TREATISE 
 
 CIVIL JURISDICTION 
 
 JUSTICES OP THE PEACE; 
 
 TO WHICH ARE ADDED, 
 
 OU TLINES OF THE POWERS AND DUTIES 
 
 COUNTY AND TOWN OFFICERS 
 
 STATE OF NEW YORK 
 
 ADAPTED TO 
 
 THE STATUTES AND THE CODE OF PROCEDURE. 
 
 CONTAINING DIRECTIONS AND PRACTICAL FORMS FOR EVERY CIVIL 
 
 CASE WHICH CAN ARISE BEFORE A JUSTICE UNDER 
 
 THE STATUTES AND THE CODE. 
 
 BY THOMAS W. WATERMAN, 
 
 COUNSELLOR AT LAW. 
 
 NEW YORK: 
 
 BANKS, GOULD. & CO., 144 NASSAU STREET. 
 
 ALBANY : 
 
 GOULD, BANKS & GOULD, 104 STATE STREET. 
 
 1849.
 
 T 
 103 
 
 i«49 
 
 u;3/3?j 
 
 Entered according to the Act of Congress in the year eighteen hundred and 
 
 forty-nine, 
 
 BY BANKS, GOULD & CO. 
 
 in the Clerk's Office of the District Court of the Southern District of New York. 
 
 AI. KXAM>ER B. WOULD, PIl INTER, 
 No. 114 Nassau Blrcet, New Vnrk.
 
 c? 
 
 5 
 
 TO THE 
 
 HON. THOMAS G. WATERMAx>J, 
 
 THIS WORK IS INSCRIBED 
 AS AN HUMBLE TOKEN, 
 
 NO LESS OF PROFESSIONAL OBLIGATION 
 
 THAN OF FILIAL GRATITUDE, 
 
 BY HIS SON AND FORMER PUPIL, 
 
 THE AUTHOR. 
 
 671538
 
 PREFACE. 
 
 In the progress of an age remarkable for a spirit of whole- 
 some reform, but few events of deeper interest to the masses, 
 have occurred, than those in our own State, consequent upon 
 the re-modelhng of our constitution. 
 
 We have to record no brilhant miUtary achievement with 
 the attendant horrors and evils of war ; nor have we been wit- 
 ness to any violent and bloody, though successful revolution. 
 Our triumph has been a moral and intellectual triumph, ob- 
 tained by the steady advancement of our people in virtue and 
 mental culture. 
 
 Nothing could be more gratifying to the friends of human 
 rights than the spontaneous call of our people for a reform 
 which our exigencies so much demanded. It showed that the 
 intelligence, spirit, discernment and independence of the com- 
 munity, Avere not behind the times, and gave strong encourage- 
 ment for the future. 
 
 The re-modelhng of our constitution, has led to the estab- 
 lishing our judicial system upon a republican footing adapted 
 to the simplicity of our institutions. The practice of our courts, 
 has undergone a radical and salutary change — a change based 
 upon utility, economy, despatch, and a just regard for the true 
 rights of parties. By it, we have set a proud example to the 
 world, which our sister states are already beginning to imitate. 
 Long may its light illumine our halls of justice, a beacon of 
 hope and imitation to those less favored, until its spirit shall 
 have penetrated every civilized community. 
 
 The recent changes in our prnctice and pleadings have ex- 
 tended to Courts of Justices of the Peace, no less than to the 
 higher tribunals. Magistrates have hitherto been greatly per-
 
 vi PREFACE. 
 
 plexed in determining how far the changes operate to do away 
 the old order of things in these courts ; and it is not saying 
 too much to declare that the administration of justice in these 
 primary tribunals has been, in consequence seriously impeded. 
 
 It is to remedy this inconvenience that the present work is 
 oftered to the public ; designed as it is, to present under proper 
 heads, with suitable forms and instructions, all the law appli- 
 cable to Justices' Courts in civil cases. 
 
 None of our courts have the same immediate interest to the 
 community at large, as those of Justices of the Peace. Being 
 primary tribunals of great simplicity they are the immediate 
 dispensers of justice to the mass of the population, in nearly 
 all the ordinary transactions of life. 
 
 In proportion Lo the importance of these courts, have been the 
 responsibilty and difficulty of my task — a task, which though 
 it has proved deeply interesting, has not been accomplished 
 without severe labor. The varied, and complicated nature of 
 the subjects treated, no less than the great changes which have 
 recently been made as well in our statutes as in our system of 
 practice and pleading, have very nmch enhanced the difficulty 
 and responsibility of the undertaking. 
 
 Witli an anxious desire to satisfy an universal want, no ex- 
 ertions have been spared to render the work practically useful. 
 That it is entirely free from errors could scarcely be expected ; 
 but if anything can be effected by patient, close, and laborious 
 scrutiny and research, I- think I may safely infer that it will be 
 found substantially accurate. Dining its progress through the 
 press important alterations and improvements have suggested 
 themselves to my mind, which, if the work should be favora- 
 bly received, can be supplied in a subsequent edition. 
 
 Asking in advance for the work, the indulgence which I feel 
 it needs, I submit it to llir- pubhc. 
 
 'J^iii: Author. 
 
 Nnr York, N". ^ Nhshou Strrcl, Aii<^. IQlJi, 18411.
 
 CONTENTS. 
 
 PART FIRST. 
 
 CHAPTER I. 
 
 OF THE JURISDICTION OF JUSTICES OF THE PEACE. 
 
 Page. 
 
 Of Justices' Courts, . . . . i 
 
 Wliat relates to the Justice personally, ... 2 
 
 Of the parties who may sue and be sued, . . .5 
 
 The amount in controversy, .... 7 
 
 CHAPTER II. 
 
 THE FORM AND GENERAL PRINCIPLES OF SUITS. 
 
 Abolishment of forms of action, . , . .9 
 
 Actions cognizable by Justices' Courts, ... 9 
 
 Law of contract, . . . , .10 
 
 Doctrine of jiartnership, . . . . ]5 
 
 Of the sale and mortgage of personal property, . . .20 
 
 Warranty on sale of goods, .... 24 
 
 Definition and nature of bonds, . . . .28 
 
 Law in relation to promissory notes, ... 29 
 
 Matters of account, . . . . .39 
 
 Law in relation to interest on money and accounts, . , 43 
 
 Of direct injury to personal property, . . . .44 
 
 Of direct injury to real property, .... 45 
 
 Of indirect injuries, . . . . .47 
 
 Law in relation to statute penalties, • , . 49 
 
 Actions not cognizable by Justices' Courts, .. . .50 
 
 Of liabilities created by statute other than a penalty or forfeiture, 51 
 
 CHAPTER III. 
 
 OF THE COMMENCEMENT OF SUITS. 
 
 The manner in which suits may be instituted before a Justice, . 53 
 
 Definition of] and various kinds of process, . . 52 
 
 Definition and nature of summons, . . * ^53
 
 VIU 
 
 CONTENTS. 
 
 Distinction between a long and a short summons, 
 
 Definition of warrant, 
 
 III wliat actions process by warrant applicable, 
 
 Steps preliminary to obtaining a warrant. 
 
 Manner of arrest, 
 
 Of process by attachment, 
 
 Application for attachment, how made, 
 
 Distinction between a long and a short attachment, 
 
 Attachment, how executed, . - . 
 
 General rules applicable to process, 
 
 Page. 
 
 54 
 
 . 56 
 
 57 
 
 . 58 
 
 60 
 
 . 61 
 
 62 
 
 . 65 
 
 66 
 
 . 71 
 
 CHAPTER IV. 
 
 APPEARANCE OF THE PARTIES. 
 
 When the parties are to appear, 
 How the parties are to appear. 
 Of appearance by attorney, 
 Appearance by guardian, 
 
 75 
 76 
 77 
 
 77 
 
 CHAPTER V. 
 
 OF THE PLEADINGS IN A SUIT. 
 
 Definition of pleading, .... 
 
 General rules of pleading, . . . 
 
 At what time parties must plead, . 
 
 Nature of pleadings in a Justice's Court, and the kinds thereof, 
 
 Statement of the cause of action, 
 
 Variance, ..... 
 
 Amendment of pleadings. 
 
 Of various defences, .... 
 
 80 
 80 
 83 
 84 
 85 
 87 
 91 
 91 
 
 CHAPTER Vi. 
 
 ADJOURNMENTS. 
 
 Adjournment on motion of the Justice, 
 On motion of the plaiiitid", 
 On motion of the (]ef(;ndant. 
 Second or furlher adjournment, 
 General ruicH ol' adjournments. 
 
 109 
 100 
 111 
 114 
 115 
 
 CriAPTKIl VII. 
 OF iMJOf i:i;ni.N(;H aii'i;h ihhim; .joinkd, anii riiKPAiiATOHY to 'I'iuai.. 
 
 FifHl Hleji in preparation for tri;il, 
 Attendance of witncKHCH, liow j)rocnr(Ml 
 
 ]17 
 117
 
 CONTENTS. 
 
 IX 
 
 Definition and nature of subpoena, 
 
 Subpoena, how served, .... 
 
 Penalty lor neglect to obey subjjoena, how enforced, 
 
 Nature of attachment to compel attendance of witnesses, 
 
 Attachment against witness, how executed, 
 
 Fine for refusal of witness to attend and testify, 
 
 Fine, how enforced against witness, 
 
 Of the commission to examine foreign witnesses, 
 
 When and how jury obtained, 
 
 Qualifications of jurors, 
 
 Method of summoning jury, . . " 
 
 Page. 
 117 
 119 
 120 
 121 
 122 
 122 
 124 
 125 
 130 
 131 
 133 
 
 CHAPTER VIII. 
 
 Of the nature of evidence. 
 
 General rules of evidence. 
 
 Who are competent witnesses, 
 
 Evidence on matters of record, 
 
 Evidence on matters not of record, 
 
 Proof of written instruments and private writings, 
 
 Acknowledgments, 
 
 Books of account, 
 
 136 
 137 
 142 
 147 
 148 
 151 
 152 
 162 
 
 CHAPTER IX. 
 
 OF TRIAL AND ITS INCIDENTS. 
 
 Definhion and nature of trial, 
 
 The swearing of witnesses, 
 
 Effect of deficiency of proof. 
 
 Drawing and swearing of jury, 
 
 Challenge to the array^ 
 
 Challenge to the folls^ 
 
 Manner of conducting trial, 
 
 Examination of witnesses, 
 
 What evidence may be given by a witness, 
 
 Of impeaching a witness, 
 
 Of the Justice's discretion in admitting or rejecting testimony 
 
 Of weighing the testimony of witnesses, 
 
 Of agreeing upon and rendering a verdict. 
 
 
 165 
 
 . 
 
 . 166 
 
 . 
 
 167 
 
 
 . 167 
 
 . 
 
 168 
 
 . 
 
 . 169 
 
 . 
 
 171 
 
 . 
 
 . 172 
 
 . 
 
 174 
 
 . 
 
 . 175 
 
 stimony. . 
 
 178 
 
 
 . ISO 
 
 , , 
 
 186 
 
 CHAPTER X. 
 
 OF JUDGMENTS, AND FILING TRANSCRIPTS THEREOF. 
 
 Definition and nature of judgment, 
 
 188
 
 X CONTENTS. 
 
 Page. 
 
 Judgment of discontinuance, .... 188 
 
 Judgment of nonsuit, ..... 191 
 
 Judgment by confession, .... 193 
 
 Transcripts of Judgments, ..... 197 
 
 Damages, ..... 198 
 
 Costs, . . . . . .201 
 
 Fees of officers, witnesses, and jurors, . . . 203 
 
 CHAPTER XI. 
 
 EXECUTION, 
 
 Definition and nature of execution, .... 208 
 
 Execution when issued, .... 209 
 Endorsement on execution, . . . . .211 
 
 Renewal of execution, .... 212 
 
 Of issuing a furtlier execution, .... 213 
 
 When part}'- may be arrested on execution, . . 214 
 
 Of the service and return of an execution, . . . 215 
 
 Execution where tlie transcript of a judgment is filed, . 223 
 
 Of the liability of the constable and his sureties on execution, . 224 
 
 CHAPTER XII. 
 
 OF THE REMOVAL OF CAU.SES TO THE COUNTY COURT, BY APPEAL. 
 
 The court to which an appeal must be taken, . . 228 
 
 When and liow the appeal must be made, . . . 228 
 
 Steps by the appellant to stay execution, . . 230 
 
 Of the Justice's return, ..... 232 
 
 Proceedings and costs in appellate court, . . . 233 
 
 CHAPTER XIII. 
 
 MISCELLANEOUS PROVISIONS AND PROCEEDINGS. 
 
 Power of courts in cases of contempts, . . . 235 
 
 When Justices of the Peace may punish, as for a contempt, . 235 
 
 The punLslimcnt for contempt, and when and how enforced, . 236 
 Proceedings against witnesses or jurors for non-attendance or refusal 
 
 to Kcrvc, ...... 239 
 
 Surety for tlir: peace, .... 243 
 
 Of weightH :uid measures, .... 248 
 
 Computalioii of time, .... 250 
 
 Of the JuKlicc's docket, ..... 251 
 
 Of the dopofiitc of books and j)apcrs with the town clerk, . 255 
 
 Of Ihc abatement of units by death, .... 2i;6
 
 CONTENTS. X i 
 CHAPTER XIV. 
 
 OF ARBITRATIONS. 
 
 Page. 
 
 Definition of arbitration, .... 257 
 
 Who may submit matters in controversy to arbitrators, . . 257 
 
 Wliat claims may be submitted to arbitration, . . 258 
 
 Duty of arbitrators, . . . . • 258 
 
 Arbitrators, how sworn, .... 258 
 
 Witnesses, how compelled to appear before arbitrators, and swearing 
 
 of witnesses, ...... 259 
 
 What is necessary to entitle an award to be enforced, . 260 
 
 Submission to arbitrators, how made, .... 260 
 
 Revocation, how made, . . . . 261 
 
 Consequences of revocation, . . . . 261 
 
 What is necessary to constitute an award, . . . 262 
 
 Effect of submission and award, .... 264 
 
 Award, how confirmed, .... 265 
 
 Award, how vacated, ..... 265 
 
 Award, how modified or corrected, . . . 266 
 
 Proceedings by the court, upon the award being confirmed or modified, 266 
 
 Proceedings on an appeal from an order, vacating an award, . 267 
 
 CHAPTER XV. 
 
 OF MASTERS, SERVANTS, AND APPRENTICES. 
 
 The relation of master and servant, . . . 269 
 
 Apprentices, ....•• 274 
 
 When, and how, an infant may be bound out as an apprentice by the 
 consent of the mother, .... 275 
 
 When, and how an infant, who has no parent living, or none in a legal 
 capacity to give consent, may bind himself, or herself, as appren- 
 tice, . . . . . . .276 
 
 When overseers of the poor are authorized to bind out a child, . 276 
 
 Assignment of contract of apprenticeship, . . . 278 
 
 Steps to be taken v/hen a person lawfully bound to service, refuses to 
 
 serve, ...••• 279 
 
 Steps to be taken when the apprentice is guilty of any misdemeanor 
 or ill behavior, ...... 280 
 
 Proceedings by apprentice ag.;inst master, for cruelty, misusage, or vio- 
 lation of the contract of apprenticeship, . . 284 
 Complaint against apprentice by master, where money is paid with 
 the apprentice, ....-• 287 
 
 Assio-nment of contract of apprenticeship upon the death of the mas- 
 ter, 287
 
 xii CONTENTS. 
 
 CHAPTER XVI. 
 
 DUTIES OF JUSTICES OF THE PEACE IN REFERENCE TO THE INTERNAL 
 POLICE OF THE STATE. 
 
 Page. 
 
 Of the relief and support of indigent persons, . . 288 
 
 Of beggars and vagrants, .... 299 
 
 Of disorderly persons, ..... 308 
 
 Of the support of bastards, . . . . 313 
 
 The safe keeping and care of lunatics, . . . 334 
 
 The care of habitual drunkards, .... 342 
 
 Of profane cursing and swearing, .... 347 
 
 Of the disturbance of religious meetings, . . . 352 
 
 Of the observance of Sunday, .... 358 
 
 Of excise and the regulation of taverns and groceries, . 364 
 
 Of the destruction of wolves and other noxious animals, . . 374 
 
 Of hawkers and pedlars, .... 376 
 
 Proceedings for the draining of swamps, marshes, and other low lands, 380 
 
 Preservation of piiblic health, .... 383 
 
 CHAPTER XVII. 
 
 LANDLORD AND TENANT. 
 
 The relation of landlord and tenant, . . . 385 
 Proceedings by landlord to dispossess tenant after the expiration of his 
 term, . . . . . .393 
 
 Proceedings to turn tenant out for non-payment of rent, . 402 
 
 Proceedings where premises are deserted by tenant, . . 409 
 
 Proceedings in cases of forcible entry and detainer, . . 410 
 
 CHAPTER XVIII. 
 
 OF HIGHWAYS. 
 
 General principles of law applicable to highways, . . 417 
 The duties of overseers ^vilh regard to the performance of labor upon 
 
 highways, . . • . . _ . 420 
 
 Of the obstruction of highways and encroacliments thereon, . 424 
 
 Of laying out public roads, .... 427 
 
 Ilcguhition of public stages, .... 441 
 
 CHAPTER XIX. 
 
 OK JU.STICEH, AND OlIIEU INFEHIOH COURTS IN CITIES. 
 
 Organization of tlic New York Marine Court, * . . 446 
 
 Jurisdiction of tlic Marine (Joint, .... 450 
 
 Fees allowed in actions and proceedings in tlu; Marine Court, . 452
 
 CONTENTS. 
 
 XUl 
 
 Naturalization of foreigners, 
 
 Pleadings in the Marme Court, and appeal from a judgment therein, 
 
 The Justices' Courts in the city of New York, . 
 
 Of Justices in the city of New York, 
 
 Justices' Courts in the city of Brooklyn, 
 
 The Justices Court of the city of Albany,' 
 
 The Justices' Court of the city of Troy, 
 
 The Justices' Court of the city of Hudson, 
 
 Application of the Code to the foregoing subjects. 
 
 Page. 
 455 
 
 458 
 459 
 461 
 467 
 468 
 471 
 473 
 474 
 
 PART SECOND 
 
 CHAPTER XX. 
 
 OF COUNTY AND TOWN OFFICERS. 
 
 Sheriff, .... 
 
 . 476 
 
 County Judge, .... 
 
 480 
 
 County Clerk, .... 
 
 . 483 
 
 Surrogate, .... 
 
 485 
 
 District Attorney, .... 
 
 . 487 
 
 County Treasurer, .... 
 
 488 
 
 Coroners, .... 
 
 . 492 
 
 Superintendents of the Poor, 
 
 495 
 
 Commissioners of Loans, 
 
 . 499 
 
 Notaries Pubhc, .... 
 
 505 
 
 Sealer of weights and measures. 
 
 . 507 
 
 Supervisor, ..... 
 
 510 
 
 Town Clerk, .... 
 
 . 518 
 
 Assessors, .... 
 
 . . 523 
 
 Collector, .... 
 
 . 529 
 
 Constables, .... 
 
 539 
 
 Commissioners of Highways, 
 
 . 544 
 
 Overseers of Highways, 
 
 551 
 
 Overseers of the Poor, 
 
 . 555 
 
 Town Superintendent of Common Schools, 
 
 563 
 
 Pound Masters, .... 
 
 . 572 
 
 Town Auditors, 
 
 573 
 
 Commissioners of Excise, 
 
 . 573 
 
 Fence Viewers, .... 
 
 575 
 
 Compensation of county and town officers, 
 
 . 582 
 
 County charges, .... 
 
 596 
 
 Town charges, . . , . . 
 
 . 597
 
 XIV 
 
 CONTENTS 
 
 CHAPTER XXI. 
 
 OF TOWNS AND TOWN MEETINGS. 
 
 Towns, 
 
 Town meetings, 
 
 Mode of conducting town meetings, 
 
 Page. 
 
 599 
 
 . 600 
 
 603 
 
 CHAPTER XXII. 
 
 OF SCHOOL DISTRICTS. 
 
 Of the formation and alteration of school districts, . . 605 
 Of the powers of school district inhahitants, and of tlie choice, duties 
 
 and powers of school district officers, . . . 607 
 
 Of the duty of trustees of school districts, . . . 613 
 
 The assessment and collection of school district taxes, . 615 
 
 Of the annual reports of the trustees, their duties and liabilities, . 622 
 
 School district libraries, .... 625 
 
 Miscellaneous provisions connected with the foregoing subjects, . 628 
 
 CONTENTS OF APPENDIX 
 
 THE PROVISIONS OF THE STATUTES AND THE CODE APPLICABLE TO JUS- 
 TICES' COURTS. 
 
 Of the jurisdiction of Justices' Courts, . . . 633 
 
 Of the commencement of suits, and the service and return of process, 634 
 
 Of the form of civil actions, .... 637 
 
 The time of commencing actions in general, . . . 637 
 
 General provisions as to the time of commencing actions, . 638 
 
 Of the parties to civil actions, .... 639 
 
 Of the appearance of parties, .... 640 
 
 Of i)lca(liiigs and of set off, ..... 641 
 
 Of adjournments, ..... 644 
 
 Of compelling the attendance of witnesses, . . . 645 
 
 Examination of witnesses. .... 646 
 
 Exaininaiion of parties, ..... 646 
 
 AdmirisioM or inspection of writings, . . . 647 
 
 Of the trial of issues of fact and incidents thereto, . . 647 
 
 Of judginciitH, and filing tranBcri])t8 thereof, . . 649 
 
 Of executions, ...... 650 
 
 Of appeals, ..... 653 
 
 Of tlie fees ofoflicers, and of witncis^fs juid jurors, . . 654 
 
 General provisions concerning Justices' Courts, and proceedings therein, 656
 
 CONSTITUTION 
 
 OF THE 
 
 STATE OF NEW-YORK; 
 
 aboptclr NoBcmbcr 3, 1846. 
 
 TOGKTHER WITH 
 
 COPIOUS MARGINAL AZOTES. 
 
 [Wherever the same or a similar provision exists in the old Constitution, a mar- 
 ginal reference is made to such provision, and, in most cases, alterations are 
 pointed out by note, or by printing ihem wiihin quotations. 
 
 The other ciiati'ons refer to'statutes which have been incorporated into this Con- 
 stitution, or which relate to similar subjects ; — to executive, legislative and 
 judicial opinions upon parts of the old Constitution which are still retained; 
 and, to reports and the action of the Legislature, leading to the history of 
 various new provisions, and thereby tending perhaps to elucidate their mean- 
 ing. 
 
 These references, though not pretended to be complete, it is hoped may be con- 
 venient and useful.] 
 
 We, the People of the State of New- York, grateful to 
 Almighty God for our freedom ; in order to secure its bless- 
 ings, DO establish this Constitution. 
 
 ARTICLE I. 
 
 Section 1. No member of this State shall be disfranchised, or No person to be 
 
 deprived of any of the rights or privileo-es, secured to any citizen Art.'r"^ V.^ Ass'y 
 
 thereof, unless by the law of the land, or the judgment of his peers, jour. '29, p. 337. 
 
 Sections. The trial by jury, in all cases in which it has been Trial by Jury, 
 
 heretofore used, shall remain inviolate forever. " But a jm-y trial Art. 7, §2— 6 Hill, 
 
 may be waived by the parties in all civil oases, in the manner tojpe ^vgjjj 453'' fg 
 
 prescribed by law " Wend. 449. 2 
 
 Section 3. The free exercise and enjoyment of religious profes- {^•^^'•,^l^- Ass'y 
 
 sion and worship, without discrimination or preference, shall forever ' .' 
 
 be allowed in this State to all mankind ; " and no person shall be ren- of reUKi'(?us'wor- 
 
 dered incompetent to be a witness on account of his opinions on mat- ship. Art. 7, § 3. 
 
 ters of religious belief ;" but the liberty of conscience hereby secured 2 R. S. p. 408, § 
 
 shall not he so construed as to e.xcuse acts of licentiousness, or iustifv §^;^ ^^'/Si?"' ^^' 
 
 • . 4 -.u <u r . r «i • f. . 2 Cow. 432, n. a. 
 
 practices inconsistent with the peace or safety ol this btate. ge„ jour. '23 p. 
 
 Section 4. The privilege of the writ of habeas corpus shall not be 360. Ass'yJour. 
 
 suspended, unless when, in cases of rebellion or invasion, the public '^''' P' ^' 
 
 safety may require its suspension. Habeas Corpus. 
 
 Section 5. Excessive bail shall not be required, nor excessive „ -i ' ■ u 
 
 ~ . J , ,, , J , • 1 . u ■ T . 1 Ball, puni.sh- 
 
 fines imposed, nor siiall cruel and unusual punishments be mnicted, rnenis and deten- 
 
 " nor shall witnesses be unreasonably detained." tion of witnesses. 
 
 Section (>. No person shall be held to answer for a capital or 1 J^- S- p. 94, § 17. 
 
 otherwise infatnous crime (except in cases of impeachment, and in pT'^f \1^^J^ 
 
 cases of the militia, when in actual service ; and the land and naval Ait. 7, § 7. io 
 
 forces in time of war, or which this State may keep with the con- Wend. 449. 15 
 
 •' '■ do. 451.
 
 XVI 
 
 ART. 1.— IIIGHTS. 
 
 Private property 
 secureil. 4 Hill, 
 140. 14 Wend. 
 54. 15Weml.374. 
 18 do. 8. Ass'y 
 Jour. "23, p. 705. 
 Sen. Jour. '26, p. 
 366. 
 
 Compensation to 
 be ascertained by 
 a Jury. 
 
 Private roads, 4 
 Hill, 140. 
 
 Freedom of 
 speech and the 
 press. Art. 7, § i 
 
 2 Hill, 348. 
 
 Two-third bills. 
 Art. 7, § 9t(«) 
 
 Ri?ht of petition. 
 1 R. S. p. 94, § 19. 
 Divorces. Sen. 
 Doc. '46. No. 
 125. do. '44N0.62 
 Ass'y Jour. '28, 
 p. 584. 
 
 Lotieries, Art. 7, 
 § 11. 23 Wend. 
 418. Ass'y Jour. 
 '26, p. 936. 
 The people origi- 
 nal owners of 
 land, 1 K. S. 718, 
 § 1. 17 Wend. 
 312. 8 Wend. 
 183. 
 
 Feudal tenures 
 abolished, 1 K. S. 
 p. 718, § 3, 4. 
 All lands allodial 
 1 R. S. p. 718, §3. 
 
 Certain leaHcs 
 limited. 
 
 sent of Congress in time of peace ; and in cases of petit larceny, 
 under tlie regulation ol the Legislature) unless on presiMitinent or 
 indictment of a grand jury; and in any trial in any Court what- 
 ever, tiie party accused shall be allowed to appear and defend in 
 person and with counsel, as in civil actions. JNo person shall be 
 subject to be twice put in jeopardy for the same offence ; nor shall 
 he be compelled in any criminal case, to be a witness against him- 
 self ; nor be deprived of life, liberty or property without due process 
 of law ; nor shall private property be taken for public use without 
 just compensation. 
 
 Section 7. When private property shall be taken for any public 
 use, the compensation to be made therefor, when such compensation 
 is not made by the State, shall be ascertained by a jury, or by not 
 less than three commissioners appointed by a court of record, as 
 shall be prescribed by law. Private roads may be opened in the 
 manner to be prescribed by law ; but in every case the neces- 
 sity of the road, and the amount of all damage to be sustained by 
 the opening thereof shall be first determined by a jury of freeholdors, 
 and such amount, together with the expenses of the proceeding, 
 shall be paid by the person to be benefitted. 
 
 Section 8. Every citizen may freely speak, write, and publish 
 his sentiments on all subjects, being responsible for the abuse of that 
 right ; a«d no law shall be passed to restrain or abride the liberty 
 of speech or of the press. In all criminal prosecutions or indictments, 
 for libels, the truth may be given in evidence to the jury ; and if it 
 shall appear to the jury that the matter charged as libellioiis is true, 
 and was published with good motives and for justifiable ends, the 
 party shall be acquitted, and the jury shall have the right to de- 
 termine the law and the fact. 
 
 Section 'J. Tlie assent of two-thirds of the members elected to 
 each branch of the Legislature, shall be requisite to every bill ap- 
 propriating the public moneys or property for local or private pur- 
 poses, (a) 
 
 Section 10. No law shall be passed, abridging the right of the 
 people peaceably to assemble, and to petition the government, or 
 any department thereof; " nor shall any divorce be granted, other- 
 wise than by due judicial proceedings;" nor shall any lottery here- 
 after be authorized, or any sale of lottery tickets allowed, within 
 this State. (c) 
 
 Section 11. The people of this State, in their right of sovereignty, 
 are deemed to possess the original and ultimate properly in and to 
 all lands within the jurisdiction of the State ; and all lands, ihe title 
 to which bhuU fail, from a defect of heirs, shall revert or escheat to 
 the people. 
 
 Section 12. All feudal tenures of every description, with all their 
 incidents, are declared to be abolished ; saving, however, all rents 
 aK services certain which at any time heretofore have been law- 
 fully created or reserved. 
 
 Section l.'J. All lands within this State are declared to be allodial, 
 so that, subject only to the liability to escheat, the entire and abso- 
 lute ])roperty is vested in tlio owners according to the nature of their 
 reK|)ectivo estates. 
 
 ^eclion 14. No lease or grant of agricultural land for a longer 
 period than twelve years, hereafter made, in which shall be re- 
 Borved any rent or service of any kind, shall bo valid. 
 
 (a) "or crcatinsj, continuing, altering or renewing any body politic ur corpo- 
 rate," oniitleil. 
 
 (//) Sen. Jc.ur. '23, p. 42.3, p. 371 ; do. '2i, p. 259, j). 371-.305-46S; do. '2i5, p. 461 ; 
 ilo ".ill, p. r,ir>-cm; <lo. '27, i). 509; do. '28, p. 308-456; do. '29, ii. 402; do. '30, 
 Due. No. 278; do. 'M, p. ',M2-3'I8-:M-390-^!j1 ; do. '.35, p. 1 13-;5:J3-.'J65 ; Sen. Jour. 
 '10, It 2KJ; do. '43, p. 2'i:Wll-.%6 ; Doc. No. 72. Ass. Jour. '2:3, p. Kll ; do. '2-1, 
 I) 910 ; ilo. '25, p. 996 ; Ahh. Jour. '25, p. 778; do. '27, p. 1037 ; do. '28, p. 788 ; do. 
 '29, p. '.03; do. '34, Due. No. :wl-3Vf2 : Ass. Jour. '38, p. 454; Doc. No. 191; do. 
 M4, p. I0I(M(»21 ; ilo. '45, p. 7;M. 
 
 (c) " No IciUiTV Hhall hureaHer be authorized in Ihis Slate, and the Legislature 
 nhnll paKH lawH in prevent the Halo of all lottery tickets williin tlii.'i Slate, except 
 iu loiicrica already provided by law."— Cmi»(. 1821.
 
 ART. 2.— SUFFRAGE. XVii 
 
 Section 15. All fines, quarter sales, or other like restraints upon Fines and quarter 
 alienation reserved, in any grant of land hereafter to be made, shall ^=*''^^ abolished. 
 be void. 
 
 Section IG. No purchase or contract for the sale of lands in this Certain purcha 
 State, made since the fourteenth day of October, one thousand vo1d'^°'Ar"'7"'§'^ 
 seven hundred and seventy-five ; or which may hereafter be made, 12. 20Jolin.'693. 
 of, or wiihthe Indians, shall be valid, unless made under the autho- 
 rity and with tiie consent of tiie Legislature. 
 
 Section 1 7. Such parts of the common law, and of the acts of Paris of the com- 
 the Leirislature of the colony of New York, as together did form "nTsi'aui'tes d»- 
 the law of the said colony, on the nineteenth day of April, one clareti to be law. 
 thousand seven hundred and seventy-five, and the resolutions of the Art. 7, § 13. 
 Congress of the said colony, and of the Convention of the State of 
 New York, in force on tlic twentieth day of April, one thousand 
 seven hundred and seventy-seven, which have not since expired, 
 or been repealed or altered ; and such acts of the Legislature of 
 this State as are now in force, shall be and continue the law of this 
 State, subject to such alterations as the Legislature shall make con- 
 cerning (he same. 13ut all such parts of the common law, and such 
 of the said acts or parts thereof as are repugnant to this Constitu- 
 tion, are hereby abrogated ; " and the Legislature, at its first ses- Code 
 sion after the adoption of lliis Constitution, shall appoint three com- 
 missioners, whose duty it shall be to reduce into a written and sys- 
 tematic code the whole body of the law of this State, or so much 
 and such parts thereof as to the said commissioners shall seem prac- 
 ticable and expedient. And the said commissioners shall specify 
 such alterations and amendments therein as they shall deem proper, 
 and they shall at all times make reports of their proceedings; to the 
 Legislature, when called upon to do so ; and the Legislature shall 
 pass laws regulating the tenure of office, the filling of vacancies 
 therein, and the compensation of the said commissioners ; and shall 
 also provide for the publication of the said code, prior to its being 
 presented to the Legislature for adoption." 
 
 Section 18. AH grants of land within this State, made by the the''kJ[;g of^Grea^t 
 King of Great Britain, or persons acting under his authority, after Briiain°void. Ari 
 the fourteenth day of October, one thousand seven hundred and 7, sec. 14. 
 seventy-five, shall be null and void ; but nothing contained in this 
 Constitution shall afFect any grants of land within this State, Certain rights 
 made by the authority of the said kmg or his predecessors, or shall not affected, 
 annul any charters to bodies |)olitic and corporate, by him or them 
 made, before that day ; or shall affect any such grants or charters 
 since made by this State, or by persons acting under its authority, 
 or shall impair the obligation of any debts contracted by this State, 
 or individuals, or bodies corjjorate, or any other righls of property, 
 or any suits, actions, righls of action, or other proceedings in courts 
 of justice. 
 
 ARTICLE n. 
 Section 1. Every male citizen of the age of 21 years, who shall Uualification of 
 have been " a citizen for ten days," and an inhabitant of this State ggaT^Ainend^ 
 one year next preceding any election, and for the last "four" ment No. 2. 
 months a resident of the county where ho may offer his vote, shall 
 be entitled to vote at such election in the election district of which 
 he shall at the time be a resident, and not elsewhere, for all officers 
 that now are or hereafter may be elective by the people ; " but such 
 citizen shall have been, for thirty days next preceding the election, 
 a resident of the district from which the officer is to be chosen for 
 whom he ofters his vote." But no man of color, unless he shall Freehold for p«r- 
 have been for three years a citizen of this Slate, and for one year ^/('g g'e°c J'. 
 next preceding any election shall have been seized and possessed of 
 a freehold estate of the value of two hundred and fifty dollars, over 
 and above all debts and incumbrances charged thereon, and shall 
 have been actually rated and paid a tax thereon, shall be entitled to 
 vote ai such election. And no person of color shall be subject to 
 
 B
 
 Xviii ART. 3.— LEGISLATIVE. 
 
 direct taxation until lie sliall be seized and possessed of siicii real 
 estate as aforesaid. 
 Who may be ex- t«ection 2. Laws niiiy be passed excluding from the right of suf- 
 cluded. An. 2, f^ggg q\[ persons who have been, or may be convicted '• uf bribery, 
 ed. p~ 129 sec. 2. of larceny," or of any infaniuus crime, "and for dejiriviiig every 
 Betiins. Ass'y person who shall mnke, or become directly or indirectly interested 
 Doc. '39,No. 28G. in any bet or wager depending upon the result of any election, from 
 Gov^ message '44 y^g j.ight to vote'at such elec ion." 
 
 ^' .' iSpclion 3. For the purpose of voting, no person shall be deemed 
 
 1 R. S. 3d ed. p. to have gained or lost a residence, by reason of his presence or ab- 
 
 139, sec. 21. sence, while employed in the service of the United States; nor 
 
 Laws 1S42. while engaged in the navigation of the waters of this Slate, or of 
 
 the United States, or of the high seas; nor while a student of any 
 
 seminary of learning; nor while kept at any alms house, or other 
 
 asylum, at public expense ; nor while confined in any public prison. 
 
 Proofsof right to Section 4. Laws shall be made for ascertaining, by proper proofs, 
 
 S^^Sei^Doc ^38 ''''^ citizens who shall be entitled to the right of suffrage hereby es- 
 
 No. 62,' '39,'No.' tablished. 
 
 107. Laws' 40, Section 5. All elections by the citizens shall be by ballot, except 
 
 ^ 29 BaUot^"' ^'^^ such town officers as may by law be directed to be otherwise 
 Art. 2, sec. 4. ' chosen. 
 
 ARTICLE III. 
 
 Legislature, Art. Section 1. The legislative power of this State shall be vested in 
 
 12rsen. wl' "^ ^^''^^^ ^"'^ Assembly. _ ' 
 
 '21, p. 315. Section 2. The Senate shall consist of thirty-two members, and 
 
 Senate and Ass'y. the Senators shall be chosen for " two" years. The Assembly shall 
 Art. 1, sec. 2. consist of one hundred and twenty-eight members, who shall be 
 
 annually elected. 
 Senatorial Dis- Section 3. The State sliall be divided into "thirty-two" dis- 
 
 tricts. Art. 1,§5. tricts, to be called Senate districts, each of which shdll choose one 
 
 Senator. The districts shall be numbered from one to thirty-two 
 
 inclusive. 
 jjo. 1. District number one (1) shall consist of the counties of Suffolk, 
 
 Richmond and Queens. 
 No. 2. District number two (2) shall consist of the county of Kings. 
 
 No. 3,4,5,6. Districts number three, (3,) number four, (4,) number five, (5,) 
 
 and number six, (G.) shall consist of the city and county of New- 
 Supervisors to York ; and the board of suprrvisors of said city and connly shall, 
 
 ?iyi'!fi^®-^';^'°'^'' on or before the first day of i\lay, one thousand eight hundred and 
 
 into districts. . ■'.,.■', ,.", , , 
 
 lorty-seven, divide the said city aiul county into the nnmber of 
 
 Senate Districts to which it is entitled, as near as may bo of an 
 equal number of inhabitants, excluding aliens and pnrsous of color 
 not taxed, and consisting of convenient and contiguous territory ; 
 and no Assembly District shall be divided in tlie formation of 
 a Senate District. The board of supervisors, wlien tlu-y shall 
 have completed such division, shall cause certificates thereof, sta- 
 ting lhi5 nuiiiber and bouiidaiies of each district and the |)opulation 
 thereof, to bf; filed in the office of the Secretary of State, and of 
 the clerk of llie said city and county. 
 
 ffo 7. District number seven (7) shall consist of the counties of West- 
 
 chester, Putnam and Rockland. 
 
 No. 8. District number eight (rij shall consist of the counties of Dutchess 
 
 and (-oliimhia. 
 
 No. 9. I)istrict number nino (9) shall consist of the counties of Orange 
 
 and .Sulivan. 
 
 fi„, 10. DiMiricl iniiiilii'r ten (10) shuU consist of the counties of Ulster 
 
 and (ireeiie. 
 
 Ko. II. District nimiber eleven (11) shall consist of the counties of Albany 
 
 and Schenectady. 
 
 No. 12. District number twelve (12) shall consist of the county of Rens- 
 
 HchxT. 
 
 No. 13. DiKtrict number thirteen (13) shall consist of the counties of 
 
 Washington and Saratoga.
 
 ART. 3— LEGISLATIVE. ^^^ 
 
 District number fourleen (14) shall consist of the counties of War- No. 14. 
 ren, Essex and C'linton. 
 
 District number fifteen (15) shall consist of tho counties of St. No. 15. 
 Lawrence and Franklin. 
 
 District number si.\teen (IC) shall consi-st of the counties of Her- No. 16. 
 kimer, Hamilton, Fulton and Montgomery. 
 
 District number seventeen (17) shall consist of the counties of No. 17. 
 Schoharie and Delaware. 
 
 District number eifrhteen (18) shall consist of the counties of No. 18. 
 Otsego and Chenango. 
 
 District number nineteen (19) shall consist of the county of No. 19. 
 Oneida. 
 
 District nember twenty (20) shall consist of the counties of Ma- No. 20. 
 dison and Oswego 
 
 District number twenty-one (21) shall consist of the counties of No. 21. 
 Jefferson and Lewis. 
 
 District number twenty-two (22) shall consist of the county of No. S2. 
 Onondaga. 
 
 District number twenty-three (23) shall consist of the counties of No. 23. 
 Cortland, Broome and Tioga. 
 
 District number twenty-four (24) shall consist of the counties of No. ^ 
 Cayuga and Wayne. 
 
 District number twenty-five (25) shall consist of the counties of No. 25. 
 Tompkins, Seneca and Yales. 
 
 District number twenty-six (2G) shall consist of tho counties of No. 26. 
 Steuben and Chemung. 
 
 District number twenty-feven (27) shall consist of the county of no. 27 
 Monroe. 
 
 District number twenty-eight (28) shall consist of the counties of no. 28. 
 Orleans, Genesee and Niagara. 
 
 Di.=trict number twenty-nine (29) shall consist of the counties of nq. 29. 
 Ontario and Livingston. 
 
 District number thirty (30) shall consist of the counties of Allegany no. 30. 
 and Wyoming. 
 
 District number thirty-one (31) shall consist of the county of Erie. No. 31. 
 
 District number thirty-two (3:2) shall consist of the counties of no. .32. 
 Chautaque and Cattaraugus. 
 
 Section 4. An enumeration of inhabitants of the State shall be Census when to 
 
 taken, under the direction of the Legislature, in the year one thou- tie taken; Art. 1. 
 
 sand eight hundred and fifty-five, and at the end of every ten years ^'^'^' ^' 
 
 thereafter : and the said districts shall be so altered by the Leo-isia- t%- ■ • , . v ■ ' 
 . .,i/5» • f. .1 • c -'=. District!? to De al- 
 
 ture, at the farst sessiou alter the return of every enumeration, that tered. 
 
 each Senate district shall contain, as nearly as may be, an equal 
 
 number of inhabitants, excluding aliens, and persons of color not to remain unal- 
 
 taxed ; and shall remain unaltered until the return of another tered. 
 
 enumeration, and shall at all times consist of contiguous territory, Ass'y doc. '37, 
 
 and no county shall be divided in the formation of a Senate district, ^°- ^■^'^' ''"• '"^^ 
 
 "except such county shall be equitably entitled to two or more doc 45^ 'no^66 
 
 Senators." 
 
 Section 5. The members of Assembly shall be apportioned among Members of As- 
 the several counties of the State, by the Legislature, as nearly as sembly to be ap- 
 may be, according to the number of their respective inhabitants, P^i"''""^''' •*"■ 
 excluding aliens, and persons of color not taxed, and shall be chosen ' 
 by single districts. 
 
 The several boards of supervisors in such counties of this State, Supervisors to 
 as are now entitled to more than one member of Assembly, shall as- divide county in- 
 semble on the first Tuesday of January next, and divide their Jo. '^^^'^n^'^'y dis- 
 respective counties into Assembly districts equal to the number of 
 members of assembly to which such counties are now severally en- 
 titled by law, and shall cause to be filed in the offices of the Secre- 
 tary of State and the clerks of their respective counties, a description 
 of such Assembly districts, specifying the number of each district 
 and the population thereof, according to the last preceding State 
 enumeration, as near as can be ascertained. Each Assembly dis- 
 trict shall contain, as nearly as may be, an equal number of inhabi-
 
 XX ART. 3— LEGISLATIVE. 
 
 tants, excluding aliens and persons of color not taxed, and sliall 
 consist of convenient and contiijuous territory ; but no town shall 
 be divided in the formation of Assembly districts. 
 Members to be The Legislature, at its first session after the return of every enu- 
 
 re-apporuoned. meration, shall reapportion the members of Assembly among the 
 ' ' ' ' several counties of this Stale, in manner aforesaid, and the boards 
 of supervisors in such counties as may be entitled, under such re- 
 apportionment, to more titan one member, shall assemble at such 
 time as the Legislature making such re-apportionment shall pre- 
 Districts to be al- scribe, and divide such counties into Asseinbly districts, in the maii- 
 **''^"- ner herein directed ; and the apportionment and districts so to be 
 
 To remain unal- made, shall remain unaltered until another enumeration shall be 
 tered. taken under the provisions of the preceding section. 
 
 Each county en- Every county heretofore established and separately organized, 
 titled to one " except the county of Hamilton," shall always be entitled to one 
 
 member, except ,^..1 »ii j .inuu r. 
 
 Hamilton. Art! member of the Assemblj', and no new county shall be herealter 
 
 1, sec. 7. Ass'y erected, unless its population shall entitle it to a member. 
 
 doc. '-to, No. 123. f|.|^p county of Hamilton shall elect with the county of Fulton, 
 
 wUh^Fulwii ^^^"^^ ""''' '''® population of the county of Hamilton shall, according to 
 
 the ratio, be entitled to a member. 
 Pay of member.?. Section (i. 'i"he members of the Legislature shall receive for their 
 Art. 1, sec. 9. services, a sum not exceeding three dollars a day, from the com- 
 
 ^peVdi°x E '• dt mencement of the session; but such pay shall not exceed in the 
 ';d5, 1100. ' ' aggregate, three hundred dollars per diem allowance, except in pro- 
 ceedings for impeachment. The limitation as to the aggregate com- 
 pensation shall not take efl'ect until the year one thausand eight 
 liuridred and forty-eight. W hen convened in extra session by the 
 Mileage. Governor, they shall receive three dollars per day. They shall also 
 
 receive the sum of one dollar for every ten miles they shall travel, 
 in going to and returning from their place of m'jeting on the most 
 Speaker's com- usual route. The Speaker of the Assembly shall, in virtue of his 
 pensation. otiice, receive an additional compensation equal to one-third of his 
 
 per diem allowance as a member. 
 
 No member to Section 7. No member of the Legislature shall receive any civil 
 
 menirArL'^f°sec! ap|>oi:ii-"iei>t " within this Mate, or to the Senate of the United 
 
 10. Stales, from the Govenor,"(/7) the Govenor and Senate, or from the 
 
 Legislature, during the term for which he shall have been electe ! ; 
 
 " and all such appointments, and all voles given for such member, 
 
 for any such ofHce or appointment, shall be void." 
 
 Whocannotbea Section 8. JSopersoii being a member of Congress, or holdingany 
 
 member. Art. 1, judicial or military (dlicc under the United States, shall hold a seat 
 
 ^ ■ ■ , 111 the Legislature. — And if any persan shall, " after his eleclian as 
 
 3<K. As8'y~(ioc. «i member of tlie Legislature," be elected to (congress, or apjiointed 
 
 '45, No. 19, 20. to any oilice, civil or military, under the Government of the United 
 
 Stales, iiis acceptance thereof shall vacate his seat. 
 Time of annual Section !). The elections of Senators and members of Assembly, 
 election, art. 1, pursuant to the provisions of this Constitution, shall be held on the 
 *^'^' ' 'J'uesduy succeeding the first Monday of November, unless other- 
 
 wise directed by the Ijegisjature. 
 rowers of each Section ID. A majority of each house shall constitute a quorum 
 
 House. An. 1, tQ Jq business. Each house shall determine the rules of its own 
 ,, ' [ ■ proceedings, and be the judge of the " elections, returns and " qualifi- 
 
 AMJt'y Jour, '.ki cations of its own members, shall choose its own officers, and tiie 
 J). 48-100; dii. '27, Senate shall chouse a contemporary ])resideni, when the Lieutenant 
 j^ 48«)-070 ; do. (joy^rnor shall nut titleiid as presitlenl, or shall act as Governor.,, /y) 
 p. Id'kw' I,eL'.' 
 
 a'iw'v'Joik°':J'' <"^ ' "• ^- !•• ''^' "'■'■• "; ■''' ''■''• !'• '■''^' '"''-'■ "'• Mf'i'l'crs aiinoiiiicd (o 
 
 doc Nil 11- do examine TrcaHurur's uccouniM. Sen. Join'. '.'ii, p. 132; Doc. No. 18. N. 1'. 'I'al- 
 
 •40 I) tW doc ' ni'''<l':<'i " !^H"e Senator, choHiMi II. S. Senator. Sen. Jonr. '1.'), p. !)'.). Li. (ioT. 
 
 K,' -jox ■ ilo Mfi DickniHon and Si:nator KoHtrr, wcri' appoiiiKMl II. S. Si'iiiuorb' by Gov. Houck. 
 
 A.^r N,J 4f. (IB (''; Temporary I'roHidenl ol the Sniale. Sen. .I(nn-. 'Si, [k lyWlU; do. '28, p. 
 
 aoc. no». to, i«. j.,j ^j^^ ,.^,j^ ^^ <,_^. . ^^,^^ j^^^^^ ,,,._,^ ^^ ,^,^. ^^^^ ,_j,.^ ^^ j,^, 
 
 ^"^ (r) r'ower ol cxpellni'.; a Mcniln'r. Sun. .lour. Mli, p. r.77 .^>70 .'H) ; Dor. No. W. 
 
 A ■■-. .lour. M:!, II Ht.1. I K. S IV \ri\, huc. U. IJ each ol privilege. Am. Jour. 
 'M, Uoc. NuH. I UJ-lu5 ; do. 'J7, Nu. 327. 1 U. S. j). 164, ucc. 13.
 
 ART. 4— EXECUTIVE. xxi 
 
 Section 11. Each house shall keep a journal of its proceedings, Journals to be 
 
 and publish the same, except such parts as may require secrecy, gg^^'^ '''"^" •'^'''" ^' 
 The doors of eacii house shall be kepi open, except when the public 
 welfare shall require secrecy Neither house shall, without the con- 
 sent of the other, adjourn for more than two days. 
 
 Section 12. For any speech or debate in either house of the Freedom in de- 
 
 Leffislature, the members shall not be questioned in any other 154^50^, jj. ' ^' 
 place. 
 
 Section 13, Any bill may originate in either house of the Legisla- ^ills. Art. 1, sec. 
 lure, and all bills passed by one house may Le amended by the other. 
 
 Section 14. The enacting clause of ail bills shall be " The people Enacting clauee 
 
 of the State of New York, represented in Senate and Assembly, "' •''^'s- 
 do enact as follows." and no law shall be enacted except by bill. 
 
 Section 15 No bill shall be passed unless by the assent of a Majority of mem- 
 
 maioritv of all the members elected to each branch of the Legisia- bers elected re- 
 
 ■'-',, .1 n 1 I n u i 1 • q in red to pass 
 
 ture. and the question upon the hiiai passage shall be taken nnme- |],|ig 
 
 diately upon its last reading, and the yeas and nays entered on the 
 journal. 
 
 Section 16 No private or local bill, which may be passed by the Private or local 
 Legislature, shall embrace more than one subject, and that shall be '^'"■'^• 
 expressed in the title. 
 
 Section 17. The Legislature may confer upon the boards of Local legislature, 
 supervisors, of the several counties of the State, such further powers, 
 of local legislation and administration, as they shall from lime to 
 time prescribe. 
 
 ARTICLE IV. 
 
 Section 1. The executive power shall be vested in a Governor, Executive pow- 
 who shall hold his office for two years ; a Lieutenant Governor shall s'^'- ■*"■ 3. sec. 1. 
 be chosen at the same time, and for the same term. 
 
 Section 2. No person except a citizen of the United States, shall Qualifications of 
 be eligible to the office of Governor ; nor shall any person be eligible ^c^""°l^ ^' 
 to that otfce, who shall not have attained the age of thirty years, i845,p. 445. ' 
 and who shall not have been five years next preceding his election, 
 a resident within this State. («) 
 
 Section 3. The Governor and Lieutenant Governor shall be Election of Gov. 
 elected at the times and places of choosing members of " the As- and Lt.Gov. Art- 
 sembly." Tlie persons respectively having the highest number of '''" 
 vates for Governor and Lieutenant Governor, shall be elected ; but 
 in ca^e two or more shall have an equal and the highest number of 
 votes for Governor, or for Lieutenant Governor, the two houses of 
 the Legislature " at its next annual session," shall, " forthwith," by 
 joint ballot, choose one of the said persons so having an equal and 
 the highest number of votes for Governor, or Lieutenant Governor. 
 
 Section 4. The Governor shall be commander-in-chief of " the Powers and du- 
 
 military and naval forces" of the State. He shall have power to ties of Gov. Art. 
 
 convene the Legislature (or the Senate only) on extraordinary occa- '' " ' ,„, 
 
 rTiH • 1 ..iri. 1 Sen. Jour. 32, p. 
 
 sions. He shall communicate by message to the Legislature at 4Qg_ ' '^ 
 
 every session, the cond'tion of ihe Stale, and recommend such mat- 
 ters to them as they shall judge expedient. — He shall transact all ne- 
 cessary business with the officers of government, civil and military. 
 He shall expedite all such measures, as may be resolved upon by 
 the Legislature, and shall take care that the laws are faithfully 
 executed. He shall, at stated limes, receive for his services, a Compensation. 
 compensation to be established by law, which shall neither be in- 
 creased nor diininislied " after his election and during his continu- 
 ance in office. "(a) 
 
 Section 5. The Governor shall have the power to grant reprieves Pardoning pow- 
 " commutations" and pardons alter conviction, for all offences ex- er. Art. 3. sec. 5. 
 cept treason and cases of impeachment, " upon such conditions, and 
 
 (a) The reqiiirementa of being a native citizen and freeholder omitted. 
 (6) "Uurinj the term for which he shall have been elected."— OW Constitu- 
 tion.
 
 XXll 
 
 ART. 5— STATE OFFICERS. 
 
 Sen. Jour. '24, p. 
 56; do. '40, p. lis. 
 Sen. Jour '46, 
 Joe. Ko. 142. 
 
 When powerB of 
 Gov. devolve on 
 Lt. Gov. Art. 3, 
 sec. 6. 
 Sen. Jour. 
 
 mr. 
 
 '29, p. 
 
 viualifications, 
 powers and du- 
 ties of Lt. Gov. 
 Art. 3, sec. 7. 
 Sen. Jour. '26, p. 
 127,415, adjourns 
 the Senate. 
 
 Compensation of 
 Lt. Gov. 
 
 Billa to be pre- 
 sented to Gov. 
 .\rt. 1, .sec. 12. 
 Sen. Jour. '42, p. 
 68, 69, 111. 
 If returned with 
 objections, how 
 disposed of. 
 
 Eflcct ifnot re- 
 turned within ten 
 dayn. 
 
 with such restrictions and limitations, as he may tliii'k proper, 
 subject to such regulation as maybe provided by law relative to the 
 manner of applying for pardons." Upon conviction for treason, he 
 shall have power to suspend the execution of the sentence, until the 
 case shall be reported to the Legislature at its next meeting, when 
 the Legislature shall either pardon, '' or conmiute the sentence," 
 direct the execution of the sentence, or grant a further reprieve. 
 " He shall annually communicate to the Legislature each case of re- 
 reprieve, commutation or pardon granted; slating the name of the 
 convict, the crime of which he was convicted, the sentence and its 
 date, and the date of the commutation, pardon or reprieve." 
 
 Section 6. Li case of the impeachment of the Governor, or his 
 removal from office, death, inability to discharge the powers a 
 duties of the said office, resignation or absence from the .State, t 
 powers and duties of the office shall devolve upon the Lieutenant 
 Governor for the residue of the term, or until the disability shall 
 cease. But when the Governor shall, with the consent of the Le- 
 gislature, be out of the State in time of war, at the head of a military 
 force (hereof, lie shall continue commander-in-chief of all the mili- 
 tary force of the Slate. 
 
 i^ection 7. " The Lieutenant Governor shall possess the same 
 qualifications of eligibility for office as the Governor." He shall be 
 President of the ."Senate, but shall have a casting vote therein. (o) 
 If during a vacancy of the office of Governor, the Lieutenant 
 Governor shall be impeached, displaced, resign, die, " or become in- 
 capable of performing ihe duties of his office," or be absent from the 
 State, the President of the Senate shall act as Governor, until the 
 vacancy be filled, or the disability shall cease. 
 
 Section 8. The Lieutenant Governor shall, while acting as such, 
 receive a cr mpensalion which shall be fixed by law, and which shall 
 not be increased or diminished during his continuance in office. 
 
 Section 9. Every bill which shall have passed the Senate and 
 Assembly, shall, before it becomes a law, be presented to the Go- 
 vernor : if he approve he shall sign it ; but if not, he shall return it 
 with his objections to that house in which it shall have originated; 
 who shall enter the objections at large on their journal, and pro- 
 ceed to reconsider it (/;j If after such reconsideration, two-thirds 
 of the members present shall agree to |)ass the bill, it shall be sent, 
 together with the objections, to the other house, by which it shall 
 likewise be reconsidered; and if approved by two-thirds of all 
 the members present, it shall become a law, notwithstanding the 
 objections of the Governor. But in all such cases, the votes of both 
 houses shall be determined by yeas and nays, and the names of the 
 members voting lor and against the bill, shall be entered on the jour- 
 nal of each house rc.^^pectively. If any bill shall not be returneci by 
 the Governor within ten days (^Sundays excepted) aft( r it shall have 
 been presented to him, the same shall be a law, in like manner as if 
 he had signed it, unless the Legislature shall, by their adjournment, 
 pievent its return ; in which case it shall not be a law. 
 
 ARTICLE V. 
 
 Stale ofTicerw, Section 1. The Secretary of State, Com[)troller, Treasurer and 
 
 mlriTof omrenmi Atlorney-C^eneral shall he chosen at a general election, and shall 
 
 comperiH.-jiiiiri. hold iheir offices for two years Each of the oflicers in this Article 
 
 Art. 1, Hcc. 0, en- uaiucd (except the Speaker of the Assembly,) shall at stated times, 
 
 urciy changed. during \i\n continuance in office, receive for his services, a compen- 
 
 ^n) </iiniiii|; voiCH. r>i;n. uoiir ^'t>, i 
 30M(W; do '.'tO, p 27fi-:t7l ; do '13, p 'X'J rAl -r,V.) 
 (I)) KiIIn rfturiii;d Willi olijcrlii 
 
 ",.'0, p. 17rt 2,'-.7; do. '37, p. 
 
 (h) liillN rr'tiiriii;d Willi olijcrliiiMH. Smi .lour. '23, p. 423; do. '24, [). 3r>9 ; do. 
 
 ai.'i ; do. 4<W; do ■•.^, p Kll ; do. '.35, p. 249; do. ".ii; ; p. 021; do. '4(1, p. 279; do. 
 
 '42, p. 2H1 :«iO. Ahh. .lour. '24, p. 1071 1 1:«; ilo '-J?, p 1131 ; do. '29, p 3.37; do. 
 
 ':», p. 8H0 ; Uoc. No. aai) ; do. '35, ii. <.m ; do. '39, p if-i? ; do. '42, i), «25-993 ; do. 
 •46, p. 1319.
 
 ART. C— JUDICIARY. 
 
 XXIU 
 
 sation, wliicli shall not be increased or diminislied durinjr tlie term 
 for wliicli lie sliall have been elected : nor shall he receive, to his 
 use, any fees or perquisites of office, or other compensation. 
 
 Section '2. A Slate Engineer and Surveyor shall be chosen at a State engineer. 
 general election, and shall hold his office two years, but no person 
 shall be eh cted to said office who is not a practical engineer. 
 
 Section 3. Three Canal Commissioners shall be chosen at the ge- Canal Commis- 
 neral election which Fhall be held next al'ier the adoption of this sioners. Session 
 Constitution, one of whom shall hold his office for one year, one for ^^^ j r 'g 3'j ' 
 two years, and one for three years. The Commissioners of the Ca- ed. p. 115. 
 nal Fund shall meet at the Capitol on the first Monday of January, 
 next after such election, and determine by lot which of said Com- 
 missioners shall hold his office for one year, which for two, and which 
 for three years; and there shall be elected annually thereafter, one 
 Canal Commissioner, who shall hold his office for three years. 
 
 Section 4. 'I'hree Inspectors of State Prisons, shall be elected at Inspectors of 
 the general election which shall be. held next after the adoption of fiate prisons, 
 tins Constitution, one 01 whom shall hold his office for one year, one tenure of office, 
 for two years, and one for three years. The Governor, Secretary of 
 State, and C"omptroller, shall meet at the Capitol on the first Mon- 
 day of January next succeeding such election, and determine by lot 
 which of said Inspectors shall hold his office for one year, which for 
 two, and which for three years , and there shall be elected annually 
 thereafter one Inspector of State Prisons, who shall hold his office 
 for three years ; said Inspectors shall have the charge and superin- 
 tendence of the State prisons, and shall appoint all the officers there- 
 in. All vacancies in the office of such Inspector shall be filled by Vacancy how 
 the Governor, till the next election. supplied. 
 
 Section .t. The Lieutenant Governor, Speaker of the Assembly, Commissioners 
 Secretary of State, (Comptroller, Treasurer, Attorney-General, and of the land office. 
 State Engineer and Surveyor, shall be the Commissioners of the ge^' f ' ^" ^^^' 
 Land OfHce, 
 
 The Lieutenant Governor, Secretary of State, Comptroller, Trea- Commissioners 
 surer and Altorney-Geueral, shall be the Commissioners of the Ca- of the Canal fund. 
 nal Fund. Lc.2^' P' "^' 
 
 The Canal Board shall consist of the Commissioners of the Canal canal board IR 
 Fund, the State Engineer and Surveyor, and the Canal Cgmmis- S. p. 114, sec. 5. 
 sioners. 
 
 Section 6. The powers and duties of the respective boards, and of Powers and du- 
 the several officers in this Article mentioned, shall be such as now 'ie** of boards and 
 are or hereafter may be prescribed by law. ° '^^'^''' 
 
 Section 7. The Treasurer may be suspended from office by the Treasurer may 
 Governor, during the recess of the Legislature, and until thirty days be suspended by 
 after the commencement of the next session of the Legislature, d^^.S°^' ? .Jo^' 
 whenever it shall appear to him that such Treasurer has, in any 123, sec. 43. ' 
 particular, violated his duly. The Governor shall appoint a compe- 
 tent person to discharge the duties of the office, during such suspen- 
 sion of the Treasurer. 
 
 Section 8. All offices for the weighing, guaging, measuring, cull- Certain offices 
 ing or inspecting any merchandize, produce, manufacture or com- abolished, 
 modity whatever, are hereby abolished, and no such office shall here- 
 after be created by law : but nothing in this section contained, shall 
 abrogate any office created for the purpose of protecling the public 
 health or the interests of the State in its property, revenue, tolls, or 
 purchases, or of supplying the people with correct standards of 
 weights and measures, or shall prevent the creation of any office for 
 such purposes hereafter. 
 
 ARTICLE VL 
 
 Section 1. The Assembly sliall have the power of impeachment. Power of im- 
 by the vote of a majority of all the membej-s elected. The court for peachment. Art. 
 the trial of impeachments, shall be composed of the President of the foMhe trial of 
 Senate, the Senators, "or a major part of them, and the judges peachments. Art. 
 of the court of appeals, or the major part of them. On the trial of ^' ®6c--1t
 
 jj^^ ART. 6— JUDICIARY. 
 
 an impeachment apjainst tlie Governor, tlie Lieutenant-Governor 
 shall not act as a member of the court. No judicial officer shall ex- 
 ercise his office after he shall have been impeached, until he shall have 
 been acquitted." Hefore the trial of an impeachment, the mnmhers of 
 
 Procee-linss enl the court shall take an oath or affirmation, truly and imparlially to try 
 
 secf™^'^' ^^' ' the impeachment, according to evidence ; and no person shall be con- 
 victed, without the concurrence of two- thirds of the members present. 
 Judgment in cases of impeachment shall not extend further than to re- 
 moval from office, or removal from office and disqualification to hold 
 and enjoy any office of honor, (rust or jirofit under this State : but the 
 party " impeached," shall be liable to indictment, and punishment 
 according to law. 
 
 Court of appealp; Section 2. There shall be a court of appeals, composed of eight 
 judges, of whom four shall be elected by the electors of the State for 
 eight years, and four selected from the class of Justices of (he Su- 
 
 Chief judge, &Ck prtme Court having the shortest time to serve. Provision shall be 
 made by law, for designating one of the number elected, as chief 
 judge, and for selecting such Justices of the Supreme Court, from 
 time to time, and for so classifying those elected, that one shall be 
 elected every second year. 
 
 Supreme court of Section 3. There shall be a Supreme Court having general juris- 
 
 law and equity. ^.^^-^^ -^ ,^^ ^^, ^ ^^^-^^^ 
 
 Judicial districts. Section 4. The Slate shall be divided into eight judicial districts, 
 of which the city of New-York shall be one: the others to be 
 bounded by county lines, and to be compact and equal in popula- 
 Four justices in tion as nearly as may be. There shall be four Justices of the Su- 
 each district. preme Couri in each district, and as many more in the district com- 
 posed of the city of New York, as may from time to time be author- 
 ized bylaw, but not to exceed in the whole such number in propor- 
 tion to its population, as shall be in conformity with the number of 
 such judges in the residue of the State in proportion to its jiopula- 
 ClaBsification tion. They shall be classified so that one of the Jusliees of each 
 Ice '^'^"'^*^ "' "^' disirict shall go out of office at the end of every two years. After 
 the expiration of their terms under such classification, the term of 
 their office shall be eight years. 
 Jurisdiction and Section 5. The Legislature shall have the same powers to alter 
 proceediii5.s how j regulate the jurisdiction and proccedinjxs in law and equity, as 
 regulated. . , , ■ , r j ^ 
 
 they have heretofore possessed. 
 Justice to preside Section 6. Provision may be made by law for designating, from 
 how designated. ^-^^^^ ^^ ^j^^p^ ^^^^ ^j. ^^^.^ ^^ ^^^^ ^^^^^ Justices, who is not a Judge of 
 
 the court of ajipcals, to jiresido at the general terms ol the said 
 General term of court (o ho held in the several districts. Any three or more of the 
 sup. court. ggjj Justices, of whom one of the said Justices so designated shall al- 
 
 ways be one, may hold such general terms. And any one or more 
 couri's'of'oyer ^ of the Justices may hold special terms and circuit courts, and any 
 and terminer. one of them may preside in courts of oyer and terminer in any county. 
 Compensation of Section 7. Tlie Judges of the court of appeals and Ju^tices of the 
 judgea and juKii- supreme court .'■hall severally receive at staled times for their ser- 
 "* vices, a com])enH.itiriii to he established bylaw, which shall not be 
 
 increased or diminiKlied during their continuance in office. 
 To hold no other Section 8. 'J'hey shall not liold any other office or public trust. 
 ofBce and have j\]| votes for oillier of them, for any elective office (except that of 
 "oiiiuncnt "' ''^' Justice of the su|ir«'ine court, or Judge of the court of appeals.) giv- 
 en by the legislature or (he people, shall be void. They shall not 
 vvho "lay iirac- exercise any power of apjxiintmcnt to public office. Any male citi- 
 e 'aw. zen of the .'ige of twenty-one years, of good moral character, and 
 
 '** who |)o.sHcsH<'s Ihe reipiisitf^ (|iialili(;,itioii8 of learning and ability, 
 
 bHuII be entitled to admisHion to practice in all the courts of this State. 
 ClnFiiificaiinn of Section !i. 'J'lic claNsification of the Justices of the sii|)rem(! court ; 
 ju«iico<, & icrriiH ^\^f. (imcs and place of holding thi! terms of the court of appeals, 
 court'!'^"'""' and of the general and special terms of the supreme court within tho 
 
 ticvcral disiiictH, and the circuit courts and courts of oyer and teriiii- 
 ner within the several counties, shall he provided for by hiw. 
 TcHtimony In Section 10. The te-liniony in ciiuity casca fchall bo taken in like 
 
 <)f|uuy cwfcy. jnanucr bh iu cases at law.
 
