his ward's personal estate, it is his duty to so administer the trust as to make it both secure and productive, where that can be done. Unproductive per- sonal estate should be converted into money, and that should be safely invested in such funds as are ai)proved by the court.* In this state such funds may be invested in the stocks of the state of New York, or of the United States ; or, with the New York Life Insurance and Trust Company, the United States Trust Company, or on bond and mortgage.^ The general rule applied to the acts of guardians trans- acting business for their wards is, that where the act is beneficial to the infant it will be protected.^ He may pay off" a mortgage, and the interest of any other real incum- ' Rule 65. * 8 Barb., 48 ; 2 Wend., 77. M Jolins. Ch., 561; 7 Id., 154; 10 ' Rule 65. Yerg., 160. • 18 Vea., 273. ' 8 Barb., 48. PKOCEEDINGS BY A2sD AGAINST INTANTS. 323 brance.^ But be will not be sustained in doing any act which is an injury to his ward. To avoid personal liability in case of loss, the guardian must keep the funds of his ward separate from his own, and he must not trade on account of his ward's property for his own benefit.^ If he do so, and a loss occurs, he will be accountable to his ward. The income of the infant's property must be kept properly invested. He will be allowed a reasonable time to make such investments, after which he will be chargeable with interest. Six months was held to be a reasonable time within which to make an investment, after the money had been received, although such time might be varied by circumstances.^ The guardian must provide for the support, mainte- nance and education of his ward, according to his condi- tion and estate. The amount suitable for such jjurpose will depend upon circumstances. He should not support his ward in idleness, when he is capable of earning his own living ; and, if he do so, he is liable to his ward for the amount unnecessarily expended, although he may thus support him while he is being educated and quali- fied for future usefulness ; because, in such case, the sum thus expended would be for necessaries.* The guardian must never draw from the principal of the ward's estate, so long as the income is sufficient for the purposes of support, maintenance and education ; and whenever it becomes necessary to expend anj^ x^art of the principal for such purpose, he should first get an order of court allowing it. The fact that the infant has a father living will not excuse the guardian from providing for the maintenance and education of his ward, provided such father is poor and unable to support him.^ It has already been remarked that the guardian has no control over the real estate of the ward extending to the incumbering or disposing of it. Where the ward has con- tracts for the x)nrchase of real estate, the guardian should sell them and invest the funds for the benefit of his ward, rather than pay up the amount due and take deeds ; for, ' 2 Van Sant. Eq. Pr., 305, citing 1 Eq. " 18 Paige, 152 ; 4 Sandf. Ch., 617 ; 6 Abr., 261 ; Edw. on Referees, 375. Paige, 136; 6 Johns., 566. ' 8 Barb., 48. » 22 Barb., 464. ' 1 Johns. Ch., 509. 324 ADMIOTSTRATION OF CIVIL JUSTICE. as already observed, lie lias no right to convert the per- sonal estate of his ward into realty-. ^ The guardian, as soon as he takes uppn himself the duties and responsibilities of his office, should proceed to make out an inventoiy of his ward's personal estate, its situation, and the manner of its disposition, and file the same in the office of the court appointing him guardian. This report is required to be filed within six months after his appointment, and is to be made out and filed annually thereafter.^ Any omission to do this would render him liable for costs, should any one, on behalf of the infant, make an application to compel him to discharge his duty.^ And besides, in the settlement of his accounts, every pre- sumption as to the justness or fairness of the same would be against him.* The guardian may be called upon to account at any time by the infant ward. This is done on the petition of a next friend in behalf of the infant. So, also, he may be required to give better security.^ Proceedings for the sale^ mortgage or lease of infant'' s real estate. This proceeding is by petition, and has not been affected by the provisions of the code. The supreme court has the authority conferred by statute upon the late court of chan- cery. This authority to sell, lease or otherwise dispose of the real estate of the infant rests upon the statute alone.® The court of chancery has no original jurisdiction to direct the sale of the real estate of infants.^ The Code has given jurisdiction to the county court of the county where the property of the infant is situated, to order the sale, mort- gage, or other disposition of his estate.^ The statute xirovides that any infant seized 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 — now the supreme court — for the sale or dis- position of his property, in the manner therein directed.' But the statute provides that no real estate or term for ' See 8 Barb., 48. « 6 Hill, 416. "See the old Chancery Rule, 154 : 2 '2 Ves'., 23; 1 Mol., 525; Macph. on Van Sant. Eq. Pr., 307 ; Edw. Ref., Inf., 311. 365, &c. " Code, g 30, sub. 6. I \ 2 Paige, 409. » 2 R. S., 191, § 170 : 2 N. T. S. at L., * 3 Id, 146. 202, § 170. " 1 Edw., 8. " PKOCEBDINGS BY AITO AGAINST INFANTS. 325 years shall be sold or disposed of in any manner against the provision of any last will, or of any conveyance, by which such estate or term was devised or granted to such infant.^ Whenever such an application is made, the court is required to appoint one or more suitable i^ersons guardians of such infant in relation to the proceedings on such ap- plication. The supreme court, by a rule, have further provided that an infant, by his general guardian, if he has one, and, if there is none, then by his next friend, may present a petition, stating the age and residence of the infant, the situation and value of his real and personal estate, the situation, value and annual income of the real estate proposed to be sold, and the particular reasons which render a sale of the premises necessary or proper, and praying that a guardian may be appointed to sell the same. The petition must also state the name and resi- dence of the x)erson proposed as such guardian, the rela- tionship, if any, which he bears to the infant, and the security proposed to be given ; and the petition must be accompanied by affidavits of disinterested persons, or other proof, verifying the material facts and ckcumstances alleged in the petition, and the infant, being fourteen years of age or upwards, must join in the application.'* Where the infant resides out of the state, the signing of the application by himself may be dispensed with.^ The written consent of the i)erson proposed as guardian should be indorsed upon or annexed to the j)etition, and proof of his signature should be produced.^ And where there are several infants interested in the same premises, as tenants in common, they should all join in the same petition, although they have several guardians.^ This application is made to the court at special term, and may not be made at chambers except when sitting as special term.^ The appointment of special guardian. The statute provides that on such application the court shall appoint one or more suitable persons guardians of such infant, in relation to the proceedings on such appli- * Idem, § 176. * 2 Van Sant. Eq. Pr., 318. 'Rule 66. 'Rule 69. ' Edw. Ref., 398. • 21 Barb., 348; Code, § 24. 326 ADMINISTRATION OF CIVIL JUSTICE. cation.^ The court have farther provided, by rule on this subject, that if it satisfactorily appear that there is reasona- ble ground for the application, an order may be entered appointing a guardian for the purposes of the application, on his executing and filing with the clerk the requisite security, approved of, as to its form and manner of execu- tion, by a justice of the supreme court, or a county judge, signified by his approbation indorsed thereon, and direct- ing a reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, or any and what part thereof, would be beneficial to the infant, and the particular reasons therefor ; and to ascertain the value of the property proposed to be sold, and of each separate lot or parcel thereof, and the terms and condi- tions on which it should be sold ; and whether the infant is in absolute need of an 3', and what part, of the proceeds of the sale for his support and maintenance, over and above the income thereof, and his other property, together with what he might earn by his own exertions. And if there is anj person entitled to dower in the premises who is willing to join in the sale, also to ascertain the value of her life estate in the premises, on the principle of life annuities.^ The statute further provides that the guardian shall give bond to the infant, to be filed with the register or assistant register (clerk of the court), in such penaltj^ 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 accounting for all moneys 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.^ And the court, by rule,* provide that such security shall be a bond, with two sufficient sureties, in a penalty of double the value of the premises, including the interest on such value during the minority of the infant, each of which sureties must be worth the penalty of the bond, over and above all debts ; or, a similar bond by the guardian only secured by a mortgage on unincum- bered real estate of the value of the penalty of the bond. ' 2 R. S, 194, § ni ; 2 N. T. S. at L., » 2 R. S., 194. § 172; 4 J. C. R., 378. 202. * Rule 68. * Rule 67, PEOCEEDmOS BY AND AGAINST INPANTS. 327 And where there are several infants, and the same sure- ties are on each of the bonds, they should justify each in an amount equal to the aggregate penalties of their seve- ral bonds to the several infants.^ The statutory requisition for security is imperative, and cannot be dispensed with for any cause,^ and it must be observed that the security, as to its form and manner of execution, must be approved of by a justice of the supreme court or a county judge, signified by his approbation indorsed thereon.^ The reference under the rule. The guardian must produce to the referee a certificate of the clerk that the requisite security has been duly proved, or acknowledged and filed agreeably to the order of the court ; which certificate must contain the name of the officer by whom it was approved, thus : " That the said bond was approved, as to its form and manner of execution, by A. B., a justice of the supreme court." On the presentation of this certificate, the referee is authorized to proceed in the matter of the reference, and not before.* The referee proceeds to discharge the duties thus imposed upon him in the same manner as in other cases of reference. In his report he is required to state the reasons why, in his opinion, a sale of the infant's estate is necessary or proper, and all other facts required by the order of reference. He does not report the testi- mony taken by him, but only the facts found, and the reasons for his opinions, when he reports a sale to be necessary or proper. This report is presented to the court at special term for its approval. The report of the referee being satisfactory, the court will make an order authorizing the guardian to contract for the sale or other disposition of the property, requmng him to report his doings in the i^remises to the court, which report of the referee is filed and ordered to be en- tered. Any contract which the guardian may make for the sale, &c., of lauds under such order, must be in writing, and should be signed both by himself and the purchaser ; and the contract should also state, that it is made subject to the ai)proval of the court. The guardian will not be authorized to execute any con- ' 4 How., 414. ^ Rules 6, 67, « 1 Edw. Ch., 507. * Rule 67. 328 ADMINISTEATION OF CIVIL JUSTICE. veyance of the land until he has made his report of the contract of sale, lease, &c., and has obtained the approval of the same by the court. His report of the contract made by him must be upon oath,^ and if the contract be con- firmed, a conveyance will then be executed under the direction of the court. And all sales, leases, dispositions and conveyances made in good faith by the guardian, in pursuance of such order, when so confirmed, become as valid and effectual as if made by the infant when of full age.^ At the time the court makes the order approving the doings of the guardian in the contract of sale, lease, &c., it also makes a further order for the application and disposition of the proceeds of such property, and for the investment of the surplus belonging to the infant, who is now a ward of the court ; and such further order also directs a return of such investment and disposition to be made upon oath, as soon as may be, and also that the guardian render periodical accounts. Doiver. If the referee has reported that there is a claim for dower in the premises, it must be satisfied after pay- ment of the costs and expenses of the proceedings.^ The provisions of the statute are, that if the real estate is subject to dower, and the person entitled consents in writ- ing to accept a gross sum in lieu of such dower, or the permanent investment of a reasonable sum in such man- ner as that the interest thereof be made payable to the person entitled to 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 to such dower in manner aforesaid.* But before such sum is paid, however, the court must be satisfied that an effectual release of dower has been executed.^ If the widow does not consent to accept such gross sum to be paid in lieu of her dower, the referee reports the fact, and reports further whether she consents in writing to the investment of a reasonable sum, as above stated ; and the order of the court, in that respect, will be according to the facts reported. The final report. The guardian after having consumated • 2 R. S.. 195, § 177. « Idem, § 181. » Idem, § 178. =■ Idem, is 182. '2R. S., 196. PROCEEDINGS BY AND AGAINST INFANTS. 329 the sale, mortgage, lease, &c., received the money, exe- cuted the conveyances and disposed of the proceeds accord- ing to the order of the court, must make his final report of all his doings in the premises, annexing thereto the receipts taken for costs, widow's dower, &c., and file the same with the court ; and for greater safety, he should obtain an order of the court confirming all such proceed- ings had by him in the premises.^ According to the former practice of the court, the special guardian, within six months after the order confirming the sale, must file in the oflice where the appointment of his guardianship is entered, a true and just inventory, under oath, of the whole real and personal estate com- mitted to his care or guardianship, and of the manner in which any funds under his care or control, belonging to the estate, are invested, stating the income and profits of the funds or estate, and the debts, credits and effects, so far as the same have come to his knowledge ; and annually thereafter he is to render an account, under oath, of his guardianship, and of the property belonging to his ward.* If he fail to do this, every presumption as to the justness and fairness of his accounts, in case of suit for settlement, would be taken against him,^ and he will be liable to the costs and expenses of proceedings for settlement, &c. Proceeding to obtain specific performance by an infant heir^ of the contract of his ancestor. By statute, an infant heir may be decreed to perform, specifically, a contract made by his ancestor, where the court is satisfied that such performance ought to be decreed or compelled. This proceeding is to supply a defect in the common law, which furnished no remedy against an infant in such cases until he should arrive at full age. The proceeding is hj petition, and it may be doubted whether the court would be authorized to administer the remedy in any other form, as the remedy is a statutory one and should be strictly followed. The statute provides that the court of chancery shall have i)ower to decree and compel a specific performance by an infant heir or other person, of any bargain, contract or agreement made by any party who may die before the i)erformance thereof, on ' 2 Van Sunt. Eq. Pr., 327, 328. ' 3 Paige, 146. » 2 Barb. Ch. Pr. 217 ; Ch. Rule, 154. 11—42 330 ADMINISTEATION OF CIVIL JUSTICE. petition of the executors or administrators of the estate of the deceased, or of any person or persons interested in such bargain, &c., and on hearing all parties concerned, and being satisfied that the specific performance of such bargain, &c., ought to be decreed or compelled.^ What court has jurisdiction. The supreme court now takes the jurisdiction conferred upon the court of chancery, and by the Code, county courts also have jurisdiction in. these cases.'^ So also, by the Laws of 1854,^ the court of common pleas of the city of ]N^ew York ; and the superior court of the city of Buffalo has the like jurisdiction within that city.* When a specific performance will be compeUed. A specific performance of an agreement, in such cases, will be decreed between the infant heir, or the personal representatives of a deceased contractor, and the surviving party to a contract, when such performance would have been decreed in an action between the original parties, if living, unless some intervening equities controlling the case have arisen subsequent to the death of the contrac- tor." It is a principle of equity, that the heirs of a vendor are bound to fulfill his contracts to convey to the extent of the estate that descends to them f and by statute, the in- fant heir is also bound to convey. But where a title to a part fails, or the vendor's interest is less than is provided for in the agreement, the vendee may claim a specific per- formance to the extent of the ability of the vendor, with an abatement or compensation for the deficiency.' The court will exercise a judicial discretion in compell- ing a specific performance of an agreement in these cases. If the contract is by a competent party, and in its nature and circumstances unobjectionable, a performance will be decreed as a matter of course.* But the court will not compel the infant to execute the deed with personal cove- nants.^ If the proceeding is by an executor to compel a purchaser to pay and take a conveyance from an infant ' 2 R. S., 194, § 169. • 1 Sugd. V. & P., 275, 320 ; 9 Paige, ' Code, § 30, sub. 7. 280 ; 2 Stor. Eq. Jr., § 788. ' L. 1854, 464, § 6. '17 Barb., 165 ; 11 Paige, 277 ; 2 Stor. * L. 1854, 226, § 9. Eq. Jr., § 279. ' See 17 Barb., 162, and Wilb, Eq. ' 3 Cow., 505 ; 17 Barb., 166. Jur., 269. » 5 Johns. Ch., 261 ; 17 Barb., 166. PROCEEDDfGS BY AND AGAINST INFANTS. 331 heir, the title must be free from doubt, for the court will not compel a j)urchaser to take a doubtful title. If the widow refuses to unite in the conveyance, leaving her dower estate outstanding in the premises, it will be deemed a reason- able excuse why the purchaser should not be compelled to fulfill. Bij ivliom the 'petition is to he filed. The statute provides that the infant may be compelled specifically to perform in such cases, on the petition of the executors or adminis- trators of the estate of the person deceased, or upon the petition of any person interested in such bargain, &c.^ Under the description of "any person interested, &c.," an infant heir, by his general guardian, may petition the court to decree a specific performance of a contract of purchase by his ancestor, by authorizing a conveyance to be made to the infant by the vendor, and directing the payment, by the general guardian, from the funds of the infant, or by mortgaging back the premises, to secure the payment of the balance of the purchase-money due.^ AYhen the survivor to the contract is a vendee, and a portion of the purchase-money remains due, the proi)er petitioner is the executor or administrator of the deceased ; because they are the parties entitled to the proceeds under the rule, that lands contracted to be sold are equitably converted into personal projjerty ; and the survivor to the contract, or his assignee, or, in case of his death, his per- sonal representative, is a proper petitioner for the enforce- ment of the contract of a deceased person against the infant heir. What the petition shoiild set forth. It should set forth all facts essential to show the party entitled to proceed under the provision of the statute. Thus, it should show the contract or agreement of the party deceased ; that the same remains unperformed on the j)art of such deceased party ; also, the decease of such party ; the relation of the infant heir to such party ; that the legal estate in such premises descended to such infant heir ; the readiness of the j^eti- tioner to perform such contract on his part ; in short, the petition should, in all respects, contain everything requisite to show the party entitled to the relief asked for, and should be verified by the oath of the petitioner, and should also be accompanied by the written consent of the person proposed to act as special guardian of the infant heir. ' 2 R. S., 194, § 1G9. * See 10 Barb., 432; 3 Johns. Ch., 597. 332 ADMDflSTRATION OF CIVIL JUSTICE. The presentation of the petition and the hearing. The statute authorizes tbe court to act in the premises "on hearing all parties concerned ;" consequeutlj^ all per- sons shown by the petition to be interested in the premises, should be duly notified of the time and place of presenting such petition, that they may have an opportunity of being heard. If, however, the petition should be presented with- out serving such notice, the order of reference would direct the referee to summons such parties before him that they might be heard ; in which case, his report must show that the order of the court in that respect had been fully com- plied with.^ The proper practice would be to set forth in the petition all the facts showing what parties are interested in the premises, and the nature and extent of that interest, as far as possible, and then give such parties the regular- eight days' notice of the application, accompanied with a copy of the petition ; and when such j)arties do not appear, they should also be duly notified of the reference and of the time and place for hokhng the same.^ Where the petition is presented. The petition must be presented at special term, where the proper order of refer- ence will be made ; and a special guardian of the infant heir will be appointed for the purpose of the application. These proceedings being similar to the proceedings on an application to sell an infant's real estate, reference is made to that part of this chapter.^ Proceedings to compel an infant trustee, or mortgagee^ to convey. The statute provides, that whenever anj'^ infant shall be seised or possessed of any lands, tenements or heredita- ments, by way of mortgage or in trust only, for others, the court of chancery, on the petition of the guardian of such infant, or on the petition of any person in any way interested, may compel such infant to convey and assure such lauds, tenements and hereditaments, to anj^ other person, in such manner as the said court shall direct.* This statute applies to cases where the infant heir takes by descent or inheritance from his ancestor, lands charged ' 2 Van Sant. Eq. Pr., 336. * 2 R. S., 194, § 167 ; 11 N. Y., 56; 6 ' Idem, 337. Barb., 499. * Posi. PROCEEDINGS BY AND AGAINST INFANTS. 333 witli a trust for some other person, and is designed to give a similar remedj^ against an infant heir which might be had bj^ suit against the adult heir, under the former equity practice, and which is now had by action under the Code. The adult heir inlieritiug lands charged with a trust, refus- ing to convey, when in equity he ought to do so, may be compelled by action ; under this statute, the infant heir may be compelled by petition. This statute contemplates that the conveyance may be voluntary or compulsory ; voluntary, when the order is made on the application of the infant by his guardian ask- ing for the liberty to convey ; compulsory, when made on the application of some party interested, asking an order that such infant heir do convey. In either case, the appli- cation is by petition, and is deemed a special proceeding under the Code.^ The petition is to be filed by the guardian of the infant heir, in case he asks for authority to convey, or hj some person interested, when it is sought to compel such con- veyance. The petition must set forth such facts as to show the authority of the court to make the order, and the right of the party in interest to have the order made. If there appear to be no conflicting interests, no liens or incum- brances in favor of the infant, the court will order the con- veyance as a matter of course ; otherwise, a reference will be ordered to ascertain the rights of the parties. When there is no general guardian, the necessary steps must be taken to have a special guardian, or a guardian ad litem appointed, which have been previously set forth in this chapter. The proceedings under this section of the statute, in the appointment of a guardian ad litem ; the order of reference and the proceeding thereunder ; the re- port of the referee and the confirmation thereof, and the order of conveyance, &c., have been fully stated in a pre- ceding part of this chapter — to which reference is made,^ — while treating of similar proceedings /or the sale, mortgag- ing or leasing of infanfs real estate. The order compelling infant heirs to convey cannot require them to assume obligations beyond those imposed upon them by the casting of the estate of the ancestor up- on them by the mere operation of law. They should be required to transfer to the party entitled the estate which the law casts upon them, and nothing more. ' 2 R. S., 194, § 167 i 11 N. Y., 56. » Ante. 334 ADMINISTRATION OF ClVHi JUSTICE. CHAPTER XXII. PROCEEDINGS FOR THE COLLECTION OF DEMANDS AGAINST SHIPS AND VESSELS. The statutes of 1862, repealing all prior acts upon the subject, provides that whenever a debt, amounting to fifty dollars or upwards, as to any sea-going or ocean-bound vessel, or amounting to fifteen dollars or upwards, as to any other vessel, shall be contracted by the master, oivner, charterer, huihler or consignee, of any ship or vessel, or the agent of either of them, within this state, for either work done or materials or other articles furnished in this state, for or towards tbe building, repairing, fitting, furnishing or equipping such vessel or ship ; or, for such provisions and stores furnished within this state as may be fit and proper for the use of such vessel, at the time when the same were furnished ; or, on account of the wharfage and expense of keeping such vessel in x^ort, including the expense incurred in employing persons to watch her ; or, on account of loading or unloading, or for advances made for the purpose of procuring necessaries for such ship or vessel, or for the insurance thereof; or, whenever a debt amounting to twenty-five dollars or upwards shall be contracted as above, within this state, on account of the towing or piloting of such vessel, or on account of the in- surance or i)remiums of insurance of or on such vessel, or her freight, such debt becomes a lien upon such vessel, her tackle, apparel and furniture, and is preferred to all other liens thereon except mariners' wages.^ In addition to the above, it is also provided that when- ever any ship or vessel shall have been run down or afoul of by any other ship or vessel, through the negligence or willful misconduct of those navigating such other ship or vessel, and shall thereby have sustained damages to the extent of fifty dollars, the owner of the ship or vessel so sustaining damage shall have a lien upon the ship or vessel causing the damage, her tackle, apparel and furni- ture, to the extent of such damage; and the master, owner, ' L. 1862, ch. 482, § 1 ; 4 N. Y. S. at L., 653. DEMANDS AGAINST SHIPS AND VESSELS. 335 agent or consignee of the ship or vessel damaged, may enforce the lien in the same manner and with the same effect as in case of other liens created by this act; but such jiroceedings must be commenced within ten days after the damage has been committed, or the lien will cease.^ It has been held that the provisions of this act granting privileges to certain descriptions of creditors by a specific law, applicable to specific cases, in derogation of the com- mon law, cannot be extended or enlarged by construction.^ The expiration of such lien. This lien ceases at the expi- ration of six months after the debt was contracted, unless at the time when the six months expire, the ship or vessel is absent from the port at which the same was contracted, in which case the lien is to continue until the expiration of ten days after the return of such ship, &c., to said port. In all cases such debt ceases to be a lien upon such ship or vessel, whenever such ship or vessel leaves the port at which the debt was contracted, unless the person having such lien, within twelve days after such departure, causes to be drawn up and filed specifications of such lien, which may consist either of a bill of particulars of the demand, or a copy of any written contract under which the work may have been done, with a statement of the amount claimed to be due from such vessel, which must be verified by the oath of the person, his legal representative, agent or assign.^ This departure from the port, to take away the lien, must be upon a voyage or trip in the pursuit of its regular business. The departure from port upon a mere trial trip is not sufiicient.* ^ To what descr'ijytion of craft the term " shij^s and vessels " apjylies. Under the provisions of the Eevised Statutes, which used the term ship and vessel in the same general sense it seems to be used in the act of 1862, it was held that the term " ship or vessel " did not include a canal boat fitted for the purpose of navigating the canal by steam.^ It was held by Bkonsox, J., tbat the provisions of the Revised Statutes were applied to ships and vessels which navigated the ocean, and such as only required to have a coasting license under the laws of the United States.® * Idem. 661, ^ 33. ' As to vessels navigating the Western ' 2 mil. 220;"^ 3 N. Y., 438. and Northwestern lakes, see Laws ' 4 N. Y. S. at L., 654, § 2; L. 1862, 1863, ch. 422. ch. 482, § 2. • 5 Hill, 34; sec, also, 17 Barb., 523. « 6 Hill, 494. 336 ADMTNTSTRATION OF CIVIL JUSTICE. The law of 1862^ discriminates in the amount of the demand entitling a party to a lien upon a ship or vessel, whether the vessel be a sea-going or ocean-bound vessel, or not; in the former case fixing the minimum amount at thirty-five dollars, and in the latter at fifteen. But this definition does not probably enlarge the definition of the term ship or vessel. Under the provisions of the Kevised Statutes, it was held that a steamboat, enrolled as a vessel, and of such burden as to need a license for the coasting trade, though used as a traveling theatre, was within the meaning of the act.^ Vessels of twenty tons burden and upwards are required to be licensed.' Where such specification must he filed. The specification of the lien above required, must be filed in the office of the clerk of the county in which the debt was contracted, except where such debt was contracted in either of the counties of ISTew York, Kings or Queens, such specification must be filed in the oflSce of the clerk of the city and county of New York.* ApplicoMon for a warrant against any such ship or vessel. The act provides that any person having such lien upon any ship or vessel, for any debt contracted as above, may make application to any officer authorized by law to per- form the duties of a justice of the supreme court at chambers, in the county in which said ship or vessel shall then be, for a warrant, to enforce his said lien and to col- lect the amount thereof.^ It has been held under the old law, that an attachment did not lie against a vessel, under the statute authorizing these summary proceedings, at the suit of a sub-coii tractor, for work done and materials found at the request of the builder. That the attachment lay only where the debt was contracted by the owner, agent, master or consignee of the vessel ; and that the builder was not included in the above class.^ That such builder was not an agent, for he had no authority to bind any one but himself.^ But the UN. T. S. at L., 653; L. 1862, ch. ' 4 N. Y. S. at L., 654, § 3 ; L. 1862, 482. ch. 482, § 3. ' 7 N. Y., 508 ; see 2 Sandf., 395. » Idem, § 4. ' Bioren's L. U. S., 332 to 334. • 20 Wend., 181. DEMAXDS AGAINST SHIPS ANT) VESSELS. 337 law of 1862 includes also the builder, as well as the others named in the old law.^ A vessel built under a contract to build and deliver at a future day, belongs to the builder while the contract is executory, and a person furnishing him materials for the same has a lien, which he may enforce against the pur- chaser.^ It has been held, however, that it must appear satisfactorily that the materials claimed to have been fur- nished for the vessel were actually incorporated into it ; that they were used in its construction as well as ordered by the builder for it. That delivery at the ship yard pur- suant to an order was not suflicient.^ The whole theory of a lien for labor and materials rests upon the basis that such labor and materials have entered into, and contri- buted towards, the production or equipment of the thing upon which the lien is impressed. This imposes upon the materialman the necessity of seeing that the materials are applied to the purpose for which they are procured, if he designs to sell upon a lien given to him. The act gives him a privilege over all general creditors, on the footing that the articles have contributed to the making of the ship. It is not, therefore, asking too much, that he shall look to the application of what he furnishes, if he intends creating a statutory lien.^ Where materials are furnished for two vessels, and the contract does not specifically appropriate them, they may be considered as furnished to that vessel in the construction of which they were used.* The statute of Maine in this particular is substantially like our own." The application for a warrant must be in writing, and specify l)y tvhom the debt was contracted, and for ivliat ship or vessel; the items comjyosing the debt; the amount claimed, and that the same is justly due to the person in ivhose behalf the application is made, over and above all payments and just deductions ; any assignment or transfer of such debt, if any such has taken place ; and when and ivherc the specijica,- tion of such debt was filed. This application must be verified by the afiidavit of the creditor, or of the person ' 4 N. Y. S at L., G54, § 1 ; L. 1862, * Justice Hoffman in Hiscock v. Ila/r- ch. 482, § 1. heck, 2 Bosw., 510. » 25 Barb., 26; aflf'd 20 N. T., 181; '2 Curtis C. C, 421 (Maine), see, also, 11 N. Y., 35. " Hoffman, J., 2 Bosw., 511. • 2 Bosw., 506. II.— 43 338 AD3IINISTRATI0N OF CIVIL JUSTICE. iiiakiiig the application, or of liis or their agent in that behalf.' The application for a warrant of seizure will be sufficient in that respect, if it states in the alternative that the debt was contracted by the party, naming him, and designat- ing- him, in the words of the statute, as " master, owner or^ageut," without specifying in which character he acted.^ Under the provision of the statute requiring that the apphcation should state the items composing the debt, it is sufficient to state that " the debt was contracted for ma- terials furnished to the steamboat Virginia, at the port of ISTew York, in this state, and that the account annexed contains the items composing said debt," where such account is attached to the application, and contains in detail the articles and the tunes when fm-nished.^' The warrant of attachment. The officer to whom such application is made must thereupon issue a warrant to the sheriff, specifying the amount of the claim, and the names of the persons making such claim, and commanding him to attach, seize and safely keep said ship or vessel, her tackle, apparel and furniture, to satisfy such claim, if established to be a lien upon such vessel, according to law, and to make return of his pro- ceedings under such warrant to the officer who issued the same, within teu days after such seizure.* Before such warrant of attachment can be issued, the j)erson applying therefor must deliver to the officer to whom the application is made, to be filed by him, an undertaking to the effect that if the said applicant do not, within the time hereinafter specified,^ prosecute any bond which may be given upon the discharge of such warrant ; or, if the said applicant, in any action brought upon such bond, be finally adjudged not to have been entitled to such warrant, the parties giving such undertaking will pay all costs that may be awarded against such apphcant, not exceeding the sum specified in such undertaking — which must be at least one hundred dollars — and any damages that may be sustained by reason of the seizure of such ' 4 N. Y. S. at L., 655, § 5; L. 1862, * 4 N. Y. S. at L., 655, § 6; L. 1862, ch. 482, § 5. Ch. 482, § 6. » 7 N. Y. 508, aflf'g 3 Sandf., 572. » Idem, 8 11 ' 7 N. Y., 512. DEMAimS AGAINST SHIPS AND VESSELS. 339 vessel under such warrant, not exceeding the sum of fifty dollars. This undertaliing must be executed by the appli- cants, or one of them, or their agent, and at least one surety, who must be a resident and householder within the state, and such undertaking must be approved by the said ofhcer.^ The execution of such loarrant. The application having been made in due form, and the proper undertaking having been executed and approved by the officer to whom the application is made, the war- rant is immediatelj' issued to the sheriff, who must proceed forthwith to execute the same, by attaching, seizing, and safely keeping such vessel, as directed in the warrant.^ And the person making application for such warrant, must, within three days after the issuing of the same, cause notice to be published, once in each week for four successive weeks, in some newspaper published in the county in which such vessel may then be, or, if no news- paper be so published in such county, then in the nearest county in which a newspaper is so published, setting forth that such warrant has been issued, the amount of the claim specified therein, the day when such warrant was issued, and that such vessel will be sold for the payment of the claims against her, unless the master, owner or con- signee thereof, or some person interested therein, appear and discharge such warrant according to law, within thirty days trom the first jiublication of such notice.^ The sheriff" must make a return of his proceediugs under such warrant to tMe officer who issued the same, within ten days after such seizure ; and in such return, he must state whether he has seized such ship or vessel by virtue of any other warrant or warrants ; and, if so, he must specify in whose behalf, and for what sums, such other warrants have been issued, resx)ectively, and the time of his recep- tion thereof.* The discharge of the icarrant. The owner, consignee, agent or commander of such vessel, or any person interested in the same, may, at any time prior to the sale of such vessel, procure a discharge » Idem. § 7. = Idem, § 9. " Idem, § 8. * Idem, § 6. 