 ART. 6.— JUDICIARY. XXV 
 
 Section 1 1. Justices of the supreme court and .Iiidgcs of tlie court Judges of the 
 of appeals, may be removed by concurrent resolution of both Houses "'",'.' K appeals 
 of the LejTisUuure, if two-thirds of all the members elected to the the supreme 
 Assembly and a majority of all the members elected to the Senale court removable 
 
 concur therein. All judicial officers, except those mentioned in this I^, pi,!",,' 
 I * I i» ITT IT' An. 1, sec. io. 
 
 section, and except Justices ol the reace, and Jud^res and Justices judicj^i qav 
 of inferior courts not of record, may be removed by the Senate, on ri:movable by 
 the recommendation of the Governor: but no removal shall be Gov. and senate. 
 made by virtue of this section, unless the cause thereof be enter- 
 ed on the journals, nor unless the party complained of, shall To be heard in 
 have been served with a copy of the complaint against him, i,s45"'n 46 ^^* 
 and shall have had an opportunity of being heard in his de- Anie'iidment. 
 fence. On the question of removal, the ayes and noes shall 
 be entered on the journals. 
 
 Section 12. The Judges of the court of appeals shall be elected Election of 
 by the electors of tlie State, and the Justices of the supreme court co'uft^'o'f anneal" 
 by the electois of the several judicial districts, at such times as may and justices of 
 be i)re.scribed by law. ''i" sup. court. 
 
 Section l.'j. In case the office of any judge of the court of appeals. If vacant, Gov. 
 or Justice of the supreme court shall become vacant before the ex- '""^ appoint, 
 piration of the regular term fur which he was elected, the vacancy 
 may be filled by appointment by the Governor, until it shall be sup- 
 plied at the next general election of Judges, when it shall be filled by 
 election for the residue of the unexpired term. 
 
 Seciion 14. Tliere shall be elected in each of the counties of this County judges to 
 State, except the city and county of New-York, one county iudsfe, \^^ eler.ied and 
 I 1 ij 1 T I 1 • £12 r r ■ ij I 11 1 ij »i .1 have powers of 
 
 who shall hold his office for four years. He shall hold the county court surrogate. 
 
 and perform the duties of the oflice of surrogate. The county court 
 
 sliall have su .h jurisdiction in cases arising in Justices' Courts, and in Jurisdiction. 
 
 special cases, as the Legislature may prescribe, but shall have no 
 
 original civil jurisdiction, except in such special cases. 
 
 The county Judge, with two Justices of the feace, to be desig- Courts of ses- 
 nated according to law, may hold courts of sessions with such crimi- 
 nal jurisdiction as the Legislature shall prescribe, and perforin such 
 other duties as may be required by law. 
 
 The county Judge shall receive an annual salary, to be fixed by Sitary of county 
 the board of supervisors, which shall be neither increased nor dimin- J"''?'^- 
 ished during his continuance in office. The Justices of the Peace for 
 services in courts of sessions, shall be paid a per diem allowance out 
 of the county treasury. 
 
 In counties having a population exceeding forty thousand, the Le- Surrogates in 
 gislature may provide for the election of a separate officer to perforin "^^rtam counties, 
 the duties of the office of surrogate. 
 
 The legislature may confer equity jurisdiction in special cases Equity jurisdic- 
 
 upon the county Judge. ^[[Jj^^o' '=°""'y 
 
 Inferior local courts, of civil and criminal jurisdiction may be es- ^,, ' ' ,„ 
 .11-111 I r • 1 • • • 1 , .- City courts 
 
 tablished by the Legislature in cities; and such courts, except for 
 
 the cities of New York and Buffitio, shall have an uniform organi- 
 zation and jurisdiction in such cities. 
 
 Section 15. The Legislature may, on application of the board of Officers lo per- 
 supeivisors, provide for the election of local officers, not to exceed co'uui'vTiid"^eand 
 two in any county, to discharge the duties of county Judge and of surrogate. ° 
 surrogate in cases of their inability, or of a vacancy, and so exercise 
 such other powers in special cases as may be provided by law. 
 
 Section lU. The legislature may reorganize the judicial districts Judicial district 
 at the first session after the return of every enumeration under this f"^? ^^ reorgan- 
 Constitution, in the manner provided for in fourth section of this arti- 
 cle, and at no other time; and they may, at such session, increase 
 or dimini.sh the dumber of districts, but such increase or diminution 
 shall not be more than one district at any one time. Each district 
 shall have four Justices of the Supreme (^ourt ; but no diminution 
 of the districts sliall have the etFect to remove a Judge from office. 
 
 Section 17. " The electors of the several towns" shall, at their an- Justices of the 
 nual" town" meet'ng, and in such manner as the l,eiri^lature may di- £fn anj^"emii-e°o« 
 rect, elect Justices of the Peace, whose term of office shall be four office. Amend-
 
 XXVi 
 
 ART. 7.— DEBT, REVENUES AND CANALS. 
 
 ment No. 1. 
 Ass'y Jour, '"i7, 
 p. 1140. do. '33, 
 Doc. No. 300. 
 Sen. Jour. '41;, 
 Doc. 72. 6 Cow. 
 &42. 9. Cow. 041. 
 2 Hill, 369. 
 How removed. 
 
 Judicial officers 
 in cities to be 
 elected, 23 Wend. 
 414. 26 Wend. 
 599. 
 
 County clerks to 
 be clerks of su- 
 preme court 
 Clerk of the court 
 of appeals. 
 
 No judicial offi- 
 cer except justi- 
 ces of the peace 
 to receive fees. 
 Decisions of city 
 courts of record, 
 how reviewed. 
 
 Publication of 
 laws and deci- 
 sions. 
 
 Tribunals of con- 
 ciliation. 
 
 Commissioners 
 to revise practice 
 and pleadings. 
 
 Can.'il revenues, 
 Abh'x Jour. Ml. 
 2GC, 12(;7. do. '42 
 p. 109, «{?. AKH'y 
 I)oc. ij, No K■^, 
 If*. LawH '42, 
 chap. 11 1. A-m'v 
 Jour. '4.'), p. 21.1, 
 70Ct. do. '44, f. 
 771. I,aWH '44, 
 chap. .'114. As.i'y 
 Jour. ''\r>, l.'tiy. 
 Sinkini; futiil lo 
 pay curia! debt. 
 
 Siiikins; fund to 
 )>av geaoral fund 
 debt. 
 
 5'ears. " In case of an election to fill a vacancy occurring before 
 the e.x'piration of a fnll term, they siiall hold for the rtsidue of the 
 unexpired term. Their number and classification may be rej/ulated 
 bylaw. Justices of the Peace, and Judges or Justices of inferior 
 courts, not of record, and their clerks may be removed, (after due 
 notice and an opportunity of being heard in their defence) by such 
 county, city or State courts as may be prescribed by law, for causes 
 to be assigned in the order of removal. 
 
 Section 18. All judicial officers of cities and villages, and all such 
 judicial officers as n:ay be created therein by law, shall be elected at 
 such times and in such manner as the legislature may direct. 
 
 Section 19. The clerks of the several counties of this state shall 
 be clerks of the Supreme Court, with such powers and duties as shall 
 be prescribed by law. A clerk for the Court of Appeals, to be ex- 
 officio clerk of the Supreme Court, and to keep his office at the seat 
 of government, shall be chosen by the electors of the state ; he shall 
 hold his office for three years, and his compensation shall be fi.xed by 
 law and paid out of the public treasury. 
 
 Section 20. No judicial officer, except justices of the peace, shall 
 receive to his own use any fees or perquisites of office. 
 
 Section 21. The legislature may authorize the judgments, de- 
 crees and decisions of any local inferior court of record of original 
 civil jurisdiction, established in a city, to be removed for review di- 
 rectly into the Court of Appeals 
 
 Section 22. The legi.«lature shall provide for the speedy publica- 
 tion of all statute laws, and of such judicial decisions as it may deem 
 expedient. And all laws and judicial decisions shall be free for pub- 
 lication by any person. 
 
 Section 23. Tribunals of conciliation may be established, with 
 such powers and duties as may be prescribed by law ; but such tri- 
 bunals shall have no power to render judgment to be obligatory on 
 the parties, except they voluntarily submit their matters in difference 
 and agree to abide the judgment, or assent thereto, in the presence 
 of such tribunal, in such cases as shall be prescribed by law. 
 
 Section 24. The legislature at its first session after the adoption 
 of this Constitution, shall provide for the aiipointment of three com- 
 missioners, whose duly it shall be to revise, reform, simplify and 
 abridge the rules and practice, pleadings, forms and proceedings of 
 the courts of record of this state, and to report thereon to the legis- 
 lature, subject to their adoption and modification from time to time. 
 
 Section 25. The legislature at its fir.^t session aller the adoption 
 of this Constilution, shall provide for the organization of ihe Court of 
 Ajjpeals, and for transferring to it the business pending in the Court 
 for the Correction of lOrrors, and for the allowance of wrils of error 
 and appeals to the t^ourt of Appeals, from the judgments and decrees 
 of the present Court of Chancery and Supretne Court, and of the 
 courts that may be organized under this Constitution. 
 
 ARTICLE VIL 
 
 Section 1. After paying the expenses of collection, superinten- 
 dence and ordinary rcjiairs, there .shall be appropriated and set ajiart 
 in each fiscal year, nut of the revenues of the state canals, commenc- 
 ing on the firxt day of June, one thousand eight hundred and forty- 
 hIx, the sum of om- million and three hundred tluui-iand dollars, nnlil 
 the fir.sl day of .hni"', o:ie thousand eight huiidri'd and fifty -live, and 
 from liiul time the sum of one nnllion and seven hundred thousand 
 dollars in each fiscal year, as a sinking fuiul, to pay the intcr''St and 
 redeem the principal of that pirl of the state debt called the canal 
 debt, UH it existed at the time first aforesaid, and including three 
 hundred Ihonsmid dollars then to be borrowed, until the same shall 
 bo wholly paid ; and the principal and income of the said sinking 
 fund HJiall be Ha'-riilly upplu'd to (hat purpose. 
 
 Section 2. After complying with the provisions of the first section 
 of this article, there hhall be appropriated and set apart out of the
 
 ART. 7.— DEBT, REVENUES AND CANALS. XXvH 
 
 surplus revenues of tlie state canals, in each fiscal year, commencing 
 on tlie first day of June, one llionsand ei£rht linndred and forly-six, 
 the sum of three hundred and fifty thousand dollars, until the time 
 when a sufficient sum shall have been appropriated and set apart, 
 under the said first section, to pay the interest and extinguish the 
 entire principal of the canal debt; and after that period, then the 
 sum of one million and five hundred thousand dollars in each fiscal 
 year, as a sinking fund, to pay the interest and redeem the principal 
 of that part of the state debt called the general fund debt, including 
 the debt for loans of the state credit to railroad companies which have 
 failed to pay the interest thereon, and also the contingent debt on 
 state stocks loaned to incorporated companies which have hitherto 
 paid the interest thereon whenever and as far as any part thereof 
 may become a charge on the treasury or general fund, until the same 
 shall be wholly paid ; and the principal and income of the said last 
 mentioned sinking fund shall be sacredly applied to the purpose afore- 
 said ; and if the payment of any part of the moneys to the said sink- If rieferred to ba 
 ing fund shall at any time be deferred, by reason of the priority re- fedy iiuerest'^'^ 
 cognized in the first section of this article, the sum so deferred, with 
 quarterly interest thereon, at the then current rate, shall be paid to 
 the last mentioned sinking fund, as soon as it can be done consis- 
 tently with the just rights of the creditors holding said canal debt. 
 
 Section 3. After paying the said expenses of superintendence and $200,000 yearly 
 repairs of the canals, and the sums appropriated by the first and se- t" support of go- 
 cond sections of this article, there shall be'paidoutof the surplus 
 revenues of the canals, to the treasury of the state, on or before the 
 thirtieth day of September, in each year, for the use and benefit of 
 the general fund, such sum, not exceeding two hundred thousand 
 dollars, as may be required to defray the necessary expenses of the 
 state ; and the remainder of the revenues of the said canals shall, in Residue to corn- 
 each fiscal year, be applied, in such manner as the legislature shall J?,'^^ars^Jnent^"'Jjj 
 direct, to the completion of the Erie Canal enlargement, and the Ge- Genesee Valley 
 
 nesee Valley and Black River canals, until the said canals shall be and Black River 
 
 I , J canals. 
 
 completed. 
 
 If at any time after the period of eight years from the adoption of After 8 years 
 this Constitution, the revenues of the state, unappropriated by this $550,030 for ex- 
 
 • I I 11 1 m ■ . , J r .1 ir t J penseaof govern- 
 
 article, shall not be sutfacient to defray the necessary expenses ot the „ient. 
 
 government, without continuing or laying a direct tax, the legislature 
 may, at its discretion, supply the deficiency, in whole or in part, 
 from the surplus revenues of the canals, after complying with the 
 provisions of the first two sections of this article, for paying the inte- 
 rest and extinguishing the principal of the canal and general fund 
 debt ; but the sum thus appropriated from the surplus revenues of 
 the canals shall not exceed annually three hundred and fifty thou- 
 sand dollars, including the sum of two hundred thousand dollars, pro- 
 vided for by this section for the expenses of the government, until 
 the general fund debt s-hall be extinguished, or until the Erie Canal 
 enlargement and Genesee Valley and Black River canals shall be 
 completed, and after that debt shall be paid, or the said canab; shall 
 be completed, then the sum of six hundred and seventy-two thousand 
 five hundred dollars, or so much thereof as shall be necessary, may 
 be annually appropriated to defray the expenses of the government. 
 
 Section 4. The claims of the state against any incorporated com- Claims against 
 pany to pay the interest and redeem the principal of the stock of the corporations not 
 state loaned or advanced to such company, shall be fairly enforced, 
 and not released or compromised ; and the moneys arising from such 
 claims shall be set apart and applied as part of the sinking fund pro- 
 vided in the second section of this article. But the time limited for 
 the fulfilment of any condition of any release or compromise hereto- 
 fore made or provided for, may be extended by law. 
 
 Section 5. If the sinking funds, or either of them provided in this If sinking funds 
 article, shall prove insufficient to enable the state, on the credit of |"cre'^sed"by ° ^® 
 such fund, to procure the means to satisfy the claims of the creditors taxes, 
 of the state, as they become payable, the legislature shall, by equi- 
 table taxes, so increase the revenues of the said funds as to make
 
 xxviii ART. 7.-DEBT, REVENUES AND CANALS. 
 
 tliem, respectively, sufficient perfectly to preserve the public faith. 
 Every contribiitiou or aHvance to the canals, or tlieirdebt, from any 
 source, other than their direct revenues, shall, with quarterly interest, 
 at the rates then current, be repaid into the treasury, for the use of 
 the state, out of the canal revenues as soou as it can be done con- 
 sistently with the just rights of the creditors holding the said canal 
 debt. 
 Canals not to be iSertion 6. The legislature shall not sell, lease, or otherwise dis- 
 sold or leased. ^^^^ ^^ ^^^^ ^P ^^1^^ canals of the state ; but they shall remain the pro- 
 perty of the stale and under its management, forever. 
 Salt springs not Section 7. The legislature shall never sell or dispose of the salt 
 to be sold. springs belonging to this state. The lands contiguous thereto and 
 
 which may be necessary and convenient for the use of the salt springs, 
 may be sold by authority of law and under the direction of the com- 
 missioners of the land office, for the purpose of investuig the moneys 
 arising ihf^refrom in other lands alike convenient; but by such sale 
 and purchase the aggregate quantity of tlie^e lands shall not be di- 
 minished. 
 No moneys to be Section 8. No monej's shall ever be paid out of the treasury of 
 paid without ap- y,jg gfate, or any of its funds, or any of tlie funds under its manage- 
 propriation by ,',.•' „ •' • .■ i i i 
 
 law within two nient, except in pursuance ol an appropriation bv law; nor unless 
 
 years. such payment be made within two years next after tlie passage of 
 
 such apprnpriaiiou act; and every such law making a new appro- 
 priation, or continuing or reviving an appropriation, shall distinctly 
 specify the sum appropiiated. and the object to which it is to be ap- 
 plied ; and it shall not be sufficient for such law to refer to any other 
 law to fix such sum. 
 Credit of the Section 9. The credit of tlie state shall not, in any manner, be 
 
 state not to be given or loaned to, or in aid of any individual, association or corpo- 
 loaned. Laws rat inn 
 '27 p. 47; '30, p. ration. 
 
 22/. Sen'. Jotlr. Section 10. The slate may, to meet casual deficits or failures in 
 '38, p. 416. Doc. revenues, or for expenses not provided for, contract debt.'i, but such 
 Joiir '39 Doc! debts, direct and contingent, singly or in the aggregate, shall not, at 
 No. 110. any time, exceed one million of dollars ; and the moneys arising from 
 
 May borrow one the loans creating such debts, shall he applied to the purpose for 
 million dollars. which they were obtained, or to repay the debt so coutracled, and 
 
 to no other purpose whatever. 
 Debt to repel in- Section II. In addition to the above limited power to contract 
 fusion. debts, the slate may contract debis to rc[)el invasion, suppress insur- 
 
 rection, or defend the .«tatc in war : but the money arising from the 
 contracting of such debts shall be applied to ihe purpose for which 
 it was raised, or to repay such debts, and to no other purpose what- 
 ever. 
 No other debt Section 12. Except the debts specified in the tenth and eleventh 
 
 unles.s amhoriz- sections of this article, no debt shall be hereafter contracted by or 
 approved by the "n behalf of this state, unless such debt shall be authorized by a law 
 people. for some single work or object, to be distinctly specified therein, and 
 
 such law shall impose and provide for the collecUon of a direct an- 
 nual tax to pay, and sufficient lo [)ay the interest on such debt as it 
 falls due, and also lo pay and dischaigo the principal of such debt 
 within eighteen years from the time of iho c-ontracting thereof. 
 IIow Bubmiitcd. No such law shall lak(! efTect until it shall, at a general election, 
 
 have Ikm'u submitted lo the people, and have received a majority of 
 all Iho volcH ca.'st for and against it, at such election. 
 IIowBHch bill to On the final passage of such bill in eitlier hou.so of the legislature, 
 be paaacu. j^|,y rpicstioii shall be taken by ayes and noes, to be duly entered on 
 
 the. journal.s thereof, and shall bo; " Shall thi.s bill pass, and ought 
 the Kamo to receive the sanction of the people?" 
 Mow far reiieal- The legiHlatiire may at any lime, after the a[)provaI of such law 
 '"'"''''• by the people, if no debt shall liave been contracted in ptirsnance 
 
 thereof, re|ieal the Hamc ; and may at any time, by law, forbid the 
 contracting of any further debt or lial)ility under such law ; but the 
 lax impoHed by hucIi act, in proportion lo the debt and liability wliicli 
 may havi' been eonlracted in pursuance of such law, shall remain in 
 force uiid be irrepcuiuble, and be aiiiuially collected until the proceeds
 
 ART. 8.— CORPORATIONS. Xxix 
 
 thereof sliall have made the provision liereiii before specified, to 
 pay and discharge the interest and principal of such debt and lia- 
 bihty. 
 
 The money arising from any loan or slock creating sucli debt or Money borrow- 
 liability, siiall be applied to tiie work or object specified in the act ^^' ''°"^ applied. 
 authorizing such debt or habihty, or for tiie payment of such debt 
 or liabiHty, and for no other purpose whatever 
 
 No such law shall be submitted to be voted on, within three When bill sub- 
 months alter ils passage, or at any general election, when any other mittedtoihe pco- 
 law or any bill or any amendment to the Constitution, shall be sub- ^' '^' 
 mitted to be voted for or against. 
 
 Section 13, Every law which imposes, continues or revives a tax, Tax billa^ 
 shall distinctly stale the tax and the object to which it is to be ap- 
 plied, and it shall not be sufficient to refer to any other law to fix 
 such tax or object. 
 
 Section 14. On the final passage in either house of the legislature, Tliree-fifths ne- 
 
 of every act which imposes, continues or revives a tax, or creates a '^^'^^^^'V '.'"' ^ 
 J ,^ ■' , I ,• • ■ ,• r quorum ni cer- 
 
 debt or charge, or makes, continues or revives any appropriation ot tain cases. 
 
 public or trust-money or property, or releases, discharges or com- 
 mutes any claim or demand of the state, the question shall be taken 
 by ayes and noes, which shall be duly entered on the journals, and 
 three-fiths of all the members elected to either house, shall, in all 
 such cases, be necessary to constitute a quorum therein. 
 
 ARTICLE VIII. 
 
 Section 1. Corporations may be formed under general laws ; but Corporations to 
 shall not be created by special act, except for municipal purposes, ^^ formed under 
 
 ,. , -".i-j .r.ii ii .U1-. c eeneral laws. 
 
 and in cases where in the judgment of the legislature, ihe objects ot ge„, jquj. 135 
 
 the corporation cannot be attained under general laws. All general Doc. No. 4. do. 
 
 laws and special acts passed pursuant to this section, may be altered 'p^-, Uoc. No. 8. 
 
 J. ■ ^ ,■ II ' .' Ass'yJour. '5, 
 
 from time to time or repealed. p. 512. Sen. Jour- 
 
 Section 2. Dues from corporations shall be secured by such indi- '24, p. 315. 
 
 vidual liability of the corporators and other means as may be pre- ^^'"^y ^^ repealed. 
 
 scribed by law. Liability of cor- 
 
 -. • ., fr.1 , ,. 1 ■ .1 • .• 1 I 11 1 poratois. Sen. 
 
 feection J. Ihe term corporations as used in this article snail be jour. '44, p. 2.36. 
 
 construed to include all associations and joint-stock companies hav- do. '46, Doc 13, 
 
 ing any of the powers or privileges of corporations not possessed by ^'' Sen. bills '4o, 
 
 individuals or partnerships. And all corporations shall have the right T)„fili,j„„ of 
 
 to sue and shall be subject to be sued in all courts in like cases as corporation. 
 
 natural persons. 
 
 Section 4. The Legislature shall have no power to pass any act No special char- 
 granting any special charter for banking purposes ; but corporations 'f "^ *,"' i^^".'^',l\f * 
 or associations may be formed for such purposes under general Doc. No. 303 and 
 laws. 31M. do. '38, No. 
 
 Section 5. The Legislature shall have no power to pass any law |n""T^''^^^T!J "'P^'"' 
 sanctioning in any manner, directly or indirectly, the suspension of Se'n. Joiir. '37 
 specie payments by any person, association or corporation issuing Doc. No. 55. 
 bank notes of any description. fi'" "rc^Vif^' 
 
 Section 6. The Legislature shall provide by law for the registry _ ' ' ' 
 
 -,,,.,, ..", .- -I.- JIM Suspension of 
 
 of all bills or notes issued or put 111 circulation as money, and shall specie payments. 
 
 require ample security for the redemption of the same in specie. Sen- Jour. '37, p. 
 
 Section 7. Tlie stockholders in every corporation and joint-stock f.^^i' 526. Laws 
 
 association for banking purposes, issuing bank notes or any kind of „ ' . "^ ' 
 
 J-. . • ] . rl . 1 c . J r T Registry and se- 
 
 paper credits to circulate as money, alter the first day of January, cuntyofbank 
 
 one thousand eight hundred and filty, shall be indi\i(Jually respon- notes. 
 sible to the amount of their respective share or shares of stock in Stockholders in 
 any such corporation or association, for all its debts and liabilities of banking cornora- 
 1-1. .jr...! -jc.j /-T ..I tions mdividual- 
 
 every kind contracted alter the said iirst day of January, one thou- ly responsible. 
 
 sand eight hundred and fifty. 
 
 Section 8. In case of the insolvency of any bank or banking as- Bill holdtrs to be 
 sociation, the bill-holders thereof shall be entitled to preference in first paid. 
 payment over all other creditors of such bank or association.
 
 XXX 
 
 ART. 9.— SCHOOL FUND, &,c. 
 
 Cities and villa- 
 ges, and restric- 
 tion on their 
 power of taxa- 
 tion. 
 
 Section 9. It shall be the duty of the Legrislature to provide for 
 the organization of cities and incorporated villages, and to restrict 
 their power of taxation, assessment, borrow^ing money, contracting 
 debts and loaning their credit, so as to prevent abuses in assess- 
 ments and iu contracting debt by such municipal corporations. 
 
 ARTICLE IX. 
 
 Com. School, 
 Literature, and 
 U. S Deposite 
 Funds. Art. 7, 
 § 10. Ass'y Jour. 
 •23, p. 4.W, 713, 
 769. Sen. Jour. 
 '2i, p. 494. 1 R. 
 S. p. 196. 
 
 Section I. The capital of the common school fund, the capital of 
 the literature fund, and the capital of the United States deposite 
 fund, shall be respectively preserved inviolate. The revenue of the 
 said common school fund shall be applied to the support of common 
 schools ; the revenues of the said literature fund sliall be applied to 
 the support of academies, and the sum of twenty-five thousand dol- 
 lars of the revenues of the United States deposite fund shall each 
 year be appropriated to and made a part of the capital of the said 
 common school fund. 
 
 Sheriffs, county 
 clerks, coroners, 
 .and district attor- 
 neys. Art. 4, §8, 
 2 Wend. 266. 
 11 do. 133. 
 24 do. 215. 
 
 How removed, 
 6 Hill, 49. 
 
 Local officers to 
 be elected or ap. 
 pointed in their 
 respective locali- 
 ties. 
 
 Other officers to 
 be elected or ap- 
 pointed. Art. 4, 
 §15. 
 
 Duration of offi- 
 ces. Art. 4, § 16. 
 
 Time of electing 
 ofllcers. 
 
 Vacancies, how 
 ■uppliiMl, AHH'y 
 Jour. 'Xi. l)uc. 
 No. 300- 
 
 Political year. 
 Art '2, MC. H. 
 
 Hemival of offi- 
 ccro. 
 
 ARTICLE X. 
 
 Section 1. Sheriffs, clerks of counties, including the register and 
 clerk of the city and county of New York, coroners, and " district 
 attorneys," shall be chosen by the electors of the respective coun- 
 ties once in every three years, and as often as vacancies shall hap- 
 pen. Sheriffs shall hold no other office, and be ineligible for the 
 next three years after the termination of their offices. They may 
 be required by law to renew their security from time to time ; and 
 in default of giving such new security, their offices shall be deemed 
 vacant. But the county shall never be made responsible for the 
 acts of the sheriff. 
 
 The Governor may remove any officer, in this section mentioned, 
 within the term for which he shall have been elected ; giving to 
 such officer a copy of the charges against him, and an opportunity 
 of being heard in his defence. 
 
 Section 2. All county officers whose election or appointment is 
 not provided fur by this Constitution, shall be elected by the elect- 
 ors of the respective counties, or appointed by the boards of super- 
 visors, or other county authorities, as the Legislature shall direct. 
 All city, town and village officer^, whose election or appointment is 
 not provided for by this Constitution, shall be elected by the elect- 
 ors of such cities, towns and villages, or of some division thereof, or 
 appointed by such authorities thereof, as the Legislature shall de- 
 signate for that pur|)ose. All other officers whose election or ap- 
 pointment is not provided for by this Constitution, and all officers 
 whose offices may hereafter bo created by law, shall be elected by 
 the peojtic, or appointed, as the Logi.iluture may direct. 
 
 Suction 'i. When the duration of any office is not provided by this 
 Constitution, it may be declared liy law, and if not so declared, 
 such office .shall be held during the pleasure of the authority making 
 the appointment. 
 
 Section ■\. The time of electing all officers named in this article 
 shall b(j prescribed by law. 
 
 Section .'). The Legislature shall provide for filling vacancies in 
 office; and in case of elective ollicers, no person a|)pointed to fill a 
 vacimey shall hold his office, by virtue of such ap|>ointnient, longer 
 than the commencement of the political year next succeeding the 
 first annual election after the happening of the vacancy. 
 
 Section ('). The political year and " legislative term" shall begin on 
 the first of January, and the Legislature shall every year a.ssembic 
 on the firHt Tue.sduy in January, unlets a different day shall bo ap- 
 pointed by law. 
 
 Ser;lion 7. I'rovision shall bo mado by law for the removal for 
 miNCondnct or inalverHation in ofiiee of all officers (except jiidicial) 
 whose powers and duties are nut local or legislative, and wlio shall
 
 ART. 10— OF SHERIFFS AND OTHER OFFICERS, &c. 
 
 XXXI 
 
 be elected at general elections, and also for supplying vacancies 
 created by such removal. 
 
 Section 8 'I'lio Legislature raay declare the cases in which any What tleemed a 
 office isiiall be deemed vacant, where no provision is made for that vacancy, 
 purpose ia this Constitution. 
 
 ARTICLE XI. 
 
 Section 1. The militia of this State shall, at all times hereafter, 
 be armed and disciplined, and in readiness for service ; but all such 
 inhabitants of this State, of any religious denomination whatever, 
 as from scruples of conscience may he averse to bearing arms, shall 
 be excused tlierefrom, upon such conditions as shall be prescribed by 
 law. 
 
 Section 2. Militia officers shall be chosen or appointed as follows : 
 captains, subalterns and non-commissioned officers shall be chosen 
 by the written votes of the members of their respective companies. 
 Field officers of regiments and separate battalions, by the written 
 votes of the commissioned officers of the respective regiments and 
 separate battalions; brigadier-generals and brigade inspectors by 
 the field officers of their respective brigades ; maji)r-geuerals and 
 commanding officers of regiments or separate battalions, shall ap- 
 point the staff officers to their respective divisions, brigades, regi- 
 ments or separate battalions. 
 
 Section 3. The Governor shall nominate, and with the consent of 
 the Senate, appoint all miijor-generals and the commissary-general. 
 1 he adjutant-general and other chiefs of staff departments, and 
 the aid-de-camp of the commander-in-chief shall be appointed by 
 the Governor, and their commissions shall expire with the time for 
 which the Governor shall have been elected. The commissary- 
 general shall hold his office for two years. He shall give security 
 for the faithful execution of the duties of his office in such manner 
 and atnount as shall be prescribed by law. 
 
 Section 4. The Legislature shall by law direct the time and man- 
 ner of electing militia officers, and of certifying their elections to 
 the Governor. 
 
 Section 5. The commissioned officers of the militia shall be com- 
 missioned by the Governor ; and no commissioned officer shall be 
 removed from office, unless by the Senate on the recommendation 
 of the Governor, stating the grounds on which such removal is re- 
 commended, or by the decision of a court martial, pursuant to law. 
 The present officers of the militia shall hold their commissions sub- 
 ject to removal, as before provided. 
 
 Section G. In case the mode of election and appointment of mili- 
 tia officers hereby directed shall not be found conducive to the im- 
 provement of the militia, the Legislature may abolish the same, 
 and provide by law for their appointment aiid removal, if two- 
 thirds of the members present in each house shall concur therein. 
 
 Militia to be 
 armed and disci- 
 plined. 
 
 Militia officers, 
 liow cliosen and 
 appointed. Art. 
 4, sec. 1. 
 
 Miliiia officers 
 
 a|ipointed by 
 
 Governor and 
 
 •nor and 
 ._,^..„,c. Art. 4, 
 sec. 2, sec 6. 
 
 Sunal 
 
 Commissary Ge- 
 neral to give se- 
 curity. 
 
 Time of electing 
 militia officers. 
 Art. 4, sec. 3. 
 
 Militia officer.^, 
 how commission- 
 ed. Art. 4, sec. 4. 
 
 Election of mili- 
 tia officers may 
 be abolished. 
 Art. 4, sec. 5. 
 
 ARTICLE XII. 
 
 Section 1. Members of the Legislature, and all officers, execu- Oath of cffl:e 
 
 live and judicial, except such inferior officers as may be by law ex- 
 empted, shall, before they enter on the duties of their respective 
 offices, take and subscribe the following oath or affirmation : 
 
 " I do solemnly swear (or affirm, as the case may be) that I will 
 support the Constitution of the United States, and the Constitution 
 of the Stale of New York ; and that I will faithfully discharge the 
 duties of the office of according to the best of my ability." 
 
 And no other oath, declaration or test shall be required as a qual- 
 ification for any office or public trust. 
 
 prescribed. 
 Art. 6, seCj 1.
 
 xxxu 
 
 Amendments to 
 Constitution, 
 how made 
 Art. 8, sec. 1. 
 
 Future conven- 
 tion, how called. 
 
 AKT. 13.— AMENDMENTS. ART. 14.— MISCELLANEOUS- 
 ARTICLE Xin. 
 
 Section 1. Any amendment or amendments to this Constitution 
 may be proposed in llie frenate and Assembly ; and il tiie same 
 shall be agreed to by a majority of the members elected to each of 
 the two houses, such proposed amendment or amendments shall be 
 entered on their journal.s with the yeas and nays taken thereon, and 
 referred to the Legislature to be chosen " at ihe next general elec- 
 tion of Senators," and shall be published for three months jirevious 
 to the time of making such cltoice ; and if, in the Legislature so 
 next chosen as aloresaid, such proposed amendment or amendments 
 shall be agreed to by a majority of all ihe members elected to each 
 Jiouse, then it shall be the duty of the Legislature to submit such 
 proposed amendment or amendments to the people, in such manner 
 and at such time as the Legislature shall prescribe ; and if the peo- 
 ple shall approve and ratify such amendment or amendments, by a 
 majority of the electors qualified to vute lor members of the Legisla- 
 ture, voting thereon, sucii amendment or amendments sljall become 
 part of the Constitution. 
 
 Section 2. At the general election to be held in the year eighteen 
 hundred and sixty-six, and in each twentieth year thereafter, and 
 also at such lime as the Legislature may by law provide, the ques- 
 tion, " Shall there be a Convention to revise the Constitution and 
 amend the same V shall be decided by the electors qualified to vole 
 for members of the Legislature ; and in case a majority of the elec- 
 tors so qualilied, voting at such election, shall decide in favor of a 
 Convention for such purpose, the Legislature, at its next session, 
 shall provide by law for the election of delegates to such Conven- 
 tion. 
 
 First election of 
 members of the 
 Legislature. 
 
 First election of 
 (iovemor ami 
 Lieut. Governor. 
 
 Of State otTicer.". 
 
 Of jud?(!M of llin 
 Court of A|>|>i-ala 
 ami jiiHiiccM of 
 the Siil>reliiu 
 Court. 
 
 JuriHillrijon of 
 
 pCllllllIK HIlllH, 
 
 V(!»l«il in till! Si I 
 proinu Court. 
 
 ARTICLE XIV. 
 
 Section 1. The first election of Senators and Members of Assem- 
 bly, pursuant to the provisions of this Constilution, shall be held on 
 the I'uesday succeeding the first Monday of November, one thou- 
 sand eight hundred and forty-seven. 
 
 The Senators and Members of Assembly who maybe in office on 
 the first day of January, one thousand eight hundred and forty- 
 seven, shall hold their uificts until and including the thirty-first day 
 of December Jollowmg, and no longer. 
 
 Section 2. '1 he iirsi election of Cuvcrnor and Lieutenant-Gover- 
 nor, under this Constitution, shall be held on the Tuesday succeed- 
 ing the first jMonday of November, one tiiousand eight Inuidred and 
 forty-eight ; and the Covernor and Lieutenaut-Covernor m office 
 when this Constitution shall take effect, shall hold their respective 
 ofiices until and including ti)e thirty-first day of December of that 
 year. 
 
 Section 3. The Secretary of State, Comptroller, Treasurer, 
 Alloniey-GeiU'ral, District Attorneys, Surveyor-General, Canal 
 Commissioners, and inspectors of tSlale i)risons, in ollice when this 
 Constitution shall take eliect, shall hold their respective offices un- 
 til and including the thirty-first day of December, one thousand 
 eight hundred and forty-seven, and no longer. 
 
 Section J. 'I'lie first election of judges and clerk of the court of 
 Q|)peal.s, Justices of the . 'supreme C^ourt, and county judges, shall 
 lake place at such time between the lirsl Tuesday of April and the 
 Hecoiid 'i'uesday of June, one thoiisanrl eight hundred and fortj'- 
 Keren, ua may be prescribed by law. The said courts shall respec- 
 tively enter upon their duties on the first Monday of July next 
 iheri after ; but the term of ollice of said judges, clerk and Justices 
 aH declared by this ('onslitution, shall be deemed to commence on 
 the firMt day of .laiiuary, one thousand eight hundred and forty- 
 eight. 
 
 .•^ei tioii .') On Ihe first Monday of July, one tiiousand eight liun- 
 dred and forty-seven, jurisdiction of all suits and proceedings then
 
 ART. 14.— MISCELLANEOUS. XXXiii 
 
 pending in the present Supreme Court and Court of Chancery, and 
 all suits and proceedings origfinally commenced and then pending in 
 any Court of Common Pleas, (except in the city and county of New 
 York,) shall become vested in the Supreme Court hereby estab- 
 lished. Proceedings pending in courts of Common Pleas, and in 
 suits originally commenced in Justices' courts, shall be transferred 
 to the county courts provided for in this Constitution, in such man- 
 ner and form, and under such regulation, as shall be provided by 
 law. The courts of Oyer and lerminer hereby established shall, 
 in their respective counties, have jurisdiction, on and after the day 
 last mentioned, of all indictments and proceedings then pending in 
 the present courts of Oyer and Terminer; and also of all indict- 
 ments and proceedings then pending in the present courts of gene- 
 ral sessions of the peace, except in the city of New York, and ex- 
 cept in cases of which the courts of sessions hereby established 
 may lawfuliy take cognizance ; and of such indictments and pro- 
 ceedings the courts of sessions hereby established shall have juris- 
 diction on and after the day last mentioned. 
 
 Section 6. The chancellor and the present Supreme Court shall Chancellor and 
 respectively have power to hear and determine any of such suits and couruo^de^ide** 
 proceedings ready on the first Monday of July, one thousand eight suits ready for 
 hundred and forty-seven, for hearing or decision, and shall, for their hearing, 
 services therein, be entitled to their present rates of compensation 
 until the first day of July, one thousand eight hundred and forty- 
 eight, or until all such suits and proceedings shall be sooner heard 
 and determined. Masters in chancery may continue to exercise Masters and ex- 
 the functions of their office in the Court of Chancery so long as the aminers. 
 Chancellor shall continue to exercise the functions of his office un- 
 der the provisions of this Constitution. 
 
 And the Supreme Court hereby established shall also have power Supreme Court 
 
 to hear and determine such of said suits and proceedings as may be ""^^ *'^° decide 
 
 ., , , , i^ & .; cau'es as pre- 
 
 prescribed by law. scribed by law. 
 
 Section 7. In case any vacancy shall occur in the office of chan- vacancy in 
 cellor or Justice of the present Supreme Court, previously to the office of Chan- 
 first day of July, one thousand eight hundred and forty-eight, the <^s"°'^- 
 Governor may nominate, and by and with the advice and consent 
 of the Senate, appoint a proper person to fill such vacancy. Any 
 judge of the court of appeals or Justice of the iSupreme Court, 
 elected under this Ci>nstilution, may receive and hold such appoint- 
 ment. 
 
 Section 8. The offices of chancellor, Justice of the existing Su- Office of Chan- 
 preme Court, circuit judge, vice-chancellor, assistant vice-chancel- [he'exildn^'^S^u 
 lor, judge of the existing county courts of each county. Supreme premeCoun,&c. 
 Court commissioner, master in chancery, examiner in chancery, and abolished. 
 surrogate, (except as herein otherwise provided,) are abolished from 
 and after the first Monday of July, one thousand eight hundred 
 and forty-seven (1847.) 
 
 Section 9. The Chancellor, the Justices of the present Supreme Chancellor, &c., 
 Court,, and the circuit judges, are hereby declared to be severally at'lrstVlection* 
 eligible to any office at the first election under this Constitution. 
 
 Section 10. Sheriffs, cleiks of counties, (including the register and 
 clerk of the city and county of New York,) and Justices of the Peace 
 and coroners, in office when this Constitution shall take effect, shall 
 hold their respective offices until the expiration of the term for 
 which they were respectively elected. 
 
 Section 11. Judicial officers in office when this Constitution shall Judicial ofBcera 
 take effect, may continue to receive such fees and perquisites of 'o receive fees 
 
 till Jiilv 1^47 
 
 office as are now authorized by law, until the first day of July, one ^' 
 
 thousand eight hundred and forty-seven, notwithstanding the provi- 
 sions of the twentieth section of the sixth article of this Constitu- 
 tion. 
 
 Section 12. All local courts established in any city or village, in- Local courts in 
 eluding the Superior Court, Common Pleas, sessions and surrogate's '^'"^fo'temain*' 
 courts of the city and county of New York, shall remain, until unuj, &«. 
 otherwise directed by the Legislature, with their present powers and 
 
 C
 
 XXXlV 
 
 ART. 14.— MISCELLANEOUS. 
 
 When constitu- 
 tion takes effect. 
 
 jurisdictions ; and the judges of such courts and any clerks thereof 
 in office on the first day of January, one thousand eight hundred 
 and forty-seven, shall continue in office until the expiration of their 
 terms of office, or until the Legislature shall otherwise direct. 
 
 Section 13. This Constitution shall be in force from and including 
 the first day of January, one thousand eight hundred and forty- 
 seven, except as is herein otherwise provided. 
 
 Done in Convention, at the Capitol, in the city of Albany, the 
 ninth day of October, in the year one thousand eight hundred 
 and forty-six, and of the Independence of the United States of 
 America the seventy-first. 
 In witness thereof, we have hereunto subscribed our names. 
 JOHN TRACY, President, 
 And Delegate from the county of Chenango. 
 James F. Starbuck, \ 
 H. W. Strong, > Secretaries. 
 
 Fr. Seger, j 
 
 State of New York, ? 
 Secretary's Office. ^ 
 I have compared the preceding with the original engrossed Con- 
 stitution, deposited in this office on the ninth day of October, 1846, 
 and do certify that the same is a correct transcript therefrom, and 
 of the whole of said original. 
 
 Given under my hand and seal of office, at the city of 
 [l. s.] Albany, the tenth day of October, in the year of our Lord 
 one thousand eight hundred and forty-six. 
 
 N. S. BENTON, Secretary of State.
 
 A 
 
 TREATISE 
 
 ON THE 
 
 CIVIL JURISDICTION 
 
 OF 
 
 JUSTICES OF THE PEACE, &c.
 
 TREATISE. 
 
 PART I. 
 
 OF THE CIVIL JURISDICTION OF JUSTICES OF THE PEACE. 
 UNDER THE STATUTES AND CODE OF PROCEDURE. 
 
 CHAPTER I. 
 
 OF THE JURISDICTION OF JUSTICES OF THE PEACE. 
 
 I shall treat the subjects of this chapter under the following 
 heads : 
 
 1. Of Justices' Courts. 
 
 2. What Relates to Justices Personally. 
 
 3. Of the Parties luho may Sue or he Sued. 
 
 4. The Atnomit in Controversy. 
 
 1. Of Justices' Courts. 
 
 Courts of Justices of the Peace are Courts not of record : 
 and Courts of limited jurisdiction. 
 
 The parties, as a general rule, make their complaint and 
 answer orally. A minute of the pleadings is entered by the 
 Justice in his docket. What transpires subsequently in Court, 
 in the progress of a cause, to its final termination, is also entered 
 by the Justice in his docket. This, properly speaking, is the 
 only record of the proceedings. 
 
 If the pleadings are written, they are filed with the Justice. 
 The filing of a paper is the noting on the back of it the time 
 when it is filed, thus, " Filed January 1st, 1849." (Edw. Tr., 
 3d ed., 155.) 
 
 Justices' Courts can take nothing by implication ; but are 
 strictly confined to the authority given them by statute. (1 J. 
 Cas. 20. 1 Cai. 191.) The rule is well settled, that if a 
 
 1
 
 2 OF THE JURISDICTION OF 
 
 Justices' Court acts in a matter of which the statute has given 
 it no jurisdiction, its proceedings are absohitely void. (17 J. 
 R. 145. 3 Cow. 309. 11 J. R. 175.) Nor can the parties con- 
 fer jurisdiction by their own acts. Thus, if a Justices' Court 
 try an action for slander, hbel or assault and battery, the pro- 
 ceedings are void, though the parties appear and consent to go 
 to trial. (3 Cow. 206. 1 Wend. 210. 8 J. R. 409. 14 J. R. 
 432.) 
 
 2. What Relates to the Justice Personally. 
 
 Persons were regularly appointed as conservators to keep the 
 peace, at a very early date. In the reign of Edward III., it was 
 ordained that two or three persons of the best reputation in 
 each county, should be assigned to be keepers of the peace, 
 once in three years. (1 Black. Com. 352.) 
 
 In this country, the constitution of New York, of 1777, pro- 
 vided that new commissions should be issued to Justices of the 
 Peace, once in three years. (Const., art. 28.) 
 
 Laws of similar import were passed by the legislature of this 
 state in 1801. In 1813, it was enacted that. in every county of 
 this state, fit and discreet men should, from time to time, be ap- 
 pointed and commissioned Justices to keep the peace in said 
 counties. (Laws of 1813, Vol. 2, 506.) 
 
 Until 1818, Justices of the Peace in this state were county 
 officers. In that year, the legislature, upon the recommendation 
 of the Governor, passed a law limiting the number of Justices 
 to four in each town in a county. (Laws of 1818, 50.) 
 
 A Justice of the Peace, so far as relates to his place of busi- 
 ness, is a town officer. (6 Cow. 642.) He must live in the town 
 for which he was chosen ; and cannot try a civil cause in any 
 other town. (1 R. S. 105.) 
 
 There is no law limiting a Justice to act in his own town, 
 except in the trial of a civil cause. His territorial jurisdiction 
 is still co-exlcnsivc with the county in which he is elected. 
 Process may be issued by him in any part of the county, and 
 it may bo served in any part of the county. (1 Wend. 319, 
 322.) He sbould howc^vcr take care, in civil cases, to make his 
 process rcluniabic in the town in which lie resides. 
 
 A Justice can issue no process in a civil suit, which will be 
 operative out of his county, except a subpoena, which may be
 
 JUSTICES OF THE PEACE 3 
 
 served in the county next adjoining that in which the cause is 
 
 to be tried. (2 R. S. 337.) 
 
 The office of a Justice will not be vacated in consequence of 
 an increase or diminution of his territorial jurisdiction, by the 
 erection of a new town, or the annexing of parts of one town 
 to another. Where a town is transferred from one county to 
 another, or a new county made out of several towns, the Jus- 
 tices of these towns continue to hold their offices as Justices of 
 the town or towns in the new counties. (1 R. S. 113, 114.) 
 
 There are at present four Justices of the Peace in each town 
 in this state ; one of whom is annually elected at the annual 
 town meeting held in each town ; and no vacancies can be filled 
 at any other time. (IR.S. 113. Id. 392. 9 Cow. 640. 2 Hill, 366.) 
 Each Justice holds his office four years, except when elected to 
 fill a. vacancy, or on the erection of a new town. (1 R. S. 113.) 
 
 Justices of the Peace may be removed by the Supreme Court 
 at any general term thereof, for causes to be assigned in the 
 order of removal. (Session Laws, 1847. Judiciary Act, 325.) 
 
 If a Justice become a tavern-keeper in fact, after his election, 
 he is disqualified thereby from doing any official act in a civil 
 suit, except that he may issue execution upon a judgment ac- 
 tually rendered by him before he became so disqualified. (2 R. 
 S. 325.) The words in the statute "in fact," are intended to 
 settle the question which might in some cases arise respecting a 
 license ; for if he actually commences keeping a tavern after his 
 election, without a license, he is within the restrictions of the 
 statute. (13 J. R. 218.) 
 
 A judgment would be reversed, if it should appear that the 
 Justice has a direct interest in the amount recovered. But a 
 remote and contingent interest would not disqualify him. (11 
 J. R. 76.) 
 
 No action to recover a penalty given to a town, can be 
 brought before a Justice residing in the town, for the benefit of 
 which the same is prosecuted : it must be brought before some 
 Justice residing in another town of the same county. (1 R. S. 459.) 
 
 The foregoing rule only applies to penalties given to a town 
 directly in its corporate capacity ; and not to cases where the 
 penalty is directed to be prosecuted by town officers, and appro- 
 priated to specific purposes ; such as penalties to be prosecuted 
 for by overseers of the poor, for the use of the poor ; by com-
 
 4 OF THE JURISDICTION OF 
 
 missioners of highways for the repair of roads and bridges, 
 <fcc. (6 Hill, 58.) 
 
 Relationship to one of the parties to a snit before him, dis- 
 qualifies a Justice from trying the cause ; and if he should 
 persist in trying the cause after the fact of too near relationship 
 appeared, the judgment he might render would be reversed. (17 
 J. R. 133.) 
 
 Relationship to one of the parties, to disqualify a Justice, 
 must be so near as to amount of itself to a strong presumption 
 of partiality and fraud. It is no objection that the Justice is 
 half-uncle to the plaintiff's wife. In a case where the Justice 
 was father-in-law of the plaintiff, the Supreme Court held his 
 authority as questionable. (13 J. R. 191.) In another case, the 
 (^ourt say, that the Justice who admitted that he was son-in-law 
 of the plaintiff, and insisted on retaining jurisdiction, was of itself, 
 evidence that the trial was not fair and impartial. (19 J. R. 172.) 
 No Judge of any Court can sit as such in any cause to which 
 he is a party, or in which he is interested, or in which he would 
 be excluded from being a witness, by reason of consanguinity 
 or affinity to either of the parties. (2 R. S. 373.) 
 
 Where a Justice had given an opinion in the cause, it was 
 held to be no ground of challenge. Otherwise, if a Justice's 
 opinion had been sought and obtained in relation to the matter 
 in controversy : also, where the party had made a statement of 
 facts and taken from the Justice any direction whatever con- 
 cerning them, though it be merely as to a course of proceeding 
 to obtain redress. (17 J. R. 137.) 
 
 The want of jurisdiction in the Justice may be shown at any 
 stage of the proceedings. 
 
 When a Justice has no jurisdiction and undertakes to act, his 
 acts are void equally as though he were not a Justice ; but if 
 he has jurisdiction and errs in exercising it, then his acts are 
 not void but voidable, and can be taken advantage of only by 
 appeal, or otherwise. (17 J. R. 14.5.) In the former case, he is 
 j)orsonally liable in an action for any injury arising from his 
 acts ; in the latter not. (3 Cow. 206.) 
 
 A Justice may l)c liable as a trespasser when there is not a 
 total want of jurisdiction, but some proceeding or proof is want- 
 ing which is necessary in order to give him authority to act in 
 the particular case. As if he issue an attachment witliout any 
 proof of absconding or concealment, whicli is executed, not
 
 JUSTICES OF THE PEACE. 5 
 
 only the Justice, but also the plaintiff, would be liable as tres- 
 passers. (11 J. R. 175. Edw. Tr., 3d ed., 18.) The constable 
 who served the attachment, being only a ministerial officer, 
 would be protected. (3 Cow. 206.) 
 
 3. Of the Parties who may Sue or be Sued. 
 
 Every action must be prosecuted in the name of the real 
 party in interest. (Code, sec. 111.) A mere agent, therefore, 
 cannot maintain an action in his own name, though the engage- 
 ment be made to him as the agent of another ; unless he have a 
 beneficial interest in the contract ; in which case, either he or 
 his principal may sue. 
 
 To the foregoing rule there is the following exception : 
 
 An executor or administrator, a trustee of an express trust, or 
 a -person expressly authorized by statute^ may sue, without 
 joining with him the persons for whose benefit the suit is prose- 
 cuted. (Code, sec. 113.) 
 
 All town and county officers are expressly authorized by 
 statute to sue in Justices' Courts, in their official character. 
 (2 R. S. 325, sec, 6.) Suits may be brought by the Super- 
 visors of the county — the Loan Officers or Commissioners of 
 Loans of a county — the county Superintendents of the Poor 
 — Commissioners of Common School? — Commissioners of High- 
 ways — Trustees of School Districts — Town Superintendents of 
 Common Schools — upon any contracts made with them or their 
 predecessors, in their official character ; to enforce any liability, 
 or any duty enjoined by law to such officers, or the body they 
 represent ; and to recover damages for any injuries done to the 
 property or right of such officers, or the bodies represented by 
 them. (2 R. S. 569.) 
 
 The officers above named are authorized to bring such 
 actions in the name of their respective offices, notwithstanding 
 the contract or obligation on which the same is founded, may 
 have been made with or to any of their predecessors in office, in 
 their individual name, or otherwise. But in all cases the action 
 should be brought in the name of the officer with the addition 
 of his name of office, and not merely in the name of the 
 office. (2 R. S. 569, sec. 107. 4 Hill, 136.) 
 
 All persons having an interest in the subject of the action, 
 and in obtaining the relief demanded, may be joined as plain- 
 tiffs. (Code, sec. 117.)
 
 6 OF THE JURISDICTION OF 
 
 Any person may be made a party defendant who has or 
 claims an interest in the controversy adverse to the plaintiff, 
 or who is a necessary party to a complete determination or 
 settlement of the questions involved therein. (Code, sec. 118.) 
 A plaintiff, therefore, may proceed in the same suit against a 
 surviving partner and the representative of a deceased partner. 
 
 Of the parties to the action, those who are united in interest 
 must be joined as plaintiffs or defendants ; but if the consent of 
 any one, who should have been joined as plaintiff, cannot be 
 obtained, he may be made a defendant, the reason thereof being 
 stated in the complaint ; and when the question is one of a 
 common or general interest of many persons, or when the parties 
 are very numerous, and it may be impracticable to bring them 
 all before the court, one or more may sue or defend for the 
 benefit of the whole. (Code, sec. 109.) 
 
 Persons severally liable upon the same obligation or instru- 
 ment, including the parties to bills of exchange and promissory 
 notes, may all or any of them be included in the same action, 
 at the option of the plaintiff. (Code, sec. 120.) 
 
 When a married woman is a party, her husband must be 
 joined with her ; except that, 
 
 1. When the action concerns her separate property, she may 
 sue alone. 
 
 2. W^hen the action is between herself and husband, she may 
 sue or be sued alone. (Code, sec. 114.) 
 
 Actions may be brought in Justices' Courts bi/ executors and 
 administrators, but not against them. (Code, sec. 54.) 
 
 Although suits against executors and administrators, as such, 
 are excluded from the jurisdiction of a Justice, yet if suits be 
 brought by them before a Justice, the defendant may plead a 
 set-off; and if he prevails, may have judgment against them in 
 their representative character, which will be evidence of a debt 
 established, to be paid in the course of administration. (2 R. 
 S. 333, sec. .57.) 
 
 Actions cognizable before a Justice, may be brought against 
 all town and county ofTicers. (2 R. S. 325, sec. 6.) The actions 
 may be brouglit against them individually, specifying in the 
 process, pleadings and ])rocoedings, their name of office ; and 
 such actions may be commenced in the same manner as against 
 individuals. (2 R. S. SHO.) 
 
 Actions may now be brought in Justices' Courts against, as
 
 JUSTICES OF THE PEACE. 7 
 
 well as by corporations. (Const., art. 8, sec. 3.) Process against 
 corporations may be issued as in other cases ; and may be served 
 on the president or other head of the corporation, secretary, 
 cashier, or managing agent thereof. 
 
 A county and town are corporations. Actions against a 
 county must be brought against its board of supervisors ; pro- 
 cess being served upon the chairman or clerk of the board. 
 Actions against a town must be brought against such town by 
 its name. (2 R. S. 569, sec. 109.) Where, however, county and 
 town officers are authorized by law to sue by their name of 
 office, suits may be brought by and against such officers. (1 R. 
 S. 376.) 
 
 A Justice has jurisdiction of every person found in the county 
 whether a resident or not. Every action, however, must be 
 brought before some Justice of the town wherein either 
 
 1. The plaintiffs, or any one of them reside ; or 
 
 2. Where the defendants, or any one of them reside ; or 
 
 3. Before some Justice of another town, in the same county, 
 next adjoining the residence of the plaintift'or defendant. (2 R. 
 S. 325, sec. 9.) 
 
 The preceding rule has the following exceptions : 
 
 1. If the defendant has absconded from his residence, the 
 action may be brought before a Justice of the town in which 
 such defendant, or Ms jyroperti/, may be. 
 
 2. If the plaintiffs be all non-residents of the county, or the 
 defendant be a non-resident of the county, then such action may 
 be brought before any Justice of the town in which such plain- 
 tiffs or defendants may be. (2 R. S. 326, sec. 10.) 
 
 4. The Amount in Controversy. 
 
 Suits may be brought before a Justice of the Peace, when 
 the debt or balance due, or the damages claimed, do not exceed 
 one hundred dollars. This includes actions commenced by 
 attachment of property. (Code, sec. 53.) 
 
 An action may be maintained before a Justice upon a bond, 
 conditioned for the payment of money, not exceeding one 
 hundred dollars, though the penalty exceed that sum ; the judg- 
 ment to be given for the sum actually due. Where the pay- 
 ments are to be made by instalments, an action may be brought 
 for each instalment, as it shall become due. (Id. sec. 53, art. 5.)
 
 8 OF THE JURISDICTION OF, &c. 
 
 Justices' Courts have jurisdiction on all surety bonds taken 
 by them, whatever may be the amount claimed. (Id. sec. 53, 
 art. 6.) 
 
 If a Justice, excepting in the last case mentioned, issue pro- 
 cess, stating a cause of action for more than one hundred 
 dollars, it is a nullity, and the defendant need pay no attention 
 to it. (6 Hill R. 631.) 
 
 If the plaintiff state his demand at more than one hundred 
 dollars, but claim damages only to one hundred, the Justice has 
 jurisdiction. So the plaintiff may sue on a demand exceeding 
 one hundred dollars, and reduce it to the Justices' jurisdiction 
 by voluntary credit or deduction. (1 John. Cas. 25, 113. 12 
 J. R. 425. 24 Wend. Rep. 113.) But it is not to be under- 
 stood that the plaintiff is obliged, when he commences his suit, 
 to endorse or otherwise reduce his demand to one hundred 
 dollars ; for this might give the defendant, if he has a set-off. 
 an undue advantage. The parties may present and prove their 
 demands as they are, and if a balance is found, exceeding the 
 Justices' jurisdiction, the excess may be remitted, and judgment 
 taken for the residue. (Justices' Manual, 3d ed., 13.) 
 
 One indivisible contract, as a promissory note for one hundred 
 and twenty-five dollars, or the sale at one time of several barrels 
 of pot-ashes, cannot be made the foundation of several suits, so 
 as to recover part in one suit, and part in another. Only one 
 suit can be brought on an entire contract. (Justices' Manual, 
 3d ed., 13. 16 J. R. 121. 15 id. 229.) This rule, however, is only 
 applicable to adversary suits. (7 Cow. 310.) The parties may, 
 by mutual agreement, divide a large demand into any number 
 of smaller ones which may suit their convenience, and the de- 
 fendant confess separate judgments therefor. 
 
 A Justice has no jurisdiction where the sum total of the 
 accounts of both parties, proved to the satisfaction of the Justice, 
 shall exceed four hundred dollars. But where accounts have 
 been settled, the balance is the only subsisting account ; and 
 unless this balance and the suliscqucnt accounts, exceed four 
 hundred dollars, the Justice has jurisdiction. (Code, sec. 54. 
 2 Cow. 431.) 
 
 '"I'iic Justice can now, as formerly, take and enter judgment 
 on confession of a defendant, where the amount confessed does 
 not exceed two hundred and fifty dollars. (Code, sec. 53.)
 
 CHAPTER II. 
 
 THE FORM AND GENERAL PRINCIPLES OF SUITS. 
 
 This chapter comprises the following subjects : 
 
 1. Abolishment of Forms of Action. 
 
 2. Actions cognizable by Justices' Courts. 
 
 3. Law of Contract. 
 
 4. Doctrine of Partnerships. 
 
 5. Warranty on Sale of Goods. 
 
 6. Definition and Nature of Bonds. 
 
 7. Law in Relation to Promissory Notes. 
 
 8. Matters of Account. 
 
 9. Law in Relation to Interest on Money and Accounts. 
 
 10. Of Direct Injuries ; to Personal Property ; to Real Pro- 
 perty. 
 
 11. Of Indirect Injuries ; to the Person ; to Personal Pro- 
 perty ; to Real Property. 
 
 12. Law in Relation to Statute Penalties. 
 
 13. Actions not cognizable by Justices' Courts. 
 
 14. Of Liabilities created by Statute other than a Penalty 
 or Forfeiture. 
 
 The forms of actions hitherto existing in this state, are abol- 
 ished ; and there is now, for the enforcement and protection of 
 private rights, and the redress of private wrongs, but one form 
 of action, which is denominated a civil action. (Code, sec. 69.) 
 
 The nature of the injury complained of, and the remedy 
 sought, must now be derived from the plain, ordinary import of 
 the language used in the process and pleadings. If the action 
 be brought on a contract of any kind, it may be called an action 
 on a contract ; if for taking, detaining, or injuring personal pro- 
 perty, an action for taking, (detaining,) (or injuring) personal 
 property ; if for injury to real property, an action for injury to 
 real jjroperty. (Id. sec. 53.) 
 
 The actions cognizable by a Justices' Court, are those arising 
 
 1. On Contract ; including actions on judgments rendered 
 hy Courts of Justices of the Peace, or of Justices' or 
 other inferior Courts in cities.
 
 10 THE FORM AND GENERAL 
 
 2. For cm injury to the person or to real property, or for 
 
 taking, detai7iing; or injuring personal j)roperty. 
 
 3. Prom the incurring of some penalty given by statute. 
 
 4. Such as are prosecuted by attachments. 
 
 1. On Contracts. 
 
 A contract is an agreement of two or more persons, upon a 
 sufficient consideration, to do or not to do a particular thing. 
 (Blk. Com. 442. 2 Kent Com. 458.) 
 
 Contracts are divided into agreements by specialty and agree- 
 ments l)y parol. In the former are included all agreements in 
 writing, under seal ; in the latter, all other agreements, whether 
 written, spoken, or merely implied by law. These last are also 
 called simple contracts. 
 
 No precise or formal words are necessary to constitute a spe- 
 cialty, or agreement under seal, more than any other agreement ; 
 and the bare putting a seal to a promissory note, actually 
 changes the nature of the contract, and makes that a specialty, 
 which otherwise would have been a simple contract or promise. 
 
 The chief distinction between parol contracts and contracts 
 under seal is, that in the latter from the solemnity of the instru- 
 ment, a consideration is presumed, until the contrary is shown. 
 Formerly, a consideration was so strongly presumed from an 
 instrument under seal, that the want of a consideration could 
 not be averred. Now, however, the want of consideration in a 
 sealed instrument may be shown equally as if the instrument 
 were not scaled. (2 R. S. 504, sec. 96. Note to 2 Kent Com. 
 450.) 
 
 Parol contracts are either express or implied. Express con- 
 tracts are where the terms of the agreement are openly uttered 
 and avowed at the time of the making ; as, to deliver ten loads 
 of timber, or to pay a stated price for certain goods. Implied 
 contracts are such as reason and justice dictate ; and which, 
 therefore, the law presumes that every man undertakes to per- 
 form. As, if I employ any person to do any business for me, 
 or perform any woric ; the law implies that I undertook or con- 
 tracted to pay him as much as his labor deserves. There is 
 one species of iinplied contracts that runs through and is an- 
 nexed to all other contracts, to wit : that, if I fail hi my part of
 
 PRINCIPLES OF SUITS. H 
 
 the agreement, I shall pay the party such damages as he has 
 sustained by such my neglect. (2 Black. Com. 443.) 
 
 A contract may also be either executed — as, if A. agree to 
 change horses with B., and they do it immediately ; in which 
 case the possession and the right are transferred together — or it 
 may be executory — as if they agree to change next week ; here 
 the right only vests, and their reciprocal property in each other's 
 horse, is not in possession, but in action. (Id.) 
 
 In all contracts, either express or implied, there must be some- 
 thing given in exchange, as the price or motive of the contract, 
 which is called the consideration. A consideration of some sort 
 or another is so absolutely necessary to the forming of a contract, 
 that an agreement to do or pay any thing on one side, without 
 any compensation on the other, is totally void in law ; and a 
 man camiot be compelled to perform it. (2 Black. Com. 444, 
 445.) 
 
 The rule that a consideration is necessary to the validity of 
 a contract, applies to all contracts and agreements not under 
 seal, with the exception of bills of exchange and negotiable 
 notes, after they have been negotiated, and passed into the 
 hands of an innocent endorsee. The immediate parties to a 
 bill or note, equally with parties to other contracts, are affected 
 by the want of consideration ; and it is only to third persons 
 who come to the possession (ff paper in the usual course of 
 trade, without notice of the original defect, that the want of 
 consideration cannot be alleged. (2 Kent, 464.) 
 
 Any trifling consideration, however, is sufficient to prevent 
 the agreement from being void ; and the least benefit to the 
 party promising, or some trouble or prejudice to the party to 
 whom the promise is made, will be sufficient to sustain a 
 promise. (2 Kent 465. 4 East, 455.) 
 
 A mutual promise amounts to a sufficient consideration, pro- 
 vided the promises be concurrent in point of time, and in that 
 case, the one promise is a good consideration for the other. 
 Where several persons subscribe to raise money for an object in 
 which all feel an interest, the mutual promises of the subscri- 
 bers form a valid consideration for the promise of each. But 
 the agreement of a single person to make a donation to a public 
 institution, without any undertaking on the part of the donor 
 to do any thing, is without consideration and void. (2 Denio, 
 416, 417.) If an agreement be optional as to one of the parties
 
 12 THE FORM AND GENERAL 
 
 and obligatory as to the other, it does not destroy its mutuaUty, 
 if there be a sufRcient consideration on both sides ; as if one 
 party stipulates that he will deliver salt when called on, and 
 the other that he will pay for the salt so delivered, this is mu- 
 tuality, and one promise is in consideration of the other. (3 
 Tenn. R. 19.) If two concurrent acts are stipulated, as delivery 
 by the one party and payment by the other, no action can be 
 maintained by either Avithout showing a performance, or what 
 is equivalent to a performance of his part of the agreement. 
 If the act or duty to be performed by A., and in consideration 
 of which B. promises to pay, be such that it cannot, or from its 
 nature may not be performed, before the time fixed for the pay- 
 ment by B., then A. may sue for the money without averring 
 performance. But if the time be fixed for the payment to be 
 made in consideration of the act, and the act be of such a nature 
 that it may be done presently, and before the time of payment, 
 then the act becomes a precedent condition to the payment. 
 (Note to 2 Kent, 465.) If, therefore, A. agree with B. to split 
 five thousand rails, and B, agrees that on the said loork being 
 completed, he will pay A. fifty dollars, the performance of the 
 work by A. is a condition precedent, which, in an action for the 
 fifty dollars, he must aver and prove performed, or at least, an 
 offer to perform, and that he was prevented from performing by 
 some act or neglect of B. But if, on the other hand, B. had 
 agreed to pay A. the fifty dollars on the 15th of March, and A. 
 had agreed to have the five thousand rails split on the 1st of 
 April, A. can recover the fifty dollars, although he had not 
 touched the work, and B, is left to his cross action against A. 
 on the contract. 
 
 If the contract is wholly passed and executed before the 
 promise is made, it is not sufficent, unless the consideration 
 arose at the instance or request of the party promising ; and 
 that request must have been expressly made, or necessarily 
 implied from the moral obligation under which the party was 
 ])laced, and the consideration must have been beneficial to the 
 one party, or onerous to the other. 
 
 A snb.sisling legal obligation is a sufiicient consideration for 
 a promise to do it ; but it has been an unsettled point whether 
 a mere moral obligation be, of itself, a sufficient consideration 
 for a promise, exce])t in those cases in which a prior legal obli-
 
 PRINCIPLES OF SUITS. 13 
 
 gation or consideration had once existed. (2 Kent, 465.) The 
 weight of authority is, that it is not sufficient. (Id.) 
 
 The consideration must not only be valuable, but it must be 
 a legal consideration ; and not repugnant to law or sound 
 policy, or good morals. If the contract grows immediately out 
 of, or is connected with, an illegal or innuoral act, a court of 
 justice will not enforce it. (Id.) 
 
 The court will allow the objection that the consideration of 
 the contract was immoral or illegal to be made even by the 
 guilty party to the contract ; for the allowance is not for the 
 sake of the party who raises the objection, but is founded on 
 general principles of policy. (2 Blk. 34.) 
 
 ARTICLE OP AGREEMENT FOR THE SALE OF REAL ESTATE. 
 
 Article of agreement entered into this 1st day of May, 1849, 
 between John Doe, of the town of Oxford, county of Chenango, 
 of the first part, and Richard Roe, of the same place, of the 
 second part, as follows : 
 
 The said John Doe hereby agrees with the said Richard Roe, 
 to sell him — \Jiere describe the premises] — for the sum of — 
 \Jiere state the sum agreed to he paid, and the time and man- 
 ner of payment, and how ariy sum remaining unpaid is to be 
 secured] — and that he the said John Doe, shall and will on 
 the 5th day of May, instant, upon receiving from the said 
 Richard Roe the said sum of, (fcc, at his own cost and expense, 
 execute a proper conveyance for the conveying and assuring the 
 fee simple of the said premises to the said Richard Roe, free 
 from all incumbrances, which conveyance shall contain a 
 general warranty and the usual full covenants. 
 
 And the said Richard Roe agrees with the said John Doe 
 that he, the said Richard Roe shall, on the said 5th day of 
 May, instant, and on the execution of said conveyance, will 
 pay and secure to be paid unto the said John Doe, the said sum 
 of , at the times and in the manner aforesaid. 
 
 And it is further agreed, by and between the parties hereto, 
 as follows : The said John Doe is to have and retain the pos- 
 session of the said premises, and receive and be entitled to the 
 rents and profits thereof, until the said 5th day of May, instant, 
 when the possession of the said premises is to be delivered to 
 the said Richard Roe.
 
 14 THE FORM AND GENERAL 
 
 In witness whereof the parties have hereunto set their hands 
 and seals the day and year first above mentioned. 
 
 John Doe, [l. s.] 
 Richard Roe, [l. s.] 
 Sealed and delivered in the presence of 
 Henry Rogers. 
 
 agreement on the sale of hay. 
 
 It is hereby agreed by and between John Smith, of the town 
 of Hempstead, county of Queens, and Samuel Hardy, of the 
 same place, that he, the said Hardy, in consideration of eight 
 tons of clover hay, to him this day sold by the said Smith, and 
 by him agreed to be delivered to the said Hardy, free of all 
 charges and expenses at his, the said Hardy's dwelling house, 
 on or before the 5th day of June, instant — shall and will pay, 
 or cause to be paid, to the said Smith, or his assigns, the sum of 
 fifty-six dollars, on the delivery of the said hay. 
 
 And the said John Smith, in consideration of such agreement 
 on the part of the said Samuel Hardy, promises and agrees, on 
 or before the 5th day of June, instant, at his own proper 
 expense, to deliver to the said Hardy, or his assigns, the said 
 eight tons of hay so sold him, and that he, the said John Smith, 
 warrant the same to be of good quality. 
 
 In witness whereof, the parties above named have hereunto 
 set their hands, this 1st day of June, 1849. 
 
 John Smith. 
 Samuel Hardy. 
 
 agreement for labor. 
 
 It is hereby agreed between John Long and Peter Pray, as 
 follows: The said John Long, for the consideration hereinafter 
 mentioned, agrees and promises to continue Avith, and faithfully 
 labor for and serve the said Peter Pray in the business of shoe- 
 rnaking, for the space of six months, to begin on the first day 
 of May, one thousand eight hundred and forty-nine. 
 
 And Uh; said Peter Pray in consideration of the above agree- 
 menls and ]tioiiiisr\s, agrees and promises lo and with the said 
 John Long, th;it Im; will fiiniisli him good and snilab](> board, 
 lodging and washing, at the expense of the said Peter Pray,
 
 PRINCIPLES OF SUITS. 15 
 
 and pay him, or those legally entitled to receive his wages, the 
 sum of ninety dollars to be paid on the first day of November, 
 one thousand eight hundred and forty-nine. 
 
 And it is mutually agreed between the above parties, that if 
 either shall not desire to continue the term of service beyond 
 the time above mentioned, that he shall give the other notice 
 thereof twenty days before the expiration of the said term. 
 
 John Long. 
 
 Peter Pray. 
 
 contract for building a house. 
 
 Be it remembered, that on the first day of March, eighteen 
 hundred and forty-nine, it is agreed between John Doe, of the 
 village of Binghamton, county of Broome, and Richard Roe, as 
 follows : The said Richard Roe, for the considerations herein- 
 after mentioned, does for himself, his heirs, executors and ad- 
 ministrators, covenant with the said John Doe, his executors, 
 administrators and assigns, that he, the said Richard Roe, or 
 his assigns, shall and will, within the space of three months 
 next after the date hereof^ in a good and workmanlike manner, 
 and at his own proper charge and expense, well and substan- 
 tially erect, build and finish a dwelling house on the premises 
 of the said John Doe in Binghamton aforesaid, of the following 
 description — [or according to the plan hereutito annexed] — with 
 such materials as the said John Doe shall furnish ; in considera- 
 tion whereof, the said John Doe does for himself, his executors, 
 administrators and assigns, promise well and truly to pay unto 
 the said Richard Roe, or his assigns, the sum of fifteen hundred 
 dollars, in manner following — [here insert the time and 7nanner 
 of payment.] 
 
 In witness whereof the parties have hereunto set their hands 
 and seals, the day and 3^ear first above written. 
 
 John Doe, [l. s.] 
 Richard Roe, [l. s.] 
 
 Sealed and delivered in presence of 
 James Brady. 
 
 Partnership. 
 
 Partnership is a contract between two or more persons to 
 place their money, effects, labor, and skill, or some or all of
 
 16 THE FORM AND GENERAL 
 
 them, in any lawful commerce or business, and to divide the 
 profit, and bear the loss in certain proportions. It is not essen- 
 tial to a legal partnership that it be confined to commercial 
 business. It may exist between attorneys, mechanics, owners 
 of a line of stage coaches, or farmers, as well as between mer- 
 chants and bankers. (2 Blk. 240, part 3. Kent, 23, et seq. 
 Story on Partnership, 2, et seq.) There may be a general part- 
 nership at large, by which the parties agree to make a common 
 stock of all the property they respectively possess, or it may be 
 limited to a particular branch of business, or to one particular 
 subject. If two persons draw a bill of exchange, they are 
 considered partners in respect of the bill, though in every other 
 respect they remain distinct. (Id.) 
 
 The two leading principles of a contract of partnership are, a 
 common interest in the stock of the company, and a personal 
 responsibility for the partnership engagements. If one person 
 advances funds and another furnishes his personal services or 
 skill in carrying on a trade, and is to share in the profits, it 
 amounts to a partnership. It would be a valid partnership, 
 notwithstanding the whole capital was in the first instance 
 advanced by one party, if the other contributed his time and 
 skill to the business ; and although his proportion of gain and 
 loss was to be very unequal. A joint possession however, does 
 not of itself constitute a partnership : and therefore surviving 
 partners and the representatives of a deceased partner, are not 
 partners, notwithstanding they have a community of interest in 
 the joint stock. If several persons who had never met and 
 contracted together as partners, agreed to purchase goods in the 
 name of one of them only, and to take aliquot shares of the 
 purchase, and employ a common agent for the purpose ; they 
 do not by that act, become partners as answerable to the seller 
 in that character, provided they are not to be jointly concerned 
 in tlie re-salc of their shares, and have not permitted the agent 
 to hold them out as jointly answerable with himself. But if 
 the purchase be on separate and not on joint account, yet if the 
 interests of the purchasers arc afterwards mingled with a view 
 to a joint sale, a partnership exists from the time that the shares 
 are brought into a common mass. (3 Kent, 24, 25, 20. 9 J. R. 
 307. 10 id. 220. 15 id. 409. 4 Paige, 148. 1 Hill, 472. 3 id. 
 102.) 
 
 Persons are answerable to the world as partners, if they hold
 
 PRINCIPLES OF SUITS. 17 
 
 themselves out as joint traders, whatever may be the real nature 
 of then- connection, or of the agreement under which they act ; 
 for by lending their names as partners they may induce third 
 persons to give that credit to the firm which otherwise it would 
 not receive, nor perhaps deserve. As between themselves how- 
 ever, actual intention is requisite to constitute a partnership. 
 (3 Kent, 32. 9 J. R. 470. 1 Wend. 457.) 
 
 The contract of partnership need net be in writing. Though 
 there be no separate articles of copartnership, the obligation of 
 a partnership engagement may equally be implied from the acts 
 of the parties. 
 
 Each individual member of a partnership is liable to the 
 whole amount of debts, without reference to the proportion of 
 his interest, or to the nature of the stipulation between them 
 and his associates. It is, however, a well established principle, 
 that when a person joins a partnership as a member, he does 
 not, without a special promise, assume the previous debts of the 
 firm, nor is he bound by them. To render persons jointly liable 
 on a contract as partners, they must have a joint interest cotem- 
 porary with the formation of the contract. (3 Kent 27, 35, 36.) 
 
 The act of each partner in business relating to the partner- 
 ship, is considered the act of and binds all. The act of one 
 partner, thougii on his private account, and contrary to the 
 private arrangement among themselves, will bind all the parties, 
 if made without knowledge in the other party of the arrange- 
 ment, and in a matter which, according to the usual course of 
 dealing, has reference to business transacted by the firm. (3 
 Kent, 40.) And if one partner acts fraudulently with strangers 
 in a matter within the scope of the partnership authority, the 
 firm is nevertheless bound by the contract. The connection 
 itself is a declaration to the world of the good faith and integ- 
 rity of the members of the association, and an implied under- 
 taking to be responsible for the acts of each within the compass 
 of the partnership concern. (Id. 46.) 
 
 A person may in special cases receive part of the profits of 
 the business without becoming a legal or responsible partner. 
 Thus, a person in business may employ another as a subordi- 
 nate, and agree to pay him a share of the profits, if any shall 
 arise, without giving him the rights or liabilities of a partner. 
 So also, a party may by agreement, receive by way of rent, a 
 
 2
 
 18 THE FORM AND GENERAL 
 
 portion of the profits of a farm or tavern, without becoming a 
 partner. (1 Wend. 33.) 
 
 Limited partnerships, for the transaction of any mercantile, 
 mechanical or manufacturing business, may be formed in this 
 state by two or more persons. Such partnerships may consist 
 of one or more persons, who shall be called general partners, and 
 shall be jointly and severally responsible as general partners in 
 other cases, and of one or more persons who shall contribute, in 
 actual cash payments, a speeific sum as capital to the common 
 stock, who shall be called special partners, and who shall not 
 be liable beyond the fund so contributed by him or them to the 
 capital. (2 R. S. 49, sees. 1 and 2.) 
 
 In order to form a limited partnership, a certificate must be 
 made and signed by the parties as in the form hereinafter given. 
 An afiidavit of one or more of the general partners must also be 
 made, stating that the sums specified in the certificate as having 
 been contributed by each of the special partners, have been actual- 
 ly and in good faith paid in cash. The certificate must be ac- 
 knowledged and filed with the affidavits in the office of the 
 clerk of the county in which the business is to be carried on ; 
 and if such business is to be carried on in more than one county, 
 transcripts of the certificate and acknowledgments must be filed 
 in such other counties. The terms of the partnership when 
 registered, are to be published for at least six weeks immediately 
 after such registry, in the newspapers to be designated by the 
 clerk of the county, and to be published in the senate district in 
 which the business shall be carried on. (1 R. S. 49, 50, sec. 4, 
 5, 6, 7, 8, 9. .5 Hill, 309 to id. 479.) 
 
 The general partners only may transact the business of a 
 limited partnership. A special partner may examine into the 
 state of the partnership concerns, and advise as to their manage- 
 ment ; but his name cannot be used in the transactions of the 
 firm ; nor can he interfere in the management thereof, either as 
 agent, attorney, or otherwise, without rendering himself liable 
 as a general partner. The business is to be conducted under a 
 firm in which the names of the general partners only shall be 
 inserted without the addition of the word "Company," or any 
 other gen<ml (rru). (2 R. S. 50, 51, 13, 17. 5 Hill, 309. 6 Id. 
 479.) 
 
 Every association or company formed for the purpose of 
 transpori.'itinn of passengers or property, either by boats, vessels,
 
 PRINCIPLES OF SUITS. 19 
 
 or stages, is required to make a statement of the names of the 
 persons composing such association or company, and to file a 
 copy thereof in the office of the clerk of each county through 
 which its business is transacted. Until such statement be filed 
 no suit will he abated on account of the non-joinder of any of 
 the members of the association or company against which the 
 action may be brought. (Laws of 1836, p. 385.) 
 
 CERTIFICATE OP LIMITED PARTNERSHIP. 
 
 State of NeiD York, Chenango County^ ss. — This is to certify 
 that the undersigned have formed a limited partnership pursu" 
 ant to the statute in such case made and provided, under the 
 name and firm of Long and Day. That the general nature of 
 the business to be transacted, is the buying and selling groceries 
 and such other articles as are usually dealt in by wholesale and 
 retail grocers. That James Long and Joseph Day, who re- 
 spectively reside in the city of Buffalo, are the general partners. 
 
 That Samuel Peters and Henry Brady, who reside at Brook- 
 lyn, county of Kings, are the special partners. That the said 
 Samuel Peters and the said Henry Brady have each contributed 
 the sum of five thousand dollars as capital towards the common 
 stock ; and that the said partnership is to commence on the 1st 
 day of September, 1849, and is to terminate on the 31st day of 
 August, 1854. Dated this 1st day of August, 1849. 
 
 James Long, Samuel Peters, 
 
 Joseph Day, Henry Brady. 
 
 certificate of acknowledgment. 
 
 Chenango County, ss. — On this 1st day of August, 1849, 
 James Long, Joseph Day, Samuel Peters, Henry Brady, known 
 to me to be the persons described in, and who made and signed 
 the preceding certificate, came before me and severally acknow- 
 ledged that they had made and signed the same. 
 
 Alfred B. Ketcham, 
 County Judge of Chenango County. 
 
 AFFIDAVITS TO BE FILED WITH THE CERTIFICATE- 
 
 Chenango County, ss. — James Long being duly sworn, says, 
 that he is one of the general partners named in the above cer-
 
 20 THE FORM AND GENERAL 
 
 tificate, and that the sums specified in said certificate to have 
 been contributed by^each of the special partners to the common 
 stock, have been actually and in good faith paid in cash. 
 
 James Long. 
 Subscribed and sworn before me, this 1st day of August, 
 1849. A. B. Ketch AM, 
 
 County Judge of Chenango Coimty. 
 
 Of the Sale and Mortgage of Personal Proiieriy, 
 
 All deeds of gift, all conveyances, and all transfers or assign- 
 ments, 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 the creditors existing or subsequent to such 
 person. (2 R. S. 195, sec. 1.) 
 
 Every contract for the sale of any goods, chattels, or things 
 in action, for the price of fifty dollars or more, shall be void, 
 unless, 
 
 1. A note or memorandum of such contract be made in wri- 
 ting, and be subscribed by the parties to be charged thereby ; or 
 
 2. Unless the buyer shall accept and receive part of such 
 goods, or the evidences or some of them, of such things in 
 action ; or 
 
 3. Unless the buyer shall, at the time, pay some part of the 
 purchase money. (Id. sec. 3.) 
 
 The signature of one party only to the note or memorandum, 
 is sufficient, and such party is prevented by his signature from 
 denying that the contract was validly executed, though the 
 papers be not signed by the party who sues for the performance. 
 (3 Johns. Cas. GO. 14 J. R. 487. 26 Wend. 341.) It is suffi- 
 cient likewise, if the note or memorandum be made by a broker 
 employed to effect the purchases ; and if he settles the bargain, 
 he is considered as agent for both parties, and the instnmient is 
 liberally construed without a scrupulous regard to forms. (2 
 Kent, 510.) 
 
 Whenever goods shall be sold at public auction, and the auc- 
 tioneer shall, at tlu; time of sale, enter in a sale book a memo- 
 randum specifying the nature and price of the property sold, the 
 tf;rms of sale, the name of the purchaser, and the name of the 
 person on whose account the sale is made, such memorandum
 
 PRINCIPLES OF SUITS. 21 
 
 shall be deemed a note of the contract of sale within the mean- 
 ing of the statute. 
 
 Every sale made by a vendor of goods and chattels in his 
 possession, or under his control, and every assignment of goods 
 and chattels by way of mortgage or security, or upon any con- 
 dition whatever unless the same be accompanied by immediate 
 delivery, and be followed by an actual and continued change 
 of possession of the things sold, mortgaged or assigned, shall be 
 presumed to be fraudulent and void as against the creditors of 
 the vendor, or the creditors of the person making such assign- 
 ment or subsequent purchasers in good faith, and shall be con- 
 clusive evidence of fraud, unless it shall be made to appear on 
 the part of the persons claiming under such sale or assignment, 
 that the same was made in good faith, and without any intent 
 to defraud such creditors or purchasers. (2 R. S. 195, sec. 5.) 
 
 It would seem, that although a mortgage of personal property 
 is made in good faith and without any intent to defraud, yet if 
 there is not an immediate delivery, followed by an actual and 
 continued change of possession, the mortgage is void as against 
 the creditors of the mortgagor, unless the continued possession 
 in the mortgagor is satisfactorily explained. 
 
 The words actual and continued change of possession, as 
 used in the statute, are to be interpreted literally, and will not be 
 satisfied by a mere legal or constructive delivery, and though 
 the vendor be suffered to remain in possession in good faith as 
 clerk of the vendee, this will not relieve the latter from the 
 burthen of proving good faith in other resi)ects. (4 Hill, 271.) 
 
 But a mortgage of goods and chattels, though unaccompanied 
 by an immediate delivery, and not followed by an actual and 
 immediate change of possession of the things mortgaged, is not 
 void, if it be made to appear on the part of the mortgagee that 
 the same was made in good faith, and without an intent to de- 
 fraud purchasers. There will be a strong presumption of fraud- 
 ulent intent, which will be conclusive, unless it is rebutted, so as 
 to make the good faith of the transaction appear affirmatively. 
 (23 Wend. 639.) 
 
 If the property be ponderous, or fixed to the freehold, and pos- 
 session be taken from the debtor within a reasonable or conve- 
 nient time, its remaining in the debtor's hands is not, under the 
 circumstances, evidence of fraud. (2 J. R. 418.) 
 
 The question of fraud resulting from possession by the debtor,
 
 22 THE FORM AND GENERAL 
 
 may arise in various other ways than between mortgagees and 
 creditors. Thus, where a plaintiif buys property sold under 
 his execution, and leaves it in the possession of the defendant, 
 without any good excuse shown, the sale is void, as against 
 other creditors of the defendant, notwithstanding the plaintitf 
 subsequently, and before levy under another execution, reduces 
 the property to his actual possession. (2 Wend, 169.) But 
 where the purchaser under an execution, is not the creditor, but 
 some third person purchasing bona fide, his leaving the goods 
 in the debtor's hands is not fraudulent. (9 J. R. 197.) 
 
 Your being in possession of my goods, does not expose them 
 to execution against you, though you may be the reputed owner, 
 unless there be some fraudulent or deceptive purpose shown or 
 implied from the circumstances of the case. (9 J. R. 197.) 
 Nor does my knowing of a judgment against the vendor, render 
 my judgment against him void, unless I act fraudulently ; 
 though it is void, if I purchase with a view to defeat the judg- 
 ment. (8 J. R. 446. 12 id. 320.) 
 
 Every mortgage or conveyance intended to operate as a mort- 
 gage of goods and chattels hereafter made which shall not be 
 accompanied by immediate delivery, and be followed by an 
 actual and continue changed of possession of the things mort- 
 gaged, shall be absolutely void as against the creditors of the 
 mortgagor, and as against subsequent purchasers and mort- 
 gagees in good faith, unless the mortgage or a true copy thereof, 
 shall be filed. (2 R. S. 196, sec. 9.) 
 
 The instrument mentioned in the preceding section shall be 
 filed in the several towns and cities in this state, where the 
 mortgagor therein, if a resident of this state, shall reside at the 
 time of the execution of such instrument. In the city of New 
 York, such instrument shall be filed in the office of the Register 
 of the said city. In the several cities of this state, other than 
 the city of New York, and in the several towns in the state in 
 which a clerk's office is kept, in such office ; and in each of the 
 other towns in this state, in the office of the town clerk thereof; 
 and such register and clerks are hereby required to file all such 
 instruments aforesaid presented to them respectively for that 
 purpose, and to endorse thereon the time of receiving the same, 
 and shall deposit the same in the respective offices, to be kept 
 there for the inspection of all persons interested. (2 R. S. 196, 
 sec. 10.)
 
 PRINCIPLES OF SUITS. 23 
 
 Every mortgage filed in pursuance of the preceding act, shall 
 cease to be valid as against the creditors of the person making 
 the same, or against subsequent purchasers, or mortgagees in 
 good faith, after the expiration of one year from the filing 
 thereof, unless within thirty days next preceding the expiration 
 of said term of one year, a true copy of such mortgage, together 
 with a statement exhibiting the interest of the mortgagee in the 
 property thereby claimed by him, by virtue thereof, shall be 
 again filed in the office of the clerk or register aforesaid, of the 
 town or city where the mortgagor shall then reside. (2 R. S. 
 71, sec. 11.) 
 
 Though the statute requires a personal mortgage to be re- 
 newed yearly, yet this requirement is only necessary so far as 
 to protect the lien as against creditors, and is not necessary as 
 between the parties. The mortgage remains good between 
 them without filing or renewing. (J. R. 337.) 
 
 On the mortgage of a chattel, if the condition be forfeited, the 
 title of the mortgagee becomes absolute, and he may reduce the 
 property to possession, so that the mortgagor cannot by tender- 
 ing the money, as in case of a pledge, entitle himself to an ac- 
 tion against the mortgagee for refusing to re-deliver the property. 
 (9 Wend. 80. 7 Cow. 290.) 
 
 The distinction between a pledge and a 7?iortgage of goods is 
 important. Delivery always accompanies a pledge, but a mort- 
 gage of goods is often valid, without delivery, (5 J. R. 258, 
 261,) and if the pledgee take a delivery and yet immediately re- 
 deliver the thing pledged to the owner — or permit it to go back 
 into his possession, the property in the pledge is determined and 
 gone. (Aik. R. 115.) By a pledge the special property only 
 passes to the pledgee, the general property remaining in the 
 pledgor. By a mortgage the whole legal title passes conditionally 
 to the mortgagee ; and if not redeemed at the time stipulated, 
 the title becomes absolute. (Id.) 
 
 Personal property mortgaged, may after forfeitttre, be bound 
 by virtue of an execution against the mortgagee, although it 
 remain in the hands of the mortgagor, and the mortgagee after 
 forfeiture may maintain an action for the property mortgaged. 
 (5 Cow. 323.) 
 
 Where a chattel mortgage contained a provision that upon 
 default of payment of the mortgage debt, at the time agreed 
 on, the mortgagee might sell the property at auction or private
 
 24 THE FORM AND GENERAL 
 
 sale, and pay the debt and expenses out of the avails, it was 
 held that the mortgagee's title became absolute at law upon de- 
 fault in payment, without any sale being inade. (2 Denio R. 
 170.) 
 
 Warranty on tSale of Goods. 
 
 In every sale of personal property there is an implied war- 
 ranty that the vendor has a good and valid title to the thing 
 sold. A fair price implies a warrant of title ; and the purchaser 
 may have satisfaction from the seller if he sells the goods as 
 his own, and the title proves deficient. (1 J. R. 274.) If, how- 
 ever, the possession be at the time in another, and there be no 
 warranty of title, the party buys at his peril; (1 Salk. 210;) 
 but if in such case, the seller affirms the thing to be his, it is 
 said he thereby warrants the title. (3 J. R. 57, 58.) 
 
 The seller is not bound to answer for the quality or goodness 
 of the article sold, unless he expressly warranted the goods to 
 be sound or unless he has made a fraudulent representation or 
 used some fraudulent concealment concerning them, and which 
 amounts to a warranty at law. (2 Kent, 479.) 
 
 The distinction between the responsibility of the seller as to 
 the title and as to the quality of goods sold, is well established. 
 (2 Comyn on Con. 263. 2 East, 314.) The rule applies to the 
 case where the article is equally open to the inspection and ex- 
 amination of both parties, and the purchaser relies on his own 
 information and judgment, but not, to a case where the purcha- 
 ser has ordered goods of a certain character, and relies on the 
 judgment of the seller. Nor does the rule apply where goods 
 of a certain described quality are ofTcred for sale, and when de- 
 livered they do not answer the description directed or given in 
 the contract. (2 Kent, 479.) 
 
 If the seller be ignorant of any unsoundness or other defect 
 ui tlie article, sold a mtuc representation of soundness, will not 
 render him liable. If it is intended to nrake the seller account- 
 able under such circumstances, he nuist be required to w^rant 
 the thing sound or free from defect. (2 Cai. 48. 4 J. 11^21.) 
 Nor is a mere false assertion of value where no warranty is in- 
 tended, a ground of H'.WvA' to a purchaser because the assertion 
 is matter of ojjinion whicii does not imply knowledge, and in 
 which men may diller ; every person reposes at his peril in the
 
 PRINCIPLES OF SUITS. 25 
 
 opinion of others when he has equal opportunity to form and 
 exercise his own judgment ; (5 J. R. 354 ;) and if the seller re- 
 presents what he himself believes as to the qualities or value of 
 an article, and leaves the determination to the judgment of the 
 buyer, there is no fraud or warranty in the case. Nothing is 
 more common than for merchants in selling goods to recommend 
 them highly to the purchaser as of a superior quality, as hav- 
 ing cost so much, and as being worth so much more than the 
 price at which they offer them for sale, and yet if the fact should 
 turn out to be otherwise, an action would not lie unless fraud 
 or a warranty could be made out ; for the goods are exposed to 
 the examination of the buyer, who judges for himself, and if he 
 place implicit confidence in the seller, he does so at his peril. 
 (1 Cow. 316.) 
 
 Although by the terms of the contract, an article agreed to be 
 delivered, is to be of a merchantable quality ; still, if an inferior 
 article be delivered and accepted, the purchaser when called on 
 for payment, is not entitled to a reduction from the contract 
 price, on the ground of the inferior quality of the article. (20 
 Wend. 61.) 
 
 When goods are discovered to be unsound, or not to answer 
 the order given for them, the purchaser ought immediately to 
 return them to the vendor, or give him notice to take them 
 back, and thereby rescind the contract ; or he will be presumed 
 to acquiesce in the quality of the goods. (1 Camp. 190.) In 
 the case of a breach of warranty, he may sue upon it Avithout 
 returning the goods ; (12 Wend. 566 ;) but he must return them 
 and rescind the contract within a reasonable time before he can 
 maintain an action to recover back the price. 
 
 As a general rule, each party to a contract is bound to com- 
 municate to the other his knowledge of material facts, provided 
 he knows the other to be ignorant of them, or they are not 
 equally within the reach of his observation ; and if the vendor 
 says or does any thing to divert the eye or obscure the observa- 
 tion of the buyer, even in relation to open defects, he would be 
 guilty of an act of fraud. (3 Blk. Com. 161.) 
 
 An action will lie against a person not interested in the prop- 
 erty, for making a false representation to the seller, wdiereby he 
 sustains damage by trusting the purchaser on credit of such 
 representations, (6 T. R. 181. 6 Cow. 346. 2 Wend. 385.) 
 
 No particular form of words is necessary to constitute a war-
 
 26 THE FORM AND GENERAL 
 
 ranty. The word " warrant" need not be used ; any word 
 equivalent to warrant is sufficient. (10 Wend. 411.) But the 
 assertion or affirmation concerning the thing sold to be evidence 
 of a warranty, should be a positive and unequivocal one, upon 
 which the buyer relies, and which is understood by the parties 
 as an ahsolute assertion, and not the mere expression of opin- 
 ion. (4 Cow. 440.) 
 
 An affirmation that a horse is not lame, accompanied by a 
 declaration of the seller, that he would not be afraid to warrant 
 him, is enough to establish a warranty. (13 Wend. 277.) 
 
 If a man should say on the sale of a horse, '■'■ I promise you 
 the horse is sound" it would amount to an express warranty; 
 so if a seller say to the buyer of a horse in the course of deal- 
 ing, " you may depend upon it the horse is perfectly quiet and 
 free from vice," it amounts to a warranty. (19 J. R. 290.) Bat 
 an assertion by the vendor to the vendee, at the time of selling 
 a mare, that he was sure she was safe and kind, and gentle in 
 harness, was held, in Pennsylvania, to be only a representation 
 and not to constitute a warrant or express promise, though the 
 authority of the case has been very justly questioned. (1 Cow. 
 R. 316.) 
 
 If a person at the time of selling a horse say, " I never war- 
 rant, but he is sound as far as I know," this is a qualified war- 
 ranty, and the purchaser may maintain an action upon it if he 
 can show that the horse was unsound to the knowledge of the 
 seller. (4 Carr. & Payne, 45.) 
 
 Upon the breach of a warranty of a horse, the measure of 
 damages is the price paid for him. If the horse be not returned, 
 the measure of damages is the difference between the value of 
 the horse at the time of the sale, considering him as sound and 
 his value with all the defects complained of The price paid 
 would be however strong evidence of what the horse would 
 have been worth, if sound, and should control ; unless it be 
 clear that the actual value was either greater or less. (4 Hill, 
 625. 2 lb. 288.) 
 
 in tlie contract for the sale and delivery of an article of mer- 
 chandize at a future day, when there is no selection or setting 
 apart at the time, of particular articles of property so as to pass 
 the property to the purchaser, merchantable quality, such as 
 at least will bring the average market price, is always intended. 
 (23 Wend. 350.)
 
 PRINCIPLES OF SUITS. 27 
 
 In executory agreements to sell indeterminate things, there is 
 an implied Avarranty that the things to be delivered shall at 
 least be free from any remarkable defect. If the article deliv- 
 ered came short of a medium quality or goodness, it may be 
 returned after the purchaser has had a reasonable time to in- 
 spect it, and it is sufficient to entirely defeat the sale if there be 
 notice to take it back, assigning the true cause. (23 Wend. 
 350.) 
 
 If the article be sold by the sample and it be a fair specimen 
 of the article, and there be no deception or warranty on the 
 part of the vendor, the vendor cannot rescind the sale. But 
 such a sale amounts to an implied warranty that the article is in 
 bulk of the same kind, and equal in quality with the sample. 
 If the article should turn out not to be merchantable from some 
 latent principle or infirmity in the sample as well as in the bulk 
 of the commodity, the seller is not answerable ; the only war- 
 ranty is that the whole quantity answers the sample. (2 East, 
 314.) 
 
 The mere exhibition of samples at the time of the sale, is 
 not of itself evidence of an agreement to sell by sample. It is 
 for a jury, or justice, when there is no jury, to say under all the 
 circumstances of the case, whether the sale was intended by 
 the parties as a sale by sample. (18 Wend. 425.) 
 
 I engage a mechanic to manufacture an article in his line of 
 business, without any stipulation, the law implies an obligation 
 to make it in a skilful and workman-like manner. So, if I con- 
 tract with a merchant to furnish me with a quantity of wheat 
 at a future day, for a certain price, without any other stipula- 
 tion, the law implies that it shall be of a good and merchanta- 
 ble quality and condition. (9 Wend. 20, 28.) 
 
 When there is an agreement in writing for the sale, no action 
 will lie on a parol warranty ; for the writing is a higher and 
 more certain species of evidence. If it contain a warranty, this 
 should form the ground of action, but if it do not, it is conclu- 
 sive evidence that no warranty was intended. (1 J. R. 414. 
 3 Wend. 459.) When, however, a party is induced by false 
 and fraudulent representations to enter into a written agree- 
 ment, and is thereby damnified, he may maintain an action 
 for the artifice, and give parol evidence of the representations, 
 although they are not noticed in the written contract, (5 Dow. 
 & Ryl. 490.)
 
 28 THE FORM AND GENERAL 
 
 Bonds. 
 
 A bond is a sealed instrument whereby the obligor binds him- 
 self, his heirs, executors and administrators to pay a certain sum 
 of money to another ; (2 Bla. Com. 240 ;) usually, however, 
 there is a condition subjoined making the bond void on the pay- 
 ment of a certain sum, or the performance of certain acts, in 
 which case the bond is called conditional. If the condition be 
 not fulfilled, the bond becomes forfeited and an action may be 
 brought upon it. 
 
 All persons who have the legal ability to make general con- 
 tracts, may bind themselves by bond, (2 Steph. N. P. 1235,) and 
 !n this particular the same rules that have been laid down Vv^th 
 regard to simple contracts, will also apply to bonds ; but an 
 agent cannot bind his principle by such an obligation, unless he 
 had authority under seal so to do. (Steph. N. P. 1236.) Any 
 thing which will render a simple contract void, will also as a 
 general rule, vitiate a bond ; the condition to be valid, must be 
 for the performance of some act which is both lawful and 'pos- 
 sible. It must be both sensible and certain, and in no way re- 
 pugnant to the obligation. (2 Leigh, N. P. 752.) If the con- 
 dition be idle and uncertain or contrary to some rule of mere 
 jjositive law, the condition only is void, and the bond stands 
 single and unconditional. But if the condition be to per- 
 form some act bad in itself and contrary to the laws of nature, 
 then the whole instrument is void. (2 Blk. Com. 240.) When 
 the condition consists of two distinct parts in the alternative, 
 one legal and the other illegal, but not bad in itself, the bond 
 may be good in part but void as to the residue. But if the bond 
 constitute one entire agreement, part of it being legal and part 
 of it illegal, then the whole bond is void. (2 Steph. N. P. 1236. 
 10 Peters' Rep. 343.) 
 
 Where in an action on a bond, the amount in controversy ex- 
 ceeds one hundred dollars, a justice has no jurisdiction ; but 
 though the penalty exceed one hundred dollars, if the condition 
 be, for the payment of a sum of money not exceeding one hun- 
 dred dollars, or of several sums not exceeding in the aggregate 
 that ainount, an action may be brought before a justice on such 
 condition, and a recovery of cilher of such instalments will not 
 bar a subsequent suit for the 'other instalments which may Iiave 
 becouKJ due after the coininoncemcnt of the former suit. (Code 
 sec. 53.)
 
 PRINCIPLES OF SUITS. 29 
 
 The obligor of a bond may be discharged from liability in 
 various ways. His name may be stricken out and the name of 
 another inserted, by the consent of all of the parties, without 
 vitiating the bond. (9 Cranch, 28.) He may be excused by 
 the act or negligence of the obligee, or he may be excused from 
 liability, if the performance of tlie obligation imposed on him 
 became subsequently impossible by the act of God. He will 
 also be discharged by the alteration, without his knowledge, of 
 the instrument. (2 Leigh's N. P. 758.) But an alteration made 
 by a clerk in the custom house to correct a mistake, and which 
 did not change the construction, was held to be the act of a 
 stranger, and immaterial. (1 Paine, 336.) 
 
 Promissory Notes. 
 
 Very common grounds of action on contract before Justices of 
 the Peace, are promissory notes. A promissory note is a written 
 promise by one person to another, for the payment of money at 
 a specified time, absolutely, and at all events. A promissory note 
 is not confined to any set form of words ; a promise to deliver, 
 or to be accountable, or to be responsible for so much money, is 
 a good note. (3 Kent, 74, 75.) 
 
 Though it would be safer to date these instruments, the date 
 is not indispensable ; if a note be payable two months after date, 
 and no date be given, the court will intend it to be payable two 
 months after the day upon which it was made. (13 East, 517.) 
 
 It is not necessary that the maker should subscribe his name 
 at the bottom of the note. It is sufficient if the maker's name 
 be on any part of the note, as if it should run, " I, A. B., promise 
 to pay C. D. or order, one hundred dollars." (3 Kent, 78.) 
 
 The instrument ought to specify clearly, by and to whom 
 payable ; a note to be paid by A. or else B., is bad ; so is a note 
 payable to A. or B. (4 Wend. 575.) Where two persons are 
 of the same name, it is better to distinguish them by their place 
 of residence, or in some other way, by which they can be iden- 
 tified. 
 
 Promissory notes must be exclusively and absolutely for the 
 payment of money. (3 Kent, 75.) If payable in goods, or in 
 any thing else besides money, they are not notes but mere con- 
 tracts, binding but not negotiable. (2 Mass. R. 524. 6 Cow. 
 108.)
 
 30 THE FORM AND GENERAL 
 
 The money mentioned in the instrument must be payable 
 absolutely and at ail events, and not made to depend on any 
 uncertainty or contingency. (3 Kent, 76.) The event on which 
 the instrument is to become payable, must also be fixed and 
 certain. Thus it has been held that a note payable Avithin two 
 months after such a ship is paid off, is a good negotiable note, 
 as the event is morally certain. So a note payable six weeks 
 after the death of the maker's father is a good note, and it is no 
 consequence how long payment is to be postponed. 
 
 Whoever has the legal proj^erty of these instruments is 
 called the holder. When drawn in a particular form, they are 
 transferable from hand to hand. Hence promissory notes are 
 of two kinds, negotiable and ?iot negotiable. 
 
 The most important characteristic of a negotiable note is, 
 that it may be transferred from one person to another in the 
 course of trade, so that the holder may sue upon it in his own 
 name. A note, to be negotiable, must be payable to order or 
 bearer, for the payment of money only, and without any condi- 
 tion or contingency. (6 Cow, 108.) It must have negotiable 
 words on its face showing it to be the intention to give it a trans- 
 ferable quality, without them a promissory note is valid, as be- 
 tween the parties ; but if it wants negotiable words it cannot be 
 transferred or negotiated. (3 Kent, 74.) Notes payable to or- 
 der, can be negotiated only by endorsement ; but if payable to 
 bearer, they may be transferred, either by endorsement or mere 
 delivery. (9 J. R. 120. 3 J. R. 439.) 
 
 Notes not negotiable are all such as are not payable in cash 
 absolutely ; or, if payable in cash, are not drawn payable to 
 order or bearer. Such notes, however, may be sold and trans- 
 ferred, so as to pass the interest in them to the purchaser. 
 
 It is usual to insert the words "value received" in a note; 
 but they arc unnecessary; and value is implied in every ncgotia- 
 l>lc note and endorsement. The burthen of proof rests upon 
 the other party to rebut the presumption of validity and value. 
 (3 Kent, 77.) The note itself imports a consideraticn, the same 
 as a specialty, unless the contrary appears in the instrument. 
 (8 J. R. 120. 9 id. 217.) The note may be made payable so 
 many days, iiioiillis or yerirs, after date or after sight; or it 
 may he made payable at sight, or on demand, or on a particular 
 day meiilioned. 
 
 Jfno time for iiayni'^iil is mentioned in the note, it is payable
 
 PRINCIPLES OF SUITS. 31 
 
 immediately on demand, the same as if expressly payable on 
 demand. (8 J. R. 189. 15 Wend. 308.) 
 
 The time of payment in a note, can in no case be altered by 
 parol evidence ; and a separate written agreement not to demand 
 payment until after due, is not a part of the contract, although 
 it might be the subject of a cross-action, if violated. (8 J. R. 
 189. 4 Mass. R. 414.) 
 
 Where a note is payable so many months after a certain 
 time, the computation must in all cases be made by calendar, 
 and not by lunar months, unless otherwise expressed. (1 R. S. 
 615, sec. 4.) A lunar month consists of twenty-eight days, the 
 supposed revolution of the moon, thirteen of which make a 
 year. Calendar months are of unequal lengths, according to 
 the Julian division in our common almanacs, whereof in a year 
 there are only twelve. (2 Blk. Com. 141.) 
 
 When a note is payable at a certain day mentioned in the 
 note, it is not pa^^able at the time the words import ; but the 
 maker has three additional da3^s, called days of grace, and ex- 
 clusive of the day specified. He has the whole of the third 
 day in which to pay, and no action can be brought against him 
 until the morning of the next day. (8 Cow. 203.) 
 
 The person who promises to pay is called the maker ; and 
 the person to whom the promise is made, the payee. If the 
 note be negotiable, and be negotiated by endorsement, the per- 
 son who endorses the note is called the endorser, and the one 
 to whom it is transferred, the endorsee, or holder. 
 
 When the note becomes due, the maker is liable to the payee, 
 or any subsequent holder ; and this ordinarily without present- 
 ment or demand, even though it be payable on demand, or at a 
 particular place, if payable at a specified time. The only case 
 in which a demand is necessary as between the holder and 
 maker, is where the note is payable at sight, or at a specified 
 time after sight. (17 J. R. 248. 8 Cow. 27] .) 
 
 The maker may defend himself on the ground, that the 
 holder is a mere agent, having no interest in the note, and that 
 the defendant has notice not to pay him ; but it is otherwise, if 
 the plaintifl" have any, the least, interest, though it be merely a 
 lien. (6 Mass. R. 430.) 
 
 The maker is liable for interest. The interest is to be com- 
 puted from the day the note is due, down to the time of entering 
 judgment. If the note is payable at a given time after date,
 
 32 THE FORM AND GENERAL 
 
 '•'bearing interest," interest should he computed from the date. 
 And a note payable " on demand, with lawful interest," carries 
 interest from the date. (I Cow. Tr. 189, 190.) 
 
 On a note made in one place, payable in another, interest is 
 recoverable according to the legal rate of the place where it is 
 payable ; which must be proved the same as other facts. (Id.) 
 
 The engagement of the endorser of a promissory note, is that 
 the note shall be paid on its being duly demanded of the maker ; 
 and his failing to make payment according to his engagement. 
 If the endorser have received of the endorsee less than the face 
 of the instrument, the former is liable to the latter only for the 
 sum received, with interest ; but the maker is liable for the full 
 amount. (13 Mass. R. 731.) 
 
 Demand cannot be made until the money is due ; and it must 
 in general be demanded, in order to charge the endorser the 
 very day it falls due. (1 Cow. 162.) When a note is payable 
 so long after sight, or after demand, or after a certain event, the 
 day of presenting the note for payment is to be excluded in the 
 computation of time, as is also the day of .the date, where it is 
 payable so long after date. Thus, if a note dated the first day 
 of March, be payable two months after date, it becomes due the 
 first of May ; then add the three days of grace, and it carries 
 you to the fourth of May before a demand can be made so as 
 to charge an endorser. (1 Cow. 159.) 
 
 The demand should be made of the maker on the third day 
 of grace precisely ; in order to charge the endorser, the demand 
 should be made of the maker personally, when he is found, 
 unless the note be payable at another place ; in which case, the 
 demand must be made there. (16 East, 110. Id. 112.) If the 
 maker should be gone from home, it should be presented to his 
 agent ; or if he have no agent, it may be demanded at his 
 house or place of business, of his wife or servant ; or in their 
 absence, of some other person belonging to the family ; or if no 
 person be at home, or be found, or if the maker has absconded, 
 no demand is necessary. (1 Cow. 195, and cases there cited.) 
 
 No particular form of words is necessary in presenting the 
 note and demanding payment. The note should be shown to 
 the maker or other proper person, and some Avords made use of, 
 amounting to a request to pay. (Id. 197.) 
 
 If the third day of grace fall on Simddij, or on ihc fourth of 
 July — or on any day in which the holder's religion forbids
 
 PRINCIPLES OF SUITS. 33 
 
 secular business ; or a day of public rest ; the demand should 
 be made on the day preceding the third day of grace. (2 Cai. 
 343. 4 Wend. 566.) And the notice of non-payment may be 
 given or sent to the endorser, either on the day of the demand, 
 or on Monday, on the fifth of July, or on the day succeeding 
 the day of public rest, &c. (1 Cow. Tr. 197. 2 Cai. 343.) 
 
 If a bank have usages and by-laws, respecting demand and 
 notice, those who deal there are bound by them ; and if a note 
 be made for negotiation at a bank whose custom it is to demand 
 payment, and to give notice on the fourth day, that custom 
 forms part of the law of the contract ; and the parties are pre- 
 sumed to agree to be governed in that case by the usage. The 
 same rule applies when a bank, by usage, treats a particular 
 day as a holy day, though not legally known as such. (1 Cow. 
 197. 9 Mass. R. 155.) 
 
 If the note is payable on demand, or if no terms are men- 
 tioned, no days of grace are allowed ; (8 J. R. 374 ; 13 Mass. 
 R. 131 ;) and payment should be demanded within a reasonable 
 time after the note was issued, or was received by the holder. 
 (2 Cai. 369. 6 Cow. 464.) What is reasonable time must 
 depend upon the circumstances of the particular case. It 
 would be well to present the note for payment on the day of 
 receiving it, if possible ; and if the maker reside at a distance, 
 it should be transmitted by the next post. 
 
 After a neglect or refusal to pay, by the maker, upon a de- 
 mand, the next step, in order to hold the endorser, is to give 
 him notice of such demand and non-payment ; and where a 
 demand on the maker cannot be made, notice to the endorser is 
 equally necessary. 
 
 The notice need not state that the maker was absent, so that 
 no personal demand could be made ; any act equivalent to a 
 demand may be called a demand in this notice. (8 Mass. R. 
 260.) 
 
 If both parties live in the same town, the notice should be 
 personal, or left at the dwelling house or place of business of 
 the endorser ; and it should be given on the day of demand, or 
 the day after, at farthest. (2 Cai. 343. 1 John. Cas. 328.) If 
 the parties do not live in the same town, notice should be sent 
 by the next regular post after the demand. (20 J. R. 372. 10 
 id. 490.) A notice by mail would be sufficient, even though the 
 
 3
 
 §4 THE FORM AND GENERAL 
 
 letter miscarry, or the endorser be absent, and so cannot receive 
 It. (6 Mass. R. 316. 9 id. 159.) 
 
 If the endorser is dead, notice should be given to his executor 
 or administrator, if known to the holder ; but if neither the 
 death, nor personal representatives be known to him, the usual 
 notice is sufficient. (1 Cow. 206. 17 J. R. 25.) 
 
 The holder should give notice to all such parties to the note, 
 as he means to look to for the payment. He may, in this way 
 make liable any greater or less number of prior endorsers, 
 besides the maker. They are all individiially liable to him for 
 the amount. They are so, because each one whose name ap- 
 pears upon the note, is bound by a separate contract for the 
 whole amount ; and he becomes liable immediately on default 
 of payment by the maker, and due notice of such default. 
 
 The sudden sickness or death of the holder or his agent, will 
 be an excuse for want of regular notice to any of the parties, 
 provided it be given as soon as possible after the impediment is 
 removed ; and so will the absconding or absence of the endorser, 
 if he be advised of notice on his return ; or if the holder be 
 ignorant of the endorser's place of residence, it is sufficient if 
 he use reasonable diligence to discover where he may be found ; 
 and what is reasonable diligence will be a question of fact for 
 the justice, or the jury under his direction. (1 Cow. 206.) The 
 holder may, if he choose, charge by notice his immediate or 
 any other endorser, and neglect to give notice to all others whose 
 names appear on the note. Upon one endorser thus receiving 
 notice, he must notify such party or parties as he intends to 
 charge, who may in like manner notify the endorser who stands 
 behind him in the instrument. 
 
 A notice from any person who has a right of action on the 
 note, will be a sufficient notice for all the antecedent parties 
 between the party giving and the party receiving notice, and 
 render a further notice from any of those intermediate parties 
 unnecessary. (Chitty on Bills, 527, 8.) 
 
 When satisfaction is made by a previous party to a subse- 
 (juont one, ihc instrument liccomes his own, and he holds it in 
 his oriL^inal napacAiy ; the same as though he had never parted 
 with it. 
 
 The holder is entitled to payment of the note, and so long as 
 he docs no act to impair tlni right, he may enforce sucli pay- 
 ment from any or all the parties liable. As the endorsers are
 
 PRINCIPLES OF SUITS. 35 
 
 in the nature of sureties for the maker's fulfilling his promise, 
 and have a right to look to him for indemnity, if the holder do 
 any act, the effect of which is to impair their right, he cannot 
 afterwards resort to them. If, therefore, the holder give time to 
 the maker or take from him any new security payable at a fu- 
 ture day, without the assent of the other parties to the note, 
 they are discharged. (1 Cow. 212, 213.) 
 
 There are but few cases in which a bill or note is void in the 
 hands of an innocent endorsee, for a valuable consideration. 
 But as between original parties to negotiable paper, these pro- 
 visions in favor of the bona fide assignee, do not apply, and the 
 consideration of a note may be inquired into. It may be in- 
 quired into between the maker and payee, and between the 
 endorser and endorsee. The rule equally applies when the 
 endorsee took the paper with notice of an illegal, or want of 
 any consideration, or of any circumstances which would have 
 avoided the note in the hands of the endorser, or when taken 
 not in the ordinary course of business, or after it was due, or 
 under circumstances which ought to have led to an inquiry. 
 
 If John Doe, the maker of a note, is sued by Richard Roe, 
 the payee. Doe might show in his defence, either that he owed 
 Roe nothing, and had received nothing from him as a conside- 
 ration for making the note, and therefore was not bound to pay 
 it ; or that he made the note for some purpose which is illegal ; 
 or that the consideration of the note had failed altogether ; or 
 had partially failed ; and so reduce the recovery. So, if Henry 
 Brown, the endorsee, should sue Richard Roe, the endorser, the 
 same defence would apply between the endorser and endorsee 
 of the note. Between these parties there is a privity of con- 
 tract, and they know, or are presumed to know, whether the 
 note or endorsement is fair and honest, and founded upon good 
 consideration. But a different rule prevails with regard to the 
 other parties to these instruments, for often they are perfect 
 strangers to the transactions out of which the note or endorse- 
 ment, upon which they claim, arose. They are hence called 
 innocent or bona fide holders ; and the law will sustain their 
 claims, however viciously other parties may have acted, or 
 whatever objections of consideration may arise. (Chitty on 
 Bills, 85. 7 J. R. 361. 1 Conn. Rep. 387.) 
 
 Negotiable paper can be transferred by an agent so as to bind 
 the true owner, in favor of the holder, if it was taken by him in
 
 36 THE FORM AND GENERAL 
 
 the usual course of trade, and for a fair and valuable conside- 
 ration, without notice of the fraud. But if the paper be not so 
 taken, the rights of ihe true owner will not be barred. 
 
 Endorsements are either i7i blank, in full, or restrictive. 
 
 The endorsement in blank, is by merely writing the endor- 
 ser's name on the back of the bill or note, without mentioning 
 the person in whose favor the endorsement is made, and such 
 endorsement in itself constitutes a complete and perfect transfer 
 of the interest in the bill or note. A blank endorsement can be 
 converted into a special one, by the holder inserting above it, 
 •' pay the contents to A. B.," which the law authorizes him to 
 do. (1 Cow. 171. Chitty on Bills, 252 to 259.) Such holder 
 by writing these words and transferring the note to the party 
 named in the endorsement, without writing his own name as 
 endorser will not be liable on the bill or note. (Id.) 
 
 A blank endorsement makes the note transferable by mere 
 delivery, the same as if it had been payable to bearer ; and 
 where a note was endorsed in blank, and two plaintiffs sued 
 upon it as endorsees jointly ; it was held that they were not 
 obliged to prove either that they received the note so endorsed 
 as partners, or that it was endorsed to them jointly. (Chitty 
 on Bills, 255.) 
 
 The holder of a note endorsed in blank, may fill it up before 
 or at the trial, with what name he pleases. It is often advisable 
 for the endorsee to fill it up, so as to make it an endorsement in 
 full, in order to avoid the risk in case it is lost, of its getting 
 into the hands of a bona fide holder, or of its being fraudulently 
 pledged or disposed of. 
 
 An endorsement in full, is where the endorser fills up the 
 blank endorsement himself, by expressing in whose favor he 
 makes the endorsement, as, " pay the contents to A. B." or 
 ■'pay the contents to A. B. or order ^'' or to that effect. 
 
 An endorsement in blank may, or may not, be filled up at the 
 election of the endorsee. But an endorsement in full transfers 
 the interest of the payee, to the person named in the endorse- 
 ment ; and nothing but cancelling the endorsement, or the en- 
 dorsee's endorsing it again, would oust him of tlic legal title. 
 (15 J. R. 340.) 
 
 A n'strictive endorsement restricts the payment of the note to 
 the endorser only; as. by saying "pay the contents to A. only^^
 
 PRINCIPLES OF SUITS. 37 
 
 or " to A. for riiy use ;" and the endorsee cannot in such a case 
 negotiate the instrument any farther. (Ch. on Bills, 258 to 261.) 
 
 The note may be endorsed so as to exempt the endorser from 
 liability ; as if the endorser should add, at his oivii risk, or 
 without recourse. In that case, the maker, prior endorsers and 
 subsequent endorsers would be holden ; but the immediate en- 
 dorser Avould be exempted from responsibility by the special 
 contract. (3 Kent, 93.) This is the proper mode of endorsing 
 a note by an agent in behalf of his principal, where it is not 
 intended that he shall be personally liable. 
 
 If a blank note or check be endorsed, it will bind the en- 
 dorser to any sum or time of payment, which the person to 
 whom he intrusts the paper, chooses to insert in it. This, how- 
 ever, only applies to the case in which the body of the instru- 
 ment is left blank. If negotiable paper, regularly filled up, be 
 endorsed in blank, the endorser is holden only in the character 
 of endorser, and according to the terms and legal operation of 
 the instrument. (3 Kent, 90.) 
 
 Possession is priina facie evidence of property in negotiable 
 paper, payable to bearer, or endorsed in blank ; and the bearer, 
 though a mere agent when the endorsement is in blank, ma}^ 
 sue on it, in his own name, without showing title, unless cir- 
 cumstances appear creating suspicion. (3 Kent, 78. 7 Cow. 
 174.) The bona fide holder can recover upon the paper, though 
 it came to him from a person who had stolen or robbed it from 
 the true owner, provided he took it innocently, in the course of 
 trade, for a valuable consideration and not overdue, and under 
 circumstances of due caution ; and he need not account for his 
 possession of it, unless suspicion be raised. Suspicion must be 
 cast upon the title of the holder, by showing that the instru- 
 ment had got into circulation by force or fraud, before the bur- 
 then is cast upon the holder of showing the consideration he 
 gave for it. (Id. 79.) 
 
 Where there are several endorsers it is not necessary that the 
 action should be brought in favor of the actual holder, or of the 
 last endorser. Any one endorser may sue the maker, instead 
 of a preceding endorser, striking out, before the trial, all the 
 names below his own ; and a similar proceeding may bc' had 
 against a prior endorser. But the prior endorsers, if they wish 
 to commence an action on the note, must get rid of the subse- 
 quent endorsements. Actions may thus follow successively by
 
 38 THE FORM AND GENERAL 
 
 the holder against his immediate endorser ; by the latter against 
 his endorser, and so on up to the payee, who last of all may 
 sue the maker. 
 
 In any suit founded upon any negotiable promissory note or 
 bill of exchange, or in which such note, if produced, might be 
 allowed as a set-ofF in the defence of any suit ; if it appear on 
 the trial that such note or bill was lost, while it belonged to the 
 party claiming the amount due thereon, parol or other evidence 
 of the contents thereof may be given on such trial, and not- 
 withstanding such note or bill was negotiable, such party shall 
 be entitled to recover the amount due thereon, the same as if 
 such note or bill had been produced. (2 R. S. 503, sec. 94.) 
 But to entitle a party to such recovery, he shall execute a bond 
 to the adverse party, in a penalty at least double the amount of 
 such note or bill, with two sureties, to be approved by the court 
 in which the trial shall be had, conditioned to idemnify the ad- 
 verse party, his heirs and personal representatives, against all 
 claims by any other persons on account of such note or bill, and 
 against all costs and expenses by reason of such claim. (Id. 
 504, sec. 95.) 
 
 FORM OF BOND TO INDEMNIFY AGAINST A LOST NOTE. 
 
 Know all men, by these presents, that we, John Doe, Rich- 
 ard Roe and Henry Brown, are held and firmly bound unto 
 John Stiles in the sum of [here msert double the amount claimed 
 in the note,] to be paid to the said John Stiles, or to his certain 
 attorney, executors, administrators or assigns ; to which pay- 
 ment well and truly to be made, we bind ourselves, our heirs, 
 executors and administrators, jointly and severally, firmly by 
 these presents. Sealed with our seals and dated the first day 
 of June, 1849. 
 
 Tlic condition of this obligation is such, that if the said John 
 Doe shall indemnify the said Jolni Stiles, his heirs and personal 
 representatives, against all claims by any note executed by the 
 said Jolm Stilos to the said John Doc, for the sum of [hej'e state 
 the (unount,\ dated [here slate the date,] payable [here state the 
 time;] and against all costs and expenses by reason of any such 
 claim, then this obligation to be void ; otliorwise of force. 
 
 John Doe, [l. s.] 
 
 Richard Roe, [l. s.] 
 Henry Brown, [l. s.J
 
 PRINCIPLES OF SUITS. 39 
 
 Sealed and delivered in presence of 
 
 David Long, Justice. 
 Upon the foregoing bond, the justice should endorse his ap- 
 proval thus : 
 
 " I approve of Richard Roe and Henry Brown, as sureties in 
 the within bond, June 1st, 1849. 
 
 " David Long, Justice." 
 
 It will be seen that the enactment applies only to negotiable 
 paper. It must appear affirmatively that the note or bill was 
 negotiable, or the plaintiff will be entitled to recover without 
 tendering an indemnity. (3 Wend. 344. 12 id. 173.) The 
 court will not presume a lost note to be negotiable. The bur- 
 then of proof lies upon the defendant to show that the instru- 
 ment was negotiable. (10 J. R. 104. 3 Wend. 34, 44.) 
 
 Matters of Account. 
 
 Matters of account are such demands as arise in the various 
 dealings among men, not from the positive direction of any 
 statute, but from natural reason, and the just construction of 
 law. They extend to all presumptive undertakings which, 
 though never perhaps actually made, yet constantly arise from 
 the general intendment that every man has engaged to perform 
 what duty or justice requires. (3 Blk. Com. 161.) These de- 
 mands arise in a great variety of cases, among which are the 
 following : 
 
 For money paid by one person, for the benefit of another, at 
 the request of the latter. To maintain an action for money 
 paid, it must appear that money, or something equivalent, has 
 been actually advanced. But property received as money will 
 support an action for money paid. (8 J. R. 202. 6 Cow, 662. 
 10 Wend. 498.) It must further appear, either by express proof 
 or by implication from the nature of the transaction, that the 
 money was paid by request of the defendant. (3 Cow. 587.) 
 For if one of his own accord and without any legal obligation, 
 pay money for another, no action will lie to recover it back. 
 Thus, if without any request, an officer pay an execution, or a 
 collector pay a tax, the payment will create no right of action 
 against the defendant or person taxed. (8 J. R. 436. 10 id. 36] . 
 41 id. 87.) 
 
 If, however, the money be paid by a person in consequence of
 
 40 THE FORM AND GENERAL 
 
 a legal liability to which he is subject, but from which a third per- 
 son ought to have relieved him, by himself paying the amount, 
 a request will be implied. (1 Chitty PI. 384.) If, therefore, a 
 carrier, by mistake, deliver to B. goods consigned and sold toC, 
 and B. appropriate the goods, and the carrier on demand, with- 
 out action pays C. their value, the carrier may recover it against 
 B. as money paid to his use. (4 Taunt. 189.) And where cer- 
 tain persons subscribed money for the purpose of establishing 
 and running a stage-coach, and the subscribers chose an agent 
 to put the scheme into operation, who advanced his own money, 
 it was held that he might maintain an action against a subscri- 
 ber to recover the amount of his subscription. (5 Pick. R,. 228.) 
 
 For money had and received by the defendant^ which in equity 
 and good conscience ought to be paid to the j)laintiff. To main- 
 tain the suit, it must appear that the defendant himself or his 
 agent, has received money, or its equivalent. Positive proof 
 need not, however, be given ; for if it may be fairly presumed 
 from the facts proved, that the defendant has received the plain- 
 tiff's money, it will be sufficient. (IIJ. R. 464. 7 id. 132. 10 
 Wend. 436.) 
 
 Where goods in the hands of the defendant are saleable ; after 
 a lapse of time, it may be presumed against him that he has sold 
 the property and received the money, if there be reasonable evi- 
 dence that the defendant has converted the same into money. 
 (1 Chitty PI. 348.) 
 
 An action will lie to recover back money paid by mistake or 
 money paid on a contract which has been rescinded. (18 J. R. 
 488. 5 id. 85.) It is settled as a general principle, that where 
 a man pays money, without any legal obligation to do so, under 
 a mistake of facts and without the means of ascertaining the 
 truth ; or if he be induced to pay it under false representations, 
 he may recover it back. (2 Hall's Ct. R. 252.) But the mistake 
 must be of facts. When there is no fraud or mistake in relation 
 to the matter of fact, but the law is mistaken, the rule applies ; 
 ignorance of law does not excuse. 
 
 An action will also lie to recover back money paid, where the 
 consideration of tiie payment has failed. As where payment is 
 made in advance for services, and the services are not rendered ; 
 or money is paid in advance for goods, and the defendant refuses 
 to deliver the goods. 
 
 An action lies for money got by imposition, express or implied,
 
 PRINCIPLES OF SUITS. 41 
 
 or by extortion, oppression, or undue advantage taken of the 
 plaintiff's situation. In a word, an action may be maintained 
 in all cases where the defendant, under the circumstances of 
 the case, is obliged, by the ties of natural justice and equity, to 
 refund the money he wrongfully withholds. (J 2 J. R. 274. 4 
 id. 255.) 
 
 When the money has been paid upon an illegal contract, and 
 both parties are equally in fault, the money cannet be recovered. 
 Where therefore, a contract is made the object of which is to 
 violate the statute, and one of the parties pays money to the 
 other in furtherance of the contract, and the contract is in part 
 executed, having however a portion of the money which has 
 been advanced, unexpended, an action will not lie to get back 
 the'unexpended balance. (15 Wend. 412.) 
 
 To maintain the action for money had and received, either 
 the money or the goods for which the plaintiff claims the pro- 
 ceeds, must originally, or at the time of the action brought, have 
 belonged to the plaintiff. (1 Chitty PI. 386.) 
 
 For goods sold and delivered. If I purchase goods of a 
 person, an action will lie against me for the price agreed ; and 
 if no price be agreed upon between us, the law will imply my 
 obligation and ability to pay for them what they are worth. 
 (18 J. R. 451.) To support the action, there must have been 
 an actual delivery of the goods, or something equivalent to it. 
 The plaintiff should prove on the trial, 1. The sale ; 2. The 
 delivery of the goods ; and 3. Their value. 
 
 For loork and labor. If one person perform services for 
 another, at the request of the latter, an action will lie to recover 
 the compensation agreed upon ; or, if there be no specific agree- 
 ment as to the compensation, the reasonable worth of the ser- 
 vices may be recovered ; and the plaintiff will be permitted to 
 show on the trial, 1. That he performed the services ; and 2. 
 What those services were worth. A request to perform the 
 services must be either expressly proved, or reasonably im- 
 plied, from the situation of the parties, or the circumstances 
 of the case. Thus, where medical assistance was rendered 
 to a servant, without the master's request, the master was 
 held not liable. (12 J. R, 249.) And where a physician 
 furnished medicines to a pauper, it was held that he could 
 
 For the purpose of calculating interest, a month shall be con-
 
 ^ THE FORM AND GENERAL. 
 
 not recover therefor from the overseers of the poor, without 
 showing their request. (12 J, R. 352.) But it seems if the 
 medical assistance were rendered in a case of such extremity as 
 not to warrant the delay of application to the master, the master 
 would be liable. 
 
 When labor and services are performed for a person with his 
 knowledge and assent, there is a strong presumption that they 
 are performed at his request. If a laborer hire himself to work 
 a stated length of time, and without the consent of his employer 
 leave his service before the expiration of the time agreed, he 
 cannot recover for the labor performed. (12 J. R. 165. 8 Cow. 
 63.) In such cases, the contract is considered entire, and 
 nothing short of full performance will enable a party to sustain 
 an action upon it. But if after part of the time has elapsed, the 
 employer give the laborer his note for the services already ren- 
 dered, this is so far a change of the contract, that the note may 
 be recovered, although the laborer quit his service in violation 
 of the contract. (13 J. R. 53. 4 Cow. 564.) 
 
 An infant may sue and recover for a part performance of 
 an entire contract ; for though he is not bound to fulfil the con- 
 tract on his part, the very circumstance of its being void leaves 
 it for the law to imply a promise of compensation for the work 
 which he has actually done. (2 Pick. R. 332.) 
 
 If a servant misconduct himself, he may be discharged with- 
 out previous notice, and before his time expires. And in such 
 case, he is not entitled to wages even for the time during which 
 he has served. 
 
 If, however, an employer discharge his servant without good 
 cause, or abuse him in such a manner as to render it unsafe or 
 improper to live with him any longer, he is permitted to recover 
 for his services, or he may recover damages for the breach of 
 the agreement on the part of the employer, the law having 
 bound him on his part, 1. To give the laborer employ during 
 the time he so hired to him ; and 2. To use him in a proper 
 and becoming manner during that time. 
 
 As to what conduct of the master will justify the servant's 
 leaving before the expiration of his term of hire, it has been 
 decided that where a servant hires himself for a fortnight, and 
 leaves the service of his employer at the end of ten days, in 
 consequence of harsh language from him, he is not entitled to 
 any wages for the ten days. (1 Wend. 514.) And the de-
 
 PRINCIPLES OF SUITS. 43 
 
 cision in that case seems to be put upon the ground, that, 
 ahhough the employer's language was extremely improper, yet 
 that in point of fact, he did not turn the servant away ; and in 
 no case, it is presumed, would a servant be justified in quitting 
 the service of his employer for maltreatment, unless the master's 
 conduct be such as to amount to a rescision of the contract on 
 his part, or, in other words, unless the maltreatment complained 
 of shows a willingness of the master to be rid of the servant. 
 (7 Cow. 112.) 
 
 For use and occupation. Any landlord may recover, in an 
 action, a reasonable satisfaction for the use and occupation of 
 any lands or tenements by any person, under any agreement, 
 not made by deed ; (that is, not under seal ;) and if any parol, 
 demise, or other agreement, not being by deed, by which a 
 certain rent is reserved, shall appear in evidence on the trial of 
 any such action, the plaintiff shall not, on that account, be de- 
 barred from a recovery ; but may make use thereof, as evidence 
 of the amount of damages to be recovered. (1 R. S. 739, 
 sec. 26.) 
 