340 ADMINISTKATION OF CIVIL JUSTICE. of siicli warrant, by the following proceeding : He must apply, in person or by attorney, to the officer who issued the warrant, on one day's notice to the attaching cre- ditor or his attorney, for an order to discharge the same. Such notice must specify the names, places of residence and places of business of the sureties proposed. And he must deliver to such officer his bond to the creditors prose- cuting such warrant, in a penalty at least double the amount specified in the warrant, conditioned that the obli- gors therein will pay the amount of any and all claims and demands which shall be established to be due to the person or persons in whose behalf such warrant was issued, and to have been a subsisting lien upon such vessel pur- suant to the provisions of the statute, at the time of exhibiting the same. This bond must be executed with sureties, and the attaching creditors have a right to examine them as to their sufficiency, at such time and place as the officer shall appoint.^ Such bond being executed and delivered to such attach- ing creditor or his attorney, and the taxed fees of the sheriff having been paid, the officer issues his order that said war- rant be discharged ; and thenceforth no farther proceedings against the vessel so seized can be had under these provi- sions, founded upon any demand secured by the bond so given in discharge of such attachment.^ Further iwoceedings ivhere no bond is given. If neither the owner, consignee, agent, commander, or any person interested in such vessel so seized, appear within thirty days after the first publication of the notice required in section nine, and procure the discharge of SHch warrant, and if the creditor, who has properly exhibited his claim against such vessel, shall not have been satisfied, such creditor, upon producing to the officer issuing such warrant due proof of the publication of such notice, may require the officer to issue his order to the sheriff keeping such vessel under such warrant, stating the amount deemed necessary to be raised to satisfy all unsatisfied liens which have been exhibited against such vessel, and directing the sheriff to proceed and sell such vessel, her tackle, apparel and furniture. This order of sale may be issued at any time after the seizure of such vessel, in the discretion of the officer, upon proof of personal service of the notice ' Idem, §§ 10, 11. » Idem, § 12. DEMANDS AGADJrST SHIPS AND VESSELS. 341 required by the ninth section of this act, and of notice of the application for sale, upon the owners of the vessel, and upon all other unpaid creditors, who have filed their speci- fications of liens pursuant to these provisions.^ Within ten days after the service of such order, the sherift', unless such order is sooner vacated, is required to proceed to sell the vessel so seized by him, her tackle, apparel and furniture, upon the same notice, in the same manner and in all respects subject to the provisions of the law in case of the sale of j3ersonal property upon execu- tion,^ and the sheriff is to return to the officer granting such order, his proceedings under the same ; and the pro- ceeds of such sale, after deducting his fees and expenses in. seizing, preserving, watching and selling such vessel, when duly taxed, are to be retained in the hands of the sheriff' to be distributed and paid as thereinafter provided.^ Notice of the distribution of the proceeds. At the time of issuing such order of sale, the officer granting the same must likewise order a notice to be pub- lished in the same paper in which the notice of seizure is requk'ed to be published, once a week for three weeks, which notice must require all persons who have any liens upon such vessel by virtue of these provisions of the statute, and the master, owner, agent or consignee, and all other persons interested therein, to appear before him at a day to be therein specified, not less than thirty, and not more than forty days from the first publication of such notice, to attend a distribution of the proceeds arising from the sale of such vessel, her tackle, apparel and furniture. The officer may likewise, in his discretion, direct that such dis- tribution be made before a referee to be appointed by him on notice.^ Hoio other creditors may establish their claims in such case. The proceeds of the sale of such vessel remaining in the hands of the sheriff as above provided, until distributed, stand in the place of the vessel itself,^ and the object of requiring notice of distribution to be published as provided in the eighteenth section, is to give other creditors an ' Idem, § 15. " Idem, 658, § 18. ' Arde, pp. 49, 50, et seq. ^ Idem, § 19. » 4 N. Y. S. at L., G58, g§ 16 and 11. 342 ADMmiSTKATION OF CIYIL JUSTICE. opportunity to present and establish their claims under these provisions. Prior to such distribution, any person entitled under these provisions to enforce a hen against such vessel, may enforce the same against these proceeds in the hands of the sheriff, by adopting the same means he would to enforce his lieu against the vessel which these proceeds represent.^ How such dahns may he contested. At any time before a final distribution of these proceeds, the master, owner, agent, consignee, or any other person having any interest whatever in these proceeds, may con- test any claim whatever presented or exhibited against such vessel or the proceeds thereof.^ The person seeking to enforce a lien against such vessel or the proceeds, is required to exhibit his application to the oflQcer, specifying by whom and when such debt was con- tracted, aud for what ship or vessel ; the items composing such debt ; the amount claimed, and that the same is justly due to the person in whose behalf the application is made, over and above all payments and just deductions ; and when there has been any assignment, he must state the same, and when and where the specification of such debt was filed, which must be verified by the affidavit of the creditor, or of the person making the application, or his or their agent, in his or their behalf.^ This constitutes the claimant's declaration or complaint. In case of any contest by the master, owner, &c., or any person having an interest in the proceeds, the contestant is required to file a written statement or answer, designat- ing the claims he desires to contest, and also controverting such allegations of the petition exhibiting such claim, as he may be able to controvert, and likewise setting uj) any other matter of defense thereto ; which statements and allegations of the contestants are to be verified by the aflfi- davit of the party presenting them, to the effect that the same is true to the best of his knowledge or belief.* A copy of these statements and allegations must be served upon the person whose claim is intended to be contested, or his attorney, within five days fi-om filing the original Idem, I 19. = 4 N. Y., S. at L., 655, § 5 ; L. 1862, ' Idem, g 20. ch. 482, § 5, * Idemi, § 21. DEIYIANDS AGAINST SHIPS A^TD ^TESSELS. 343 with the officer, otherwise the contest will be deemed to have been abandoned.^ In this manner the issue is formed. If the answer do not contain matter of defense to the claim contested, it may be stricken out on motion of any i)erson who has exhibited any claim against said vessel or such proceeds.^ If a valid issue is formed, it is to be tried before a judge in the same manner as other issues which are authorized by law to be tried before a judge, and at some early day, to be fixed by the officer who issued the warrant : or the officer may refer the issues to a competent referee, to hear and determine the same, in the same manner as in civil actions.^ The statute providing that such issue shall be tried be- fore a judge, in like manner as other issues, &c., is not very definite as to what judge shall try such issue. It would seem to contemplate that the judge might be some person other than the officer who issued the warrant. The law providing for the issuing of the warrant i^rovides that the application may be to any officer authorized by law to per- form the duties of a justice of the supreme court at cham- bers, in the county within which such ship or vessel then is.^ By statute, supreme court commissioners are author- ized and required to perform all the duties, and to execute every act, i)ower and trust which a justice of the supreme court may perlbrm and execute out of court according to the rules and practice of such court, and pursuant to the provisions of any statute in all civil cases, except as other- wise therein provided.^ The same statute further provides, that every recorder of a city, and every judge of the county courts of any county, being of the degree of counselor in the supreme court, shall, by \'irtue of their resiDective offi- ces, be supreme court commissioners, and they are author- ized and required to perform all the duties thereof, &c.'^ So likewise, the judges of the superior court of law in the city of New York are invested with the same authority.'' The office of supreme court commissioners as such, has been abolished,^ but the authority, duties and powers there- of, are still exercised by other judges. By the amended » Idem, 8 21. '2 R. S., 280, § 18 ; 2 N. Y., S. at L., « Idem, § 22. 290. * Idem, § 2:^. * Idem, § 32. * Idem, § 4. " Idem, ^ 33. • Const. 1846, § 8, art. 14. 344 ADMimSTKATION OF CrV^LL JUSTICE. judiciary act/ a county judge lias the authority; also, imder the Code.^ Trial before the judge. The issue is to be tried in the same manner as other issues authorized to be tried before a judge. If the issue iuvolved the question of the validity of the lieu upon the vessel, the claimant must not only prove the existence of the debt contract by the officer or person designated by the statute, but he should also prove that the materials fur- nished were used in the vessel. Delivery at the shipyard is not sufficient.^ Distribution of the proceeds. When the amount of all the claims exhibited and fonnd to have been subsisting liens upon such vessel at the time of exhibiting the same, shall have been finally determined, the said proceeds are then to be distributed by the court according to the directions given in the eighteenth section of the act, on the motion of any party interested therein or otherwise.* The claims exhibited are to be paid in the order of the delivery of their respective warrants to the sheriff, where they are found to be subsisting liens upon the vessel or the proceeds thereof at the time of such delivery.^ When there are among them contested claims, the uncontested claims, which are prior to the contested ones, are to be jjaid, on motion of the parties interested, in the order of their respective priorities, notwithstanding such contest ; aud where it shall appear that after the payment of all prior uncontested claims and their respective costs, and all prior contested claims and their costs, that there will still be a surplus of such proceeds applicable to the pay- ment of any subsequent uncontested claims, such claims may, on notice to the owner or agent of the vessel, or other parties interested, be ordered to be paid out of such surplus, together Avith costs.^ The court is also empowered to invest the proceeds of the sale of such vessel according TO its practice." ' 4 N. T., S. at L., 586, § 27, (1848). ^ Idem, § 19. ^ MOl, svM. 3. « Idem, § 25. ' 2 Bosw., 506. ' Idem, § 26. * N. Y. S. at L., 659, § 25. DEMAOT)S AGAINST SHIPS AND VESSELS. 345 After the payment of all claims exhibited which have been found to be payable out of the proceeds, &c., if a surplus remains on hand, it may be distributed by the court to the persons entitled thereto, after publishing notice, specifying the amount of such surplus proceeds, the names of the persons applying therefor, together with the name of the ship or vessel trom which the same arose, and the date of the sale of such vessel, once a week for four successive weeks in some newspaper published in the county in which such vessel was sold, or, in case no news- paper be so published in said county, then in the nearest county in which a newspaper is so pubUshed,^ Action upon the bond given for the discharge of a warrant under these ^yrovisions. The bond given for the discharge of the warrant issued by the officer according to the provisions of the statute in these cases provided, is conditioned that the obligors will pay the amount of any and all claims and demands which shall be established to be due to the person or persons in whose behalf such warrant was issued, and to have been a subsisting lien upon such vessel pursuant to these pro- visions, at the time of exhibiting the same.^ Preparatory to bringing an action upon such bond, the claim must be made out and exhibited to the obligors of the bond, and a demand of payment made ; which, if re- fused, a breach of the condition of the bond occurs, when an action may be commenced thereon, in any court having jurisdiction, within three months after the delivery of the bond in discharge of such warrant.^ The commencement of the action, and the proceedings therein, will be the same as in other civil actions. Though the statute requires a bond, with the condition that the obligors shall pay all such claims exhibited which shall be established to have been subsisting liens upon such vessel, pursuant to the provisions of this title, at the time of exhibiting the same, respectively, yet the omission in the condition of all after the word "liens," does not invalidate the bond. It was held that where the bond was voluntarily executed by the obligors broader than required by the statute, and of which they had had the full benefit, " Idem, §§ 30, 9. ^ Idem, § 12. " 4 N. T. S. at L., § 11. n.— 44 346 ADIMTNISTKATIOIT OF CIVIL JUSTICE. they could not object on that account, and the obligees certainly could not, and that, therefore, an action was maintainable on such bond.^ In an action on such bond, the only questions are as to the nature and amount of the claim exhibited, and whether the claim was a subsisting lien at the time of exhibiting the same.^ The existence of such hen must be established by the plaintiff on such trial. Establishing it before the officer is not sufficient.^ The plea of general performance has been held, under the old practice, to be an inappropriate plea, although if issue were taken upon it, the defendant might be allowed to introduce any evidence tending to establish it, or to disprove the existence of the lien.^ Under the Code, the plea or answer would be according to the facts, as in other cases. The bond being given to several attaching creditors, It has been held that the bond must be sued in the name of all, but that they might act jointly or separately in the suits.^ That doctrine has been overruled, and it is now held that a single creditor may maintain an action thereon in his own name.^ If, on the trial of said action, it be found that any sum was due to the plaintiff, which was a subsisting hen upon such ship or vessel at the time of exhibiting the claim against the vessel, judgment is to be rendered that the plaintiff recover the same, with the costs and allowances of the action, and costs of the attachment in which the bond of discharge was given, and that he have execution therefor. But if it be found that no subsisting lien existed in favor of the plaintiff at the time of the exhibi- tion of his claim, then judgment is to be rendered against him for the costs of such action, and also for the costs of the proceedings in attachment, including the amount of the sheriff's fees due and paid on releasing such vessel from the warrant.^ The costs. In addition to the disbursements, the costs of the attach- ment are as follows : For fihng specification of Uen, two ' 26 Wend., 502, 510. ♦ 2 N. T., 388 '21 Id, 260. » 4 N. T. S. at L., 13. » 19 Id., 527. DEMANDS AGAINST SHIPS AND VESSELS. 347 dollars ; for exliibiting lien and procuring a warrant there- for, when the amount of the lien is under fifty dollars, ten dollars ; when the amount of the lien is over fifty and under two hundred and fifty dollars, twenty dollars ; when the amount of the lien exceeds two hundred and fifty dol- lars and is under one thousand dollars, thirty dollars ; and when the amount of the lien exceeds one thousand dollars, fiftj' dollars. For attending to the discharge of a warrant upon a bond, ten dollars. The sheriif' s fees, besides his expenses, are : For serving warrant, one dollar ; for returning same, one dollar ; for expenses of keeping such vessel in custody, the necessary sums paid by him therefor, not exceeding the sum of two dollars and fifty cents per day for each day the vessel should be held by him in custody. He is not to be al- lowed expense of custody upon more than one warrant at one time. All costs, disbursements and fees must be veri- fied by affidavit, and be adjusted by the officer who issued the warrant.^ The lien "may he assigned. A lien against any ship or vessel, where the specifications thereof has been duly filed in the office of the clerk of the county in which such debt was contracted, or where the debt was contracted in either of the counties of Xew York, Kings or Queens, in the office of the clerk of the city and county of New York, may be assigned and trans- ferred by an instrument in writing, duly acknowledged and filed in the same office where the original specifications of such liens were filed. Such assignment must specify the debt intended to be transferred, and specify the date of the filing the specification thereof, and state to whom it is intended to transfer it.^ It is the duty of che clerk in whose office such transfer is duly filed, to note such transfer and the name of the person to whom the transfer is made, opposite the original entry of such lieu. After the filing of the assignment and transfer as above, the assignee of the lien may enforce it in his own name.^ Proceedings to obtain a discharge of sicch lien. When the specification has been duly filed in the office of the clerk, and no warrant has been issued to enforce » 4 K T. S. at L., § 14. » 4 N. Y., S. at L., 659, § 27 ; L. 1862, ch. 482, § 27. 348 ADMimSTEATION OF dVTL JUSTICE. tlie lien against the vessel, any person owning or interested in the ship or vessel, may apply to any justice of the supreme court for leave to discharge such lien upon giving bonds therefor. Such application must be in writing and must set forth the amount of the lien claimed to be sub- sisting, and the grounds of defense thereto ; it must, also, set forth the names of -two persons proposed sureties for such lien, with their respective residences and places of business, which sureties, if leave to bond be granted, jus- tify on notice to the persons having the liens, before the officer granting such leave.^ Upon the presentation of such application together with proof that a copy thereof, with at least five days' notice of the time and place of presenting the same, has been duly served upon the person having such lien, such officer may, if no just cause be shown in opposition thereto, grant leave to bond the said claim.^ And upon the execution and delivery of such bond to the person having such lien — which bond must be according to that prescribed in the seventh section of this act, and must be approved by the officer — the officer must order that said lien be marked by the clerk as discharged when the lien ceases.^ The bond said to be prescribed in the seventh section of the act, is only alluded to in that section, but is prescribed in the eleventh section, the condition of which is, that the obligors therein will pay the amount of any and all claims and demands which shall be established to be due to the person or jjersons in whose behalf such warrant was issued, .and to have been a subsisting lien upon such vessel, pur- suant to the provisions of this act, at the time of exhibit- ing the same.^ Power of the officer in these lyroceedings^ over the sheriff. The officer having jurisdiction in the i)roceedings where a warrant has been issued, has power to require any sherifi" to whom the warrant of attachment was issued and deli- vered, to return such warrant with his proceedings thereon, and to pay over any moneys in his hands, and to take any steps necessary for the safety of the vessel ; and he may enforce his orders to the sheriff in this respect, in case of disobedience, by attachment, on application of any person interested in the same.'' > 4 N. T., S. at L., 660, § 28. ^ Idem, §§ 7, 11, 29. " Idem, § 29. « Idem, § 32. DEATH, disco\t:ry OF. 349 Appeals. Either party lias the right to except to and appeal from the report of any referee trying an issue referred to him in these proceedings, or to the decision of the judge, as in civil actions.^ CHAPTER XXIII. PROCEBDLNGS TO DISCOVER THE DEATH OF PERSONS UPON WHOSE LIVES ANY PARTICULAR ESTATE MAY DEPEND. Any person entitled to claim lands or tenements, after the death of any other person having any prior estate therein, may, once in each year, apply by petition to the supreme court for an order that the person upon whose life such prior estate depends be produced and shown in the manner provided by statute,^ by the guardian, husband, trustee or party having the custody of such other person, or of his estate, or who may be entitled to such custody.^ The petition. The petition must state : 1. the interest of such appli- cant in the lands or tenements described therein; 2. It must also state that he has cause to believe and does believe that the person upon whose life such prior estate depends is dead, and that his death is concealed by the party against whom the application is made.^ This peti- tion must be verified by affidavit, and a- copj^ must be served upon the person against whom the application is intended to be made, with at least fourteen days' notice of the time and i)lace at which the same is intended to be presented.^ No sufficient cause appearing why the prayer of the petition should not be granted, and upon proof of the due ' Idem, § 24. ' Idem, § 1. • laem, g Z4. - laem, j^ i, ^ Tit. 8, 2 R. S., 343, §§ 2, Ac. ; 2 N. ' Idem, § 2 Y. S. at L., 354, § 2, &c. ' Idem, \ 3 350 ADMES^ISTEATION OF CIVIL JUSTICE. service of the requisite notices, the court will proceed to order the party against whom the petition is exhibited to produce and show the person upon whose life such estate depends, at such time and place, and to such referee or referees* of the court as are named in such order.^ A cer- tified copy of this order must be served upon the party against whom it is issued, at least fourteen days prior to the time named in the order, at which the person is required to be produced. At which time and place the referee or referees must attend for the piu'pose of attend- ing to the execution of such order; and such referee or referees have power to take proof by the examination of witnesses to be sworn by them, as to the identity of the person upon whose life such estate depends.^ Examination of witnesses before the referees. The referee or referees attending at the time and place named in the order, proceed to ascertain whether the per- son ujjon whose life the estate depends, is described in the petition. For the purpose of ascertaining the identity of the person produced, they cause witnesses to be subpoeDaed and brought before them, which subpoenas are issued and served in the same manner as in usual cases of reference. These witnesses are sworn and examined by the referees.^ When habeas corpus may issue. If the person required to be produced is confined in jnison, or is detained hj any other i)erson, these facts being made to ai)pear to the satisfaction of the referee, on due proof by athdavit, a writ of hadeas corpus will be allowed to issue out of the supreme court to bring the body of such person before such referee, which writ is to be served and executed in the same manner as such writs to inquire into the cause of the detention of any person ; and the law in relation to obedience to such writ is made applicable to the writ issued under these provisions.* * The R. S. says: "To such master of the court, or commissioner or commis- sioners, not exceeding two, as shall be named in such order." 'Idem, §4. ' Idem, §§ 5, 6. * Idem, § 5. •• Idem, § 7 ; see ante, 206. DEATH, DISCOVERY OF. 351 Return of referee. When the person is duly produced before the referee, and is identified, the referee will make his return to the court, stating that the person upon whose life, &c., the prior estate in the lands, &c., mentioned in such petition, de- pended, was produced pursuant to the order of the court ; and if such referee was personally acquainted with such person, or if his identity was proved by other witnesses, he should report according to the fact ; and in case testimony was taken, should report the same by setting it forth in his report. And if the person was not produced, such fact should be stated in the return.^ Upon the return and filing of the report of the referee, when it shall appear that the order of the court has been complied with, the proceedings are to be discharged, and an entry of the return is to be made upon the minutes of the court ; and an order that the costs of the proceedings be paid by the applicant should be obtained and entered.'* Where it appears by the return that the person was not produced, and there is proof of the due service of notice of the order made in the premises, upon the party against whom it was issued, as herein required, the statute pro- vides that in such case the person shall thereafter be taken as dead, and the party entitled may forthwith enter upon the lands and tenements in the same manner as if the person were actually dead.^ 'When the person to be lyroduced resides beyond the jurisdiction of the court. When the person upon whose life such estate depends resides out of the state, and the party against whom this proceeding is instituted shall, by atfidavit, make it appear to the court, in any stage of the proceedings, that the said person is, or lately was, at some place certain beyond the sea, or elsewhere out of the state, the proceedings must cease, unless the party prosecuting the same will, at his own cost and charges, obtain a commission to be issued out of the court, to be directed to one or more commis- sioners, to be appointed for that purpose by the coiu't, residing at the i)lace abroad named, to obtain a personal view of such person.* ' Idem, § 8. ' Idem, g 10. " Idem, § 9. * Idem, g 11. 352 ADMTNTSTKATION OF CIVIL JUSTICE. If the commission is appointed, notice must be served upon the opposite party for a period varying according to the place where its inquisition is to be held. If it be in either of the states of the Union, or in either of the Canadas, at least two months' notice must be given ; if within either of the West India islands, at least three months' notice must be given ; and for all other places at least four months' notice must be given.^ The commis- sioners thus appointed abroad possess the same powers and proceed in the same manner as if acting within this state, in this proceeding.^ And their return is to be re- ceived by the court, and the effect of their return is to be the same as if made by a referee of the court within this state.^ Other proof that such person is still living, Notwithstanding such person may have not been pro- duced before such commissioners, the party against whom such proceeding is instituted may show to the court, by affidavit, that the i)erson is or was living, at the time of any return made by any commission appointed under these provisions, and that such party used his utmost endeavors to procure the attendance of such person before the commission, according to the exigency of the order, but that he could not produce or compel the attendance of such jjerson.* And the court, being satisfied of the truth of such representation, may order an entry to be made upon the minutes, declaring that there is no reason to presume the death of such person, and that all further proceedings on such api^lication cease.^ Evidence. A copy of any entry made in the minutes of the court in this proceeding, duly certified, is to be received as evi- dence of the facts therein stated, in all the courts of the state.® Costs, when not otherwise provided for in this act, are to be adjudged to either party, in the discretion of the court."' ' Idem, § 12. ^ Idem, § 16. » Idem, § 13. » Idem, § 17. " Idem, § 14. ^ Idem, § 18. ♦ Idem, § 15. PAETITION. 353 Hestoraiion of the estate. When a party bas taken possession of any estate under the provisions of this act, upon the presumption of the death of the person upon whose life such estate depended, aud it shall subsequently be ascertained in any action that such person is still living, the premises is to be restored to the party entitled,^ and the person so evicted, or his executors, &c., may recover the full profits of the estate during the time of such eviction, &c.^ CHAPTER XXIY. PAKTITION. The statute provides that where several persons shall hold and be in possession of any lands, tenements, or hereditaments, as joint tenants, or tenants in common, in which oue or more of them shall have estates of inheritance, or for life or lives, or for years, any one or more of them, being of full age, may apply for a division and partition of such premises, according to the respective rights of the Ijarties interested therein ; and for a sale of such premises, if it shall appear that a partition thereof cannot be made without great prejudice to the owners.^ Whether, since the Code, the proceediug for partition must be by action, or whether the proceeding by petition may also be adopted has not been definitely settled. The better opinion seems to be, however, that the proceeding should be by action under the Code.* The Code declares that the i)ro visions of the Eevised Statutes relating to the partition of lands, tenements and hereditaments held by joint tenants or tenants in common shall apply to actions for such i)artition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form.^ Since it has been questioned whether a proceeding in partition commenced by petition is now valid, and the ' Idem, § 19. ♦ 17 N. Y., 218; 25 Barb., 336; St « Idem, § 20. Barb., 22. » 2 R. S., 317, § 1. » Idem, § 448. n.— 45 354 ADMIXISTEATIOK OF CIVIL JUSTICE. supreme court refused to compel a purchaser under such proceedmg to perfect his purchase, because of the doubt as to the validity of such a proceeding,^ it is advisable to com- mence such proceedings as an action under the Code, the practice in which will be similar to the former practice in the court of chancery, where the proceeding was by bill. What courts have jurisdiction. The sui)reme court suc- ceeded to the equitable powers of the court of chancery, and thus has general jurisdiction of an action for the partition of real estate.^ The county courts have also jmlsdiction of such action.' The superior court and the court of common pleas of the city of New York, when the premises are situated in that city, have jurisdiction, irre- spective of the residence of the ijarties interested.* The same jurisdiction is also conferred upon the superior court of the city of Buffalo, when the premises are situated in that city ; also the mayors' and the recorders' courts of cities have the like jurisdiction, when all the defendants reside within the city in which the court is situated.^ The x>^t-intiff in. partition ynust he of full age. This statute does not authorize an infant to be a party l)laintiff, even jointly with other plaintiffs of full age.^ But when the interest of an infant co-tenant requires such par- tition or a sale, and it is desirable that proceedings be Instituted for that purpose, application must be made to the supreme court for that purpose, and the leave of such court must be obtained." What must he the plaintiff's title. The plaintiff must hold and he in possession of lands, tenements or heredita- ments, as a joint tenant, tenant in common, in which one or more of such tenants has an estate of inheritance, or for life or lives, or for years.' To sustain the action, the title of the plaintiff" must be clearly established,^ and his possession must not be adverse.^" As between tenants in common, the possession of one is the possession of all ; therefore, when the land has descended to them, one of the tenants, 37 Barb., 22. in relation to the sale of real estate ' Judicary Act of ] 847. of infants; see also 2 R. S., 330 = Code, § 30. § 91 (orjg. ^ 86.) * Code, § 34; 2 Duer, 635; 13 How., « 2 R. S., 317, § 1. 254; 4 Duer, 682. » i Johns. Ch., 111. •■ Code, § 33. 10 2 Barb. Ch., 398 ; 3 Id., 608 ; 9 Cow., • 4 Sandf. Ch., 508. 530 ; Hoflf., 560. ' L. 1852, 411, § 1. See proceedings PAETITION. 355 thouo:h not in actual possession, may maintain the action, the lauds beiug unoccupied/ It would be othervise, how- ever, where there had been an actual ouster of the plaintiff by one of the co-tenants.^ But to take advantage of such a defense, where the plaintiff alleges his title as a tenant in common with the defendants, the defendant must allege such ouster in his answer.^ This action for partition can be maintained by a tenant in common of a vested remainder? It also may be main- tained by the several owners of property subject to a lease,* also, by an assignment for the benefit of tfie creditors of a tenant for life.'* But the action cannot be maintained between a tenant in fee and his landlord f nor can it be maintained by a widow claiming only in respect of her dower ;" nor can it be maintained by one having a mere future contingent interest in an undivided share.^ Possession. The possession required by statute may be actual or constructive,^ as, the possession of one tenant in common is, constructively, the possession of all,'" or the possession of the tenant is deemed the possession of the landlord." Having an estate and a constructive possession is sufficient.'^ The commencement of the action. The parties thereto. The action is commenced in a manner similar to the former commencement by petition, that is, the complaint takes the i)lace of the i3etition, and should contain all the essential averments of facts formerly requisite to a good petition. Several joint tenants or tenants in common may unite as parties plaintiffs in the action, although the suit may be commenced in the name of one, and the others may be joined as defendants.'^ When the tenant com- mencing suit has a wife, whether an infant or an adult, she is a j)roper and necessary party because of her right of dower which would be divested by the judgment in the case." AYhere the plaintiff is an infant, the first proceeding in the commencement of the action, is to apply to the court > 14 N. Y., 235. " 2 Paige, 387. * 3 Paige. 245. " See 5 Denio, 385, M3How., 476; 15N. Y., 617. " 14 N. Y., 235. * 5 Paige. 518. "5 Paige, 518. * 2 Barb., 599. " 15 N. Y., 617; 13 How., 476. * 4 Paige, 639. " 2 Van Sant. Eq. Br., 11. ' 15 Johns., 319. " 7 Paige, 386. 356 ADMINISTKATION OF CIVIL JUSTICE. for an order for such purpose.^ This application is by peti- tion, on behalf of the infant by his general guardian, if he has one, and if none, then by some relative with whom he resides, if under the age of fourteen years, and by himself when he is over that age and has no general guardian. The petition must show to the court that the infant is pos- sessed of real estate as tenant in common or joint tenant, and that the interest of such infiint require such partition or sale of said estate. The court will authorize proceed- ings for that purpose to be instituted, when these things are made satisftictorily to appear; and will proceed to appoint a competent next friend to conduct the proceed- ings on the part of such infant, on the proper application.^ This petition is simply addressed to the court, without being entitled, setting forth the facts showing that the infant is entitled to the partition, and the reasons why it is proposed to apply for the same; and it should, also, state whether the infant owns any other land in common.^ The court must be satisfied of the propriety of such an order, and its usual course is, to order a reference to report the facts, that it may be informed on the subject.* The court being satisfied that the interest of the infant requires the partition, will grant the order, which is to be filed and entered in the county where the real estate is situated.^ The api)lication for the appointment of a giiar- dicm ad litem, or next friend, may be united with the one asking leave to commence suit, and the court, not unfre- quently appoints the general guardian such next friend. The statute of 1852 provides, that the next friend shall be appointed upon the like application, and in like man- ner, and shall give the like security and possess such powers as are specified and required in sections tivo, three and four of title third chapter ^ve of the third part of the Kevised Statutes.*^ The provisions above referred to are those which provide for the appointment of guardian ad litem for minors in proceedings for partition, where it is represented to the court that there are minors, who should be parties to the proceedings, and that notice of an intention to apply to such court for such order had been served upon the ' L. 1852, 411, § 1 ; see 15 How., 383 ; * 2 Van Sant. Eq. Pr., 9. 21 Id., 479; 4 N. Y. S. at L., 615. ' 2 Van Sant. Eq. Pr., 10. ' Idem, § 2, 2 R. §., 317, § 2. " 4 N. Y. S. at L., 615. ' See Rule, 47. PAKTITION. 357 general guardian, at least ten days prior to such applica- tion.^ The guardian thus appointed, is required to give bonds in such penalty, and with such surety, as the court shall direct, to the people of the state, conditioned for the faithful discharge of the trust committed to him, and to render a just and true account of his guardianship in all courts and places when thereunto required ; and until this bond is given he is not authorized to enter upon the dis- charge of his duties. Before commencing the action it is also important to determine who should be made defendants thereto. The statute provides that every person interested in the pre- mises, whether in possession or otherwise, including those having an estate therein as tenant for years, for life, by the curtesy or in dower, and the persons entitled to the reversion, remainder or inheritance after the termination of any particular estate therein, and every person who, by any contingency contained in any devise, grant or other- wise, may become entitled to any beneficial interest in the premises, and every person entitled to dower in the pre- mises, if the same has not been admeasiu:ed, may be made parties to the proceedings.^ When lands are held by the people of the state and an individual thereof, as tenants in common, and partition is sought, the people are also to be made parties the same as individuals, and the like orders and decrees may also be had against them. The petition and other notices are to be served upon the attorney-general who ajipears in behalf of the people of the state.^ When parties interested are unknown, that fact should be stated, and they may be made parties to the suit, gene- rally without stating their names, but by merely adding to the title of the summons and complaint " and all per- sons or owners unknown having or claiming any interest in the premises sought to be partitioned in this action." Idiots, lunatics, habitual drunkards, &c., are also to be made parties when interested, with their committees ; and the service of summons should be upon both.* When a sale of the premises is contemplated, a married woman having merely an inchoate right of dower, should be united with her husband,' and when the married woman has a ' 2 R S., 317, S§ 2, 3, 4. * 3 Barb. Ch., 24. ' 2 R. S., 318, §g 5 aud 6. * 7 Paige, 386. » 2 R. S., 331. 358 ADMINISTRATION OF CIVIL JUSTICE. separate estate as a tenant in common with others, she may be made a party defendant without her husband.^ Judgment creditors, mortgagees, reversioners or any person having or being entitled to contingent interests in the property, are proper parties ; and to affect their inter- ests therein, they are necessary parties.^ The action is commenced by the service of a summons and complaint, or a summons alone. The summons is entitled with the full names of the parties to the action, accompanied with a notice of the object of the action, and that no personal claim is made.