 The statute provides for the recovery of such a compensation 
 as the law considers reasonable, for the use and occupation of 
 premises, when the tenant occupies them by permission of the 
 plaintiff, whether there be, or be not, an agreement as to the 
 amount of rent. The action is founded upon contract, express 
 or implied, between parties standing in the relation of landlord 
 and tenant. (13 J. R. 240.) Where the plaintiff let certain 
 premises by verbal agreement for one year, to the defendant ; 
 and without any express new agreement, the defendant occu- 
 pied the premises for three years, it was adjudged that the 
 holding was by implied agreement, and that the plaintiff might 
 recover for the three year's use and occupation. (15 J. R, 505.) 
 
 If part of an entire agreement be illegal and void, the whole 
 is void. (8 J. R. 253.) 
 
 Interest on Money and Accounts. 
 
 The rate of interest upon the loan or forbearance of any 
 money, goods, or things in action, shall continue to be seven 
 dollars upon one hundred dollars for one year ; and after that rate, 
 for a greater or less sum, or for a longer or shorter time. (2 R. 
 S. 56, sec. 1.)
 
 44 THE FORM AND GENERAL 
 
 sidered the twelfth part of a year, and as consisting of thirty 
 days ; and interest for any number of days less than a month, 
 shall be estimated by the proportion which such number of 
 days will bear to thirty. (Id. sec. 18.) 
 
 The parties may stipulate for any lower rate of interest than 
 the legal rate. Where no rate of interest is fixed by the con- 
 tract, the creditor may demand the rate fixed by law. Interest 
 should be calculated according to the law of the place where 
 the contract is to be performed. (2 J. R. 235.) 
 
 It is a general rule that all contracts, express or implied, for 
 the payment of money, draw interest from the time of the 
 money falling due. (7 Wend. 109.) If, howeverj interest is 
 not agreed to be paid by the terms of the contract, if the credi- 
 itor receives the principal, he cannot afterwards sue for the in- 
 terest. Otherwise, where interest is stipulated for in the con- 
 tract. (15 Wend. 76.) 
 
 Interest is not recoverable on uncertain demands, unless 
 there be an agreement, express or implied, to allow interest. 
 (4 Cow. 496.) Nor on open, running, or unliquidated accounts, 
 unless there be some usage of trade, or other circumstance for 
 which an agreement to allow interest may be inferred. (3 
 Cai. 226. 2 Wend. 413.) 
 
 2. On an Injury to the Person^ or to Real Property •> or for 
 Taking, Detaining, or Injuring Personal Property. 
 
 Every injury to the person, j^ersonal property, or lands, of 
 any person committed by another, may be the subject of an 
 action. (1 Selw. 453.) 
 
 The injury may be occasioned by the act of the defendant at 
 the time, or the injury may not be direct and immediate on the 
 act done, but consequential only. (Id.) 
 
 The law denominates a direct injury to the person " assault 
 and ba(tc7y," of which Justices of the Peace have not juris- 
 diction ; (Code, sec. 54 ;) so that actions can be brought before 
 Justices for no other direct injuries than such as are committed 
 upon cithor the personal or real property of the plaintifl". 
 
 Direct Injury to Personal Property. 
 A direct injury to personal property may be committed either
 
 PRINCIPLES OF SUITS. 45 
 
 hy dcpriviiig the oioner of possession^ or hy iiijuring the pro- 
 perty in the hands of the owner. 
 
 To maintain an action for such injury, the plaintiff must 
 have actual or constructive possession, at the time of the alleged 
 injury. (8 J. R. 435.) By constructive possession, is meant a 
 right to immediate possession, as if goods are in the possession 
 of a man's servant, or agent, the possession of the servant or 
 agent being the possession of the owner. (11 J. R. 285.) Bare 
 possession, though illegal, is a sufficient title to support an 
 action against any person other than the true owner. (3 J. R. 
 141. 7 Cow. 752.) 
 
 A master has no right to command his servant to destroy or 
 injure property : if he do, and the servant obey, both the master 
 and servant will be liable. (14 J. R. 119.) In some instances, 
 an action may be supported for a wrongful act or injury to per- 
 sonal property, whilst in the lawful possession of the wrong 
 doer — as where he has been guilty of an abuse — which renders 
 him culpable from the beginning. If, therefore, a person take 
 possession of goods and chattels, in pursuance of an authority 
 or license given hy law, and abuse such goods and chattels, he 
 is liable ; as if a person seize cattle doing damage on his lands, 
 and work the cattle, or impound them, before he has the dam- 
 ages appraised. (11 J. R. 253. 13 id. 414.) 
 
 When an immediate act is done by the co-operation or joint 
 act of several persons, they are all liable, and may be sued 
 jointly or severally ; and any one is lialMe for the injury done 
 by all. (8 Cow. 111.) But when joint wrong doers are sued 
 separately, and separate judgments obtained, the plaintiff can 
 have but one satisfaction for his damages, and he may elect the 
 highest sum recovered. He is entitled, however, to his costs in 
 each suit. 
 
 Direct Injury to Real Property. 
 
 Actual and exclusive possession without a legal title is suffi- 
 cient against a wrong doer, or a person who cannot show any 
 right or authority from the real owner. (11 East, 65. 7 Cow. 
 752.) Where a person contracted with the owner of a lot for 
 the purchase of a growing crop of grass, it was decided that 
 the purchaser had such an exclusive possession of the lot, 
 though for a limited purpose, that he might maintain an action
 
 46 THE FORM AND GENERAL 
 
 against any person entering the lot and taking the grass even 
 with the assent of tlie owner. (1 Chitty PI. 200. 6 East, 
 602.) 
 
 If a man, without permission, enter on the land of another to 
 take away his own property, he will render himself liable to an 
 action. (6 J. R. 5. 14 id. 406.) So also if he enter a private 
 dwelling house without license. (12 J. R. 408.) This license, 
 however, need not always be express, but may be implied, as by 
 familiar intimacy. If a person enter by express permission, and 
 is then guilty of rude conduct to the family, or refuse to with- 
 draw when requested, an action will lie, the law regarding the 
 original entry in such case as unlawful. 
 
 An action may be supported for an injury to land, though not 
 fenced. It will lie, however unintentional the injury, if the en- 
 try were not for a justifiable purpose. (5 Bac. Ab. Tit. Tres.) 
 
 In actions for damages done by beasts, the question used to 
 be raised as to the sufficiency of fences. The Supreme Court 
 at length decided that it was a good defence that the defend- 
 ant's beasts, which did the damage, entered the plaintiff's land 
 by reason of a defect in the partition fence, which the plaintiff 
 was hound to keep in repair ; but that if defendant's beasts en- 
 tered otherwise than through that part of the partition fence 
 which the plaintiff was bound to repair ; or if they did damage 
 on the unenclosed lands of the plaintiff, the defendant would be 
 liable for such damage ; that it was, however, a good defence to 
 an action for damages done by cattle on unenclosed land, that 
 there was a town regulation permitting the cattle to go at large. 
 (12 J. R. 433. 1 Cow. 79. 19 J. R. 385.) 
 
 Towns are now expressly empowered to make rules and re- 
 gulations for ascertaining the sufficiency of fences therein, and 
 for directing the times and manner in which cattle should be 
 permitted to go at large on highways. 
 
 When the electors of any town shall have made any rate or 
 regulation prescribing what shall be deemed a sufficient fence in 
 such town, any person who sliall thereafter neglect to keep a 
 fence according to such rule or regulation, shall be precluded 
 from recovering compensation, in any manner, for damages done 
 by any beast, lawfully going at large on the highways, that may 
 enter on any lands of such person not fenced in conformity to 
 the said rule or regulation, or for entering througli any defective 
 fence. (1 R. S. 347, sec. 44.)
 
 PRINCIPLES OF SUITS. 47 
 
 One of two or more defendants, sued jointly for the same 
 wrong, though he suffer judgment to pass against him by de- 
 fault, cannot be a witness for his co-defendants. If, however, 
 he plead, and is discharged, there being no evidence against him, 
 he may be a witness. (6 Cow. 313.) 
 
 Indirect Injuries. 
 
 An indirect injury may be either by non-feasance, or the omis- 
 sion of some act which the defendant ought to perform ; or by 
 misfeasance, being the improper performance of some act which 
 might lawfully be done, or by malfeasance, the doing what the 
 defendant ought not to do. 
 
 These respective wrongs are commonly the performance or 
 omission of some act, contrary to the general obligation of the 
 law, or to some express or implied contract between the parties. 
 
 To the person. Either to the absolute or relative rights of 
 persons ; that is, to such rights as appertain to particular men 
 merely as individuals ; or to such rights as are incident to all 
 men as members of society. The person injured may be effect- 
 ed either in his own person, or in his rights as a husband, pa- 
 rent and master. The injury for which an action would lie, 
 may result to the individual from a public nuisance ; as if one 
 throw a log or dig a ditch across the highway, and a ti-aveller 
 thereby fall and break a limb. So also if the health of a per- 
 son be impaired by the erection or continuance of any offensive 
 or noxious works, or by the sale of unwholesome provisions. 
 Also by the keeping of mischievous animals, the person keeping 
 them having notice of their propensity. So from the negligence 
 of another ; as where the defendant carelessly fired a pistol, and 
 wounded the plaintiff's leg. (14 J. R. 432.) 
 
 An action may be maintained against sheriffs, constables and 
 other ministerial ofiicers, for oppressive conduct in the execu- 
 tion of process ; (5 J. R. 125 ;) as where a constable had a war- 
 rant to collect a military fine, and refused to take other property, 
 but took and sold a horse, with the declared intent of injuring 
 the feelings of the delinquent. If an officer, having authority to 
 attach a man's goods, keep them in an unsafe place, or expose 
 them to destruction, he acts contrary to the duties of his office, 
 and will be liable in case they are destroyed. (9 J. R. 381.) 
 
 An action lies for injuries affecting the rights of a person as
 
 48 THE FORM AND GENERAL 
 
 husband, parent or master ; as harboring wives, enticing away 
 children, apprentices or servants ; the consequent loss of society 
 or service being the ground of action. 
 
 To personal property. An action lies for injury to personal 
 property not committed with force, or not immediate ; as, for 
 injury to animals by means of any nuisance erected or continued 
 by another, or for damage done by a domestic animal, kept for 
 use or convenience, to the animal of another person, provided 
 the owner knew that the animal was accustomed to do like mis- 
 chief. (13 J. R. 339.) But the owner of a dog which has killed 
 or wounded any sheep or lamb, is liable for the damage done, 
 whether he knew that the dog was mischievous or disposed to 
 kill sheep or not. (1 R. S. 701, sec. 9.) An action will lie 
 against an innkeeper for the goods of his guest stolen out of his 
 inn or out-house, even although the innkeeper is chargeable 
 with no negligence ; as where the doors of a wagon-house were 
 broken open, and the plaintiff's wheat stolen. (14 J. R. 175.) 
 
 An action lies against attorneys, or other agents, for neglect 
 or other breach of duty or misfeasance, in the conduct of a 
 cause or other business. 
 
 For any misfeasance by a party in a trade which he pro- 
 fesses, the law gives an action to the party aggrieved ; or if a 
 smith, in shoeing a horse, prick him — and other like cases. 
 
 Actions are frequently brought before Justices for deceit in 
 the sale or exchange of goods and chattels. If the seller is 
 guilty of a fraudulent concealment of material facts, an action 
 will lie. Fraud, however, is not to be presumed, but must be 
 satisfactorily proved. (18 J. R. 403.) A mere affirmation of 
 the seller that an article is worth more than its real value, when 
 the buyer purchases on sight, furnishes no ground of action. 
 (5 J. R. 354.) There is one case, however, in which an action 
 for deceit will lie, without proof of misrepresentation, and 
 where fraud will be implied. Thus, in the sale of provisions 
 for domestic use, the vendor is bound at his peril to know that 
 they arc sound and wholesome — and if they are not, he will 
 be liable. (12 J. R. 408.) 
 
 In an action brought to recover the price of an article sold, or 
 in a suit brought on a promissory note given for the price of an 
 article, the defendant may show fraud in the sale, and thereby 
 either wiiolly defeat a recovery or reduce the damages accord- 
 ing to the circumstances of the case. (8 Cow. 33, 34.)
 
 PRINCIPLES OF SUITS. 49 
 
 To Real Property. If a man erect a spout on his own land, 
 which diverts water on the land of his neighbor, or diverts an 
 ancient water-course to the injury of another, an action lies. 
 So also it will lie at the suit of a party on whose application a 
 private road is laid out, against any person for using the road. 
 (14 J. R. 383.) 
 
 Every man has a right to erect a mill on his own land ; but 
 if he so construct his dam, and use the water so as materially 
 and substantially to injure his neighb6r in the enjoyment of the 
 same water, according to its natural course, an action will lie to 
 recover damages for the injury. (10 J. R. 241. 15 J. R. 215.) 
 
 If a mill dam be built, pursuant to an act of the legislature, 
 upon a stream which is a public highway, the act will only pro- 
 tect against an indictment for a nuisance ; and persons injured 
 thereby by flowing, <fec., may prosecute for damages, whether 
 the statute authorize the erection or not. (5 Cow. 165.) 
 
 If a person, in building a house adjoining the land of another, 
 sink his foundation below the foundation of his neighbor's 
 house, he is liable for any consequential damages, unless he 
 used due care and diligence to prevent the injury. (17 J. R. 92.) 
 So, also, an action will lie, if a man set fire to his own fallow, 
 and through his negligence the fire communicate to and injure 
 the land of his neighbor. (8 J. R. 421.) It is a settled princi- 
 ple that every man ought to be protected in the prudent exer- 
 cise of a lawful right ; but if, through want of care and dili- 
 gence, in the exercise of such right, his neighbor suflers injury, 
 an action therefor may be maintained. 
 
 3. From the Incurring of some Penalty given hy Statute. 
 
 When a pecuniary penalty or forfeiture is specially granted 
 by law, to any person injured or aggrieved by any act or omis- 
 sion of another, the same may be sued for and recovered, and 
 the action shall be prosecuted and conducted in the same man- 
 ner as other personal actions in all respects, unless otherwise 
 provided. (2 R. S. 575, sec. 1, 2.) 
 
 Actions brought by the District Attorney of any county, or by 
 any public officer, for the recovery of any penalty or forfeiture, 
 shall also be conducted and prosecuted in the same manner as 
 personal actions. (Id. sec. 3.) 
 
 Where any penalty or forfeiture is given by law to any per- 
 
 4
 
 50 THE FORM AND GENERAL 
 
 son who will sue for the same, such suit shall be brought in the 
 name of the person commencing the same, who may appear by 
 attorney ; and it shall be conducted and prosecuted in all re- 
 spects in the same manner as personal actions, and shall be sub- 
 ject to the provisions of law concerning personal actions. (Id. 
 sec. 5.) 
 
 Every action for a penalty or forfeiture shall be brought in 
 the county where the act was done, upon which such penalty 
 or forfeiture attached. (Id. sec. 8.) Where such penalty or for- 
 feiture attaches in consequence of the omission of any public 
 officer to perform any duty incident to his office, the action shall 
 be brought for the recovery thereof, in the county of which such 
 person was an officer. (Id. sec. 9.) 
 
 There are a great variety of statutes which impose penalties 
 or forfeitures for their violation, the rules of prosecuting for 
 which are nearly the same in all cases. Justices of the Peace 
 have cognizance of actions upon these statutes where the pen- 
 alty does not exceed one hundred dollars. (Code, sec. 53. Id. 
 sec. 54.) 
 
 4. Such as are Prosecuted hy Attachment. 
 
 The subject of attachment of property in Justices' Courts, is 
 very fully discussed in another part of this work. To avoid 
 repetition, therefore, I shall not treat of it under this head. 
 
 Actions are not cognizable by a Justice of the Peace in the fol- 
 lowing cases. (Code, sec. 54.) 
 
 1. In suits in which the people of the state are a party, ex- 
 cepting for penalties not exceeding one hundred dollars. 
 
 2. In suits where the title to real properly shall come in ques- 
 tion. 
 
 3. An action for assault and battery, false imprisonment, libel, 
 slander, malicious prosociUion, criminal conversation or seduc- 
 tion. 
 
 4. Matter of account, where the sum total of the accounts of 
 both i)arti('s, proved to the satisfaction of the Justice, shall ex- 
 coed four Inindrcd dollars. 
 
 B. Action against executors or administrators as such.
 
 PRINCIPLES OF SUITS. 51 
 
 The Code speaks of an action upon a liability created by stat- 
 ute other than a penalty or forfeiture. (CodOj sec. 91.) Such 
 an action is not within the jurisdiction of a Justices' Court, un- 
 less it comes within an action on contract, or of an action for 
 injury to personal or real property. 
 
 It is believed that Justices of the Peace have not cognizance 
 of actions for the recovery of penalties imposed by bye-laws of 
 cities, villages and towns. It is true, the authority to enact 
 laws imposing such penalties, must depend on a power derived 
 from some statute ; yet the penalties are not imposed by any 
 statute, and consequently do not come within the description of 
 cases in which jurisdiction is conferred upon Justices' Courts. 
 (See Hayden's Appen. 71.)
 
 CHAPTER III. 
 
 OF THE COMMENCEMENT OF SUITS. 
 
 The subjects of this chapter, are the following : 
 
 1. The manner in which suits may be instituted before a 
 Justice. 
 
 2. Definition of, and various kinds of process. 
 
 3. Statement of cause of action in summons, how made. 
 Nature of summons, and service thereof. Distinction between 
 a long and a short summons, and when they are respectively 
 used. 
 
 4. Definition of a warrant. In what actions process by war- 
 rant applicable. Steps preliminary to obtaining a warrant. 
 
 5. Manner of arrest, and proceedings subsequent thereto. 
 
 6. In what cases process by attachment applicable. Appli- 
 cation for attachment how made. Steps preliminary to obtain- 
 ing an attachment. Distinction between a long and a short 
 attachment, and when they are respectively used. Manner of 
 executing attachment, and proceedings subsequent thereto. 
 
 7. General rules applicable to process. 
 
 Suits may be instituted before a Justice, by the voluntary 
 appearance and agreement of the parties, or by process. 
 
 Process is the means used for compelling the defendant to 
 appear in court. (3 Blk. Com. 279.) It must be by summons, 
 rvarrant, or attachm^ent. 2 R. S. 326, sec. 12.) 
 
 When the suit is instituted without process, it must be deemed 
 to have commenced at the time of the parties making their 
 complaint and answer. (Id. sec. 13.) 
 
 If a summons or an attachment is issued, the suit is com- 
 menced when the process is delivered to the constable. When 
 two or more suits are instituted by summons or attachment on 
 the same day, that suit is deemed first commenced in which 
 the process is first served. (Id.) 
 
 Wlif'ro a wainiiit is tlie process used, the suit is commenced 
 at the time of the arrest ol' tlie defendant. (Id.)
 
 OF THE COMMENCEMENT OF SUITS. 53 
 
 1. Summons. 
 
 A summons is a writ issued by the Justice. It is directed to 
 any constable of the county where the Justice resides, com- 
 manding him, in the name of the people of the state, to sum- 
 mon the defendant to appear before the Justice who issues it, at 
 a time and place to be named in the summons, to answer the 
 plaintiff in the action, in the same summons to be mentioned. 
 
 FORM OF A SUMMONS. 
 
 Chenango County, ss. 
 
 To any constable of said county, greeting : — 
 
 You are hereby commanded, in the name of the people of the 
 state of New York, to summon Henry Brown, if he shall be 
 found in said county, to appear before me, the undernamed, a 
 Justice of the Peace of said county, at my office in the town of 
 Oxford, county aforesaid, on the 10th day of May, instant, at 
 10 o'clock in the forenoon, to answer John Smith, in an action 
 on a promissory note, to the sum of one hundred dollars, or 
 under. And have you then there this precept, with your return 
 thereupon, as by law required. Hereof fail not at your peril. 
 Give under my hand at Oxford aforesaid, the 2d day of May, 
 1849. 
 
 David Long, Justice. 
 
 The statement of the cause of action will, of course, vary 
 with the nature of the suit. If the action is for injury to the 
 plaintiff's person, or to the person of his wife, or servant, or for 
 an injury to his personal or real property, or for taking or de- 
 taining personal property, or if it is an action for a statute pen- 
 alty, it should be so stated. If the plaintiff sues, or the defend- 
 ant is sued, in a particular character, such character should be 
 stated in the summons. 
 
 The summons is the most usual process of a Justices' Court. 
 By the abolishment of imprisonment for debt, it has become of 
 almost universal application. By the non-imprisonment act. 
 passed in 1831, no person can be arrested or imprisoned on any 
 civil process, or on any execution issuing out of any court in 
 this state, in any suit or proceeding instituted for the recover}' 
 of any money due upon any judgment or decree founded upon 
 contract, or due upon any contract, express or implied, or for
 
 54 OF THE COMMENCEMENT OF SUITS. 
 
 the recovery of any damages for the non-performance of any 
 contract. It is however enacted, that the foregoing shall not 
 apply to proceedings as for contempts, to enforce civil remedies ; 
 nor to actions for fines or penalties ; or on promises to marry ; 
 or for monies collected by any public officer ; or for any mis- 
 conduct or neglect in office, or in any professional employment. 
 
 In actions for the recovery of damages, on causes of action 
 not arising out of contract, the defendant may, as hereafter will 
 appear, still be arrested. 
 
 The summons must be served, if the defendant be found, by 
 reading it to him, and (if required) delivering a copy. If the 
 defendant be not found, by leaving a copy at his last place of 
 abode in the presence of some one of the family of suitable age 
 and discretion, who must be informed of its contents.* (2 R. 
 S. 327, sec. 16.) 
 
 The time for the service and return of a summons, is go- 
 verned by the consideration of its being a lojig or a short 
 summons. 
 
 By a loJig sutnmons, is understood a summons which is re- 
 turnable not less than six, nor more than twelve days from its 
 date and which must be served at least six days before the 
 time of appearance mentioned therein. 
 
 By a short summons, is meant a summons which is returna- 
 ble not less than two, nor more than four days from its date, 
 and which must be served at least two days before the time of 
 appearance mentioned therein. 
 
 When both parties are residents of the county, the long 
 summons must be adopted. So also, when the plaintiff is a 
 non-resident of the county, and does not make proof before the 
 Justice, by affidavit, of his non-residence, and give security, the 
 long summons is the proper process. 
 
 When the plaintiff is a non-resident, and has a demand 
 against a resident defendant arising on contract, he may serve 
 the defendant with a short summons, upon making an affidavit 
 of his non-residence, and giving security for the payment of 
 any sum that may bo adjudged against him. (15 Wend. 652. 
 5 Hill, 323.) 
 
 • If llio HiimrnonB is served by leaving a copy at the defendant's last place of 
 abode, :ind the defendant doea not uppcur in obedience to it, the Justice should issue 
 ftqother, or alias aurnmont.
 
 OF THE COMMENCEMENT OF SUITS. 95 
 
 The proof of non-residence must be by affidavit. It is not 
 enough that the Justice personally knows the plaintiff to be a 
 non-resident. (12 J. R. 422.) The affidavit may be made by 
 the plaintiff, or by any other person cognizant of the fact. 
 
 FORM OF AFFIDAVIT. 
 
 Queens Counts/, ss. — Selah Strong of the city of Brooklyn, 
 county of Kings, being duly sworn before Alvin Hunt, one of 
 the Justices of the Peace of Hempstead, in the county of 
 Ctueens, says that he has, as he verily believes, (or, if made by 
 a third person, that A. B. has, as deponent verily believes.) a 
 good cause of action arising on contract, against John Hall of 
 Hempstead, aforesaid, and that this deponent, (or the said A^ 
 B.,) is not a resident of the said county of Q^ueens. 
 
 Sklah Strong. 
 Subscribed and sworn before me, this 
 3d day of May, 1849. 
 
 Alvin Hunt, Justice. 
 
 The Justice should then take security from the plaintiff, for 
 the payment of any sum that may be adjudged against him. 
 This security extends to the final determination of the cause, 
 when carried up by appeal, so that the surety is liable to the 
 costs of appeal, if adjudged against the plaintiff. (17 Wend. 
 434.) It may be by a deposite of money with the Justice, of 
 sufficient amount to meet the full sum, which can, by possibil- 
 ity, be recovered of the plaintiff by the defendant. It is most 
 usual, however, to give written security. 
 
 FORM OF SECURITY. 
 
 Queens County, ss. — Selah Strong, having, upon the requi- 
 site proof of his being a non-resident of the county of Q,ueens, 
 made application to Alvin Hunt, one of the Justices of the 
 Peace of Hempstead, in said county, for a short summons in his 
 favor, against John Hall, in an action arising on contract. Now, 
 therefore, for value received, and according to the form of the 
 statute in such case made and provided, I do hereby consent to 
 become security for the said Selah Strong, and engage that the 
 said Selah Strong shall pay the said Hall any sum that shall
 
 56 OF THE COMMENCEMENT OF SUITS. 
 
 be adjudged against him, the said Selah Strong, in the suit com- 
 menced or to be commenced by the said summons. 
 
 Frederick Walker. 
 Signed, taken, and acknowledged be- 
 fore me, this 3d day of May, 1849. 
 
 Alvin Hunt, Justice. 
 
 When the defendant is a non-resident of the county, and the 
 cause of action arises on contract, express or impHed, the pro- 
 cess must be by short summons. (Non-Im. Act, sect. 33.) In 
 such a case, process may issue of course, without any prehmi- 
 nary steps bemg taken, no oath or security being required of the 
 plaintiff. (23 Wend. 338.) 
 
 2. Of Process hy Warrant. 
 
 A warrant is a writ running in the name of the people of the 
 State, and directed to the constable of any county where the 
 Justice issuing the same resides, commanding the constable to 
 take the defendant, and bring him forthwith before the Justice, 
 to answer the plaintiff in an action in such warrant to be men- 
 tioned ; and further requiring the constable, after he shall have 
 arrested the defendant, to notify the plaintiff of such arrest. 
 
 FORM OF WARRANT. 
 
 Chenango County^ ss. 
 
 The people of the State of New York, to any constable of the 
 said county, greeting : — 
 
 We hereby command you to take Thomas Nokes, if he shall . 
 be found in said county, and bring him forthwith before me, the 
 undernamed Justice of the Peace, at my office, in the town of 
 Greene, in said county, to answer John Stow, in an action for 
 moneys collected by the said Nokes, as a public officer, to the said 
 Stow's damage of one hundred dollars. 
 
 And you arc furthor connuandcd, after you shall have arrested 
 the defendant, to notify tlie plaintiff of such arrest, and make 
 due return hereupon, as by law required. Given under my 
 hand, at Greene, aforesaid, the 5th day of May, 1819. 
 
 Robert Doyle, Justice.
 
 OF THE COMMENCEMENT OF SUITS. 57 
 
 ANOTHER FORM OP WARRANT. 
 
 Chenango County^ ss. 
 
 The people of the State of New York, to any constable of said 
 county, greeting : 
 
 Whereas, William Place has this day made complaint on 
 oath, before David Long, a Justice of the Peace of the said 
 county, that John Stiles has maliciously and wantonly broken 
 down the fences of the said William Place, on his farm in the 
 town of Oxford, in said county. We, therefore, command you 
 to take the said John Stiles and bring him forthwith before the 
 said David Long, to be dealt with according to law ; and after 
 you shall have arrested the defendant, do you notify the plain- 
 tiff thereof Hereof fail not at your peril. Given under my 
 hand this 5th day of May, 1849. 
 
 David Long, Justice. 
 
 Since the passage of the act to abolish imprisonment for debt, 
 and to punish fraudulent debtors, as amended by the act of 
 1840, process by warrant is rendered inapplicable to a vast ma- 
 jority of actions instituted before Justices of the Peace. In the 
 collection of demands arising on contract, such as on notes, 
 book accounts, (fee, this kind of process is specially prohibited 
 by the act referred to. 
 
 The excepted cases in which a defendant may still be arrested 
 in actions on contract, were enumerated under the head of pro- 
 cess by summons. In all such actions, as well as in actions for 
 wrongs, the Justice, if application were made to him, would be 
 hound to issue his warrant against the defendant. (2 R. S. 327, 
 sec. 18.) 
 
 1. When the defendant is a non-resident of the county. 
 
 2. When the plaintiff is a non-resident, and tenders to the 
 Justice security for the payment of any sum which may be ad- 
 judged against him in the suit. 
 
 3. When it shall appear, to the satisfaction of the Justice, by 
 the ajjidavit of the applicant, or of any other witness, that the 
 person against whom such warrant is desired, is about to depart 
 from the county with intent not to return thereto. 
 
 4. Where the defendant is an inhabitant of the county, hav- 
 ing a family, or a freeholder of the same county, and it shall in 
 like manner appear to the satisfaction of the Justice, that the
 
 58 OF THE COMMENCEMENT OF SUITS. 
 
 plaintiff will be in danger of losing his debt or demand, unless 
 such warrant be granted.* 
 
 In making appHcation for a warrant, the person applying 
 must make affidavit of the facts and circumstances within his 
 knowledge, to satisfy the Justice of the propriety of issuing the 
 warrant. (2 R. S. 327, sec. 20.) The proof by affidavit is indis- 
 pensable, and the Justice cannot dispense with it, under the pre- 
 tence that he is satisfied without proof (1 Wend. 216.) 
 
 The following forms may serve as precedents : — 
 
 Chenango County, ss. — John Burns, of Oxford, in the county 
 of Chenango, being duly sworn before David Long, one of the 
 Justices of the Peace of Oxford, in. the county of Chenango, 
 says that he has, as he believes, a good cause of action against 
 Richard Roe, of Oxford aforesaid, for taking and converting to 
 
 * The Code declares that its provisions in relation to the arrest of defendants, 
 shall not affect the act to abolish imprisonment for debt, and to punish fraudulent 
 debtors, passed April 26, 1831, or any act amending the same. From the Revised 
 Statutes, as modified by this act, is derived the lav? in relation to the issuing of weir- 
 rants from Justices' Courts. 
 
 The Code enacts that no person shall be arrested in a civil action, except in the 
 manner prescribed, and in the following cases : — 
 
 1. In an action for the recovery of damages, on a cause of action not arising out 
 of contract, where the defendant is not a resident of the state, or is about to remove 
 therefrom, or where the action is for a wilful injury to person or character, or wil- 
 fully injuring, taking, detaining or converting property. 
 
 2. In an action for a fine or penalty, or on a promise to marry, or for money re- 
 ceived, or property embezzled, or fraudulently misapplied by a public officer or by 
 an attorney, solicitor or counsellor, in the course of his employment as such, or by 
 any person in a fiduciary capacity, or for any misconduct or neglect in office, or in 
 a professional employment. 
 
 3. In an action to recover the possession of personal property unjustly detained, 
 where the property has been concealed or removed, so that it cannot be found or 
 taken by the sheriff. 
 
 4. Where the defendant lias been guilty of a fraud, in contracting the debt, or 
 incurring the obligation for which tiio action is brought, or in concealing or dispo- 
 sing of the property, for the taking, detention, or conversion of which the action is 
 brought. 
 
 5. When the defendant has removed or disposed of his property, or is about to do 
 HO, with intent to defraud his creditors. 
 
 Hut no female Hhall bo urrcHted in any action, except for a wilful injury to per- 
 son, character or i)roperty. 
 
 By reference to tiio Code, it will bo perceived that the foregoing provisions, in re- 
 lation to arrest, are mainly applicable to courts of record.
 
 OF THE COMMENCEMENT OF SUITS. 59 
 
 his own use the personal property of this deponent, namely : 
 [here insert a list of the articles taken.\ This deponent further 
 says that he is not a resident of the county of Chenango, and 
 is ready to give security for the payment of any sum that may 
 be adjudged against him in this suit. 
 
 John Burns. 
 Subscribed and sworn before me, 
 
 this 5th day of June, 1849. 
 
 David Long, Justice. 
 
 Chenango County, ss. — John Smith, of Oxford, in the county 
 of Chenango, being duly sworn before David Long, one of the 
 Justices of the Peace of the said town, says that Richard Roe, 
 against whom he makes application for warrant, in pursuance of 
 the statute in such case made and provided, and against whom 
 he has, as he verily believes, a just cause of action, is not a re- 
 sident of the county of Chenango, but is a resident of the county 
 of Oneida. And deponent further says, that the said cause of 
 action is for moneys collected by the said Richard Roe, in his 
 official character as constable. 
 
 John Smith. 
 Subscribed and sworn this 5th day 
 
 of June, 1849, before me. 
 
 David Long, Justice. 
 
 Chenango County, ss. — Henry Strong, being duly sworn, 
 says that he has, as he verily believes, a good cause of action 
 against Richard Roe, for taking and converting to his own use 
 the personal property of this deponent, to wit : [here itisert a list 
 of the articles taken.] And deponent further says that said 
 Roe, is, as deponent verily believes, about to depart from said 
 county, with intent not to return thereto, and that the facts and 
 circumstances on which that belief is founded are : [here state 
 the grounds of belief according to the facts.] 
 
 Or, deponent believes he will be in danger of losing his 
 demand against the said Richard Roe, unless a warrant be 
 granted ; and that such belief is founded upon the following 
 facts and circumstances, to wit : [here state the grounds of 
 danger.] 
 
 Henry Strong. 
 Subscribed and sworn before me, 
 
 this 5th day of June, 1849. 
 
 David Long, Justice.
 
 60 OF THE COMMENCEMENT OF SUITS. 
 
 When a non-resident plaintiff applies for a warrant, he is re- 
 quired to give security for the payment of any sum that may 
 be adjudged against him in the suit. (2 R. S. 327, sec. 18.) It 
 has been decided that this security may be a deposit of money 
 with the Justice. (13 J. R. 481.) As, however, the security 
 extends to the final determination of the cause, if carried up by 
 appeal, it would be better in all cases, in order to make sure ^ 
 of its sufficiency, to take the engagement of some responsible 
 person in writing. (7 J. R. 18. 1 Cow. 99. 7 Wend. 434.) 
 
 The following form may be adopted : — 
 
 Chenango County, ss. — John Smith having, upon the requi- 
 site proof of his being a non-resident of the county of Che- 
 nango, made application to David Long, one of the Justices of 
 the Peace of Oxford, in said county, for a warrant in his favor 
 against Richard Roe, in an action for moneys collected by said 
 Roe, in his official character as constable : Now, therefore, for 
 value received, and according to the statute in such case made 
 and provided, I do hereby consent to become security for the 
 said John Smith, and engage that the said Smith shall pay the 
 said Roc any sum that shall be adjudged against him, the said 
 Smith, in the suit to be commenced by the said warrant. 
 
 Robert Doyle. 
 Signed, taken and acknowledged before 
 
 me this 5th day of June, 1849. 
 
 David Long, Justice. 
 
 The constable serving the warrant must return thereupon, in 
 "writing, the manner in which he executed the same, and the 
 fact whether he has or has not notified the plaintiff. (2 R. S. 328, 
 sec. 23.) 
 
 FORM OF RETURN. 
 
 T liavo arrested the defendant, and notified the plaintiff, as 
 witliin commanded. 
 
 William Cooke, Constable. 
 
 Th(; d(jfi;n(laiil umst be actiiuUi/, that is, personally arrested^ 
 and brought be/ore the Justice. If not, a judgment rendered 
 upon tlif warrant, will ])c void. (0 Cow. 61.) 
 
 If the Justice who issued the warrant be absent on its return, 
 or unable to hear or try tlic cause, or if it be made to appear by
 
 OF THE COMMENCEMENT OF SUITS. Ql 
 
 the affidavit of the defendant, that the Justice is a material wit- 
 ness in the cause, the constable must take the defendant before 
 the next Justice of the city or town, who will be required to 
 take cognizance of the cause, and proceed thereon, as if the 
 warrant had been issued by him. (2 R. S. 328. sec. 22.) 
 
 When the defendant is brought before the Justice by warrant, 
 he must be detained in the custody of the constable until re- 
 leased by the Justice ; but the justice must discharge the defen- 
 dant after the expiration of twelve hours from the time he is 
 brought before him, unless within that time the trial of the cause 
 is commenced, or unless it is delayed at the instance of the de- 
 fendant. (Sec. 26.) 
 
 3. Of Process by Attachment. 
 
 Process by attachment is only applicable to demands arising 
 on contract, or on a judgment. The statute requires that the 
 attachment shall state the amount of the debt sworn to by the 
 applicant, and command any constable of the county in which 
 the Justice resides, to attach so much of the goods and chat- 
 tels of the debtor, as will be sufficient to satisfy such debt, and 
 safely keep the same, in order to satisfy any judgment that may 
 be recovered on such attachment ; and to make return of the 
 proceedings therein, to the Justice who issued the same. (2 R. 
 S. 329, sec. 31.) 
 
 For an attachment to issue, the demand must, as I have al- 
 ready stated, be in all cases founded on contract or upon a judg- 
 ment ; (sec. 28 ;) and the demand must be against the debtor 
 personally — that is, due from him in his own right, and not as 
 executor or administrator, heir or trustee. (1 John. Cas. 376.) 
 
 There are three instances in which an attachment is allowed 
 by statute. (2 R. S. 328, sec. 27. Sess. Laws, 1831, sec. 33, 34.) 
 
 1. When it shall appear to the satisfaction of the Justice, that 
 the debtor has departed, or is about to depart, from the county 
 where he last resided, with intent to defraud his creditors, or to 
 avoid the service of any civil process ; or that such debtor keeps 
 himself concealed with the like intent. 
 
 2. Whenever by the provisions of the thirtieth section of this 
 (non-im.) act no warrant can issue, and the defendant shall 
 reside out of the county, he shall be proceeded against by sum- 
 mons or attachment, returnable not less than two nor more than
 
 Q2 OF THE COMMENCEMENT OF SUITS. 
 
 four days from the date thereof, which shall he served at least 
 two days before the time of appearance mentioned therein, and 
 if such defendant be proceeded against otherwise, the Justice 
 shall have no jurisdiction of the cause. 
 
 3. For the recovery of any debt or damages arising upon any 
 contract, express or implied, or upon any judgment for one 
 hundred dollars or less, whenever it shall satisfactorily appear 
 to the Justice that the defendant is about to remove from the 
 county any of his property, with intent to defraud his creditors, 
 or has assigned, disposed of, secreted, or is about to assign, dis- 
 pose of, or secrete any of his property with like intent, whether 
 such defendant be a resident of the state or not. 
 
 Application for an attachment may be made to the Justice by 
 the creditor or his personal representatives, or by any other per- 
 son in the creditor's behalf. The application must be in wri- 
 ting. (2 R. S. 328, sees. 28, 29.) 
 
 FORM OF APPLICATION. 
 
 To James Day, one of the Justices of the Peace of Williams- 
 burgh, in the county of Kings : 
 
 I hereby make application for process by attachment, against 
 the property of John Stiles, pursuant to statute. 
 
 Henry Mason. 
 
 The application must be accompanied by the affidavit of the 
 creditor, or his agent, proving to the satisfaction of the Justice, 
 that a proper case for attachment exists. It should, therefore, 
 state specifically the nature of the demand ; the sum, as near as 
 possible, in which the debtor is indebted, over and above all dis- 
 counts ; the grounds upon which the application is founded, and 
 tlie facts and circumstances which sustain those grounds. (2 
 R. S. 328, sec. 29.) 
 
 As the affidavit is preliminary to the actual commencement 
 of the suit, and there is no cause pending at the time it is taken, 
 it should not be entitled. 
 
 The affidavit should contain a full and distinct statement of 
 facts and circumstances, and not merely the inferences or belief 
 of the applicant or witnesses. The magistate should be enabled 
 to dct<!niiino jitdicinUi/, from the facts before him, whether the 
 attachment ouglit to issue. The belief of the plaintiff is nei- 
 ther a fact nor circumstance upon which the Justice can exer-
 
 OF THE COMMENCEMENT OF SUITS. 63 
 
 cise his judgment. Facts must be shown to the Justice which 
 shaU leave no reasonable doubt on his mind, that the defendant 
 has committed, or is about to commit the fraudulent acts men- 
 tioned in the statute. (13 Wend. 404. 14 id. 237.) It will not 
 answer to omit the/«c^5 and circumstances m the affidavit, and 
 supply the omission by a verbal statement. The whole must 
 be set out in the affidavit itself ^ so that all concerned may know 
 what facts are detailed, by an examination of the papers on file 
 with the Justice. (Id.) 
 
 The affidavit must state that the demand arose upon contract, 
 or upon judgment. It must also allege that the acts charged 
 upon the defendant, were done with the intetit to defraud credi- 
 tors. It is not enough merely to set forth the facts and leave it 
 to the Justice to infer the intent. (Id.) 
 
 FORM OF creditors' AFFIDAVIT. 
 
 Kings County, ss. — Henry Mason, of Williamsburgh, in the 
 county of Kings, being duly sworn, says, that John Stiles, late, 
 or now a resident of said county, is justly indebted to this de- 
 ponent, on a demand arising upon contract, (or upon a judg- 
 ment,) in the sum, as near as this deponent can now estimate 
 the same, of seventy-five dollars, over and above all discounts 
 which the said John Stiles has against him. 
 
 This deponent further says, that the application for an attach- 
 ment against the property of the said John Stiles, which accom- 
 panies this affidavit, is made on the ground that the said John 
 Stiles has departed (or is about to depart) from the said county 
 of Kings, where he last lived ; or that the said John Stiles keeps 
 himself concealed, with intent to defraud his creditors (or with 
 the intent to avoid the service of civil process ;) or that the said 
 John Stiles is about to remove his property from the said county 
 of Kings, or has assigned, disposed of, or secreted, or is about 
 to assign, dispose of, or secrete his property, with intent to de- 
 fraud his creditors. 
 
 And this deponent further says, that the facts and circum- 
 stances upon which he founds his belief, are as follows : [here 
 state the facts. ^ 
 
 Henry Mason. 
 Subscribed and sworn before me, 
 
 this 1st day of May, 1849. 
 
 James Day, Justice.
 
 64 OF THE COMMENCEMENT OF SUITS. 
 
 If the affidavit is made by the agent of the creditor, the form 
 must be varied accordingly. 
 
 The appKcant is further required to execute to the defendant, 
 and deliver to the Justice, a bond Avith sufficient surety to be 
 approved by the Justice i?i ivriting ujjon the bond, in the pen- 
 alty of two hundred dollars, conditioned to pay the defendant 
 all damages and costs which he may sustain by reason of issu- 
 ing such attachment, if the plaintiff fails to recover judgment 
 thereon ; and if such judgment be recovered, that such plain- 
 tiff will pay the defendant all moneys which shall be received 
 by him from any property levied on by such attachment, over 
 and above the amount of such judgment, and interest and costs 
 thereon. (2 R. S. 329, sec. 30.) 
 
 The bond need not in all cases be executed by the plaintiff. 
 The statute expressly provides for its being executed by the ap- 
 plicant and surety. 
 
 The statute is explicit as to the form of the security, and a 
 deposit of money with the Justice to the amount of the penalty 
 of the bond, or indeed to any amount, would not be sufficient. 
 (13 J. R. 481.) 
 
 FORM OF A BOND. 
 
 Know all men by these presents, that we, Henry Mason and 
 Richard Roe, of Williamsburgh, in the county of Kings, are 
 held and firmly bound unto John Stiles, now or late of Wil- 
 liamsburgh aforesaid, in the sum of two hundred dollars ; to be 
 paid to the said John Stiles, or to his certain attorney, executors, 
 administrators or assigns ; to which payment we bind ourselves, 
 our heirs, executors and administrators, jointly and severally, 
 firmly by these presents. Sealed with our seals, and dated the 
 first day of May, 1849. 
 
 The condition of this obligation is such, that whereas the 
 said Henry Mason has made application to James Day, one of 
 the Justices of the Peace of Williamsburgh aforesaid, for process 
 by attachment against the property of John Stiles, now or late 
 of Kings county aforesaid, pursuant to the statute in such case 
 made and provided : Now, therefore, the condition of this obli- 
 gation is sucli, if said attachment shall be issued, and Henry 
 Mason shall pay to the said John Stiles all damages and costs
 
 OF THE COMMENCEMENT OF SUITS. gg 
 
 which he shall sustain by reason of the issuing of such attach- 
 ment, if said Henry Mason shall fail to recover judgment there- 
 on ; and if such judgment be recovered, and said Henry shall 
 pay to the said John all moneys which shall be recovered by 
 him from any property levied upon by such attachment, over 
 and above the amount of such judgment, and interest and costs 
 thereon — then this obligation to be void ; otherwise, of force. 
 
 Henry Mason, [l. s.] 
 Richard Roe, [l. s.] 
 Sealed and delivered in presence of 
 
 James Day. 
 
 The bond should be regularly sealed ; that is, an impression 
 should be made upon wax or wafer, or some other tenacious 
 substance. A scrawl with a pen of L. S. or other sign, is not a 
 seal. (3 J. R. 239. 12 id. 197.) 
 
 An attachment, like a summons, is long or short. 
 
 By a long attachment is understood an attachment which is 
 returnable not less than six, nor more than twelve days from its 
 date, and which must be served at least six days before the re- 
 turn day. 
 
 By a short attachment is meant an attachment which is re- 
 turnable not less than two, nor more than four days from its 
 date, and which must be served at least two days before the re- 
 turn day. 
 
 FORM OF attachment. 
 
 Kings Cou7ity, ss. 
 
 The people of the State of New York, to any constable of 
 the said county, greeting : — 
 
 Whereas, Henry Mason has made application to me, the un- 
 dersigned, being one of the Justices of the Peace of Williams- 
 burgh, in the county aforesaid, in writing, for an attachment in 
 his favor, against the property of John Stiles, according to the 
 provisions of the act to abolish imprisonment for debt, (or in 
 pursuance of the Revised Statutes, in such case made and pro- 
 vided,) for a debt of seventy-five dollars, being the amount sworn 
 to by the applicant, which debt arose upon contract ; and has, 
 in all respects, complied with the requirements of the statute, 
 to entitle himself to such process : you are hereby commanded 
 to attach so much of the goods and chattels of the said John 
 Stiles (which are not exempt from execution) as will be suffi- 
 
 5
 
 (56 OF THE COMMENCEMENT OF SUITS. 
 
 cient to satisfy such debt, and safely keep the same to satisfy 
 any judgment that may be recovered on this attachment ; and 
 to make return of your proceedings hereon to me, at my office 
 in Williamsburgh, on the 8th day of May instant, at two o'clock 
 in the afternoon ; and have you then and there this precept. 
 Given luider my hand, at Williamsburgh, this 1st day of 
 
 May, 1849. 
 
 James Day, Justice. 
 
 What has been said of attachments, applies principally to the 
 long attachment. A short attachment is only appUcable in a 
 single instance, to wit : against a non-resident of the county 
 where it issues, upon a demand on which a warrant cannot be 
 issued. (Non-lm. Act, 33.) To obtain a short attachment, 
 neither a written application, affidavit or bond is required. (15 
 Wend. 479. 23 id. 336. Vide 4 Denio, 592, contra.) The ap- 
 plicant is entitled to it in all cases where he has a demand ari- 
 sing upon contract liquidated, or subject to liquidatioji, and 
 the defendant is a non-resident. (5 Hill, 264. 6 id. 311.) 
 
 The constable is required to execute the attachment by seiz- 
 ing the property, making an inventory of it, and serving a copy 
 of the attachment and inventory, certified by him, on the de- 
 fendant personally ; (Non-Im, Act, 36 ;) or in case the defend- 
 ant is not found in the county, by leaving sucli copy at his last 
 place of residence ; or if the defendant have no place of resi- 
 dence in the county where the goods and chattels are attached, 
 by leaving such copy with the person in whose possession the 
 property is found. (2 R. S., 2d ed., 163, sec. 31.) 
 
 Upon taking the goods, the constable is at his peril to see that 
 they are safely kept. He is considered in the light of a bailee, 
 and accountable to either party for ordinary negligence, by 
 which either sustains an injury ; though if they be lost or de- 
 stroyed without his fault, he is not accountable. (6 J. R. 9.) 
 
 No goods attached by a constable shall be removed by him, 
 if a bond be given and delivered to such constable, by any 
 person, with sufficient surety, to be approved by the constable, 
 in a penalty double the sum stated in the attachment to have 
 been sworn to by the plaintiff, conditioned that such goods and 
 chattels shall be produced to satisfy any execution that may be 
 issued upon any judgment which shall be obtained by the 
 plaintiff, upon sucli attaciimcnt, within six months after the 
 date of such l)ond. (2 R. S., 2d cd., 163, sec. 32.)
 
 OF THE COMMENCEMENT OF SUITS. ^7 
 
 BOND TO PREVENT THE REMOVAL OF GOODS ATTACHED. 
 
 Know all men by these presents, that we, John Stiles and 
 Samuel Pieison, of Williamsburgh, in the county of Kings, are 
 held and firmly bound unto William Cooke, constable of Kings 
 county, aforesaid, in the sum of — ^[double the amount of the 
 debt or demand] — to be paid to the said William Cooke, or to 
 his certain attorney, executors, administrators, or assigns ; to 
 which payment, well and truly to be made, we bind ourselves 
 our heirs, executors, and administrators, jointly and severally. 
 firmly by these presents. Sealed with our seals, and dated the 
 2d day of May, 1849. 
 
 The condition of this obligation is such, that whereas the 
 said William Cooke, has seized certain goods and chattels, to 
 wit : — [here enumerate them] — by virtue of an attachment 
 issued by James Day, Justice, in favor of Henry Mason against 
 John Stiles aforesaid. Now, therefore, if said goods and chat- 
 tels shall be produced to satisfy any execution that may be 
 issued upon any judgment which shall be obtained by the 
 plaintiff upon the said attachment, within six months after the 
 date hereof, then this obligation to be void ; otherwise of force. 
 
 John Stiles, [l. s.] 
 Samuel Pierson, [l. s.] 
 Sealed and delivered in presence of 
 Henry Brown. 
 
 The constable should endorse on the bond his approval, 
 thus : — 
 
 I approve of the surety of the within bond, deeming it suffi- 
 cient. William Cooke, Constable. 
 
 If any person shall claim any goods or chattels attached by 
 a constable, he may after such seizure, and at any time before 
 execution shall have been issued upon the judgment obtained 
 on such attachment, execute a bond to the plaintiff, with sure- 
 ties to be approved by the constable, or by the Justice who 
 issued the attachment, in a penalty double the value of the 
 property attached, conditioned, that in a suit to be brought on 
 such bond, within three months from the date, such claimant 
 will establish that he was the owner of the goods seized, at the 
 time of such seizure ; and in case of his failure to do so, that
 
 68 OF THE COMMENCEMENT OF SUITS. 
 
 he will pay the value of the goods so claimed, with interest. 
 Upon such bond being executed and delivered to the constable, 
 he shall deliver up the property seized by him, to the obligor in 
 the bond. (2 R. S. 2d ed., 163, sees. 33, 34.) 
 
 BOND BY CLAIMANT OF PROPERTY ATTACHED. 
 
 Know all men by these presents, that we, John Doe, Richard 
 Roe, and Samuel Hill, of Williamsburgh, in the county of 
 Kings, are held and firmly bound unto Henry Mason in the 
 sum of— [double the value of the property attached] — to be paid 
 to the said Henry Mason, or to his certain attorney, executors, 
 administrators, or assigns, to which payment, well and truly to 
 be made, we bind ourselves, our heirs, executors, and adminis- 
 trators, jointly and severally, firmly by these presents. Sealed 
 with our seals, and dated the 2d day of May, 1849. 
 
 The condition of this obligation is such, that whereas William 
 (Jooke, of Kings county aforesaid, has seized certain goods and 
 chattels by virtue of an attachment issued by James Day, a 
 Justice of the Peace of the county aforesaid, in favor of Henry 
 Mason against John Stiles ; and whereas the above bounden 
 John Doe claims the ownership of the said property : Now, 
 therefore, if a suit shall be brought on this obligation, within 
 three months after its date, and the said John Doe shall estab- 
 lish thereby that he was the owner of the said goods, at the 
 time of the said seizure ; or in case of his failure to do so, if 
 the said John Doe, shall pay the value of said goods and 
 chattels with interest, then this obligation to be void ; otherwise 
 of force. 
 
 John Doe, [l. s.] 
 
 Richard Roe, [l. s.] 
 Samuel Hill, [l. s.J 
 Sealed and delivered in presence of 
 William Cooke. 
 Either the Justice, or constable, should endorse on the bond 
 his approval. (2 R. S., 2d ed., 1G3, sec. 33.) 
 
 If no bond is tendered, the constable must take the goods 
 into his possession. This possession may be merely construct- 
 ive ; and the constable is authorized to take a receipt for the 
 future delivery of the goods. He is, however, equally rcspon-
 
 OF THE COMMENCEMENT OF SUITS. 69 
 
 sible for the property, as though it were in his actual custody. 
 (12 Wend. 563, 565.) 
 
 The constable serving the attachment, must at the return 
 day, makes his return to the Justice, witli all his proceedings 
 thereon, in writing, subscribed by him. A copy of the inven- 
 tory of the goods attached, certified by him, together with any 
 bond which may have been executed and delivered to him, 
 must be returned. And, in addition, he must state specifically, 
 whether the attachment was, or was not, personally served 
 upon the defendant. {2 R. S., 2d ed., 163, sec. 35. Non-Imp. 
 Act. 36.) 
 
 The day of attaching the goods and serving the copy, ought 
 to be stated in the return. It should also appear by the return, 
 that the attachment was served, both in time and manner, in 
 compliance with the requirements of the statute. (16 J. R. 121.) 
 
 When the goods seized are so few in number, that the inven- 
 tory may be made upon the copy of the attachment, the cons- 
 table should endorse upon the copi/ to be lefty thus : 
 
 " By virtue of an attachment, of which the within is a copy, 
 I have this day attached and taken into my custody, the fol- 
 lowing goods and chattels of the within named defendant, to 
 wit: one horse, one plough, &.c. — [enumerating the articles.] 
 Dated May 2d, 1849. 
 
 " William Cooke, Constable." 
 
 If the articles seized are numerous, let the constable draw a 
 list of them on a separate paper, annex it to the copy of the 
 attachment, and endorse on such copy, thus : 
 
 " By virtue of an attachment, of which the within is a copy, 
 I have this day attached and taken into my custody the goods 
 and chattels of the within named defendant, which are specified 
 in the inventory or schedule hereunto annexed. Dated May 
 
 2d, 1849. 
 
 " William Cooke, Constable." 
 
 When the constable makes his return, if the articles taken 
 are few, he should endorse on the attachment thus : 
 
 " By virtue of the within attachment, I did on the 2d day of 
 February, instant, attach and take into my custody, the follow- 
 ing goods and chattels of the within named defendant, to wit : 
 one horse, one plough, &c., — [enumerating the articles] — and
 
 70 OF THE COMMENCEMENT OF SUITS. 
 
 did, immediately thereupon make an inventory of the property 
 so seized, and leave a copy of said attachment, and of said in- 
 ventory, by me certified, with the defendant personally — (or at 
 the last place of residence of said defendant, whom I was 
 unable to find in the county) — (or with Richard Roe, in whose 
 possession I found the said goods and chattels, the said defend- 
 ant not having any place of residence in the county of Kings.") 
 
 If the articles seized are numerous, make a separate list, 
 annex it to the attachment, and endorse the return thus : 
 
 " By virtue of the within attachment, I did, on the 2d day of 
 May, instant, attach and take into my custody, all and singular, 
 the goods and chattels specified in the annexed inventory or 
 schedule, and did immediately thereupon, &c., (as in the prece- 
 ding form.") 
 
 If the defendant or a claimant of the property give the bond 
 to prevent their removal, required by statute ; or if the consta- 
 ble take a receipt for the future delivery of the property, it should 
 be so stated in the return. 
 
 If the proceedings in obtaining an attachment are regular, the 
 Justice cannot supersede the attachment, but must, on the re- 
 turn thereof, if the defendant was served personally, proceed to 
 hear the cause, as on the return of a summons. (9 J. R. 130.) 
 If the service was not personal, and the attachment was issued 
 under any of the provisions of the non-imprisonment act, a sum- 
 mons is to be issued, upon the return of which, personally served, 
 or, that after diligent inquiry, the defendant cannot be found, the 
 Justice is to proceed and hear the cause. (Non-Im. Act, sec. 38.) 
 
 The statute prescribes no form for this summons, neither does 
 it direct what time may intervene between the date and return. 
 It is presumed the ordinary form of a summons should be used : 
 that is, if a long altacJiment, use a long summons ; if a short 
 attachment, use a short summons ; and have it served in the 
 same manner as in other cases. 
 
 If the defendant cannot bo found in the county after diligent 
 search, the constable should make return of the fact on the sum- 
 mons to the Justice, who is then authorized to hear the cause 
 on the return day of tlio summons. 
 
 FORM OF constable's RETURN. 
 
 I hereby certify, that I have made diligent search, and the within
 
 OF THE COMMENCEMENT OF SUITS. 71 
 
 named defendant cannot be found in the county, upon whom I 
 can serve the within summons. Dated, May 10th, 1849. 
 
 William Cooke, Constable. 
 
 A hen is created upon the goods taken by virtue of an attach- 
 ment issued on the apphcation of a bona fide creditor, not only 
 against the debtor but against all other creditors. This lien, 
 however, will expire, if the creditor do not prosecute his suit to 
 judgment and execution with all due diligence. If the creditor 
 acts with ordinary diligence in a bona fide endeavor to collect 
 his judgment, this is all that should be demanded of him. (10 
 J. R. 129.) 
 
 General Rules Applicable to Process. 
 
 If process shall have issued against two or more persons 
 jointly indebted, and shall have been personally served'upon ei- 
 ther of the defendants, the defendant who may have been served 
 with process shall answer to the plaintiff'; and the judgment in 
 such case, if rendered in favor of the plaintiff, shall be against 
 all the defendants, in the same manner as if all had been served 
 with process. Such judgment shall be conclusive evidence of 
 the liability of the defendant, Avho was personally served with 
 process in the suit, or who appeared therein ; but against every 
 other defendant, it shall be evidence only of the extent of the 
 plaintiff''s demand, after the liability of such defendant shall 
 have been established by other evidence. (2 R. S. 2d ed. 176, sees. 
 122, 123.) 
 
 The individual proceeded against must be notified in some 
 legal form, in order to confer jurisdiction upon the court or ma- 
 gistrate. If, therefore, the Justice should give judgment with- 
 out process or appearance, the whole would be void. (17 J. R. 41.) 
 
 The process must also be properly served. If process be exe- 
 cuted by a constable not having authority, this gives the magis- 
 trate no jurisdiction of the person, and if he proceed, he is liable. 
 (7 Cow. 269. 8 id. 361.) 
 
 An arrest, strictly speaking, is the actual corporal seizing or 
 taking the defendant's body. (3 Blk. 288.) A manual taking 
 of the body, however, is not necessary. It is the same thing as 
 an actual arrest, if the officer tell the defendant that he has a 
 process against his body, and he submits and goes along with 
 him ; or that the party be within his power, and submits to the
 
 72 OF THE COMMENCEMENT OF SUITS. 
 
 arrest ; or that the officer goes into the defendant's room, tells 
 him that he arrests him and locks the door. (1 Wend. 210.) 
 
 If a man be arrested, or his lands entered, or his goods taken 
 by process of execution, issued upon a judgment void for want 
 of jurisdiction of the court rendering it, he may have his ac- 
 tion for the injury. In most cases of this nature, liability at- 
 taches to both the Justice and party. If the body of the party 
 be taken, it is an assault and false imprisonment ; if his lands 
 be entered, it is an illegal breach of his close ; and if his goods 
 be taken it is a trespass or conversion ; for either of which in- 
 juries an action may be brought against all or any of those per- 
 sons who have been the instruments for effecting the injury, and 
 who had knowledge of the facts which go to invalidate the judg- 
 ment or proceeding. (1 Cow. R. 400.) 
 
 A constable would be protected in the execution of process, 
 although the Justice had not, i?i fact, jurisdiction in the case ; 
 provided it appear on the face of the process, that the court has 
 jurisdiction of the subject matter, and nothing appears in the 
 same to apprise the officer, but that the court has also jurisdic- 
 tion of the person of the party to be affected by the process. (Id.) 
 
 Civil process issued on Sunday, is void. (1 R. S. 675.) The 
 filling up of process, equally with the delivering of it to the offi- 
 cer to be executed on Sunday, is illegal. (12 J. R. 178.) 
 
 All process issued by a Justice of the Peace must be signed 
 by him. It may be under seal, or without seal. (2 R. S. 194, 
 sec. 232.) 
 
 Every summons, warrant, attachment, and execution issued 
 by a Justice of the Peace, must be entirely filled up, having no 
 blank, in the date or otherwise, at the time of its delivery to an 
 officer to be executed. Process issued and delivered to an offi- 
 cer contrary to this provision, will be void ; and the Justice is- 
 suing it will be guilty of a misdemeanor, and subject to a fine 
 or imprisonment, or both and a forfeiture of his office. (2 R. S. 
 2d ed. 194, sees. 233 230.) 
 
 If a Justice sign a blank summons, and deliver it to the plain- 
 tiff to be filled up in his presence, and under his control, it is 
 not a violation of the statute. (20 J. R. G3.) 
 
 A genf'ral authority by a Justice to a constable, to alter pro- 
 cess, would bo void; but an authority to alter a particular pro- 
 cess, would bo valid. It is presumed that a Justice could not
 
 OF THE COMMENCEMENT OF SUITS. 73 
 
 authorize a third person to alter a particular process, unless it 
 was done in his presence, and under his control. (10 J. R. 405.) 
 
 A Justice may amend an attachment issued by him, by in- 
 serting, after the return of the process, the amount of the debt 
 sworn to by the applicant. (14 Wend. 230.) 
 
 The defendant should object to any irregularity in the process 
 the first opportunity. If he takes any step which supposes the 
 process to be valid, he cannot afterwards object. (2 Caines, 
 134. 17 J. R. 63.) All manner of defects, either in the form or 
 substance of process, are waived or cured, as far as any ques- 
 tion may arise in the particular suit, by the defendant's omitting 
 to take advantage of them. The appearing at the return of pro- 
 cess, for the purpose of making an objection, is not a waiver of 
 irregularity. (14 J. R. 481.) 
 
 Every Justice who issues process, excepting a venire, when- 
 ever he shall judge it expedient, on the request of a party, may^^ 
 by written authority endorsed on such process, empower any 
 proper person, being of lawful age, (that is, of the age of twenty- 
 one years,) and not a party in interest in the suit, to execute the 
 same. The person thus empowered will possess all the powers, 
 and be subject to all the obligations of a constable in relation to 
 the execution of the process, but can receive no fee or reward 
 for his services. (2 R. S., 2d ed., 199, sees. 271, 272.) 
 
 FORM OF AUTHORITY. 
 
 At the request of the plaintiff, I hereby empower John Smith 
 to execute the within proeess. Dated May 3d, 1849. 
 
 James Day, Justice. 
 
 If a constable ask or receive any money or valuable thing 
 from a defendant, or any other person, as a consideration, re- 
 ward, or inducement, for omitting to arrest any defendant, or to 
 carry him before any Justice ; or for delaying to take any party 
 to prison ; or for postponing the sale of any property under any 
 execution ; or for omitting or delaying the execution of any 
 duty pertaining to his office ; he will be deemed guilty of a 
 misdemeanor, and be subject to fine or imprisonment, or both, 
 and a forfeiture of his office. (2 R. S., 2d ed., 194, sec. 234.) 
 
 A constable to whom process is delivered, must execute the 
 same in person, and cannot act by deputy in any case. (Id. 
 199, sec. 273.) He may, however, command as many male in-
 
 74 OF THE COMMENCEMENT OF SUITS. 
 
 habitants of the county to assist him as he may think proper, 
 when he is resisted in the execution of process, or has reason 
 to apprehend such resistance. 
 
 An officer has no right to break into the defendant's house to 
 execute civil process. If, however, he once obtains a peaceable 
 entrance, he may break open any inner door to execute the pro- 
 cess, after a demand of admission and refusal. (5 J. R. 253. 
 17 J. R. 127.) 
 
 A house is only a sanctuary to the owner and his family. If, 
 therefore, any other person flies to it, it may be broken open to 
 arrest the fugitive, after a request to open the door, and a re- 
 fusal. 
 
 In the execution of civil process, an officer may break open 
 a store, warehouse or barn, not annexed to a dwelling house, 
 nor forming any part of it. (16 J. R. 287.) 
 
 The parties to a suit and their witnesses, and all persons en- 
 gaged in the trial of a cause, are protected from arrest on civil 
 process in coming to, attending upon, and returning from court. 
 (2 R. S., 2d ed., 323, sec. 63.) 
 
 The privilege above mentioned is a privilege from arrest only. 
 Such persons will therefore be liable to the service of process, 
 which is served without an arrest, as a summons. 
 
 Whenever an election is held in any city or town, no civil 
 process shall be served, in any such city or town, on any elec- 
 tor entitled to vote therein during such election. (1 R. S. 116, 
 sec. 4.) This extends to all civil process, but is confined to the 
 town in which the elector is entitled to vote. 
 
 Military are exempt from arrest, on civil process, from sunrise 
 to sunset, on the day of parade. (Id. 298, sec. 27.)
 
 CHAPTER IV. 
 
 APPEARANCE OF THE PARTIES. 
 
 I SHALL treat the subjects of this chapter under the followhig 
 heads : — 
 
 1. When the Parties are to Aj)pear. 
 
 2. HoiD the Parties are to Appear. 
 
 3. Of Appeara7ice hy Attorney. 
 
 4. Appearance by Guardian. 
 
 1. When the Parties are to Aj)pear. 
 
 Upon the return of a summons personally served, or on the 
 return of an attachment duly served, the Justice shall wait one 
 hour after the time specified for the return of such process, un- 
 less the parties shall sooner appear. (2 R. S. 165, sec. 46.) If 
 the plaintiff fail to appear within the hour, or within an hour 
 after the time to which the cause may have been adjourned — in 
 either case, judgment of nonsuit, with costs, is to be rendered 
 against him. (Id. 176, sec. 119.) 
 
 Notwithstanding the limitation of time prescribed by statute 
 for the Justice to await the appearance of the parties, he may, 
 for satisfactory reasons, delay calling the cause beyond the 
 time ; or, if the cause be called, permit the defendant, after the 
 hour has elapsed, to appear, plead, and enter upon his defence. 
 It is left to the discretion of the Justice as to what will amoimt 
 to a sufficient reason for extending the time. No precise rule 
 can be laid down. Each case will have its own peculiarities, 
 and the Justice should consult the convenience of the parties, 
 at the same time that he avoids doing anything which may tend 
 to the prejudice of either. (10 Wend. 102. 12 id. 150. 20 J. 
 R. 309.) 
 
 The absence of the Justice on the return or adjourned day, 
 operates as a discontinuance of the suit ; but the parties may 
 afterwards proceed to trial by consent. (1 Cow. 245.) 
 
 In the case of a warrant which has no definite time of return,
 
 76 APPEARANCE OF THE PARTIES. 
 
 the Justice is empowered to detain the defendant twelve hours 
 after he is brought before him ; and if, within that time, the 
 plaintiff do not appear, and proceed with the trial of the cause, 
 unless the cause is delayed at the instance of the defendant, the 
 defendant must be discharged. (2 R. S. 162, sec. 25.) 
 
 Upon the return of a summons personally served, or on the 
 return of an attachment duly served, or at the time to which 
 the cause has been adjourned, if the plaintiff appear, and the 
 defendant do not appear, the Justice, after waiting one hour, 
 may proceed to hear the cause on the part of the plaintiff. 
 
 2. How the Parties are to Appear. 
 
 Any plaintiff in a suit before a Justice, except persons under 
 twenty-one years of age, may appear and conduct his suit, 
 either in person or by attorney. (2 R. S., 2d ed., 164, sec. 39.) 
 
 An appearance of some kind, by the plaintiff, is indispensa- 
 ble to authorize the Justice to give judgment in his favor, unless 
 such appearance be waived by the opposite party. If the de- 
 fendant object to the plaintiff's non-appearance, the Justice 
 cannot render a judgment in his favor, even upon confession. 
 (9 J. R. 140.) 
 
 Every defendant in a suit, except persons under twenty-one 
 years of age, may appear and defend tjie same in person, or by 
 attorney ; but where a warrant shall have been served on a de- 
 fendant and returned, no fm-ther proceedings shall be had 
 against him, until he shall have personally appeared in court. 
 (2 R. S., 2d ed., 164, sec. 41.) 
 
 A judgment cannot be rendered against a defendant, unless 
 he personally appear in court, except upon the return of a sum- 
 mons personally served, or an attachment duly executed. Even 
 a written confession of a judgment by a defendant, is irregular, 
 unless he appear in court to make the same. (2 R. S., 2d ed., 175, 
 sec. 114. 6 J. R. 126.) Tiic process to authorize a judgment must 
 be against a defendant having a right by law to appear in 
 proper person, or by attorney. If, therefore, a Justice render 
 judgment against an infant defendant, on his default, upon the 
 return of a summons personally served, or an attachment exe- 
 cuted against him, witliout first appointing him a guardian, to 
 appear and defond, the judgment is erroneous. (2 J. R. 192.) 
 
 When the defendant is brought before the Justice upon the
 
 APPEARANCE OF THE PARTIES. 77 
 
 return of a warrant, and is discharged by the Justice in conse- 
 quence of an adjournment of the cause — either on motion of the 
 plaintiff, or on the consent of both parties, or on motion of the 
 defendant, and giving security, &c. — his subsequent appearance 
 in the cause may be by attorney. 
 
 3. Of Ap'pearance hy Attorney. 
 
 A party authorized to appear by attorney, may appoint any 
 person to act as such attorney ; but the constable who served 
 either the original or jury process in the cause, shall not appear 
 and advocate for either party at the trial, but may act as attor- 
 ney in any other stage or proceeding in the cause. (2 R. S., 
 2d ed., 164, sec. 44.) 
 
 It would seem that the constable may appear as attorney and 
 join issue ; and indeed, do any act in the cause, except appear- 
 ing and advocating at the trial. 
 
 The authority to appear by attorney may be either written or 
 verbal, and shall in all cases be proved, either by the attorney 
 himself, or other competent testimony, unless admitted by the 
 opposite party ; and the Justice shall not permit any person to 
 appear for another, without such proof or admission. (Id. 
 sec. 45.) 
 
 A mere verbal request, is a sufficient authority for an attorney 
 to appear and manage a cause ; (11 J. R. 464; 1 Cow. 113 ;) 
 and the attorney himself may be sworn to prove his right or 
 authority to appear, upon the opposite party objecting that he 
 has no power. (Id.) 
 
 Proof of the authority of a person claiming to appear for 
 another, is not necessary, except the other party objects the 
 want of authority ; (15 Wend. 652 ;) or unless there is no ap- 
 pearance on the part of the opposite party, in which case proof 
 of authority should always be required. 
 
 4. Appearance hy Guardian. 
 
 In a case where the plaintiff is under twenty-one years of 
 age, a suitable person must be appointed by the Justice as 
 guardian, to aid him in conducting the suit. (Code. sec. 115. 
 2 R. S., 2d ed., 164, sec. 40.) 
 
 This appointment of guardian must be made before process
 
 78 APPEARANCE OF THE PARTIES. 
 
 is issued ; or when issae is joined without process, before the 
 issue is heard. (Id.) 
 
 A guardian for an infant plaintiff, is appointed upon the peti- 
 tion of the infant, if he be of the age of fourteen years, or if 
 under that age, upon tlie petition of some other party to the 
 suit, or of a relative or friend of the infant. (Code, sec. 116.) 
 
 Any person of full age, who will undertake the plaintiff's 
 cause, may be appointed his guardian. But as the guardian is 
 liable for the costs recovered against the plaintiff, the Justice 
 ought to be satisfied that he is capable of binding himself, and 
 is, moreover, able to pay such costs. The undertaking on the 
 part of the guardian, is wholly voluntary, and the statute re- 
 quires that his written consent should be given. (2 R. S., 2d 
 ed., 164, sec. 40.) 
 
 FORM OF CONSENT. 
 
 Queens County, ss. — At the request of Peter Pray, who is 
 under the age of twenty-one years, I hereby consent to stand 
 as his guardian in the prosecution of a suit upon a promissory 
 note, (or as the case may be,) against James Smith, before 
 Robert Doyle, one of the Justices of the Peace of Hempstead, 
 county aforesaid. And I do hereby, for value received, promise 
 the said James Smith to pay him such costs as he shall recover 
 against the said Peter Pray, in the said suit. Dated May 3d, 
 1849. William Tracy. 
 
 If the guardian for the plaintiff be appointed in a suit insti- 
 tuted without j)rocess, the consent should be entitled thus : 
 
 In Justices' Court, before Robert Doyle, Justioe. 
 Peter Pray ) 
 against > 
 
 James Smith. 3 
 
 iiueens County, ss. — I hereby consent to act as guardian for 
 Peter Pray, plaintiff in the above entitled cause, who is under 
 the age of twenty-one years. And I hereby, for value received, 
 promise and agree with James Smith, the above named defend- 
 ant, to pay liiin such costs as he shall recover against the said 
 Peter Pray by judgment in this suit. Dated May 3d, 1819. 
 
 William Tracy.
 
 APPEARANCE OF THE PARTIES. 79 
 
 Tlie mere declaration of the plaintiff that he is an infant, is 
 enough to authorize the appointment of a guardian ; and, if it 
 should turn out that he was of full age, still, there would be no 
 irregularity, for the Justice's decision as to that matter, would 
 be held conclusive. (3 J. R. 437.) 
 
 When the defendant is under the age of twenty-one years, 
 process may be issued against him as in other cases ; (8 J. R. 
 418 ;) but after the service and return of the process, no further 
 proceedhigs can be had in the suit, until a guardian for such 
 defendant is appointed. (2 R. 8.-, 2d ed., 164, sec. 42.) 
 
 Upon the request of the defendant, if he be of the age of 
 fourteen years, and appear on the return day of process, the 
 Justice shall appoint some person, who will consent thereto in 
 writing, to be the guardian of the defendant, in defence of the 
 suit. If the defendant be under the age of fourteen years, or 
 do not appear on the return day of process, or if he neglect or 
 refuse to nominate such guardian ; then the Justice may, upon 
 the petition of any other party to the action, or of a relative, or 
 friend of the infant, or on motion of the plaintiff, appoint any 
 discreet person as such guardian. (Code, sec. 116. 2 R. S. 164, 
 sec. 42.) 
 
 FORM OF CONSENT. 
 
 In Justices^ Court, before Robert Doyle, Justice. 
 John Doe ^ 
 against \ 
 Richard Roe. j 
 Queens County, ss. — At the request of the defendant, who is 
 under the age of twenty-one years. I hereby consent to stand as 
 his guardian to defend this suit. 
 
 Thomas Nokes* 
 
 The consent of the guardian must be filed with the Justice. 
 The guardian of the defendant is not liable for costs. (2 R. S. 
 164, sec. 43.)
 
 CHAPTER V. 
 
 OF THE PLEADINGS IN A SUIT. 
 
 This chapter comprises the following subjects : 
 
 1. Definition of pleading. 
 
 2. General rules of pleading. 
 
 3. At what time parties must plead. 
 
 4. Nature of pleadings in a Justice's Court, and the kinds 
 thereof. 
 
 6. Statement of the cause of action. 
 
 6. Variance. 
 
 7. Amendment of pleadings. 
 
 8. Of various defences ; — infancy, lunacy, &c. ; tender ; stat- 
 ute of limitations ; set oif; former recovery ; question of title. 
 
 By pleading is not meant the arguing or advocating the cause 
 before the court ; but a brief statement by the parties, of the facts 
 which constitute the plaintiff's cause of action, or the defen- 
 dant's ground of defence. (1 Chitt. PL 244.) 
 K.The general aim of the parties, in their pleading or state- 
 ment, is so to manage their alternate allegations as at length to 
 arrive at some sjyecific point or matter affirmed on one side, and 
 denied on the other. The pleadings are so conducted as always 
 to develops some question disputed between the parties, and 
 mutually proposed and accepted by them, as the subject for de- 
 cision. The question so produced is called the issue, being the 
 end (e:ri^i<5) of the pleading. (Steph. PI. 124.) 
 
 General Rules. 
 
 Whatever circumstances are necessary to constitute the cause 
 of complaint or the ground of defence, must be stated in the 
 pleadings, and all beyond is snr])lusage. Facts only arc to be 
 stated, and not arguments, or inferences, or matters of law. (I 
 Chitt. PI. 217.) 
 
 No fact that is not essential to substantiate the pleading, 
 should be stated. The statement of immaterial or irrelevant
 
 OF THE PLEADINGS IN A SUIT. 81 
 
 matter is censnrable, as rendering it incumbent on the party- 
 pleading to adduce more evidence than would otherwise have 
 been necessary. (Id. 231.) 
 
 Matter which should come more properly from the other side, 
 as it is presumed to lie more within the knowledge of the other 
 party, or is an answer to the charge of the party pleading, need 
 not be stated. But this rule should be acted upon with caution ; 
 for if the fact in any way constitutes a condition precedent, to 
 enable the party to avail himself of the charge stated in his 
 pleading, such fact should be stated. (11 East, 638. 1 Chitt. 226.) 
 
 When the law presumes a fact, it need not be stated. As, 
 therefore, it is an intendment of law that a person is innocent of 
 fraud, or any other imputation affecting his reputation, the party 
 insisting upon the contrary must state it in pleading. So also, 
 when any act is required to be done by a person, the omission 
 of which would make him guilty of a criminal neglect of duty, 
 the law presumes the affirmative, and throws the burthen of 
 proving the negative on the party who insists on it. But great 
 care must be taken in the application of this rule, to ascertain 
 that the law intends the fact proposed to be omitted. For in- 
 stance, if the defendant should plead that another person pro- 
 mised to be answerable to the plaintiff for the debt in lieu of the 
 defendant, as the law does not presume the validity of the pro- 
 mise, it must be shown to have been in writing, pursuant to the 
 Statute of Frauds, so that it may appear to be such a contract 
 as the plaintiff could enforce. (1 Chitt. 226.) 
 
 The principal rule as to the mode of stating the facts, is, that 
 they must be set forth with certainty ; that is, there must be a 
 clear and distinct statement of the facts which constitute the 
 cause of action or ground of defence. Less certainty is requi- 
 site when the law presumes that the knowledge of the facts is 
 in the opposite party ; because the principal object of pleading is 
 to state facts of which the other part3r is not supposed to be cog- 
 nizant. So less certainty is required where it is to be presumed 
 that the part)^ pleading is not privy to the minute circumstan- 
 ces. (Id. 236-239.) 
 
 In the construction of facts stated, it is a general rule that 
 everything shall be taken most strongly against the party plead- 
 ing ; for it is to be supposed that every person states his case as 
 favorably to himself as possible. (1 Saund. 259.) Where an 
 expression in pleading is capable of different meanings, that 
 
 6
 
 QI2 OF THE PLEADINGS IN A SUIT. 
 
 must be taken which will support the statement, and not the 
 other Avhich would defeat it. (4 Taunt. 492. 5 East, 257.) 
 
 The pleadings are to be liberally construed, with a view to 
 substantial justice between the parties. (Code, sec. 159.) They 
 are not required to be in any particular form, provided they are 
 such as to enable a person of common understanding to know 
 what is intended, (Code, sec. 64.) In an action or de- 
 fence founded upon an account or an instrument for the pay- 
 ment of money only, it will be sufficient for a party to deliver 
 the account or instrument to the court, and to state that there is 
 due to him thereon, from the adverse party a specified sum which 
 he claims to recover or set off. (Id.) Every variance between 
 the proof on the trial and the allegations in a pleading, must be 
 disregarded as immaterial, unless the court is satisfied that the 
 adverse party has been misled to his prejudice thereby. (Code, 
 sec. 64.) 
 
 In pleading the performance of conditions precedent in a con- 
 tract, it is not necessary to state the facts showing such per- 
 formance ; but it may be stated generally that the party duly 
 performed all the conditions on his part ; and if such allegation 
 is controverted, the party pleading must establish, on the trial, 
 the facts showing such performance. (Code, sec. 162.) 
 
 In pleading a judgment or other determination of a court or 
 officer of special jurisdiction, it is not necessary to state the facts 
 conferring jurisdiction ; but such judgment or determination may 
 be stated to have been duly given or made. If such allegation 
 is controverted, the party pleading is bound to establish, on the 
 trial, the facts conferring jurisdiction. (Id. 161.) 
 
 In pleading a private statute or a right derived therefrom, it 
 will be sufficient to refer to it by its title, and the day of its pas- 
 sage, and the court must thereupon take judicial notice of it. (Id. 
 163.) 
 
 The general issue, or absolute and general denial of the com- 
 plaint, or some portion of it, though not permitted in courts of 
 record, has been restored to Justices' Courts by the amended 
 Code. (Code, sec. 64.) It is llie shortest, simplest, and most 
 coniprolicnsive mode of denial ; and when it applies to the 
 whole complaint, brings the pleadings at once to an issue. An 
 imijoitanl advantage attending it is, that the defendant is permit- 
 ted to give the matters of his defence in evidence under it on the 
 trial, by merely giving notice to the plaintiff of the facts consti-
 
 OF THE PLEADINGS IN A SUIT. §3 
 
 tilting his defence ; thus enjoying all the advantages of a special 
 plea, without being subjected to the strict rules and minute dis- 
 tinctions of special pleading. 
 
 At the time of the first appearance of the parties before the 
 Justice, which we have seen, must be on the return day of pro- 
 cess — or, if the parties appear voluntarily, at the time of their 
 presenting themselves before the Justice ; an issue must be 
 joined before any adjournment can be had. (2 R. S. 2d ed. 165. 
 sec. 47.) When, however, the defendant, though present, re- 
 fuses or neglects to plead, the plaintiff may still adjourn the suit 
 by showing good cause. 
 
 Jt has been held by the Supreme Court, that on the return of 
 a summons or attachment, notwithstanding the hour for the ap- 
 pearance of the parties has expired, the defendant is still enti- 
 tled to plead and make his defence, if he appear before the Jus- 
 tice has entered upon the trial of the cause, by an examination 
 of a witness or the hearing of any other testimony ; and the 
 Justice has no authority, under such circumstances, to enter his 
 default for not appearing at the expiration of the hour. (15 J. 
 R. 86.) 
 
 It was subsequently held that it would, be proper in all cases 
 to permit a defendant to plead, if he appear on the return day 
 of process, before the cause is adjourned, or after adjournment, 
 if the plaintiff is in court ; and if the plaintiff proceed to a hear- 
 ing of his cause on the return day of the process, the defendant 
 ought to be permitted to plead, if he appear before the plaintiff 
 has closed his case. (12 AVend. 150.) 
 
 The question how far a defendant should be permitted to 
 make his defence at an adjourned day^ when he did not appear 
 at the return of process, has been passed upon in several in- 
 stances. The decisions seem, however, to be conflicting. In 
 one case it was said it would be too late for the defendant to be 
 admitted to plead, and that he should be allowed only to give 
 evidence in mitigation of damages. (11 J. R. 69.) In another 
 case, where the defendant omitted to appear at the return of a 
 summons personally served, the Supreme Court decided that 
 the defendant should have been permitted to appear and plead 
 at the adjourned day, on paying the costs of the adjournment 
 and subsequent proceedings. (8 Cow. R. 87.) In a still later
 
 84 OF THE PLEADINGS IN A SUIT. 
 
 case, the Supreme Court recognized and confirmed the decision 
 in 8th Cowen above cited, so far as relates to the right of the 
 defendant to plead at the adjourned day, when he did not appear 
 on the return of process. (1 Wend. 143.) Subsequently the 
 same court held that if the defendant did not appear on the re- 
 turn of the summons and join issue, and the cause was ad- 
 journed, he would not be entitled, on the adjourned day, to plead 
 and enter upon his defence ; and the authority of previous de- 
 cisions was doubted. (12 Wend. 150.) 
 
 The pleadings in a Justices' Court may be either verbal or 
 written, at the discretion of the party making the same, except 
 in the case of a plea of title to land. (Code, sec. 64. 2 R. S. 2d 
 ed. 165, sec. 48.) Where the parties managing a suit are unac- 
 quainted with forms of pleading, it is much safer and easier for 
 them to make their statements verbally. When the pleadings 
 are verbal, the Justice is required to enter the substance of them 
 in his docket. (Code, sec. 64.) By this we are to understand, 
 not that every allegation of the parties must necessarily be en- 
 tered, but only such essential statements as are necessary to con- 
 stitute the cause of complaint or the ground of defence. If the 
 pleadings are in writing, they are required to be filed by the 
 Justice, and a reference made to them in his docket. (Id.) 
 
 When the pleadings are verbal, they need not be communi- 
 cated inform. But the facts constituting the cause of action or 
 ground of defence, should be stated in clear and intelligible lan- 
 guage, so that a person of common understanding may know 
 what is intended. This mode of pleading is now required in 
 all the courts. (Code, sec. 142.) It is especially applicable to 
 courts of Justices of the Peace, in which parties who are unac- 
 quainted with the tcclmicalitios of the law, usually manage their 
 own suits. It is highly important to use so much particularity 
 as may be necessary to apprise plaintiff and defendant of the 
 points to be controverted, and thus give them a fair opportunity 
 to prepare for trial. 
 
 The pleadings in a Justices' Court are : — (Code, sec. 64.) 
 
 1. Tlie complaint by the plaintifl'; 
 
 2. The answer by the defendant.
 
 OF THE PLEADINGS IN A SUIT. gS 
 
 Comjjlaint. 
 
 The first step in the pleadings is the complaint which is a 
 statement, either verbal or written in a plain and direct manner, 
 of the facts constituting the plaintiff's cause of action. The 
 complaint, if in writing, should contain — 
 
 1. The title of the cause, specifying the Justice before whom 
 it is to be tried, and the names of the parties to the action, plain- 
 tiff and defendant. 
 
 2. A statement of the facts constituting the cause of action 
 in ordinary and concise language, without repetition, and in 
 such manner as to enable a person of common understanding 
 to know what is intended. 
 
 3. A demand of the relief to which the plaintiff supposes 
 himself to be entitled. If the recovery of money is sought, the 
 amount claimed should be stated. 
 
 FORM OF A COMPLAINT. 
 
 In Justices' Court, before David Long, Justice, 
 John Doe \ 
 against \ Complaitit. 
 
 Richard Roe. ) 
 
 John Doe, plaintiff in this suit, complains of Richard Roe, 
 defendant, that the said defendant, on or about the last day of 
 May, eighteen hundred and forty-nine, rented of plaintiff a 
 house and lot, at the corner of Broad and Water streets, in the 
 village of Oxford, for one year from the first of June next fol- 
 lowing — for which said defendant agreed to pay plaintiff one 
 hundred dollars. 
 
 Plaintiff further says the above named defendant occupied 
 the said premises one year from the first of June, eighteen hun- 
 dred and forty-nine, pursuant to his agreement as aforesaid, and 
 that he has not paid plaintiff the one hundred dollars he agreed 
 to pay him, or any part of the same. Wherefore the plaintiff 
 demands judgment against the defendant for one hundred 
 dollars. 
 
 John Doe. 
 
 The foregoing is a complaint in forTu. If the complaint is 
 made verbally, as is most usually the case, it need not, as al-
 
 86 OF THE PLEA.DINGS IN A SUIT. 
 
 ready stated, be in form. Care, however, should be taken to 
 allege all the circumstances necessary for the support of the ac- 
 tion, and to give a full statement of the injury which the plain- 
 tiff has sustained, with the time and place, and other circum- 
 stances, with such precision, clearness and certainty, that the 
 defendant, knowing what he is called upon to defend, maybe able 
 to plead a direct and unequivocal answer ; or that the jury may 
 be enabled to give a complete verdict upon the issue ; or that 
 the court, consistently with the rules of law, may give a certain 
 and direct judgment in the premises. 
 
 Thus the plaintiff, in making a complaint upon a written con- 
 tract, should exhibit the writing, giving at the same time any 
 necessary explanation, and particularly stating the breaches of 
 the agreement for which he claims damages. In complaining 
 on matters of account, a copy of the account, with the proper 
 dates, may be handed to the Justice for the complaint, who will 
 thereupon file it. In complaining for iDro?igs, a plain statement 
 of facts should be made. And in all cases, a representation of 
 such matters as the plaintiff expects to prove, and which, if 
 proved, will exhibit a legal cause of action, will be a sufficient 
 complaint. 
 
 The complaint should not join different causes of action, nor 
 the same causes of action, unless they affect equally all the 
 parties to the action, and require the same place of trial. (Code, 
 sec. 167.) 
 
 With the foregoing exception, in a Justices' Court, several 
 causes of action may be united in the same complaint, when 
 they belong to one of the following classes : — 
 
 1. Actions on contract, express or implied, whether the con- 
 tract be under seal, or written without seal, or merely by parol. 
 
 2. Injuries with force or without force to the person. 
 
 3. Injuries with force or without force to property, whether 
 the property be real or personal. 
 
 4. Claims against a trustee by virtue of a contract, or by ope- 
 ration of law. 
 
 5. vVctioris for a penalty given by statute, arising on several 
 like violations of the same statute. 
 
 Where time and j)lace are mere matter of form, they need not 
 be stated in the coni[)iaint, as no advantage can be taken of their 
 omission. If, however, time and place are material to the cause 
 of action, it is not only necessary to state them, but to sot them
 
 OF THE PLEADINGS IN A SUIT. ^7 
 
 forth fully and truly. Thus, if the plaintiff complain that the 
 defendant violated a contract to work from such a day to such 
 a day, he must prove it ; and so of any other special contract. . 
 
 In the statement of time, it is advisable, where the day is not 
 material, to state that the fact occurred on or about such a day, 
 unless the party is certain as to the particular day. 
 
 When a request furnishes the consideration of the promise 
 alleged, a request, or something equivalent to it, should be 
 stated in the complaint. As when the plaintiff claims for ser- 
 vices rendered for the defendant, it should appear from the com- 
 plaint, that they were rendered at the defendajifs request. But 
 the knowledge of a beneficial service, and an assent to it at the 
 time, when nothing appears to show that it was designed to be 
 gratuitous, is sufficient proof of a request. And the allegation 
 showing the service to have been so rendered, is sufficient, 
 without alleging the request ; because in such case, the law 
 implies both the request and promise to pay. (Hayden Appen. 
 sec. 131.) So also, in the case of all executory contracts, and 
 of all instances of sale on deposit, lending or other bailment of 
 goods, this assent appears from the transaction, and therefore it 
 is not necessary specially to allege a request. (Id.) 
 
 If upon the trial, it appears that there is a variance between 
 the facts proved and the complaint, the plaintiff 's right to re- 
 cover will not be affected, unless such variance amount to a 
 failure of proof The variance must, with this exception, in all 
 cases be disregarded by the Justice as immaterial, unless he is 
 satisfied that the adverse party has been misled by it to his 
 prejudice. (Code, sec. 171. Id. sec. 64.) 
 
 If the variance is not material, the Justice may direct the 
 fact to be found according to the evidence, or may make an 
 immediate amendment. 
 
 If the variance is material, the test of which is that it has 
 actually misled the adverse party to his prejudice, of which the 
 Justice must be satisfied, he may amend the complaint upon 
 such terms as shall be just. 
 
 A^iswer. 
 
 When the plaintiff has stated his case in the complaint, it is 
 incumbent on the defendant to make his defence ; otherwise, 
 the plaintiff upon proving his allegations, will at once recover
 
 38 OF THE PLEADINGS IN A SUIT. 
 
 judgment. Defence in its legal sense signifies an opposing or 
 denial of the truth or validity of the complaint, (3 Blk. Com. 
 297.) This denial is made by answer. (Code, sec. 64.) 
 
 The answer of the defendant may contain a denial of the 
 complaint, or any part thereof, and also notice in a plain and 
 direct manner of any facts constituting a defence. (Code, 
 sec. 64.) 
 
 The answer, if in writing, should contain : 
 
 1. The title of the cause, specifying the Justice before whom 
 it is to be tried, and the names of the parties to the action, 
 plaintiff and defendant. 
 
 2. A denial of the complaint, or some part thereof. 
 
 3. Notice of the facts constituting the defence, in ordinary 
 and concise language, without repetition. 
 
 FORM OF ANSWER. 
 
 In Justices' Courts before David Long, Justice. 
 John Doe n 
 against > Ansiver. 
 
 Richard Roe. ' 
 
 Richard Roe, defendant in this suit, in answer to plaintiff's 
 complaint, denies each and every the allegations therein made. 
 
 The above named defendant furthermore, in this his said 
 answer, gives notice, that he will prove on the trial of said 
 cause, the following facts, which constitutes his defence, to wit: 
 1. It was agreed by and between plaintiff and defendant, that 
 defendant should occupy the house and lot mentioned and de- 
 scribed in the complaint, for a year, for eighty-five dollars ; 2. 
 It was agreed by and between plaintiff and defendant, on or 
 about the last day of May, eighteen hundred and forty-nine, 
 that defendant should cause to be erected at his own expense, 
 in front of the said house, a picket fence, for which defendant 
 was to be allowed by plaintiff twenty-five dollars, to be de- 
 ducted from the rent of the aforesaid house and lot ; 3. Defend- 
 ant caused the aforesaid fence to bo erected pursuant to the 
 said agreement; 4. Defendant, for the reasons above stated, is 
 only indebted to the j)laintifr in the sum of sixty dollars — wliich 
 sum of sixty dollars, he has repeatedly tendered the defendant, 
 who has at all limes refused to receive the same. 
 
 Richard Roe.
 
 OF THE PLEADINGS IN A SUIT. QQ 
 
 The defendant may set up by notice in his answer, as many 
 grounds of defence as he shall have. They should be sepa- 
 rately stated, and intelligibly refer to the parts of the complaint 
 they are intended to controvert. 
 
 The language of the Code is, that the defendant may " Give 
 notice in a plain and direct manner, of any facts constituting a 
 defence." (Code, sec. 64.) 
 
 The following grounds of demurrer in courts of record, can 
 only be taken advantage of in Justices' Courts, by answer : 
 
 1. That the court has no jurisdiction of the person of the de- 
 fendant, or the subject of the action. 
 
 2. That the plaintiff has not the legal capacity to sue. 
 
 3. That there is another action pending between the same 
 parties for the same cause. 
 
 4. That there is a defect of parties, plaintiff or defendant. 
 
 5. That several causes of action have been improperly united. 
 Whether the defendant do, or do not, dispute the whole or 
 
 parts of the complaint, he may in his answer, set up any new 
 matter constituting a defence. Such new matter must be stated 
 in ordinary and concise language without repetition, and in 
 such a manner as to enable a person of common understanding 
 to know what is intended. It will, of course, be set forth in 
 the notice. 
 
 If the answer contain new matter that is true in fact, but 
 insufficient in law to defeat the action, the issue will be what 
 was formerly a demurrer to the jilea. If decided in favor of 
 the plaintiff, the Justice may permit the defendant to amend. 
 
 Demurrer. 
 
 In preparing for trial, the first thing to be considered is 
 whether on the face of the pleadings, and supposing the facts 
 to be true as stated, the parties appear in j)oint of laio to have 
 a cause of action or defence. If it appear that either party has 
 no cause of action or defence in point of law, and this by defect 
 of the pleading in substance, the opposite party is permitted to 
 except to the pleading on such ground. In so doing, he is said 
 to dem/ur ; and this kind of objection is called a deinurrer. 
 (Code, sec. 64.) 
 
 Either party may also demur to the pleading of his adversary, 
 when it is not sufficiently explicit to enable him to understand 
 it. (Id.)
 
 90 OF THE PLEADINGS IN A SUIT. 
 
 FORM OF DEMURRER. 
 
 In Justices' Court, before David Long, Justice. 
 John Doe t 
 
 against \ Demurrer. 
 
 Richard Roe. ) 
 
 Richard Roe, defendant in this cause, says, that plaintiff's 
 complaint is insufficient in law to maintain his action, and 
 assigns the following reason*: That it does not appear on the 
 face of the complaint, that there was ever any consideration for 
 the verbal promise alleged to have been made by defendant to 
 plaintiff. 
 
 Richard Roe, 
 
 another form. 
 
 In Justices' Court, before David Long, Justice. 
 John Doe ^ 
 
 against \ Demurrer. 
 
 Richard Roe. j 
 
 John Doe, plaintiff in this cause, says, that defendant's an- 
 swer is insufficient in law to maintain his defence, and assigns 
 the following reason : That the parol agreement which defend- 
 ant sets up, is prior to the agreement contained in the sealed 
 instrument on which this action is founded, and which it at- 
 tempts to vary. 
 
 John Doe. 
 
 The above forms may be readily adapted to the case of de- 
 murrer, on the ground that the pleadings of the party's adver- 
 sary are not sufficiently explicit to enable the party to under- 
 stand them. 
 
 When the plaintiff is ignorant of the name of a defendant, 
 such defendant may be designated in any pleading or proceed- 
 ing l)y any name ; and when his true name is discovered, the 
 pleading or proceeding may be amended accordingly. (Code, 
 sec. 175.) 
 
 Tlio Justice is required, in every stage of an action, to disre- 
 gard any error or defects in the pleadings or proceedings which 
 does not affect the substantial rights of the adverse party. 
 (Sec. 17G.) 
 
 The court may, at ibc; joining of issue, require either party,
 
 OF THE PLEADINGS IN A SUIT, 91 
 
 at the request of the other, at that, or some other specified time, 
 to exhibit his account on demand or state the nature thereof, as 
 far forth as may be in his power ; and in case of his default, pre- 
 chide him from giving evidence of such parts thereof as shall 
 not have been so exhibited or stated. (Vide Code, sec. 64.) 
 
 The pleadings may be amended at any time before the trial 
 during the trial, or upon appeal, to supply way deficiency or 
 omission in the allegations necessary to support the action or 
 defence, when by such amendment substantial justice will be 
 promoted. If the amendment is made after the joining of issue, 
 and it is made to appear to the satisfaction of the court, by 
 oath, that an adjournment is necessary to the adverse party in 
 consequence of such amendment, an adjournment must be 
 granted. The Justice may also, in his discretion, require as a 
 condition of the amendment, the payment of costs to the ad- 
 verse party, to be fixed by the Justice. But no amendment can 
 be allowed after a witness is sworn on a trial, when an adjourn- 
 ment thereby will be made necessary. (Code, sec. 64.) 
 
 Of Various Defences. 
 
 Infancy, Lunacy, ^c. 
 
 Any person under twenty-one years of age is an infant. All 
 the contracts which an infant can make, with very few excep- 
 tions, are voidable, and he may affirm or disaffirm them at plea- 
 sure. (7 Cow. 181.) It has been said that the acts of infants 
 which are capable of being legally ratified, are voidable only ; 
 and acts which are incapable of being legally ratified, are ab- 
 solutely void. (Bingham on Infancy, 33.) Another and better 
 test, as to whether the contracts of an infant are void or voida- 
 ble, is that when the court can pronounce the contract to be to 
 the infant's prejudice, it is void ; and when to his benefit, as for 
 necessaries, it is good ; and when the contract is of an uncer- 
 tain nature, as to benefit or prejudice, it is voidable only at the 
 election of the infant. (2 Kent, 237.) 
 
 If any act of confirmation be requisite, after he comes of age, 
 to give binding force to a voidable act of his infancy, slight acts 
 and circumstances will be a ground from which to infer the 
 assent ; and it will depend upon circumstances, such as the na- 
 ture of the contract, and the situation of the infant, whether
 
 92 OF THE PLEADINGS IN A SUIT. 
 
 any overt act of assent or dissent, on his part, be requisite to 
 determine the fact of his future responsibility. (Id. 239.) 
 
 When an infant makes a contract with a person of full age, 
 the contract, although voidable as to the infant, is still binding 
 upon the adult, so long as it remains executory, and is not re- 
 scinded by the infant. (7 Cow. 23.) It is also a general rule 
 that no one but the infant himself, or his legal representatives, 
 can avoid his voidable deed or contract. (2 J. R, 279. 13 
 Mass. R. 237.) 
 
 But although the executory contracts of an infant are void- 
 able, yet when he does work, or pays money upon his contracts, 
 he cannot recover back his money, nor recover a compensation 
 for his work, on the ground of his infancy. The law will only 
 relieve him from that part of the contract which remains unex- 
 ecuted. (8 Cow. 84.) Where a contract has been executed by 
 the payment of money to the infant, if the infant wishes to 
 avoid the contract, he must restore the money. (7 Cow. 182.) 
 
 The law in relation to infants is intended to furnish protec- 
 tion to the minor, and not to be used as a means of fraud and 
 oppression upon others. Therefore, where an infant takes a 
 deed of land, and gives back a mortgage to secure the purchase 
 money, he cannot avoid the mortgage, and hold under the deed. 
 (1 N. H. R. 37.) Where also goods are sold to an infant, and he 
 avails himself of his infancy to avoid the payment, the vendor 
 may reclaim the goods, as having never parted with his pro- 
 perty in them. (15 Mass. R. 3.59.) If an infant takes an es- 
 tate, and agrees to pay rent, he cannot protect himself from the 
 rent by pretence of infancy, after enjoying the estate when of 
 age. If he receives rent, he cannot demand it again when of 
 age. If an infant pays money on his contract, and enjoys the 
 benefit of it, and then avoids it when he comes of age, he can- 
 not recover back the consideration paid. (8 Taunt. 580. 8 
 Cow. 84.) 
 
 An infant may have money or other property, independently 
 of liis fatiicr ; and the father may so far emancipate an infant 
 child, as to allow him to labor for others, and enjoy his own 
 earnings. (8 Cow. 85. 7 (/ovv. 03.) In either of these cases, 
 the infant may maintain an action to recover his money, pro- 
 perty, or a compensation for his labor, cither before or after he 
 arrives at full ago. Tlie falh(;r cannot, however, so far eman- 
 cipate his infant child a.s to render the contract of such infant
 
 OF THE PLEADINGS IN A SUIT. 93 
 
 binding upon him. His contract will still remain voidable, as 
 before such emancipation. 
 
 To the validity of an infant's contract there is one important 
 exception. A fair contract made for necessaries, is binding upon 
 him. This exception is made solely for the benefit of the 
 infant, and to give him the credit which his necessities require. 
 The infant may be sued and charged in execution on such a 
 contract, provided the articles were necessary for him under the 
 circumstances and condition in which he was placed. 
 
 The question of necessaries is governed by the real circum- 
 stances of the infant, and not by his ostensible situation ; and 
 therefore they who trust him are bound to make due inquiry ; 
 and if the infant has been properly supplied by his friends, they 
 cannot recover. (2 Kent, 239.) If the infant lives with his 
 father or guardian, and their care and protection are duly exer- 
 cised, he cannot bind himself even for necessaries. (4 J. R. 
 141.) 
 
 It is understood that necessaries for the infant's wife and chil- 
 dren, are necessaries for him ; and in all cases of contracts for 
 necessaries, the real consideration may be inquired into. The 
 infant is not bound to pay for the articles furnished more than 
 they were really worth to him as articles of necessity, and con- 
 sequently he may not be bound to the extent of his contract ; 
 nor can he be precluded, by the form of the contract, from 
 inquiring into the real value of the necessaries furnished. (2 
 Kent, 240.) 
 
 An infant may bind himself as an apprentice, or make a con- 
 tract for service and wages, it being an act manifestly for his 
 benefit ; but when bound, he cannot dissolve the relation. (Id. 
 242.) 
 
 Infants are liable for wrongs the same as adults, whether 
 founded on positive wrongs or constructive torts or frauds. (3 
 Wend. 391.) If, therefore, an infant, who has a horse on hire, 
 wilfully and intentionally injure the animal, it amounts to an 
 election on his part, to disaffirm the contract of hiring, and an 
 action may be maintained for the injury. (2 Wend. 137. 3 
 Pick. Rep. 492.) So also, if he hire a horse to go in one direc- 
 tion, and go in another, it is an unlawful conversion of the horse, 
 and an action will lie. But where the claim arises strictly out 
 of a contract, upon which the infant would not be liable, the 
 law will not allow the plaintiff to vary the liability of the infant
 
 94 OF THE PLEADINGS IN A SUIT. 
 
 by changing the form of action and treating the breach of con- 
 tract as a tort. (Chitt. on Con. 151.) If. therefore, an infant 
 hire a horse, and through want of proper care, unintentionally 
 injure him, the owner cannot make him liable, by sueing him 
 for a tort, because he was guilty of no tort. (2 Wend. R. 137.) 
 If. however, the claim were founded in tort, infancy would be 
 no defence. Thus, where an infant embezzled money, and an 
 action was brought to recover the money, it was held that his 
 infancy could not be pleaded in defence, because the action was 
 really founded in tort. (1 Esp. 172.) 
 
 Infancy is a personal privilege which no one but the infant 
 can take advantage of When, therefore, an infant is sued with 
 a person of full age, the latter cannot plead the infancy of his 
 co-defendant. (2 J. R. 279. 7 Cow. 181.) 
 
 A lunatic is not, as a general rule, considered capable of ma- 
 king a valid and binding contract ; and proof that he was out 
 of his mind when the contract was entered into, will be sufficient 
 to avoid it. (15 J. R. 503. 11 Pick. R. 304.) But evidence of 
 his having been insane previous or subsequent to the contract, 
 amounts to nothing, provided he were in sound mind at the time 
 of contracting. (Chitt. on Con. 140.) A lunatic is liable for 
 necessaries and other goods suitable to his condition, if they 
 were enjoyed by him, and provided fairly, without any advan- 
 tage having been taken of his incapacity, (Id.) 
 
 An intoxicated person who is in such a state as to be deprived 
 of the free exercise of his understanding and reasoning powers, 
 is incapable of making a valid contract ; and proof that he was 
 in such a condition when he entered into the contract, will be a 
 good defence to an action thereon. (2 Aiken, 167. 3 Camp. 
 Rep. 33.) A contract made by one in a state of intoxication, is 
 not absolutely void, but only voidable, and if he affirm it when 
 sober, it will be valid and binding. (Id.) 
 
 An alien may make a valid contract with a citizen at all times, 
 excepting when his country is at war with the country of which 
 the other party is a citizen. Daring a war, his right to sue upon 
 a contract entered into in time of peace, is suspended until the 
 close of the war ; and, as a general rule, the contract of an alien 
 enemy ^ is illegal and absolutely void. (Story on Con. 24.) 
 
 Tender. 
 When action at law is commenced for the recovery of a sum
 
 OF THE PLEADINGS IN A SUIT. 95 
 
 certain, or which may be reduced to certainty by calculation, or 
 for a casual and involuntary trespass or injury, the defendant 
 may, before trial or before the assessment of damages, or before 
 judgment in an action for a sum certain, tender to the plaintiff 
 or his attorney, what he shall deem sufficient to pay the debt or 
 damages and costs incurred to that time. (2 R S. 457, sec. 20.) 
 
 If it appear, upon the trial of the cause, or upon the assess- 
 ment of damages, that the amount so tendered was sufficient to 
 pay the plaintiff's demand, and the costs of the suit or proceed- 
 ing, up to the time of the tender, the plaintiff shall not be enti- 
 tled to recover or collect any interest on such demand, from the 
 time of such tender, or any costs incurred subsequent to that 
 time, but shall be liable to the defendant for the costs incurred 
 by him subsequent to such time. (2 R. S. 457, sec. 21.) 
 
 If the action or proceeding be to recover damages, and it ap- 
 pear that the sum so tendered was a sufficient amends for the 
 injury done, and for the costs as before mentioned, the plaintiff 
 shall not be entitled to recover any costs, in any such action or 
 proceeding incurred after such tender, but shall be liable to the 
 defendant, for his costs incurred after that time. (Sec. 22.) 
 
 If any such tender be accepted by the plaintiff, and he shall 
 thereafter proceed in the action, the sum so accepted shall be de- 
 ducted from ihe whole amount of the recovery and judgment 
 shall be rendered only for the residue. The plaintiff's right to 
 recover costs, and his liability to pay costs to the defendant, shall 
 be determined by the amount of such residue. (Id. sec. 23.) 
 
 The defendant, instead of tendering to the plaintiff the amount 
 which he supposes to be due, may pay that amount into court ^ 
 and have it considered as erased from the complaint. The lat- 
 ter course is advisable in all cases where there is any doubt as 
 to the sufficiency of the tender ; for, if the defendant should not 
 succeed in proving the tender, he would have to pay all the 
 costs of the trial ; whereas, if the money be paid into court, and 
 the plaintiff cannot prove more due, he will be liable to pay all 
 costs subsequent to the time of paying the money into court. 
 
 Where money has been paid into court, the plaintiff may, in 
 all cases, take it out, and either accept it in satisfaction of his 
 debt, or proceed with his action. (2 Cow. R. 79J.) 
 
 As the defendant, by paying money into court, admits the 
 debt to that amount, and his object is to save the further costs of 
 the suit, care should be taken to pay in enough to satisfy the
 
 96 OF THE PLEADINGS IN A SUIT. 
 
 claim, together with interest, when recoverable, up to the time 
 of payment into court. 
 
 A tender made by a person on behalf and at the desire of the 
 party, is as good as if it had been made by the party himself. 
 (2 Cow. R. 794.) 
 
 Properly speaking, no money is a lawful tender, but such as 
 is made current by act of Congress. 
 
 All gold, silver, and copper coin, stricken and issued at the 
 mint of the United States, pursuant to the laws of Congres, are 
 a legal tender. (2 Laws of U. S. 267.) 
 
 Bank notes, if objected to, are not a good tender. If, however, 
 no objection is made, it is a waiver of tender in specie, and a 
 tender in bank bills is goed. (8 Greenl. 110. 7 J. R. 436.) 
 
 To constitute a good tender, the party should not only be 
 ready to pay, and make an actual offer of the sum due, but ac- 
 tually produce the same, unless such production be dispensed 
 with by the express declaration of the creditor that he will not 
 accept it, or by some equivalent act. (10 East, 101.) If the 
 plaintiff do not object to receive the money, it is not sufficient for 
 the defendant to prove that he had the money in his pocket, or 
 held it in a bag under his arm ; he ought to have produced it. 
 (3 T. R. 684.) And if he says I am not aware of the exact bal- 
 ance, but if any be due, I am ready to pay it, this is no tender. 
 (15 East, 428.) 
 
 With regard to the amount of the sum tendered, it should, in 
 general, be a.i ( ffer of'Jhe specific sum due, U7iqualified hy any 
 circumstance whatever; and therefore tendering a larger sum 
 and making a cross demand, is insufficient. But the tender of a 
 larger sum, and asking change, is good, provided the creditor do 
 not object to it on that account, but only demands a larger sum. 
 (6 Taunt. 336. 
 
 The tender must be unconditional in payment of the debt. A 
 tender, therefore, is not good when accompanied with the de- 
 mand of a receipt in full ; (2 Phil. Ev. 134,) or upon condition 
 that it shall be received as the whole of the balance due ; (4 
 Camb. 156,) or that a particular document shall be given up to 
 l)e cancelled. (2 Camp. 21.) 
 
 Where a tender of money is made, and the plaintilf refuses the 
 money, the tender cannot be pleaded in bar of the action, but in 
 bar of the interest and costs only ; for the debtor must still pay 
 his debt. The tender, therefore, must be kept good ; that is, the
 
 OF THE PLEADINGS IN A SUIT. 97 
 
 amount of money tendered must be forth coming on its being 
 demanded by the creditor, or the benefit of the tender is lost. 
 (12 J. R. 276. 2 id. 24.) 
 
 The consequence of a regular tender and refusal of goods 
 where the articles will subject the party tendering to a charge, 
 in order to keep them, which embraces almost every article of 
 traffic, is a complete discharge of the contract for delivery ; and 
 the party is not bound to hold himself ready or to keep the ten- 
 der good ; but he holds the articles as bailee at the risk of the 
 person to whom they have been tendered. (8 J. R. 474. 3 John. 
 Cas. 249. 12 J. R. 274. 13 Wend. 95.) 
 
 If the debtor be present in person or by his agent, and makes 
 a tender of specific articles, at the proper time and place, accor- 
 ding to contract, and the creditor does not come to receive them, 
 or refuses to accept them, the better opinion is that if the articles 
 be properly designated and set apart, the debtor is thereby dis- 
 charged. (2 Kent, 508.) 
 
 Although, as we have seen, the seller, by default of the buyer, 
 becomes bailee for the keeping of ihe goods, yet if the latter un- 
 reasonably refuses to accept the article sold, the seller is not 
 obliged to let them perish and run the risk of the solvency of 
 the buyer. It is customary, upon the neglect or refusal of the 
 buyer, to come in a reasonable time after notice, and pay for 
 and take the goods, for the vender to sell the same at auction, 
 and to hold the buyer responsible for the deficiency. (5 J. R. 
 395.) 
 
 In tendering specific articles, the party making the tender 
 must do everything in his power to place himself in a state of 
 perfect readiness to perform, or the tender will not be good. (3 
 John. Cas. 253.) When, therefore, the vendor was to count cer- 
 tain skins sold, in order to ascertain the price under an agree- 
 ment ; or to weigh out certain flax sold lying at the wharf, as 
 part of a large quantity, from which it was not yet severed 
 by the process of weighing, and the purchaser consequently 
 could not know his part ; it was held that the counting and 
 weighing not having been performed, the property did not pass, 
 and that a tender could not be pleaded. (5 Taunt. 617.) 
 
 It is a general rule that where any act yet remains to be done 
 by the purchaser, to prepare the goods for delivery, the property 
 in them does not pass ; for the identifying the goods and giving 
 the tenderee a remedy for them by action, either to obtain the 
 
 7
 
 98 OF THE PLEADINGS IN A SUIT. 
 
 goods, or their value, is not eflected. This is indispensable ; for 
 the party is not to be deprived of all remedy upon his contract, 
 unless another remedy be furnished him by transferring the 
 property of the goods, and placing them completely under his 
 control. (5 J. R. 119.) 
 
 If no place be designated by the contract, the general rule is, 
 that the articles sold are to be delivered at the place where they 
 are at the time of the sale ; at the store of the merchant, the 
 shop of the manufacturer or mechanic, and the farm or granary 
 of the farmer, where the commodities sold are deposited or kept, 
 (4 Wend. 380.) 
 
 If the contract be to deliver specific articles, as wheat or 
 timber, the obligor is not bound to carry the same abroad, and 
 seek the obligee ; but he must call upon the obligee before the 
 day, to know where he would receive the articles, and they 
 must be delivered or the obligor must be ready and able to make 
 the delivery at the place designated by the obligee. (2 Hill, 
 531.) 
 
 The creditor cannot be permitted to appoint an unreasonable 
 place, and one so remote from the debtor, that the expense of 
 the transportation of the articles might exceed the price of them ; 
 and if the place intended by the parties can be inferred, the 
 creditor has no right to appoint a difl'erent place. But if no 
 place of performance be designated, and none can be clearly in- 
 ferred from collateral circumstances, the creditor may designate 
 a reasonable place for the delivery of the articles. (2 Kent 
 Com. 507. 2 N. H. R. 75.) 
 
 Statute of Limitations. 
 
 An action on a sealed instrument or on a judgment, or decree 
 of any court in the United States, or of any court of any state 
 or territory, must be commenced within twenty years after the 
 right of action accrued. (Code, sec. 90.) 
 
 The following actions must be commenced within six years : 
 An action upon a contract, obligation or liability, express or im- 
 plied, cxcc])ting those mentioned above ; an action upon a lia- 
 bility created by statute, other than a penalty or forfeiture ; an 
 action for trespass upon real property ; an action for taking, de- 
 taining or injuring any goods or chattels, including actions for 
 the specific recovery of personal property ; an action for an in-
 
 OF THE PLEADINGS IN A SUIT. 99 
 
 jury to the person or rights of another not arising on contract ; 
 an action for rehef, on the ground of fraud — the cause of action 
 not to be deemed to have accrued until the discovery, by the 
 aggrieved party, of the facts constituting the fraud. (Code, 
 sec. 91.) 
 
 Actions against a sheriff, coroner or constable, upon a liability 
 incurred by the doing of an act in his official capacity, or by 
 the omission of an official duty, including the non-payment of 
 money collected on execution, but excluding an action for an 
 escape ; and actions for a statute penalty or forfeiture given to 
 the party aggrieved, or to such party and the state, where no 
 different term is limited by the particular statute, must be com- 
 menced within three years. (Id. sec. 92.) 
 
 An action upon a statute for a forfeiture or penalty to the 
 state, must be commenced within two years. (Sec. 93.) 
 
 An action against an officer for the escape of a person ar- 
 rested or imprisoned on civil process, and an action by a private 
 party for a statute penalty or forfeiture, given in whole or in 
 part, to any one who will sue therefor, must be brought within 
 one year. (Sees. 94-96.) 
 
 No action can be brought upon a judgment rendered in any 
 court of this state, (except a court of a Justice of the Peace,) 
 between the same parties, without leave of the court for good 
 cause shown, on notice to the adverse party ; and no action on 
 a judgment rendered by a Justice of the Peace can be brought, 
 in the same county, within five years after its rendition, except 
 in case of his death, resignation, incapacity to act, or removal 
 from the county, or that the summons was not personally served 
 on the defendant or on all the defendants, or of the death of some 
 of the parties, or where the docket or record of such judgment, 
 is or shall have been lost or destroyed. (Code, sec. 71.) 
 
 An action under the foregoing provisions of the statute, as far 
 as it relates to Justices' Courts, is not deemed commenced, until 
 the summons is served on the defendants or one of them ; or 
 delivered, for the purpose of being served, to the constable of 
 the county in which the defendants, or one of them, usually, or 
 last resided ; or, if a corporation be defendant to the constable 
 of the county in which such corporation was established by 
 law, or where its general business was transacted, or where it 
 kept an office for the transaction of business. (Sec. 99.) 
 
 In an action for a balance due upon a mutual, open and cur-
 
 100 OF THE PLEADINGS IN A SUIT. 
 
 rent account, where there have been reciprocal demands be- 
 tween the parties, the cause of action must be deemed to have 
 accrued from the time of the last item proved in the account, on 
 either side. (Code, sec. 95.) 
 
 If when the cause of action accrue against a person, he is out 
 of the state, the action may be commenced within the term 
 limited after his return to the state ; and if after the cause of 
 action has accrued, he depart from, and reside out of the state, 
 the time of his absence will not be part of the time limited for 
 the commencement of the action. (Code, sec. 100.) 
 
 If a person entitled to bring an action — except for a penalty 
 or forfeiture, or against a sherifl" or other officer, for an escape — 
 be, at the time the cause of action accrued, either : 
 
 1. Within the age of twenty-one years ; or, 
 
 2. Insane ; or, 
 
 3. Imprisoned on a criminal charge, or in execution under 
 the sentence of a criminal court, for a term less than his natural 
 life ; or, 
 
 4. A married woman : — 
 
 The time of such disability will not be part of the time lim- 
 ited for the commencement of the action. (Sec. 101.) 
 
 If a person entitled to bring an action, die before the expiration 
 of the time limited for the commencement thereof, and the cause 
 of action survive, an action may be commenced by his represen- 
 tatives, after the expiration of that time and within one year from 
 his death. (Code, sec. 102.) If a person against whom an action 
 may be brought, die before the time limited for the commence- 
 ment thereof, and the cause of action survives, an action may 
 be commenced against his executors or administrator after the 
 expiration of that time, and within one year after the issuing of 
 letters testamentary, or of administration. (Id.) 
 
 When a person is an alien subject, or citizen of a country at 
 war with the United States, the time of the continuance of the 
 war will not be part of the period limited for the commence- 
 ment of the action. (Code, sec. 103.) 
 
 If an action he commenced within the time prescribed there- 
 for, and a judgment thoroin for the phiinlifl' be reversed, on ap- 
 peal, thf ])huntiir, or if ho die and the cause of action survive, 
 his heirs or rf!prcs(>nlativ«'s may commence a new action, within 
 one yar after tlu^ reversal. (( 'od(!, sec. 104.) 
 
 When the commencement of an action is stayed by an injunc-
 
 OF THE PLEADINGS IN A SUIT. IQl 
 
 lion or statutory prohibition, the time of the continuance of 
 the injunction or prohibition, will not be part of the time limited 
 for the commencement of the action. (Code, sec. 105.) 
 
 No person can avail himself of a disability, unless it existed 
 when his right of action accrued. (Id. sec. 106.) When two or 
 more disabilities co-exist, the limitation will not attach until 
 they are all removed. (Id. sec. 107.) 
 
 It is enacted that the foregoing shall not affect actions to 
 enforce the payment of bills, notes, or other evidences of debt, 
 issued by monied corporations, or issued or put in circulation as 
 money ; (Id. sec. 108 ;) nor actions against directors or stock- 
 holders of a monied corporation, to recover a penalty or for- 
 feiture imposed, or to enforce a liability created by the second 
 title of the Revised Statutes, entitled " Of Incorporations ;" but 
 such actions must be brought within six years after the disco- 
 very by the aggrieved party of the facts upon which the penalty 
 or forfeiture attached, or the liability was created. (Id. sec. 109.) 
 
 Where the time for commencing an action arising on contract 
 has expired, the cause of action will not be deemed revived, by 
 an acknowledgment or new promise, unless the same is in 
 writing, subscribed by the party to be charged thereby. The 
 foregoing, however, does not alter the effect of any payment of 
 principal or interest, made upon such contract. (Code, sec. 110.) 
 
 Set- Off. 
 
 If at the time of commencing the suit, the defendant have in 
 his own right, either as being the original creditor or payee, or 
 as being the assignee or owner, a demand against the plaintifl', 
 arising upon contract, express or implied, the defendant at the 
 time of joining issue, should state such demand in his answer, 
 specifying clearly and fully the nature of the claim. 
 
 If the demand thus set up, by the defendant, is found to be 
 equal to the plaintiff's debt, judgment must be entered for the 
 defendant v/ith costs. If it be less thnn the plaintiff's debt, the 
 plaintiff is entitled to judgment for the balance, and to costs. 
 If it be more than the plaintiff's debt, and the balance found 
 due the defendant, from the plaintiff in the action, be one 
 hundred dollars, or under, judgment must be rendered for the 
 defendant for such balance with costs, precisely as though the 
 suit had been brought by him. If the balance found due the
 
 102 OF THE PLEADINGS IN A SUIT. 
 
 defendant, exceed one hundred dollars, the Justice must set off 
 so much of the defendant's demand against the plaintiff's debt 
 as will be sufficient to satisfy it, if required to do so by the de- 
 fendant, and render judgment for the defendant for his costs. 
 If the defendant do not require such set-off, the Justice must 
 enter judgment of discontinuance for the defendant, with costs ; 
 and the defendant may thereafter sue for, and recover his 
 demand, in any court having cognizance thereof (2 R. S. 333, 
 sees. 53, 54.) 
 
 To constitute a set-off, the demand must be for real estate 
 sold, or for personal property sold, or for money paid, or services 
 done ; or if it be not such a demand, the amount must be liqui- 
 dated, or be capable of being ascertained by calculation. (Id. 
 sec. 51.) 
 
 The subject of the set-off must also have existed at the time 
 of the commencement of the suit, and must then have belonged 
 to the defendant. (Id.) "Where, therefore, a defendant, after a 
 suit commenced against him, bought a note against the plaintiff 
 with the intent to set it off' against the plaintiff's debt, this was 
 held inadmissible. (3 John. Cas. 145. 1 Cai. 71, 72.) 
 
 If there be several defendants, the demand set off", must be 
 due to all of them jointly ; (2 R. S. 333, sec. 51 ;) unless there 
 was an agreement between the parties that such debts might 
 be set off against each other. (2 Taunt. 170.) Where, how- 
 ever, the plaintiff owes a debt to several persons jointly, one of 
 whom owes him. the latter may acquire the right of set-oft" 
 against the plaintiff, by taking an assignment to himself alone, 
 of the debt due from the plaintiff before the plaintiff's suit is 
 commenced. (17 J. R. 330.) If A. agree in writing, to work 
 for B , and C. guaranties by endorsement, that A. will do the 
 work in a particular manner, and A. sue B., B. may set off 
 damages for a breach of the contract to do the work, against 
 A.'s claim ; for C. is a mere guaranty, and is not jointly liable 
 with A. (10 id. 250.) 
 
 If the action be founded upon a contract, (other than a nego- 
 tiable promissory note or bill of exchange,) which has been 
 assigned by the plaintiff, a demand existing against such plain- 
 tiff, or any assignee of such conlruc't, at the time of the assign- 
 ment thereof, and belonging to the defendant in good faith 
 before notien f»f such assignuK^nt, may 1)C set off to the amount 
 of the plaintiff's debt, if llie demand be such as might have
 
 OF THE PLEADINGS IN A SUIT. 103 
 
 been set off against such plaintiff or such assignee \vhile the 
 contract belonged to him. (2 11. S. 332. Code, sec. ] 12.) If a 
 note not negotiable, be given bjr A. to B., and assigned by B. to 
 C, and by C. to D. ; in a suit on such note against A., which 
 must be in the name of B., A. may set off to the amount of the 
 note only : either, 1st. A demand against B. the plaintiff, which 
 was in existence at the time of the assignment by B. to C, and 
 which, if it were not originally due to A., was assigned to him 
 in good faith, before he had notice of the assignment made by 
 B. to C. ; or, 2nd. A. may set off a demand against C the first 
 assignee, which was in existence at the time of the assignment 
 by C. to D., and which, if it were not originally due to A., was 
 assigned to him in good faith, before he had notice of the 
 assignment made by C. to D. ; or, 3rd, A. may set off a demand 
 against D., which was in existence at the time of the com- 
 mencement of the suit, and then belonged to A. either as the 
 original creditor, or as assignee. (Edw, Tr., 3d ed., 60.) 
 
 If the action be upon a negotiable promissory note, or bill of 
 exchange, which has been assigned to the plaintiff, after it 
 became due, a set-off to the amount of the plaintiff's debt, may 
 be made of a demand existing against any person or persons, 
 who shall have assigned or transferred such note or bill, after it 
 became due, if the demand be such as might have been set off 
 against the assignor, while the note or bill belonged to him. (2 
 R. S. 332, sec. 51.) If, however, a note be transferred after it 
 falls due, the maker is not entitled to set off a demand against 
 the payee, if, at the time of the transfer, the payee has other 
 demands against the maker to an amount sufficient to exhaust 
 the demands sought to be set off. (12 Wend. 356.) 
 
 If the defendant who has a set off, makes no mention of it 
 in his answer, he will forever after be precluded from recovering 
 it, or any part of it ; (2 R. S. 333, sec. 58 ;) excepting only, 
 where such set-off" shall exceed the plaintiff's judgment by one 
 hundred dollars ; or where the set-off consisted of a judgment 
 in favor of the defendant, or belonging to him, rendered before 
 the commencement of the suit in which the same might have 
 been set off ; or when a set-off shall have been claimed by him, 
 and a balance exceeding one hundred dollars shall have been 
 found in his favor ; in which case, the defendant may maintain 
 an action for such part of his demand as was not allowed to 
 him as a set-off : or where the suit was commenced against the
 
 04 OF THE PLEADINGS IN A SUIT. 
 
 defendant by attachment, and he did not personally appear in 
 such suit : or where the set-off consists of claims for unliqui- 
 dated damages : or claims in suit in another court, at the time 
 of the commencement of the suit before the Justice. (2 R. S. 
 334, sec. 59.) 
 
 If the demand which might have been set-off, consisted of a 
 negotiable note or bill of exchange, no action shall be main- 
 tained thereon, by any person who may derive title thereto, 
 from or through the defendant. (Id. sec. 58.) 
 
 In suits brought by executors and administrators, the defend- 
 ant may set off demands existing against their testators or intes- 
 tates, and belonging to the defendant at the time of their death, 
 in the same manner as if the action had been brought by and 
 in the name of the deceased. If the judgment is in favor of 
 the defendant, it must be rendered against the executors and 
 administrators in their representative character ; it will then be 
 evidence of a debt established, to be paid in the course of ad- 
 ministration. (Id. 56, 57.) 
 
 If upon the trial, it is ascertained by the Justice, that the 
 plaintiff 's claim, together with the demands set off by the de- 
 fendant, exceed four hundred dollars, the Justice has no juris- 
 diction of the cause. (Code, sec. 47.) He is, therefore, required 
 to enter judgment of discontinuance against the plaintiff, with 
 costs. (2 R. S. 333, sec. 55.) 
 
 The claim and set-off mentioned above, must be open and 
 unliquidated, between the parties. (2 Cow. 413.) If the plain- 
 tiff should sustain by proof a complaint on a note for three 
 hundred dollars, and the defendant, in his answer, prove that 
 he had paid on the note two hundred and fifty dollars, the 
 Justice v/ould bo bound to give judgment for the balance. (Id.) 
 But if the plaintiff should prove a note of three hundred dollars, 
 and the defendant should prove a set-off to the amount of two 
 hundred and fifty dollars, in such case, the Justice must dis- 
 miss the suit. (10 Wend. 555, 557.) 
 
 Fornicr Recovery. 
 
 An aus\V(;r of a fdruuM- recovery for the subject matter of the 
 pending suit, sustained by proof, would be a complete defence ; 
 also, that the same cause of action, between the same parties, 
 has already been submitted and passed upon. The same cause
 
 OF THE PLEADINGS IN A SUIT. 105 
 
 of action^ is where the evidence will support both actions, in a 
 different form, thereby making the evidence given in the first 
 action the test of its identity with the second. (7 J. R. 20.) 
 
 A non-sidt in a former action is not a bar to a new action for 
 the same cause. Where a cause is tried by a Justice, the plain- 
 tiff may elect to become non-suit at any time before the cause is 
 finally submitted on the merits to the Justice ; but after such sub- 
 mission, the plaintiff cannot discontinue or become non-suit. (10 
 J. R.363. Hid. 457.) 
 
 The plaintiff may elect to become non-suited after a trial by 
 jury and before their verdict is rendered ; but where a demand 
 has once been finally submitted to a jury, their verdict is a bar 
 to any other suit for the same cause ; and it is a complete bar, 
 notwithstanding the jury may have rejected such demand for 
 want of proof, or disregarded it for any other cause, and not- 
 withstanding the Justice may have neglected to render judg- 
 ment upon the verdict. (5 J. R. 346. 2 R. S. 176, sec. 119. 11 
 J. R. 458. 2 id. 181. 6 id. 168. 9 Wend. 287. 12 id. 504.) 
 
 If a Justice to whom a cause is finally submitted, neglect to 
 render any judgment^ within the four days allowed him by stat- 
 ute, it is no bar to a second suit for the same cause of action, 
 (3 Hill, 60.) 
 
 If a demand consisting of a single item, be barely stated to 
 the jury, among other things, who neglect to pass upon or notice 
 it from any cause ; or if a demand be submitted to and disal- 
 lowed by them, this will operate as a perpetual bar to an action 
 for the same ; and should a subsequent jury allow such suhnnit- 
 ted or disallowed item or demand among others properly allow- 
 able, the verdict and judgment will thereby be tainted for the 
 whole and reversed entirely. 2 Cow. Tr. 726, and cases cited.) 
 
 A plaintiff cannot sjolit his demand so as to bring two or more 
 actions upon it. And where a demand is submitted and only a 
 part of it allowed by a Justice or jury, it is equally a bar to a 
 future claim for the whole and every part of the claim submit- 
 ted. (16 J. R. 136.) Where, therefore, the plaintiff brought sepa- 
 rate suits upon the same note, the first suit, though but for a 
 small part of the note, was held a perpetual bar to a recovery of 
 the residue. (16 J. R. 121.) So also, where three barrels of pot- 
 ashes were sold at the same time, and the vendor brought his 
 action, and recovered for one of them, this barred his claim for 
 the whole. (15 J. R. 229.)
 
 106 OF THE PLEADINGS IN A SUIT. 
 
 When the defendant sets up in his answer, a former suit by 
 him against the plaintiff, in which the plaintiff ought, but ne- 
 glected, to set off his demand, it is essential to aver and prove, 
 that such former suit was brought before the commencement of 
 the second one ; otherwise it is no bar. 
 
 Question of Title. 
 
 A Justice of the Peace has no jurisdiction of a cause in which 
 the title to real property comes in question, as provided by sec- 
 tions 55 to 62 of the Code, inclusive. (Code, section 54.) 
 Such title, therefore, if pleaded, would be a bar to the existing 
 suit. The defendant can avail himself of it only by answer iti 
 writing^ signed by him or his attorney, which he must deliver 
 to the Justice, who will thereupon countersign the same, and de- 
 liver it to the plaintiff. (Id.) 
 
 FORM OF ANSWER. 
 
 In Justices' Court, before David Long, Justice. 
 John Doe ) 
 
 against > Ansivcr shoioing Title. 
 
 Richard Roe j 
 
 The above named defendant, in answer to plaintiff's com- 
 plaint, says that the house and lot mentioned in the complaint, 
 and for which plaintiff claims one year's rent, from the first day 
 of June, eighteen hundred and forty-nine, never belonged to 
 plaintiff; but that previous to the aforesaid first day of June 
 they were the property of one Jacob Little, by whom, on the said 
 first day of June, they were sold to the defendant, who has since 
 remained the lawful owner. 
 
 Richard Roe. 
 
 The Justice may countersign the preceding in this form: 
 
 " The above answer was delivered to me, at the joining of 
 
 issue ill ilic above cause, on the day of , 1849. 
 
 David Long, Justice." 
 
 At the lime of answering, the delcndaiit nnist also deliver to 
 the Justice a written undertaking, executed by at least one
 
 OF THE PLEADINGS IN A SUIT. 107 
 
 sufficient surety, and approved by the Justice, to the effect that 
 if the plaintifi" shall, within thirty days thereafter, deposit with 
 the Justice a summons and complaint, in an action in the Su- 
 preme Court for the same cause, the defendant will, within ten 
 days after such deposit, give an admission in writing, of the 
 service thereof. Where the defendant was arrested in the ac- 
 tion before the Justice, the undertaking must further provide 
 that he will at all times render himself amenable to the process 
 of the court, during the pendency of the action, and to such as 
 may be issued to enforce the judgment thereon. In case of fail- 
 ure by the defendant, to comply with the undertaking, the surety 
 will be liable, not exceeding one hundred dollars. (Code, sec- 
 tion 56.) 
 
 FORM OF UNDERTAKING. 
 