^ The mode of serving the summons, either personally, by pubhcation or by substi- tuted service, and the proof thereof, is the same as in civil actions,^ and at the same time notice of the pendency of the action should be made out and filed.'* The pleadings. The rules of pleading are the same as in other civil actions.^ The complaint takes the place of the former petition, and must therefore contain all that the statute required to be stated in the petition.^ It is provided that the bill or petition must describe particu- larly the premises sought to be divided and sold. That it must set forth the rights and titles of all persons interested therein, so far as the same are known, including the interest of any tenant for years, or for life, or by the curtesy, or in dower, and the persons entitled to the rever- sion, remainder or inheritance after the termination of any particular estate therein, and every person who, by any contingency contained in any devise, grant or otherwise, may become entitled to any beneficial interest in the pre- mises." The complaint must likewise state the facts, where the parties, or any share or interest of the parties, is un- known, uncertain, or contingent ; or where the ownership of the inheritance depends upon an executory devise ; or where the remainder is a contingent remainder, so that such parties cannot be named.^ If creditors have specific hens upon the premises and they are made parties, the complaint must also state the nature of such liens or incumbrances.^ Like the complaint in other civil actions, ^L. I860, 158, §7. ^2 Abb., 14. " 2 R. S., 318, § 10 ; 2 Barb. Ch. Pr., * 8 How., 458. 218. ' 2 R. S., 318, § 21. = 2 Van Sant. Eq. Pr., 15; 11 How., * Idem, 318, § 5. -'!"'■ *Idem, 318, as amended by the act of * See ante, Lis Pendens, Vol. I, 193. 1830, ch. 320, § 41. PAETITION. 359 it should set forth all the facts necessary to enable the court to understand the rights of the parties. It is not necessary to set out the particular interest of those who are alleged as unknown owners. The general allegation that there are such, according to the requirements of the statute, is sufficient.^ The complaint need make no alle- gations in respect to the interests of contingent remainder- men who are to come into being thereafter ; because they are virtually represcDted by those in whom the present title is vested.'* The allegations in the complaint may be upon information and belief, and may be verified or not at the option of the i)laintiff.^ The complaint may be amended for the purpose of bringing in additional defendants, who, during the progress of the proceedings, appear to have an interest in the pre- mises, by will, deed or grant from any original defendants, and who might originally have been made defendants, had their interest then existed or been known. Under the statute, to do this, required a forty days' notice of the motiou,* but under the Code the notice will be the same Eis is required in other cases.^ If there are any minor defendants, it will be necessary to have guardians ad litem appointed for them, before the plaintitf can make apjjlication for judgment. The guar- dian may be appointed either on the application of the plaintitf or on the application of the infant himself if he be above the age of fourteen years ; or if he be under that age, on the application of some relative or Iriend. The appoiiUment of guardian ad litem for infant defendants upon the application of the plaintiff . The statute provides that if it shall be represented to the court by any party intending to institute proceedings for partition, that there are any minors who should be made parties to the proceedings thereon, and it shall be satis- factorily proved to the court, that at least ten days' notice has been served on such minors, as reside within the state, or upon their general guardians, of an intention to apply to such court^for the order herein mentioned, such court shall thereupon appoint a suitable and disinterested person ' See 23 Barb., 303. * 2 R. S., 320, § 21. « 17 N. Y., 210. * 2 Abb. 15. ' 2 Van Sant. Eq. Pr., 19. 360 ADMINISTRATION OF CIYIIi JUSTICE. to be guardian for one or more of such minors, whether the said minors shall reside in or out of this state, for the special purpose of taking charge of the interests of such minors in relation to the proceedings for a partition.^ The Code provides that in actions for the partition of real property where an infant defendant resides out of the state, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order designating some suitable per- son to be the guardian of the infant defendant, for the purposes of the action, unless the infant defendant or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in said order specified, shall procure to be appointed a guar- dian for the said infant ; and the court shall give special directions in the order for the manner of the service there- of, which may be upon the infant himself or by service upon any relative or ijerson with whom the infant resides, and either by mail or personally' upon the lierson so served.^ And in case an infant defendant, having an interest in the event of the action, reside in any state with which there is not regular communication by mail, on such fact being made to appear to the court, the court may appoint a guardian ad litem for such absent infant party, for the pur- pose of protecting the rights of such infant in said action ; and on such guardian ad litem, process, pleadings and notices in the action may be served, in the like manner as upon a party residing in this state.^ An infant defendant has twenty days after the service of the summons within which to apply for the appointment of a guardian ad litem. Consequently, the plaintiff must wait twenty days after such service of summons upon the infant before applying to the court for the appointment of such guardian, where the infant defendant is of the age of fourteen years. If the infant be under the age of four- teen years, the plaintiff, having given notice to the general or testamentary guardian of such infant, if he has one within the state, or if none, then to the person with whom such infant resides, if he reside within the state, may apply at once for such an appointment. The length of the time required for such notice to be served upon the general guardian, &c., is, according to the statute, ten days.^ It ' 2 R. S. 317. § 2 ; 2 N. Y. S. at L., ' Code. § 116. 326. « 2 R. S., 317, § 2. PAETITION. 361 would not be safe to give the ordinary eight days' notice of the Code, and for greater caution, the ten days' notice should be given. ^ The appointment is made upon the petition of the plain- tiff, which, with the notice specifying the time and place of its presentation, is to be served as last above stated. The petition must be presented to the court at special term, and not at chambers, unless the court at chambers is, by law, deemed a special term of the court.^ The petition should specify the person proposed as guar- dian, and the consent of the guardian to serve as such, and to give the security required, should also be written or indorsed upon the petition. If the person proposed be not the general guardian of the infant, it should appear in the petition or in accompanying affidavits, that the person proposed is one competent to understand and protect the rights of the infant, and has no interest adverse to that of the infant, and is not connected in business with the attor- ney or counsel of the adverse party, and is of sufficient ability to answer to the infant for any damages he might sustain by his negligence or misconduct in the defense of the action f and when no responsible person will consent to become guardian and give the required security, the petition should ask the appointment of the clerk of the court, who may be appointed without giving security.* Granting the order, apiminting the guardian. In the case of resident infant defendants, upon i^roof of the due ser- vice of the petition and notice, and proof of the signature of the guardian i3roposed, to the consent required to be indorsed upon the i)etition — if he be not an attorney or an officer of court, when no such proof is required — and upon the courts' being satisfied that the person proposed is suitable, within the requirements of the rule,^ the courts will grant the order appointing such person a guardian ad litem for the purposes of such suit. The order must specify the amount of security which the guardian is required to give, and must be entered and filed in the usual way,^ and the guardian thus appointed, before enter- ing upon the duties of said office, must execute a bond in such x^tinalty, and with such security as the court shall ' See 2 Duer, 635 ; 13 How., 105. = 2 Van Sant. Eq. Pr., 21 ; see Rule 60. "As in the first judicial district; or ■» L. 1813, 311; 4 N. T. S. at L., 613. where a special term has been ad- ' Rule 60. journed to be held at chambers ; ' 2 Van Sant. Eq. Pr., 22 ; 1 Id., 453. Code, § 24, as amended in 1862. II.— 46 362 ADMDTISTEATION OP CIVrL JUSTICE. direct, to the people of the state, conditioned for the faith- ful discharge of his trust, and to render a just and true account of his guardianship, which bond must be filed in the office of the clerk, before any further order is made.^ This bond is to be signed by the guardian and his sureties,* although a defectively executed bond, may, by the consent of the obligors, be amended by the court.^ The act of 1852 provides, that in suits or proceedings for the partition of land properly instituted, where the guardian for minors has entered upon the execution of his duties, and rides and orders have been made without the filing of the requisite bond, or when it shall appear that such bond cannot be found on file, the court, or any judge thereof, may, on application of any party to the suit or proceeding, at any time before judgment or decree in all cases, or after judg- ment or decree in cases of actual partition, authorize and direct the filing of a bond by such guardian, and the X)eualty and surety thereof to be filed as of the same date with the order appointing the guardian, having the like form and etfect in every respect as if such bond had been directed by the court and duly executed and filed by the guardian at the date of his appointment/ It has been held that this act applied only to cases of actual imrtition^ and not to cases where a sale had been had ;^ but the court of appeals held the act to be enabling, and not a restrictive act. That the omission to file the bond was a mere irregularity, which was amendable ; and that a court having original equity jurisdiction, had power to order such bond to be filed, either before or after sale, as well as on ^^ actual partition.''^ As already observed, the infant defendant, if over the age of fourteen years, may apply on his own petition for the appointment of a guardian ad litem. This application should be made within twenty days after the service of summons upon him.^ If the infant be under the age of fourteen, such application for the appointment of the guardian, may be made at any time within twenty days after the service of summons, by some relation or friend of the infant;^ and the subsequent proceeding in the appointment of such guardian will be the same as if he '2R. S., 317, §4. ''2 Abb., 6. ' 2 Abb., 6. « 17 N. Y., 218. ^ 14 How., 94; see L. 1852, 411, 8 3. ' Code, § 16. sub. 2. * L. 1852, 411, § 3; 4 N. T. S. at L., 615, § 3. PAETITION. 363 was appointed on the application of the plaiutiflP. If the infant defendant be a married woman, she may appear voluutarilj^ even without her husband ; though it is important that he be joined with her, in order to cut off his possible interest in her estate should she die intestate.^ The ansxoer and other pleadings. After the complaint has been prepared and served upon the defendants, it must be answered within the rule, or the defendants will be in default, and the plaintiff, having procured the appointment of guardians ad litem for all infant defendants, may proceed to take judgment on such default. If the facts set up in the complaint are true, and there is no new matter to be alleged in avoid- ance, then, no answer will be required. Such is the case even where a guardian ad litem has been appointed. He need not put in a general answer, simply submitting the rights of the infant to the court, where all the facts are correctly stated in the comi)laint, and no opposition is intended to be made. But if the facts stated in the com- plaint, or any of them which are material, are untrue, the defendant must answer by denying the same as in other civil actions. In short, the rules applicable to an answer, as discussed in the first volume of this work, are applica- ble in actions for partition.^ Any party appearing may plead either separately or jointly with one or more of his codefendants, that the X)laintiffs, or any of them, were not in possession of the premises in question, or any part thereof; or that the de- fendants, or any of them, did not hold the premises with the x>laintiflEs at the time of the commencement of the pro- ceedings as alleged in the complaint ; or may plead any other matter, showing that the plaintiff is not entitled to maintain his said action.^ Other and further pleadings may also be had between the parties respectively, according to the practice of the court, as in i)ersonal actions, until an issue or issues of law and of fact are joined between the parties or some of them,* and whenever joint tenancy or tenancy in com- mon of any defendant shall be denied by a codefendant, and it shall become necessary to determine the same in ' 5 Abb., 54. ' 4 How., 125. » Vol. I, 368. * 2iR. S., 320, §§ IG, 17. 364 ADMimSTKATION OF CIYTL JUSTICE. order to effect a complete and final partition so far as the rights of the parties are concerned, the court may direct an issue to be formed on the record, and may direct the jury to inquire into, try and determine, as well the tenancy of the defendant so denied, as the other issues joined on such pleadings.^ If the defendants fail to appear and plead they will be liable to a judgment on default, and the plaintiff will be entitled to the legal relief asked for, as in other civil actions. Where there are issues as to one or more of the defendants, and failure to answer as to the rest, the trial of the issues may be brought on before the court in the usual manner, and at the same time, on notice to the defendants who appear, but do not answer, and the proof requisite in case of default must be presented to the court so that the de- cision of the court upon the issues, being rendered, one general order may be made determining such issues, and directing the proper reference under the rules and statute as to all the defendants.^ And the issues of fact must first be disposed of before further steps can be taken against those making default. After the verdict has been rendered for the plaintiff' on these issues, a motion is made for the relief demanded in the complaint against all the defend- ants, as well those embraced in the issue tried, as the others making default.^ Wliere none of the defendants appear to demur or answer, the plaintiff, at the expiration of the time for answering, applies to the court for the relief demanded in the com- Ijlaiut, which is a judgment of partition. This judgment will be given, as a matter of course, on the plaintiff's prov- ing his title in the premises as required by the statute.* This proof may be made in open court,^ or a reference may be ordered to take proof of title and report upon the same, with an abstract of the conveyances by which it is held.'' The title required to be established, is such as would entitle the party to recover in ejectment,'^ and should be traced back to a common source.^ To entitle the plaintiff' to judgment, in addition to the above, he should prove service upon all the defendants. ' Idem, § 18. '2 Paige, 27, 28. ' 2 Van Sant. Eq. Pr., 27. « 2 Van Sant. Eq. Pr., 28. ' Idem. '2 Paige, 27, 28. * 2 R. S., 321, § 23; 8 How., 456; 2 « 8 Paige, 513. Abb., 15. PARTITION. 365 that no answer or demurer has been received, and he should produce affidavits showing that none of the defendants are infants.* A reference ordered. Where the rights and interests of the several parties, as stated in the complaint, are not denied or controverted, if any of the defendants are infants or absentees, or unknown, the plaintiff, on affidavit of the fact, and notice to such of the parties as have appeared, may apply at a special term for an order of reference to take proof of the plaintilf' s title and interest in the premises, and of the several matters set forth in the bill or petition ; and to ascertain the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held.^ The order of reference in such case, must direct the referee to take proof of the title of the plaintiff, and of the several matters set forth in the complaint; and to ascertain and report particularly what share or part of the premises be- longs to each of the parties to the suit, so far as the same can be ascertained; and the nature and extent of their respective estates or interests therein; and that he also report such proof, and an abstract of the conveyances by which the title to the i)remises is held.^ It is further provided by rule that where the whole premises of which partition is sought, are so circumstanced that a partition thereof cannot be made without great pre- judice to the owners, due regard being had to the power of the court to decree compensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to produce such equalitj^ or where any lot or separate parcel of the premises, which will exceed in value the share to which either of the tenants in common may be entitled, is so circumstanced, the xjlaintiff, upon stating the fact in the affidavit which is to be filed for the purpose of obtaining an order of reference under the next preceding rule, may have a further provision inserted in such order of reference, directing the officer or person to whom it is referred, to inquire and report whether the whole premises, or any lot or separate parcel thereof, are so circumstanced that an actual partition cannot be • 2 Van Sant. Eq. Pr., 28. ' 2 Paige, 29 ; 2 Barb. Ch. Pr., 296. " Rule 78, of 1858 ; 2 R. S., 321, § 23 ; 8 Paige, 513. 366 ADMmiSTRATION OF CIVIL JUSTICE. made ; and that if lie arrives at the conclusion that the sale of the whole premises, or of any lot or separate parcel thereof, will be necessary, that he specify the same in his report, together with the reasons which render a sale neces- sary ; and, in snch a case, that he also ascertain and report whether any creditor, not a party to the suit, has a specific lien, by mortgage, devise, or otherwise, upon the undivided share or interest of any of the parties in that portion of the premises which it is necessary to sell ; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incumbrance, by judgment or decree ; and that he ascertain and report the amount due to any party to the suit who has either a gen- eral or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and who shall appear and establish his claim on such reference. He shall also, if requested by the parties who appear before him on such reference, ascertain and report the amount due to any creditor,^ not a party to the suit, which is either a specific or general lieu or incumbrance upon all the shares or in- terests of the parties in the premises to be sold, and which would remain as an incumbrance thereon in the hands of the purchaser; to the end that such directions may be given in relation to the same, in the decree for the sale of the premises, as shall be most beneficial to all the i^arties interested in the proceeds thereof on such sale.^ The proceedings upon the reference are governed by the ordinary rules applicable to references in other equity cases.* The plain tifi" will be required to produce abstracts, and trace back his title as tenant in common in the premises to the common source of the title of all the tenants in common therein.^ The report of the referee should give an abstract of the conveyances of the several undivided shares or interests of the parties in the premises, from the time the several shares were united in their common source. This abstract should be annexed to the report and be filed with it; and ' Rule 79, Sup. Ct., 1858. » 7 Paige 39 " 2 Van Saut. Eq. Pr., 29; Id., 522. PABTITION. 367 also the proof taken, except sncli as is clocnmentary, in accordance with the order.' Which report may be excepted to and reviewed as in other cases. The hearing. The report of the referee having been made and filed with the clerk of the court, notice thereof must be given to the parties who have appeared, according to the rule,^ when the cause can be brought to a hearing as in other cases. The court will have before it, the report of the testimony as taken by the referee ; the confessions of the parties by plea, if any have been made in respect thereto f and in case any issue of fact has been tried by a jury, the verdict of the jury thereon ; and upon these it will ascertain and declare the rights, titles and interests of the parties to the jjroceedings, so far as the same shall appear, and will determine the rights of the parties there- to, and decree that i)artition be made between them, or such of them as shall have any right therein, according to such rights.* This judgment or decree is merelj^ inter- locutory,^ the final judgment for partition being rendered on the coming in of the report of the commissioners mak- ing the partition.^ The judgment or order for partition. The statute provides that if, after the trial of any such issues or after judgment by default, confession or other- wise, against those parties who are known, the part or interest of any parties who shall not have pleaded in the cause, whether known or unknown, in and to such pre- mises, shall not have appeared by the evidence in the cause, then the said court shall give judgment that parti- tion be made so far as the rights or interests of the parties who are known and who have appeared in the said cause, have been ascertained, and the residue of the premises shall remain for the parties whose interests have not been ascertained, subject to division between them at any future time.' And the parts or shares remaining undivided must be designated in the decree thus rendered.^ » 2 Van Sant, Eq. Pr., 29. ' 2 Van Sant. Eq. Pr., 39. « Rule 32. ""l R. S., 321, § 24; 2 N. T. S. at L., ' 21 Barb., 9. 330. ♦ 2 R. S., 321, §§ 23, 24. ' Idem, § 25. » See 6 N. Y., 465. 368 ADMTNTSTRATION OF CIVIL JUSTICE. The amendments of 1847^ provide, that in suits for the partition of lands, tenements or hereditaments, an actual partition or sale, as the case may require, may be adjudged or decreed, whenever and as often as the court shall have ascertained and declared so many facts concerning the rights, titles and interests of all or any of the parties to such suit, that a fair and just partition or distribution of proceeds can be made by assigning to any party or parties in severalty, and to any set or sets of parties in common, according to the provisions of this act,=^ the shares in the premises belonging to such parties and sets of parties respectively, or of the proceeds of the sales of the said shares of such parties and sets of parties respectively.^* The amendatory statute of 1847 further provides, that when it shall seem proper to the court that a partition or sale should be decreed, shares of the premises or proceeds as to which there are conflicting claims not affecting other shares in such premises or proceeds, may temporarily be set off as in common, to such adverse claimants, with a proper reservation of their rights, until such claims can be determined upon further proceedings between them.* The same act provides further, that whenever in any suit for the partition of any lands, tenements or hereditaments, it shall appear to the court that two or more persons inter- ested in such lands, &c., are desirous of enjoying their several shares or interests in common with each other, the court may direct a jjartition to be made in such a manner as to set off to such of the parties as shall desire it, their shares respectively of such lands, &c., and shall permit such shares or interests to remain without partition to be enjoyed by them in common.^ The judgment which the court is called upon to pro- nounce at this stage of the proceeding, has, for its object, the determination of the question whether the plaintiff is entitled to have partition, and, also, the definition of the rights of the several parties, so far as they are made to appear. Thus the judgment or order of the court must declare the rights, titles and interests of parties to such proceedings, plaintiffs as well as defendants, so far as the same shall have appeared. " As that the plaintiff and " certain of the defendants — naming them — " were severally ' Laws 1847, 556, ch. 430 ; 4 N. T. S. ' Idem, § 1. at L., 613. * Idem, § 2. » Idem, §§ 1, 2. » Idem, § 4. PAETITION. 369 seised of, and entitled to," the lands in question, " as ten- ants in common thereof, in fee simple, subject to the several rights and interests of the other parties as stated in the report of the referee." "That" three of the defend- ants — naming them — " are severally entitled to annuities, amounting to " a certain sum — specifying it — " during the life of each, payable out of the rents, issues and profits of the premises, and that the plaintiff and" several of the defendants — naming them — " were entitled to the surplus of the rents and profits after the payment theretrom of the several life annuities during the lives of the annuitants, and the life of the longest liver of them" — specifying the proportion of such surplus to which each was entitled, &c.,^ and that partition be made between such of them as have any right therein, according to such rights.^ This order or judgment of partition should be drawn up with great care and particularity, omitting nothing neces- sary to be stated to guide the commissioners in the dis- charge of their duties. After having thus ascertained and adjudged what are the respective interests and rights of the parties, and ordered that partition be made, the court next proceeds to appoint commissioners to make the parti- tion so adjudged. Tlie appointment of the cominis$io7iers and their duties. The statute provides that whenever any judgment of par- tition has been rendered, the court, by rule, must appoint three reputable freeholders, commissioners to make the par- tition so adjudged, according to the respective rights and interests of the parties, as the same were ascertained and determined by such court ; and in such rule the court must designate the i)art or shares which are to remain undivided, for the owners whose interests are unknown, and not ascertained.^ And it should also designate whose shares, if any, are to remain without partition, that they may be enjoyed by them in common.* The same order adjudging partition, and defining the rights, interests, &c., of the parties, usually appoints the commissioners, and gives them their i)articular instructions. If the commissioners so appointed, or any of them, die, ' See 15 N. T., 618. * L. 1847, 557, § 4 ; 4 N. Y. S. at L., " 2 R. S., 321, § 23. 613. » 2 R. S., 321, § 25 ; 2 N. T. S. atL., 331. II.— 47 370 ADMDnSTRATION OF CIVIL JUSTICE. resign or neglect to serve, the court is authorized, from time to time, to appoint others in their j)laces.^ These commissioners, before proceeding to the execution of their duties, are each required to be sworn or aflQrmed before an officer authorized to take affidavits, honestly and impartially to execute the trust reposed in them, and to make partition, as directed by the court; and the oath thus taken must be filed with the clerk of the court, at or before the coming in of their report.^ They then proceed immediately to take measures to make partition according to the judgment of the coiu"t, unless it appear to them or any two of them, that such partition cannot be made, without great prejudice to the owners thereof; in which case, they make a return of such fact, in writing to the court signing the same.^ But in case partition can be justly made, they proceed to divide the real estate, and allot the several portions and shares thereof to the respective parties, quality and quantitj^ relatively considered by them, according to the respective rights and interests of the parties, as adjudged by the court, designating the several shares and portions by posts, stones or other x)ermanent monuments ; employ- ing a surveyor, and other assistants when necessary to aid them." Before proceeding to make actual partition of the pre- mises, the parties interested should be notified of the proceedings in making such partition. The statute is silent upon this subject, yet, nevertheless, the proceedings are in the nature of an adjudication of an oflicial character, affecting the rights and interests of the parties, and they have a right to a beneficial and substantial notice, which, if not given, the report of the commissioners will be set aside on motion as being irregular.^ It is said that the correct x)ractice is, for the attorney conducting the pro- ceedings, to give notice to such parties as have appeared in the action, to attend with the commissioners at the time and place specified, to make partition of the premises; and the report of the commissioners should show such notice to have been given.^ The statute of 1847^ provides, that whenever the estate '2R.S., 321,§26; 2 N. T. S. at L., 331. »^9How., 69. " Idem, 5 27. « 2 Van Sant. Eq. Pr., 44. ' Idem, § 28. '' L. 1847,.ch. 430, 557, § 5; 4 K Y. S. * Idem, § 29. at L., 613. PARTITION. 371 of any tenant in dower, or by the curtesy, or for life, to the whole or any part or share of the premises, has been admitted by the parties, or ascertained by the court to be existing- at the time of the judgment of partition, and such tenant has been made party to the proceedings, the commissioners may allot to such tenant his share thereof, without reference to the duration of such estate ; and also may make partition of such share, and allot the same to the parties respectively who are entitled to the remainder thereof, according to their respective rights therein, when- ever, in their opinion, it can be done without prejudice to the rights of the parties.' The effect of this provision taken in connection with the others, is, " that when there is a tenant for life of the entirety, and the remainder is held in tenancy in common, by several, these tenants in common may institute proceed- ings, being seised within the meaning of the statute, and the estate for life continuing until judgment, partition is to be made by leaving to the tenant for life, his estate untouched, and dividing the lands among those entitled to the remainder. But if the life estate be owned by joint tenants, or tenants in common, in different shares from those into which the estate in remainder is to be divided, then a double partition is to be made, first, among the tenants for life, and then among the owners in remainder, and if the premises are so situated that partition cannot be made, the courts must consider and determine whether, under all the circumstances of the case, the life estate shall l)e excluded from the sale, and the remainder alone be sold. In determining this, the court must have regard to the interest of all the parties.^ The commissioners, in the exercise of their duties, are limited to the powers conferred upon them in the order appointing them, and assigning to them their duties. If, therefore, by mistake or otherwise, they extend their action to lands not described in the proceedings, their proceed- ings will be void, as well as any judgment rendered by the court upon their report.^ These commissioners are appointed to execute the order or judgment of the court upon the premises in such a manner as to do justice to all parties in interest. The order or judgment of the court ascertains and determines ' Idem ; 15 N. Y., 626. = 21 Barb., 9. ' 15 N. Y., 026, per Denio, C. J. 372 ADMINISTRATION OF CIVIL JUSTICE. the interest of tlie parties, the office of the commissioners is to make a just application of the same to the premises in question. They must necessarily be intrusted with a large discretion in the exercise of their duties, as such commissioners. They are not bound to subdivide the several parcels of land among the several parties, but, if they think proper, they may allot a distinct parcel to each party, making compensation when any inequality exists thereby.^ They may also make partition by allotting a portion of the premises charged with an easement, and make all necessary provisions for keeping in repair a use, not capable of actual division.^ The execution of the duties of their office will often require that they be informed of matters aliunde the judg- ment and order appointing them, hence, they must have authority to examine witnesses, whose testimony should be reduced to writing, and be returned with their report.^ This power is, however, supplementary, to enable them the better to perform their duties, and will not excuse them from acting upon their own x)ersonal observation. In the performance of their duties, they must meet together, although the acts of the majority, when met, are valid.* They must also make a full report of their proceed- ings, under the hands of at least two of them, specifying therein the manner of executing their trust, and describing the laud divided, and the shares allotted to each party, with the quantity, courses and distances of each share, and a description of the posts, stones or other monuments thereof, and also the items of their charges.^ The report should show the entire doings of the com- missioners ; that they all met and acted together, in the performance of every of their duties ; and, when onlj' two unite in the report, it shoukl set forth the reason why it is not signed by all.^ The report must be such in every respect, as to enable the court to pronounce a complete and final judgment. It must be proved or acknowledged before some officer authorized to take the proof of deeds, and in the same manner as such proof is taken ; and it must be hied in the office of the clerk of the proper county.' When there has been any irregularitj' on the part of the commissioners affecting* the interests of the parties, or ' 2 Paige, 29 ; 2 Barb. CL Pr., 299. ■• 2 R. S., 322, § 31. » 10 Paige, 470. ' Idem, § 30. » 2 Van Sant. Eq. Pr., 45 ; 2 Barb. Ch. * See § 31 ; 1 Barb. CL Pr., 73. Pr., 300. ' Idem, § 33. PAETITION". 373 if they have exceeded their authority, or acted fraudulently or unfairly, their report may be set aside on the motion of the irdYtY dissatisfied therewith, on the usual notice. This motion to set aside the report, the court may grant when- ever the cause is such as would lead them to set aside a verdict of the jury, and grant a new trial. The statute says, on " good cause shown," the report may be set aside, and new commissioners be appointed, as often as neces- sary.^ When the report is set aside for a mere irregularity or unintentional omission to perform some duty, such as failing to give notice to the parties, or to take the oath required bj' law, the commissioners will not be removed. But if the report be set aside for misconduct of the com- missioners, new ones should be appointed. When the same commissioners are retained, after setting aside their report, they proceed a second time to execute the order for partition. Any mere formal inaccuracy in their report may be amended.^ Fitial judgment upon actual partition. After the commissioners have made theu' report setting forth the actual partition made according to the require- ments of the statute, and have filed the same, the next step is to bring it on for final hearing and judgment, or for such further directions as may be necessary. It is brought to hearing on motion, at special term, and on the usual notice. If there appear to be no objections to the report, it will be confirmed by order, and final judg- ment will be rendered thereon that the partition made by the commissioners be firm and effectual forever.^ After the report of the commissioners has been confirmed by the court, and judgment thereupon has been given that such partition be firm and effectual forever, such judgment becomes binding and conclusive : 1. On all parties named therein, and their legal representatives, who shall, at the time, have any interest in the premises divided, as owners in fee or as tenants for years, or as entitled to the rever- sion, remainder or inheritance of such premises after the termination of anj^ particular estate therein ; or who, by any contingency contained in anj^ will or grant, or otlier- wise, may be, or may become, entitled to any beneficial interest therein, or who shall have any interest in any " 2 R. S., 322, § 34. '2 R. S., 322, § 36. " 1 My. & Keen., 334; 2 Barb. Ch. Pr., 301. 374 ADMINISTEATION OF CIVIL JUSTICE. imdivided share of the premises, as tenant for years, for life, by the curtesy, or in dower; 2. On all persons interested in the premises who may be unknown, to whom notice shall have been given of the application for partition, by publication as directed by statute in such cases ; and, 3. On all other persons claiming from such parties, or persons, or either of them.^ Prior to the act of 1847,^ such judgment did not affect tenants in dower, by the curtesy or for life.^ But since that act, such rights and interests may be determined by such proceedings, in wliich case they are also bound by such judgment. Any other persons than those above named, including tenants in dower, by the curtesy and for life, or persons having such claims, are precluded from claiming any title in the premises, or from controverting the title or interest of the parties between whom such par- tition is made.* This judgment should specify in detail the divisions actually made by the commissioners, with a description in severalty of the premises allotted to each of the respective parties. It should also apportion the costs among the several parties in proi)ortion to their respective interests, and should adjudge their payment from each party defend- ant respectively, to the plaintiff. Every ascertained interest is liable to be taxed with its proportion of the costs, where the claimant has been made a party, as the share of a doweress.^ So, where any share is subject to a lien by judgment, it is first chargeable to its proportion of costs in preference to such lien.*^ If compensation for equality of partition be allowed by the commissioners, this judgment should set it forth, both as to amount and the share upon which it is charged, and its payment to the other parties adjudged ; and thereupon such amount becomes a specific lien upon the share against which it is charged, and entitled to preference in payment." * * It is provided that an exemplification of any judgment record or decree in par- tition may be recorded in the office of tlie clerk of any county of this state in which any lands described therein may be situated, and tliat such record, or an exemplification thereof, shall be received in evidence and be as effectual in all cases as the original exemplification would be if produced, and likewise open to the same objections. L. 18-16, 204 ; 4 N. Y. S. at L., 433. ' 2 R. S., 322, § 35 ; 2 N. Y. S. at L., * Idem. 332. s 1 Barb., 560; 3 Johns. Ch. R., 302. " L. 1847, 557 ; 4 N. Y. S. at L., 614, « 2 R. S.. 318, §§ 8, 9. § 5. '2 Van Sant. Eq. Pr., 51 : 2 Barb. CL ' 2 R. S., 323, § 36. R., 301. PARTITION. 375 The judgment is perfected by making up and filing a proper record of the proceedings ; but it is binding iii)on tlie parties from tlie date of the confirmation of the com- missioners' report.^ So far as such judgment is to bind unknown owners, it must appear upon the face of the record that the affidavit required by the statute, of the plain- tiffs' ignorance of the names, rights, &c., of such owners, are duly x>resented to the court, and that the required notice was also duly i)ub]ished.^ An omission to have these facts appear would render such judgment voidable, though not absolutely void.^ JReport of comiuissioners that the land cannot he partitioned^ etc. If the commissioners report that the lands, &c., are so situated that they cannot be partitioned without great prejudice to the owners of the same, and if the court are satisfied that such report is just and correct, the court, upon the filing of such report, by rule to be then entered, may order the commissioners to sell the premises so situ- ated, at public auction, to the highest bidder." And, in such order, the court must direct the terms of credit which may be allowed for any portion of the purchase-money of which it shall think proper to direct the investment, and also, of such portions of the purchase-money as are required by the statute in respect thereto^ to be invested for the benefit of unknown owners, infants, parties out of the state, tenants for life, in dower or by the curtesy, and such por- tions of the purchase-money must always be secured at interest by a mortgage of the premises sold, by a bond of the purchaser, and by such other security as the court may prescribe.'^ The commissioners are also authorized by statute to take separate mortgages and other securities for such convenient shares or portions of the purchase-money, as are directed by the court to be invested as above, in the name of the clerk of the court and his successors in office, or of any one of such clerks, and for such shares as any known owner of full age shall desire to have so invested, in the names of such owners." To enable the court to determine whether a sale of the ' 9 Barb., 500. ' Idem, 326, § 54. ^ 11 Wend., 648. ° Idem, fcjg 38, 39. = 2 Hill, 625. ' Idem, § 40 ; N. Y. S. at L., 333. * Idem, § 37. 376 ADMINISTRATION OF CIVIL JUSTICE. premises or any part thereof is necessary, the report of the commissioners should set forth the facts and circumstances upon whicli the opinions of the commissioners are based,^ and the court will not decree a sale upon such report of the commissioners, where a referee appointed in the case has reported that a partition can be made.^ Where the situation of the property or the rights of the parties have materially changed subsequent to the report of the referee, thereby rendering a partition impossible without prejudice to the rights of the parties, a special application for a new reference should be made to the court, for the purpose of ascertaining such facts.^ If there are creditors having specific liens who have not been made i)arties to this action, the court, before making any order for the sale of the said premises, and on motion of either party, must direct the plaintiff to amend his com- Ijlaint, b}' making every such creditor having any specific lien on the undivided interest or estate of any of the parties, by mortgage, devise, or otherwise, a ijarty to such action ; and the court must also direct the clerk to ascertain and report whether the shares or interest on the premises of the parties in such suit, or any of them, are subject to any general lien or incumbrance by judgment or decree.* And the clerk to whom such reference is made must immedi- ately thereafter cause notice to be published once in each week, for six weeks successively, in the state paper, and also in a uewsijaper printed in every county in which any of the lands in cpiestion are situated, requiring all persons having any general lien or incumbrance on any undivided interest or share therein, by judgment or decree, to produce to the said clerk on or before a certain day to be named in such notice, proof of all such liens or iucumbrances, together with satisfactory evidence of the amount due thereon ; and the clerk must report, with all convenient speed, the names of the creditors, the nature of the in- cumbrances, the dates thereof, and the several amounts ai^pearing to be due thereon.^ When it appears by the proceedings or report that there are existing incumbrances upon the estate or interest in M9 Wend., 226. ^ See Rule 79. ' 5 Paige, 161 ; 2 Van Sant. Eq. Pr., 47. * 2 R. S., 324, § 42 ; 2 N. T. S. at L., 333 ; This sale may be ordered without a reference to the clerk to search for liens and incumbrances, imless such reference is asked for by one of the parties. 12 Wend., 2G9: but see 4 Paige, 481. ' Idem, § 43. PAETITION. 377 the premises of any of the parties named, in the suit, or proceedings, the court must, in the order for sale, direct the commissioners to bring into court, and pay to the clerk thereof, the portion of the moneys arising from the sale of the estate or interest of such party, after deducting the por- tion of the costs, charges and expenses to which "the same is liable.^ The party whose share is thus incumbered, however, may apply to the court to order such moneys, or such part thereof as he claims to be his, to be paid to him. His application must be accompanied : 1. By his own affi- davit, stating the amount actually due on each incumbrance, the owner of such incumbrance, and his residence, as far as it is known to such partj' ; 2. By proof, by affidavit, of the due service of a notice on each owner of any incumbrance, of the intention to make such application, at least fourteen days previously. And if such owner of the incumbrance reside within the state, such notice must be served person- ally ; or, when he is absent from his residence, by leaving a copy there with some one of proper age. If such owner resides out of the state, such notice may be served on him personally twenty dajs previously, or by publishing the same in the state paper four weeks successively, once in each week.^ The court will hear such application on proof of notice having been given according to the above requirements; and any questions of fact arising, which, in the opinion of the court, require the deliberation and finding of a jury, and issue will be awarded and a trial be ordered, the costs to be i^aid by the failing party, to be enforced if necessary by attachment.^ When the amount of such existing incumbrances have been ascertained, the court is then required to order a dis- tribution of the moneys thus brought into court, and there remaining, among the several creditors having such incum- brances, according to the jDriority thereof respectively,' and the clerk or officer by whom such incumbrances are paid off, is required to procure satisfaction of the same to be acknowledged, in the form required by law, and to cause such incumbrance to be duly satisfied or canceled of record, and defray the expenses thereof out of the por- ' Idem, § 44. » 2 R. S., 324, § 45 ; Subs., 1, 2; 2 N. T. S. at L., 334. ' Idem, § 46. n.— 48 378 ADMINISTEATION OF CIVIL JUSTICE. tloii of the moneys in coiu*t belonging to the party by whom such incumbrance was payable.^ These proceedings are not to interfere with or affect any other party in such suit ; nor to delay paying over or investing moneys to or for the benefit of any party upon whose estate in the pre- mises there is no apparent incumbrance.^ The order for sale hy the commissioners. Care should be taken by the attorney prosecuting the proceeding or action for partition, that the order for sale contain every essential requisite imposed by the statute. It should make provi- sions for the distribution of the net proceeds of the sale, for the investment or other disposition of the shares of infants, of unknown and absent owners, and of tenants in dower or for life ; the payment of costs, &c. And there are special requirements which may or may not be neces- sary to be made, according to circumstances. Thus, it may be necessary to direct the commissioners to bring the money arising from the sale, &c., into court, and pay the same to the clerk f and the court may have occasion to direct the terms of credit which may be allowed for any portion of the purchase-money of which it thinks proper to direct the investment, &C.'' The proceedings hy tJie commissioners under such order. Before the commissioners can proceed to sell the pre- mises, or any part thereof, they must give notice of the sale, for the same length of time and in the same manner, as is required by law on sales of real estate hy sheriffs on executions.^ The terms of such sale must be made known at the time ; and where the premises consist of distinct buildings, farms or lots, they must be sold separately.* Neither of the commissioners, nor any person for the benefit of either of them, must be interested in the pur- chase, nor directly or indirectly purchase any of the premises sold, nor must any guardian of any infant party in such suit, purchase, or be interested in the purchase of any lands being the subject of such suit, except for the benefit or in behalf of such infant ; and all sales contrary to these prohibitions are void." After completing such sale, the commissioners report 'Idem, §48. 336, § 56; 22 Barb., 171; arife, p. » Idem, § 50. 55. ^ 2 R. S., 324, § 44. • Idem, § 57. « See 3 R. S., 323, §§ 38, 39 ; see 2 R. S. ' Idem, § 58 ; 22 Barb., 171. ' 2 R. S., 327, § 56; 2 N. T. S. at L., PARTITION. 379 the same to the court on their oath, with a description of the ditferent parcels of land sold to each purchaser, the name of such purchaser and the price bid bj' him ; and such report must be filed in the court, ^ and if such sales be confirmed by the court, an order must be entered directing the commissioners, or any two of them, to execute convey- ances pursuant to such sales ; which they are by statute authorized to do,^ and such conveyances must be recorded in the county where the premises are situated ; and they there became a bar, both in law and equity, against all persons interested in such premises in any way, who have been named as parties in the said proceedings ; and also, against all such persons and parties as were unknown ; when notice had been duly given by publication, of the application for partition ; and also, against all other per- sons claiming under such parties.^ It is not necessary that parties unknown should have actual notice of the partition or sale ; when notice has been published accord- ing to the requirements ol the statute, everything has been done to give them notice which the nature of the case will allow, and that is suflicient to bind them by such proceedings.* Such conveyances also become a bar against all persons having general liens or incumbrances by judgment or decree, on any undivided share or interest in the premises sold, in all cases, where the jiroper notice to the creditors has been given, ^ and also against all persons having specific liens on any undivided share or interest therein, and who have been made parties to the action ; but not otherwise.*^ Costs to he deducted. The costs and expenses of the proceedings must be deducted from the proceeds of every sale thus made by the commissioners ; and they must pay them over to the petitioners or their attorney^ After which the proceeds must be divided among the parties whose rights and interests have been sold, in proportion to their several shares or interests in the premises ; and the shares of those who are of age must be paid to them or their legal repre- > Idem, § 59. '2 R. S, 324; § 43, ante. * Idem, g GO. * Idem, § 327, § 61 (b.) ; 2 N. Y. S. at ^ Idem, § 61 (a.); 17 N. Y., 217. L., 337 ; 4 Taige, 432; 3 Id., 65G. * Mead v. Mitchel, 17 N. Y., 210, 217. ' Idem, § 62. 380 ADIMINISTEATION OF CIVIL JUSTICE. sentatives, by the commissioners, or be brought into court, for their use.^ Where any of the hioivn parties are infants, the court may, in its discretion, direct the share of such infant to be paid over to the general guardian, or to be invested in permanent securities at interest, in the name, and for the benefit of such infant.^ Absent or unhioivn. When any of the parties whose interests have been sold, are absent from the state, with- out legal representatives in this state, or where they are not known or named in the proceedings, the court is requhed to direct their shares to be invested in perma- nent securities at interest, for the benefit of such parties, until claimed by them, or by their legal representatives.' When the proceeds of the sale belonging to any tenant in dower, or by the curtesy, or for life, are brought into court, as directed by statute,* the court is required to direct the same to be invested in permanent securities at interest, so that such interest shall annually be paid to the parties entitled to such estates, during their lives respec- tively.^ For the purpose of protecting the rights of those really entitled, the court, in its discretion, may require all or any of the parties, before receiving their share of the moneys arising from such sale, to give security to the satisfaction of such court, to refund the said share, with interest there- on, in case it shall thereafter appear that such party was not entitled to the money .^ In whose name such security to he taken, or investments to he made. Security thus to be taken by the court, or any security to be taken by the commissioners, on the sale of real estate by them, or on investments to be made by them, under these provisions, must be taken in the name of the clerk of the court, and his successor in oifice, except where they are required to be taken in the name of a known owner," and the clerk and his successor in otfice are to hold the bonds, mortgages or other evidences thereof, in virtue of their respective ofiices.^ After the sale, the order to execute the conveyances must be made before such conveyances can be executed ; ' Idem, § 63; 4 Paige, 443. " Idem, § 65; 16 Barb., 531. "" Idem, § 64. « Idem, § 67. = Idem, § 65. ' Idem, g§ 38, 40. * idem, 325, §§ 50, 51, 52. « Idem. |g 41, 68; 16 Barb., 534. PABTITIOX. 381 and the order should also contain a direction that the com- missioners make a final rei)ort of all their doings under such order, which rejiort must be filed and confirmed by order of the court.^ Proceedings for sale of irremises hy referee. The proceedings in partition when the premises must be sold to etfect a partition or division between the parties and owners, are the same as in cases where actual parti- tion of the premises can be made until the application for an order of reference as to title, under the seventy-eighth rule. These proceedings are founded upon the statute,'^ which provides that instead of appointing commissioners in the first instance to make partition, if it appear by the report of a master, or otherwise, that the premises or any part of them are so circumstanced that a partition thereof cannot be made without great prejudice to the ow' uers, the court may order a sale of such premises at public auction, by one of the masters, uj)on the same notice as hereinbe- fore directed in sales by commissioners, which sales are to be made in the same manner. And on the rejiort of the master being confirmed, he is to execute conveyances to the purchasers at such sales, which are to have the same effect as if executed by commissioners according to the provisions of the statute in such cases.^ The seventy-ninth rule provides that the necessity of sale is to be suggested to the court by the plaintift^'s afii- davit on his application for a reference. The referee takes the place of a master under the statute. The rule provides that when the plaintiff's affidavit to procure such order, states that the whole prelnises, of which partition is sought, are so circumstanced that a partition thereof cannot be made without great i^rejudice to the owners, due regard being had to the power of the court to decree compensa- tion, and to the ability of the respective parties to pay a reasonable compensation to produce such equality, or that some lot or separate parcel of the premises which will exceed in value the share to which either of the tenants in common may be entitled, is so circumstanced that parti- tion cannot be made, &c., that the court may then insert in the order of reference a further direction, that the olficer or XJerson to whom it is referred to inquire and report ' 2 Van Sant. Eq. Pr., 50. * 2 R. S., 330, § 81. 382 ADMIKISTKATION OF CIVIL JUSTICE. ■whether the whole, or any lot or separate part thereof are so circumstanced that actual partition cannot be made, and that if he tinds it so, and that a sale of the whole ijre- ujises or any part thereof will be necessary, that he specify the same in his report, together with the reasons which render a sale necessary, and, in such case, that he also ascertain and report whether any creditor, not a party to the suit, has a specific lien by mortgage, devise or other- wise, upon the undivided share or interest of any of the parties in that portion of the premises necessary to be sold ; and finding no such lien, that he farther iuquire and report, whether the unchvided share, or any interest of any of the parties in the premises is subject to a general lien or incumbrance, by judgment or decree ; and that he ascer- tain and report the amount due to any ijarty to the suit, who has either a general or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien or any undi- vided share or interest therein, by judgment or decree, and who shall appear and establish his claim on such reference. The affidavit calling for this addition to the order of reference must be filed with the other papers used upon the application for the order of reference, to entitle the plain titf to such additional order. Such order being made, the question for the referee to consider, after having ascertained the rights of the par- ties in the premises, is, whether the premises or any part of them, are so situated or circumstanced, that a partition cannot be made, without gTeat prejudice to the owners thereof. He is to inquire whether a sale is necessary. In determining this, the questiou is,- whether the whole pro- perty taken togetlrer will be greatly injured and diminished in value by separating into several parts, and placing it in the hands of several distinct owners ? AYhether the aggre- gate value of the several parcels into which the whole premises must be divided will, when distributed, be mate- rially less than the value of the same property if owned by one person.^ If the referee comes to the conclusion that a sale will be necessary, and that he must so report, &c., he is next to inquire whether any creditor, not a party to the suit, has a specific lien by mortgage, devise, or otherwise, upon any * 9 Paige, 541 ; 10 Paige, 470; 2 Barb., 599. PARTITION. 383 portion of the premises necessary to be sold. This require- ment is in pursuance of the statute,^ which makes it the duty of tlie court to dh-ect the clerk to ascertain and report on the subject of liens, &c., where the commissioners have reported a sale necessary.^ But under the rule^ the referee is required to look into this matter. It was formerly held that this reference was necessary, and could not be dis- pensed with in any case.* A ditferent view, however, has since been taken on that subject. It has been held that where neither party moved for such reference, its omission did not atfect the validity of the judgment or sale,^ and Judge Mitchell subsequently held'^ that the reference and advertisement were only intended as a means of cutting off certain general liens. If there were none such, there was no use of the advertisement ; and if the parties to the suit knew there were none, there was no reason whj- they should be subjected to the expense and delay of a reference for that purpose, and advertisement. If the advertisement were omitted, and there were such liens in fact, the pur- chaser, on examining the title, would discover them, and decline to take the title until the liens were discharged, and so no one would be injured. The judge remarked further, that it would be a dangerous and extraordinary decision to hold that the decree of sale was a nullity where there was no advertisement, when it should appear that no one could possibly be injured thereby, and that, in fact, there were no such creditors by judgment or decree. That, however, as judgments and decrees do not cease to be liens as against heirs-at-law at the end of ten years, the parties to the suit who omit this ordinary advertisement, should be required to produce, at their own costs, regular searches for all judgments and decrees for at least twenty years.' The practitioner, however, should never omit this farther reference and advertisement in every case where there is a reference as to the necessity of a sale. As a question of regularity and practice, the rule is absolute ; and the court would undoubtedly require a compliance therewith before giving judgment for sale.** Although, if from the pleadings and proof, it appear to the court that the premises are in- » 2 R. S., 324, § 43. • 10 How., 188. " Idem, § 37. '' ' Idem, 188; see also 26 Barb., 475; 5 = Rule 79. Abb., 453. * 4 Paige, 481. "2 Van Sant. Eq. Pr., 34. ' 12 Wend., 269. 384 ABMINISTEATION OF CIVIL JUSTICE. capable of partition, a reference to ascertain such fact would be unnecessary, and the court might adjudge the sale of the premises without such reference.^ In such case, the parties, if they choose, can omit the reference as to liens ; and if there are liens the purchaser can refuse to take the title.' The proceedings upon the reference are governed by the rules applicable to reference in other cases. The plaintiff should be required to produce abstracts and trace back his title as a tenant in common in the premises, to the common source of all the tenants in common,^ and his proceedings should in all respects conform to the proceedings where actual partition is sought, under rule seventy-eight, in addition to his proceedings under the reference for sale, under rule seventy-nine. The referee, under the statute* and the above rule,^ to whom the above reference is made, must immediately cause to be pubhshed in the state i)aper, once in a week for six weeks successively, and also in a newspaper printed in every county in which any of the lands in question are situated, a notice requiring all persons having any general lien or incumbrance on any undivided interest or share therein, b}' judgment or decree, to produce to the said referee, on or before a certain day, to be named in said notice, proof of all such liens or incumbrances, and the amounts due thereon, and tbat they specify the nature of said incumbrances, and the dates thereof, and such notice should also contain a description of the land or premises in question.^ The referee should exercise great vigilance in determin- ing whether any liens exists upon the premises or upon the share of each party therein. He should require the records to be searched in the same manner as if he were examining title. The referee may require an abstract of title to be laid before him. He should also be furnished with affidavits as to deaths, descents, intestacy, &c., to enable him to ascertain in whom the estate, or any part thereof, is or has been vested ; and he should summon before him such persons as he ascertains to be creditors having liens, and obtain from them the facts." » 4 Paige, 336. ' Rule 79. ' 10 How., 188. " 2 R. S., 324, § 43. ^ 7 Paige, 39. '' Edw. Ref., 457 ; 2 Hoff. Pr., 184. ♦ 2 R. S., 321, &c., §§ 43, 84. PARTITION. 385' The statute requires the referee to make the investiga- tion with all convenient speed, and report the names of the creditors, the nature of the incumbrances, the dates thereof, and the several amounts appearing to be due thereon.^ Having made the necessary investigations and satisfied himself as to the facts in the case coming within the scope of his inquiries under the order of reference, his next step in the proceeding is to make his report. Report of the referee. Having completed the inquiries directed by the order of reference, he makes up his report and annexes thereto the abstract of title, or he embodies it in his report, and also appends the testimony taken. In his report he recites the order under which he has acted as referee, the appearance of the attorneys and parties before him, the publication of notice as required by law, and the substance thereof. He also includes in his report all his findings, particularly and specifically ; the legal estate and interest of the several parties in the premises, specifying each separately and accurately ; he must also certify and report that the premises described are so cir- cumstanced that they cannot, in his opinion, be partitioned without great injury and prejudice to the owner thereof, stating the reasons for such opinion ; also certifying that he has caused the necessary searches to be made ; finding creditors not parties to the action, naming them, and set- ting forth a description of their claims, &c., and that none others than those named appeared before him on said refer- ence to establish his claim in pursuance of the notice, &c. One of the objects of this reference under this rule^ is, to enable the court to distribute the purchase-money in a proper manner. Therefore, when the referee reports against the claim of any person having a lien by judgment or decree, upon the share of any of the parties, the claim- ant should except to the report in due season, in order to preserve his lien upon the purchase-money, which, by the statute, becomes a substitute for the land.^ Should the death of any of the parties to the partition suit require new parties to be brought in, upon the revival of the suit, a new reference would be required in order to ascertain the rights of the new parties, before a sale could be decreed. Judgment for sale and distribution. The requisites of a » 2 R. S., 324, § 43. ' Edw Ref., 4G1 ; 2 Barb. Ch. Pr., 307 ; » Rule 79 Sup. Ct. 4 Paige, 441, n.— 49 386 ADMINISTRATION OF CIVIL JUSTICE. judgmeut for sale and distribution have already been con- sidered, when the proceedings were conducted by commis- sioners under the statute. They would be the same under these proceedings.^ Sale hy the referee. The notice of sale required to be given, is the same as that required by law on sales of real estate by sheriffs on execution.^ That notice is, by statute' to be as follows : " The time and place of holding any sale of real estate pursuant to any execution, shall be publicly advertised, previously, for six weeks successively as fol- lows: 1. A written or printed notice thereof shall be fastened up in three public places in the town where such real estate is to be sold, and if such sale be in a town, different from that in which the premises are situated, then such notice must also be fastened up in three public places of the town in which the premises are situated ; 2. A copy of such notice must be printed once in each week in a newspaper in such county if there be one ; 3. And if there be no newspaper printed in such county, and the premises to be sold are not occupied by any person against whom the execution is issued, or by some person holding the same as tenant or i)urchaser under such person, then such notice must be published in the state paper once in each week.* And in every such notice the real estate to be sold, must be described with common certainty, by setting forth the name of the township, or tract, and the number of the lot, if there be any, and if there be none, then by some other appropriate description.* The law applicable to the sale of real estate on execu- tion, is applicable to the sale under the proceedings for partition. This has been fully considered in the preceding pages of this volume,^ to which reference is made. The provision that the notice of sale of lands in parti- tion shall be for the same time and in the same manner as required on sale by a sheriff on execution, necessarily implies, that in every case where omission to give notice of sale, or an irregular notice, will not invalidate a sale by a sheriff, a like omission or irregularity will not invali- date a sale in partition.' * For the requisites of stich a judo^ment ' Idem, 369, § 34. order, reference is made to the forms * 2 R. S., 369, § 34. in Edwards on referees, pp. 463- ' Idem, § 35. 475. • Ante, 55, et ,ieq. * 2 R. S., 326, § 56. ' 22 Barb., 167. PARTITION. 387 The title of the cause need not necessarily be inserted in the notice of sale, although it is better that it should be. This may be done by stating the name of the first plaintiff, when there are several, and then adding the words " and others ;" and also the name of the first defendant, adding thereto the same words. This is done for the i)urpose of calling the attention of persons interested to the notice.^ The statute provides that the terms of the sale shall be made known at the time the land is offered for sale.^ This is done by annexing to a copy of the advertisement, a statement that the premises described therein, will be sold under the direction of the referee, upon the follow- ing terms, specifying them. And when the premises consist of distinct buildings, lots or farms, they must be sold separately.'* The statute prohibits the referee or any person for his benefit, to become a purchaser of the premises, or to be interested in the purchase.^ After the sale is made, the referee appends to the notice and terms of sale, a memorandum of the purchase and sale; the memorandum of i^urchase acknowledging the purchase of the premises upon the annexed terms, and agreeing to comply therewith, is to be signed by the pur- chaser, and the memorandum of sale, and the receipt of the same payable in hand, signed by the referee. When the terms of sale reserve to the referee the right to consider the bidding open until the deposit is paid, no sale can be enforced when the purchaser refuses to pay the deposit, or sign the acknowledgment; and in case of such refusal, no order for a resale will be necessary. la such case the referee will proceed to sell again as no sale had taken place.* Report of sale. The next step is for the referee to make a report of the sale. In this report he states fully his pro- ceedings under the order of sale. He should show in such report, that he has fully complied with the requirements of the order, and all the provisions of the statute in reference thereto. Thus, he should state the title of the cause ; refer to, and identify the order under which he has acted ; show that he published, according to law, the requisite notice of ' 6 Paige, 489. ' Idem, § 58, cmte. » 2 R. S., 326, § 57. * 3 Edw. Cli., 338. 388 ADMINISTRATION OF CIVIL JUSTICE. sale ; that the premises or the several parcels thereof were duly sold at the time and place notified, and to whom they were sold, &c.; that the terms and conditions of the sale were reduced to writing and made known at the time; and that the purchasers had complied with the terms, &c. If there has been any irregularity in the sale of which any party wishes to take advantage, the proper exceptions should be taken and filed, and the parties in interest should be duly notified.^ If there are no objection, the next step will be to obtain confirmation of the sale. Confirmation of the sale. Before conveyances can be exe- cuted and delivered, this report of sale must be filed with, and confirmed by the court. K^otice of motion for an order of confirmation, to be made at special term, should be given as in all cases where the order is not one of course,^ although the rules of the supreme court, as amended in 1858, ap- pear to dispense with the necessity of such a motion, &g. Still the thirty-second rule directs the filing of the report, a note, by the clerk, of its being entered on the proper book under the title of the cause, and a service of notice of filing, on all parties who have appeared. Then, if no ex- ceptions are filed and served within eight days after the service of such notice of filing of the report, the report becomes absolute and stands as confirmed in all things. Executing the conveyances — Purchaser declining to take the title^ and 2^roccedings thereon. After the confirmation of the sale, the referee should execute and tender to the purchaser the proper convey- ances, and demand the fullfilment of the terms of purchase according to the conditions of the sale. If the i)urchaser decline completing his purchase, the referee will be required to move the court to compel him to do so. This motion to compel the purchaser to complete his pur- chase is based upon the minutes and conditions of the sale, signed by the piu-chaser, and an affidavit of the execution and tender of the deeds, and of default in the completion of the purchase, and beside this, the purchaser himself may move to be discharged fi'om his pm'chase, and claim back his deposits, and, succeeding in this, he would be entitled to his costs and interests.^ ' See ante. " Edw. Ref., 484; citing 1 Barb, Ch. Pr., 529. » Edw. Ref., 486, 487. PAETITION. 389 Purchasers at all judicial sales have a right to receive at the hands of the court such title as is free from all reason- able objections.^ A purchaser, claiming to be discharged from his contract, should make out a fair and plain case of relief. If he gets substantially what he bargained for he must take a compensation for the deficiency.^ But if there has been any injurious mistake, misrej^resentation or fraud, the bidding will be reopened, the reputed sale will be rejected, or the order of ratification will be rescinded and the i)roperty offered for resale.^ Where the purchaser is responsible, and the proceedings have been regular, and the title is good and free from all reasonable objection, the court will make an order that the purchaser, within a given time, pay the money into court, or to the referee, and be let into possession. But if the purchaser has no design to baffle the court, and is unable to comply-, he may be discharged on payment of costs.* This order to complete the purchase, must be served personally upon the purchaser, and when not complied with, it may be enforced by moving that he pay the money within a time limited or stand committed." Should the purchaser succeed in annulling the sale from defect of title or error, or insufficiency of proceedings of referee, he will be entitled to the repayment of his deposit money and his costs, and a resale would necessarily be ordered. The court have authority, likewise, to direct a resale where a purchaser unjustly refuses to complete his pur^ chase, and in such case the court maj order and direct that such purchaser make good any deficiency in the price obtained at such resale.^ The proceedings on the resale by the referee, are to be the same as in the original sale, to which reference is made.^ Appeals. An appeal in partition cases is now regulated the same as in other actions under the Code. The court, upon appeal, may give judgment either of affirmance or rever- sal, in whole or in jjart, and as to any or all of the parties.^ ' 13 How., 476. • 1 Barb. Ch. Pr., 536; 1 Sug. V. & P., * Sec liar. & GiU, 390. 60; 2 Dan., 920. * Idem, 346; 22 Barb., 167. '' Ante, * 1 Bland., 50. • Code, § 12 ; Rule, 78, * 14 Ves., 512; 2 Dan. Ch., 920. 390 ADMIOTSTEATION OP CIVIL JUSTICE. When the plaintiff's rights are not contested, no copies of the pleadings need be furnished the court ; otherwise, the mode of preparing and bringing on and arguing the ai)peal is, in all respects, similar to that practiced in other cases.^ An appeal from a decretal order directing an actual par- tition and appointing commissioners, is an appeal from an order, and is brought on as a motion, and no appeal lies from a general term decision thereon to the court of ai)peals. A review of such decision in the court of ap- peals can only be had on an appeal from the final judgment rendered on the report of the commissioners making the partition. Although it is otherwise in case of a judgment of sale, &c.^ CHAPTER XXV. VOLUNTAEY ASSIGNMENTS FOR THE BENEFIT OP CREDITORS. There are certain aflSrmative or positive requisites to a valid assignment, made voluntarilj^ by the debtor, for the benetit of his creditors. Every such assignment or con- veyance must be in writing, and must be duly acknow- ledged before an officer authorized to take the acknowledg- ment of deeds,* and the certiticate of such acknowledgment must be duly indorsed upon such instrument of assignment or conveyance, before the delivery thereof to the assignee or assignees therein named f and the debtor must, within twenty days after making such assignment, make and deliver to the county judge of the county in which such * The acknowledgment of deeds may be taken before a justice of the supreme court, a couiitj' judge, surrogate, mayor or recorder of a city (4 N. Y. S. at L., 434), justice of the peace of a town, commissioner of deeds for a city or county, or notary pubUc (1 R. S., 756, § 4; L. 1840, ch. 238; L. 1859, ch. 360); and probably by justices of the New York superior court as supreme court commissioners (2 Duer, 540; 13 N. Y., 259), » 2 Van Sant. Eq. Pr., 69. « L. 1860, ch. 348; 4 N. Y. S. at L., ' Idem. 484, § 1. VOLUNTARY ASSIGNMENTS. 391 debtor resided at the date of the assignment, an inventory or schedule containing: 1. A full and true account of all the creditors of such debtor; 2. The place of residence of each creditor, if known to such debtor, and if not known to him, the fact must be so stated ; 3. The sum owing to each creditor, and the nature of each debt or demand, whether arising on written security, account or otherwise ; 4. The true cause and consideration of such indebtedness in each case, and the place where the same arose ; 5. A statement of any existing judgment, mort- gage, collateral or other security for the payment of any such debt; 6. A full and true inventory of all such debtor's estate at the date of such assignment, both real and personal, in law and in equity, and the incumbrances existing thereon, and of all the vouchers and securities relating thereto, and the value of such estate, according to the best knowledge of such debtor; 7. An affidavit must also be made by the debtor, and annexed to and be delivered with such schedule or inventory, to the effect that the same is, iu all respects, just and true, according to the best of such debtor's knowledge and belief.^ Requisites in respect to the assignee. The hond. The statute requires that the assignee shall, within thirty days after the date of the assignment, and before he shall have any power or authority to sell, dispose of or convert to the purposes of the trust, any of the assigned property, enter into a bond to the people of the state of New York, in an amount to be ordered and directed by the county judge of the county where the debtor resided at the date of the assignment, with sufficient sureties, to be approved by such judge, and conditioned for the faithful discharge of the duties of such assignee, and for a due accounting for all moneys received by him as assignee, which bond must be filed iu the office of the county clerk where the assign- ment is recorded.^ Acceptance by the assignee. To make the assignment valid, there must be an accept- ance of the trust by the assignee, and the acceptance must take place before the property is taken in execution by another creditor.^ It is not necessary that the assignee 'L. 1860, ch. 348; 4 N. Y. S. at L., '24 Wend., 280; 14 Barb., 39; 12 484, § 2. Johns., 418. » Idem, §g 3 and 6. 392 ADMINISTRATION OF CIVIL JUSTICE. unite in the execution of the assignment, or that he enter into any express covenant to perform the trust. When he has accepted the delivery of the assignment and taken possession of the goods, he is bound to perform the trust.* ^^^lere the assignment is made in trust for the benefit of creditors, it is not necessary that the creditors assent to the assignment unless it be made directly to them ; in which case their assent would be necessary .