 In Justices' Court, before David Long, Justice. 
 John Doe i 
 against > 
 Richard Roe. 5 
 The defendant in this action having interposed an answer to 
 the complaint of the plaintiff, bringing in question the title of 
 the plaintiff to real property : now, therefore, for the purpose of 
 suspending the jurisdiction of the said Justice therein, and in con- 
 sideration thereof, we, Richard Roe and Henry Brown, hereby 
 undertake and promise, to and with the above named John Doe, 
 plaintiff, in the sum of one hundred dollars, that if the said John 
 Doe shall, within thirty days from this date, deposit with the 
 above named Justice, a summons and complaint in an action in 
 the Supreme Court, for the same cause, the said Richard Roe, 
 will within ten days after such deposit, give an admission in 
 writing, of the service thereof 
 
 Richard Roe. 
 Dated , 1849, Henry Brown. 
 
 If the defendant was arrested in the action, after the word 
 •' thereof, ^^ in the preceding add— awe? that he will at all times 
 render himself amenable to the j)rocess of the said court during 
 the pendency of the action, and to such as 7nay be issued to en- 
 force tlte judgment therein. 
 
 The undertaking must be approved by the Justice. The Jus- 
 tice's approval may be endorsed upon the undertaking thus :
 
 108 OF THE PLEADINGS IN A SUIT. 
 
 ''I approve the within undertaking, and the surety therein 
 named. 
 
 David Long, Justice." 
 
 Upon the dehvery of the undertaking to the Justice, the ac- 
 tion before him must be discontinued, and each party must pay 
 his own costs. (Code, sec. 57.) 
 
 The costs so paid by either party, must be allowed to him if he 
 recover costs in the action to be brought for the same cause in the 
 Supreme Court. If no such action be brought within thirty 
 days after the delivery of the undertaking, the defendant's costs 
 before the Justice may be recovered of the plaintiff. (Id.) 
 
 If the undertaking be not delivered to the Justice, he will 
 have jurisdiction of the cause, and must proceed therein ; and 
 the defendant will be precluded, in his defence, from drawing 
 the title in question. (Sec. 58.) 
 
 If, however, it appear on the trial, from the plaintiff's own 
 showing, that the title to real property is in question, and such 
 title is disputed by the defendant, the Justice must dismiss the 
 action, and render judgment against the plaintiff for the costs. 
 (Sec. 59.) 
 
 When a suit before a Justice is discontinued by the delivery 
 of an answer and undertaking as provided supra, the plaintiff 
 may prosecute an action for the same cause in the Supreme 
 Court. The plaintiff, however, can complain for the same cause 
 of action only on which he relied before the Justice ; and the 
 answer of the defendant must be the same which he made be- 
 fore the Justice. (Sec. GO.) 
 
 If the judgment in the Supreme Court be for the plaintiff, he 
 will recover costs. If it be for the defendant, he will recover 
 costs, except that upon a verdict he must pay costs to the plain- 
 tiil" unless the judge certify that the title to real property came 
 in question upon the trial. (Sec. Gl.) 
 
 If, in ail action before a Juslice, the plaintiff have several 
 causes of action, to oik; of which the defence of title to real 
 pro[)f;rty is interposed, aud as to such cause the defendant an- 
 swer aiifl (](;Mver an undertaking, the Justice must discontinue 
 ihr; jjrocecihngs as to that cause, and iho ])huntifr may com- 
 ni(;nce anolh(;r action in th(! Supreme (Jonrt therefor. As to the 
 other causes of action, the Justice may continue his proceed- 
 ings. (Sec. i't2.)
 
 CHAPTER VI 
 
 ADJOURNMENTS. 
 
 I SHALL treat the subjects of this chapter under the following 
 heads : — 
 
 1. AdjournmeJit on Motion of the Justice. 
 
 2. On Motion of the Plaintiff. 
 
 3. On Motion of the Defendant. 
 
 4. Second or further Adjounwient. 
 
 5. General Rides of AdjournTnents. 
 
 1. On Motion of the Justice. 
 
 At the time of the return of either a summons or attachment, 
 or of joining issue Avithout process, a Justice may, in his discre- 
 tion, and with or without the consent of parties, adjourn the 
 cause not exceeding eight days. (2 R. S. 335, sec. 68. 10 
 Wend. R. 497.) 
 
 A Justice can in no case adjourn a cause commenced by war- 
 rant, on his own motion ; nor can he exercise that right in a suit 
 commenced by a summons or attachinent at any other time than 
 on the return of such summons or attachment. (Id. 69. 2 J. 
 R. 192. 15 id. 492.) 
 
 The discretion allowed to a Justice in adjoiu'ning, in the case 
 above stated, is not wholly an arbitrary discretion ; it must be 
 soundly and judiciously exercised. (8 J. R. 426.) While, on 
 the one hand, he ought not to adjourn the cause on his own mo- 
 tion, when satisfied it will injuriously affect the rights of either 
 party on the other, he should not refuse an adjournment where 
 it is evident the situation of either party really demands it. In 
 one case, where the defendant appeared before the Justice on 
 the morning of the return day of the summons, and applied in 
 writing for an adjournment, on account of his child being dan- 
 gerously sick, which was denied, the Supreme Court held that 
 the situation of the defendant's child was such as ought to have 
 induced the Justice to put off the trial. (Id.) 
 
 The Justice may adjourn to another place difierent from the
 
 no ADJOURNMENTS. 
 
 place mentioned in the summons, without the consent of par- 
 ties, both parties having first appeared at the place mentioned 
 in the process. (1 Cow. 112.) 
 
 A Justice can never adjourn a cause by sending a note in 
 writing to the parties, informing them of the time and place to 
 which he has adjourned, but must in all cases of adjournment 
 be personally present. (4 J. R. 117.) 
 
 2. On Motion of the Plaintiff. 
 
 At the time of the return of a summons or attachment, or the 
 joining of issue without process, the plaintiff will be entitled to 
 an adjournment to a time to be fixed by the Justice, not exceed- 
 ing eight days thereafter, if he or his attorney shall, if required 
 by the defendant, make oath that he cannot, for want of some 
 material testimony or witness, safely proceed to trial. (2 R. S. 
 335, sec. 70.) 
 
 The adjournment may be for any less period than eight days, 
 but cannot exceed it, except by consent of parties. In compu- 
 ting the time, the day of adjourning is to be excluded ; so that 
 if process be returnable on Tuesday, the Justice would have no 
 power to adjourn beyond the Wednesday of the next week. 
 (Code, sec. 368. 1 Cow. 324.) 
 
 An adjournment, on the application of the plaintiff, cannot be 
 granted at any other time than on the return of a summons or 
 attachment, or the joining of issue without process. (9 J. R. 
 136. 7 id. 530. 2 id. 192.) If the defendant does not appear 
 on the return of the summons or attachment, the Justice may 
 adjourn the cause, on the simple request of the plaintiff without 
 oath. (So also, if the defendant aj^pear, and docs not object to 
 the adjouiiimcnt. The defendant may, however, object to the 
 adjourmncnt, ruid require, as a condition of its being granted, 
 that the plaintilf or his attorney make oath tliat he cannot, for 
 want of some material testimony or wilncss, safely proceed to 
 trial. (2 R. 8. 335, sec. 70.) 
 
 A cause conmicnccd by warrant, at the suit of a non-resident 
 plaintifl", may be adjourned oji the aj)f)ncation of sucli phiintiff, 
 supported ])y his oath, that on account of the absence of some 
 material witness or testimony, he caimot then safely proceed to 
 trial. (Id. sf'-. 71.) In this case, the afljournment nnist be to a 
 day not less than three, nor more than twelve days thereafter.
 
 ADJOURNMENTS. HI 
 
 unless the parties and Justice shall otherwise agree. (2 R. S. 
 336, sec. 74.) Upon such adjournment, the Justice must dis- 
 charge the defendant from custody ; but the cause will not be 
 discontinued by such discharge ; and at the adjourned day, the 
 same proceedings must l)e had as on the return of a summons 
 personally served. (Id. sec. 73.) 
 
 Whenever a short summons is issued in favor of a non-resi- 
 dent plaintiff, no longer adjournment shall be allowed than in 
 case of a warrant at the instance of a non-resident plaintiff, un- 
 less the parties otherwise agree. (Sess. Laws, 1831, p. 403, sec. 
 32.) 
 
 When the defendant is a non-resident, and is sued by short 
 summons, the same rule as to adjournments, governs, as in cases 
 of non-resident plaintiffs. 
 
 3. On Motion of the Defendant. 
 
 When the suit is commenced either by summons or attach- 
 ment, or by joining issue without process in all cases arising on 
 contract, the defendant will be entitled to an adjournment upon 
 his complying with the following requisitions: — (211. S. 336, sec. 
 75.) 
 
 1. The application must be made at the thne of joining issue. 
 
 2. If required by the plaintiff or the Justice, the defendant 
 must make oath that he cannot safely proceed to trial for the 
 want of some material testimony or witness, to he specified hy 
 him. 
 
 3. If required by the plaintiff, the defendant must give secu- 
 rity by a bond to the plaintiff, in the penalty of one hundred dol- 
 lars. 
 
 The absent testimony or witness must be specified by the de- 
 fendant, if he is required to do so, by the plaintiff or Justice. 
 He is not, however, bound to detail all the testimony, or the 
 names of all the witnesses ; it is sufficient to give the name of 
 one absent material witness, without whose testimony he can- 
 not safely proceed to trial. If the defendant refuses to name his 
 witness or to state where he resides, the adjournment may be 
 denied. (2 Cow. Tr. 842. 15 J. R. 43.) 
 
 ^ Unless the defendant, when required by the plaintiff, gives 
 the requisite security, although in other respects he complies 
 with the provisions of the statute, no adjournment can be granted, 
 but the Justice should proceed with the trial of the cause.
 
 112 ADJOURNMENTS. 
 
 FORM OF SECURITY IN ACTIONS ON CONTRACT. 
 
 Know all men by these presents, that wc, Richard Roe and 
 Henry Brown, are held and firmly bound, unto John Doe, in 
 the penal sum of one hundred dollars, to be paid to the said 
 John Doe, or to his certain attorney, representatives or assigns : 
 to which payment, well and truly to be made, we bind our- 
 selves, our heirs and personal representatives, jointly and sever- 
 ally, firmly b3'' these presents. iSealed with our seals, and da- 
 ted this 5 th day of June, 1849. 
 
 The condition of this obligation is such, that whereas a suit is 
 now depending before David Long, a Justice of the Peace of 
 the county of Chenango, betv/een John Doe, plaintiff, and Rich- 
 ard Roe, defendant, for the recovery of a demand arising upon 
 contract, in which action the said defendant has desired an ad- 
 journment of the said cause. 
 
 Now, therefore, if no part of the property of the said defen- 
 dant, liable to bo taken on execution, shall be removed, secreted, 
 assigned, or in any way disposed of, (except for the necessary 
 support of himself and family,) until the said demand of the 
 said plaintiff shall be satisfied, or until the expiration of ten 
 days after the said plaintiff shall be entitled to have an execu- 
 tion issued on the judgment in the said cause, if he shall obtain 
 judgment, then this obligation to be void and of no effect; other- 
 wise to be and remain in full force and virtue. 
 
 Richard Roe. [l. s.] 
 Henry Brown, [l. s.] 
 .Scaled and delivered in presence of 
 David Long, Justice. 
 
 The Justice's approval of the surety in the bond is required 
 by statute, and should be endorsed upon the bond. (2 R. S. 1 70, 
 sec. 74.) 
 
 Tlio time of adjournment permitted the defendant upon his 
 giving security, is for such rea.w/ifl^^e period as will enable the 
 defendant to procure his testimony, or witness, not exceeding 
 ninety days. (Id.) 
 
 What is a rcasonalth; tini(\ is left to the discretion of the 
 Justicf. If llie witness live at a distance, the adjournment 
 .should not he restricted to the shortest possible time that would, 
 under ordinary circumstances, be required, to procure his at-
 
 ADJOURNMENTS. 113 
 
 tendance. The probability of his being absent from home, 
 engaged in business, sick, &.C., should all be taken into account, 
 and such time given, as may, in the particular instance be 
 deemed reasonable. (2 J. R. 383.) 
 
 In a cause commenced by warrant, at the suit of a non- 
 resident plaintiff", the defendant may obtain an adjournment 
 upon application, supported by his oath, that he lias a good 
 defence to the action, and is not ready to proceed to trial. The 
 adjournment, however, must not be granted, unless the defend- 
 ant will consent that any witness on the part of the plaintiff", 
 who shall be then attending, may be then examined on oath by 
 such Justice, his testimony reduced to writing, certified by the 
 Justice, and left with him to be read on the trial of the cause, 
 (2 R. S. 336, sec. 71.) 
 
 During the time of the adjournment, the defendant must 
 remain in the custody of the constable, unless he shall give 
 security by a bond to the plaintiff" in the penalty of one hundred 
 dollars. (Id. 72.) 
 
 FORM OF SECURITY IN ACTIONS COMMENCED BY WARRANT. 
 
 Know all men by these presents, that we, Richard Roe and 
 Henry Brown, are held and firmly unto unto John Doe in the 
 penal sum of one hundred dollars, to be paid to the said John 
 Doe, or to his certain attorney, representatives, or assigns ; to 
 which payment well and truly to be made, we bind ourselves, 
 our heirs, and personal representatives, jointly and severally, 
 firmly by these presents. Sealed with our seals, and dated this 
 5th day of June, 1849. 
 
 The condition of this obligation is such, that whereas a suit, 
 commenced by warrant, is now depending before David Long, 
 one of the Justices of the Peace of Oxford, in the county of 
 Chenango, wherein the said John Doe is plaintiff", and the said 
 Richard Roe, defendant ; and upon the application of the said 
 defendant, the trial of said cause has been adjourned until the 
 15th day of June, instant, at 10 o'clock, in the forenoon, at the 
 office of the said Justice, in said town. 
 
 Now, therefore, the condition of this obligation in such, that 
 in case judgment shall be given against the said defendant, at 
 the said adjourned day, or at any time thereafter, and execution 
 be issued against his person, the said defendant shall render 
 
 8
 
 114 ADJOURNMENTS. 
 
 himself upon such execution before the return thereof, or in 
 default thereof, if the said defendant, or his surety, the said 
 Henry Brown, shall pay the judgment so recovered, with inte- 
 rest, then this obligation to be void ; otherwise, of force. 
 
 Richard Roe, [l. s.] 
 Henry Brown, [l. s.] 
 Sealed and delivered in presence of 
 David Long, Justice. 
 The Justice should endorse upon the bond, his approval of 
 the surety in the bond. 
 
 4. Second Adjournment. 
 
 For the defendant to entitle himself to a second, or further 
 adjournment, he must give security, if required ; and must, in 
 addition, prove, by his own oath, or otherwise, to the satisfaction 
 of the Justice, that he cannot safely proceed to trial, for want of 
 some material testimony or witness, and that he has used due 
 diligence to obtain such testimony or Avitness. (2 R. S. 336, 
 sec. 76.) If, however, security has been given by the defendant 
 at any previous adjournment of the cause, no new bond can be 
 required at any second or subsequent adjournment, unless such 
 bond be required by the Justice, or the surety in the prior bond. 
 (2 Cow. Tr. 844.) 
 
 In addition to proving the absence of material testimony, the 
 defendant must show that he has used due diligence to obtain 
 the absent testimony or witness ; and also, that he expects to 
 -procure the witness at the adjourned day. (2 R. S. 336, sec. 
 76. 3 Hill, 323.) 
 
 Where the defendant shows that he has subpoenaed a mate- 
 rial witness, who does not attend, and that without such testi- 
 mony he cannot safely proceed to trial, the Justice is bound to 
 grant the adjournment. (11 J. R. 442. 9 id. 364. 13 id. 462.) 
 Indeed, the Justice may continue to adjourn from time to time, 
 upon the defendant's making the ])ropcr oath, and giving secu- 
 rity, provided he confine himself to the ninety days, which his 
 adjoiiniMicnts in the aggregate- cannot exceed, except by consent 
 of i)artics. (3 J. R. 425.) 
 
 When tlie defendant ajtjjlirs lor ;iii .Mljoniinnciil, tlic j)laintifi' 
 cannot in gjiucral, recpiire iiiin to state what he expects to prove 
 by his al).sent witness. It has, however, been lately decided.
 
 ADJOURNMENTS. 
 
 that when a defendant's conduct, on applying for a second ad- 
 journment before a Justice, is such as to cast suspicion upon 
 the bona fides of the appUcation, and he refuses to state, either 
 on oath or otherwise, what he expects to prove by his absent 
 witnesses^ the Justice may refuse the adjournment, (3 Hill. 
 323.) 
 
 5. General Rules. 
 
 When an adjournment becomes necessary, in consequence ot 
 the refusal to testify and commitment of a witness, the Justice 
 is required to adjourn, at the request of the party, in whose 
 favor the witness attended, from time to time, until such witness 
 shall testify, or be dead, or insane, (2 R, S, 369, sees. 291. 
 292, 293.) 
 
 An application for an adjournment must, in all cases, be 
 denied, unless the applicant, after having seen the account or 
 demand of the opposite party, shall if required, exhibit his 
 account or demand, or make a statement thereof, as far as^ in 
 his po7ver, to the satisfaction of the Justice, (Id. 337, sec. 80.) 
 
 A party has no right to apply for an adjournment, after the 
 ury are sworn ; nor after a trial has begun before the Justice. 
 (8 J, R. 437.) The Justice may, however, hold his court open 
 for a short time to enable a party to procure a material witness, 
 even after a jury have been empanelled and ballotted. (8 J. 
 R, 409.) 
 
 An adjournment may always be granted without restriction 
 as to time, by the agreement of parties ; and in such case, if the 
 suit be commenced by warrant, the defendant must be dis- 
 charged from custody. (2 R. S. 336, sec. 73.) 
 
 An agreement between the parties to adjourn a given time, 
 and that theUj if a certain witness do not attend, the Justice 
 may adjourn a reasonable time to procure the attendance of the 
 witnesses, is a binding agreement, which neither of the parties 
 can revoke, without the consent of the other, and the Justice 
 may make the second adjournment according to the agreement. 
 (1 Cow. 255.) If the agreement does not provide that security 
 shall be given, the Justice may adjourn without security, this 
 being waived by the silence of the parties. (Id.) 
 
 If a Justice illegally adjourn a cause, it amounts to a dis- 
 continuance of the suit. (8 J, R. 391.)
 
 116 ADJOURNMENTS. 
 
 But although an illegal adjournment discontinues the suit, 
 yet the defect will be waived, and the cause revived, by the 
 appearance of the parties at the adjourned day, and their going 
 to trial on the merits. (7 J, R. 381. 9 id. 136.) 
 
 If, however, the defendant, after an irregular adjournment 
 granted by a Justice, at the plaintiff's request, appear at the 
 adjourned day and answer to his name, but decline taking any 
 part in the further proceedings, this will not amount to a waiver 
 of the irregularity. (5 Hill, 428.) 
 
 As already intimated, no adjournment without the agreement 
 of the parties, can be made to a time beyond ninety days from 
 the joining of issue in the suit. (2 R. S. 337, sec. 79.)
 
 CHAPTER VII. 
 
 sOF PROCEEDINGS AFTER ISSUE JOINED, AND PREPARATORY TO 
 
 TRIAL. 
 
 The subjects of this chapter are the following : — 
 
 1. First step in preparation for trial. 
 
 2. Attendance of witnesses — how procured. 
 
 3. Definition and nature of subpoena, and how served. 
 
 4. Penalty for neglect to obey subpoena — how enforced. 
 
 5. Nature of attachment to compel attendance of witnesses, 
 and how prosecuted. 
 
 6. Fine for refusal of witness to attend and testify — how en- 
 forced, and duty of Justice subsequent thereto. 
 
 7. Proceedings on commission to examine foreign witnesses. 
 
 8. When and how jury obtained. 
 
 9. (Qualifications of jurors. 
 
 10. Method of summoning jury. 
 
 In their preparation for trial, the parties should see their re- 
 spective witnesses, and make themselves familiar with the ma- 
 terial points of the testimony. By the strict observance of this 
 rule, much subsequent inconvenience may be avoided. 
 
 Where the parties, from the nature of the cause, have reason 
 to suppose that the trial may be had at the return of the process, 
 they will economize time by having their witnesses in readiness 
 at the joining of issue. Yet this is not, in general, advisable, 
 because, until issue is joined, the points to be contested are fre- 
 quently not known to the parties, so that neither party can tell 
 what testimony or witnesses he will need. 
 
 The attendance of witnesses and the production of the ne- 
 cessary papers in their hands are compelled by a subpcena. 
 
 A subpoena is a mandatory writ, addressed to the person oi 
 persons whose testimony is desired, commanding him or them, 
 in the name of the people of the State, under a penalty, either 
 to appear at a certain time and place specified, before a Justice 
 <5f the Peace named, to testify what he or they know in the ac-
 
 lis OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 tion pending, or to produce papers as evidence ijj the cause, oi 
 both. 
 
 Any Justice of the Peace may issue subpoenas to compel the 
 attendance of witnesses to give evidence on any trial depending 
 before him, or any other Justice. Such subpo&na shall be valid 
 to compel the attendance of a witness being in the same county 
 where the cause is to be tried, or being in an adjoining county ; 
 and in no other case. (2 R. S. 337, sec. 81.) 
 
 If application be made to a Justice for a subpo&na to compel 
 the attendance of a witness before another Justice, the person 
 applying must prove, by his own oath, or the oath of some other 
 person, that a suit is actually depending before such other Jus- 
 tice. (2 R. S. 337, sec. 82.) 
 
 FORM OF A SUBPCENA. 
 
 Town of Oxford, ss. 
 
 To John Doe, Richard Roe, (fee, — greeting r 
 
 You are hereby commanded, in the name of the people of 
 the state of New York, to appear before me, the undernamed 
 Justice of the Peace of Oxford, in the county of Chenango, at 
 my office in Oxford aforesaid, on the 15th day of June instant^ 
 at ten o'clock in the forenoon, to give evidence in a certain ac- 
 tion on contract, then and there to be tried before me, between 
 John Smith, plaintiff, and Peter Pi'ay, defendant, on the part of 
 the plaintiff (or defendant.) And this you, or any of you, are 
 not to omit, under the penalty of ten dollars for you and every 
 of you. Given under my hand, at Oxford aforesaid, this 12th 
 day of June. 1849. 
 
 David Long, Justice. 
 
 If the witness have in his possession any deeds or writings 
 which it may be necessary to produce on the trial, he must be 
 .served with a subpoena, commanding him to bring such papers 
 wiili him. U, liowcver, he is about to be subpoenaed to appear 
 and testify, instead of issuing two subpoenas, it is customary to 
 add to the common subpffiua the following special clause : — 
 
 '•And you arc further rc(iuired to bring with you" (here insert 
 a description nf the writing wanted, so that the witness may 
 clearly know what is intended) "to be produced and used in 
 nvidcnce on said trial." 
 
 A general clause " to produce all letters, papers and docu-
 
 AND PREPARATORY TO TRIAL. 119 
 
 ments, touching or concerning tlie matter in dispute,"' would be 
 indefinite, and insufficient. The papers should be described. 
 (Ry. & Moody's N. P. Cas. 341.) 
 
 The subpoena may contain as many names as the party may 
 wish to have inserted ; and after the Justice has inserted the 
 name of one witness, the party may insert such others as he 
 may please. (Holt's N. P. R. 326.) 
 
 A subpoena may be served either by a constable, the party to 
 the suit, or some third person. The mode of service is either 
 by reading the subpoena to the witness, or stating its contents to 
 him, and by paying or tendering the fees allowed by law for 
 one day's attendance. (2 R. S. 337, sec, 83.) 
 
 Although not required by the statute, yet as a matter of con- 
 venience to the witness, a copy of the subpoena should be left 
 with him. 
 
 The service must be personal on the witness. If the witness 
 is a married woman, still the subpoena must be served upon her 
 personally, and a tender of witness' fees made to her, and not to 
 her husband. (1 J. R. 430.) The subpoena should be served a 
 reasonable time before the day appointed for the trial ; other- 
 wise the witness will not be bound to attend. (Penning on 
 Small Causes, 143.) And in no case can a witness be com- 
 pelled to travel on Sunday. (13 Wend. 49.) If the witness 
 should attempt to evade the hearing of the subpoena, the service 
 would still be good, although it was neither read nor its contents 
 stated to him. (Dowl. & Ryl. 233.) 
 
 The witness need not obey the subpoena, unless his regular 
 fees are tendered to him at the time of serving the subpoena. 
 (2 R. S. 337, 83.) And if he appears in court, he need not tes- 
 tify until his fees are actually paid or tendered, (13 East, 15. 
 16.) The amount of such fees to a witness from the same count3^ 
 is twelve and a half cents, and to a witness from any other place 
 than the same county, twenty-five cents for every day's actual 
 attendance, (2 R. S. 360.) Where a witness has been subpoe- 
 naed, and his fees paid, by one of the parties, the other party, 
 on subpoenaing the same witness, need not tender him any fees, 
 (1 Cow. Tr. 860.) 
 
 It has been held, that though a person stand by in court, yet 
 if he has not been duly subpoenaed, he cannot be compelled to 
 testify. Also, that a witness is entitled to his fees, though he 
 attend and testify without a subpoena. (1 Bl. R. 36. 15 J. R. 260.)
 
 120 OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 If the witness does not obey the subpoena, and it appears to 
 the satisfaction of the Justice, by proof made before him, that 
 the witness has refused or neglected to attend, in conformity 
 to such subpcena, without just cause, and the party in whose 
 behalf such witness shall have been subpoenaed, shall make 
 oath that the testimony of such witness is material, the Justice 
 shall have power to issue an attachment, to compel the attend- 
 ance of such Avitness. (2 R. S. 338, sec. 84.) 
 
 The proof required to obtain an attachment for a witness, 
 may be made by the affidavit of the party in the suit, applying 
 lor such attachment, or by other competetit testimony to the 
 satisfaction of the Justice^ before whom such suit is pending. 
 (Sess. Laws, 1834, chap. 235.) If the service was made by a 
 constable, his return would be evidence of the fact. If made 
 by a third person, it may be proved by parol. 
 
 FORM OF AFFIDAVIT FOR ATTACHMENT AGAINST A WITNESS- 
 
 In Justices'' Court, before David Long, Justice, 
 
 John Smith i 
 against > 
 
 Peter Pray, j 
 
 Chenango County, ss. —John Smith, plaintiff in this cause, 
 being duly sworn, says that on the 12th day of June instant, 
 he served at the town of Oxford, in the county aforesaid, the 
 annexed subpoena on Richard Roc, a witness therein named, by 
 reading the same (or stating the contents thereof,) to him, at the 
 same time paying (or tendering) to him the sum of twelve and 
 a half cents. 
 
 Deponent further says that the testimony of the said Richard 
 Koe, is material to deponent in the trial of this cause ; and fur- 
 ther, that the said Richard Roc has neglected to attend the trial 
 of the said cause, as he was commanded, in and by the said 
 subpoena. 
 
 John Smith. 
 Sworn Ijiiforc me, this \'}\.\\ day of 
 June, IHIO, 
 
 David Lono, Justice. 
 
 (f the suhpcrna was served by a constable, liis return should 
 be endorsed on the subpoma tlius: — 
 "The within subpoina personally served on Richard Roe, a
 
 AND PREPARATORY TO TRIAL. 121 
 
 witness therein named, on the 12th day of June, 1849, and his 
 fees paid, (or tendered.) 
 
 " William Cooke, Constable." 
 
 If a third person served the subpoena, the Justice may ad- 
 minister the following oath : — 
 
 " You swear that you will true answers make to all such 
 questions as shall be put to you, touching the service of the 
 subpoena, in a cause now pending before me, between John 
 Smith plaintiff, and Peter Pray defendant, so help you God," 
 
 Notwithstanding the service of the subpoena may be proved 
 by a third person, the plaintiff is still required to make an affi- 
 davit that the testimony of the absent witness is material. (2 
 R. S. 338, sec. 84. Sess. Laws, 1834, chap. 235.) 
 
 FORM OF ATTACHMENT TO COMPEL THE ATTENDANCE OF A 
 
 WITNESS. 
 
 Chenango County, ss. 
 
 The people of the State of New York to any constable of 
 said county, greeting : 
 
 Whereas it has been proved to the satisfaction of the under- 
 named Justice of the Peace of Oxford, in the county of Che- 
 nango, that Richard Roe has been duly subpoenaed to attend on 
 this day, at ten o'clock in the forenoon, at his office in Oxford 
 aforesaid, as a witness, in behalf of John Smith, in an action 
 depending before the said Justice, and then and there appointed 
 to be tried, wherein the said John Smith is plaintiff, and Peter 
 Pray defendant ; and that said Richard Roe has neglected, 
 without just cause, to attend as a witness,' in obedience to such 
 subpoena ; and the said John Smith having made affidavit be- 
 fore the said Justice that the testimony of the said Richard Roe 
 is material to said cause : 
 
 We hereby command you, to attach the body of the said 
 Richard Roe, and take him forthwith, before the said Justice at 
 his office in Oxford aforesaid, to give evidence in said cause ; 
 and also to answer all such matters as shall be objected against 
 him for having neglected to attend the trial of the said cause, 
 as a witness ; and have you then and there this precept. 
 
 Given under the hand of the said Justice, this 15th day of 
 June, 1849. 
 
 David Long, Justice,
 
 122 OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 If the attachment is apphed for by the defendant, the requi- 
 site change in the preceding form, may be readily made. 
 
 Tire attachment must be executed in the same manner as a 
 warrant. (2 R. S. 338, sec. 85.) If the witness be near the 
 place of trial, so that the attachment may be served and re- 
 turned in a reasonable time, it may be made returnable forth- 
 with, and the Justice may continue the cause open until the at- 
 tachment is served and returned ; but if the witness be at such 
 a distance from the place of trial, that the attachment cannot 
 be served and returned in a reasonable time for continuing the 
 cause open, the proper course would be to adjourn the trial to 
 such time as would be sufficient for the service and return of 
 the attachment, and to make the attachment returnable at that 
 time. (Vide Edw. Tr. 3d ed. 79.) 
 
 Unless the delinquent can show a reasonable and satisfactory 
 cause for his default, he will be liable for the costs of issuing 
 and serving the attachment ; if his excuse be satisfactory, the 
 party requiring the attachment, must pay the costs of issuing 
 and service. (2 R. S. 338, sec. 85.) In case the Justice deter- 
 mines that the witness must pay the costs, they may be col- 
 lected of him by a suit, in the name of the party requiring the 
 attachment. (Edw. Tr. 3d ed. 79.) 
 
 If a witness, on being duly subpcEuaed, do not attend, or if 
 attending shall refuse to testify, he shall forfeit for the use of the 
 poor of the town, for any such non-appearance or refusal, (un- 
 less some reasonable cause or excuse shall be shown on his 
 oath or the oath of some other person,) such fine, not less than 
 sixty-two and a half cents, nor more than ten dollars, as the 
 Justice before whom prosecution therefor shall be had, shall 
 think reasonable to impose. (2 R. S. 338, sec. 86.) The 
 witness, besides the fine, is also liable to the party in whose be- 
 half he was subpoenaed, for all damages which such party may 
 sustain by reason of such non-appearance or refusal. (Id. 338, 
 sec. 91.) 
 
 The fine may be imposed by the. Justice, if the witness be 
 present and has an opportunity of being heard, against the im- 
 position thereof, (Id. sec. 87.) If, therefore, the witness is 
 present, the Justice should call upon him, to show cause, why 
 the fine should not be imposed, and if no good cause, on his 
 own oath, or th<r o.uji of some other person be shown, he should
 
 AND PREPARATORY TO TRIAL. - 123 
 
 impose a fine forthwith, on proof that the subpoena has been 
 served. 
 
 If the witness is absent, as if the proceeding is instituted be- 
 fore a justice other than the one before whom the suit in which 
 the penalty was incurred, was depending, a summons must be 
 issued against the defaulting witness, commanding him to ap- 
 pear before the said Justice, at a certain time and place, to show 
 cause why he should not be fined. 
 
 FORM OP SUMMONS AGAINST WITNESS. 
 
 Chenango County^ ss. 
 
 To any constable of the said county, greeting : 
 You are hereby commanded, in the name of the people of the 
 State of New York, to summon Richard Roe to appear before 
 me, the undernamed, a Justice of the Peace of the said county, 
 at my office, in the town of Oxford, of the said county, on the 
 18th day of June instant, at two o'clock in the afternoon, to 
 show cause why he should not be fined according to law, for 
 •his non-attendance as a witness before me, the said Justice, \or 
 before Henry Strongs Esq.^ a Justice of the Peace in and for 
 the said county,] at my office, in the said town, on the 15th day 
 of June instant, to give evidence in a certain cause then de- 
 pending before me, [or before Henry Strong, Esq., such Jus- 
 tice as aforesaid,] in which John Smith was plaintiff and Peter 
 Pray defendant, on the part of the plaintiff [or defendant] ; and 
 have you then there this process. Given under my hand at 
 Oxford, aforesaid, this 16th day of June, 1849. 
 
 David Long, Justice. 
 
 The Justice imposing any fine, shall make up and enter in 
 his docket, a minute of the conviction and of the cause thereof, 
 and the same shall be deemed a judgment in all respects, at the 
 suit of the overseers of the poor of the town. (2 R. S. 338, sec. 88.) 
 
 minute of conviction. 
 
 Chenango County, ss. — Be it remembered, that on the 18th 
 day of June, 1849, Richard Roe is convicted before me, and 
 fined in the sum of eight dollars and fifty cents, besides one 
 dollar and fifty cents costs, for non-attendance as a witness to give 
 evidence before me, [or before Henry Strong, Esq., one of the
 
 124 OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 Justices of the Peace of the said cou7iti/,] at my [or his] office, 
 in the town of Oxford, on the 15th day of June instant, in a cer- 
 tain cause then and there depending before me, [or before the 
 said Justice,] in which John Smith was plaintiff and Peter Pray 
 defendant. 
 
 David Long, Justiee. 
 
 Upon the imposition of the tine and default of payment, the 
 Justice must forthwith issue the following execution : — (2 R. S. 
 338, sec. 89.) 
 
 FORM OF EXECUTION. 
 
 Chenango County, ss. 
 
 To any constable of the said county — greeting : 
 
 Whereas, Richard Roe, was on the 18th day of June, instant, 
 convicted and fined by me, the undernamed Justice of the Peace 
 of Chenango county aforesaid, the sum of eight dollars and fifty 
 cents, besides one dollar and fifty cents costs, for non-atten- 
 dance as a witness to give evidence before me, the said Justice, 
 [or before Henry Strong, Esq., one of the Justices of the Peace- 
 of the said county,] at my [or Jus] office, in the town of Oxford, 
 in said county, on the 15th instant, in a certain cause then and 
 there depending before me, the said Justice, [or before Henry 
 Strong, Esq., Justice as aforesaid,] in which John Smith was 
 plaintiff", and Peter Pray, defendant, a record of which convic- 
 tion and of the cause thereof has been duly made and entered 
 in the docket of the undernamed ; and whereas, the said Richard 
 Roc has neglected to pay the said fine and costs : 
 
 You are therefore hereby commanded, in the name of the 
 people of the State of New York, to levy the said fine and costs 
 of the goods and chattels of the said Richard Roc, and for want 
 thereof to take and convey the said Richard Roe to the jail of 
 the said couty, there to remain until he shall pay such fine and 
 costs ; and the keeper thereof is required to keep the said Rich- 
 ard Roc in close custody in said jail, until the fine and costs 
 aforesaid Ijo paid, or until thirty days after the commencement 
 of his imprisonment, (jiivcn under my hand, at Oxford afore- 
 said, this J bill day of June, 1849. 
 
 David Long, Justice. 
 
 WJKii iIk' imnM-y is (((llcctcd in such execution, the Constable 
 Bhall rclnrn ilif same to llie .fiislice, and such Justice shall pay
 
 AND PREPARATORY TO TRIAL. 125 
 
 over the amount of the fine imposed to the overseers of the poor 
 of the town, for the use of the poor. (2 R. S. 338, sec. 90.) 
 
 A suit will not lie against a Justice for a judicial act. The 
 merits of a fine imposed upon and collected of a witness for re- 
 fusing to be sworn, or for any other contempt, (the Justice hav- 
 ing jurisdiction of the matter,) cannot, therefore, be investigated 
 before another Justice. (3 Caines, 170.) 
 
 Of the Commission to Examine Foreign Witnesses} 
 
 Whenever an issue of fact shall have been joined in any ac- 
 tion or suit before a Justice of the Peace, and it shall appear on 
 the application of either party, that any witness not residing 
 within the county where said suit is pending, or the county ad- 
 joining, is material in the prosecution or defence of such action 
 or suit, the said Justice may award a commission to one or more 
 competent persons, authorizing them or any one of them, to ex- 
 amine such witness on oath, upon the interrogatories settled by 
 the said Justice, and certified by his approbation entered or en- 
 dorsed thereon, or by the written agreement or assent of the par- 
 ties, annexed to such commission, to take and certify the depo- 
 sitions of such witness, and to return the same, according to the 
 directions given with such commission, in which commission 
 both parties may unite. (2 R. S. 365, sec. 257.) 
 
 The commission may be issued in behalf of either the plain- 
 tiff or defendant ; or both parties may unite in the commission. 
 It must, however, be made to appear by the oath of the party, 
 or by other competent testimony, that the Avitness whose testi- 
 mony is desired, resides in some place other than the county 
 where the suit is pending, or the adjoining county, and that his 
 testimony is material to the prosecution or defence of the action. 
 
 (Id.) 
 
 If either party can procure the personal attendance of his ab- 
 sent witness within the time that an adjournment may be 
 granted, he need not issue a commission. The defendant may 
 frequently dispense with the necessity of a commission ; for, if 
 in addition to the proof of absence and materiality, he swears 
 that he expects to be able to procure the personal attendance of 
 his witness within ninety days, he is entitled to an adjournment. 
 Not so, however, with the plaintiff, who is not, except by the
 
 126 OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 consent of the defendant, entitled to an adjournment beyond 
 eight days. 
 
 The commission may be granted at any time, upon proof that 
 due notice of such apphcation for such commission has been 
 served on the adverse party at least six days before the time of 
 making such application ; but the issuing of such commission 
 shall not postpone the trial beyond the time of ninety days from 
 the joining of issue in the suit. (2 R. S. 365, sec. 258.) 
 
 FORM OP NOTICE OF APPLICATION FOR A COMMISSION. 
 
 I?i Justices^ Court, before David Lo7ig, Justice. 
 John Smith ^ 
 against > 
 
 Peter Pray. ) 
 
 Si]. : — Please take notice that I shall make an application to 
 the above named Justice, at his office in the village of Oxford, 
 on the 25th day of June instant, for a commission to be directed 
 to Alvin Hunt, Esq., of the city of Rochester, to examine Peter 
 Brown of the same place, a witness in the above entitled cause, 
 upon interrogatories to be annexed to such commission. 
 
 John Smith, Plaintiff. 
 To Peter Pray, Defendant. 
 
 Oxford, June XSth, 1849. 
 
 At the time and place mentioned in the notice, if the opposite 
 party do not appear, either in person or by attorney, the Justice 
 should require proof of service of the notice in due time. This 
 proof may be by affidavit or parol. 
 
 The Justice must require of the party applying for a commis- 
 sion, to state under oath, that the absent witness whose testi- 
 mony is desired, does not reside in the county where the suit is 
 pending, or the county adjoining, ;i!id that his testimony is ma- 
 terial to the ])rosecuti()n or defence of the action, as the case 
 may Ix". Il"th(! party aslcing lor the commission, state the facts 
 he expects to prove whicli facts are admitted by the opposite 
 party; or should the facts as stated, l)c wholly immaterial to 
 the issue, ihc Justice should refuse the application.
 
 AND PREPARATORY TO TRIAL. 127 
 
 FORM OF COMMISSION TO EXAMINE WITNESS. 
 
 Chenango County, ss. 
 
 To Alvin Hunt, Esq., of the city of Rochester : 
 
 Whereas, it appears to me, the undernamed, a Justice of the 
 Peace of Oxford, in the county of Chenango, that Peter Brown 
 of Rochester, is a material witness in a cause now pending be- 
 fore me, between John Smith plaintiff, and Peter Pray defend- 
 ant : now, therefore, in pursuance of the statute in such case 
 made and provided, I do hereby appoint you commissioner to 
 examine the said witness on the interrogatories hereunto an- 
 nexed, on oath to be taken before you, and to cause such exam- 
 ination to be reduced to writing and signed by such witness 
 and yourself, and then return the same annexed hereto to me, 
 enclosed under your seal. 
 
 Given under my hand, at the village of Oxford, the 25th day 
 of June, 1849. 
 
 David Long, Justice. 
 
 The commissioner has the same power to issue subpoenas, 
 swear witnesses, and compel their attendance as Justices of the 
 Peace. (2 R. S. 365, sec. 261.) 
 
 The interrogatories to be annexed to the commission, must 
 embrace the subjects of inquiry, and must be governed by the 
 rules applicable to oral examinations. The joarties may, how- 
 ever, insert a general interrogatory whether the witness knows of 
 any other matter or thing material to the party, whicli general 
 interrogatory must be answered, or the deposition cannot be 
 read. (2 Cow. R. 872.) 
 
 FORM OF INTERROGATORIES AND CROSS-INTERROGATORIES. 
 TO BE ANNEXED TO THE COMMISSION. 
 
 " Interrogatories to be administered to Peter Brown, a witness 
 to be produced, sworn and examined, on the part of the plain- 
 tiff, in the cause mentioned in the annexed commission. 
 
 First : Do you know the parties, plaintiff and defendant 
 named in the annexed commission, or either of them ? When 
 did you first become acquainted with them, or either of them ? 
 
 Second : Since you have known the parties, or either of them, 
 have you had any business transactions with them, or either of 
 them ? If so, what 'I
 
 128 OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 Third : Are you acquainted with the hand-writing of Peter 
 
 Pray ? 
 
 Lastly^ Do you Itnow any other matter or thing touching the 
 matters in question, that may tend to the benefit or advantage 
 of the plaintiff? If yea, declare fully and at large as if you 
 had been fully interrogated thereto." 
 
 CROSS-INTERROGATORIES. 
 
 Interrogatories to be administered to the said Peter Brown, 
 bv way of cross-examination. 
 
 \The cross-interrogatories ivill of course depend upon the cir- 
 cumstances of each case.] 
 
 If the parties agree upon interrogatories, they should signify 
 this fact by the following written assent, to be annexed to the 
 commission : 
 
 " The undersigned, the parties to the suit named in the an- 
 nexed commission, agree that the interrogatories hereto annexed, 
 may be propounded to the witness therein named, by the com- 
 missioner to whom the annexed commission is directed. 
 
 John Smith. 
 Peter Pray." 
 
 If the parties cannot agree upon the interrogatories they must 
 go before the Justice and have them settled by him. Where- 
 upon, the Justice must endorse upon them his approval, thus : 
 
 " The within interrogatories, on the part of the plaintiff, and 
 the cross interrogatories on the part of the defendant, are hereby 
 approved by me. 
 
 David Long, Justice. 
 
 Oxford, June 25th, 1849. 
 
 The commission must be directed to the commissioner, at his 
 place of residence, and deposited in the post office, and the post- 
 age paid, unless the parties agree upon some other mode of con- 
 veyance. 
 
 I'he persons to wliom such conmiission shall be directed, or 
 any one of them, unless otherwise expressly directed therein, 
 shall execute llie same as follows : — (2 11. S. 490, sec. 17.) 
 
 " 1. 'J'liey, or ajiy r)ii(j of (hem, sliall publicly administer an 
 oath to tlio witncs.ses jiamod in the commission, that the answers
 
 AND PREPARATORY TO TRIAL. 129 
 
 given by such witnesses to the interrogatories proposed by them, 
 shall be the truth, and nothing but the truth. 
 
 " 2. They shall cause the examination of each witness to be re- 
 duced to writing, and to be subscribed by him, and certified by 
 such of the commissioners as are present at the taking of the 
 same. 
 
 " 3. If any exhibits are produced and proved before them, they 
 shall be annexed to the depositions to which they relate, and 
 shall, in like manner, be subscribed by the witness proving the 
 same, and shall be certified by the commissioners. 
 
 " 4. The commissioners shall subscribe their names to each 
 sheet of the depositions taken by them ; they shall annex all the 
 depositions and exhibits to the commission, upon which their 
 return shall be endorsed ; and they shall close them up under 
 their seals, and shall address the same, when so closed, to the 
 Justice from whom the commission issued, as shall have been 
 directed on the commission, at his place of residence. 
 
 "5. If there is a direction on the commission to return the 
 same by mail, they shall immediately deposit the packet so di- 
 rected in the nearest post office, 
 
 ^' 6. If there be a direction on the commission to return the 
 same by an agent of the party who sued out the same, the packet 
 so directed shall be delivered to such agent 
 
 '• A copy of this section shall be annexed to every commission 
 authorized by this article." 
 
 FORM OF A commissioner's SUMMONS TO A WITNESS. 
 
 Monroe County, ss. — Whereas, the undernamed has received 
 a commission issued by David Long, Esquire, a Justice of the 
 Peace of the County of Chenango, directed to me for the exa- 
 mination of Peter Brown, a witness in a cause depending before 
 the said Justice, between John Smith, plaintiff, and Peter Pray, 
 defendant : you, the said Peter Brown, are therefore required to 
 be and appear before me, the said commissioner, at my dwelling 
 house, on the 1st day of July next, then and there to be exa- 
 mined, and to testify the truth according to the best of your 
 knowledge, on behalf of the said plaintiff, (or defendant,) and 
 herein you are not to fail. Rochester, June 26th, 1849. 
 
 Alvin Hunt. 
 9
 
 130 OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 FORM OF OATH TO WITNESS BY COMMISSIONER. 
 
 You do swcav that the answers to be given by you to the 
 interrogatories to be proposed to you by me, in a cause depend- 
 ing before David Long, Esq., a Justice of the Peace of the 
 county of Clienango, betv/een John Smith, plaintiff, and Peter 
 Pray, defendant, wherein I have been appointed by the said 
 Justice a commissioner, shall be the truth, the whole truth, and 
 nothing but the truth, so help you God. 
 
 FORM OF CAPTION OF DEPOSITION. 
 
 Deposition of Peter Brown, a witness produced, sworn aad 
 examined on oath before me, Alvin Hunt, at my dwelling house 
 ill the city of Rochester, on the 1st day of July, 1849, by virtue 
 of a commission issued by David Long, Esquire, a Justice of 
 ' the Peace of the county of Chenango, and directed to me, Alvin 
 Hmit, for the examination of the said Peter Brown, a witness 
 in a cause depending before the said Justice, between John 
 Smith, plaintiff, and Peter Pray, defendant. 
 The said Peter Brown deposes as follows : — 
 To the first interrogatory this deponent says, &c. 
 To the second interrogatory, this deponent says, (fcc. 
 To the third interrogatory. &c. 
 
 Peter Brown. 
 Subscribed and sworn this 1st day 
 of July, 1849, before me. 
 
 Alvin Hunt, Commissioner. 
 
 If, upon issuing the commission, the Justice omit to direct the 
 manner it shall be returned, the depositions cannot be read in 
 evidence. (3 Hill, 495.) 
 
 The deposition and testimony taken by virtue of the commis- 
 sion, is entitled to the same weight, on the trial as testimony 
 in the cause, as if the witness were personally examined before 
 the Justice. (Sess. Laws, 1838, p. 232, sec. 4.) 
 
 Jury. 
 
 If either parly wishes a trial by jmy, ho nuist demand the 
 same. (2 R. S. 339, sec. 92.) Id. sec. 94.) The demand may 
 be made at any time after the joining of issue, and before the
 
 AND PREPARATORY TO TRIAL. 13 £ 
 
 Justice shall have proceeded to an investigation of the merits of 
 tlic cause by the examination of a witness, or the hearing of 
 any other testimony. (Id.) 
 
 A jury cannot be awarded previous to the joining of issue, 
 (3 Caines, 219.) With regard to the inquiry into the merits of 
 the cause, the mere inspection, by the Justice, of papers in the 
 cause, will not bo such an investigation of the merits as to pre- 
 clude the demand of a jury. (I J. R. 142.) Where, however, 
 the defendant avowed himself ready to proceed to trial — the 
 Justice directed the plaintiff to proceed — the defendant, upon 
 the inquiry of the plaintiff, admitted part of the plaintiff's de- 
 mand, and while the Justice was swearing a witness, the dc- 
 fisndant demanded a jury, the demand was held too late. (1 
 Cow. 235.) 
 
 The parties may agree upon any number of jurors less than 
 six, to try the cause ; and in that case, the Justice shaU direct 
 the summoning of double the number so agreed upon. (2 II. 
 S. 339, sec. 96.) If the parties make no agreement limiting the 
 number of jurors, twelve must be summoned. (Id. sec. 95.) 
 
 The following are the qualificalions of jurors : — (Id. 508, 
 sec. 13.) 
 
 1. Male inhabitants of the town in which the Justice resides. 
 and where the court is held, not exempt from serving on juries. 
 
 2. Of the age of twenty-one years or upwards, and under 
 sixty years old. 
 
 3. Who arc, at the time, assessed for personal property be- 
 longing to them, in their own right, to the amount of two hun- 
 dred and fifty dollars, or who shall have a freehold estate in real 
 property in the county, belonging to them in their own right, or 
 in the right of their wives, to the value of one hundred and fifty 
 dollars. 
 
 4. In the possession of their natural faculties, and not infirm 
 or decrepit. 
 
 5. Free from all legal exceptions, of fair character, of ap- 
 proved integrity, of sound judgment, and well informed. 
 
 The statute directs the court to discharge from serving on a 
 jury the following persons, who should not therefore be sum- 
 moned : — (2 R. S. 511, sec. 33.) 
 
 1. Those who haA^e not the property qualification, or are not 
 qualified in respect to age, as above mentioned. 
 
 2. A non-commissioned officer, musician or private of any
 
 132 OF PROCEEDINGS AFTER ISSUE JOINED, 
 
 uniformed company or troop, who is duly equipped and uni- 
 formed according to law, and who shall claim such exemption. 
 The evidence of this exemption can only he given by the certi- 
 ficate of the commanding officer of the troop, dated within three 
 months of the time of presenting the same, and the signature 
 nmst be verified by oath. 
 
 3. A member of any company of fireman, duly organized 
 according to law. 
 
 4. Any person in the actual employment of any glass, cotton, 
 linen, woolen or iron manufacturing company, by the year, 
 month or season. 
 
 5. A superintendent, engineer or collector of any canal, au- 
 thorized by the laws of this State, any portion of which shall 
 be actually constructed and navigated. 
 
 6. A minister of the gospel, or teacher in any college or aca- 
 demy ; or any person who is or shall be specially exempted by 
 law from serving on juries. 
 
 The court is also required to discharge a juror against whom 
 there is any legal exception — as the being an alien, or the hav- 
 ing been convicted of an infamous crime. 
 
 Besides the exemptions already enumerated, the court to 
 which any person shall be returned as a juror shall excuse such 
 juror from serving at such court, whenever it shall appear : — (2 
 R. S. 512, 35.) 
 
 1. That he is a practising physician, and has patients requir- 
 ing his attention ; or 
 
 2. That he is a surrogate or Justice of the Peace, or executes 
 any other civil office, the duties of which are at the time incon- 
 .sistent with his attendance as a juror ; or 
 
 3. That he is a teacher in any school, actually employed, and 
 serving as such ; or 
 
 4. AVhcn for any other reason the interests of the public or of 
 the individual juror will be materially injured by such attend- 
 ance, or his own health, or that of any member of his family, 
 requires his absence from such court. 
 
 In all suits except between two towns, the jury must be sum- 
 moned from Ihe town where the Justice resides. When the suit 
 is betW(,'oti two towns, the jury ninsL be sunnnoned from the 
 county nf large; and in such case, no inhabitant of cither town 
 can be a jinor. (M. 3!{0, sec. 97.) 
 
 A jury is summoned by what is termed a venire. The ve-
 
 AND PREPARATORY TO TRIAL. 133 
 
 nire is a writ issued by the Justice. It is directed to any con- 
 stable of the county where the cause is to be tried, commanding 
 him, in the name of the people of the state, to summon twelve 
 (or if the number agreed upon is less tlian six, double that num- 
 ber) good and lawful men in the town where such Justice resides, 
 (or if the suit is between two towns, from the county at large,) 
 qualified to serve as jurors, and not exempt from servmg on 
 juries in courts of record, who shall be in no wise of kin to 
 plaintiff or defendant, nor interested in such suit, to appear be • 
 fore such Justice, at a time and place to be named therein, to 
 make a jury for the trial of the action between the parties named 
 in such venire. (2 R. S. 339, sec. 95, 96.) 
 
 FORM OF A VENIRE. 
 
 Chenango Counti/, ss. f 
 Town of Oxford. S 
 
 To any constable of said county— greeting : 
 You are hereby commanded, in the name of the people of the 
 State of New York, to summon twelve (or double the number 
 agreed upon, if less than six,) good and lawful men of the said 
 town, qualified to serve as jurors, and not exempt from serving 
 on juries in courts of record, who shall be in no wise of kin ei- 
 ther to John Smith, plaintiff, or Peter Pray, defendant, nor in- 
 terested in the suit to be tried, to appear before me, the under- 
 named Justice of the Peace of said county, at my office in said 
 town, on the 15th day of June, instant, at ten o'clock in the fore- 
 noon, to make a jury for the trial of an action on a promissory 
 note, now depending before me, the said Justice, and then and 
 there to be tried between the said parties ; and have then there a 
 list of jurors you shall so summon, and this precept. Given 
 under my hand, at Oxford, June 10th, 1849. 
 
 David Long, Justice. 
 
 The Justice is required to deliver the venire, or cause it to be 
 delivered, to some constable of the county who is disinterested 
 between the parties, and against whom no reasonable objection 
 shall have been made by either party. (2 R. S. 339, sec. 98.) 
 When an objection is made to a constable, the facts constituting 
 the objection should be proved by the oath of the party object- 
 ing, or by the oath of some third person. If it should be made
 
 134 OI-' PROCEEDINGS AFTER ISSUE JOINED, 
 
 to appear that there exists an enmity between the constable and 
 the party objecting ; or that the constable and the adverse party 
 are on terms of peculiar intimacy, so that his feelings may be 
 interested in behalf of the party ; the Justice should deliver the 
 venire to another constable against whom there is no objection. 
 (2 Cow. Tr. 882.) 
 
 The statute directs that the constable shall execute the venire 
 fairly and impartially, and shall not simimon any person whom 
 he has reason to believe biassed or prejudiced, for or against ei- 
 ther of the parties. He should also be cautious not to summon 
 jurors who are disqualified or exempt, and should select men of 
 good understanding and exemplary habits, (2 R. S. 340, sec. 99.) 
 
 The constable must summon the jury personally. (Id.) The 
 service may be by reading or stating the substance of the venire 
 to each person summoned, at the same time stating the name 
 of the Justice issuing the venire, and the time and place of trial. 
 
 The constable must make a list of the persons summoned, 
 which list he must certify and annex to the venire, and return 
 to the Justice. (Id.) 
 
 FORM OF constable's RETURN. 
 
 Annex the list of jurors to the venire, and endorse upon the 
 venire thus : 
 
 •' By virtue of the within precept, I have personally sinnmoned 
 as jurors, the several persons named in the annexed list. Dated 
 June 15th, 1849. 
 
 William Cooke, Constable." 
 
 Every person who shall bo duly summoned as a juror, and 
 shall not appear, nor render a reasonable excuse for his default ; 
 or appearing, shall refuse to serve ; shall be subject to the same 
 fine, and to be collected in the same manner as a defaulting 
 witness. (2 R. S.341, sec. 113.) The constable's return on the 
 vr'uire wouM be sufficient evidence of the summoning of the 
 juror ; and the docket of the Justice would be evidence that the 
 juror made default in appearing. (14 J. R. 481.) 
 
 If ill'- rf)ns(:il)le to whom the venire 9,h:i\\ have l)e(Mi delivered 
 do not nliini llu; same as thereby reciuircd, or if a full jury shall 
 not bo ol)laincd, the Justice shall issue a new venire. (2 R. S. 
 340, s'c. 103.) 
 
 The party (b'tn;ui(!irig a trial by jury, may waive such trial
 
 AND PREPARATORY TO TRIAL. 135 
 
 after a venire has been issued. But if the venire has been 
 served and returned the other party would have a right to insist 
 that the cause should be tried by the jury thus returned, not- 
 withstanding the party originally demanding such trial should 
 waive it ', or if a jury should not be obtained on that venire, he 
 might require that a new venire should be issued at his instance. 
 (Edw. Tr. 3d ed. 89.) 
 
 When a new venire is issued, it will be considered the pro- 
 cess of the party at whose instance the first venire was issued, 
 and no objection to the form of it can be made by him. (Id. 2 
 Caines, 134.) 
 
 If when the venire is not returned at the time appointed for 
 trial, the defendant do not demand a new venire, but go to trial 
 before the Justice, it will be a waiver of the trial by jury. (7 X 
 R. 198.)
 
 CHAPTER VIII, 
 
 EVIDENCE. 
 
 I SHALL treat the subjects of this chapter under the following 
 heads : 
 
 1. Of the Nature of Evidence, 
 
 2. General Rules. 
 
 3. Who are Competent Witnesses. 
 
 4. Evidence on Matters of Record. 
 
 5. Evidence of Matters not of Record. 
 
 6. Proof of Written Instruments and Private Writings. 
 
 7. Books of Account. 
 
 1. Of the Nature of Evidence. 
 
 Evidence signifies that which demonstrates, makes clear, and 
 ascertains, the truth of the very fact or point in issue, either on 
 the one side or on the other. (3 Blk. Com. 367.) 
 
 None but mathematical truth is susceptible of that high de- 
 gree of evidence which excludes all possibility of error. The 
 most that can be affirmed of the ordinary affairs of life is, that 
 there is no reasonable doubt concerning them. The true ques- 
 tioti, therefore, in trials of fact, is not whether it is possible that 
 the testimony may be false, but whether there is sufficient prob- 
 nhility of its truth ; that is, whether the facts are shown by com- 
 petent and satisfactory evidence. Things established by com- 
 petent and satisfactory evidence, are said to be proved. By com- 
 petent evidence, is meant' that which the very nature of the thing 
 to be proved requires, as the fit and appropriate proof in the par- 
 ticular case ; such as the production of a writing, where its con- 
 tents arc tlio subject of inquiry. 13y satisfactory evidence is in- 
 tended that amount of proof which ordinarily satisfies an un- 
 prejudiced mind beyond reasonable doubt. (1 Greenl. Ev. 3, 4.) 
 I'!viden(;c consists eiliicr of positive or prosumprivc proof. 
 The proof is positive when the witness speaks directly to a fact, 
 Ironi his own immediate knowledge ; and presumptive, when
 
 EVIDENCE. 137 
 
 the fact itself is not proved by direct testimony, but is to be 
 inferred from circumstances which either necessarily or usually 
 attend such facts. The latter is also called circumstantial evi- 
 dence. (1 Phil. Ev. 155.) 
 
 As the sole object of evidence is to ascertain the truth of the 
 several disputed facts, or points in issue, on the one side or the 
 other, no evidence ought to be admitted to any other point. (1 
 Phil. Ev. 169.) 
 
 2. General Rules. 
 
 It is only necessary to prove the substance of the issue. If 
 the party does this, he proves a substantial ground of action, 
 and is entitled to his remedy. (1 Phil. Ev. 149.) In an action 
 for cutting down a certain number of trees, proof that the de- 
 fendant cut a smaller number, is sufficient. So, where the 
 plaintiff alleges that the defendant was to do a certain act, on 
 the payment of a sum of money, proof of tender and refusal 
 establishes the issue, for this is equivalent to, and in substance, 
 a payment. (1 Wils. 115.) 
 
 As a general rule, the party holding the affirmative of the 
 issue, has the burthen of proof. (1 Phil. Ev. 194.) Where, 
 however, one party charges another with a culpable omission or 
 breach of duty, the person who makes the charge, is bound to 
 prove it, though it may involve a negative ; for it is one of the 
 first principles of justice not to presume that a person has acted 
 illegally until the contrary is shown. (1 Phil, on Ev. 195.) 
 Where also, the presumption of law is in favor of the defendant, 
 it will be incumbent on the plaintiff to disprove the defence, 
 though in so doing he may have to prove a negative. As in an 
 action on a bond, if the defendant plead payment, and the bond 
 appears to have been outstanding for twenty years, the law 
 presumes that the principal debt has been discharged ; and to 
 repel the presumption, it will be necessary for the plaintifi' to 
 produce evidence of payment of interest, or of an admission of 
 the debt. So^ where the question is on the legitimacy of a child, 
 if a legal marriage is proved, the legitimacy is presinried, and 
 the party who asserts the illegitimacy, ought to prove it. (Id. 
 197.) 
 
 The best evidence the nature of the case will admit, should 
 always be required, if possible to be had ; but if not possible,
 
 138 BVIDENCE. 
 
 then the best evidence that can be had, may be allowed. For 
 if it be found that there is any better evidence existing than is 
 produced, the very not producing it is a presumption that it 
 would have detected some falsehood that at present is con- 
 cealed. (3 Blk. Com. 368.) Thus, if a party offer a copy of a 
 deed, when he is able to produce the original, this raises a pre- 
 sumption that there is something in the deed, which if produced, 
 would be against the party ; and, therefore, a copy in such 
 cases, is not evidence. But if he prove the original deed in the 
 hands of the adverse party, to whom he has given notice to 
 produce it, who refuses ; or that the original has been lost or 
 destroyed without his default ; no such presumption can arise, 
 and a copy, or parol evidence, will be admitted. (1 Phil. Ev. 
 218.) The party, however, who served the notice to produce 
 the original, must first prove such service, before he can give 
 parol evidence of its contents. Proof of service may be made 
 by the party himself testifying to the fact in open court, or by 
 his affidavit of service, sworn to before any officer authorized 
 by law to administer oaths ; or if notice was given verbally, it 
 may be proved by any person who heard it given. (Id. 445, 6, 
 Cow. & Hill's Notes, 1197, 8.) 
 
 Though the best evidence is to be given the nature of the 
 case admits, yet it is not to be understood that the most satis- 
 factory proof of which the fact is capable, is necessary. If a 
 deed, for example, is attested by several subscribing witnesses, 
 the execution may be proved by one of them ; or if none of the 
 witnesses can bo produced, proof of the signature of one of 
 Ihem will be suffiricnt ; for the proof is, as far as it goes, com- 
 plete ; nor can it be inferred merely from the absence of further 
 proof of the same kind, that such additional proof would be 
 inconsistent with tUat already produced. So, to prove the 
 plaintiff's demand satisfied, the defendant may prove the 
 plaintiff's admission to that effect, though it should appear 
 (hat the plaintiff had signed a receipt, and the receipt would 
 be more sntisfactory proof (1 Phil. 220. 7 Cow. 334.) 
 
 Hearsay evidence, that is, what the witness professes he 
 heard anolli'-r jx-rsdu say, is not admissible. (1 Phil. Ev. 229.) 
 The r(!asfin (A' (Ih; rnle is, befause evidence ought to be given 
 under (he satiftinn of .m oitli ; and Ihe person who is to be 
 affected by the evidence, ought to have an opportunity of inter-
 
 EVIDENCE. 139 
 
 rogating the witness as to his means of Icnowledge, and con- 
 cerning all the particulars of his statement. (Id. 230.) 
 
 Letters, or private papers, written hy a third person, arc open 
 to the same objection as hearsay declarations ; being statements 
 made without oath, and not in the presence of the party who 
 would be prejudiced by them. (Id.) 
 
 Where it is necessary to inquire into the nature of a particu- 
 lar act, proof of what the person said at the time of doing it. is 
 admissible, for the purpose of showing its true character. (1 
 Phil. Ev. 231.) For the same reason, letters written by the 
 payee of a promissory note to the maker, cotemporaneous with 
 the making of the note, and forming a part of the original trans- 
 action, are admissible in evidence to prove the consideration 
 passing between the parties ; so also, in an action by the en- 
 dorsee against the maker. (Id.) 
 
 To prove a pedigree, death, relationship, marriage, when one 
 married, his number of children, time of marriage, &.c., the 
 declarations of members of the family are admissible, as well 
 as descriptions in wills, upon monuments, entries in family 
 bibles, &c. (Id. 238, 9. Cowen & Hill's Notes, 612, 613, 615, 
 616.) And the declarations of one's deceased father, or a me- 
 morandum of the time of one's birth, made by his deceased father. 
 (Id. 240.) So also, the original entry kept by a religious society. 
 of the births and deaths among its members, is evidence. (6 
 Binn. 416.) 
 
 The declarations or statements of third persons deceased, 
 have been admitted in many cases where they appear to be 
 made against their interest ; as entries in their books charging 
 themselves with the receipt of money on account of a third 
 person, or acknowledging the payment of money due to them- 
 selves. The principle upon which such testimony is allowed, 
 is, that the entry is made by an individual cognizant of a fact, 
 at a time when it was not in dispute, having no interest to 
 make a false entry, and making one tending to his prejudice. 
 (1 Phil. Ev. 255.) Entries in the books of a tradesman, by his 
 deceased clerk, who there supplies proof of a charge against 
 himself, have, for the same reason, been admitted as evidence 
 of the delivery of goods, or of other matters there stated, within 
 his own knowledge. (Id. 263.) So also, where A. has a horse 
 in his possession, but admits that it belongs to B., and, after this 
 admission, sells and delivers it to C. ; in an action by B. for the
 
 140 EVIDENCE. 
 
 horse against C, A. being dead, A.'s admission is evidence 
 against C. 
 
 One witness (if credible) is sufficient in a civil suit, for the 
 proof of any fact. " In deciding upon the effect of evidence, 
 the question is not by how many witnesses a fact may have 
 been proved, but whether it has been proved satisfactorily, and 
 so as to convince the understanding. The number of wit- 
 nesses is not more conclusive on matters of proof, than a num- 
 ber of arguments on a subject of reasoning. The evidence of a 
 single witness may be so clear, so full, so impartial, so free from 
 all suspicion and bias, as to produce in every mind, even in the 
 most scrupulous, the strongest and deepest conviction. On the 
 other hand, witness may crowd after witness, all asserting the 
 same facts, yet none be worthy of credit. In short, it is the 
 character of witnesses, and the character of their evidence, that 
 ought to prevail, and not their number." (1 Phil. Ev. 151.) 
 
 No oath of either party, in his own behalf, upon the merits 
 in controversy, is admissible in evidence, unless the parties 
 agree to allow such evidence ; or imlcss the party offering him- 
 self as a witness in his own behalf, has previously been called 
 by the opposite party. (Code, sec. 395.) And the Justice has 
 no right to admit evidence of the declarations of either party in 
 his own favor, to go to the jury — even although he directs the 
 jury to disregard it. (13 J. R. 350. 15 id. 237. 2 Cow. 436.) 
 
 But as a general rule, the declarations of a party against 
 himself are admissible, and are regarded as the most satisfactory 
 evidence, although not conclusive. (15 J. R. 229.) The whole 
 declaration, is however, always to be taken together, and the 
 same credit given to that part of the statement which is in his 
 favor, as that which is against him ; so that the true intent and 
 import of the whole confession may be obtained. (9 id. 141. 
 10 id. 38 and 3G5. 11 id. 161.) 
 