^ "What vests in the assignee. Principle in assignments. It is a general rule of law, that a person cannot transfer to another a right which he does not himself possess ; therefore the assignment transfers to the assignee only such rights and powers as the assignor possessed at the time of making the same. Thus, where an insolvent debtor had assigned a bond which then had five years to run, in trust for the payment of certain credi- tors, and had directed in the assignment that it should not be parted with until the expiration of the five years, and that then, and not before, it should be collected, and imme- diately thereafter made a general assignment, it was held, that the titles to such bond — though the first assignment thereof was void as against the creditors — did not pass to the general assignee, for the first assignment was good as against the assignor, and hence he could not transfer it again ; but that a creditor might reach it by creditor's bill.' This is in accordance with the iH'inciple, that a conveyance of the debtor's property, though void as against his credi- tors, is binding upon the assignor, his representatives and such of his creditors as assent to the same.* The assignee cannot impeach a chattel mortgage, given prior to the assignment, on the ground that it was not filed pursuant to the statute.^ Assignee takes subject to equities. It is also a general rule that the assignee, for the benefit of creditors, stands in the i^lace or stead of the assignor, and has no better or higher rights in respect to enforcing the collection of choses in action. That such assignee is * 11 Wend, 241 ; 3 Paige, 557. * 7 Johns, 161 ; 6 Paige, 577 : 6 Barb., '4 Johns. Ch., 522; 11 Wend, 241. 470. ' 1 Sandf. Ch., 135; 10 Paige, 210. ' 17 N. Y., 580. VOLUNTARY ASSIGNMENTS. 393 not to be regarded as a purchaser for value.* Thus, the assignee takes promissory notes by the assignment, subject to any equitable right of off-set existing at the time of the assignment against the assignor.^ So, also, he takes goods subject to any right of stojjjjage in transitu, which existed against the assignor ;^ or to any trust existing at the time.* A general assignment vests in the assignee, rights of action existing at the time in favor of the assignor, where such right of action would survive to the personal repre- sentatives of such assignee, as, the right to recover damages for the conversion of personal iDroperty would pass by general assignment.^ 27ie rights of the dd)tor in making assignments — Preferred creditors. It is well settled in this state that a debtor has a right, in making an assignment, to prefer one creditor to another; and equitj^ will recognize such right.^ So a debtor may prefer his surety on a note not matured as an indorser on an outstanding note.^ Although a general provision for the payment of debts will not include a debt void for usury, yet, when the assignment clearly provides for the xjayment of such debt, the creditor will be entitled to the amount justly due thereon.^ So, where an assignment prefers a particular judgment obtained on a usurious debt, it is valid, on the principle that the debtor has the same right to assign property for the jjayment of the judgment in preference to other debts as he would have to pay it directly.^ A debtor in failing circumstances, where there is no code of bankrupt or insolvent laws providing to the contrary, may make an assignment of his property in trust, prefer- ring one class of his creditors over another.^" Courts of law consider the property of the bankrupt completely at his disposal before an act of bankruptcy is committed, so far as to protect a creditor in receiving money or goods in the usual course of business.^* > 15 N. Y., 195 ; 17 Id., 28, 580 ; 2 Ml Wend., 241 ; 2 Johns. Ch., 304 . Barb., 475. " 7 Paige, 615 ; 4 Barb., 332. » 5 Paige, 592. » 9 N. Y., 73. » 6 Duer, 606; 17 N. Y, 249. " See authorities collected in Tiff. & B. « 6 Johns. Ch., 437. Trusts, 283. • 12 N. Y., 622. " 1 Johns., 370; see 5 Id., 412. • 5 Johns., 335 ; 15 Id., 571 ; 17 Id., 438. n.— 50 394 ADMINISTEATION OF CIVIL JUSTICE. The debtor will vitiate the assignment if he reserve the surphis to himself, after paying certain preferred creditors; and does not make ample provision for paying all his debts. Thus, where an insolvent assigned all his property in trust to pay certain preferred creditors, making no provisions for the others, and then provided for a reconveyance of the residue to himself, the assignment was held to be void.^ So, likewise, the debtor is not at liberty to create in the deed of assignment any trust for his own benefit. The statute expressly declares that all deeds of gifts, all convey- ances, and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against creditors, &c.* Any provision in the assignment, that the residuum, after paying the irref erred creditors, or those signing the deeds or executing a release, &c., shall belong to the assignor, before all the creditors were paid, would render the assignment void. If any part of the property be reserved to the debtor, or to be reassigned to him before the payment of the entire claim of the creditors, that would vitiate the assignment.^ lAmited 'partnerships. A limited partnership is not permitted to make assign- ments giving preferences to its creditors. The statute declares that every sale, assignment, or transfer of any of the property or effects of a limited partnership, when in- solvent, or in contemplation of insolvency, or after, or in contemplation of, the insolvency of any partner, with intent to give a preference to any creditor of such i)artnership or insolvent partner, over other creditors of such partner- ship, &.C., shall be void, as against the creditors of such partnership.* The statute also makes a similar i)rovision applicable to the sale, &c., of the property of a general or special partner.^ It is also to be observed that insolvent debtors, who, in their assignment, create a preference among their debtors are thereby debared of the right of discharge under the insolvent act.^ Insolvent corporations are not permitted to make assign- ' 2 N. Y., 365; 15 Id., 176. « 1 R. S., 766, § 20; 9 Abb., 132. » 2 R. S., 135 ; 2 N. Y. S. at L., 140. ' 1 R. S.. 766, ^ 21 ; 6 Paige, 581. » 6 Hill, 438. • 2 R. S., 20, § 24. VOLUNTARY ASSIGNMENTS. 395 ments giving preference among their creditors, and any such manifest intent will vitiate the assignment.' But cor- porations, whether trading or religious, may, at common law, assign their property in trust for the payment of their debts, when there is nothing in their charter restraining such power.* Assignments when void upon tJieir face. As we have just seen, limited partnerships, &c., may not make assignments for the benefit of their creditors giving preferences, &c., nor are corporations permitted to do so ; consequently when an assignment is made b}'' them, in which such preference appears, it will be void upon its face.^ All assignments in trust for the use of the assignor, of goods, chattels or things in action, are void as against creditors.* Thus, an assignment by an insolvent debtor of all his projjerty in trust to pay certain specified credi- tors, and then without making provisions for other creditors, in trust to reconvey the residue to the debtor, is fraudulent and void upon its face.^ An assignment containing distinct trusts which are independent of each other, some of which are valid and some of which are void, may be sustained as to those which are valid, unless, by statute, the deed creating the trust is declared' void, in which latter case the whole deed must be held void.^ Wherever the debtor includes in his assignment any provision which looks to his own personal advantage as against the interest of his creditors, or when he provides for a continuance of his own supervision over, and control of, the assigned property, inconsistent with the transfer of the absolute legal title to the assignee, it will raise a pre- simiption of fraudulent intent ; and there being a fraudu- lent intent on the part of the debtor, it will vitiate the assignment.'^ So, also, any requirements which are coercive of the creditors, imposing conditions that are not equitable or ' 1 R. S., 591, § 9. ' 2 N. Y., 365, .371 ; 6 Hill, 4.38. ' 3 N. Y., 238 ; 21 Barb., 221 ; 5 Abb., " 22 Wend., 483 ; see 2 N. Y., 365. 415. ' 18 Barb.. 272; 24 Id., 105; 14 Johns., * Ante. 458; 11 N. Y., 302. ♦ 2 R. S., 135, § 1. 396 ADMmiSTKATION OP CIVIL JUSTICE. just, before the creditors are to be entitled to the benefit of tiie assignment, will render the assignment void.^ Construction. When an assignment is impeached, as being fraudulent upon its face, the question is, are the provTsious of the instrument such, that when carried out according to their apparent and reasonable intent, they will be fraudulent in their operation ? Fraud will not be presumed where the instrument admits of an innocent construction.^' Thus, an assignment of certain property in trust to pay certain creditors, which does not show that there are other creditors, nor does it purport to con- vey all the debtor's property, or to make any provision for any surplus, is not necessarily fraudulent. It may be so, but it will not be presumed to be.^ Authority to sell on credit wiU vitiate. It is well settled that if the assignment authorize the assignee to sell on credit, it will be void. The principle is, that the creditor's have a right to the immediate appli- cation of the debtor's property to the payment of their claims, and that this right can not be postponed by the debtor. That to sell on credit tends to hinder and delay creditors.* An authority to sell for " available means," as distinguished from money, was held to imply a sale on credit, &c., and vitiated the assignment.^ But an assign- ment will not be construed as authorizing a sale on credit, when its language is consistent with a different interpre- tation.^ A general discretionar}^ power committed to the assignee, as to the time and terms of sale, will avoid the assignment. It includes the power to seU on credit.'^ The assignment must not authorize the substituting the will of the debtor, or of his assignee, or even their discre- tion, for the judgment of the court. The debtor can authorize no delay not necessarily incidental to the trust.^ Thus, where a manufacturer of steam engines made a voluntary assignment for the benefit of his creditors, and therein authorized the assignees to apply the proceeds of the sale of the assigned property for the purpose of fiuish- ' 2 Barb., 9 ; 5 Johns. Oh., 329 ; 20 * 2 N. T., 365 ; 6 N. Y.. 510. Johns., 452. M3 N. Y., 215. » 15 Barb., 56; aflf'd, 11 N. Y, 302; « 11 N. Y., 302. 15 Barb., 618; 22 Id., 550. ' 11 N. Y. L. 6., 87 ; see 2 Barb., 381; 8 Barb., 124- 3 Abb., 400; 22 Barb., 7 Paige, 568; 10 Id., 223. 550 17 N. Y., 9; 6 Abb., 357. VOLimTARY ASSIGNMENTS. 397 ing up a number of engines in a state of forwardness, &c., it was held that the assignment was void.^ An authority to the assignee to do that, which, without any particular direction in the assignment, he would be authorized to do, does not vitiate.^ An assignment ivitli intent to hinder and delay creditors^ where such intent is apparent, is void upon its face. When that which is authorized to be done, necessarily involves the power to hinder and delay creditors, &c., it will vitiate the assignment.^ Power to compromise does not vitiate. Thus, where the provisions in an assignment declared, that in the collec- tion of debts due the assignor, the assignee might, in the exercise of a sound discretion, compromise such as were doubtful debts. It was held that it tended to a more speedy settlement and realization by the creditors of their claims.* Such an authority to compromise is no evidence of a fraudulent intent.^ Provisions in favor of the assignee. Any general discretionary power given to the assignee by which he can control the time and manner of converting and applying the proceeds of the debtor's property to the payment of his debts will vitiate. Thus, an authority to take immediate possession of the debtor's property, and to convert the same within a "convenient time," &c., is in fraud of the rights of creditors.'^ Exemption from liaMlity for negligence, which operates to exonerate the assignee from the consequences of any want of ordinary diligence, which, in the absence of such clause, he would be bound to employ, will vitiate the assignment. Authorizing a counsel fee where the assignee was an at- torney, was held to render the assignment void.' Other- wise when he was authorized to employ suitable agents, &c., at a reasonable compensation, &c.^ Assignment held void upon extrinsic evidence. Where an assignment appears fair upon its face it may, nevertheless, be impeached by evidence showing a fraudu- ' 17 N. Y., 9 ; 6 Abb., 357. * 16 N. Y., 562; 19 Barb., 176. » 11 Barb., 198. ^ 15 Barb., 618. ' 2 R. S., 137, § 1 ; 2 N. Y, 365 ; 6 ' 9 Barb., 255. Id., 510; Id., 522; 9 Id, 142; ■" 17 N. Y., 22. 13 Id., 215 ; 11 Id., 302. " 17 Barb., 388. 398 ADMINISTRATION OF CIVIL JUSTICE. lent intent on the part of the assignor in executing the same. The intent must be to commit a fraud upon the el-editors by such assignment.^ Bat this intent may be inferred froin the transaction itself. Thus, where a debtor, being sued by one of his creditors, assigned his stock of good's and accounts absolutely so as to give the preferred creditor the full benetit of the assigned property, if more than enough to pay the debt, but if less the debt was to be extint'-aished j^ro tanto. The court held that the assign- ment^must be deemed fradulent, as no reason could be seen for making an absolute assignment of all the property to the creditor without risk or loss to him, unless upon some secret or implied understanding between the parties to keep the surplus for the assignor.' Fraud may be inferred from an excessive amount of property assigned, compared with the amount of debts.^ An agreement to employ the assignor as agent of the as- signee, upon a salary, would be a strong badge of fraud.* Making such an assignment to an insolvent assignee, is a fraud iipon the creditors;'^ so if made to one incompetent to discharge the trust f so where the assignor retains the possession of the goods assigned," or is permitted to con- tinue in possession of the same.^ An actual removal of the property is not absolutely necessary, but the evidence must be clear and public that the transfer was actually made.^ A valid assignment cannot be changed. A valid assign- ment for the benetit of creditors fixes their rights, which can be varied afterwards without their consent. An agreement by the trustee, without such consent, after the making of the assignment, to indemnify one of the as- signors, out of the property assigned, against suits touching his own property merely, is void.'" The assignee. His rights, duties and liabilities. The assignee becomes at once a trustee for the creditors, and as such, he has the i^owers and rights of such trustee. He is authorized and required to take immediate measures » 24 Barb., 105; 6 Abb., 371 {note). ' 4 Edw., 21. » 7 Paige, 163. » 7 Paige, 87 ; 1 Sandf. Ch., 348. M Paige, 305. « Hoff., 511; 1 Sandf. Ch., 251; 21 •6N. Y.. 510. Barb., 469. " 1 Paige, 298. " 1 Duer, 58 ; see also, 28 Barb., 593. • 2 Sandf. Cli., 353. VOLUNTAKT ASSIGNMENTS. 399 to convert the assets of the debtor into money for the pay- ment of the claims of the creditors. If the assignee fails in the discharge of his duties as such, the statute provides for calling him to an account. It provides that after the lapse of one year from the date of the assignment, the county judge of the county where the inventory of the pro- perty assigned is tiled, shall, upon the petition of any creditor of such debtor or debtors, have power to issue a citation or summons compelling the assignee to appear before him and show cause why an account of the trust fund created by any such assignment, should not be made, and to decree payment of such creditor's just proportional part of such fund.^ The same statute also provides, that such county judge shall have power and jurisdiction to compel such assignee to account, in the same manner and to the extent that surrogates have the power in relation to the estates of deceased persons. And that the judge shall have power to examine the parties to such assignments, and other per- sons, on oath, in relation to the same, and to the account- ing, and to all matters connected therewith, and to compel their attendance for such purpose.^ JSicit on the bond of the assignee. It has already been shown that the assignee, before he has authority to sell or dispose of the property assigned, or to convert it to the purposes of the trust, must enter into bonds to the people of the state, as before described, conditioned for the faithful discharge of his duties.^ When- ever the assignee shall omit or refuse to perform any decree or order made against him by a judge or court having jurisdiction to compel the payment of any debt out of such trust fund, such county judge or court may order such bond to be prosecuted by the district attorney in the name of the people, and the moneys collected there- on must be applied in satisfaction of the claims of the creditors in the same manner as they ought to have been applied by the assignee.^ In the action on such bond the suit will be commenced and conducted as in other civil actions under the Code. It is the duty of the assignee to pay over the proceeds > L. 1860, ch. 348, § 4; 4 N. Y. S. at ' L. 1860, ch. 348, § 5; 4 N. Y. S. at L., 485, § 4. L., 485, § 5. • Ante. 400 ADMTNTSTRATION OF CIVIL JUSTICE. of tlie property assigned to the creditors, as soon as their respective rigbts can be ascertained. If he delays in doing so, after the property has been converted, he will be cbar<'-eable with interest. Where an assignee had received the proceeds of the property and had neglected for years to distribute the fund, he was decreed to pay the amount and interest from the time of receiving the same, and also the costs of the suit brought by the creditors.^ The assignee, acting in good faith, will be protected in the discharge of his duties. Thus, where he had distri- buted the proceeds of the assigned estate among the credi- tors, and the assignment was subsequently held to be void, at the suit of a creditor who had not obtained a lien there- on until the filing of his bill, it was held that the assignee was not answerable to such creditor.^ Compensation. The parties may provide for a reasonable compensation to the assignee for his services as such ; and when no provision is made in the instrument of assign- ment, he will be allowed the same commissions as are by law allowed to executors and guardians, to be computed in the same manner. The statute allowance will be con- sidered as tacitly agreed upon in all cases when nothing appears to the contrary.^ Appeal. In the proceedings before the judge as author- ized by section foiu* of the act of I860,* the parties inte- rested in the accounting of the assignee, have the same right of appeal from any order or decree of such judge in the premises as is given from the decrees of surrogates in relation to the accounts of executors and administrar tors.* CHAPTER XXVI. COSTS. The losing party, or party in the wrong, ought as a general rule, to pay the expenses of litigation, to which, ' 1 Johns. Ch., 82. » 9 Paige, 398 : see also, 2 N. Y., 365 » 4 Paige, 23; 6 Id., 13: 4 Sandf. Ch., Hill & D. Sup., 105. 552. « 4 N. Y. S. at L., 485, § 4; L. 1860, ch. 348, § 4. COSTS. 401 by mecans of his wrong, the other party has been subjected ;^ to accomi)lish this, to some extent, in most cases the pre- vailing party recovers costs against the other. The right to costs is purely statutory. At common law neither party recovered costs against the other.^ Formerly, in chancery, costs were awarded in the discretion of the court, upon a full and satisfactory view and determination of the whole merits of the case, and not always depend- ing upon the event of a cause.^ At law there was a fee bill, by which the amount of compensation to the attor- ney and counsel for each proceeding in the cause was fixed, and this allowance was made the measure of allow- ance to such attorney and counsel, as well against his own client, as against the other party, in case of their recovery against him by means of the successful result of the cause. By the Code, all statutes establishing or regulating the costs or fees of attorn ejs and counsel in civil actions, and all existing rules and provisions of law restricting or con- trolling the right of a party to agree with an attorney, solici- tor or counsel for his compensation, were rej^ealed ; and the measure of such compensation is left to the agreement, express or implied, of -the parties.* lu lieu of these costs, the Code provides certain fixed amounts, that may be allowed to the prevailing party, upon the judgment by way of indemnity for his expenses in the action.* When the Code was first enacted, this provision only affected actions and proceedings imder its provisions, but such legislation has since transpired as to render its pro- visions applicable to almost all actions and special proceed- ings, at least so far as fixing the amount of the allowance is concerned. The Code, in addition to fixing the amount of costs that may be recovered, has to some extent made provision as to special cases, in which parties may not be liable, and where those not parties are liable. There are several statutes as to the liability to costs in special cases, and, under peculiar circumstances, that are still in force not- withstanding the provisions of the Code. There is, perhaps, no subject growing out of the enacting of the Code, upon which there has been so many and such a diversity of * Booth V. Smith, 5 Wend., 107. ^ Eastburn v. Kirk, 2 Johns. Ch., 317. ' Supervisors of Onondaga v. Briggs, 3 * Code, § 303, Denio, 173. n.— 51 402 ADMINISTEATION OF CIVIL JUSTICE. oi)inions as upon this subject of costs. It is not proposed to discuss in this chapter the great number of conflicting decisions ou this subject, or even to refer to them, but to state the law, &c., as it is believed to be now settled. Ordinarily all parties to actions or special proceedings are liable to such costs as the statute in such cases imposes or confides to the discretion of the court to impose, but in some instances parties are, by statute, or may, by order of the court, be exempted from these liabilities. These cases of exemption will be first considered. Suits by 2^oor j)€rsons. Every poor person not being of ability to sue, who shall have a cause of action against any other, may peti- tion the court in which such action is depending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have counsel and attorneys assigned to conduct his suit.^ The petition must state, first, the nature of the suit brought, or intended to be brought ; second, that the applicant is not worth twenty dollars, excepting the wear- ing apparel and furniture necessary for himself and his family, and excepting the subject matter of the action, when not in possession thereof; and shall be verified by his own affidavit, and supported by a certificate of a coun- selor of the court, that he has examined the claim, and is of opinion that such poor person has a good cause of action. This being an application on which a final order is sought in a matter in which the defendant has a direct interest, it would seem that notice of the application should be given f if the application is not made until after the defendant has appeared, it is clear that notice of the ajiplicatiou must be given.^ The statute does not imperatively require permission to be granted in all cases to sue as a poor person, merely because his property does not exceed in value twenty dol- lars, though it appears he has a good cause of action.* The statute should be strictly construed,® and the order should not be granted unless a fair and just case is estar ' 3 K. S., 5th ed., 744 [445]. « 1 Duer, 706. ' 1 Paige, 40. » 2 HilL 413. ' 1 Paige 40 ; 6 Hill, 257. COSTS. 403 blisbed. Chancellor Walworth said, "applications of this kind are not to be encouraged in this state, where every healthy and industrious citizen can earn suthcient to support himself."^ A wife may be permitted to file a bill for separation by her guardian as a poor person,^ and so may a married woman for damages for injury to her separate property.^ The motion will be denied where there is unreasonable delay after the suit is commenced in making the application ;* and if the order is granted after the commencement of the suit, the party will be liable for the costs incurred before the order was granted.' It is doubtful whether a non-resident will be permitted to sue as a poor person," or whether any one will be allowed to defend as such.^ The liability for costs of a former suit does not prevent suing as a poor fjerson.^ The statute provides^ " that the court to which such petition shall be presented, if satisfied of the facts alleged, and that the applicant has a meritorious cause of action, shall, by rule, admit him to prosecute as a poor person, and shall assign to him counselors, solicitors, attorneys, and all other ofiicers requisite for prosecuting his suit, who shall do then* duty therein without taking any reward for the same. And that every jjerson so admitted may prose- cute his suit without paying any fees to any ofiicers or ministers of justice ; and shall not be prevented from prosecuting the same by reason of his being liable for the costs of any former suit brought by him against the same defendant ; and if he be nonsuited, or a verdict or judg- ment be. given against him, or his bill be dismissed, or a decree be rendered against him, he shall not be liable for any costs in such suit." Nor is he liable for interlocutory costs until he is dispaupered.^" This statute does not apply to bringing appeals." If the person so prosecuting be guilty of any improper conduct in the prosecution of his suit, or of any willful or unnecessary delay, the court may, in its discretion, annul the order admitting him to prosecute as a poor person, and ' 1 Paige, 40, 588. '' 1 Paige, 588. ' 3 Paige, 387. "18 How. Pr., 466. ^ 18 How. Pr., 466. "3 R. S., 5th ed., 745 [445]. * 1 Duer, 705. " 20 Wend., 679. " 1 Paige, 588. " 2 How. Pr., 35. • 6 Hill, 257. 404 ADMINISTRATION OF CIYTL JUSTICE. he shall thereafter be deprived of all the privileges con- ferred by such order.^ Trustees of express trust, &c. In actions prosecuted or defended by an executor, ad- ministrator, trustee of an express trust, or a person expressly authorized by statute, costs are chargeable only upon or collected of the estate, fiiend or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense.^ To entitle a plaintiif to exemi^tion from costs because of his suing in a representative capacity, he should show by his complaint that he seeks to recover in that capacity.^ A receiver, sueing for any debt, claim or demand trans- ferred to him, or to which he is entitled as such, is not personally liable for costs, even though he sues without leave of the court, unless ordered to pay costs by the court.^ So, where a receiver prosecutes an action in good faith, he is not liable for costs for not proceeding to trial, where a good reason is shown for not doing so.^ A gene- ral assignee for the benefit of creditors is a trustee of an express trust, and is not personally liable for costs, unless the court so order for the reason of his mismanagement or bad faith in the action f but where an action is brought by an assignee for the benefit of creditors, in his capacity as such, and in that action it is decided that the assign- ment is void, the plaintiff is liable for costs, without any order of the court.' An executor or administrator who sues in good faith, and with a reasonable belief that he may succeed, ought not to be charged personally with costs f and where he has brought a wrong action by mistake, or has ascertained that it would be useless to proceed, in consequence of facts subsequently discovered, he will be permitted to dis- continue without costs as well before as after a hearing.^ Where an executor or administrator resists a claim in good faith, and from a conviction of duty, and where no » 3 R. S., 5th ed., T45 [445] ; 20 Wend., » 12 How., 305 ; 4 Cow., 548. 6'?9. ' 30 Barb., 441. 'Code, §317. 8 11 Paige, 99; 6 Id., 34'?: 1 Edw., ' 15 Abb. Pr., 194. 477. * 4 Bosw., 614. » 1 Paige, 82. » 9 How. Pr., 343. COSTS. 405 intentional or willful default is made to appear, he will not be charged personally with costs.^ The bad faith or mismanagement which would render a trustee, &c., per- sonally liable for costs, is understood as relating to the particular action, and not to conduct in the trust gene- rall3\^ The power to grant costs against such trustee rests with the court. A referee may certify his opinion in rela- tion thereto, but cannot make an order charging a party .^ Costs will be allowed against an executor or administrator personally, if he suffer judgment of non pros* or judgment of nonsuit, for not proceeding to trial,^ or where his pro- ceedings are set aside for irregularity.^ So, where he unnecessarily sues in his representative capacity.' As a general rule, where an executor renders himself personally liable for damages, he is liable for costs.^ Where it is claimed that the trustee or executor or other representative is personally liable for costs, a motion for an order to that effect should be made. It would be irregular to enter judgment for such costs without first having such order,^ and if a judgment should be thus irregularly entered, the facts which it is claimed render such executor personally liable will not be listened to in opposition to a motion to set aside such judgment for such irregularity.^" Against executors and administrators. If there shall be a recovery in a suit brought against an executor ujjon a claim against an estate, no costs can be recovered against such executor or administrator, either personally or to be levied of the property of the deceased, unless it appear that the demand on which the action was founded, was presented, within the time advertised for creditors to present claims, and either that the claim was unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to statute." There are no other grounds for giving costs.^^ First, it must be shown that the claim was duly pre- sented. A vague, general demand of a gross sum is not a 1 Johns. Ch., 473. ' Idem, 441 ; 4 Id., 47 ; 18 Weud., G35. " 22 How. Pr., 281 ; 21 Id., 275. ' 4 Barb., 626. ' 12 How., 300. ' 2 How. Pr., 15. * 4 John.s., 190. "° 9 Wend., 448. * 1 Wend., 34. " 3 R. S., 5th ed., 176 [90]. * 3 Hill, 444. " 9 Barb., 388; 6 Id., 341. 406 ADMINISTEATIOIf OF CIVIL JUSTICE. suflScieDt statement of the claim. The statute contemplates the presentment of an amount, or some claim which may be supported by vouchers, and, if requbed, by the affidavit of the party presenting it.^ The creditor is not bound to exhibit the evidences of his claim, or make oath of the jus- tice thereof, unless required to do so by the executors.' The executor is not bound to give notice to the creditors to present their claims,-' but if he does give notice, the claim must be presented within the time fixed by the notice.'' And where the claim did not exist till after the expiration of the time presented in the notice, no costs can be recovered.^ It is said that where an action, on the death of the defendant, abated, and it was revived and continued against his administrators without presenting to them the demand and offering to refer, and the plaintiff recovered judgment for less than the amount he claimed, that he could not recover costs from the administrators;^ but where a defendant, in an action upon contract, dies pend- ing the action, and it is continued by order of the court against his personal representatives, the plaintiff will recover costs against the estate of the deceased, if the verdict be one which would have entitled him to recover costs of such defendant had he not died." When the claim is presented to the executor, he should be allowed reasonable time to confer with his co-executors, and to inquire and examine into the circumstances on which the claim is founded.^ After such reasonable time it should appear that the chiimant offered to refer, notwith- standing it is said in Fort v. Gooding,^ that if the execu- tors unqualifiedly reject the claim as unjust and not due, unaccompanied with any offer to refer it under the statute, the creditor is under no obligations on his part to propose a reference. It would seem to be a sounder interpretation of the statute that the rejection of the claim is not sufficient evidence of a refusal to refer ; if either party desires to refer he must offer to. The executor cannot be said to refuse until the claimant in some way manifests his willingness to refer.'*^ An oft'er to arbitrate is not a sufficient otter to refer," nor is an offer to leave it out to some disinterested ' 9 How. Pr., 350. ' 3 Duer, 669. "" 6 Hill. 389. » 16 How. Pr., 40t ; 6 HiU, 386. =* 1 Denio, 276; 4 How. Pr., 217. ' 9 Barb., 388. * 1 Denio, 276. » 15 How. Pr., 304; 16 Id., 407. ' 3 Id., 261. » 12 Wend., 278. ' 15 How. Pr., 79. COSTS. 407 persons.^ There is nothing in the statute which necessarily requires a personal interview between the claimant and the executor,^ and it seems that a neglect to answer an offer or proposition might be deemed a refusal.^ If the claim has been regularly presented, and, upon the offer being made, the executor refuses to refer, or unreason- ably neglects to make any reply, the plaintiff will be entitled to costs of his action. To make the executor liable for costs for having unrea- sonably resisted or neglected a claim, it must be shown that he neglected his duty, or that he acted captiously and in bad faith with the claimant. As to what facts would amount to an unreasonable resistance, or what omission to pay would amount to an unreasonable neglect, must necessarily depend upon the facts of the particular case.'' If it can be shown that the executor knew the facts on which the claim rested, and those facts establish a manifestly just claim, it can well be said the refusal is unreasonable ; if he concedes the justice of the claim, and it can be shown that he has funds that can properly be appropriated to the payment of it, then the neglect is unreasonable ; but if, on the other hand, he has no assets, he cannot be charged with costs for a refusal to pay.^ Nor can he be said to have unreasonably refused if a material deduction from the claim is made in determining the amount of the recovery,'' or the amount of the recovery is reduced by a set-off that the party refused to allow.'' The fact that the plaintiff's claim was reduced is not always evidence that the claim was not unreasona- bly resisted ; if the plaintiff has a clear right to recover, and fails not as to the right of his claim, but on the ques- tion of value, and it not appearing that he had attemi)ted to be extortionate in his demand, it is said that the executor ought to have offered to allow the claim at what he believed was right, and not having done so he would be charged with costs.^ It is said that the representative is bound to refuse to refer a claim which is essentially of an equitable character, and that he will not be charged with costs for such refusal,^ but this does not seem to be free from doubt.^" ' 12 How. Pr., 282. ' 13 Wend.. 453; 1 Barb., .519. » 6 HiU, 391. ' 7 Wend., 522. ' 15 How., 304. ' 9 Barb., 390; 6 Weiid., 554. * 5 Wend., 74; 6 Id., 554; 7 Id., 528. » 18 How. Pr., 438. ' 1 Denio, 276. " 3 Denio, 161. 408 ADMmiSTEATIOX OF CTVIh JUSTICE. The plaintiflf having recovered, if he desires to charge the executors with costs, must move at special term for an order allowing costs. The statute provides that if the action be brought in the supreme court, the facts shall be certified by the judge before whom the trial shall have been had ;^ but this certificate alone is not sufficient ; the facts relied upon to show that the defendant is liable for costs should be set forth in the moving papers, so that the court may decide upon them.^ Munidpcd co'rporations. No costs, fees, disbursements, or allowance can be re- covered or inserted in any judgment against a municipal corporation, unless the claim, upon which such judgment is founded, shall have been presented for payment to the chief fiscal othcer of said corporation before the commence- ment of an action thereon.* This rule applies to claims for damages on account of the negligence or misconduct of the authorities as well as to demands upon contract.* Security for costs. Under the provisions of the Revised Statutes, when a suit shall be commenced in any court : 1. For a plaintiff not residing within the jurisdiction of such court, or for several plaintiffs who are all non-residents ; or, 2. For or in the name of the trustees of any debtor ; or, 3. For or in the name of any person being insolvent, who shall have been discharged from his debts or whose person shall have been exonerated from imprisonment pursuant to any law, for the collection of any debt contracted before the assignment of his estate ; or, 4. For or in the name of any person committed in execution of a crime ; or, 5. In the name of an infant whose next friend has not given secu- rity for costs, the defendant may require such plaintiff to file security for the payment of the costs that may be incurred by the defendant in such suit or proceedings, and if after the commencement of a suit the plaintiff shall become a non-resident, or all the plaintiffs shall become non-residents, or insolvent, and be discharged or exonerated as aforesaid, or be sentenced to state prison for a term less 3 R. S., 5th ed., 176 [90]. ^ j^^^,^ jgg^^ --q ^-^ 262. S 2. 6 Hill, 399; 18 Weud., 531; 12 Id., * 36 Barb.. 226. 195. COSTS. 409 than for life, the defendant may also require such security to be filed.^ By the provisions of the Code, the court may also, in its discretion, require a plaintiff to give security for costs in an action prosecuted by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute.^ As to /(yreign corporations, it is provided by statute that they may prosecute actions in this state the same as cor- porations created under the laws thereof, upon giving security for the payment of the costs of suit.^ If such corporation omit to give security its proceedings will be set aside on motion ; but where the omission was casual, it will be allowed to proceed upon complying with the statute and paying costs of the motion.* The power to require security for costs is inherent in the court, and it has the power of staying proceedings till security for costs shall be filed independent of the statute.^ This ijower is rarely exercised except in cases where, with- in the spirit of the statute, there should be security, as where the plaintiff is insolvent and the real party in inte- rest is a non-resident ; it may sometimes be exercised where it is clear that the prosecution is mahcious, frivolous and vexatious. The tribunals of this country are, of common right, open to every one who is answerable, either in per- son or property, for the goodness of his demand. The courts are very cautious in requiring security for costs in cases where it is not required by statute, lest some one too poor or too friendless to give the required security should be precluded from ijrosecuting a just cause of action. When to make the application. The application should be made as soon as it comes to the knowledge of the defend- ant that the plaintiff is liable to give security.^ It has been said that where the non-residence of the plaintiff appears on the face of the complaint, if the de- fendant take any step in the cause, he waives security for costs.^ This was the English rule; but it does not seem to be the rule in this state f here he is not required to apply at the first opportunity f but where the application was not » 3 R. S., 5 ed., 910 [620], 2 Sandf., ' 18 Wend., 652 ; 1 Denio, 659 ; 3 How. 632. Pr., 136. ' Code, § 317, " 8 Johns. Ch., 520. » 2 R. S., 457. ' 3 Johns. CI)., 520. « 19 Wend., 10. ' 18 Wend., 652. n.— 52 • 1 Edw., 449 ; 4 Sandf. Ch., 434. 410 ADMIKISTEATION OF CIVIL JUSTICE. made until the cause had been referred and noticed for hcariug, it was denied.^ So, where the application was not made till after verdict,^ but this would not be so if the uou-residence of the plaintiff had just been ascertained.^ The application. Where the application is under the statute, it may be made to the court in which the applica- tion is pending, or to any judge thereof in vacation ; in other cases the application must be made to the court. An affidavit should be prepared showing the facts entitling the defendant to such security ; and on this, notice of the application to the special term should be given ; but where the security is claimed under the statute, the usual practice is to apply to a judge at chambers for an order that the plaintiff file security within a given number of days or show cause, at a time and place to be specified in the order, why he should not be required to file security.* It is usually ordered that all proceedings be stayed until secu- rity is filed and the sureties shall have justified if excepted to.'^ If security is not filed and the defendant's motion is granted, a peremptory order operating as a stay of pro- ceedings, will be allowed. Then if security is not tiled within a reasonable time, a motion to dismiss the com- plaint will be granted.^ Effect of the order to slioiv cause. The order to show cause suspends the running of the twenty days in which the defendant is required to plead, until the plaintiff has filed securities and his sureties have justified if excepted to, unless he should succeed in showing cause against the order,' Security. The security is required to be in the form of a bond, in a penalty of at least two hundred and fifty dol- lars, with one or more sufiicient sureties to the defendant, conditioned to pay on demand all costs that may be awarded to the defendant in such suit. It must be filed with the clerk of the county where the venue is laid, and notice thereof must be given to the defendant or his attor- ney. The bond need not follow the precise words of the statute ; it will be sufficient as against the defendant's objection if equally favorable to him." It need not be signed by the plaintiff, nor need it be signed by more ' 1 Duer, 105; 3 Id., 613. » 2 R. S., 620; 3 Wend., 445. ' 13 Johns., 330. « 15 Abb. Pr.. 271. ' 14 Abb. Pr., 1. •> 3 How. Pr., 246. * 8 How., 492. • 2 Code R, 14. COSTS. 411 than one responsible surety.^ It must be proved or acknowledged. Excepting. Witbiu twenty days after the service of notice of filing tbe bond, the defendant may except to the sufliciency of the sureties, by giving notice of such excep- tion to the plaintiff's attorney.^ A notice that the defend- ants do not accept the bail put in is not a sufficient exception.^ Justification of sureties. Within twenty days after such notice of exception the sureties must justify, by an affi- davit that they are worth double the penalty of such bond, over and above all debts ; of which affidavit a copy must be served on the defendant or his attorney.* And this justification must be made notwithstanding an affidavit of justification was made and served with the boud.^ If more than one surety has signed the bond given under a rule to file secm'ity, the justification by one is sufficient. A proper justification operates to discharge the order to stay jjroceedings. Hearing of motion. If the party supposes that he is not liable to give security, he may, on the motion, or on the day for showing cause by affidavit, controvert the defend- ant's allegations, and present his reasons for excusing himself fi'om giving security. The statute is not imperative upon the court to grant an order for security for costs under all circumstances, and where the application is resorted to for other and improper purposes, it should not be granted.^ It is no excuse for not filing security for costs, that the person does not intend to continue perma- nently a non-resident." So a guardian for an infant i)laintiff must give security.® In replevin the bond given at the commencement of the action is sufficient security for costs." If, after obtaining an order to file security for costs, the defendant notices the cause for trial, it is a waiver of the stay of proceedings, and the plaintiff is at liberty to appear and prosecute the suit.^" Leave of the court to sue the security for costs is not necessary.^^ '4Sandf., 434; 1 How. Pr., 191 ; 2 » 1 Denio, 628; 1 Duer, 705. Duer, 678. ' 1 Bosw. 657 ; 2 Paige, 603. « 2 R. S., 620. » 6 Hill, 256; 1 Paige, 178. ' 4 Abb. Pr.. 460. » 9 Wend., 462. * 2 R. S., 620. "> 2 Edw., 494 ; 8 How. Pr., 495. * 8 How. Pr., 492. » 7 Wend., 482. 412 ADMrniSTKATION OF CIVIL JUSTICE. Attorneifs Udbility. In cases in which, according to the X)rovisious of statute, the defendant at the commencement of a suit shall be entitled to require security for costs, the attorney for the plaintiff shall be liable for such costs to an amount not exceeding one hundred dollars, until secu- rity therefor be filed, whether such security shall have been required by the defendant or not.^ The attorney is liable if the real plaintiff is a non-resident, although the nominal plaintiff is a resident f but where a plaintiff is a resident at the commencement of the suit, his subse- quent removal will not make his attorney liable for costs, although he proceeds in the suit.^ The attorney's liability should not be declared in the judgment in the action, but can be enforced by summary proceeding.* The attorney may relieve himself from such liability by filing security, and the securities therein justifying if excepted to, without being required to do so by the defend- ant, and by giving notice thereof to such defendant or his attorney.^ Staying proceedings until costs of former suit are paid. Every court of justice has power to control its proceed- ings so as to prevent oppression between its suitors,*^ and to this end the court will not permit a defendant to be harrassed by a second suit for the same cause until the costs of the former suit have been paid." The practice of the court to stay proceedings in a second action, where the plaintiff has failed in a former action against the same de- fendant, for the same cause, until the costs of the former action be paid, originated in the action of ejectment ; but it was afterwards extended to other forms of action, and the power is now exercised in all cases, and this form of relief is granted, although the former action was not tried upon the merits, but was discontinued, dismissed, or disposed of by judgment of nonsuit, or where there was judgment on demurrer.*^ It is also extended to appeals, so that, where a former appeal of the case had been dismissed > 2 R. S., 621. ' 19 Johns., 237 ; 22 How. Pr., 444. » 10 Wend., 621. » l Tidd's Pr., 480 ; Tidd's on Costs, 83; » 3 Den., 266 ; 3 Sandf., 129. 4 Penn. St. Rep., 475 ; 2 HuUock, * 9 Pai., 382. 457; 2 Smith Rep., 423; 3 Aust., *2R. S., 621. 835. ' P. A. Browne, 38. COSTS. 413 with costs, and the costs liad not been paid, a second appeal was stayed until the costs of a former appeal should be paid.^ It must appear that the same matter is drawn in question in the second suit that was involved in the first. It is not essential that the cause of action in the second suit was the only one involved in the first, or that the form of action was the same; it is sufficient that the matter involved in the second suit was involved in the flrst.^ Where, in ejectment, the same title to the same premises is drawn in question in the second suit between i^arties or privies to the first, the court will order the payment of the costs of the first suit before they will sutfer the second to proceed f but this rule was held not to apply where three heirs-at-law brought a suit to recover premises of their ancestor, while a judgment for costs of dismissal of the comj)laint in a suit brought by one of them, remained un- paid, such second suit is not regarded as between the same parties or privies.* So, in ejectment, where neither of the lessors in the former suit, nor any one claiming under them, were named in the second, and the lessor goes for a dis- tinct portion of the premises from that claimed on the former suit, the court will not stay his proceedings until the costs of the former suit are paid, although he claims under the same title.* The mere fact that the case is not between the same parties, or that new parties have been added in the second case, will not permit the allowance of a stay, if the same matter is involved and the new or addi- tional parties were parties in interest in the first suit.^ Pro- ceedings in an action by the husband and wife have been stayed until the costs in a former action by the husband for the same demand were paid.^ So the court will order a stay, though the action was by an infant by a different next friend from the one in the former suit.^ It makes no difference that the former action was pend- ing in another court f the power has been exercised where the former suit was in a court of the United States f but it is said this stay will not be granted where the former * 5 How. Pr., 75. « 1 Tldd's Pr., 480. « 1 P. A. Browne, 38. ' 9 Wend., 449. = 1 Cow., 138. ^ 19 Johns., 237 ; 3 Cow., 380. * 13 How. Pr., 462. * 3 Cow., 22. * 6 HUl, 372 ; 2 Arch. Pr., 209; 4 Penn. St. Rep., 475. 414 ADMENISTRATION" OF CIYIL JUSTICE. suit was in another state or country.^ Where a judgment, rendered in the supreme court, was reversed in the court of errors, with costs, and a new trial was awarded, the plaintiffs proceedings were staj^ed until the payment of the costs in error.^ Proceedings will not be stayed where the defendant pre- vents, unreasonably, the progress of the first suit, and the plaintitt" does not proceed vexatiously ;^ nor in a qui tarn action until the costs of a former action for the same pen- alties by another party were paid ;^ nor where the plaiutilf has been imprisoned for the costs of the former suit,^ such imprisonment being deemed the highest satisfaction of the judgment obtained against him known to the law.^ The power of the court to restrain parties from the pro- secution of a second suit for the same cause, extends to the costs of a different suit only; and the court will in no case stay the prosecution of a suit until the costs of an in- terlocutory order, made in the progress of the same suit, be paidJ The motion. The order for staying proceedings is ob- tained by special motion. It cannot be made until the first suit is at an end and in such a state that the defend- ant is entitled to receive, and the plaintiff bound to pay, costs.^ The motion should be made while the second suit is in course of litigation.^ It may be made after the ver- dict in the second suit, but must be made before judgment.^" If the motion i^revails, the usual order will be, that all plaintiff's proceedings be stayed until all the costs of the former suit and the costs of the motion for the stay are paid.^^ If after the motion is granted, the plaintiff proceed in the second suit without paying the costs required by the order, the com-t, on motion, will set aside such proceedings with costs.^^ When a party not of record liable for costs. The plaintiff. It is provided by statute that where any action shall be brought in the name of another, by an » 15 Abb. Pr., 429. ' 2 Wend., 623. " 4 Wend., 216. » Grab. Pr.. 2d ed., 555. ' 2 Cow., 580 ; 1 Tidd Pr., 480 ; Sayer » 3 Cow., 57. on Costs, 245-251. "> 2 Cow., 503. * Cowp., 322. " 22 How. Pr.', 444. ' 4 Wend., 203 ; 8 D. & R., 42. " 2 Arch. R., 210. • 1 Cow., 56. COSTS. 415 assignee, of any right of action, or by any person bene- ficially interested in the recovery in snch action, such assignee or person shall be liable for costs in the same cases, and to the same extent, in which a plaintiff would be liable.' The Code provides that in actions in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable to costs in the same manner as if he were a party .^ It is also provided by the Code, that in an action prose- cuted in the name of the people of this state for the recovery of money or property or to establish a right or claim for the benefit of any county, town, city, village, corporation or person, costs awarded against the plaintiff shall be charged against the party for whose benefit the action was prosecuted and not against the people.^ The first proposition to be established to make a person not a party liable under the Eevised Statutes, is, that he brought the suit,* and it does not matter to what extent the person sought to be charged, who is not a party, raay be interested in the recovery, if in truth he is not chargeable with having brought the action, he is not chargeable with the costs/ It was also the settled practice before the Code, that where one is beneficiall}^ interested in the demand of the plaintiff" as assignee under an assignment made dur- ing the pendency of the suit, and he x)roceeds in the action, he is liable for costs,^ and in such a case he takes the de- mand cum onere, and is liable for the costs which had accrued before, as well as those which may accrue after, the assignment.*' The mere fact of taking an assignment pending the action would not make the assignee liable unless he carried on the suit ;' but this seems to have been changed by the Code f by its provision, if by assignment or otherwise, the cause of action became the property of a person not a party to the action, such person is liable for the costs in the same manner as if he were a party, and this liability is not made to depend upon his prosecuting the action. ' 2 R. S., 618. ' 20 Wend., 632; 5 Cow., 17, 24, 60. « Code, § 321. • 20 Wend., 632 ; 10 Id., 622. * Code, § 320. ' 20 Wend., 632. ♦ 12 N. Y., 32; 1 Hill, 629; 18 Wend., » Code, § 321. 672; 23 How. Pr., 229; 2 Denio, 193. 416 ADMTNISTEATION OF CTVTL JUSTICE. To prove that the party sought to be charged brought or prosecuted the suit, it will be suflBcient where the assign- ment is absolute in its terms so that the plaintiflf on the record no longer had any interest, to show that the assignee knowingly suftered the suit to proceed for his benefit,^ but Avhere the party has only a lien or collateral interest, some act of his in bringiug or prosecuting the suit must be shown, such as his having retained an attorney for that purpose, or sanctioned the act of an assumed agent in re- taining him, or agreeing to indemnify the nominal plaintiff ;' the mere fact that he occasionally inquires as to its pro- gress, of the attorney who holds it for prosecution, admits himself to be interested and advises and urges the suit, are not of themselves enough to charge him with the defendant's costs.^ If the assignee obtain a judgment in favor of the assignor, or take an assignment of the judgment, he is not answer- able for costs in error ; he cannot be said to prosecute in the proceeding to review.^ The next proposition to be established to charge a per- son under the statute, is that he is the assignee, or the person beneficially interested in the recovery/ An assignee is liable, although the assignment to him was invalid or illegal.^ So, where a person gives notice that he is the absolute assignee of the demand in suit, he will not be allowed to deny it, in order to avoid being charged with costs.^ If the party is shown to be interested by an assignment by way of mortgage or security, or upon trust, either in the whole or any portion of the cause of action, he will be deemed a party beneficially interested within the statute." The defendant. A party in interest defending an action in the service of another is not liable to the plaintiff for costs, with the single exception of a landlord defending an action of ejectment in the name of his tenant.* Where a landlord, or other person, who is entitled by statute to be substituted in the place of, or joined with, the defendant, in an action of ejectment, who, without causing himself to be made a party, defends such suit unsuccessfully in the ' 20 Wend., 632 ; 15 Abb. Pr., 194. ' 12 N Y 32 " 1 Hill, 629. 6 1 Denio. 656. » 19 Wend, 151. ' i Hill, 629; 1 Denio, 656: 15 Abb., * 1 Denio, 657 ; 1 Hill, 629; 20 Wend., 194; 5 How. Pr., 319. 630. » 18 Wend., 674. COSTS. 417 name of the original defendant, will be ordered to pay the costs of the plaiDtiflP, after execution against the defendant on the record, has been returned unsatisfied.^ Parties to the record are still liable to costs, to the final result, notwithstanding they may have assigned their interests.^ Liability, how ascertained. The better practice is to issue an execution upon the judgment recovered, and if that is returned unsatisfied, to prepare an affidavit showing that fact and the facts upon which it is claimed that the person not a party, is liable, and upon that affidavit, upon due notice to the person sought to be charged, move that he should be charged with the costs of the action. Hoiv enforced. The statute declares that the payment of such costs may be enforced by attachment f but the legis- ture has ijrovided that such costs shall be collected by execution.* The same practice should, therefore, be pur- sued, as is hereafter shown to be piu-sued in collecting interlocutory costs. But the Code was enacted since the statute of 1847, and by it all statutory provisions inconsistent with it are repealed.^ So that, where a person is made liable for costs by force of section 321 of the Code, it would seem that payment thereof may still be enforced by attachment. In such cases, therefore, the order charging the jjersou with costs should be served upon him and the payment of the costs demanded. If the costs are not i)aid within twenty days thereafter, or such other time as shall be fixed by the order, a motion for an attachment can be made. The practice in such proceedings has already been considered in the chapter upon proceedings to punish contempts, &c. Liability of guardian ad litem. Under the former practice an infant plaintiff sued by a next friend, and an infant defended, by guardian ; but the Code now provides for a guardian for both cases.^ The guardian for the plaintiff only is liable for costs,'^ and this liability continues through all the proceedings in the cause, as well in the court where the action is brought as ' 5 N. T., 558 ; 2 R. S., 341. * Code, § 468. » 2 How. Pr., 147. " Code, § 116. '2R. S., 619. 'Code, §316. ♦ L. 1847, ch. 390. II.— 53 418 ADMINISTRATION OF CIVIL JUSTICE. on appeal.' Where a judgment is recovered against an infant plaintiff, and an execution has been returned un- satisfied, the taxable costs should be demanded of the guardian by whom the infant appeared in the action, and if they are not paid by such guardian within twenty days after such demand, an application can be made for an attachment against him.=^ It may not be necessary to first issue an execution against an infant, nor to wait twenty days after the demand for the costs before applying for the attachment, but this is thought to be the better practice. Liability of relator. A relator joining with the people as jjlaintiff in prose- cuting a suit, is in the first instance liable for the defend- ant's costs, and they cannot be recovered against the people till after the execution issued against such relator shall have been returned unsatisfied^ The same rule applies to any person joined with the people as plaintiff. Liability in actio)is by the peojyle. Costs can only be recovered against the people in actions that have been prosecuted by some officer duly authorized.'* In such cases the people are liable for costs in the same cases, and to the same extent, as if such suit or proceed- ing was instituted by an individual.^ Where the defend- ant believes he is entitled to costs against the people, he should present an authenticated copy of the record of judgment, or of the order adjudging such costs, with a taxed bill thereof, to the attorney-general, who will, if it is a proper case, certify that such suit or proceeding was duly instituted as by law required. Upon presenting these papers to the comptroller, it is his duty to draw upon the treasurer for the amount of the taxed costs.^ K the attorney-general refuses to make his certificate, or the comptroller to draw his warrant, he may be compelled by mandamus. ' Hummel v. Brown, MSS., 3d Dist., * Code, § 319. gen. t. ' 2 R. S., 619. » Code, § 316. • 2 R. S., 553 ; 17 How. Pr., 14. ' Code, g 320 ; 2 R. S., 619. COSTS. 419 When alloxoed of course to the plaintiff . In actions as to real property. Where the plaintiff recovers, he is entitled to costs in the following cases : 1. Where the action is for the recovery of real pro- perty.^ This embraces only those cases where the imme- diate object of the action is to recover real property, snch as actions of ejectment, and does not include cases merely involving the questions as to possession, or actions to recover damages for injury to the possession. 2. When a claim of title to real property arises on the pleadings;^ that is where the issue joined presents an issue as to the ownership of real estate ; but not where the gist of the action is an iujury to the possession, so that evidence of mere possession would enable the plaintiff to maintain it. An allegation of owner ship and possession made in the complaint, and denied ui the answer, does not enlarge the issue, so as to entitle the party to costs, the issue must practically and substantially involve a claim of title, and not merely a question of possession.^ Where such an issue is joined by the pleadings, the plaintiff is entitled to costs if he recover, notwithstanding the defend- ant admits the title on the trial.^ If one issue involves title, and there is another that does not, the plaintiff is still entitled to costs if the ver- dict is in his favor j"* but where the title is in issue, and is found to be in the defendant, the plaintiff' is not for that reason entitled to costs, although the verdict is in his favor, for some chattel also involved in the issue.^ A claim to an easement in plaintiff's land by prescrip- tion, draws in question the title to land, and entitles the plaintiff to costs, as where the defendant sets up a right of way on plaintiff's land f so where the defendant attempted to make out a prescriptive right to overflow plaintiff's land ;'' so where the defendant gave notice of justification in trespass to lands, and endeavored to prove a right of common of estovers as a tenant f so where in an action for an assault and battery, the defendant pleaded that he had used the force in the defense of his own possession, » Code, § 304. ' 7 How. Pr., H. »20 Barb., 315; 10 Johns., 302; 16 ' IJohns., UG ; 2 Id., 185. How., 478. '3 Cow., 382. » How. Pr., 131 ; 1 Id., 180. * 6 Wend., 539. * 8 How. Pr., 131. 420 ADMINISTRATION OP CIVIL JUSTICE. and the plaintiff, in Ms reijlication, stated that the place where the assault was committed was a public highway, upon which the defendant took issue ;^ so where the issue involves the question of right of property in growing trees and shrubs, or the grantor's right to enter under a reservation in an agreement between him and the grantee.'* Where the right of the defendant is founded on a mere license, it does not bring in issue a claim of title.^ 3. When it is certified by the court that a claim of title to real property came in question at the trial.* The certi- ficate of the judge who tried the cause is the only evidence that can be received as to whether or not the title came in question on the trial.^ Where the trial is before a referee, he should make the certificate.^ Where, on the trial, the same matters come in question that would, if set up in the iDleadings, have formed an issue upon a claim of title, the judge should certify that a claim of title to real property came in question ; and he should also so certify where the action is for trespass upon lands, and the plaintiff has not actual possession, so that it becomes necessary to establish constructive possession at the trial, by showing title.^ And where, from the neces- sity to prove title by means of the absence of actual pos- session, the plaintiff brings his action in the supreme court, the plaintiff's right to costs will not be defeated by admit- ting the title on the trial f but where there is evidence of possession, and that is enough, the plaintiff, by volunteer- ing evidence as to title, does not become entitled to costs.' In actions to recover the possession of personal property the plaintiff is entitled to costs if he recover fifty dollars damages; if he recover less than fifty dollars, he reco- vers no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars, or the x^ossession of property be adjudged to him, the value of which, with the damages, amounts to fifty dollars ; and such value must be deter- mined by the jury, court or referee by whom the action is tried.^" K he recover less than fifty dollars damages, and ' 2 Barb., 432. « Code, § 272. » 8 Barb., 567. ' 7 Wend., 495. '3 Johns., 450; 10 Wend., 563; 1 » 8 Cow.. 115. Cow., 568 ; 15 Abb., 449. ' 10 How. Pr., 406. * Code, g 304. " Code, § 304. ' 8 How. Pr., 131 ; 2 Code R., 152. COSTS. 421 the damages and value of the property does not amount to fifty dollars, he only recovers as much costs as damages ; as where the action was for the recovery of a horse, and the plaintiff recovered six cents damages, and the value of the horse was assessed at twenty-five dollars, he was only entitled to six cents costs.^ Where a plaintiff has a verdict for the return of a portion of the property, the value of which, with the damages recovered, amounts to over fifty dollars, and the defendant has a verdict for the residue, each party is entitled to costs against the other.^ In actions of which a court of justice of the peace has no jurisdiction, if the plaintiff recover, he is entitled to costs.^ This embraces actions in which the people of this state are a party, excepting for penalties not exceeding two hundred dollars ; actions where the title to real pro- perty shall come in question ; actions for an assault, battery, false imprisonment, libel, slander, malicious prosecution, crimiual conversation, seduction and actions against exe- cutors or administrators as such ; also, actions for seamen's wages, where the action is against the owner, master or commander of the ship ;^ also, actions against foreign cor- porations ; also, actions involving a matter of account, where the sum total of the accounts, proved to the satis- faction of the justice, shall exceed four hundred dollars ; payments are not included in making up the sum that ousts the justice of jurisdiction.^ Demands put in issue by the pleadings, but admitted on the trial, are to be regarded as demands proved.*^ Where the action is brought directly in the court of record, the plaintiff is entitled to costs, although he recovers less than fifty dollars, if the demands actually contested are over four hundred dollars,^ and where accounts between parties have been settled, but in an action brought in the Supreme Court for the balance of such accounts, they are re-examined, and the errors are corrected, the plaintiff, though he recovers less than fifty dollars, is entitled to costsJ In actions for the recovery of money where the plaintiff shall recover fifty dollars, he recovers costs except that in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or ' 8 How. Pr., 238. * 2 E. D. Smith, 78. » 14 Abb., 319. ' 3 Abb. Pr., 365. * Code, g 304. ' 18 How. Pr., 177. ♦ 1 HUt. 422 ADMINISTRATION OF CIVIL JUSTICE. seduction of the plaintiff ; if he recover less than fifty dollars damages, he can recover no more costs than damages, and except also where several actions are brought on one bond, recognizance, promissory note or in any other case for the same cause of action against several parties who might have been joined as defendants in the same action, no costs other than disbursements shall be allowed to the plaintiff in more than one of said actions, which shall be at his election, provided, that the party or parties proceeded against in such action or actions, shall, at the time of the commencement of the previous action or actions have been within this state and not secreted.^ Where the plaintiff's right to costs depends upon his recovering fifty dollars or more, he must recover that sum or he fails as to costs, no matter whether the amount of his recovery is reduced by disproving a portion of his claim, or by a set-off' or counterclaim. Where the plain- tiff's right to a judgment is derived from a stipulation, it is to be deemed a recovery, and he is entitled to costs if the amount is suificient, though nothing is said as to costs in the stipulation.^ Where there are several plaintiffs they recover but one bill of costs. Where there are several defendants, and the plaintiff recovers against any of the defendants, and he has such a recovery as entitles him to costs, he is entitled to judg- ment for such costs against the parties against whom he has been successful. Where some defendants suffer default and others litigate, and the plaintiflf's action is upon a joint liability, all the defendants against whom the recovery is had, are equally liable for the ivhole costs,^ and this, it seems, is so, although the action is upon a joint and several liability.* .Efect of a7i offer or tender upon 2)lcii?itiff'^s right to costs. Offer. As has been shown the defendant may, after an action has been commenced offer a compromise.^ When this offer is made and not accepted, the plaintiff must recover a more favorable judgment than that oftered, or he will not recover costs after the offer, but on the con- trary will be liable to pay costs from the time of the offer," > Code, § 304. « 17 How. Pr., 56. ' 1 Hilt, 235. » Ante, Vol. I, 527. " 11 How. Pr., 55. • Code, § 385. COSTS. 423 and where the action is for the recovery of money and the j)laiutiir accepts an offer of less than fifty dollars, the de- fendant is entitled to costs.^ AVhen an offer is made by one or more defendants, and the suit is so situated that the plaintiff may enter judg- ment against all the defendants, he should accept, unless he can get a more favorable judgment against them all than that offered,^ but in other cases the offer of one defendant would not be good, as he has no authority to bind the other defendants, and the plaintiff is not bound to accept a judgment against him alone, and if he does not accept the offer and ultimately recovers against more than the one defendant, he is entitled to costs ; the plaintiff" must, to entitle him to costs, recover as much as the offer exclusive of subsequently accruing interest.^ Where the defendants make an offer in which a set-off or counterclaim is set up, and the plaintiff recovers less than the amount of the offer, he maj' still recover costs if the judgment extin- guishes such a counterclaim or set-oft' as to render the judgment more favorable to the plaintiff than that offered."* Where it is so intended, the ofter should state that the amount proposed is over and above the set-off or counter- claim, although it has been said that this is the effect of a general ofter.^ Where the plaintiff recovers more than the offer, he recovers damages and costs the same as if no offer had been made ; if he does not recover a more favorable judgment, he recovers costs up to the time of the offer, and the defendant recovers costs from that time. Tender. Where the action is to recover a sum certain, or which may be reduced to a certainty by calculation, or for a casual or involuntary trespass or injury, the defend- ant, in any stage of the proceedings before trial in such cases, or before such damages shall have been assessed, or before judgment rendered in an action of debt, may ten- der to the i)laintiff', or his attorney, any sum of money which such defendant shall conceive sufticient amends for the injury done for which such action or proceeding was instituted, or sufficient to pay the plaintift''s demand, together with the costs of such action or proceeding to the time of making such tender.^ If it shall appear from the result of the trial that such a tender has been made, ' 10 How. Pr., 552. * 7 How. Pr., 324; 8 Id., 88; 15Id.,4?0. » 1 Code Rep. (N. S.), 159. ' 1 Duer, G94. ' 26 How. Pr., 398. " 2 R. S., 554. 424 ADMINISTRATION OF CIVIL JUSTICE. tbc plaintiff will not be entitled to recover any interest accrued or costs incurred since the tender, but shall be liable for costs incurred since that time. If the tender is accepted and the plaintiff still proceeds, he shall only recover the residue that may be found, over and above the tender, and the right to costs will be determined by that residue. When aUowed to the defendant. In that class of actions in which the plaintiff is entitled to costs of course if he recovers, costs are allowed of course to the defendant, if the plaintiff is not entitled to costs therein.^ Where there are several defendants, and a part of them recover, they are entitled to costs, though the plaintiff may recover against others.^ Several defendants are en- titled to costs of course against the plaintiff', but if more than one bill is claimed, leave must be obtained, on motion, to tax costs for each defendant.^ It is in the dis- cretion of the court whether it will grant more than one bill. If it appears that the several defendants are not united in interest, and made separate defenses by separate answers, the court will usually award costs to each of such defendants as have judgments in their favor.* It has been said that each defendent is presumptively entitled to a full bill of costs, unless it appears that the defenses were served for the sake of costs f but this is not believed to be the law. On the contrary, it is thought that the Code now asserts the only rule by which to deter- mine the right of several defendants to costs, and that is that the defendants must not be united in interest, and must make separate defenses by separate answers. The fact that the same attorney is employed seems to be no longer an important consideration.^ When both parties are aUowed costs. When there are two or more distinct causes of action in separate counts, the plaintiff" shall recover costs on those issues which are found for him, and the defendant on ' Code, § 305. ■• Code, § 306. ' 9 X. T., 549. * 7 Bosw.. 699; 20 How. Pr., 511. * 13 How. Pr., 141. • 16 How. Pr., 91. COSTS. 425 those whicli are found in his favor.^ This is a provision of the Eevised Statutes that is said to be still in force. Costs in the discretio?i of the court. In all that class of actions where neither party is entitled to costs as a matter of right, they are awarded according to the discretion of the court.^ This embraces those that were formerly suits in chancery, and the court in these cases can give costs to either, both or neither parties, or it may charge the costs upon the estate involved. In these cases the direction as to costs should be embraced in the final decision, or neither party will be entitled to costs, and the court, unless it has expressly reserved the question, will not, thereafter, listen to an application for costs.^ As a general rule, the party found to be in the wrong will be charged with costs. Where the decision shows that both parties claimed more than they were entitled to, neither will be allowed costs, and where neither party appears to be in fault, and the litigation appears to have been necessary in determining the rights of the parties to an estate, the costs of both parties will be charged upon the estate. Costs will not be allowed to a plaintiff where his suit is unsuccessful, but he will be charged with costs.* Nor will he be allowed costs where it appears that the suit was unnecessary.^ When the plaintiff recovers costs in an action, the rate of allowance is as follows : 1. For all proceedings before trial, including actions where judgment on failure to answer can only be taken on application to the court, twenty-five dollars ; where judg- ment may be taken upon failure to answer without appli- cation to the court, ten dollars ; for each additional defend- ant served with process, not exceeding ten, two dollars; and for each necessary defendant in excess of that number served with process, one dollar.^ It will be observed, that as the Code now stands, there is no additional allowance to the plaintiff for proceedings subsequent to the notice of trial, and before trial, except for such services as are specially mentioned. > 2 R S., 617. * 2 Edw., 196. * Code, § 306. ' 3 Paige. 509. * 12 Johns., 500. * Code, § 307. n.— 54 42G ADMINISTRATION OF CIVIL JUSTICE. The question as to which sum the plaintiff is entitled, for i)roceedings before trial, depends upon the question whetlier the nature of the action is such as to require an application to the court for judgment, in case of default.^ The charge for additional defendants cannot be taxed except where it was actually necessary to make such per- sons defendants ; it is not enough to show it was believed they were necessary or that they appeared to be necessary .^ 2. The defendant's costs are, for proceedings before notice of trial, ten dollars, and for subsequent proceedings before trial, ten dollars. The defendant is entitled to the costs for proceedings before notice of trial whenever he has taken any proceed- ing in the cause ; his retaining an attorney is a proceeding in the cause.^ The item for proceedings before trial is not taxable till the cause has actually been noticed for trial,* nor can it be taxed more than once for all proceedings be- fore an actual trial has been had.' It is not chargeable where a cause is postponed on payment of costs,^ but is chargeable in the costs on overruling a demurrer," or upon an order setting aside a verdict on payment of costs.* 3. Either party entitled to costs can tax in a case where a new trial shall be had for all proceedings, after the grant- ing of the new trial, and before such new trial is had, twenty-five dollars.^ 4. Either party entitled to costs can tax for attending upon and taking the deposition of a witness conditionally or attending to perpetuate his testimony, ten dollars ; for drawing interrogations to annex to a commission for the taking of testimony, ten dollars ; for attending the exami- nation of a party before trial, ten dollars ; for making and serving a case containing exceptions, twenty dollars, except that when the case shall necessarily contain more than fifty folios, there shall be allowed ten dollars in addition thereto ; and for making and serving amendments thereto, ten dol- lars.^ 5. Either party entitled to costs can tax for every term or circuit, not exceeding five circuits or special terms at which the cause is necessarily on the calendar and is not * 8 How. Pr., 271 ; 11 Id., 500 ; 5 Duer, ' 6 How., 404. 658. « 6 How., 418; Code, § 314. » 17 How. Pr., 348. ' 3 Sandf., 75G. ' 1 C. R. N. S., 236; 4 Hill, 166. * 6 How. Pr., 265, 311, 465. * 4 How. Pr., 304. » Code, § 307. COSTS. 427 tried, or is postponed by order of tlie court, ten dollars.^ It would seem that under the Code, as now amended, there can be little doubt as to the case in which the right to tax terra fee is allowable. If the cause is necessarily on the calendar, and is not tried, this fee is properly changeable. A cause is necessarily on the calendar when placed there for the purpose of referring it.^ A cause can- not be said to be necessarily on the calendar when it was discontinued before the circuit,' nor where the plaintiff had noticed the cause, had put it on the calendar for two terms, and then made a successful motion for judgment on the answer, as frivolous ;* but as a general rule a cause is necessarily on the calendar when the cause is ready for trial upon an issue joined, and it is regularly put there by the party noticing it.