 The .statement or representation of an agent, in making an 
 agreornoiit, or in doing an act witliin the scope of his authority, 
 is evidcnco against the princi])al himself, and equivalent to his 
 own acknowledgment. Con.sequenlly, a letter from the defend- 
 ant's clerk, inforruing tin; plaintiff that a policy had been effect- 
 ed, was h<;l(i to he good evidence of the existence of the poUcy ; 
 and the defendant was not allowed to j)rov(! liiat the letter had 
 lK;en written hy niislnke, and that the policy had not been made. 
 (1 Phil. Ev. 99, 100.)
 
 EVIDENCE. 141 
 
 If one party refer another, for information on a disputed fact, 
 to a third person, as authorized to answer for him, or employ an 
 agent to make certain propositions respecting a transaction be- 
 tween himself and another, he is bound by what his agent says 
 or does within the scope of his authority, as much as if it had 
 been done or said by himself In an action, therefore, for goods' 
 sold, where it appeared at the trial that in a conversation be- 
 tween the plaintiff and defendant, the former asserted that he 
 had delivered the goods by one C, and the defendant replied, 
 •' If C. will say he did deliver the goods, I will pay for them," 
 the plaintiff was allowed to give in evidence C.'s answer respect- 
 ing the matter referred to him. (Id. 101.) 
 
 Where the plaintiff, previous to the suit, assigns his interest in 
 the demand, and the defendant has notice of the assignment, 
 the confessions of the plaintiff, made subsequent to the assign- 
 ment, are inadmissible to defeat a recovery. (20 J. R. 142.) 
 
 The confessions of a party are not admissible to prove the 
 execution of a scaled instrument, to which there is a subscri- 
 bing witness, nor matters of record. And in a suit brought 
 against a witness for non-attendance before a Justice, the ac- 
 knowledgment of the witness that he has been subposnaed will 
 not be sufficient ; the subpoena must be produced. (10 J. R. 
 248.) 
 
 An admission by one of several joint plaintiffs, is evidence 
 against all ; and the admission of a joint debtor, though not a 
 party to the suit, is evidence against those who are defendants. 
 (1 Phil. Ev. 92, 93.) But the acknowledgment of an account 
 by one partner, after a dissolution of the partnership, will not 
 bind the other ; though it would be sufficient to take the case 
 out of the statute of limitations, (Cow. &. Hill's Notes, 173.) 
 
 An offer of compromise of a contested claim is no evidence of 
 indebtedness, for a man may be willing to buy his peace at a 
 sacrifice ; and admissions or concessions, made v^dien a treaty 
 of compromise is pending, with reasonable prospect that it will 
 be carried into effect, aie not admissible evidence against the 
 party making them. (8 Cow. 201.) 
 
 A competent witness cannot be excused from answering a re- 
 levant question, on the ground merely that his answer will tend 
 to estabhsh that he owes a debt, or is otherwise subject to a civil 
 suit. (2 R. S. 503, sec. 90.)
 
 42 EVIDENCE. 
 
 3. Who are Competent Witnesses. 
 
 A Justice cannot decide on his own previous knowledge, but 
 only on legal evidence. (10 J. R. 250. 14 id. 481.) When a 
 witness appears, he must be received, unless an objection is 
 made to his competency. (1 Phil. Ev. 17.) An objection to the 
 credibility of a witness cannot prevent him from testifying. 
 Thus relationship may afiect the credibility, but cannot affect 
 the competency of a witness. Hence a father is a competent 
 witness for or against his son, or a son for or against his father. 
 (Id.) Husband and wife cannot be witnesses for or against each 
 other in any civil suit. (Id. 7G.) The reason for excluding the 
 husband and wife from giving evidence, is founded partly on 
 their identity of interest, and partly on a principle of public pol- 
 icy, which deems it necessary to guard the security and confi- 
 dence of private life. They cannot be witnesses for each other, 
 because their interests are absolutely the same ; they are not 
 witnesses against each other, because this is inconsistent with 
 the relation of marriage. (1 Phil. Ev. 77.) 
 
 The Justice before whom the cause is tried, cannot be a wit- 
 ness, although sworn by another Justice. (1 J. 11. 520. 8 id. 
 470.) 
 
 No person shall be rendered incompetent to be a witness on 
 account of his opinions on matters of religious belief (Cons. 
 sec. 3.) 
 
 The objections to the competency of a witness may be, first, 
 want of reason or understanding ; second, infamy of character ; 
 and third, on the ground that the proposed witness is a party to 
 the action, or is the person for whose immediate benefit it is pro- 
 secuted or defended. (1 Phil. Ev. 18. Code, sees. 398, 399.) 
 
 Children who arc not able to understand the moral obligation 
 of an oath, cannot be examined. There is no particular age at 
 wliicli they are to be admitted to testify. Infants above fourteen 
 arc admissible the same as persons of full age. The admissi- 
 bility of childrj'n to testify inider the age of fourteen is to be dc- 
 termimd hy their a]i])ai(nt sense ami understanding of the na- 
 ture and oidigalion of an oath, (i Phil. I-jV. 18.) The Justice 
 may examine a cliild or other person of weak intellect, to ascer- 
 tain his capacity. Albr siK-h cxamiiiiition, tin; matter must 
 rest, in a great nicasuri', in the discretion of the Justice. (2 R. 
 8. 505.)
 
 EVIDENCE. 143 
 
 Persons who have not the use of reason are excluded, by their 
 infirmity, from testifying — as persons insane, idiots and lunatics 
 under the influence of their malady. (1 Phil. Ev. 18.) But 
 such insanity must be shown to the Justice by proof; (10 J. 
 R. 362 ;) and lunatics and others who arc subject to temporary 
 fits of insanity may be witnesses in their lucid intervals, if they 
 have sufficiently recovered their understandings. 
 
 A person born deaf and dumb is not, on that account, incom- 
 petent ; but if he has sufficient understanding, may give evi- 
 dence by signs, with the assistance of an interpreter. (1 Phil. 
 Ev. 19.) 
 
 A witness, while in a state of intoxication, ought not to be 
 permitted to testify ; and the Justice must decide whether the 
 witness is in such a situation that he ought not to be sworn. 
 (16 J. R. 143.) 
 
 No person sentenced, upon a conviction for felony, shall be 
 competent to testify in any cause, matter or proceeding, civil or 
 criminal, unless he be pardoned by the governor, or by the legis- 
 lature, except in the cases specially provided by law ; but no 
 sentence, upon a conviction for any offence other than felony, 
 shall disqualify or render any person incompetent, to be sworn, 
 or to testify, in any cause, matter, or proceeding, civil or crimi- 
 nal. (2 R. S. 788, sec. 26.) 
 
 The offence of '■'■ JelomJ'' means an offence for which the 
 offender, on conviction, shall be liable, by law, to be punished 
 by death or by imprisonment in a state prison. (Id. 789, sec. 33.) 
 When a witness is objected to, on account of his having com- 
 mitted a felony, he is not to be inquired of as to his criminality ; 
 the record of his conviction must be produced. (13 J. 11. 82. 
 14 id.) A witness cannot be required to answer a question 
 which will have a tendency to accuse himself of any crime or 
 misdemeanor, or expose him to any penalty or forfeiture. (1 
 Phil. Ev. 30.) 
 
 N© person offered as a witness shall be excluded, by reason 
 of his interest in the event of the action. This rule, however, 
 does not apply to a party to the action, nor to any person for 
 whose immediate benefit it is prosjcuted or defended, nor to any 
 assignor of a thing in action, assigned for the purpose of making 
 him a witness. (Code, sec. 398, 399.) 
 
 It is seen, by the foregoing, that the incompetency of witnesses 
 founded on interest; is removed, except as to parties, and those
 
 144 EVIDENCE. 
 
 Standing substantially in the relation of parties. But proof that 
 a witness is interested in the judgment to be rendered, may be 
 given to impair the credibility/ of the witness. For though ren- 
 dered competent, it does not follow that the testimony of an 
 interested witness will receive the full measure of credit that 
 would otherwise be awarded to it. 
 
 If a witness, uj)on being offered, is objected to, on the ground 
 that the action is prosecuted for his immediate benefit, such ob- 
 jection must be tried and determined by the Justice. Evidence 
 may be given in support of, or against such objection, as in other 
 cases ; or the proposed witness may be examined on oath by 
 the party objecting ; and if so examined, no other testimony 
 shall be received from either jDarty as to the competency of such 
 witness. (2 R. S. 340, sec. 108.) 
 
 It is said, that if the interest of the witness be shown inde- 
 pendently of his testimony, he cannot be examined to remove 
 it. If; however, his interest appears from his own examination, 
 he may be cross-examined to facts, to show that it has been re- 
 moved. (1 Phil. Ev. 267.) 
 
 What a li-itness has been heard to say, is not admissible to 
 prove him incompetent or interested ; otherwise of the declara- 
 tions made by the party calling him. (Cow. <fc Hill's Notes, 
 2.58, 707, 1559. ) 
 
 Although a party to the suit, is not regularly a competent 
 witness for himself, yet he may, in one instance, testify in his 
 own case. The adverse party can compel his attendance in the 
 same manner, and subject him to the same rules of examina- 
 tion as any other witness ; and if he refuse to attend and tes- 
 tify, besides being prosecuted as for a contempt, his complaint, 
 answer or reply, may be rejected. He is made, however, by the 
 production, a general witness, and though called to testify but 
 to a single point, may be examined in his own behalf, as to all 
 the points in the cause., But if he testify to any new matter, 
 not responsive to the inquiries put to him by the adverse party, 
 such adverse paity may offer liinisclf as a witness in his own 
 behalf, in respect to the new matter. (Code, sees. 390, 394, 
 395.) 
 
 A party in the suit or having an interest in the verdict, may 
 be a witness to provf^ the death or absence beyond the reach of 
 a suhpo-na of the Justice, of a subscribing witness to, or the 
 loss of any instrument which shall come in question on the
 
 EVIDENCE 
 
 145 
 
 trial, in order to introduce other proof of the execution or con- 
 tents of such instrument ; but in no other case without the con- 
 sent of the parties. (106 Justices Act.) 
 
 When a party to any action shall have been permitted to 
 prove, by his own oath, the loss of any instrument, in order to 
 admit the proof of the contents thereof, the adverse parly may 
 also be examined by the Justice on oath, to disprove such loss, 
 and to account for such instrument. (2 R. S. 503, sec. 93.) 
 
 One defendant cannot regularly be a witness for his co-de- 
 fendant ; but in actions for wrongs^ if wo evidence has been 
 produced against one defendant, he is entitled to his discharge, 
 as soon as the plaintifl' has closed his case, and may then give 
 evidence for the others. But if there is any, even the slightest, 
 evidence against him, he cannot thus be discharged. (14 J. R. 
 119. 1 Wend. 119. 3 Hill, 104.) 
 
 Though one of several defendants sued for a wrong in a 
 Justices' Court, be discharged, yet if the opposite party appeal, 
 such defendant is not a competent witness on the appeal. (Id.) 
 
 If process issue against several for a wrong, but is served on 
 part only of the defendants, the others are competent witnesses 
 for those served. (Cow. &, Hill, 144.) 
 
 The Justice may, at any time, on the plaintiffs' motion, dis- 
 charge one or more of several defendants, in an action for a 
 wrong, who is thus rendered a competent witness for either 
 party. (1 Phil. Ev. 76.) 
 
 A counsel or attorney is not to be permitted to testify as to 
 confidential communications made to him by his client. This 
 prohibition extends not only to the suit in which the communi- 
 cation is made, but to any other suit and to any period of time. 
 (1 Phil. Ev. 140,) 
 
 The secrets of his client which an attorney or counsel is 
 bound not to disclose, are communications made to him, as in- 
 structions for conducting the cause ; and not any extraneous 
 or impertinent communications. (3 John. Cas. 198. 13 J. R. 
 492.) 
 
 But an attorney may be examined like any other witness, as 
 to a fact which he knew bcfric the retainer, that is before he 
 was addressed in his ]i;ofessional character. Also where he is 
 questioned as to a collateral fact within his own knowledge, or 
 to a fact which he might have known, without being intrusted 
 as attorney in the cause. If, for instance, he is subscribing 
 
 10
 
 146 KVIDENCE 
 
 witness to a deed, he may be examined concerning the execu- 
 tion. Or if there be a question about an erasure in a deed, he 
 may be asked whether he had ever seen the instrument in any 
 other condition, for it is a fact within his own knowledge ; but 
 he ought not to be permitted to disclose any confessions which 
 his client may have made to him respecting it, (1 Phil. Ev. 
 146.) 
 
 Propositions which the attorney of one party has been pro- 
 fessionally employed to make to the adverse party, and which 
 he made in the presence of a third person, though they are not 
 to be disclosed by the attorney himself, may yet be proved by 
 the person who heard him deliver them. (1 Phil. Ev. 145.) 
 
 An agent, clerk or student at law, cannot testify to facts which 
 he learned while in the office of an attorney. But a person 
 employed in a suit in a Justices^ Court, or elsewhere, who is- 
 not licensed to practice in Courts of Record, and not acting as 
 an agent, clerk, or student of one having such license^ is not 
 excused from disclosing the communications of his employer. 
 (Cow. <fc Hill's Notes, 275 to 283, and 1571 to 1574.) 
 
 No minister of the gospel, or priest of any denomination 
 whatsoever, shall be allowed to disclose any confessions made- 
 to him in his professional character, in the course of discipline 
 enjoined by the rules or practice of such denomination. (2 R. 
 S. 503, sec. 91.) 
 
 No person duly authorized to practice physic or surgery shall 
 be allowed to disclose any information which he may have ac- 
 quired, in attending any patient, in a professional character, and 
 which information was necessary to enable him to prescribe for 
 such patient as a physician, or to do any act for him as a sur- 
 geon. (Id. sec. 92.) But a physician consulted as to the means 
 of doing an unlawful act, such as procuring an abortion, is not 
 excused from answering. (21 Wend. 79.) 
 
 When the facts are disclosed, it is for the Justice and not the 
 witness to decide, whether or not, he is privileged from answer- 
 ing. (1 Hill, 33.) 
 
 fwHlericf! is v.ahvr mritten or uimrittcn. Writings are cither 
 public or private. Soinc public writings arc of record, and 
 others not of record. (I Piiil. I'lv. 3U).)
 
 EVIDENCE. 147 
 
 Public writings of record are acts of the legislature, and of 
 Courts of Justice which are Courts of Record. 
 
 Acts of the legislature are of two kinds ; public acts which 
 relate to the whole state at large ; and private acts which relate 
 to particular classes of men, or to certain individuals. (Id. 
 317.) 
 
 Public writings not of record, are proceedings in courts of 
 law not being records — such as rules, orders, process, affidavits 
 and papers ; proceedings under the insolvent laws — as assign- 
 ments and discharges ; proceedings in Surrogates' Courts and in 
 Courts of Justices of the Peace ; the proceedings of public no- 
 taries relative to the protest of bills of exchange, and promissory 
 notes ; the acts of the corporation of a city ; sheriffs' sales of 
 real estate ; books and other papers in ofiicial custody of the 
 clerk of the board of supervisors, town clerk and school dis- 
 trict clerk, and the proper officers of other municipal corpora- 
 tions, &c. 
 
 Private writings are either under seal, or not under seal. 
 
 4, Evidence on Matters of Record. 
 
 It is a general rule, that public acts of the legislature are to 
 be taken notice of judicially by courts of law ; but private acts 
 are not regarded by the judges unless formally shown, or unless, 
 the private act has been recognized by some public act. (1 
 Phil. Ev. 318.) 
 
 The Revised Statutes may be read in evidence from the copies 
 printed and published under the direction of the revisers, or any 
 two of them, and certified by them to be true copies of the 
 original acts, which certificate is required to be printed in each 
 copy. (2 R. S. 875, sec. 876.) 
 
 Any person or persons residing in this state may print and 
 publish the whole, or any part of the Revised Statutes ; but to 
 entitle any copy of a law so published, to be read in evidence 
 there shall be contained in the same book or pamphlet, a printed 
 certificate of the secretary of stale, or of two of the revisers, 
 that such copy is a correct transcript of the text of the Revised 
 Statutes as published, except such typographical errors in the 
 original, as may be corrected in such copy, and except such 
 parts as shall have been altered by acts of the legislature ; and
 
 1^48 EVIDENCE. 
 
 that with respect to such parts, it conforms to the acts by which 
 such alterations shall have been made. (Id.) 
 
 When an issue is joined upon the record of a Court of Jus- 
 tice, and the question to be tried is"* as to the existence of the 
 record, a copy of the record duly certified, and under the seal 
 of the office or court where it is kept, must be produced. Such 
 copy thus authenticated, is called an exemplified copy. 
 
 But when the question of the record is not directly in issue, 
 but arises merely incidentally, as a link in the chain of testi- 
 mony, either an exemplified copy or one without seal, and proved 
 to be a copy, will be sufficient. 
 
 Copies of records not under seal, are of two kinds, sworn co- 
 pies and office copies. (1 Phil. Ev. 386.) 
 
 When a copy of a record is proved by a witness who has com- 
 pared the copy with the original, or who examined the copy 
 while another person read the original, it is called a sworn copy. 
 (Id.) 
 
 An office copy is such as is authenticated under the hand of 
 an officer or person intrusted for that purpose, as the clerk of a 
 court. 
 
 5. Evidence on Matters not of Record. 
 
 Proceedings in courts of law not being records, may be proved 
 by office copies duly certified by the clerk in whose custody 
 they are deposited under the seal of the court. But a seal is not 
 necessary where the paper is to be used in the same court, or be- 
 fore any officer thereof; nor where a certified copy of a rule or 
 order of the Supreme Court is to be used in the Circuit Court. 
 (2R. S. 500, sees. 70,71.) 
 
 A judge's order may be i>roved by the production of the order 
 itself. (4 Campb. 17.) 
 
 Affidavits made in other States, must be authenticated as fol- 
 lows : — 1. They must be certified by some judge of a coiu't hav- 
 ing a seal, to have been subscribed and taken before him, speci- 
 fying the time and place, when and where taken. 2. The gen- 
 uineness of the signature of such judge, the existence of the 
 court, and the; fact that such ju(Jg<! is a lueinlicr thereof, must be 
 certified by the cl(;rk of ih<! court imdcr the seal thereof. (2 R. 
 S. 492, sec. 2G.) 
 
 Proceedings under the insolvent laws may be proved either
 
 EVIDENCE 149 
 
 by the orginal documents or the records thereof, or transcripts 
 of such records duly authenticated. (2 R. S. 94, sees. 19, 20.) 
 
 Proceedings in surrogates' courts, such as the probate of wills, 
 letters testamentary, and letters of administration, may be proved 
 by the records thereof, or by transcripts from the records, certi- 
 fied by the surrogate under his seal of ofTice. (2 R. S. 145, sec. 
 72. 4 Wend. 43(5.) 
 
 In an action before a Justice, his own docket of a judgment, or 
 other proceeding had before him, will be good evidence. (2 R. 
 S. 354, sec. 251.) 
 
 A transcript from the docket of a Justice, of a judgment had 
 before him ; of the proceedings in the cause previous to the judg- 
 ment ; of the execution issued thereon, if any ; and of the return 
 of such execution, if any, subscribed by the Justice ; with a cer- 
 tificate (annexed thereto or endorsed thereon,) of the clerk of the 
 county where the Justice resides, under the seal of the court of 
 the county, specifying that the person subscribing such tran- 
 script, was, at the date of the judgment therein mentioned, a 
 Justice of the Peace of such county, will be good evidence to 
 prove the facts stated in such transcript. (2 R. S. 364, sees. 252, 3.) 
 
 In preparing the transcript, the Justice has only to copy from 
 his docket, and subscribe the same. To this copy may be at- 
 tached or endorsed, the ofQcial certificate of the clerk, thus : 
 
 Slate of New York, / 
 
 •^ ' > ss. 
 
 Chenango County Clerk^s Office. ) 
 
 I certify that David Long, who subscribed the within (or an- 
 nexed) transcript, was at the date of the judgment therein men- 
 tioned, a Justice of the Peace of the said county. In testimony 
 whereof, I have hereunto subscribed my name and affixed the 
 seal of said county, the 15th day of June, 1849. 
 
 [l. s.] James Day, Clerk. 
 
 It has been decided that a transcript from a Justice's docket 
 of a judgment had before him, may be made and certified by the 
 Justice after the expiration of his office ; and that such a tran- 
 script is evidence as well for the Justice as for the plaintiff' in 
 the judgment in an action for selling property by virtue of an 
 execution on such judgment. The certificate of the clerk, in 
 such a case, must be made by the clerk of the county where the 
 Justice resided at the time of the rendition of the judgment. (8 
 Wend. 393.)
 
 150 EVIDENCE. 
 
 It may sometimes happen that the Justice's docket will not 
 show specifically what demands of the parties were submitted 
 to the court or jury ; and in such case, parol evidence is admis- 
 sible to show the facts. The proceedings in u cause before a 
 Justice, may be proved by the oath of the Justice ; but he must 
 produce the written evidence of his proceedings, as far as in his 
 power. (10 Wend. 525.) As a general rule, Justices should 
 not be compelled to attend to prove their dockets. One object 
 of the legislature, in prescribing other modes of proof, was to re- 
 lieve them from attending as witnesses for such purpose. (11 
 Wend. 636.) 
 
 In an action on a Justice's judgment, if it be proved that the 
 docket of the Justice is lost or destroyed, or cannot be produced 
 after reasonable efforts to obtain it, proof of the judgment may 
 be given and repelled as other facts. (16 J. R. 136. J 2 id. 166.) 
 
 If a Justice be dead or absent, his proceedings in a cause may 
 be proved (after proving such death or absence,) by producing 
 the original minutes entered in his docket, and proving his hand- 
 writing ; or they may be proved by copies of such minutes 
 sworn to by a competent witness, as having been composed by 
 him with the original entries, with proof that the entries are in 
 the handwriting of the Justice. (2 R. S. 364. sec. 254.) 
 
 The Justice may state in his docket the matters which were 
 actually tried before him, and what was submitted to or with- 
 drawn from the consideration of the court or jury, where he shall 
 deem cither to be material. The transcript then shows these 
 facts. 
 
 So items of evidence may also become a material subject of 
 entry, and be shown in the same manner. (13 J. R. 184.) 
 
 Transcripts from the dockets of Justices of the Peace in other 
 states, are governed by the same rules of proof as other tran- 
 scripts. (Ijavvs 1836, p. 658.) 
 
 The j)roceedings of public notaries, relative to the protest of 
 bills of exchange and promissory notes, and the notice of such 
 protest, may bo proved by the certificate of the notary under his 
 iiand and .seal, stating the prpsenlmmt of the bill or note for ac- 
 ceptance or payment, the protest, and the time and mode of giv- 
 ing' notic(! llicreof to th(! parties. (2 R. S. 382, sec. .53.) 
 
 The acts of tlu; corporation of a city may l)e proved by sim- 
 ply producing the original minutes. ((» W(Mid. ()51. 5 Wheat. 
 420.')
 
 EVIDENCE 151 
 
 Certified copies by town clerks, and other officers having tlie 
 ■custody of papers belonging to municipal corporations, are made 
 by the Revised Statutes, a very common medium of proof. 
 
 Sheriffs' sales of real estate, may be proved by the original 
 •certificates of sale, duly acknowledged, in th(j manner required 
 by law to entitle deeds to be recorded or copies of the same, 
 ■certified by the clerk, in whose office the originals are filed. (2 
 il. S. 467, sec. 46.) 
 
 To prove papers which are in the official custody of the clerks 
 of courts, county clerks, and the proper officers of municipal cor- 
 porations, copies of the papers must be certified by the officers, 
 under his seal of office, if h« has one. The following is the 
 form of the officer's certificate : 
 
 Chenango County, } 
 Toivn of Oxford, ) 
 I hereby certify, that I have compared the above with the 
 -original, on file in my office, and the same is a correct transcript 
 -therefrom, and of the whole of said original. 
 
 William Stow, Clerk of said Town. 
 
 6. Proof of Written Instruments and Private Writings. 
 
 All conveyances or writings concerning real estate, may be 
 proved either by the originals themselves, acknowledged, oi 
 proved and certified in the manner prescribed by law ; or where 
 they have been executed, by the records thereof ; or by certified 
 transcripts from such records. (2 li, S. 43, sees. 19, 20. Id, 
 44, sec. 29.) 
 
 Wills which have been recorded, may be proved, either by 
 the originals properly certified by the surrogate, or by exem- 
 plified transcripts from the records. (2 R. S. 120, sec. 11. Id. 
 121, sec. 21.) In other cases, they must be proved like other 
 sealed instruments. 
 
 Every other written instrument, except promissory notes and 
 bills of exchange, may be proved or acknowledged in the same 
 manner as conveyances of real estate ; and the certificate oi 
 the proper officer endorsed thereon, shall entitle such instru- 
 ment to be received in evidence on the trial of any action, with 
 the same effect, and in the same manner, as if such instrument 
 were a conveyance of real estate, (2 R. S. 500, sec. 72.) 
 
 Neither the certificate of the acknowledgment, or of the prool
 
 i52 EVIDENCE. 
 
 of any conveyance, nor the record, or the transcript of the 
 record of such conveyance, shall be conclusive, but may be 
 rebutted, and the force and eifect thereof may be contested, by 
 any party affected thereby. Jf the party contesting the proof 
 of a conveyance, shall make it appear that such proof was 
 taken upon the oath of an interested or incompetent witness, 
 neither such conveyance, nor the record thereof, shall be re- 
 ceived in evidence, until established by other competent proof. 
 (2 R. S. 43, sec. 20.) 
 
 Justices of the Peace may, in their own counties, take the 
 proof or acknowledgment of instruments. (Sess. Laws of 1840, 
 ch, 238, p. 187.) The proof is either by acknowledgment of 
 the party who executed the instrument, made personally to the 
 officer ; or it is by a subscribing witness. (2 R. S. 40, sec. 4.) 
 
 No acknowledgment of any conve^'^ance or other instrument, 
 shall be taken by any officer, unless tlie officer taking the same, 
 shall know, or have satisfactory evidence, that the person 
 making such acknowledgment is the individual described in^ 
 and who executed such conveyance. (2 R. S. 42, sec. 12.) 
 
 FORMS OF ACKNOWLEDGMENTS. 
 
 By a person known to the Justice. 
 
 Chenango County^ ss. — On tliis lOfli day of Juno, 1849, per- 
 .sonally came before me, John Smith, whom I know to be the 
 individual described in, and who executed the within convey- 
 ance, and acknowledged that ho executed the same. 
 
 David Long, Justice of the Peace 
 
 of the County of Chenango. 
 
 fUj a person unknown to the Justice, hut who is identified 
 by a witness. 
 
 CfunatiL'o ('ounty. ss. On lliis Kllli day of June, 1810, per- 
 sonally fanic bcforf nu;. .Fnliii Doc, niid .'Ktknowledgnd that he 
 had nxcfuk'd the within conveyanc(^ : ;nul, at the same time^ 
 came Peter Brown, residing in the town of Sherburne in said 
 coimly, who being duly sworn hy nic, deposed and s;ud, tliat 
 lie knew the person making th(^ said acknowledgment to be the
 
 EVIDENCE. 1511 
 
 individual described in, and who executed the said conveyance ; 
 which to me, is satisfactory evidence thereof. 
 
 David Long, Justice of the Peace. 
 
 By husband and wife known to the Justice. 
 
 Chenango County ^ ss. — On this 10th day of June, 1849, per- 
 sonally came before me, and severally acknowledged that they 
 had executed the within conveyance, John Smith and Ann his 
 wife, whom I know to be the individuals described in, and who 
 executed the same ; and said Ann, on a private examination 
 apart from her husband, acknowledged that she executed the 
 said conveyance freely, and without any fear or compulsion of 
 her husband. 
 
 David Long, Justice of the Peace. 
 
 By husband and iDife, both unknown to the Justice, but who 
 are identijied by a ivitness. 
 
 Chenango County^ ss. — On this 10th day of June, 1849, per- 
 sonally came before me, and severally acknowledged that they 
 had executed the within conveyance, Richard Roe and Agnes 
 his wife ; and the said Agnes, on a private examination, apart 
 from her husband, acknowledged that siie executed the same 
 freely, without any fear or compulsion of her husband ; and at 
 the same time appeared John Doe, residing in the town of 
 Greene, in said county, who being by me duly sworn, deposed 
 and said, that he knew the persons making the acknowledg- 
 ment as aforesaid, to be the same individuals described in, and 
 who executed the within conveyance ; which to me is satis- 
 factory evidence thereof 
 
 David Long, Justice of the Peace. 
 
 By husband and ivife — husband known to the Justice— wife 
 unknown, and identified by a witness. 
 
 Chenango County^ ss. — On the lOth day of June, 1819, per- 
 sonally came before me, and severally acknowledged that they 
 had executed the within conveyance, John Doe and Mary his 
 wife ; and I certify that I know the said .Tohn Doe to be one of 
 the individuals described in, and who executed tlie same. And 
 the said Mary, in a private examination, apart from her husband,
 
 164 EVIDENCE. 
 
 acknowledged that she executed the said conveyance freely, 
 and without any fear or compulsion of her husband ; and at 
 the same time, appeared Richard Roe, residing in the town of 
 Norwich in the county aforesaid, who being by me duly sworn, 
 deposed and said, that he knew the said Mary, who made the 
 acknowledgment as aforesaid, to be the same individual de- 
 scribed in, and who executed the within conveyance ; which is 
 to me satisfactory evidence thereof 
 
 David Long, Justice of the Peace. 
 
 By the ax^knowledgtnent of four persons — two known and 
 two identified. 
 
 Chenango County^ ss. — On the 10th day of June, 1849, John 
 Smith, AVilliam Stow, Peter Pray and Samuel Hardy, person- 
 ally came before me, and severally acknowledged that they 
 executed the within conveyance, [or instrument.] At the same 
 time Thomas Nokes, residing in the town of Norv^^ich, in the 
 said count}', to mc well known, came before me, and being by 
 me duly sworn, said that he knew Peter Pray and Samuel 
 Hardy, two of the persons making the said acknowledgment, to 
 be two of the individuals described in, and who executed the 
 within conveyance, [or instrument] ; which is to me satisfactory 
 evidence thereof I know John Smith and William Stow, the 
 other two persons making the said acknowledgment, to be the 
 other two persons described in, and who executed the said con- 
 veyance, [or instrument.] 
 
 David Long, Justice of the Peace. 
 
 By the acknowledgment of a person conveying by virtue of a 
 poiver of attorney. 
 
 (Chenango County^ ss. — On the 10th day of June, 1849, John 
 Smith personally came before me, and acknowledged that he 
 executed the within conveyance, [or instrument,] as the act and 
 deed of William Stow therein described, by virtue of a power of 
 attorney duly executed by the said William Stow, bearing date 
 the 25th day of May, 1819, recorded in the oflice of the clerk of 
 the coiuify of Chenango. I know (he said John Smith who 
 mnde tlif said acknowledgment, to l)e the same iudividnal who 
 executed ilie witliiu conveyance, [or instrument] [or, if the 
 person is u/iknowji to the Justice, and is identified, then say :]
 
 EVIDENCE. 155 
 
 At the same time, Richard Roe, residing in the town of 
 Norwich, in said county, to me well known, came before me, 
 and being by me duly sworn, said that he knew the person 
 who made the said acknowledgment, to be the same individual 
 who executed the within conveyance, [or i7istrunient :] which 
 is to me satisfactory evidence thereof. 
 
 David Long, Justice of the Peace. 
 
 By the ackno^oledgment of a deputy sheriff of a deed exe- 
 cuted by him in the riame of the sheriff. 
 
 Chenango Counly^ ss. — On this 10th day of June, 1849, 
 Philip Livingston, whom I know to be the individual described 
 in, and who executed the within conveyance, personally came 
 before me, and acknowledged that he, as a general deputy of 
 Isaac Jones, Esq., the sheriff of the said county, executed the 
 within conveyance in the name, and as the act and deed of the 
 said sheriff. 
 
 David Long, Justice of the Peace. 
 
 FORMS of certificates OF PROBATES OF DEEDS, AND OTHER 
 INSTRUMENTS BY A SUBSCRIBING WITNESS, BEFORE A JUS- 
 TICE OF THE PEACE. 
 
 By a subscribing witness known to the Justice. 
 
 Chenango County^ ss. — On the 15th day of May, 1849, John 
 Doe with whom I am personally acquainted, came before me, 
 and being by me duly sworn, said that he \vas a resident of the 
 town of Norwich, in said county, that he saw Richard Roe exe- 
 cute the within conveyance, [or instrument^'] that he, the said 
 ■John Doe, subscribed his name thereto as a witness, and that 
 he knew the said Richard Roe to be the person described in, 
 and who executed the said conveyance, [or instrutnent.] 
 
 David Long, Justice of the Peace. 
 
 By a subscribing witness, unknown to the Justice, but identified 
 by another witness. 
 
 Chenango County, ss. — On the 15th day of May, 1849. John 
 Doe came before me, and being by me duly sworn, said that he 
 resided in the town of Oxford in the said county, that he saw 
 Richard Roe execute the within conveyance, [or instrument,]
 
 156 EVIDENCE. 
 
 that he, the said John Doe, subscribed his name thereto as a 
 witness, and that he knew the said Richard Roe to be the per- 
 son described in, and who executed the said conveyance, [or 
 instrument.^ At the same time Henry Brown residing in the 
 town of Oxford, in said county, with whom I am personally 
 acquainted, came before me, and being by me duly sworn, said 
 that he knew the said John Doe to be the same person who 
 was tlie subscribing witness to the within conveyance, [or in- 
 strument,] which is to me satisfactory evidence thereof. 
 
 David Lomg, Justice of the Peace. 
 
 Bi/ a subscribing witness as to the identity of the husband^ and 
 acknowledgement by the wife — wife and subscribing witness 
 both known to the justice. 
 
 Chenango County, ss. — On the 15th day of June, 1849, John 
 Smith, with whom I am personally acquainted, came before me, 
 and being by me duly sworn, said that he resided in the town 
 of Norwich, in the said county, that he saw Henry Brown exe- 
 cute the within conveyance, [or instrument,] that he subscribed 
 his name thereto as a witness, that he knew the said Henry 
 Brown to be one of the individuals described in, and who exe- 
 cuted the Avilhin conveyance, [or instrument.] At the same 
 time Sarah Brown, the wife of the said Henry Brown, whom I 
 know to be the same individual described in, and who executed 
 the said conveyance, [or instrument,] came before me, and on 
 a private examination, apart from her husband, acknowledged 
 that she executed the within conveyance [orinstruf?ie7it,] freely, 
 and without any fear or compulsion of her husband. 
 
 David Long, Justice of the Peace. 
 
 liy a subscribing witness as to the identity of the husband, and 
 acknovlcdgmcul by the wife — wife and subscribing witness 
 uuknoiDn to the Justice, but identified by another witness. 
 
 (Jhenango County, ss.-On the 15th day of Jimc, 1849, John 
 Smith came before mc, and being by me duly sworn, said that 
 he resided in the town of Norwich, in the said county, that he 
 saw Richard Roe execute the within conveyance, [or instru- 
 m,eut,] that he subscrihod his name thereto as a witness, and 
 that lie knew the said Jlichard Jioe to bo the person described 
 in, and who executed the said conveyance, [or instrmnent.] At
 
 EVIDENCE. J57 
 
 the same time Jane Roe, wife of the said Richard Roe, came 
 before me, and on a private examination apart from her hus- 
 band, acknowledged that she executed tiie within conveyance, 
 [or instruments^ freely, and without any fear or compulsion of 
 her husband. At the same time Henry Brown, residing in the 
 town of Norwich, in the said county, with whom I am person- 
 ally acquainted, came before me. and being by me duly sworn, 
 said that he knew the said John Smith to be the same person 
 who was a subscribing witnesss to the within conveyance, [or 
 instrument. ^^ and that he also knew the said Jane Roe who 
 made the said acknowledgment, to be the individual described 
 in, and who executed the within conveyance, [or instrume7it,] 
 which to me is satisfactory evidence thereof. 
 
 David Long, Justice of the Peace. 
 
 FORM OF COUNTY CLERk's CKKTIFICATE. 
 
 Chenango County i 
 
 Clerks' Office. S **' 
 
 I certify that David Long, whose name is signed to the sub- 
 joined certificate of proof, [or acknowledgment s] was, at the time 
 when the same purports to have been taken, a Justice of the 
 Peace of the said county, and duly authorized to take the same. 
 And I further certify that I am well acquainted with the hand- 
 writing of the said David Long, such Justice as aforesaid, and 
 verily believe that the signature to the said certificate of proof, 
 \or ack7iowledgment,] is genuine. 
 
 In witness whereof, I have hereunto set my hand and affixed 
 the ofiicial seal of the clerk of the said county, the 10th day of 
 July, in the year one thousand eight hundred and fortj^^-nine. 
 
 [l. s.j Alfred Wheeler, 
 
 Clerk of Clienango County. 
 
 An acknowledgment or proof, before one who styles himself 
 a judge, commissioner, or other ofiicor having authority to take 
 such proof or acknowledgment, is prima facie evidence that he 
 was such ; and it is not necessary for a person who offers a 
 writing so acknowledged, to produce the commission of the 
 officer who took the proof or acknowledgement, or to give any 
 further evidence to prove his authority, until some evidence is 
 given on the other side to render that fact questionable. 
 
 Where the instrument has not been acknowledged and certi-
 
 158 EVIDENCE. 
 
 fied, the execution of it must be proved by the subscribing wit- 
 ness, if there be one, or if not, by proof of handwriting. (1 
 Saund. PI. and Ev. 425. 19 Wend. 437.) 
 
 In the case of a. deed or instrument under seal, to which there 
 is a subscribing witness, proof of tlie confession of tlie party 
 that iie executed the deed, is not sufficient, but the subscribing 
 witness must be produced, or if he cannot be, his handwriting 
 must be proved. (3 J. R. 477.) 
 
 A deed executed by a third person, not a party to the suit, to 
 which there is a subscribing witness, cannot be proved by the 
 party executing it, nor by the party to whom it is given, but 
 the subscribing witness should be cahed. (1 Phil. Ev. 465, 9 
 J. R. 136.) 
 
 If there are two or more subscribing witnesses, the calling 
 one to prove the instrument is sufficient. Or if the absence of 
 all of them be accounted for, proof of the ha?idwriting of one 
 of them, or of the parti/ signing the instrwment, will be suf- 
 ficient. (11 J. R. 64. 12 id. 188.) 
 
 But if there are two or more subscribing witnesses, it is not 
 enough to prove one of them dead, or out of the jurisdiction of 
 the court, and then prove his handwriting with that of the 
 party; but the absence of all the subscribing witnesses must 
 be accounted for. (5 Cow. 385.) 
 
 In cases where there is no subscribing witness to a written 
 instrument, or the subscribing witness denies having any know- 
 ledge of its execution ; or where the name of a fictitious person 
 is inserted ; or where the attesting witness was interested at 
 the time of the execution, and continues so at the time of trial ; 
 or where the person who has put his name as subscribing wit- 
 ness, did so without the knowledge or consent of the parties ; 
 or if, after diligent inquiry, nothing can be heard of the sub- 
 scribing witness, so that he can neither be produced himself, 
 nor his handwriting be proved ; or if at the time of its execu- 
 tion he was of such an infamous character, as to make him in- 
 <;on)j)etent to give evidence; in these cases the instriunent may 
 III'. ])r()V<(l by proving the hand -writing of the pnrty ; or by any 
 person present at tiie ex(!Cution, tliongh he did not subscribe it 
 as a witness; or liy j)roof of lh(! admission of the party that he 
 executed the instrument. (I IMiil. I'lv. 475, 476.) 
 
 The siniplf'st and rnf);;t obvious proof of handwriting is the 
 testimony of a witness who saw the paper or signature actually
 
 EVIDENCE. 159 
 
 written. But it is not often that such direct evidence can be 
 produced. (1 Phil. Ev. 483.) 
 
 The handwriting of a person may therefore be sufficiently- 
 proved by a witness who is previously acquainted with his 
 handwritmg, and who testifies that he believes the handwriting 
 in question to be his. This previous acquaintance with the 
 handwriting of a person may be deiivcd either from having 
 seen the person write or from papers received in the course of 
 business, which there is sufficient reason to believe were written 
 by the party — as letters, notes which have been paid, (fcc. (Id, 
 484.) 
 
 Handwriting cannot be proved by comparing the paper in dis- 
 pute with other papers acknowledged to be genuine either by 
 a witness, or by the Justice or jury. (19 J. R. 134.) 
 
 Where an action is founded upon a scaled instrument, the 
 seal is only presumptive evidence of a consideration, which 
 may be re-butted in the same manner, and to the same extent, 
 as if the instrument were not sealed. (2 R. S. 504, see. 90.) 
 
 Bills of exchange and promissory notes must bo proved by 
 the production of the originals and proof of the handwriting of 
 the party. If the note or bill has been lost, the plaintiff, on 
 proving such loss, (which he may do by his own oath,) v/ill be 
 allowed to give parol, or other secondary evidence, of its con- 
 tents. (2 R, S. 503, sees. 94, 95, 12 Wend. 173.) But if the 
 note so lost were negotiable before the plaintiff can recover, 
 he must give the opposite party a bond of indemnity. (2 R. S. 
 503, sec. 95.) 
 
 In an action by a payee against the acceptor of a bill of ex- 
 change, or against the maker of a promissory note, you must 
 produce the note or bill, and prove the handwritmg of the de- 
 fendant. But if the action be brought by an endorsee, he must 
 also prove the handwriting of the first endorser and of the inter- 
 mediate endorsers, if they be mentioned in the complaint. 
 (Arch. Pr. 167.) 
 
 In an action by an endorsee against an endorser of a bill of 
 exchange, or promissory note, or drawer of a bill of exchange, 
 you must produce the bill or note, and prove the defendant's 
 handwriting. You must also prove a presentment for payment 
 or acceptance, and refusal, and that the defendant had due no- 
 tice thereof (Peake's Ev. 235.) The presentment, protest and 
 notice may be proved by the notary's certificate.
 
 160 EVIDENCE. 
 
 In an action by drawer against acceptor, produce the bill and 
 prove the acceptance. (Peake's Ev. 236. 1 Arch. Pr. 168.) 
 
 When the original or the copy of any paper is necessary as 
 proof, even the confession of the party against whom it is in- 
 tended to be used will not dispense with the necessity of the 
 regular proof, juilcss such admission is made in court. (6 J. R. 
 9. 10 id. 248.) 
 
 The rule that the instrument itself must be produced, does not 
 extend to mere written acknowledgments of facts or memoran- 
 dums. Thus, though a receipt be given, payment may be 
 proved in any other way ; and so, though a memorandum be 
 made by a witness, if he can remember the same facts without 
 it, he is not bound to produce it ; and so of an account book or 
 an original entry touching an account. (Gow. & Hill's Notes, 
 1234. 1240.) And a notice, though in writing, may always be 
 proved by parol. 
 
 It is a general rule that parol evidence is not admissible to 
 contradict, vary, or add to writen agreements, whether special- 
 ties or simple contracts.* (1 Cow. R. 249. 1 J. R. 139. 3 id. 
 
 * " So far as a written contract is clear, either in its particular words or upon a 
 consideration of its legal efTect, no evidence extrinsic to the writing can be re- 
 ceived to contradict, vary, or e-xplain its meaning. Thus, in case a note is ex- 
 pressed to be payable sucli a day, you cannot show that the parties intended some 
 other day. So also, a promise to pay simply, without saying what day, is, in legal 
 cfTect, a promise to pay on demand ; and therefore you cannot show orally an intent 
 to pay at any particular day. 
 
 "But written contracts are often obscure or ambiguous, owing to their using 
 words which are in themselves of doubtful or double meaning, or wliich are made 
 80 Ly referring either expressly or tacitly to some subject not specifically described 
 by them. In all these cases they may be made certain. This cannot be done by 
 showing what any party or parties declared, either before or at tiie time o[ execu- 
 ting the writing, they meant by the particular words used in it. It must generally 
 be (lone by circumstances entirely independent of such declarations. Take the 
 case of words doubtful on their face, or even having no meaning of themselves to 
 the mind of the general reader; yet to a man conversant with the particular sub- 
 ject, trade or business to which they relate, or the local language of t'le place 
 where the contract was drawn, it may be very plain. lie may therefore be re- 
 ceived as a witness to explain the meaning. 
 
 " Words arc nometimcH abbreviati-d in contracts, and they are sometimes written 
 in a foreign language ; but the contract ought not, for that reason, to fail. So 
 where a word may mean two things — the word fici<j;ht for in>tance. This may 
 mean iho rent of a ship or the cargo. In a contract assigning the freight of a cer- 
 tain (thip therefore, which leaves it doubtful what the paities intended, you may 
 show circuniHtancea lo fix the mcauuig. For iubtanco, if neither party owned the
 
 EVIDENCE. XgX 
 
 68.) This rule is, however, confined to parties and privies, and 
 does not extend to strangers who are interested in knowing the 
 real truth of the case. 
 
 But a receipt, although drawn in absolute terms and expressed 
 to be in full, is not conclusive, and parol evidence is admissible, 
 either to explain or show a mistake in it. And parol evidence 
 has been allowed to be given of a receipt without accounting 
 for the absence of the writing. (7 Cow. 334. 5 J. R. 68.) 
 
 Parol evidence may also be given of fraud, or the want or 
 failure of consideration, or the enlargement of time for perform- 
 ance, or the waiver of the performance of a written simple con- 
 tract. (1 Cow. 250. 3 J. R. 528.) 
 
 ship at the time, but the assignor did own the cargo, you might infer from thence 
 that they meant to speak of the latter. 
 
 " With regard to the subject matter of the contract, extrinsic evidence is almost 
 always necessary ; and it is admissible, though the reference to it by the contract 
 be in itself altogether uncertain and unintelligible. Suppose, for instance, a man 
 make a contract to sell the horse, without any other words. Upon showing that 
 at the time he owned but one horse, the description would be made sufficiently cer- 
 tain ; for it would be intended that he would not sell a horse not his own, and hav- 
 ing but one, he could not refer to any other. 
 
 " So where the words or phrases of reference appear to be certain on their face, 
 an ambiguity often arises from an attempt to apply them. The difficulty thus ari- 
 eing from extrinsic matter is, therefore, called a latent ambiguity : as where there 
 are several persons or things which will answer to the description in the agreement. 
 Thus, if James Jackson agree, in writing, to sell his horse to John Doe, and there 
 are two or more persons of that name, parol evidence my be given to show which 
 was intended, and so in the like instances. In such a case the declaration of the 
 party may be received, though confined to cases where the designation in the con- 
 tract applies equally to each of two persons or things. 
 
 " You may show another writing, executed at the same time, of an equal de- 
 gree with ihe main one, varying or defeating the latter ; for these will be deemed 
 parts of one entire contract. So the writing may refer, as a part of itself, to ano- 
 ther contract, written or oral. Then the latter may be proved by writing or parol, 
 according to the fact. So an absolute bill of sale may be shown by parol to have 
 been intended as a mortgage. Blanks and clerical omissions may be supplied. 
 Strangers, not parties, may show the true intent by parol. A mere receipt may be 
 thus contradicted or explained, even by the party. So of a clause in a deed or bill 
 of sale, acknowledging the receipt of the consideration. So the maker, as between 
 himself and the payee, may contradict the acknowledgment in a note of value re- 
 ceived. The party may also show fraud or illegality of consideration, or vary, by 
 parol evidence, the time of delivery from the date. So he may vary the contract, 
 by showing a subsequent one, on good consideration, and equal in degree. 
 
 " Where a contract rests partly in writing and partly in parol, oral proof is adniis- 
 €ible to supply the deficiencies in the part written, if the contract be of such a na- 
 ture as is not required to be in writing." (2 Cow. Tr. 3d ed. 418.) 
 
 11
 
 162 EVIDENCE. 
 
 7. Books of Account. 
 
 The constant dealings and daily intercourse of a commercial or 
 pecuniary nature, which one citizen has with another, especially 
 as this country increases in manufactures and commerce, ren- 
 der it next to impossible to call witnesses to every transaction, 
 and very laborious and inconvenient, to reduce to writing every 
 contract in which om- wants and interests are hourly leading us 
 to engage. This has given rise to the practice of memoran- 
 dums in the form of books. These memorandums or books of 
 account, are, by the general assent of the community, received as 
 evidence of the transactions written in them, and have at length 
 received the sanction of our highest courts of justice. They 
 are admitted from the necessity of the thing, in derogation of an 
 ancient principle of the common law, that a party ought not to 
 be permitted to furnish evidence for himself. The manner of 
 keeping them, in the country, renders them in many instances, 
 very unsatisfactory evidence, and makes it necessary to exam- 
 ine them with caution. The character of the man who keeps 
 the books, the fairness or unfairness of the books from their ap- 
 pearance, the time and manner of making the entries ; whether 
 the items are in the ordinary course of a man's trade, or busi- 
 ness, or of an extraneous or suspicious nature ; whether any, 
 and what other evidence is given to corroborate the charges ; 
 all these are proper subjects for the due consideration of the Jus- 
 tice or jury. 
 
 To render a book of account evidence, it must be produced at 
 the trial, and either proved by the clerk who made the entry, or 
 by proof of the clerk's death, and then proving his handwri- 
 ting. (1 Arch. Pr. 108.) If the party had no clerk, before his 
 books can be admitted in evidence, it must be proved that he 
 had no clerk ; that some of the articles have been delivered ; that 
 the books produced ar(! the liooks of the party ; and that he keeps 
 fair and honest accounts — and this by those who have dealt 
 and setjled with him. (12 J. R. 401.) Under these restrictions, 
 from ihe necessity of the case, and the consideration that the 
 parly drbiicd is shown lo have reposed coniidence by dealing 
 with, and l)f;iiig cnliiisicd l)y the other, they are evidence for the 
 consideration ol th(! Jiisiico or jury. (12 J. R. 401.) 
 
 The oath of a clerk, that he bcMrves his entries to be true, 
 though he has lost all personal recollection of having delivered
 
 EVIDENCE. 153 
 
 the goods charged, makes the books evidence as original entries. 
 (4 Wend. R. 306.) 
 
 The following rules in reference to account books, are taken 
 substantially from Cowen's Treatise : 
 
 1. If it appears that there is common law proof of the entries, \ 
 independently of the ordinary book proof, the latter is inadmis- ■ 
 sible ; as if the party have a clerk, or the goods are delivered, or 
 work done, by a servant who can prove the fact. 
 
 2. The entries must be made in the book, at or near the time 
 of the transactions, and should be memoranda of the transac- 
 tions as they occur. The party may first write his accounts on 
 a slate, and afterwards enter them in his book ; but such entries 
 should be made daily. One of two butchers, partners, were in 
 the habit of marking the scores of meat, with chalk, on a cart, 
 and the other copied the scores into a book — this was held ad- 
 missible. (20 Wend. 76.) The time and mode of making en- 
 tries depends much upon the business. As a general rule, the 
 work must be actually done, before it can be charged. Trades- 
 men, however, may charge their work on book, vviiile it is in 
 progress in the hands of journeymen, if accustomed to do so. 
 
 3. The entry must be made in the book of the party which 
 
 is kept by him for the purpose of his daily accounts generally, ; 
 with all those persons who may have dealings with him. They [ 
 must be made in the prevalent manner of his keeping the book, 
 and in regular course with other charges. If they stand insu- 
 lated, as on the first leaf, not falling into regular order with other 
 charges ; or be on a separate sheet, especially when it appears I 
 that tlie part^Hceeps an account book — or on a leaf torn out of a 1 
 book — or on one of the last pages separated from other charges .' 
 by intervening blank leaves, — they are not admissible. 
 
 4. The book must contain the original entries made by the 
 party himself; though this will be excused, if he cannot write. 
 
 5. The book may be kept in the form either of a day-book, 
 journal or ledger. But it must appear that the entries were in- 
 tended as an account against the party sought to be charged. 
 Erasures and interlineations go to the credit of the book. But 
 they are open to explanation, and do not necessarily render it 
 incompetent evidence. If, hov/ever, suspicious and unexplained, 
 they will destroy its credit altogether ; and so of any other 
 fraudulent appearances. If the party keeps both a day-book '\ 
 and ledger, both should be produced ; for one might show a pay- ^
 
 164 EVIDENCE. 
 
 ment when the other did not. Ahnost any series of figures, ab- 
 breviations, and words, which can be explained into a significa- 
 tion, will do for particular charges, if conformable to the party's 
 ordinary course of making his entries — to the language he speaks 
 — his degree of education, and the nature of his business. But 
 they should be specific, denoting the particular work or sum 
 charged, and attaching the price or value to each item. A brick- 
 layer's charge of " 190 days' work," and a physician's charge 
 for " medicine and attendance," were rejected as indefinite. A 
 receipt in an account book, purporting to be signed by the ven- 
 dee, is not admissible as an original entry ; and any entry it 
 would seem, amounts to nothing unless the price be carried out. 
 
 6. Whether the original entries be relied on as those of the 
 party, or be proved by the clerk who made them, but who is un- 
 able to speak independently of the book, it must be produced ; 
 a copy is not admissible, or at least not until the absence of the 
 original, be satisfactorily accounted for. But the book is, in nei- 
 ther case, evidence of a higher, but rather of an inferior degree, 
 to common law proof. If the latter be attainable, the party must 
 of course, resort to it ; and it will be no objection that his book 
 is not adduced. But the non-production of it, if the book be 
 called for by his adversary, would be a heavy circumstance 
 against him. If the entries were made by a clerk, and he be 
 dead, his handwriting may be proved. Then on showing that 
 he was clerk, the entries may be read and become satisfactory 
 evidence. 
 
 7. Books are evidence of the sale and delivery of goods, ser- 
 vices done, materials found, and retainer to do the service to- 
 gether with the prices carried out respectively. The book, like 
 a confession, is to be taken altogether with its charges and 
 credits.
 
 CHAPTER IX. 
 
 OF TRIAL AND ITS INCIDENTS. 
 
 The subjects of this chapter, are the folio whig : 
 1. Definition and Nature of Trial. 
 2 The Swearing of Witnesses. 
 
 3. Effect of Deficiency in Proof. 
 
 4. Drawing and Swearing of Jury. 
 
 5. Challenges ; to the Array ; to the Polls. 
 
 6. Manner of Conducting Trial. 
 
 7. Examination of Witnesses. 
 
 8. What Evidence may be given by Witness. 
 
 9. Of Impeaching a Witness. 
 
 10. Of the Justice's Discretion in Admitting or Rejecting 
 Testimony. 
 
 11. Of Weighing the Testimony of Witnesses. 
 
 12. Of Agreeing upon, and Rendering a Verdict. 
 
 A trial is the judicial examination of the issues between the 
 parties, whether they be issues of law or of fact. 
 
 In Justices' Courts, it is very usual for the parties to try their 
 cause before the Justice alone. This they must do, if before 
 the commencement of the examination of witnesses, or the re- 
 ceiving of other evidence to the point in issue, neither party 
 demands a jury. (2 R. S. 339, sec. 94.) 
 
 The Justice after hearing the testimony, and any remarks the 
 parties, either by themselves, or through their attornies, may 
 have to make in relation to it, decides according to law and the 
 very right of the case. (Id. sec. 92.) 
 
 The Justice's position as arbiter of both law and fact, in the 
 two-fold capacity of judge and jury, is one of great responsi- 
 bility. Each case, therefore, should receive full and deliberate 
 consideration, and a decision only be given, after it has been 
 thoroughly investigated. A habit of cautious circumspection 
 in the Justice, will prevent much subsequent litigation. 
 
 It will assist the Justice in the trial, and in his decision on 
 the merits, to keep the issue between the litigant parties, that
 
 166 OF TRIAL AND ITS INCIDENTS. 
 
 is, what they have affirmed on one side, and denied on the 
 other, constantly in view. Persons unaccustomed to legal in- 
 vestigation, are very apt to drag into their altercations on trial, 
 a great deal of extraneous matter. This should, if possible, be 
 prevented. 
 
 The trial of a cause before a Justice alone, though similar to 
 the conduct of a suit before a jury, of which we shall presently 
 treat, very often consists of the mere examination of witnesses, 
 and a submitting of the case, on the evidence, to the Justice, 
 without comment or argument. 
 
 No other than the Justice who tries the cause, has power to 
 swear the witness. (1 J. R. 520.) 
 
 I'he following is the most usual oath administered, the person 
 who swears, laying his right hand upon, and kissing the 
 Gospels : 
 
 " You do swear that the evidence you shall give relating to 
 the matter in difference, between John Smith plaintiff, and 
 Peter Pray defendant, shall be the truth, the whole truth, and 
 nothing but the truth." 
 
 Instead of the foregoing, every person who wishes it, shall be 
 permitted to swear in the following form : " You do swear in 
 the presence of the ever living God ;" and while so swearing, 
 such person may or may not hold up his hand, in his discre- 
 tion. (2 R. S. 504, sec. 102.) 
 
 Every person who shall declare that he has conscientious 
 scruples against taking any oath, or swearing in any form, shall 
 be permitted to make his solemn declaration, or affirmation, in 
 the following form : •• You do solemnly, sincerely, and truly, 
 declare and affirm." (Id. 103.) 
 
 Whenever the coiut before which any person shall be offered 
 as a witness, shall be satisfied that such person has any peculiar 
 mode of swearing connected with, or in addition to, the laying 
 of his liand upon the Gospels, and kissing the same, which is 
 more solemn and obligatory in the opinion of such person, the 
 court may, in its discretion, adopt such mode of swearing such 
 person. (Id. 104.) 
 
 Kvery pfsrson believing in any other than the Christian reli- 
 gion, shall Ih! sworn according to the peculiar ceremonies of his 
 religion, if there be any such ceremonies, instead of any of the 
 modes luMriin before described. (Id. 105.) 
 
 If, after hearing tlu; plaintiff's witnesses, the Justice is of
 
 OF TRIAL AND ITS INCIDENTS. ^^7 
 
 opinion that the facts proved do not constitute a cause of action, 
 he may, without hearing the defendant's proof, dismiss the case 
 for the present, with costs to the plaintiff, and enter judgment 
 to that effect in his docket. (12 J. R. 299. 10 Wend. 519.) 
 Such judgment will not prevent a second action for the same 
 cause, when the plaintiff shall be satisfied that he has procured 
 enough additional testimony to sustain the action. 
 
 So also, if the plaintiff is apprehensive that his proof is in- 
 sufficient to sustain his action, he may withdraw the suit at 
 any time before the cause is submitted to the Justice, for advise- 
 ment, and commence again. (II J. R. 457.) 
 
 If the defendant do not appear before the Justice to answer, 
 such neglect to answer, is not considered an admission of the 
 plaintiff's demand ; the plaintiff must establish his case by 
 testimony, in the same manner as though an issue had been 
 joined. (2 R. S. 339, sec. 93. Code, sec. 64.) 
 
 If the trial be by jury, it is to bo held on the return day of 
 the venire, on which day the persons summoned as jurors 
 present themselves in court. 
 
 Before proceeding to draw the jury, the Justice should call 
 over the list of the jurors, as returned by the constable. He 
 should do this, for the purpose of ascertaining which of the 
 jurors do, and which do not appear. He should then enter in 
 his docket the names of the jurors summoned who appear, and 
 also the names of those who do not appear. 
 
 The names of the persons so returned, and who shall appear, 
 must be respectively written on several and distinct pieces of 
 paper, as nearly of one size as may be, and the constable, in 
 the presence of the Justice, must roll up, or fold, such pieces of 
 paper as nearly as may be in the same manner, and put them 
 together in a bo.v, or some convenient thing. (Id. sec. lOO.j 
 The Justice must then dravv out six, (or such number as the 
 parties may have agreed upon,) of such papers, one after 
 another, and if any of the persons whose names shall be so 
 drawn, shall be challenged and set aside, then such further 
 number must be drawn as will make up the number required, 
 after all legal causes of challenge allov/ed by the Justice. (Id, 
 sec. 101.) 
 
 The persons so drawn, appearing, and approved as indifferent, 
 must compose the jury to try the cause. (Id.) 
 
 If a sufficient number of competent jurors are not drawn, the
 
 168 OF TRIAL AND ITS INCIDENTS. 
 
 Justice may supply the deficiency by directing the constable to 
 summon any of the bystanders, or others who may be compe- 
 tent, and against whom no cause of challenge shall appear, to 
 act as jurors in the cause. (2 R. S. 340, sec. 102.) 
 
 If the constable do not return the venire, or if a full jury be 
 not obtained, in the manner above directed, the Justice must 
 issue a new venire ; (Id. sec. 103 ;) keeping his court open,, 
 holding the parties, jurors, &c., present in attendance, until the 
 constable shall summon from the town, the number of jurors 
 wanted. (2 Cai. 134.) The second venire is to be in the same 
 form as the first, excepting that it commands the constable to 
 summon just the number required to complete the jury, 
 and upon their appearing, they are simply called and sworn, 
 without being ballotted for, though subject to the same chal- 
 lenges as regular jurors. If the second venire proves insufficient, 
 the Justice may continue to issue this process, until there is a 
 full jury. (Id. 7 J. R. 198. 8 id. 460.) 
 
 The next step in order, is the swearing of the jury. Before 
 the jury are sworn, however, the party may object either to the 
 jurors collectively, or to one or more of the jurors individually. 
 This objection is called a challenge. 
 
 Challenges are of two kinds — to the array, and to the polls ; 
 and each of these is subdivided into pri7icipal challenges, and 
 challenges to the favor. (1 Cow. 436.) 
 
 A challenge to the array, is an objection to the whole panel 
 of jurors returned collectively ; not for any defect in the jurors 
 themselves, but for some partiality or default in the officer who 
 arrayed the panel. This is either a jjrincipal challenge, or a 
 challenge to the favor. 
 
 Some of the causes of principal challenge to the array, are the 
 following : That the officer who makes the array is of kindred 
 10 cither party within the ninth degree ; that one or more of the 
 jurors is returned at the nomination of either party; that an 
 action of battery, or other action implying malice, is depending 
 between the officer and one of the parties ; that a civil action is 
 pending at the suit of the party against the officer, but not if by 
 tlie ofTicer against the party ; that the officer is under distress 
 of cither party ; that the officer is counsel, attorney, officer, or 
 servant of either i)arty, or is an arbitrator in the same matter, 
 and has treated thereof; that the constable who served the 
 venire, appears as the attorney of the party demanding a jury,
 
 OF TRIAL AND ITS INCIDENTS. 169 
 
 against the consent of the other party ; that the constable 
 serving the venire, does not reside in the county where the 
 cause is tried. In penal actions for the recovery of any sum, it 
 is not good cause of challenge to the jurors summoned, or offi- 
 cers summoning them, that such juror or officer is liable to pay 
 taxes in any town which may be benefitted by the recovery. 
 (10 J. R. 107. 13 id. 227.) 
 
 The causes of challenge to the array for favor are such as 
 imply, at least, a probability of bias or partiahty in the officer, 
 but do not amount to a principal challenge. Thus, that the 
 plaintiff or defendant is the tenant of the officer ; or that the 
 son of the officer has married the daughter of the plaintiff or 
 defendant, or the like. (1 Cow. 436.) 
 
 A challenge to the polls is an exception to one or more of the 
 jurors individually ; and this is either a principal challenge, or 
 challenge to the favor. 
 
 Some of the causes of principal challenge to the polls are the 
 following : — that the juror has not the legal qualification as to 
 residence, age, property, &c., — but a matter which merely ex- 
 empts a man from serving on a jury, is not cause of challenge — 
 the juror only can avail himself of the exemption ; that the 
 juror is of kin to either party within the ninth degree ; that there 
 is an affinity by marriage between the juror and one of the par- 
 ties, if such affinity continue, or there be issue of the marriage 
 alive ; that the juror has before given a verdict in the same 
 cause or upon the same matter, although between different par- 
 ties ; that he has been arbitrator, and entered upon the exami- 
 nation of the same matter, having been selected by one of the 
 parties ; that an action implying malice or displeasure is pend- 
 ing between the juror and one of the parties ; that the juror has 
 been convicted of felony, perjury, conspiracy, forgery, (fcc, or 
 has received judgment for an infamous crime ; that the juror 
 has an interest in the suit. When the county sues before a Jus- 
 tice, the electors and inhabitants of such county may be jurors. 
 When a town sues or is interested in a suit, the electors and 
 inhabitants of such town may be jurors. It is a good ground 
 of principal challenge to a juror, that he has declared his opin- 
 ion of the cause beforehand ; but where a juror said " he had no 
 personal knowledge of the matter in dispute, but that if the re- 
 ports of the neighbors were correct, the defendant was wrong and
 
 170 OF TRIAL AND ITS INCIDENTS. 
 
 the plaintiff right," this was held no objection to the juror. (II 
 J. R. 168. 6 id. 332. 1 Donio, 281.) 
 
 Causes of challenge to the polls for favor are where there is 
 only probabillti/, from circumstances, that the juror may be 
 biassed — as, that the juror is the fellow servant of one of the 
 parties ; that one of the parties has been lately entertained at 
 the juror's house. Jurors must be above all exception, as _a gen- 
 eral rule ; and the application of this rule to each particular case, 
 where the partiality is not apparent, must be left to the sound 
 discretion of the triors. (18 J. R. 121.) 
 
 A Justice cannot, on his own motion, challenge and set aside 
 the whole panel, and issue a new venire. He may, however, 
 refuse to permit a drunken man to serve on a jury ; and if nei- 
 ther party objects, the fact of the intoxication will be conceded. 
 (2 Cow. 430.) 
 
 Principal challenges, either to the array or to the polls, should 
 be tried by the Justice. If, therefore, either party make a prin- 
 cipal challenge, and the facts alleged as the grounds of the chal- 
 lenge be conceded, the Justice must either admit or reject the 
 juror, or quash or sustain the array. If the facts alleged be de- 
 nied, witnesses must be called and sworn ; and in cases where 
 the cause of challenge does not go to his dishonor, the chal- 
 lenged juror may be a witness. The rule is, that the challenged 
 juror may bo asked such questions as do not tend to his infamy 
 or disgrace. (16 J. R. 180. 1 Cow. 435. 19 J. R. 121.) 
 
 Besides the usual mode of challenges, it is provided that upon 
 the trials of any issue or issues of fact, joined in a civil action, 
 each party shall be entitled peremptorily to challenge two of the 
 persons drawn as jurors for such trials. (Laws of 1847.) 
 
 When tlicrc is a challenge, either to the array or polls /or 
 favor, the mode of trying the question is this : the Justice must 
 select two indifferent persons for triors ; and in case the chal- 
 lenge Ije to the polls, and two persons shall have been sworn, 
 they must be triors ; but jurors should not be selected when the 
 challenge is to the array. He should then administer to the 
 triors an oath. 
 
 FOIIM OF OATH ON CIIALLKNGK TO THE AllRAY FOR FAVOR. 
 
 "You shall well and truly try the issue of challenge to the 
 array of jurors in the suit, wherein John Smith is plaintiff, and
 
 OF TRIAL AND ITS INCIDENTS. \jl 
 
 Peter Pray defendant, and a true finding make according to evi- 
 dence ; so help you God." 
 
 OATH ON CriALLENGE TO THE POLLS FOR FAVOK. 
 
 "You shall well and truly try whether John Doc, the juror 
 challenged, stands indifferent between John Smith, plaintiff, and 
 Peter Pray, defendant, and a true finding make according to evi- 
 dence ; so help you God." 
 