^ G. Either party entitled to costs can tax for the trial, if an issue of law, twenty dollars ; for every trial, if an issue of fact, thirty dollars, and where the trial shall necessarily occupy more than two days, ten dollars in addition thereto.^ A trial is the judicial examination of the issues between the parties, whether they be issues of fact or law. Where the plaintiff, in an action at issue, fails to appear when the cause is called on the calendar, and the defend- ant takes an order that the complaint be dismissed, it is held to be a trial for the purpose of costs.' So, in a suit for an accounting, a trial fee is taxable when the cause has been heard, so far as to determine that an account should be taken.^ Where an issue of fact is brought to trial, and for any cause is again withdrawn, or being unable to agree, the jury are discharged without rendering a verdict; or where there is a judgment subject to the opinion of the court, or a special verdict, the prevailing party is entitled to a trial fee.^ It may be safely asserted that the prevail- ing party is entitled to a trial fee as often as the issue joined between the parties, is brought to a hearing and determination. No trial fee is taxable where judgment is obtained upon motion, upon the ground that the answer 1 Code, § 307. " Code, § 307 . « 1 Code R., 134; 9 How., 332. ' 4 How. Pr., 123; 2 Abb., 377. » 17 How. Pr., 469. « 4 Sandf., 688. * 5 Duer, 658. " 8 How., 4. * 9 How. Pr., 332. 428 ADMCaSTBATION OF CIVIL JUSTICE. or demurrer is frivolous.^ Kor in any case where issue has not been joined.^ Additional allowance. In addition to the allowances, the plaintiff may tax, if he recover a judgment in any action for the partition of real property, or for the foreclosure of a mortgage, or in any action in which a warrant of attachment has been issued, or for an adjudication upon a will or other instru- ment in writing, and in proceedings to compel the deter- minations of claims to real property, the sum of ten per cent, on the recovery, as provided in the case of difficult and extraordinary cases, for any amount not exceeding two hundred dollars ; an additional sum of five per cent, for any additional amount not exceeding four hundred dol- lars ; and an additional sum of two per cent for any addi- tional amount not exceeding one thousand dollars. In the actions above named, if the same shall be settled before judgment therein, like allowances are made upon the amouut paid or secured upon such settlement, at one half the rates above specified.^ This allowance is taxable as a matter of right, in proper cases, where a judgment has been recovered or the case has been settled before judgment. It is the duty of the clerk, in the adjustment of costs in such ca«es, to insert in the entry of the judgment such percentage as a part of the sum of costs allowed by the Code^ When the proceeding has been by attachment, the allowance is proper, whether any property has been attached or not ;^ but where an attachment was issued and served, and afterwards set aside, a. plaintiff is not entitled to this allowance.^ AUoioatice in difficult and extraordinary cases. In difficult and extraordinary cases, ivliere a trial has heen had, except in the actions above mentioned (other than those for the partition of real estate), and in actions or proceedings for the partition of real estate, the court, in its discretion, may make a further allowance to any party, not exceeding five per cent, upon the amount of the recov- ery or claim or subject matter involved.^ ' 1 How. Pr., 97 ; 1 2 Id., 26, 399 ; 22 Id., ♦ 14 How. Pr., 300. 470; 24 Id., 478. * ^5 jj^^ p^^ 224. ' 11 How. Pr., 500. • 26 How. Pr., 95. • Code, § 308. ' Code, § 309. COSTS. 429 There is no settled rule by which to determine what are diflficult and extraordinary cases. Each judge exercise his best judgment in determining the same, as will be seen by examining their decisions upon the subject. Whilst the legislature choose to leave this right of a party to indemnity by way of costs, to the undefined discre- tion of the court, he must abide the uncertainty that exists. This allowance can only be made by the court of original jurisdiction, and in reference to the trial in that court.^ The application for an allowance must be made before judgment is entered f it must be made to the court, not at chambers.^ And where the trial is by the court or jury, it must be made at, the same court* and to the same justice who tried the cause,Mn which case no notice of the motion is necessary.*^ If the cause was tried by a referee, then the application is made to the same court in which the cause is pending by sijecial motion, in which case the certificate of the referee is a proper paper amongst others on which to found the motion, but it is not conclusive.'^ There should, in addition, be an affidavit of facts sufficient to enable the court to form an opinion on the subject.'' The court does not usually hear any extended argument of motions of this kind at the circuit, and often, where it is in doubt, reserves the question for future consideration. Allowance^ hoio computed. The rates of allowance are estimated upon the value of the property claimed or attached, or atfected by the adju- dication upon the will or other instrument, sought to be adjudged, or the amount found due upon the mort- gage in an action for foreclosure. And whenever it is necessary to apply to the court for an order enforcing the payment of an installment falling due after judgment in an action for foreclosure, the plaintiff is entitled to the rate of allowance as above specified, but to no more in the aggregate than if the whole amount of the mortgage had been due when the judgment was entered. Such amount of value must be determined by the court or by the commissioners in cases of partition.^ ' 2 N. Y., 570. ° 7 How. Pr., 490. » 3 Sandf., 755. ' 4 How. Pr., 185; 16 Id., 271. ' 6 How. Pr., 235. ' 5 How. Pr., 153; 4 Id., 252. * 8 How. Pr., 31 ; 5 Id., 242 ; Rule 52. ' Code, § 309. * 5 How. Pr., 121. 430 ADMmiSTRATIOK OF CIVIL JUSTICE. No allowance can be made in an action to try the title to an office,^ nor in an action brought under the act to authorize the sale of real estate in certain cases to pay- assessments ; nor under the act to provide for the due apportionment of taxes and assessments.^ In cases of this class there is nothing involved on which to compute a per centage. Where there is a recovery, the per centage allowed because of the case being difficult and extraordinary, is computed upon the amount recovered, it is only when the defendant recovers judgment that the allowance is com- puted upon the amount claimed.^ Where an attachment is issued and levied upon pro- perty exceeding the amount which the plaintiff is entitled to, the allowance is computed only on the amount of the recovery.* Where the action is to recover possession of property, and the value claimed was one thousand dollars, the value proved was two hundred and eighty-one, the court held, the plaintiff having been nonsuited in the case, that the defendant's allowance should be upon value proved,^ and in such a case it was held that, where the defendant succeeded, the jury must assess the value of the property claimed, or the defendant cannot have an additional allowance for costs ;^ but the contrary has since been held.^ The latter decision is thought to be most satisfactory. Effect of neio trial on allowance. Where, after an allowance is made, the judgment is reversed or a new trial is granted, the allowance is thereby defeated.* Increased costs under Revised Statutes. It was only those provisions of the Eevised Statutes which established or regulated the costs or fees of attor- neys, solicitors and counsel, that were expressly repealed by the Code ; the statute giving double costs*^ to public officers, and in certain other cases, therefore, remains in » 25 Barb., 652. ' 9 How. Pr., 339. " 24 Barb., 142. • 2 Code R, 80. " 4 Abb. Pr., 98. M C. R N. S., 372. ♦ 5 Abb., 221. » 7 How. Pr., 370 ; 4 Abb. Pr., 245. COSTS. 431 force.^ These increased costs are given for the protection of officers,^ and where an officer is sued, and a party to the suit, under whose process the party acted, assumes the defense, and indemnifies the officer, such party is enti- tled to double costs.^ By the Eevised Statutes,^ it is provided that in the fol- lowing actions, if judgment be rendered for the defendant upon verdict, demurrer, nonsuit, non pros, discontinuance of the plaintif}', or otherwise in any action, certiorari, writ of error, or other proceeding, such defendant shall recover the amount of his taxed costs and one-half thereof in addition : 1. In actions against public ofiicers appointed under the authority of this state, or elected by the people ; or against any person specially appointed according to law to exe- cute the duties of such public officer, for or concerning any act done by such officer or person by virtue of his office, or for or concerning the omission by such officer or person to do any act which it was bis official duty to perform. 2. In actions against any other person for doing any act by the commandment of such officers or persons, or in their aid or assistance touching the duties of such office or appointment. 3. In actions against any person for taking any distress, making any sale, or doing any other act by authortiy of any statute of this state. It is also provided by the Eevised Statutes,^ that if it shall appear that a suit against a foreign corporation was brought vexatiously and without just cause, they shall award double costs against the plaintiff. It is further provided by statute,^ that whenever an officer of the militia, or any person acting under his com- mand, shall be prosecuted for any act done by him as such, and the plaintiff shall be non-prossed or nonsuited, or have a verdict or judgment against him, the defendant shall recover treble costs. It is said that double costs are computed by adding one-half thereof thereto, and treble costs by adding seventy-five per cent thereto f but where a militia officer was successful in a suit brought against him for official ' ]8 N. Y., 260. * 2 R. S., 461, § 26. » 6 Wend., 29T ; 2 R. S., 617, § 25. '1 R. S., 324, § 6. » 2 R. S., 640, § 24. "9 Wend., 443. 432 ADMINlSTRATIOlir OF CIVIL JUSTICE. acts, the costs were actually trebled, that is he recovered three times the taxed bill.^ WTiere a party claims that he is entitled to increased costs, he should move at special term for the allowance of the same, and should prove in his motion papers the facts on which his motion rests.'' The motion may also be founded on the case and exceptions on which the motion for a new trial was heard.^ ♦ An officer is entitled to double costs on appeal as well as in the court of original jurisdiction,* but it is otherwise where he is appellant.^ A trustee of a school district is an officer within the statute;* so is a constable, sued in justice's court for an official act ;^ so is a surrogate, sued for an alleged violation of duty in not paying over money f so are persons work- ing out their highway tax under the direction of a highway officer;^ but where an action in the nature of a quo war- ranto is brought against an officer to try his title to an office, it is not proceeding for an act done by virtue of his office so as to entitle him to double costs ;'° nor is an officer entitled to double costs where he has joined in a plea of justification with one who is not entitled to double costs." The statute giving double costs to others than officers when sued for an act done by command of an officer, ap- plies only to third persons who are strangers to the process and are called upon by the officer to assist him, but does not apply to a party to such action who aided the officer solely in his own behalf." The statutes awarding double costs are penal and are not to be extended in their construction. So, it is said, double costs are not given where judgment is given on demurrer ;^^ nor where the judgment is upon the report of referees;" but the correctness of these authorities are doubted. These statutes do not extent to special motions in the progress of the cause.'* So, where in an action against a public officer, if a favor is granted by the court ' 7 How., 55. » 1 Den., 626. ' 4 Wend., 216; 2 How. Pr., 127. » 21 How. Pr., 314. ' 21 Idem, 314. " 9 Wend., 464. * 1 N. Y., 239. " 18 How. Pr.. 481. ' 4 Hill, 546; 6 How. Pr., 253; 9 Id., " 5 Johns., 182; 9 Id., 254; 20 Id., 212. 80; 18 Id., 468. » 5 How., 393. . 9 Wend., 35. » 4 Wend., 201 ; 1 Hill, 673. ' 13 Wend., 280. COSTS. 433 to the other party on payment of costs, single costs are deemed to have been intended.' Costs on appeal to the general term. On appeal to the general term (except an appeal from an order of a single judge at chambers or special term), the prevailing party recovers, in adtlition to disbursements, for proceedings before argument, twenty dollars ; for ar- gument, forty dollars, and for every general term, not exceeding five, at which the cause is necessarily on the calendar, and is not argued, or is postponed by order of the court, ten dollars.^ Where a new trial is ordered, or where a judgment is afiirmed in part, or reversed in part, these costs are in the discretion of the court f and where a respondent, who might have had an appeal dismissed on motion, will not be allowed costs on its dismissal at the hearing.* Special verdict, case and exceptions. The same costs as upon an appeal to the general term are allowed to the prevailing party before argument, and for argument on application for judgment upon special verdict ; or upon a verdict subject to the opinion of the court, or for a new trial on a case made, and in cases where exceptions are ordered to be heard in the first in- stance at general term.^ The same costs, in the discretion of the court, are allowed on appeals from an order made by a single judge to the general term as are allowed on other non-enumerated motions. Costs in court of appeals. The prevailing party recovers costs in the court of appeals as follows : For proceedings before argument, thirty dollars ; for argument, sixty dollars, and to the appellant, when he succeeds, for preparing and serving the case on appeal, twenty dollars.^ When a judgment is affirmed, the court may, in its dis- cretion, also award damages for the delay, not exceeding ten per cent on the amount of the judgment. The question ' 7 How. Pr., 190. M5 Barb., 654. » Code. § 307. ' Code, § 307. » Idem, § 306. • Code, § 307. n.— 55 434 ADMINISTRATION OF CIVIL JUSTICE. as to this allowance is usually acted upon by the court at the time of deciding the case.^ The remittitur should give directions as to costs ; and ■where it is incorrect, a motion to have it corrected should be made to the court of Appeals, before it is filed in the supreme court.^ The costs are in the discretion of the court where a new trial is ordered, or where the judgment appealed from is affirmed in part and reversed in part.^ Costs of the court of appeals are taxed in the supreme court, where motion must be made for redress if the party charges too much costs.* AVhere an appeal is dismissed with costs, for want of prosecution, the respondent is entitled to thirty dollars f but where, after argument on the merits, the appeal is dis- missed with costs, the respondent is entitled to general costs.^ The prevailing party is entitled to tax ten dollars for each term the cause was necessarily on the calendar, and was not argued, or was postponed by order of the court ;' and the allowance of term fees is not limited to five, as in the other courts.^ Trmisferred appeal. Where an appeal is transferred to the supreme court from the county court, upon the certificate of the county judge of his incapacity to hear the case, costs of the county court only are taxable.^ Taxation of costs. When the judgment is for the recovery of money, inte- rest on the verdict or report from its rendition until judg- ment be finally entered by the clerk should, be added to the costs of the party entitled thereto.^" Disbursements. — There is also to be taxed by the clerk, and included in the judgment, the necessary disburse- ments, including the fees of officers allowed by law, the reasonable compensation of commissioners in taking depo- sitions, the fees of referees, and the expense of printing the • 18 N. Y., 448. • 10 How. Pr., 117. Corast., 239. ■» Code, § 307. ' Code, § 30G. » 26 How Pr., 163 ; 25 Id., 368. ; 2 N. Y., 559. » 16 How. Pr., 327. 2 Sandf., 739 ; 5 Abb. Pr., 26^. » Code, § 310 COSTS. 435 papers for every hearing, when required by the rale of the court.' The right to disbursements is incident to the right to costs, and they cannot be recovered where costs cannot be ;^ and the disbursements allowed to be taxed under the Code are substantially those allowed by the Eevised Statutes,' and are intended to embrace such as are incident to the due and regular proceeding in the cause, but not the ordi- nary disbursements of the parties.* Referees fees. — The fees of the referees are three dollars to each, for every day spent in the business of the refer- ence; but the parties may agree, in writing, upon any other rate of compensation.^ Where objection is made to the charge of a referee, the proper proof of the time actually spent by him is his affi- davit thereto f and where the fees paid to the referee were sworn to in the general affidavit of disbursements, it is enough to oppose a motion for re-adjustment, on the ground that they were not shown to have been incurred, to produce upon the motion the referee's receipt in addition."^ When, upon taxation of costs, the sum claimed by the prevailing party as his disbursements for referee's fees is objected to, and no writing is produced agreeing to any particular com- pensation, the allowance cannot exceed three dollars for each day spent by the referee, in person, in the business of the reference.^ Clerks' fees. — The clerk is entitled to charge, for every trial from the party bringing it on, one dollar; for enter- ing a judgment, by filing a transcript, six cents ; for entering a judgment, fifty cents, except in courts where the clerks are salaried officers, and in such courts one dollar. He is not allowed to receive pay for any other services whatever in a civil action, except for copies of papers at the rate of five cents for every hundred words.^ The foregoing are provided for by the Code, and the Code in this respect is deemed to have repealed the former fee bill, so far as it relates to clerks of courts.'" The trial fee of one dollar was intended to pay the clerk for the > Code, § 311. • 17 Hov,'. Pr., 471. » 1 Bosw , 653 ; 4 How. Pr., 269. ' 15 How. Pr., 315, ' 2 R. S. 634, § 20. ' 17 How. Pr., 471. * 17 How. Pr., 348 ; 3 Id., 280. ' Code, § 312. • Code, 313. " 15 How. Pr., 226. 436 ADMINISTKATION OF CIVIL JUSTICE. ordiuary miscellaneous services required of him in the pro- gress of the cause, as well as the services rendered in the court on the trial, and embraces the services of putting the cause on the calendar,^ for entering the rough minutes, and for entering in the books any rule or order.=^ The clerk's trial fee is allowable as well on trials of issues of law as issues of fact ; it is also allowable for each argument at general term on appeal f but he is not entitled to a trial fee when the complaint is dismissed for neglect to bring suit to trial,* nor when the trial is by referee.^ The clerk is not entitled to this trial fee until the cause is called on to be heard.'' The fee of fifty cents for entering judgment, means entering the judgment in the judgment book, and it is not chargeable until it is so entered^ Sheriff's fees and fees of others for serving papers. The fees of the sheriff may be taxed for any service necessarily performed by him as sheriff, or that as sheriff he is author- ized to perform. The sheriff is entitled to fifty cents for every cause returned for trial at the circuit, or on the calendar thereof for trial,^ and for serving a summons, fifty cents for each defendant served. He is also entitled to six cents per mile for going, only to be computed from the court house, but the travel fee can be charged on only one process, no mat- ter what number of defendants there are.^ The sheriff is also entitled to charge, and this may be taxed in the disbursements, fifty cents for receiving and returning execution, six cents for filing execution, and twelve cents for returning the same. Expenses of serving a subpoena are not taxable,^** but it is proper to allow a disbursement shown to be fair and necessary for the service of a summons and complaint, and notice of object of action by a person other than the sheriff, but such disbursement should not exceed the amount of the sheriff's fee for similar services.'^ So for the service of notice of no personal claim, in ' 15 How. Pr., 225. ' 5 How. Pr., 11. » 2 How. Pr., 11. • 17 How. Pr., 348. ' 5 How. Pr., 11. » 14 How. Pr.. 568. * 8 How. Pr., 33. «» 15 How. Pr., 430. » 1 Code R., 34. " 17 How. Pr., 348. • 1 Code R., 41. COSTS. 437 addition to the summons in foreclosure, &c., it is said the plaintiff may be allowed one-half the amount for serving the summons, whether made by the sheriff or any other person.^ Juror's fees. Fees paid jurors cannot be taxed unless a jury was necessary. So juror's fees cannot be taxed where an inquest is taken in an action on a money demand.^ Searches and copies impers. Proper sums jpaid for neces- sary searches and copies of papers from the clerk's office, and exemplifications, are taxable.^ Witness fees. A witness is entitled to fifty cents for each day while attending any court or officer, and if he resides more than three miles from the place of attend- ance, traveling fees at the rate of four cents a mile for going and returning.* If a witness is sojourning away from his place of resi- dence, and is subijoenaed at such place, he is entitled to travel fees from that place, though that is more distant from the court than his residence.^ On the contrary, if he is sojourning at a place not so far distant from the court as his place of residence, and it is not necessary for him to return home before attending the court, he is only entitled to traveling fees from the place where he is so subpoenaed, but not so where he is only temporarily at such place.® Where a witness is tendered his fees, they are taxable, for though not received by him, he is entitled to receive them.'^ AVhere a witness came from without the state to attend a circuit, which he got notice was adjourned before he reached the place of holding court, it was held that his fees could be taxed.** Where the time for trial is adjourned from time to time, for so long an interval, that it is reasonable for the witnesses to go home, and they do go home, travel for each attendance may be taxed." The fees of a witness who, for good cause, was not sub- poenaed till late, and who arrived at court after the cause was postponed, but in time to have been sworn if the cause had been tried, are taxable f but when the witness leaves, by the consent of the party, before the trial, the ' 14 How. Pr., 568. ' 16 How. Pr., 53. Ml How. Pr., 377. ' 6 How. Pr., 204. ' 17 How. Pr., 348; 2 Paige, 458. ' 16 How. Pr., 306; 1 Id., 213. * 2 R. S., 643. • 4 How. Pr., 243 ; 3 Hill, 457. • 4 How. Pr., 243 ; 6 Id., 265, 311. 438 ADMINISTPwATION OP CIVIL JUSTICE. •witness' attendance should not be deemed material unless it appears that his attendance was rendered unne- cessary by some admission of the other side.' Where a witness is subpoenaed in several causes his fees are taxable in each.^ Neither the attorney or counsel of a party is entitled to fees as a witness,^ but when counsel was subpoenaed and attended the court as a witness, and was afterwards retained as counsel, it was held that his fees were tax- able." Affidavits of attendance of witnesses and of disbursements. Where there are any charges in a bill for copies or exem- plifications of documents or papers, or for any other disbursements, except to officers for services rendered, such charges cannot be taxed without an affidavit that such copies were actually and necessarily used, or were necessarily obtained for use ; nor are any disbursements allowable without an affidavit specifying the items thereof particularly, nor unless they appear to have been neces- sary and reasonable in amount.'* The affidavit to show that the party is entitled to tax witness fees in his costs, should show the name and place of residence of each of his witnesses, the distance they severally resided fi?om the place of trial according to the usually traveled route, the number of miles they respec- tively traveled as such witnesses for the purpose of going to the place of trial, and returning therefrom, and that they were material or necessary, or that the party believed them to be so ; and if any witness is subpoenaed at a tem- porary place of residence, the fact should be stated,^ if the opposite party objects, and raises a reasonable suspi- cion that some of the witnesses were called for the pur- pose of swelling the bill, or if it appears that some were not called at all upon the trial, the party claiming to have their fees taxed, should show by his affidavit the mate- riality of the witness, and why they were not called ; in such a case, the ordinary affidavit is not sufficient." But where a party had subpoenaed seventeen witnesses upon an issue which had been previously found against him on ' 6 How. Pr., 410. • 12 How. Pr., 446. 1 How. Pr., 136. T 15 jj^^ pj.^ 3^5 j^__ 2I6: 19 ' 1 Wend., 24 ; 2 R. S., 651. Wend.. 82 : 3 HilL 457 : 5 Id., 595 : 'Hill. 141- 6 Id., 376. ^^ ' ' . » 2 R. S., 653. ' COSTS. 439 a former trial of another action, presenting the same issue when he had examined twelve, but the court on the pre- sent trial allowed him to swear but five, it was held that he should be allowed to tax witness fees for the whole number.* Foreign witnesses. Where a witness attends from another state, the charge for fees should be for the number of miles from the state Une by the most usually traveled route from the witness' residence, and the affidavit of the wit- ness' attendance should state where such route crosses the state line.^ Party as a witness. To authorize a charge for the attend- ance of the party as a witness, it should appear by his own affidavit that he attended solely as a witness ; unless this is shown, it is held that he is not entitled to fees as a wit- ness.* The general term of the third district have held, that upon the same facts being proved, that entitles a party to tax the fees of any other witness, he may tax his own fees as such, and this seems to be the more satisfactory decision. Expenses in executing a commission. Under the Code the necessary disbursements of the prevailing party for witness' fees, commissioner's fees, and the like, in executing a commission in a foreign state, are taxable.^ Surveyors^ fees are not taxable, except when the survey is a part of the proceedings in the action.^ Notice of taxation. The bill of costs should be made up of the items ; the disbursements should be stated in detail and verified by affidavit. When the attorneys reside in the same city, village or town, at least two days' notice should be given of the time when the costs will be taxed before the clerk ; this notice must be for at least two full business days, and a copy of the items of the costs and disbursements must be served with the notice of adjust- ment. In other cases than those above specified, there must be at least five days' notice. This notice of adjustment is necessary in all cases where there has been an appearance, though no answer has been interposed.^ ' 5 Abb. Pr., 227. •• 13 How. Pr., 13. « 10 Abb. Pr., 304. ' 15 How. Pr., 216. ' 20 How. Pr., 353 : 15 Abb. Pr., 135. " Code, § 246 ; 2 Code R., 30. 440 ADMINISTRATION OF CIVIL JUSTICE. It is not necessary to prove the service of the notice of taxation, unless the other party shows by affidavit that no notice of adjustment was received in which case to make the taxation regular, it is necessary to prove the time and manner of service.* The notice of taxation may be given before the right to costs is established, provided such right shall be esta- blished at the time for which the notice is given. In col- lection cases where notice of appearance has been served, and a default is expected, some time may be saved by giving notice of adjustment before the default has actually occurred.^ Effect of omitting notice. The omission to give notice of adjustment does not affect the regularity of the judgment, but the taxation is irregular, and will, on motion, be set aside with costs.^ It has been said that the old practice of entering judgment and giving notice of retaxation is not regular under the Code, but it is quite a common practice to do this, and it is thought that, although it is technically irregular to tax costs Avithout notice, the irre- gularity is cured if the party promptly gives notice of retaxation, and stipulates to deduct from the judgment and execution any sum that may be deducted from the costs on such retaxation. Poiver and duty of the clerli. There is no authority con- ferred upon the clerk by statute to adjust costs except on the entry of a judgment.'' The clerk should examine the charges whether the taxation is opposed or not, and strike out all items which in his opinion are not legally allow- able.* If the costs are not adjusted on the day for which notice is given, and the opposite party does not attend, the costs may be adjusted on a subsequent day without further notice.'' Opposing taxation. If the bill proposed to be taxed is objectionable, the objection to the items should be taken before the taxing officer, and the ground of the objection should be assigned. If the facts on which the taxation or objection rests are not apparent, the clerk should allow the parties time to prepare affidavits showing the facts of the case. If the party fail to properly object on the taxation, ' 10 How. Pr., B66. » 16 Barb., 662; 4 How. Pr., 199; 9 » 4 Sandf., 693. Id., 86. ' 16 Barb., 658; 5 How., 233. » 1 Johns. Cas., 32 ; 2 Wend., 252. * 6 How. Pr., 268, 415 ; 3 Code R, 70. COSTS. 441 he will not be allowed to take any objection, on motion for retaxatiou, that the court can see could have been obviated if taken before the clerk. Where the opposing party can properly excuse his omission to oppose the taxation before the clerk, and can show that improper items have been taxed, the court will generally, on proper terms, order a readjustment. Taxation, tvhat statute governs. — The recovery of costs is controlled, as to items and the rate of compensation, by the statutes in force at the time the right to costs accrues.^ Where judgment is entered by default, costs are taxable under the statutes in force at the time of the taxation, that being the time when the right accrues.^ Where the decision of an issue of law is made with costs, the costs are to be taxed by the law in force when the decision is made.^ Where the complaint is dismissed at the circuit for the failure of the plaintiff to bring the cause to trial, the costs are to be taxed under the statute in force, when the order for dis- missal was granted.^ Where the trial is by referee, the costs are to be adjusted, as of the time of the delivery of the report f and where the trial is by the court, at the {ime of filing the decision.^ Where the trial is by jury, costs are to be taxed under the statute in force at the time the verdict is rendered.^ Where a cause is settled, and either party is to have taxable costs, such costs are to be allowed as were taxable at the time the settlement was made.'' The right to an additional allowance is fixed at the time which determines the right to costs, although the amount of such allowance may not be determined till afterwards.^ Eetaxation. — The acts of a clerk in adjusting and sett- ling the amount of costs is subject to review. The remedy is by a motion to the special term, and not by appeal.* The motion should be promj^tly made, at least before the costs are paid,^" and, if necessary for this purpose, a stay of proceedings upon the judgment may be obtained. The motion papers should contain copies of the papers used before the clerk, and should show the objections taken and the decisions made by the clerk. If the taxation was *4HU1,591, 613; SDenio, 173;1 How. ° 14 How., 279; 15 Id., 430. Pr., 86; 1 Id., 232; 4 Id., 67. ' 3 Denio, 173. » 5 Abb. Pr., 14. » 1 Hilt., 557. * 15 How. Pr., 74. ' 15 Barb., 132. * 14 How. Pr., 357 ; 4 Id., 173 ; 1 Duer, " 1 Code Rep. N. S., 41, 400 ; 5 How. 61 8 ; 4 Wc-ud., 210. Pr., 458 ; 2 Abb. Pr., 460. * 14 How. Pr., 300. II.— 56 i 442 ADMINISTEATION OF CIVIL JUSTICE. opposed before the clerk, the motion will be heard and determined on the same papers that were before the clerk. If the taxation was not opposed, and the failure to attend before the clerk is properly excused, the court will ordi- narily, on terms, order a retaxation. On this motion if a retaxation is refused, the motion is denied with costs.^ Where the retaxation is allowed, and the moving party is successful as to all the items objected to, he is entitled to costs of the motion.^ Where the mov- ing party succeeds only as to part of the items objected to, neither party allowed costs.^ Interlocutory costs. When an action has been terminated by judgment in favor of one or the other party, the final costs are inserted in the judgment and collected with it. There are various cases, however, in which the party becomes entitled to costs of particular proceedings which occur during the progress of the cause, without any reference to its final result. The costs in these proceedings are termed inter- locutory costs. Of this description are costs of special motions, of inquests, of preparing for trial, of putting off trials, and other siuiilar proceedings. How taxed. Interlocutory costs and costs in special pro- ceedings may be taxed by the judge before whom the proceeding is heard, or the court before which the same may be decided or pending, or in such other manner as the judge or court may direct.* It is the usual practice to enter in the order by which the proceeding is decided, a direction that the costs be adjusted by the clerk, and then to proceed and tax the costs before the clerk in the same manner as upon the entry of judgment. AYhere prompt taxation is desired, as in case of an order putting off a cause, the court may order the taxation to take place before the court or the clerk instanter. How collected. Where the rule granting costs has been served, and the costs are not paid within the time allowed by the rule after they have been taxed, or otherwise liqui- dated, a process in the nature of an execution can be issued for the collection of the costs.^ • 2 Barb. Ch., 552. « Code, § 311 » 2 Paige, 347. ' Laws of 1847, p. 491, § 2; 13 How. ' 3 Paige, 85 ; 5 Id., 87 ; 1 Barb. Ch., 30. Pr., 191 ; 11 Id., 446 ; 6 Id., 265. COSTS. 443 Costs on postponement of trial. Where an application shall be made to a court or referees to postpone a trial, the payment to the adverse party of a sum not exceeding ten dollars, besides the fees of witnesses, may be imposed as the condition of granting the postponement.^ The costs on postponing a cause cannot exceed ten dol- lars, besides the fees of witnesses.^ These costs should be paid immediately after they are ascertained, without wait- ing for a demand f and if they are not paid the other party may proceed with the trial ;* or the court may order that the other party have judgment unless the party asking the postponement pay the costs within a specified number *of days.^ Motions. Costs may be allowed on a motion in the discretion of the court or judge, not exceeding ten dollars, and may be absolute, or directed to abide the event of the action.'' Costs should not be allowed on motions, unless such motions were necessary for the attainment of some sub- stantial right in the cause ; or unless they are awarded by way of punishment.^ It is said that costs should be im- posed on all parties that commit irregularities.^ Where the party makes two motions, where relief could be had by one, he must pay costs.^ So when he asks for more in his notice of motion than he is entitled to.^" Where the moving party only partially succeeds in his motion, he is not entitled to costs of the motion." Where the party does not ask for costs of motion, he cannot have costs if he takes his order by default. The order, on motion, should fix the amount of costs and no costs can be collected when the order says nothing about costs. Costs of motions cannot be taxed and included in the judgment,'^ but must be collected by execution as interlocu- tory costs. Costs of revieio in special proceedings and in surrogate's court. When the decision of a court of inferior jurisdiction in a special proceeding, including appeals from surrogate's ' Idem, § 314. '1 Barb., 71 ; 3 Code Rep., 153. » 6 How. Pr., 418. " 1 Idem, 99; 2 Id., 28. ' 19 Johns. Pr., 270. » 6 How. Pr., 268 * 5 Hill, 516; 2 Sand., 375. " 4 Idem, 28 ; 2 Code Rep., 33. ' 5 Hill, 446. " 8 How. Pr., 50. • Code, § 315. "7 How. Pr., 485. 444 ADMimSTKATION OP CIVIL JUSTICE. courts, shall be brought before the supreme court for review, such proceedings are for all purposes of costs deemed an action at issue on a question of law from the time the same shall be brought into the supreme court and costs thereon shall be awarded and collected in such man- ner as the court shall direct, according to the nature of the case.^ A summary proceeding to compel a party to support a relative, brought by certiorari from the court of sessions to the supreme court for review, has been held to be within the above provision.^ Costs on settlement. It is provided by statute that upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant as costs than at the rates prescribed by that section.^ * Code, § 318. ' Code, § 322. * 7 How. Pr., 154. ANNUITY TABLES. Annexed will be found a table corresponding with the North- ampton tables referred to in the 84th rule of the Supreme Court, and such of Hendry's tables as are occasionally referred to in our reports : A TABLE Correspo7iding with the Northampton tables referred to in the Mth nile^ showing the value of an annuity of one dollar^ at six per cent, on a single life, at any age from one year to ninety four.^ inclusive. Age. No. of years purchase the annuity is worth. Age. No. of years purchase the annuity 18 worth. Age. No. of years purchas^e the annuity is worth. Age. No. of years purchase the annuity is worth. 1 10.107 25 12.063 49 9.563 73 4.781 2 11.724 26 11.992 50 9.417 74 4.565 3 12.348 27 11.917 51 9.273 75 4.354 4 12.769 28 11.841 52 9.129 76 4.154 5 12.962 29 11.763 53 8.980 77 3.952 6 13.156 30 11.682 54 8.827 78 3.742 7 13.275 31 11.598 55 8.670 79 3.514 8 13.337 32 11.512 56 8.509 80 3.281 9 13.335 33 11.423 57 8.343 81 3.156 10 13.285 34 11.331 58 8.173 82 2.926 11 13.212 35 11.236 59 7.999 83 2.713 12 13.130 36 11.137 60 7.820 84 2.551 13 13.044 37 11.035 61 7.637 85 2.402 14 12.953 38 10.929 62 7.449 86 2.266 15 12.857 39 10.819 63 7.253 87 2.138 16 12.755 40 10.705 64 7.052 88 2.031 17 12.655 41 10.589 65 6.841 89 1.882 18 12.562 42 10.473 66 6.625 90 1.689 19 12.477 43 10.356 67 6.405 91 1.422 20 12.398 44 10.235 68 6.179 92 1.136 21 12.329 45 10.110 69 5.949 93 806 22 12.265 46 9.980 70 5.716 94 518 23 12.200 47 9.846 71 5.479 24 12.132 48 9.707 72 5.241 Note. — The values in this table are calculated on the supposition that the annuities are payable yearly ; if payable half yearly, one-fifth of a year'.s purchase should be added to those values. For the rule to compute the present value of an inchoate or contingent right of dower, vide Jackson v. Edwards, 7 Paige, 408; McKean's Pr. Int. Tables, 25, § 4; Hendry'e Ana, Tables, 87, prob. 4. 446 ANNUITY TABLES. Rules for Computing the Value of the Life Estate oe Annuity. Calculate the interest at six per cent for one year, upon the sum to the income of Avhich the person is entitled. Multiply this inte- rest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person in said sum. Examples. Suppose a widow's age is 37; and she is entitled to dower in real estate, worth $350.75. One-third of this is $116.91f. Inte- rest on 1116.91, one year at six per cent (as fixed by 84th rule), is $7.01. The number of years' purchase which an annuity of one dollar is worth, at the age of 37, as appears by the table, is 11 years, and yff ^ parts of a year, which, multiplied by $7.01, the income for one year, gives $77.35, and a fraction, as the gross value of her right of dower. Suppose a man, whose age is 50, is tenant by the courtesy in the whole of an estate worth $9,000. The annual interest on the sum, at six per cent, is $540.00. The number of years' purchase which an annuity of one dollar is worth, at the age of 50, as per table, is ^ToVo pai'ts of a year, which multiplied by $540, the value of one year, gives $5,085.18 as the gross value of his life estate in the premises, or the proceeds thereof. AKSVITY TABLES. 447 TABLE Vm Shotcing the probabilities of life at all ages ; formed by Dr. Price^ from the register of mortality at Northampton^ from 1735 to 1780. Aee. Living. Decrease. Age. Liyinp. Decrease. Age. Living. 3 months, 6 months 9 months, 1 year, . . 2 3 4 6 6 •7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 11650 10310 9756 9203 8650 7283 6781 6446 6249 6065 5925 5815 5735 5675 5623 5573 5523 5473 5423 5373 5320 5262 5199 5132 5060 4985 4910 4835 4760 4685 4610 4535 4460 4385 1340 554 553 553 1367 502 335 197 184 140 110 80 60 52 50 50 50 50 50 53 58 63 67 72 75 75 75 75 75 75 75 75 75 75 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 4310 4235 4160 4085 4010 3935 3860 3785 3710 3635 3559 3482 3404 3326 3248 3170 3092 3014 2936 2857 2776 2694 2612 2530 2448 2366 2284 2202 2120 2038 1956 1874 1793 1712 75 75 75 75 75 75 75 75 75 76 77 78 78 78 78 78 78 78 79 81 82 82 82 82 82 82 82 82 82 82 82 81 81 80 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 Total, 1632 1552 1472 1392 1312 1232 1152 1072 992 912 832 752 675 602 534 469 406 346 289 234 186 145 111 83 62 46 34 24 16 9 4 1 80 80 80 80 80 80 80 80 80 80 80 77 73 68 65 63 60 57 55 48 41 34 28 21 16 12 10 8 7 5 2 1 299198 11650 The rule for finding the expectation of a life at any age, by a table of obserra- tions, is to " divide the sum of all the living in the table at the age whose expecta- tion is required, and at all greater ages, by the sum of all that die annually at that age, and above it ; or, which is the same, by the number (in the table) of the living at that age, and half unity subtracted from the quotient will be the required expectation." Thus, in the last table, the sum of all the living at 20 and upwards, is 174,155; the number hving at that age is 5,132; and the former number divided by the latter, and half unity subtracted from the quotient, gives 33.43, the expectation of a life at 20. 448 ANNUITY TABLES. TABLE IX. Showing the expectations of human life at every age, deduced from the Northamptom table of observations. Ages. Expecta- Ages. Expecta- Ages. Expecta- Ages. Expecta- Ages. Expecta- tions. tions. tions. tions. tions. 25.18 20 33.43 40 23.08 59 13.68 78 5.48 1 32.74 21 32.90 41 22.56 60 13.21 79 5.11 2 37.79 22 32.39 42 22.04 61 12.75 80 4.75 3 39.55 23 31.88 43 21.54 62 12.28 81 4.41 4 40.58 24 31.36 44 21.03 63 11.81 82 4.09 5 40.84 25 30.85 45 20.52 64 11.35 83 3.80 6 41.07 26 30.33 46 20.02 65 10.88 84 3.58 7 41.03 27 29.82 47 19.51 66 10.42 85 3.37 8 40.79 28 29.30 48 19.00 67 9.96 86 3.19 9 40.36 29 28.79 49 18.49 68 9.50 87 3.01 10 39.78 30 28.27 50 17.99 69 9.05 88 2.86 11 39.14 31 27.76 51 17.50 70 8.60 89 2.66 12 38.49 32 27.24 52 17 02 71 8.17 90 2.41 13 37.83 33 26.72 53 16.54 72 7.74 91 2.09 14 37.17 34 26.20 54 16.06 73 7.33 92 1.75 15 36.51 35 25.68 55 15.58 74 6.92 93 1.37 16 35.85 36 25.16 56 15.10 75 6.54 94 1.05 17 35.20 37 24.64 57 14.63 76 6.18 95 0.75 18 34.58 38 24.12 58 14.15 77 5.83 96 0.50 19 33.99 39 23.60 These kind of tables may be applied to a variety of uses. For instance : 1. If it be demanded what chance a person of 35 years has to live 10 years longer; from 4,010, the number of persons living at 35 years of age in Table 8, subtract 3,248, the number of persons living at 45 years of age, and the remainder, 762, is the number of persons that died during these 10 years, and the probability or chance that the person in the question shall live these 10 years, is as 3,248 to 762, or 4| to 1. 2. To find to what year a person of 30 years of age has an equal chance of arriving before he dies. The number of that age in Table 8 is 4,385, the half whereof is 2,192, which is found in the table between 58 and 59 years ; so that a person of 30 years has an equal chance of living between 28 and 29 years longer. 3. The probability, by Table 8, that a person aged 20 shall live 10 years is \m. That a person aged 30 shall live 10 years, is |f||. That they shall both live 10 years, is -*f|f X -J^fs, or |ff|. That they shall not both live 10 years, but that one or the other of them will die previous thereto, is f jg4 subtracted from unity, or sf|^. A2WUITY TABLES. 449 The probability that one or other of two lives aged 20 and 30 will continue 10 years, is equal to |j|| subtracted from 225 03 ?M (or from the sum of the two quantities |f |^ and f ff |), which leaves Hl^lf Jo ^^^' ^^^® probability required. The probability that both the lives shall fail in 10 years, is ( 1 4 385 \ V M 363 5 'k 747 V '50 56 0250 \ '■ ST32 ) y^ \ '^ 4385 ^ 5^132 ^ 43'85 ^T50T82(J' 4. To find the probability that three persons whose ages are 40, 60 and 60, respectively, shall be all living 10 years hence. First, that one of the age of 40 shall live 10 years the probability is, by Table 8, fffl ; that one of 50 lives 10 years, is fl^f and that one of 60 survives that term, is ^ff|. The product of these is HH X IHf X MM = 36-li = i nearly; and consequently the odds are two to one that they are not all living 10 years hence. 5. To compute the number of inhabitants in any place. Suppose the number born annually be 200, this multiplied by 25.18, the expectation of an infant just born, by Table 9, gives 5,036 the answer. In large towns it appears that a greater proportion of the inhabit- ants die annually than in small ones. In London this proportion is at the highest, 1 in 20f ; in Norwich, 1 in 24^ ; in Northampton, 1 in 26| ; in the parish of Newbury, Berks, 1 in 27^: in the con- tiguous parish of Speen, 1 in 31. According to Graunt's account of a parish in Hampshire, 1 in 50. In the parish of Ackworth, Yorkshire, 1 in 47. In 1,098 country parishes mentioned by Sulmilch, the annual ave- rage of deaths for 6 years was 1 in 43. In 106 other parishes men- tioned by him, 1 in 50. In the dukedom of Wurtemberg, Mr. Sulmilch says, 1 in 32 had died annually, on an average for 5 years. In another province which he mentions, 1 in 33 died annually. From these facts he concludes that, taking a whole country in gross, including all cities and villages, mankind enjoy, among them, about 32 or 33 years each of existence. n— 57 450 ANNUITY TABLES TABLE X. Showing tlie value of an annuity on a single life, at every age, according to the prohabili- ties of the duration of human life at Northampton. See Table VIIJ. Age. Valae at Value at Value at Age. Value at Value at Value at 3 per cent. 4 per cent. 5 per cent. 3 per cent. 4 per cent. 5 per cent. Birth, 12 270 10.327 8.883 49 12.693 11.475 10.443 1 16.021 13.465 11.563 50 12.436 11.264 10.269 2 18.599 15.633 13.420 51 12.183 11.057 10.097 3 19.575 16.462 14.135 52 11.930 10.849 9.925 4 20.210 17.010 14.613 53 11,674 10.637 9.748 6 20.473 17.248 14.827 54 11.414 10.421 9.567 6 20.727 17.482 15.041 55 11.150 10.201 9.382 7 20.853 17.611 15.166 56 10.882 9.977 9.193 8 20.885 17.662 15.226 57 10.611 9.749 8.999 9 20.812 17.625 15 210 58 10.337 9.516 8.801 10 20.663 17.523 15.139 59 10.058 9.280 8.599 11.... 20.480 17.393 15.043 60 9.777 9.039 8.392 12 20.283 17.251 14.937 61 9.493 8.795 8.181 13.... 20.081 17.103 14.826 62 9.20S 8.547 7.966 U.... 19.872 16.950 14.710 63 8.910 8.291 7.743 15.... 19.657 16.791 14.588 64 8.611 8.030 7.514 16.... 19.435 16.625 14.460 65 8.304 7.761 7.276 17.... 19.218 16.462 14.334 66 7.994 7.488 7.034 18.... 19.013 16.309 14.217 67 7.682 7.211 6.787 19. . . . 18.820 16.167 14.108 68 7.367 6.930 6.536 20.... 18.638 16.033 14.007 69 7.051 6.647 6.281 21.... 18.470 15.912 13.917 70 6.734 6 361 6.023 22.... 18.311 15.797 13.833 71 6.418 6.075 5.7C4 23.... 18.148 15.630 13.746 72 6.103 5.730 5.504 24... 17.983 15.560 13.658 73 5.794 5.507 5.245 25.... 17.814 15.438 13.567 74 5.491 5.230 4.990 26.... 17.642 15.312 13.473 75 5.199 4.962 4.744 27.... 17.467 15.184 13.377 76 4.925 4.710 4.511 28.... 17.289 15.053 13.278 77 4.652 4.457 4.277 29.... 17.107 14.9L8 13.177 78 4.372 4.197 4.035 30.... 16.922 14.781 13.072 79 4.077 3.921 3.776 31.... 16.732 14.639 12.965 80 3.718 3.643 3.515 32.... 16.540 14.495 12.854 81 3.499 3.377 3.263 33 16.343 14.347 12.740 82 3.229 3.122 3.020 34 16.142 14.195 12.623 83 2.982 2.887 2.797 35.... 15.938 14.039 12.502 84 2.793 2.708 2.627 36.... 15.729 13.880 12.377 85 2.620 2.543 2.471 37.... 15.515 13.716 12.249 86 2 .461 2.393 2.328 38.... 15.298 13.548 12.116 87 2.312 2.251 2.193 39.... 15.075 13.375 11.979 88 2.185 2.131 2.080 40 14.848 13.197 11.837 89 2.015 1.967 1.924 41.... 14.620 13.018 11.695 90 1.794 1.758 1.723 42 14.391 12.838 11.551 91 1.501 1.474 1.447 43 14.162 12.657 11.407 92 1.190 1.171 1.153 44 13.929 12.472 11.258 93 0.839 0.827 0.816 45 13.692 12.283 11.105 94 0.536 0.530 0.524 46 13.450 12.089 10.947 95 0.242 0.240 0.238 47.... 13.203 11.890 10.784 96 0.000 0.000 0.000 48.... 12.951 11.685 10.616 The values of annuities in this table supposes the payments to be made yearfy, and to begin at the end of a year. ANNUITY TABLES. 451 If the payments are to be half yearly, and to be made at the end of every half year from the time of purchase, their value will be increased about one-fifth of a year's purchase. EXAMPLES. 1. A person of 50 years would purchase an annuity for life of £200 ; what ready money ought he to pay, reckoning interest at 5 per cent ? By the table the value of £1 is. . 10-269 Multiply by 200 Answer, 2053-800=£2,053 16s. 2. An estate, value £500, falls to a person on the extinction of a life aged 65 ; what is the present value of the same, reckoning interest at 4 per cent ? Interest being 4 per cent, the perpetuity by Table 2, is 25 • 000 Deduct the value of £1 annuity for a life of 65, . . 7-761 17-239 Then, as 25 : 17 -239:: 500: 34 -478 = £344 15s. 7c?., the answer. Or the rent of the estate, which, at 4 per cent, is £20. Multi- plied by 17-239 gives 34-478, the answer as before. To determine the annuity that ought to be received for any given sum, divide such sura by the number of years' purchase. Thus, if a person aged 50 wished to lay out £2,000 in the purchase of an annuity, interest 5 per cent, the annuity will be found by dividing 2,000 by 10-269; whence 194-76, or £194 15s. 2d., will be the annuity required. To find the value of an annuity of £l on the joint continuance of two lives having the same common age, one life failing the annu- ity to cease : Ruh. Look in Table 8 for the number of persons represented. as living at one year more than the age given, square that number, then multiply by the present value of £l certain to be received at the end of one year, found by Table 1 , and that product divided by the square of the number of persons represented as living at the age given, will produce the present value of the first year's payment of the annuity of £I, which is to be made to the purchaser at the end of one year from the time of granting it, provided both he and his companion are then alive. In like manner proceed to the end of the table, and the sum of all the values will be the worth of the annuity. 452 AKNUITY TABLES. TABLE XI. Showing the value of an annuity on the joint continicance of two lives, having the same common age. Age. Value at Value at Value at Age. Value at Value at Value at 3 per cent. 4 per cent. 5 per cent. 49 3 per cent. 4 per cent 5 per cent. 1 9.490 8.252 7.287 8.930 8.266 7.686 2 12.789 11.107 9.793 50 8.714 8.081 7.522 3 14.196 12.325 10.862 51 8.507 7.900 7.366 4 15.181 13.185 11.621 52 8.304 7.723 7.213 5 15.638 13.591 11.984 53 8.098 7.544 7.056 6 16.099 14.005 12.358 54 7.891 7.362 6.897 7 16.375 14.224 12.596 55 7.681 7.179 6.735 8 16.510 14.399 12.731 56 7.470 6.993 6.571 9 16.483 14.396 12.744 57 7.256 6.805 6.404 10 16.339 14.277 12.669 58 7.041 6.614 6.234 11 16.142 14.133 12.546 59 6.824 6.421 6.062 12 15.926 13.966 12.411 60 6.606 6.226 5.888 13 15.702 13.789 12.268 61 6.386 6.030 5.712 14 15.470 13.604 12.118 62 6.166 5.831 5.533 15 15.229 13.411 11.960 63 5.938 5.626 5.347 16 14.979 13.212 11.793 64 5.709 5.417 5.158 17 14.737 13.019 11.630 65 5.471 5.201 4.960 18 14.516 12.841 11.483 66 5.231 4.982 4.759 19 14.316 12.679 11.351 67 4.989 4.760 4.555 20 14.133 12.535 11.232 68 4.747 4.537 4.348 21 13.974 12.409 11.131 69 4.504 4.312 4.140 22 13.830 12.293 11.042 70 4.261 4.087 3.930 23 13.683 12.179 10.951 71 4.020 3.862 3.719 24 13.534 12.062 10.858 72 3.781 3.639 3.510 25 13.383 11.944 10.764 73 3.548 3.421 3.304 26 13.230 11.822 10.667 74 3.324 3.211 3.105 27 13.074 11.699 10.567 75 3.114 3.015 2.917 28 12.915 11.573 10.466 76 2.926 2.833 2.750 29 12.754 11.445 10.362 77 2.741 2.656 2.583 30 12.589 11.313 10.255 ; 78 2.550 2.470 2.410 31 12.422 11.179 10.146 79 2.338 2.271 2.217 32 12.252 11.042 10.034 80 2.122 2.068 2.018 33 12.079 10.902 9.919 81 1.917 1.869 1.827 34 11.902 10.759 9.801 82 1.719 1.681 1.642 35 11.722 10.612 9.684 83 1.538 1.510 1.472 36 11.539 10.462 9.555 84 1.416 1.387 1.357 37 11.351 10.307 9.427 85 1.309 1.339 1.256 38 11.160 10.149 9.294 86 1.218 1.195 1.171 39 10.964 9.986 9.158 87 1.141 1.124 1.098 40 10.764 9.820 9.016 88 1.103 1.030 1.063 41 10.565 9.654 8.876 89 1.036 1.015 l.OOl 42 10.369 9.491 8.737 90 0.938 0.922 0.909 43 10.175 9.326 8.599 91 0.769 0.756 0.748 44 9.977 9.160 8.457 92 0.591 0.583 0.576 45 9.776 8.990 8.312 93 0.369 0.365 0.361 46 9.571 8.815 8.162 94 0.203 0.201 0.199 47 9.362 8.637 8.008 95 0.060 0.060 0.059 48 9.149 8.453 7.849 96 0.000 0.000 0.000 ANNUITY TABLES. 453 EXAMPLES. 1. An annuity of £400 depends on the joint lives of two persons, aged 30 years each, either of which failing, the annuity to cease; what is the value, reckoning interest at 4 per cent ? Value of an annuity of £l, per table, is 11 • 313 Multiply by the annuity, per table, .... 400 Answer, 4525-200=i;4,525 45. 2. A legacy of £500 is to be received on the death of either of two persons, aged 73 years each; what is the value, reckoning interest at 5 per cent ? Interest being 5 per cent, the perpetuity by table 2 is 20. Deduct value of £1 annuity, per the above table, 3-304 16-696 As 20 : 16-696 :: 500 : £417 8s., answer. But if the legacy be not due till 12 months after the extinction of the lives, £417- 8s. must be divided by 1-05 (the amount of £1 in a year), and the answer will be £367 10s. 5c?. To find the value of an annuity of £1 on the joint continuance of two lives, differing in age ; one life failing the annuity to cease. Mule. Multiply the product of the number in table 8, opposite one year older than the youngest age given, and the number oppo- site one year older than the oldest age given, by the value of £1, certain to be received at the end of one year, and then divide by the product of the two numbers opposite the ages given ; the quo- tient will be the first year's payment of the annuity of £1, which is to be made to the purchaser at the end of a year from the time of granting it, provided both he and his companion are then alive. In like manner proceed to the end of the table, and the sum of all the values will be the worth of the annuity. 454 AUNUITY TABLES. TABLE XV. Showing the value of an annuity o?i the joint continuance of two lives. Difference of age^ 20 years. Value at Value at Value at Value at Value at Value at ASKS. 3 per cent. 4 per cents 5 per cent. AGES. 3 per cent. 4 per cent 5 per cent 1-21.. 11.413 10.053 8.961 39-59. . 8.253 7.689 7.189 2-22.. 13.172 11.605 10.344 40-60.. 8.025 7.490 7.015 3-23.. 13.794 12.161 10.843 41-61.. 7.796 7.290 6.838 4-24.. 14.178 12.511 11.163 42-62.. 7.566 7.088 6.660 6-25.. 14.301 12.633 11.281 43-63.. 7.332 6.881 6.477 6-26.. 14.420 12.754 11.400 44-64.. 7.095 6.671 6.289 7-27.. 14.451 12.798 11.452 45-65 . . 6 . 850 6.453 6.094 8-28.. 14.417 12.786 11.455 46-66.. 6.602 6.234 5.894 9-29 . . 14.310 12.710 11.401 47-67.. 6.351 6.004 5.690 10-30.. 14.150 12.586 11.304 48-68.. 6.096 5.774 5.481 11-31.. 13.965 12.441 11.188 49-69.. 5.839 5.541 5.268 12-32.. 13.770 12.286 11.062 50-70.. 5.582 5.306 5.054 13-33.. 13.570 12.125 10.932 51-71.. 5.328 5.474 4.841 14-34. . 13.363 11.955 10.796 52-72.. 5.077 4.845 4.630 15-35. . 13.151 11.787 10.655 5.3-73.. 4.828 4.614 4.417 16-36.. 12.932 11.609 10.507 54-74. . 4.585 4.389 4.208 17-37.. 12.714 11.430 10.358 55-75.. 4.350 4.171 4.009 18-38.. 12.502 11.257 10.214 56-76.. 4.129 3.966 3.815 19-39.. 12.297 11.089 10.074 57-77.. 3.908 3.761 3.623 20-40.. 12.096 10.924 9.937 58-78.. 3.682 3.549 3.424 21-41.. 11.906 10.768 9.809 59-79.. 3.440 3.322 3.210 22^2.. 11.723 10.619 9.685 60-80.. 3.197 3.092 2.992 23-43.. 11.540 10.470 9.562 61-81.. 2.964 2.870 2.782 24r-44. . 11.354 10.317 9.435 62-82.. 2.739 2.656 2.578 25^5.. 11.164 10.160 9.304 63-83 . . 2.530 2.457 2.387 26-46". . 10.970 10.000 9.170 64-84.. 2.371 2.305 2.242 27-47.. 10.773 9.836 9.032 65-85 . . 2.223 2.163 2.107 28-48.. 10.572 9.667 8.890 66-86.. 2.089 2.035 1.984 29-49 . . 10.366 9.495 8.744 67-87.. 1.963 1.915 1.870 30-50. . 10.160 9.321 8.596 68-88.. 1.860 1.817 1.777 31-51.. 9.957 9.151 8.451 69-89.. 1.721 1.685 1.650 32-52.. 9.755 8.980 8.306 70-90.. 1.545 1.515 1.486 33-53 . . 9.550 8.806 8.157 71-91.. 1.303 1.280 1.259 34-54. . 9.342 8.629 8.005 72-92.. 1.044 1.028 1.012 35-55.. 9.131 8.448 7.849 73-93.. 0.743 0.733 0.723 36-56.. 8.916 8.264 7.690 74-94.. 0.480 0.474 0.469 37-57.. 8.698 8.076 7.527 75-95.. 0.219 0.217 0.215 38-58.. 8.477 7.884 7.360 Examples. 1. What is the value of an annuity of £60 per annum, held on the joint continuance of two lives, aged 67 and 87, interest 5 per cent? Value of £1, by the table is 1,870 Multiply by the annuity, 60 Answer, £112 45. 112.000 ANNUITY TABLES. 455 2. A legacy of £100 is to be received on the decease of two joint lives, aged 33 and 53 ; what is the value thereof, reckoning interest at 5 per cent ? Interest being 5 per cent, the perpetuity is 20. Value by the table 8.157 11.843 Multiply by the interest for a year 5 59.215 It is supposed that the legacy is not received till twelve montha after the decease of the joint lives ; therefore, to find the value, 69.215 must be divided by 1.05 (the amount of £1 in a year), and the answer is 56.395 =£56 7s. lOfc?. PROBLEM II. To find the value of a reversionary estate in fee, after the life of a person of a given age. Rule. Subtract the value of the life in possession from the perpe- tuity, then multiply the remainder by the rent, and the product will be the value required. Question. An estate, valued £1,000, falls to a person on the death of a life aged 55, what is the present value thereof, reckoning inter est 5 per cent ? Interest being 5 per cent, the perpetuity is 20 '000 The value of £1 annuity for a life of 55, by Table 10, is 9-832 The value of £1 per annum, as per following table = 10-618 Multiply by the rent, 50 530-900 Answer, £530 18«. 456 ANNUITY TABLES. TABLE XXXII. Shoioing the present value of a reversionary estate in fee, after the life of a person of a given age. h Value at Value at Value at eg Value at Value at Value at 3 per cent. 4 per cent. 5 per cent. |i 3 per cent. 4 per cent. 5 per cent 6 12.860 7.752 5.173 63 24.423 16.709 12.258 10 12.670 7.477 4.861 64 24.722 16.970 12.486 15 13.676 8.209 5.412 65 25.029 17.239 12.724 20 14.695 8.967 5.993 66 25.339 17.512 12.966 25 15.519 9.562 6.433 67 25.651 17.789 13.213 30 16.411 10.219 6.928 68 25.966 18.070 13.464 35 17.395 10.961 7.498 60 26.282 18.753 13.719 40 18.485 11.803 8.163 70 26.599 18.639 13.977 45 19.641 12.717 8.895 71 26.915 18.925 14.236 50 20.897 13.736 9.731 72 27.230 19.210 14.496 51 21.150 13.943 9.903 73 27.539 19.493 14.755 52 21.403 14.151 10.075 74 27.842 19.770 15.010 53 21.659 14.363 10.252 75 28.134 20.038 15.256 64 21.919 14.579 10.433 76 28.408 20.290 15.489 55 22.183 14.799 10.618 77 28.681 20.543 15.723 66 22.451 15.023 10.807 78 28.961 20.803 15.965 57 22.722 15.251 11.001 79 29.256 21.079 16.224 58 22.996 15.484 11.199 80 29.552 21.357 16.485 59 23.275 15.720 11.401 85 30.713 22.457 17.529 60 23.556 15.961 11.608 90 31.539 23.242 18.277 61 23.840 16.205 11.819 95 33.091 24.760 19.762 62 24.128 16.453 12.034 EXAMPLE. What is the value of a reversionary estate, value £2,500, after tJie life of a person aged 60, reckoning interest 4 per cent ? Opposite 60 and under 4 per cent, is 15 • 961 Multiply by the rent, which, at 4 per cent, is. . . 100 1596-1 Answer, £1,596 25. PROBLEM m. To find the value of a reversionary estate in fee, after the decease of either of two given lives. Rtile. Subtract the value of the lives in possession from the per- petuity, then multiply the remainder by the rent, and the product will be the value required. Question. An estate, value £400, falls to a person on the extinc- tion of either of two lives, aged 40 and 60 ; what is the present value thereof, reckoning interest at 4 per cent ? ANNUITY TABLES. 457 The interest being 4 per cent, the perpetuity is. . 25 • 000 The value of two lives, by Table 15, is 7 • 490 The value of £1 per annum, as per following table, = 17-510 Multiply by the rent, which, at 4 per cent, is. . . 160 105-060 175-100 Answer, £280 35. 2^d. 280-160 TABLE XXXm. Showing ike present value of a reversionary estate in fee, after th^ extinction of either of two given lives. Ages in Value at Value at Value at Ages in Value at Value at Value at possess- ion. 3 per cent. 4 per cent. 5 per cent. possession. 3 per cent. 4 per cent. 5 pr cent. 10 10 16.994 10.723 7.335 30 60 24.955 17.198 12.708 10 20 18.182 11.645 8.094 30 70 27.290 19.271 14.558 10 30 19.183 12.414 8.696 30 80 29.803 21.594 16.710 10 40 20.542 13.487 9.558 10 50 22.289 14.915 10.740 40 40 22.569 15.180 10.984 10 60 24.381 16.686 12.250 40 50 23.743 16.166 11.823 10 70 26.986 18.992 14.300 40 60 25.308 17.510 12.985 10 80 29.686 21.483 16.605 40 70 27.462 19.429 14.702 40 80 29.864 21.651 16.764 20 20 19.200 12.465 8.768 20 30 20.047 13.127 9.293 50 50 24.619 16.919 12.478 20 40 21.237 14.076 10.063 50 60 25.872 18.011 13.432 20 50 22.810 15.370 11.139 50 70 27.751 19.694 14.946 20 60 24.736 17.005 12.537 50 80 29.971 21.753 16.860 20 10 27.184 19.174 14.468 20 80 29.764 21.557 16.675 60 60 26.727 18.774 14.112 60 70 28.194 20.100 15.320 30 30 20.744 13.687 9.745 60 80 30.136 21.908 17.008 30 40 21.765 14.510 10.424 30 50 23.173 15.679 11.404 70 70 29.072 20.913 16.070 EXAMPLE. What is the value of the reversion of an estate, value £500, to be enjoyed after the death of either of two persons, aged 30 and 40, reckoning interest at 5 per cent ? Opposite 30 and 40, and under 5 per cent, is . . . 10-424 Interest being 5 per cent, the rent is Answer, £260 125. 25 52-120 208-480 260-600 PROBLEM IV. To find the value of the reversion of an annuity of one life, after another. n— 58 458 ANNUITY TABLES. Eide. From the value of the life in expectation subtract the value of the two joint lives, and the remainder will be the value of the reversion of £1 per annum. Question. A man and his wife, each 40 years of age, are desirous of securiiio- an annuity to the latter after the death of the former, provided she be the survivor ; what is the present value thereof, reckoning interest 5 per cent ? The value of a single life aged 40, by Table 10, is 11- 837 Ditto of two joint lives, each 40, by Table 1 1, is 9-016 The value of ill per annum, as per the following table, 2-821 TABLE XXXIV. Showing the value of the reversion of an annuity on a single life., after any other single life in possession. ©•3 C 5;J 11 Value at 3 per cent. Value at 4 per cent. Value at 5 per cent Si It Is Value at 3 per cent. Value at 4 per cent Value at 6 pr cent 10 30 6.513 4.937 3.325 40 30 3.280 2.707 2.261 10 40 7.872 6.010 4.697 40 40 4.084 3.377 2.821 10 50 9.619 7.438 5.879 40 50 5.258 4.363 3.660 10 60 11.711 9.209 7.389 40 60 6.823 5.707 4.822 10 70 14.316 11.515 9.439 40 70 8.977 7.626 6.539 10 80 17.016 14.006 11.744 40 80 11.379 9.848 8.601 20 30 5.370 4.160 3.300 50 30 2.276 1.943 1.673 20 40 6.542 5.109 4.070 50 40 2.846 2.430 2.092 20 50 8.115 6.403 5.146 50 50 3.722 3.183 2.747 20 60 10.041 8.038 6.544 50 60 4.975 4.275 3.701 20 70 12.489 10.207 8.475 50 70 6.854 5.958 5.215 20 80 15.069 12.590 10.682 50 80 9.074 8.017 7.129 30 30 4.333 3.468 2.817 60 30 1.399 1.237 1.100 30 40 5.354 4.291 3.496 60 40 1.752 1.549 1.377 30 50 6.762 5.460 4.476 60 50 2.316 2.050 1.824 30 60 8.544 6.979 5.780 60 60 3.171 2.813 2.504 30 70 10.879 9.052 7.630 60 70 4.638 4.139 3.712 30 80 13.392 11.375 9.782 60 80 6.580 5.947 5.400 EXAMPLE. What is the present value of an annuity of £50 per annum, to be enjoyed by a life aged 20, provided it survives another life aged 60, reckoning interest 5 per cent ? Opposite 20 and 50, and under 5 per cent, is . . . 5-146 Multiply by the annuity, 50 Answer, £257 6a. 257-300 INDEX. A. Page. ADMEASURMENT OF DOWER, 276 (See Dower.) AFFIDAVIT OF SALE {of mortgaged premises) : By whom made 273 The nature- of, where the mort- gagee is the purchaser, 273 "What it must contain, 273, 274 By whom it may be taken 273 When and how to be recorded, . 273 When made and filed on a sub- stitute for a deed, 274 AFFIDAVIT : Preliminary, in proceedings sup- plementary to executions, . 85 What it must allege, &c., 85, 90, 91 AMENDMENTS OP JUDGMENTS: When they may be made, 11 What amendments will be al- lowed, 11, 12, 13 Does not extend to jurisdictional defects, 13 When judgment may be set aside, 14 When the application is made, . . 16 APPEALS, THE COURT OF: General observations thereon, ... 109 Has taken the place of the court for the correction of errors, . . . 109 Its jurisdiction, &c., 109 Acts only upon the actual and final orders, or judgments, of the Supreme Court, 110 Is strictly an appellate at court, . 110 Appeal to, &c., 118 APPEAL: The only mode of review in civil actions, Ill Appeal — Continued. Applicable in special proceedings, 111 When it will lie from a judg- ment or order, Ill The judgment must be actual, not merely formal, Ill Is in the nature of a new action, 115 Who may appeal, 115 Parties to, how designated, 115 Attorneys in the action deemed to be continued, 115 How made, 115 The notice of, must be properly given, 115 Time of, cannot be extended, ... 116 Judgment on, 116 Only such parts as are appealed from can be reviewed, 116 And in favor of only such par- ties, &c., 116 Irregularities in appeal, 117 Objections on account of, how taken, 117 How appeal is continued, 117 How waived 117 To court of appeals 118 When from a judgment, 118 Within what time to be brought, 119 How to be brought, 119 First step, nature of appeal, .... 119 Its requisites and service, Ac, ... 119 From an order granting a new trial, what, 119 Notice of appeal how served, ... 119 The undertaking in, 119 What is essential thereto 119 If a stay, &g., is desired, what, . . 120 Extent of stay, 121 When the appeal is deemed per- fected 121 u INDEX. ArPEAL — Continued. Page. When security may be dispensed with 121 Undertaking must be filed, 121 When, 121 Surety to justify, 122 Stay in case of perishable pro- perty, &c., 122 Stay on appeals from orders, ... 122 Excepting to sureties, 122 How conducted, 122 Justification of sureties, 123 Allowance of bail 123 When sureties faU to justify, oth- ers to be substituted, 123 Must justify immediately, 123 Failing to justify, no appeal, &c., 123 Additional security, when re- quired, 123 Deposit in lieu of undertaking, . . 124 Respondent's appearance, 124 Filing return, 124 Return to appeal, 124 Appellant failing to procure a proper return, 124 Time to file return, how extended, 125 Order for further return, 125 Costs on appeal, 125 Printing and serving a case, . 125 Relief from dismissal, 126 When return or case is imperfect, 126 How to proceed when no case is made or served, 127 Notice of argument, 127 Calendar, 127 Preparation for argument 128 Calendar practice, 128 Submitting cause, 129 Argument, 129 Error in case, 129 Re-argument, 129 The decision and remittitur, .... 130 Entry of judgment 130 Appeals from orders, 131 Motions, 131 Actions upon undertaking, how and when, 131 Discontinuing appeal, 131 To the general term of the supreme court: From what inferior courts, 132 Appeal — Continued. Page. Time within which it must be taken, 132 If from a judgment, 132, 133 Notice of appeal, 133 Security, 133 Return, upon an appeal from a judgment, 133 Notice of argument, what, 133 Note of issue, 134 Case on appeal and its requisites, 134 Points, &c., 134 The argument, how conducted, . . 135 Decision, &c., 135 What errors revived, 135 Judgment, 136 Appeals from orders, 132, 136 What are applicable, 136 When the order must be entered prior to appeal, 137 Orders of a county judge acting as a justice of the supreme court at chambers, how ap- pealed from, 137 Preparation for argument, 137 Decision and judgment 137 From surrogate's court 138 When taken to, and heard, 138 In what cases it will lie and when to be brought, 138 When it does not lie, 139 Who may bring the appeal, 139 Manner of bringing the appeal, . 139 Bond, and stay of proceedings, . . 140 Form of, &c. (note), 140 Petition of appeal to be filed, . . . 141 What it must state, 141 Form of (note), 142 When respondent is a minor, . . . 142 When appellant omits to file peti- tion of appeal, 142 Serving petition of appeal, 143 Respondent failing to answer, . . 143 Dismissing appeal, 143 Notice of appearance and order of service of petition, &c., 144 Answer, 144 Form of, (note), 144 Return, 144 Compelling the same 145 Failure to procure return, 145 INDEX. m Appeal — Continued. Page. Defective return, 145 Hearing on appeal, 145 Determination of appeal, 146 Costs, judgment, &c., 147 Appeal to the court of appeals, . 147 From a single judge to the general term, 147 From a referee, &c., 147, 148 J^om a judgment : The judgment must be a final one, 148 When the appeal must be brought, 148 "Written notice of the judgment is necessary to limit the time of the appeal 148 How the time is to be computed, 148 Notice of appeal, how given, . . . 149 Security and stay of proceedings, 149 How brought to a hearing, 150 Motion to dismiss, 150 Hearing and determination, .... 150 When a new trial will be granted, 150 When not, &c 151 May reverse, affirm or modify the judgment, 152 How to proceed in either case, . . 152 Who is entitled to costs, 152 Judgment and the certificate thereof, 153 Compelling the entry of judgment when necessary, 153 Appeals from orders : When such appeals lie, .... 153, 154 Wlien to appeal in such cases, . , 154 Notice of appeal, 154 How prepared for a hearing,. . . . 154 How determined, 155 Costs in such cases 155 (See Case and exceptions.) In mandamus, 203 In prohibition, 205 In habeas corpus, 228 In arbitration 257 APPELLANT: In appeal, 115 Must serve notice of appeal, how, 115, 119 Notice how served, &c., 119 (See Appeal.) Appellant — Continued. Page. When he fails to procure the proper return, 124 ARBITRATIONS: An arbitration defined, 20, 236 The submi.*sion under the statute and at common law 237 Who may submit matters to ar- bitrators 237 What matters may be submitted, 238 The submission, its nature, 239 Of the construction of a submis- sion, 240 Of the revocation thereof, 241 Arbitrator as differing from um- pire, 242 The authority of each, &c., . 242, 243 Testimony of the arbitrators, .... 244 Proceedings on the submission, notice, 254 Arbitrators to be sworn, &c.,. . . . 244 The examination of witnesses, . . 245 The hearing before the arbitra- tors 245 Notice to the parties, 245 Arbitrators must meet together, . 245 The award, how made, 246 When it must be made, 247 How under the statute, 247 By whom made, 248 The authority of the arbitrators in making their award, 249 The award must be complete, . . 250 Must be certain, 251 Must be final and mutual, 252 The form thereof, 252 The interpretation or construc- tion ... 253 The efiect of a void part thereof, 253 The effect of the award, 254 Proceedings subsequent to the award, 254 Confirmation and judgment there- on, 254 Proceeding to vacate the award, 255 The application 256 The power of the court thereon, . 256 They may modify the award, . . . 256 Appeals, &c., 258 Submission to, &c., 237 to 239 Arbitrators and umpire, dlflference 242 The authority of, 242 IV INDEX. Arbitrations — Conllnued. Page. Testimony of, 244 Must be sworn. &c., 244 May swear witnesses, 245 Hearing before, 245 Must meet together, 246 Must unite in making the award, 246, 248 Their authority in so doing, 249 ARGUMENT : Preparation for, &c., 128 Notice of, 127 One counsel on each side, 129 Ke-argument, 129 ARREST : Of debtor in proceedings supple- mentary to execution, 86 Proceedings on arrest, 86 ASSIGNMENTS, VOLUNTARY : (See Voluntary OrSsignmenis.) ATTACHED PROPERTY:- Execution against, 30 How executed, 30, 31 AUCTION : Sale under execution, 50 Sale of mortgaged premises must be at public auction, 270 AWARD : The general requisites of 245 The Revised Statutes fias not abrogated the common law, . . 247 By wliom to be made, 246, 248 When to be made, 247 Need not be delivered within the time, 247 Its particular requisites, 250 It must be complete, 250 It must be certain to a common intent, 251 It must be final 252 It must be mutual, 252 The form thereof, 252 The interpretation thereof, 253 The effect of any void part there- of, 253 The effect of, 254 Proceedings subsequent to, 254 Confirmatiou of, •. . 254 Award — Continued. Page. Judgment thereon, 254 Proceedings to vacate, 255 Application to modify, 256 B. BAIL: Allowance of, on appeal, 123 Failing to justify, what, 123 BILLS OF PARTICULARS: To be filed to obtain lien on ships and vessels, &c., 336 In mechanics' lien, to be filed, . . 289 BOND: Execution of judgment for pen- alty of, 31 Execution of judgment for penalty other than the payment of money, 32 For the jail liberties, &c., 73 Its objects and requisites, ... 73, 74 In collecting demands against ships and vessels, 340 0. CALENDAR: When made and order of causes, 127 Practice, &c., 128 CAPIAS AD SATISFACIENDUM : When it may be issued, 67 When it may be issued without an order, 70 When an order of arrest is neces- sary 71 When an arrest must be made before judgment, 71 Prerequisites of a ca. sa., 71 How defendant may be dis- charged therefrom, 72 Requisites of a ca. so., 72 CASE: Preparation of, on appeal, 125 Printing and serving the same,. 125 Where return of, is imperfect, ... 125 Errors in, 129 CASE AND EXCEPTIONS: Case defined, 166 INDEX. Cask AND Exceptions — Cont'd. Page. Exceptions defined 156 The practice in relation to the same, 156 "When a case should be prepared, 156 When exceptions should be tak- en 157, 158 When case should be made, and how, 157 Amendments, . . 157 Notice of settlement of case, . 157 The settlement thereof, 158 How waived, and when deemed settled, 158 Filing a case, and the effect there- of, 158 Resettlement of a case, ...,,... 159 CERTIORARI : The office of the writ of, 20, 230 Jurisdiction of the supreme court therein, 230 In what cases the proper remedy, 230 Legislative action not thus re- viewable, 230, 231 The granting of the writ is in the discretion of the court, 231 It may be denied when the right to issue is unquestionable, .... 231 When issued as a matter of course, 231 Applying for the writ, 231 The writ and its requisites, 232 To whom directed, . , , 232 Motion to quash or supersede, . . 232 Its effect staying proceedings, . . . 233 The return of the writ, 233 What to be returned therewith, . 233 234 What matters may be disregard- ed, 234 The hearing 235 How determined, 235 Judgment therein 236 COMMITTEE : In case of idiots, lunatics, &c., , (See Idiots and lunatics.) 295 CONTEMPTS : Punishment of, 159 The inherent power of the court, &c. 159 Contempts — Continued. Page. The provisions of the statute in respect thereto, 160 Contempts, how punished, 160 Distinct from proceedings as for contempts, 160 Proceedings as for contempts, to enforce civil remedies, 161 In wliat cases will lie, 161 Against whom, &c., 161 What essential to justify proceed- ings under these provisions, . . 162 What must be the nature of the misconduct 162 Proceedings for non-payment of costs, &c., confined to attorneys, &c., 163 So punished for disobedience to any lawful order, decree or process of the court, 163 Disobeying an injuuction, 164 Disobeying habeas corpus, 164 Endeavoring to defeat the pro- cess of the court, 164 Suing a ward of the court with- out leave, 164 The manner of proceeding, 165 What notice must be served upon the party, 166 When necessary to show the original order, 166 Two modes of commencing these proceedings, _. . 16t 1. By attachment; 2. By order to show cause, 167 The attachment and what to be indorsed thereon, 167, 168 The arrest of defendant, 168 On special order, &c., 168 When the defendant is in custody of another, 169 The return thereof, 169 Proceedings on the return, 169, 170 Discharge on giving bonds to ap- pear, no The prosecution of the bond, Ac, 170 Order to show cavLse : The usual method 171 Filing of interrogations, 171 The answer of defendant, 172 What on failure to answer, 172 Reference may bo ordered, 172 What testimony will be received, 173 VI INDEX. OoNTEMrrs — Continued. Page. What the court must determine, ou tiiiduig, 173 Defendant guilty, 173 The fine, its amount, &c., 173 Suit on the bond, 174 COSTS: In replevin or actions to recover the possession of personal pro- perty, 20, 9 The failing party to pay is the rule, 400 The right to costs is statutory,. . 401 In equity costs were in the dis- cretion of the court, 401 Effect of the enactment of the Code thereon, 401 What parties are ordinarily liable thereto, 402 Suits wliich are exceptions, 402 Suits by poor persons, 402 Provisions in respect thereto,... 402 Trustees of an express trust, .... 404 What must be shown, 404 Receiver suing a claim transfer- red, 404 General assignee for benefit of creditors, 404 An executor and administrator, . 404 Power to grant costs in these cases is in the discretion of the court, 405 Against executors, &c., 405 When costs may be given, 405, 406, 407 Wliat must be made to appear, . . 407 Municipal corporations, 403 Security for costs, when required, 408 As to foreign corporations, 409 The power of the court in respect thereto, 409 When application for, to be made, 409 Right to require security may be waived, 409 How it may be waived, 409, 410 The application therefor, 410 The affidavit showing applicant's right, &c., 410 Proceedings stayed until security is given, 410 Security not filed, motion to dis- miss, 410 Effect of an order to show cause, 410 Costs — Continued. Pag«. Security in the form of a bond, . . 410 Excepting to, 411 Justification of sureties, 411 Hearing of the motion, 411 When attorney liable 412 Staying proceedings until former costs are paid, 412 When the stay will be granted, 412, 413 When it will not be granted, 414 The motion for such stay, 414 Wlien a party not of record li- able, 414 What to be established under the statute, 415 When a defendant is not liable, . 416 Parties of record liable for costs though they have assigned, . . 417 Liability, how ascertained, 417 How enforced, 417 Liability of guardian ad litem, . . . 417 Liability of a relator, 418 In actions by the people, 418 Costs, when allowed, of course, . 419 In actions as to real property, ... 419 As to personal property, 420 In actions for the recovery of money, 421 Several plaintiffs recover but one bill, 422 When and how defendants are Uable, 422 Effect of an offer or tender, 'seulpd the law to meet the requirements of every conceivable question of costs. 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