 Witnesses arc then to be sworn before iho triors, to wiiom an 
 oath may be administered in this form : — • 
 
 '•You swear, in the presonf;e of xllmighty God, (hat you will 
 true answers make to such questions as shall be put to you 
 touching the chall'^nge now in question." 
 
 According to the report of the triors, finding the matters al- 
 leged in the challenge true or untrue, the Justice must decide, 
 and, as the case may be, quash or affirm tlie panel, or reject or 
 retain the juror. 
 
 After a full jury shall have been obtained, they must l>e 
 sworn. They may be sworn separately, or any convenient 
 number of them at the same time. It is usual to swear three at 
 a time. 
 
 FORM OF OATH TO BE ADMINISTERED TO TOE JURORS. 
 
 "You shall well and truly try the matter in difference, be- 
 tween John Smith, plaintiff, and Peter Pray, defendant ; and, 
 unless discharged by the Justice, a true vovdict give, according 
 to evidence." 
 
 After the jury are sworn, the Justice should coll over their 
 names ; and as the jurors answer, the constable should count 
 them, for the purpose of ascertaining that the jury contains the 
 requisite number ; and the Justice should then ask them if they 
 have all been sworn. 
 
 After the jurors are sworn^ they must sit together, and hear 
 the proofs and allegations of the parties, which must be delivered 
 publicly in their presence. 
 
 When the cause is ready for trial, either before the Justice 
 alone or before the Justice and a jury, the party holding the 
 affirmative of the matter to be tried must open and state his
 
 172 OF TRIAL AND ITS INCIDENTS. 
 
 case, and call his witnesses to prove it. This usually devolves 
 upon the plaintiff; but it may, in certain cases, belong to the 
 defendant. As if the defendant, in answer, should merely 
 plead payment of the plaintiff's demand, on which issue is 
 joined, this plea admits the matters stated in the complaint ; and 
 it will be incumbent on the defendant, in the first place, to prove 
 the payment. He, therefore, will hold the affirmative, and con- 
 sequently must open the case, and call and examine his wit- 
 nesses. (Edw. Tr. 3d ed. 90, 91.) 
 
 The party who opens the case briefly states the nature of the 
 action, the names of the parties, the substance of the pleadings, 
 the points on which issue has been joined, the facts and circum- 
 stances of the case, and the substance of the evidence to be ad- 
 duced, and its effect in proving the case stated. He also states 
 the matter of the defence, and the evidence by which he can 
 disprove it. (1 Arch. Pr. 191.) 
 
 After opening the case, the party (who, for our present pur- 
 pose, we will consider the plaintiff,) proceeds to call his luitnesses. 
 The opposite party may object to the admission of a witness, on 
 the ground of incompetency, and the Justice must decide on the 
 validity of the objection. If no objection be made, or if it be 
 made and overruled, the witness is then sworn by the Justice, 
 and the plaintiff proceeds to examine him ; after which he may 
 be cross-examined on the part of the defendant. If any new 
 fact arise out of the cross-examination, the witness may be re- 
 examined as to it, by the party who first examined him. In 
 the same manner, he may be re-examined when necessary, in 
 order to explain any part of his cross-examination. (Id. 194.) 
 
 The plaintiff also produces whatever other evidence he may 
 think material ; to the admissibility of which, the opposite party 
 may object, and the Justice must decide on the objection. 
 
 After the plaintiff has gone through with his evidence, exam- 
 ined all his witnesses and rested his case, the defendant, if he 
 be of opinion that the plaiuliir has not produced sufficient evi- 
 dence to entitle liiiii to i^^o to the Justice or jury, may move for 
 nonsuit. And if tiio Justice be of such opinion, he may direct 
 the jiluinlifl" to bo nonsuited. 
 
 If there he no occasion for motion of nonsuit, the defendant 
 proceeds to o|)(!n and state the matter of defence, the evidence, 
 if any, which he will adduce in support of it, and to remark on 
 the case and evidence of the other party. He then produces
 
 OF TRIAL AND ITS INCIDENTS. 173 
 
 his witnesses and other evidence, to the admissibiUty of which, 
 the plaintiff may in his turn, object. After the examination of 
 the defendant's witnesses is conchided, they may be cross-exam- 
 ined on the part of the plaintiff, (1 Arch. Pr. 195.) 
 
 The examination of the witnesses, is in open court, in the 
 presence of the parties or their attornies, and before the Justice, 
 or Justice and jury, who have thus an opportunity of observing 
 the understanding, demeanor and inclination of the witnesses. 
 (1 Phil. Ev. 168.) 
 
 Leading questions, that is, such as instruct a witness how to 
 answer on material points, are not allowed on the examination 
 in chief; for to direct witnesses in their evidence would only 
 serve to strengthen that bias which they are generally too much 
 disposed to feel in favor of the party who calls them. The 
 strictest observance of this rule, is highly essential. (Id. Cow. 
 & Hill's Notes, 504, 723.) 
 
 duestions which are intended merely as introductory, are not 
 leading. Thus if a witness called to prove a partnership, is not 
 able at the moment, to specify the several names of the partners, 
 a number of names containing those of the partners among 
 others, may be suggested to the witness, for the assistance of 
 his memory. (1 Phil. Ev. 269.) 
 
 If, however, the Justice finds, as the examination progresses, 
 that the witness is backward or reluctant in the answers he 
 gives ; in a word that he is what is called an unwilling witness 
 he may suffer the party to change his ground, and put leading 
 questions, and indeed indulge all the latitude of a cross-exam- 
 ination. (Id.) 
 
 In cross-examinations, the object of which is to sift evidence, 
 and try the credibihty of witnesses, great latitude is allowed in 
 the mode of putting questions. Leading questions may be 
 asked, and every thing inquired into, which has the least con- 
 nection with the points in dispute. The rule however, is still 
 subject to limitations. A witness cannot be cross-examined as 
 to any fact, which, if admitted, would be wholly irrelevant. If 
 it were permitted, it would often produce great confusion and 
 embarrassment, and the simplest issue might thus branch off 
 into a variety of collateral issues perfectly immaterial. (Ibid. 
 273.) 
 
 A party will not be entitled to the benefit of the testimony of 
 a witness who dies after he has been examined, and before the
 
 X74 OF TRIAL AND ITS INCIDENTS. 
 
 opposite party has had an opportunity to avail himself of a 
 cross-examination. (25 Wend. R. G51.) 
 
 If a witness has once been examined by a party, the power 
 of cross examination continues in every stage of the cause ; so 
 that the other party may call the same witness to prove his 
 case, and in examining him, may ask leading- questions. (Cow. 
 & Hill's Notes, 508, 726.) 
 
 After a witness has been cross-examined, the party who pro- 
 duced him may deem it necessary, in order to come at the truth 
 of the case, to examine him as to new matter, and after that 
 there may be a second cross-examination. The Justice may, in 
 his discretion, permit a witness to be examined over and over 
 again, at any time during the trial. But he should take care 
 and exercise this discretion so as not to suffer any advantage 
 to be taken by trick, or artifice. If the plaintiff should declare 
 tliat he had finished his testimony, in consequence of which 
 the defendant should dismiss some of his witnesses, and then 
 the plaintiff should offer to produce new testimony which might 
 perhaps have been contradicted by the witnesses who were dis- 
 missed, the Justice ought not to suffer him to avail himself of 
 such unfair conduct. (2 John, Cas. 319.) 
 
 A witness cannot be compelled to answer any question which 
 will expose or tend to expose him, to a charge legally criminal, 
 though the consequence might be only a pecuniary penalty. If, 
 therefore, ihe Justice sees that by any possibility, the answer 
 may form the least link in the chain of proof to convict a wit- 
 ness of a criminal offence, he ought not to compel him to an- 
 swer. The exemption, however, is the privilege of the witness 
 only, and he may waive it, if he think proper, and answer the 
 question. (3 Taunt. 414. 1 Phil. Ev. 276.) 
 
 The above mentioned privilege docs not extend to a question, 
 the answer to which may degrade a witness' moral character 
 merely, and not sulycct him to diny legal penally. Nor can the 
 witness decline answering, merely because the answer may 
 sul)jr;f't him to a civil suit, unless he be a party in interest. (1 
 Phil. Ev. 278, 279.) 
 
 A witness can depose only to such facts as are within his 
 own recollection. Hut to assist his memory, he may use a 
 written entry in a hooic, or a memorandum, or the copy of a 
 rneniorandniM : such (;titry or memorandum, having been made 
 at the time the fact occurred, or recently afterwards ; and if
 
 OF TRIAL AND ITS INCIDENTS. 175 
 
 after looking at the memorandum, he can positively swear to 
 the truth of the fact there stated, such evidence will be suffici- 
 ent. If the witness cannot from recollection, speak to the fact, 
 except from finding it in the paper, his testimony goes for noth- 
 ing. If the paper is an original entry or memorandum, made 
 by the witness at or about the time, for the purpose of preserv- 
 ing the memory of the transaction, and the witness will testify 
 that he believes it to be correct, though he has forgotten the 
 transaction itself, the paper may be read in evidence. (1 Phil. 
 Ev. 289. Cow. & Hill's Notes, 750.) 
 
 The opinion of a witness, is not in general evidence ; the wit- 
 ness must speak to facts. (1 Phil. Ev. 290.) But on questions 
 of science or trade, or others of the same kind, persons of skill 
 may speak not only as to facts, but are allowed also to give their 
 opinions in evidence. (Id.) The opinion of medical men is ev- 
 idence as to the state of a patient whom they have seen. Even 
 in cases where they have not themselves seen the patient, but 
 have heard the symptoms and particulars of his state, detailed 
 by other witnesses at the trial, their opinion on the nature of 
 such symptoms, has been properly admitted. Thus, on a ques- 
 tion of sanity, medical men have been permitted to form their 
 judgment upon the representations which witnesses at the trial, 
 have given of the manner and general appearance exhibited by 
 the patient. So in prosecuting for murder, they have been al- 
 lowed to state their opinion whether the wounds described by 
 witnesses, were likely to be the cause of death. 
 
 Evidence of general character is also founded on opinion. 
 And where a witness cannot recollect a precise conversation 
 about which he is testifying, he may give his impression as to 
 its substance. (Id. and Cow. & Hill's Notes, 749, 757 to 763.) 
 
 Of Imjyeaching Witnesses. 
 
 To impeach the credit of a witness, the opposite party may 
 disprove the facts stated by him, or may examine witnesses as 
 to his general character. A witness called to impeach or sup- 
 port the general character of another is not to speak of his pri- 
 vate opinion, or of particular facts in his own knowledge ; but 
 he must speak of the common reputation among his neighbors 
 and acquaintance. The onl)'' proper questions to be put to him 
 are, — whether he knows the general character of the witness
 
 176 OF TRIAL AND ITS INCIDENTS. 
 
 intended to be impeached in point of truth, among his neigh- 
 bors ? and what that character is ? whether good or bad ? The 
 witness may be inquired of, as to the means and opportunity he 
 has of Icnowing the cliaracter of the witness impeached ; as how 
 long he lias Icnown him ; how near he lives to him ; and whether 
 his character has been the subject of general conversation. But 
 his testimony must be founded on the common repute and un- 
 derstanding of his acquaintance ; and the reason given is, that 
 every man may be supposed capable of supporting his general 
 character, but not to be prepared to answer particular facts, with- 
 out notice. (1 Phil. Ev. 291, 292, 393. Cow. & Hill's Notes, 
 763. 19 Wend. 569 and 579. Swift's Ev. 143.) 
 
 The regular mode of examining into general character, is to 
 inquire of the witnesses whether they have the means of knowing 
 the witness' former general character, and whether, from such 
 knowledge, they would believe him under oath. In answer to such 
 evidence agamst character, the opposite party may cross-exam- 
 ine the witnesses as to their means of knowledge, and the grounds 
 of their opinion ; or may attack their general character, and by 
 parol evidence support the character of his own witness. (Id.) 
 
 The examination is as above stated in general, or it may be 
 narrowed to the general character for truth and veracity. (Cow. 
 & Hill's Notes, 7Q3.) 
 
 When a witness is sought to be impeached on the ground of 
 his bad character, and the persons called for that purpose testify 
 that they are acquainted with his ge7ieral character^ they may 
 be asked whether, from such general character, they would be- 
 lieve the witness on his oath ; and this, though they expressly 
 disclaim all knowledge of the witness' character for truth and 
 veracity. (3 Hill, 178.) 
 
 The verbal declarations or statements of a witness, made on 
 some former occasion to a third person, are frequently given in 
 evidence by the party against whom the witness appears, witli 
 the view of showing that his several accounts of the particular 
 transaction on which he has been examined, are inconsistent 
 and contradictory. A hotter written by him, or a deposition 
 signed by him, may also be used as evidence to contradict his 
 testimony; the letter or deposition being first regularly proved. 
 This evidence of contradictory statements, is produced for the 
 purpose of exciting doubt and distrust against his testimony as to 
 the particular transaction in which the discrepancy arises, or per-
 
 OF TRIAL AND ITS INCIDENTS. 177 
 
 haps to raise suspicion as to the truth of his testimony in gen- 
 eral. Before such testimony can be regularly admitted on behalf 
 of the party, it will be necessary, in the first instance, to prepare 
 the way for its admission by interrogating the witness particu- 
 larly, concerning the alleged statement. Then, if effectually 
 impeached, he may be again called to explain why he made it. 
 (1 Phil. Ev. 293.) 
 
 If an attesting witness to a will or deed, impeach its validity, 
 on the ground of fraud, and accuse other subscribing witnesses, 
 "who are dead, of being accomplices in the fraud, the only mode 
 left of doing justice to the persons impeached, is by inquiring into 
 their general character ; though where witnesses merely contra- 
 dict each other as to facts, and no fraud is imputed, evidence of 
 general character is not admissible in support of either. (18 
 Wend. 569. 1 Phil. Ev. 293 to 308. Cow. & Hill's Notes, 771 
 to 779. 8 Carr. & Payne, 726.) 
 
 A party will not be allowed to discredit his own witness, by 
 proving him to be of such a general bad character as to render him 
 unworthy of credit. (1 Phil. Ev. 308 to 311.) But if a witness 
 state facts against the interest of the party who called him, an- 
 other witness may be called to disprove those facts. Thus, 
 where the defendant's servant, who had been employed to sell 
 a horse, had warranted him sound, and the servant swore, on 
 being called by the plaintiff, that he had not given any warranty, 
 it was permitted the plaintiff to call another witness to prove 
 that at the time of the sale the servant had expressly warranted 
 its soundness. (Id.) 
 
 Where the party calls an attesting witness, who denies his 
 attestation, or a witness who has deceived the party by making 
 favorable statements to him, in consequence of which he is 
 called, but contradicts, on oath, what he stated before, he may 
 be impeached by showing such former statements, or by show- 
 ing his general bad character, or other matter going to impair 
 his credibility, the same as if he had been called by the oppo- 
 site party, and he may also show the signature of the witness 
 to be genuine, by those acquainted with his handwriting. (Id.) 
 
 As a general rule, a party cannot give evidence of the good 
 character of his witness, until it has been attacked. If, however, 
 the opposite party should draw from the witness, on cross-exam- 
 ination, extrinsic facts going to impeach his general character, 
 
 12
 
 178 OF TRIAL AND ITS INCIDENTS. 
 
 e\ddence of good character may be given in reply. (3 Hill, 309. 
 24 Wend. 354. Cow. & Hill's Notes, 779 to 782.) 
 
 After an equal number of witnesses have been sworn on each 
 side, impeaching and supporting character, it is discretionary 
 with the Justice whether more shall be allowed to the same 
 point. (Id.) 
 
 Of the Justice's Discretion in Admitting or Rejecting 
 Testimony. 
 
 There are several questions of fact, in the course of a trial, 
 arising on collateral issues, determinable by the Justice, upon 
 which his decision is absolute. Among them, are the questions 
 whether an infant has a sufficient sense of moral obligation to 
 warrant his being permitted to testify ; whether an agency is 
 shown so as to let in the acts and declarations of the agent, as 
 evidence against his principal ; whether a person oifered as a 
 witness is a lunatic or intoxicated ; whether the loss or destruc- 
 tion of a paper is sufllcicntly proved, to warrant the introduction 
 of oral evidence concerning its contents ; or whether diligent and 
 unavailing search has been made for a subscribing witness, so 
 as to warrant evidence of an inferior degree. 
 
 Another question depending upon the state of the pleadings, 
 is, which party shall begin : in other words, which holds the 
 affirmative, and which the negative of the issue, on the trial. 
 This, in practice, not only governs 'the priority of proofs as be- 
 tween the parties, but the order of opening the evidence and 
 summing it up. It is, however, a matter so much in the Jus- 
 tice's discretion, that should he mistake, and no prejudice to the 
 merits appear to have followed, the judgment would not. for that 
 reason, be reversed. 
 
 Where a case or defence is to be made out, by a scries of 
 proofs, the Justice has a discretion as to the order in which they 
 shall be introduced, l-'or instance, a defendant sued for wrong- 
 fully taking and detaining goods, proposes to make out that he 
 took (lif goods as a constable from a vendor of the plaintiff, who 
 purchased them with intent to defraud creditors. Which is to 
 be proved fir.<l, the judgment, execution, or fraud, is in the Jus- 
 tice's discretion ; though, in the end, to complete the defence, 
 they nuisl all be shown. • 
 
 When a witness is asked, and without objection answers, to a
 
 OF TRIAL AND ITS INCIDENTS. 179 
 
 fact not relevant, the Justice may, or may not, hear testimony 
 in reply. So whether the witnesses, or any of them, shall retire, 
 on the party's suggestion that he wishes to avoid a concerted 
 story ; and whether the wilful return of one ordered to retire, 
 shall be a cause of rejection. And when a fact is fully proved, 
 the Justice may, or may not, hear additional evidence to it. He 
 has also a discretion to stop the idle multiplication of witnesses 
 to any other fact. Thus, in impeaching a witness for bad char- 
 acter, he may stop the introduction of witnesses for or against 
 his character, when either party, or both parties, have had what 
 he believes a full and fair opportunity of impeaching or sustain- 
 ing witnesses. He is not required to waste his time in hearing 
 more witnesses, either when the question appears to have taken a 
 decisive turn, or been exhausted, or when they appear to be 
 called and examined at random without answering in favor of 
 the party calling them. He may, also, in general, require the 
 party offering a witness to state what he intends to prove by 
 him ; and moreover, to state how the evidence is material, es- 
 pecially when its materiality is not obvious. So, if he after- 
 wards discover it to be immaterial, the Justice may reject it. 
 The due exercise of this power, becomes highly important, when 
 the cause is tried by a jury. It is the duty of the Justice, to 
 withhold all irrelevant testimony from them, so far as may be 
 in his power. A party may state that the proposed evidence 
 will be followed by proof giving it a character or bearing whicii 
 it does not appear to have, when standing naked or insulated. 
 In such case, if the Justice do not choose to hear the ulterior 
 proof first, he must, in the nature of things, receive the offered 
 proof provisionally, and direct the jury to disregard it if finally 
 the chain is left incomplete. 
 
 It is a matter of discretion with the Justice, whether a party 
 calling a witness shall be permitted to ply him with leading 
 questions. The party may be permitted to do so, if the Justice is 
 satisfied, from his manner or otherwise, that he is an unwilling 
 witness. Whether, also, a witness who has been examined in 
 chief, cross-examined, and re-examined, shall be farther inteiTO- 
 gated, or whether, after leaving the stand, he shall be recalled. 
 Or, after all the proofs are regularly gone through with, whether 
 a witness or witnesses shall be further examined, and to what 
 extent ; or whether any more proof, written or oral, shall be re- 
 ceived. In strictness, the party calling a witness is bound to
 
 jgQ OF TRIAL AND ITS INCIDENTS. 
 
 finish his questions on the examination in chief; and the defen- 
 dant must do the same thing on cross-examination. The wit- 
 ness can then be re-examined only to cut down or explain mat- 
 ter wliich comes out on his cross-examination. So, taking the 
 proof in the aggregate, the plaintiff or party beginning, must ad- 
 duce all his proofs ; then, the party holding the defensive or neg- 
 ative side ; and then the first may adduce evidence to rebut, 
 qualify, or explain away, the matter proved against him. Be- 
 yond this, the Justice may or may not allow the parties to go, 
 in his discretion. It is proper to allow it, if he think any thing 
 material has been inadvertently omitted. But the partie^'can- 
 not, in their discretion, go back and renew their controversy on 
 a new state of facts. And the Justice may or may not allow 
 questions once put and answered to be repeated. 
 
 Though it is the duty of a Justice to acquit or direct the ac- 
 quittal of one among several defendants sued for a joint wrong, 
 there being no proof against him, the other defendants desiring 
 to call him as a witness ; yet it is matter of discretion whether 
 this shall be done at the close of the plaintifl's proof, or not till 
 the closing of all the proofs in the cause, or at some intermedi- 
 ate stage. 
 
 Of Weighing the Testimony of Witnesses. 
 
 Where there is no contradiction in the testimony of witnesses 
 to the same fact, and they do not testify to facts opposed to each 
 other, there is very little difiiculty in deciding whether the evi- 
 dence is sufllcient to prove the fact in dispute. But when the 
 witnesses contradict each other, in their testimony as to the same 
 fact, or testify to opposing facts and circumstances, it becomes 
 necessary to make application of certain general rules wliich 
 have been adopted in guiding the mind to a true estimate of evi- 
 dence. 
 
 When there is an apparent inconsistency or contradiction in 
 the testimony, it is a general rule that such interpretation shall 
 be put upon it as to make it agree, if possible : for the law will 
 presume that every body swears the truth, and that no man will 
 be guilty of perjury. If such construction can be given as will 
 reconcile the testimony, it must be preferred to a construction 
 that will make it contradictory. But if the testimony of wit- 
 nesses be so contradictory that it cannot be reconciled — '.\s. wbora
 
 OF TRIAL AND ITS INCIDENTS. IgJ 
 
 one testifies in the affirmative, and the other in the negative, the 
 affirmative witness is to be believed ; for it is a general principle 
 that one affirmative witness outweighs several negative. The 
 negative witness can only swear that he does not know the fact, 
 while the affirmative witness swears directly to his knowledge 
 of it. Consequently, the fact which the affirmative witness 
 swears to be true, may be so, while the other knows nothing of 
 it ; and, of course, both swear to the truth, according to their 
 knowledge. In this way, the testimony is easily reconciled. 
 Two persons being at the same place, one swears that a parti- 
 cular fact happened, and the other that it did not ; this makes 
 the contradiction more express than if the latter said ho did not 
 see it. For it is possible that their situation may be such that 
 a witness may know with as much certainty that the fact did 
 not happen, as it could be known that it did. But even in such 
 cases, where the credit of the witnesses is equal, the affirmative 
 witness is to be believed ; for the fact may have happened, and 
 the affirmative witness may have not seen it, or may have forgot- 
 ten it. Tlie affirmative witness could not see and remember a 
 fact that did not happen. 
 
 It is a general remark that a negative cannot be proved. But 
 when the question arises whether a witness did a particular 
 thing, as paying a sum of money, his testifying that he did not 
 do it would be proof that the fact did not happen. But where 
 witnesses swear affirmatively to a fact, it will not generally be 
 sufficient to disprove it, to call witnesses who merely deny it ; 
 it must be done by proving other facts, contradictory to, or incon- 
 sistent with it, and which show that such fact could not have 
 existed. 
 
 Where witnesses swear to facts directly repugnant and con- 
 tradictory to each other, their testimony cannot be reconciled, 
 and we must then determine which is deserving of credit. 
 Thus, where a witness swears that he saw a person com- 
 mit a trespass at a particular place and time, and another 
 swears that he saw the same person at the same time in a 
 distant place, the testimony of both is affirmative, contra- 
 dictory, and irreconcilable. In such cases, where the number 
 of witnesses adduced by each party is different, and their cha- 
 racters and means of knowledge different, the greater number 
 of witnesses must be relied on, in preference to the smaller. 
 When the number of witnesses is equal or unequal on both
 
 182 OF TRIAL AND ITS INCIDENTS 
 
 sides, if their characters and means of knowledge are different, 
 these circumstances must be taken into consideration in deci- 
 ding upon the preponderance of the testimony. 
 
 The general character of witnesses in point of truth must be 
 taken into consideration, and other witnesses maybe called upon 
 either to impeach or support their characters. Where the cha- 
 racter of a witness is proved, by the testimony of persons of cre- 
 dit, to be that of a man of truth, his testimony acquires strength 
 and confirmation. Where, however, witnesses of repute testify 
 that the general character of the witness is not good, and that 
 his testimony is not to be relied upon, the jury ought to disre- 
 gard it. But the witnesses who are called to support or impeach 
 character, ought to be of fair and unblemished reputations ; and 
 the effect of their testimony will be in proportion to the good- 
 ness of their character ; for they may be impeached as well as 
 others. 
 
 The credit of witnesses will in some degree be affected by 
 their relationship to the party, and their connection with them. 
 By the Roman or civil law, father and son could not be wit- 
 nesses for each other, and distant relations could not be com- 
 pelled to testify against those to whom they were allied. By 
 our law, no relationship excludes from testifying but that of hus- 
 band and wife ; but the relationship is always considered as a 
 matter going to the credit of the witness. Such is the frailty oi 
 the human mind, that witnesses of integrity who really wish to 
 speak the truth are imperceptibly influenced by the natural bias 
 to favor their friends. But it is often necessary to call upon wit- 
 nesses from the flimily to prove facts, or they could never be 
 proved ; and though they are admitted, it ought to be with due 
 caution and allowance. In all cases where other witnesses can 
 be obtained th:tn those of the family, it ought to be done ; and 
 where there is a dirferencc between the testimony of relatives to 
 the party and strangers, the greater credit is due to the latter. 
 
 The total indifference of a witness to the parties and their 
 cause, adds much to the weight of his testimony. If, on the 
 other hand, tin; witix^ss has had a personal controversy with 
 cither of tbe i)arli(;s, there is danger that it may influence his 
 mind to ti^stil'y strongly against him. It is, thereibre, always 
 permitted to iinpiin! of the witness wlicthor he has not had 
 controversy wilh the parly, or to prove it by otlieis. Tiie par- 
 ticulars of the controveisy cannot be inquired into ; it can only
 
 OF TRIAL AND ITS INCIDENTS. X83 
 
 be shown there has been one. Then the credit due to his testi- 
 mony, when compared with others, may be judged of; and thus 
 the weight of his testimony may be greatly lessened. 
 
 An interest in the same question of fact does not exclude. It 
 may, therefore, happen that by the rules of law a witness is ad- 
 mitted who has all the feelings and prejudices of a party, and 
 who has, perhaps, a case to be tried the next hour in which pre- 
 cisely the same fact is involved. Though the verdict caimot be 
 given in evidence for him, yet he is under a strong bias to prove 
 the facts on which his case depends. The Justice should 
 always look with a jealous eye upon a witness thus circum- 
 stanced, and his testimony should have strong internal evidence 
 to support it, or it should be corroborated by other witnesses. 
 When the interest of the witness is direct — as a cause depend- 
 ing in which it is involved, it may be a strong ground to lessen 
 his credit. If, however, his interest is remote, collateral or con- 
 tingent, of trifling amount, and it is uncertain whether a suit 
 will ever be brought, it should have little weight. 
 
 The means of information of witnesses will have great weight 
 in confirming their testimony. For when a witness has had 
 the best means of knowledge, and can give a good account and 
 reason for his recollection, and can point out the circumstances 
 that usually and naturally attend the transaction, he is to be 
 credited in preference to one who cannot explain the means of 
 his knowledge, or the ground of his recollection, but testifies 
 directly to the material point, without being able to detail the 
 usual and probable attendant circumstances. A witness, how- 
 ever, is to be distrusted in certain cases, if he is more minute 
 and particular in his recollection than is probable. For if the 
 transaction is of old date, and the witness relates trivial circvun- 
 stances which would not probably be remembered so long a 
 time, it is to be presumed that he has fabricated the story. 
 
 The capacity and discernment of witnesses ought not to pass 
 unnoticed. The apparent clearness or dullness of their under- 
 standing may affect the credit of their testimony. 
 
 The probability of the story, according to the nature of things, 
 is much to be regarded in weighing testimony. When a wit- 
 ness relates facts which are very improbable in their nature, or 
 attended with improbable circumstances, he is to be suspected ; 
 and it requires more evidence to convince the mind of such
 
 184 OF TRIAL AND ITS INCIDENTS. 
 
 factSj than where they are according to the ordinary course of 
 things. 
 
 As the confession of a party is usually made when none are 
 present but the witness and the party, it should be received with 
 great caution in all cases where, from the circumstances of the 
 witness, there is reason to believe he acted with design. Such 
 witness, to entitle himself to credit, should be able to give a 
 reasonable and probable account of the manner in which the 
 confession was obtained. And where it appears that the wit- 
 ness was employed by one party to obtain such acknowledg- 
 ment from the other party, with a view to use it in evidence, 
 suspicion will be doubly strong. It is so well known that an 
 artful man may take great advantages of an unsuspecting one, 
 and it is so easy to torture the meaning of another, and distort 
 the slightest cu'cumstance into testimony against him, such evi- 
 dence should, of itself, have little weight, and ought to be cor- 
 loborated by the most convincing circumstances to make it be- 
 lieved. When, however, a confession is underslandingly made, 
 in a manner properly accounted for, there is no question but that 
 it is the best evidence. 
 
 The manner in which a witness relates his story, will con- 
 tribute much to impress the mind with its truth. There is a 
 peculiar manner of telling a story which is calculated to make 
 people believe it — a certain artless and unatFected air, a plain 
 and concise manner, which impress one with irresistible con- 
 viction of truth. When a witness appears to be impartial, 
 candid, and dispassionate, and has a clear understanding of the 
 subject, he will be credited. There are, however, many instan- 
 ces in which honest, ignorant people testify in such a confused 
 inaccurate and blundering manner, that their story makes little 
 impression. Where a witness is passionate and vehement, ex- 
 presses himself with unusual confidence, and makes solemn 
 protestations of the truth of what he says, he is to be distrusted; 
 for a person conscious that he is speaking the truth, is seldom 
 boisterous. Resentment against one party, and partiality for 
 the oihfM-, when pr(!v;i.lent, are apt to show themselves in the 
 voic(! and counloiunce of a witness, and when they do, they are 
 circumstances which nujst impress suspicion on the minds of 
 tlie jiir^'. So it odcn happens that a witness destroys tlie credit 
 of his t':stimoiiy hy inconsistency, by prevarication, by the
 
 OF TRIAL AND ITS INCIDENTS. 185 
 
 manner of his representing facts, and often by obtruding his 
 own sentiments and opinions. 
 
 In the course of the evidence, there will generally be found 
 certain collateral circumstances that will guide with more cer- 
 tainty to the discovery of the truth of the case than direct testi- 
 mony, by which the Justice or jury ma)'- explain and correct 
 direct proof, and ascertain how far it ought to be credited. 
 
 In all cases, he who takes the affirmative side of the issue, is 
 bound to adduce sufficient proof to convince the mind of its 
 truth. If the other side can produce evidence of equal weight 
 and credit, so as to counterbalance it, the party holding the 
 affirmative, is not entitled to recover. So also, if from the testi- 
 mony adduced on both sides, the case should be rendered very 
 doubtful, the safest mode is to decide against him who takes 
 the affirmative ; for no man ought to recover on a doubtful 
 right. 
 
 After the evidence on both sides is closed, it is the right of 
 the parties, respectively, to address the Justice or the jury upon 
 the case, which is called summing it up. 
 
 The defendant, or the party holding the negative, first sums 
 up, and the other party replies. And if the trial be by jury, 
 the Justice may, if he sees proper sum up the case to them. 
 
 After hearing the proofs and allegations of the parties, the 
 jury must be kept together in some convenient place, under the 
 charge of a constable, until they agree upon their verdict ; and 
 for that purpose, the Justice must administer to the constable 
 the following oath : — 
 
 " You swear, in the presence of Almighty God, that you will, 
 to the utmost of your ability, keep the persons sworn as jurors 
 on this trial, together, in some private and convenient place, 
 without any meat or drink, except such as shall be ordered by 
 me ; that you will not suffi^r any communication orally, or 
 otherwise, to be made to them ; that you Avill not communicate 
 with them yourself, oi'ally or otherwise, unless by my order, or 
 to ask them whether they have agreed on their verdict, until 
 they shall be discharged ; and that you will not, before they 
 render their verdict, communicate to any person the state of 
 their deliberations, or the verdict they have agreed on." (2 R. 
 S. 341, sec. 110.)
 
 186 OF TRIAL AND ITS INCIDENTS. 
 
 No person but a constable can be sworn to attend the jury. 
 But if the jury make up their verdict without retiring from the 
 court, a constable need not be sworn. (2 Cai. 221. 8 J. R. 
 437. 11 id. 134.) 
 
 After the jury have retired, the Justice ought not to confer 
 with them, unless done with the consent of the parties. The 
 practice is dangerous and improper. And it makes no difference, 
 although the Justice refuse to answer questions put to him by 
 the jury. (10 J. R. 239. 13 id. 487. 1 Cow. 258.) It is not, 
 however, irregular for the Justice, at the request of the jury, to 
 give them further instructions upon the law of the case, if the 
 parties are, or have an opportunity of being present. (13 
 Wend. 274.) 
 
 When the jurors, after retiring, separate, so as to raise the 
 slightest suspicion of abuse, the verdict will be set aside. Where 
 after a cause was committed to a jury, one of the jurors sepa- 
 rated himself from the constable, and drank a third of a gill of 
 brandy, the Supreme Court set the verdict aside. (7 Cow. 562.) 
 
 When the jurors agree each to mark down the sum he thinks 
 proper, and to divide the total amount by the number of jurors, 
 their verdict so found, will be irregular. A verdict of no cause 
 of action, and a verdict of six cents damages, and six cents 
 costs for defendant, are to be regarded, where no set-off is 
 pleaded, as general verdicts for the defendant. A verdict for 
 more damages than the party claims, is mere error in form for 
 which a judgment will not be reversed. (15 J. R. 187. 1 
 Cow. 237.) 
 
 When the jurors have agreed on their verdict, they shall de- 
 liver the same to the Justice, pubHcly, who shall enter it in his 
 docket. Previous to receiving it, the Justice shall call the 
 plaintiff. If he be absent, and no one appear for him, the 
 verdict shall not be received. (2 R. S. 341, sec. 111.) 
 
 When the jury return into court to give in tlieir verdict, the 
 Justif^e should call over their names, for the purpose of ascer- 
 taining that all arc present. If, liowever, they have agreed 
 upon their verdict without retiring, their names need not be 
 called. 
 
 'J'lie Juslif.e should ask them if thoy have agreed upon their 
 verdict; and if lli<!y answer that thoy have, he should then, 
 befon; receiving the verdict, call the plaintiff. If the plaintiff, 
 although present, do not answer, when thus called, the verdict
 
 OF TRIAL AND ITS INCIDENTS. 187 
 
 is not to be received, but a judgment of nonsuit is to be entered ; 
 for the plaintiif has a right to submit to a nonsuit, at any time 
 before the verdict is recorded, and his not answering when the 
 jury are ready to give their verdict, is an election on his part to 
 become nonsuited. (Edw. Tr., 3d ed., 97.) 
 
 If the plaintiff, when thus called, answers, the verdict must 
 be received ; and the Justice should ask the jury, " Who do you 
 find for, the plaintiff or the defendant ?" The foreman of the 
 jury will then state what their verdict is, which the Justice 
 must enter in his docket, and then say to the jury, " Listen to 
 your verdict, as the court has recorded it ; you say you find for 
 the plaintiff, (or defendant, as the case may be) — so say you 
 all ;" to which the jury signify their assent. (Id.) 
 
 Where the jury is empannelled before Sunday commences, 
 they may bring in their verdict on Sunday. No court can be 
 opened, or transact any civil business on Sunday, except re- 
 ceiving a verdict, or discharging a jury. (15 J. R. 119.) 
 
 The jury may at any time before their verdict is recorded, 
 correct it, either in form or substance. They may do this of 
 themselves, or on the suggestion and advice of the Justice. 
 They may do it immediately upon discovering or being apprised 
 of the mistake, or may retire a second time and make the cor- 
 rection, on more mature deliberation, at their room. They may 
 also, alter their verdict after having sealed it up and delivered 
 it, if they desire to do so, and for that purpose may retire to 
 their room again. (6 J. R. 68. 7 id, 32.) 
 
 When the Justice is satisfied that the jury cannot agree on 
 their verdict, after they have been out a reasonable time, he 
 may discharge them and issue a new venire, returnable within 
 forty-eight hours ; unless the parties shall have consented that 
 the Justice may render judgment on the evidence already before 
 him ; which, in such cases, he may do. (2 R. S. 341, sec. 112.) 
 
 While, on the one hand, a jury should not be kept out so long 
 that their verdict will be the effect of compulsion, and not of 
 their reason and understanding ; on the other, the Justice 
 should not be too ready to grant their discharge. In most 
 cases, notwithstanding an apparently irreconcilable difference 
 of opinion at first, by discussion and reflection, they will agree.
 
 CHAPTER X. 
 
 OP JUDGMENTS, AND FILING TRANSCRIPTS THEREOF. 
 
 I SHALL treat the subjects of this chapter under the following 
 heads : 
 
 1. Definition and Nature of Judgment. 
 
 2. Judgment of Discontinuance. 
 
 3. Judgment of Nonsuit. 
 
 4. Judginent hy Confession. 
 
 5. Judgment on a hearing before the Justice^ or on a 
 
 Verdict. 
 
 6. Transcripts of Jtidgments. 
 
 7. Damages. 
 
 8. Costs. 
 
 1. Definition and Nature of Judgment. 
 
 A judgment is the conchision which naturally and regularly 
 follows from the premises of law and fact presented by the is- 
 sue, and decided on the argument or trial. When rendered for 
 the plaintiff, it is the remedy prescribed by law, for the redress 
 of the injury complained of; the suit or action, being only the 
 vehicle or means of attaining and administering it. (3 Blk. 
 Com. 396.) 
 
 Judgments are either interlocutory or final. Interlocutory 
 judgments are such as are given in an intermediate stage of the 
 cause, upon some proceeding which does not finally determine 
 or complete the suit. (3 Blk. Com. 390, 397.) Final judgments 
 arc such as at once put an end to the action, by declaring that 
 the piaintitr cidier has, or has not cntilled himself to recover 
 the debt or damages he sues for. (Id. 398.) 
 
 2. Judgment of Discontinuance. 
 
 Juflgtnont of disf,oiiliiiuaii('(\ is a lucix! susjxMision of the pro- 
 ceeding's, without air-cUng th(; miMils of th(; adioiL It is ren- 
 dered ill several cases specified by statute.
 
 OF JUDGMENTS, &c. I39 
 
 If previous to joining issue in any cause, (except where the 
 defendant shall have been arrested by warrant,) the defendant 
 make affidavit that the Justice before whom the cause is pond- 
 ing is a material witness for such defendant, Avithout whose 
 testimony he cannot safely proceed to trial, and sets forth in the 
 aflldavit, the particular facts and circumstances he expects to 
 prove by the Justice, judgment of discontinuance must be en- 
 tered, provided the Justice is satisfied that he is a material wit- 
 ness for the defendant, and that without his testimony, the de- 
 fendant cannot safely proceed to trial, but without costs against 
 either party. (2 R. S. 342, sec. 119.) 
 
 The Justice has no right to interpose his private know^ledge 
 or recollection, as an answer to the affidavit ; but he must judge 
 of the facts and circumstances set forth in the affidavit. (24 
 Wend. 264. 3 Hill, 32.) Yet judgment of discontinuance 
 should not be entered, unless the facts and circumstances de- 
 tailed, are such that the Justice can judicially pronounce them 
 relevant. The affidavit should also contain enough to show 
 that the Justice is a necessary as well as a 7naterial witness ; 
 especially where on its face it imports that there are others who 
 probably know as much of the matters detailed as the Justice. 
 (3 Hill, 32.) 
 
 FORM OP AFFIDAVIT. 
 
 In Justices' Court, before David Long, Justice. 
 John Doe ^ 
 against > 
 Richard Roe. 5 
 
 Chenango County, ss. — Richard Roe, the above named de- 
 fendant, being duly sworn, says, that David Long, Esq., the 
 Justice of the Peace before whom the above entitled cause is 
 pending, is a material witness for deponent in said cause, with- 
 out whose testimony he cannot safely proceed to trial. 
 
 Deponent further says, that he expects to prove by the said 
 Justice, the following facts and circumstances : [here set forth 
 the particular facts and circumstances which he expects to prove 
 by the Justice.^ 
 
 Deponent further says, that he is not able, so far as he can
 
 190 OF JUDGMENTS, AND 
 
 ascertain, to prove the facts and circumstances above mentioned, 
 by any other person than the said Justice. 
 
 Richard Roe. 
 Sworn before me, this 1st day of July, 1849. 
 David Long, Justice. 
 
 When the defendant in his answer, pleads a set-off, and the 
 balance found due the defendant exceeds one hundred dollars, 
 and the defendant does not require that so much should be set 
 off as will satisfy the plaintiff's debt, the Justice must enter 
 judgment of discontinuance for the defendant, with costs. (Laws 
 of 1840, c. 317, sec. 53.) 
 
 When it appears upon the trial of a cause, that the amount 
 of the plaintiff's claim, together with the demands set off by 
 the defendant, exceed four hundred dollars, judgment of dis- 
 continuance must bo rendered with costs to the plaintiff. (2 R. 
 S. 333, sec. 55. 10 Wend. 556.) 
 
 Where an answer of title to land is interposed, and the requi- 
 site undertaking executed, the suit must be discontiued and 
 each party pay his own costs. (Code, sec. 57.) But where the 
 plaintiff's complaint contains several causes of action, the suit 
 must be discontinued only as to such of the causes of action to 
 which a defence of title is interposed. (Id. 62.) If it appear 
 on the trial of an action, from the plaintiff's own showing that 
 the title to lands is in question, which title is disputed by the 
 defendant, the Justice must dismiss the cause, and the plaintiff 
 pay the costs. (Code, sec. 59.) 
 
 An irregular adjournment may be a discontinuance of the 
 cause. So an unreasonable delay in proceeding with the cause, 
 on the return of process, or at the time to which the cause is 
 adjourned, will amount to a discontinuance. As where a suit 
 was adjourned to ten o'clock in the forenoon, and the defendant 
 appeared at the time and waited near three hours, and the Jus- 
 tice not attending he went away, and the Justice came soon 
 aflf.'r and h<>urd the cause in the absence of llie defendant, it was 
 held tli.ii l»y llio delay of the Justice in attending, the cause be- 
 came discontinued. (Mdw. Tr. 3d cd. 119.) But if the delay 
 in proceeding be sufliciently accounted for, it will not be a dis- 
 continuance -^-as a delay of five hours, in consequence of the 
 Justice being engaged in thf trial of another cause. (12 J. R.
 
 FILING TRANSCRIPTS THEREOF. 191 
 
 217. 10 Wend. 102.) So where the defendant consents to a 
 delay for the convenience of the Justice. (15 J. R. 504.) 
 
 Where a suit has been tried on the merits before the Justice, 
 and submitted for his decision, and he neglects to render judg- 
 ment, and to note the same in his docket within four days there- 
 after, such omission will work a discontinuance. (5 Hill, 60.) 
 In calculating the time, it should be four full days ; that is, the 
 day when the cause was submitted, should be excluded ; and 
 if the fourth day thereafter, should fall on Sunday, the judg- 
 ment ought to be rendered the day previous. (7 Cow. 147.) 
 
 3. Judgment of Nonsuit. 
 
 Judgment of nonsuit is rendered in consequence of some de- 
 fault or neglect of the plaintiff, who is allowed to begin his suit 
 again, upon payment of costs. (3 Blk. 296.) 
 
 Judgment of nonsuit, with costs, shall bo rendered against a 
 plaintiff prosecuting a suit before a Justice of the Peace, in the 
 following cases : (2 R. S. 343, sec. 120.) 
 
 1. If the plaintiff discontinue or ivithdraw his action. A 
 plaintiff may, as a general rule, discontinue or withdraw his 
 action at any time before a verdict is received and recorded, or 
 before judgment has been rendered by the Justice, where the 
 trial is without a jury. But where the trial is without a jury, 
 the plaintiff cannot withdraw his action, and become nonsuit, 
 after the cause has been finally submitted to the Justice, for his 
 decision. (11 J. R. 457.) 
 
 The plaintiff, it would seem, cannot discontinue or witlidraw 
 his action at any time other than when the parties are to ap- 
 pear before the Justice, except with the consent of the defend- 
 ant. As if a cause has been adjourned, the plaintiff cannot at 
 any time previous to the time appointed for trial, withdraw the 
 suit, unless both parties appear before the Justice for that pur- 
 pose. The reason for this rule is, that where the plaintiff dis- 
 continues, or withdraws his action, the Justice must forthwith 
 render judgment, and enter the same in his docket. As this 
 judgment is to be for the defendant's costs, the Justice may not 
 be able to ascertain the costs, except at the time appointed for 
 the trial ; — as if subpoenas, or a venire have been issued, on the 
 defendant's application. Aside, however, from the difficulty of
 
 192 OF JUDGMENTS, AND 
 
 ascertaining the costs, there would seem to be no objection to a 
 suit being withdrawn at any time. (Edw. Tr. 3d ed. 120.) 
 
 2. If the plaintiff fail to appear on the return of any process 
 within one hour after the same teas returnable ; or if after an 
 adjournment, he fail to appear within one hour after the time 
 to wJdch the adjournment shall have been onade. A judgment 
 of nonsuit is not to be entered for the non-appearance of the 
 plaintiff, unless the defendant appear and require such judg- 
 ment to be entered. If neither party appear, the suit will be 
 discontinued ; but no judgment is, in such case, to be entered 
 and each party must pay his own costs. (Id.) 
 
 A Justice may refuse to enter a judgment of nonsuit against 
 a plaintiff, who fails to appear in one hour after process is re- 
 turnable, when a reasonable cause exists for such refusal. (11 
 Wend. 31.) 
 
 So, if neither party appear within the hour, the suit will not, 
 of course, be discontinued ; but if the plaintiff appear in a rea- 
 sonable time after the expiration of the hour, the Justice may 
 go on with the suit. It is not to be expected, that the parties 
 should in all cases appear within a certain time ; they may be 
 prevented by unavoidable accident, and a variety of other 
 causes. (Edw. Tr., 3d ed., 121.) 
 
 If the plaintiff appear in due time, he is not to be compelled 
 to proceed to trial immediately upon the expiration of the hour ; 
 but the Justice should allow a reasonable time, upon sufficient 
 cause, as the non-appearance of witnesses, &,c. (Id.) 
 
 3. If the plaintiff becomes nonsidtcd on the trial. The plain- 
 tiff sometimes voluntarily submits to a nonsuit ; and this indeed, 
 is his usual and proper course, when there occurs an ujiexpected 
 defect in the testimony. 
 
 The Justice may, in all cases, nonsuit the plaintiff wiicn in 
 his opinion the testimony offered, does not support the action. 
 (12 J. R. 299.) 
 
 The application for a nonsuit, is usually made after the plain- 
 tiff lias gone through with his evidence, and before the defend- 
 ant has gone into evidence on his part ; though, as already 
 stated, a nonsuit may be granted after the evidence has been 
 clo.sed on ])olli sides, at any time before the case is submitted. 
 
 4. If the plaintiff does not appear on the coming in of the 
 jury to hear their verdict ; or if, although present, he does not 
 answer when called. Tiie verdict, in such a case, is not to be
 
 FILING TRANSCRIPTS THEREOF. 193 
 
 received, but a judgment of nonsuit is to be entered. For the 
 plaintiff has a right to submit to a nonsuit at any time before 
 the verdict is rendered ; and his not answering when the jury 
 are ready to give their verdict, is an election on his part to 
 become nonsuited. (3 Denio, 77. 3 Hill, 75.) 
 
 4. Judgment hy Confession. 
 
 A Justice of the Peace may take and enter judgment on the 
 confession of a defendant in any case where the debt or dama- 
 ges confessed, shall not exceed two hundred and fifty dollars, 
 with such stay of execution as may be agreed on by the parties 
 interested in such judgment. (2 R. S. 342, sec. 114. 9 Wend. 
 569. Code, sec. 53.) 
 
 No confession shall be taken, or judgment rendered thereon, 
 unless the following requisites be complied with : (Id. sec. 115.) 
 
 1. The defendant must personally appear before the Justice. 
 
 2. The confession must be in writing, signed by the defend- 
 ant, and filed with the Justice. 
 
 3. If the judgment be confessed for a sum exceeding fifty 
 dollars, the confession shall be accompanied by the affidavit of 
 the defendant and plaintiff, stating that such defendant is hon- 
 estly and justly indebted to the plaintiff, in the sum named in 
 such affidavit, over and above all just demands which he has 
 against him, and that sucli confession is not made or taken with 
 a view to defraud any creditor. 
 
 Every judgment confessed without a compliance with the 
 provisions of the last preceding section, shall be void as against 
 all persons except a purchaser in good faith of any goods or 
 chattels, lands or tenements, under such judgment, and except 
 the defendant making such confession. (Id. sec. 116.) 
 
 The statute does not require the appearance of the plaintiff 
 Upon a confession of judgment. The want of such appearance, 
 therefore, cannot be taken advantage of after confession, by the 
 defendant. If, however, a judgment is confessed for a sum ex- 
 ceeding fifty dollars, it would be necessary that both parties 
 should personally appear before the Justice, for the purpose of 
 making the affidavit required in such case. (Edw. Tr., 3d 
 ed., 118.) 
 
 A creditor having a demand exceeding fifty dollars, may take 
 from his debtor several confessions, each for a sum less than 
 
 13
 
 194 OF JUDGMENTS, AND 
 
 fifty dollars, to the full amount of his claim, and thus avoid the 
 necessity of making the affidavit required by statute. (7 Cow. 
 310.) 
 
 The confesssion should be for a specific sum. A judgment 
 entered on such a sum as A. B. should award is bad, the con- 
 fession being made before the award is declared ; for a Justice 
 has no power to enter a confession for an uncertain and unli- 
 quidated amount. But a confession for the amount of a note 
 described, so as to be capable of being identified, or for a sum 
 to be ascertained by calculation, would probably be good. (4 
 J. R. 423.) 
 
 The confession should state how the damages confessed 
 arose, so that the Justice may know whether the execution to 
 be issued upon the judgment should contain a clause authori- 
 zing an arrest of the defendant. 
 
 FORM OF CONFESSION OF JUDGMENT. 
 
 Ill Justices' Court, before David Long, Justice. 
 John Doe i 
 against \ Confession of Judgment. 
 
 Richard Roe. ) 
 I hereby confess judgment in this cause, at the suit of the 
 above named plaintiff, for forty-five dollars and fifty cents, the 
 amoimt of wages due the said plaintiff, besides costs of suit ; 
 and consent that the said plaintiff enter judgment against me 
 accordingly. 
 
 Dated at Oxford, county of Chenango, the lOtli day of May, 
 1849. Richard Roe. 
 
 The affidavit of the parlies, which is required only where 
 the judgment is confessed for a sum exceeding fifty dollars, 
 must state that the defendant is honestly and justly indebted to 
 the plaintifl' in the sum named in such affidavit, over and above 
 all just demands which he has against him, and that the con- 
 fession is not made or taken with a view to defraud any credi- 
 toi. Wiilioiit such affidavit, the judgment will be void as 
 against all persons, except the defendant and purchasers in 
 good faith luuler the judgment. (2 R. S. 3^2, sec. 115, 116.) 
 
 As the affidavit must expressly refer to the confession, the
 
 FILING TRANSCRIPTS THERKOF. J 95 
 
 most explicit and convenient mode of making the affidavit will 
 be to subjoin or annex it to the confession. 
 
 FORM OP AFFIDAVIT. 
 
 Town of Oxford^ ss. — We, John Doe and Richard Roe, the 
 parties named in the foregoing (or annexed) confession of judg- 
 ment, being both duly sworn, do severaUy depose and say, that 
 the said Richard Roe is honestly and justly indebted to the said 
 John Doe, in the sum of seventy-five dollars, over and above all 
 just demands which the said Richard Roc has against the said 
 John Doe ; and that said confession of judgment is not made or 
 taken, whith a view to defraud any creditor. 
 
 John Doe. 
 Richard Roe. 
 Subscribed and sworn this 10th 
 day of May, 1849, before me, 
 
 David Long, Justice. 
 
 . If there are more than one plaintiff or defendant, the affidavit 
 should in strictness be made by all of them. 
 
 5. Judgment on a hearing before the Justice^ or on a Verdict. 
 
 After a cause has been submitted to the Justice, he either ren- 
 ders judgment immediately, as he may do, where he is satisfied 
 what judgment to give ; or he may reserve the case for consider- 
 ation. 
 
 In cases where the plaintiff shall be nonsuited, discontinue, 
 or withdraw his action, and where judgment shall be confessed, 
 and, in all cases where a verdict shall be rendered, or the de- 
 fendant shall be in custody at the time of hearing the cause, the 
 Justice shall forthwith render judgment, and enter the same in 
 his docket. (2 R. S. 343, sec. 125.) 
 
 As a general rule, the Justice must render judgment, and enter 
 the same in his docket, within four days after the cause is sub- 
 mitted to him for a final decision. (Id.) A judgment rendered 
 after four days, is erroneous and will be reversed ; (19 Wend,. 
 371,) though such omission on the part of the Justice will form 
 no bar to a second action for the same cause. (5 Hill, CO. 6 
 id. 38.) 
 
 There is no such thing in a Justices' Court, as a judgment by
 
 196 OF JUDGMENTS, AND 
 
 default against the defendant. His absence at the return day 
 of the process, or at the adjourned day, is not construed into a 
 confession of any thing ; but the plaintiff's demand in such case, 
 must be proved in the same manner as though the defendant 
 were present. (10 J. R. 106. Code, sec. 64.) 
 
 Judgment for the defendant, with costs shall be rendered, 
 whenever a trial has been had, and it is found, by verdict, or by 
 the decision of the Justice, that the plaintiff has no cause of ac- 
 tion against the defendant. (2 R. S. 343, sec. 121.) 
 
 If upon the trial of the cause, or upon an ex 'parte hearing, in 
 those cases where it may be had, on the defendant failing to 
 appear, a sum in debt or damages shall be found in favor of the 
 plaintiff, then judgment shall be rendered against the defendant, 
 for such debt or damages and the costs. (2 R. S. 343, sec. 122.) 
 
 When a balance shall be found in favor of a party, either by 
 the verdict of a jury, or upon a hearing before the Justice, ex- 
 ceeding the sum for which the Justice is authorized to give judg- 
 ment, such party may remit and relense the excess, and may 
 take judgment for the residue. (Id. 343, sec. 126.) 
 
 If process shall have issued against two or more persons 
 jointly indebted, and shall have been personally served upon 
 either of the defendants, the defendant who may have been 
 served with process, shall answer to the plaintiff; and the judg- 
 ment in such case, if rendered in favor of the plaintiff, shall be 
 against all the defendants, in the same manner as if all had been 
 served with process. (2 R. S. 343, sec. 123.) 
 
 Such judgment will be conclusive evidence of the liability ot 
 the defendant, who was personally served with process in the 
 suit, or who appeared therein; but against every other defen- 
 dant, it will be evidence only, of the extent of the plaintiff's de- 
 mand after the liability of such defendant, shall have been es- 
 tablished by the evidence. (Id. 343, sec. 124.) 
 
 Whenever a judgment is rendered by a Justice against any 
 party, (unl(;ss wjierc it is otherwise expressly provided,) it must 
 be with costs of tiie suit; but the whole amoiuit of all the items 
 of sucli costs are not, in any case, to exceed five dollars. (Sec, 
 127.) 
 
 The cost.s of a commission to examine foreign witnesses, may 
 be taxed in the judgment, although the same exceed the sum of 
 five dollars. (Laws 1811, p. 112.)
 
 FILING TRANSCRIPTS THEREOF. 197 
 
 6. Transcripts of Judgments. 
 
 Furrnerly, a transcript of a jiidgment rendered by a Justice of 
 the Peace, could only be obtained where the judgment was for 
 above twenty-five dollars, exclusive of costs. Under the provis- 
 ions of the Code, the amount of the judgment is immateiial. No 
 judgment for a less sum than twenty-five dollars, exclusive of 
 costs, however, will be a lien upon real property. 
 
 It is enacted that a Justice of the Peace, on the demand of a 
 party, in whose favor he shall have rendered a judgment, shall 
 give a transcript thereof which may be filed and docketed in the 
 oflice of the clerk of the county where the judgment was ren- 
 dered. The time of the receipt of the transcript by the clerk, 
 must be noted thereon, and entered in the docket ; and from that 
 time the judgment will be a judgment of the county court. A 
 certified transcript of such judgment may be filed and docketed 
 in the clerk's office of any other county, and with the like effect 
 in any respect, as in the county where the judgment was ren- 
 dered ; except that it will be a lien only from the time of filing 
 and docketing the transcript. (Code, sec. 63.) 
 
 It is not necessary to make a literal transcript, or copy of all 
 the proceedings in the cause, as entered in the docket. The 
 following form will be sufficient : 
 
 In Justices' Court, before David Long, Justice. 
 John Doe \ 
 against > Transcript of Judgment. 
 
 Richard Roe. j 
 Judgment rendered May 10th, 1849, for the plaintiff", for the 
 sum of ----- $30 00 
 
 Costs - - - - - 3 00 
 
 $33 00 
 
 I certify that the above is a transcript of a judgment rendered 
 by me, in the above entitled cause. Dated Oxford, May 10th, 
 1849. 
 
 David Long, Justice. 
 
 Whenever a judgment shall be rendered by a Justice of 
 the Peace, on default, and in the absence of the party against 
 whom the same is rendered, it shall be the duty of such Justice, 
 on the demand of any person interested therein, to give to such
 
 198 OF JUDGMENTS, AND 
 
 person a transcript of such judgment, together with a copy of the 
 process, pleadings, and proofs in the cause, when such plead- 
 ings and proofs are reduced to writing, or the substance thereof, 
 when not reduced to writing, or such parts of such process, 
 pleadings and proofs as may be lequired, on his being paid there- 
 for txceiity-five cents for such transcript, and six cents a folio, for 
 the residue thereof. (Laws 1841, p. 114.) 
 
 A transcript may be made after the expiration of the Justice's 
 Jerm of office. (8 Wend. 393 aud 39.5.) It need not show on 
 its face that the Justice had jurisdiction ; for the transcript is 
 prima facie evidence of that fact. (6 id. G66. 9 Cow. 182. 10 
 id. 233.) 
 
 If the Justice refuse to give a transcript, a mandamus will lie 
 against him. (8 Cow. 133.) 
 
 A transcript duly filed, deprives the Justice of any further con- 
 trol over the judgment. (2 Cow. 506.) 
 
 7. Damages. 
 
 Damages are a pecuniary recompense, for an injury. (Sayer 
 on Damages, 1.) At common law, they are recoverable in 
 every personal action. (Id. G.) 
 
 As damages are usually a mere matter of pecuniary compu- 
 tation, there is, in general, but little difficulty in determining 
 their amount ; as the money, with interest ; the value of the 
 thing agreed to be delivered at the time and place of delivery ; 
 the work agreed to be done ; the goods sold ; labor performed ; 
 the injury done to the property ; or the value of the goods taken 
 and converted. 
 
 In estimating damages upon contract, where the contract is 
 to pay so much money absolutely, or on a certain condition, the 
 full sum agreed on by the jiarties, should in general be allowed. 
 This is not to be understood, however, with regard to damages 
 for tli(^ non-porformance of contracts. In such cases, tltc price 
 agreed to be paid on actual performance, is not the measure of 
 damages ; the party ready and willing to perform, can only re- 
 cover daningcs to the extent of the loss or injury sustained by 
 him. \Vli(M-e, however, the non-p;M-formance is attributable to 
 fraud, or to a desire to benefit the failing party, these circum- 
 stances may be laKen into considoralion to enhance the dam- 
 ges. (21 Wend. 4.57.) 
 
 VViic-c parties agree that in default of performance, a certain
 
 FILING TRANSCRIPTS THEREOF. I99 
 
 sum shall be paid by the one who fails to perfoim his contract ; 
 the question sometimes arises whether this is a mere penalty, 
 which, on forfeiture, is to have the effect of a penalty in a com- 
 mon bond ; or is intended as stipulated damages to be allowed 
 in full for the breach of the contract. This will be determined 
 by the real intent of the parties, and the natin-e and terms of the 
 agreement. Thus, should A. agree to buy a horse of B., and 
 pay B. his value, and if A. fail, then to pay B. one hundred dol- 
 lars, which sum is equal to the value of tlie horse, this would be 
 a penalty ; because the sum stipulated is obviously beyond the 
 damages B. could sustain, by the refusal of A. to receive the 
 horse. But had it been five or ten dollars, the inference 
 would have been different. So also, if the parties had gone on 
 to say, in so many words, '• we consent to fix and liquidate the 
 one hundred dollars as the amount of damages to be paid by 
 the failing party ;" this would bind to the payment of the sum, 
 as stipulated damages ; the intent being too plain to admit of mis- 
 construction. (3 John. Cas. 297. 5 Cow. 144. 15 John. 200. 
 13 Wend. .587.) So, if A. agree, in consideration of fifteen dol- 
 lars, to deliver B. twelve bushels of v\^heat, or pay B. twenty- 
 five dollars ; upon A.'s failure, B. may recover the twenty-five 
 dollars. (7 John. 72.) 
 
 In actions for lorongs^ the damages may, in some cases, ex- 
 ceed the mere injury sustained. An exercise of this discretion 
 is often highly salutary and necessary. 
 
 In an action for a trespass, where the conduct of the defen- 
 dant has been wilful, malicious, or cruel, exemplary damages 
 are sometimes given, by way of punishment to the defendant, 
 and a liberal indemnity to the plaintifi'for his time and expense 
 in seeking his remedy, as well as his real damages. (14 Johns. 
 352.) In an action for throwing poisoned barley upon the plain- 
 tiff's premises in order to poison his poultry, it was held that 
 the malicious intent of the defendant miglft be considered, and 
 exemplary damages given. (2 Stark. R. 317.) 
 
 In an action for taking and converting goods, the increased 
 value of the chattel converted, at the time of the demand, at any 
 subsequent time, or even down to the time of the trial, with in- 
 terest from the time of conversion, may be allowed in the dis- 
 cretion of the Justice or jury. (2 Caines' Cas. in Error, 210. 2 
 John. 280. 8 id. 446. 20 AVend. 91.) Indeed, the true rule of 
 damages, is, the highest price intermediate the time of conver-
 
 200 OF JUDGMENTS, AND 
 
 sion and trial. (3 Cow. 62.) But, in general, the measure ot 
 damages in these cases, is the value of the goods at the time 
 and place of conversion ; though it is always proper to allow in- 
 terest, by way of damages upon that value, from the time the 
 goods were taken or wrongfully converted. (14 John. 128. 
 Anth. N. P. 156.) Where, however, the defendant acts in good 
 faith, supposing the goods to be his own ; or seizes goods under 
 an execution, supposing them to be the defendant's in the exe- 
 cution, and in other cases, where he acts under a mistaken or 
 doubtful right, nothing should be allowed beyond the plaintift"'s 
 actual damages. In an action for converting a bill of exchange, 
 the measure of damages is the principal and interest due thereon, 
 at the time of the conversion. (3 Camp. 477.) 
 
 In an action for the non-delivery of goods contracted to be de- 
 livered at a specified time, where the price is paid in advance, 
 the rule of damages is the highest price intermediate the time 
 the goods ought to have been delivered and the trial. (7 Cow. 
 681. Vide 5 Wend. 395.) 
 
 A bailee, or one having a special property in chattels, being 
 answerable to the general owner, unless he takes good care 
 of them, may recover their whole value in damages, against 
 the wrongdoer who takes them away ; and this, though the 
 bailment is merely gratuitous. 
 
 Where property is wrongfully taken, the subsequent sale of 
 it under an execution in favor of the torongdoer, will not save 
 the party from answering in damages, to the full value of the 
 property. If, however, the execution were in favor of a tJiird 
 person against tlie oioncr, that fact might, perhaps, be shown, 
 in mitigation of damages. (21 Wend. 394.) 
 
 If, by the negligence of A. in building his house adjoining 
 that of B., the house of B. is thrown down, A. is liable only for 
 such sum in damages as was the value of the old house, and 
 not the whole expcnSe of building a now one. (Peake's Cas. 15.) 
 
 In an action for encroaching on the plaintiff's wharf, the rule 
 of (laniag<;s is the current value of the wluuf, during the time of 
 the encroachment. (Antli. N. P. 85.) 
 
 The plaintiff can r(!cov<M' no more damages than he claims by 
 Ills romplaint. (1 (Jaim^s, 593.) If the jury find more, he must 
 relin<piisli tlin excess ; and this must be done bi^fore the Justice 
 renders jiid^in'Mil. (7 Wcind. 330. 4 John. 414.) So, where 
 the jury find dam;\ges for the defendant, where he is entitled to
 
 FILING TRANSCRIPTS THEREOF. 201 
 
 none ; the defendant may remit, and the Justice may strike out 
 the damages found, and give judgment for the defendant gen- 
 erally. (4 John. 414.) When a balance is found in favor of a 
 party, either by the verdict of a jury, or upon a hearing before 
 the Justice exceeding the sum for which a Justice is authorized 
 to give judgment, such party may remit and release the excess, 
 and may take judgment for the residue. (2 R. S. 343, sec. 126. 
 5 Hill, 76.) 
 
 If the verdict exceed the amount claimed in the complaint, 
 the plaintiff may remit the excess and take judgment for the sum 
 demanded. (5 Hill, 76.) 
 
 The plaintiff cannot recover any damages except those that 
 arose before the commencement of the suit. Where, however, 
 a duty is incurred pending the suit, incident to, or growing out 
 of, the action for which the suit is brought, and no satisfaction 
 can be had by a new suit, such duty must be included in the 
 judgment to be given in the action already commenced. Thus, 
 in an action on contract, for principal and interest, the latter 
 should be brought down to the time of the judgment, the inter- 
 est being a mere accessary to the principal, for which no sepa- 
 rate action will lie. (3 John. 229.) But when a new action 
 will lie for any duties or demands arising since the action 
 brought, they cannot be included in the first suit. 
 
 When several defendants are charged in the same action, 
 with a joint wrong, and all are found guilty, the damages 
 must be joint. (6 J. R. 199.) In actions for a wrong, however, 
 the Justice or jury may find one defendant guilty of the wrong 
 at one time, and the other at another ; or one of them guilty 
 of part of the wrong, and the other of another ; or some guilty 
 of the whole wrong, and the others guilty of part only ; in which 
 cases, several damages are to be assessed. 
 
 8. Costs. 
 
 The successful party, at the time of recovering his judg- 
 ment, recovers also, as a necessary incident to it, the costs or 
 expenses of suit. If the plaintiff be found indebted to the de- 
 fendant, or the defendant to the plaintiff, judgment is to follow 
 in favor of the prevailing party for the debt, or damages and 
 costs. (2 R. S. 343, sec. 127.) 
 
 The only difficulty which arises in making up the costs is in
 
 202 OF JUDGMENTS, AND 
 
 distingiiisliing between such items as may or may not be inclu- 
 ded in ihc judgment. 
 
 When there is no judgment rendered against either party, 
 but a mere discontinuance of proceedings, eacli party pays his 
 own costs. 
 
 Costs vohmtarily made by the party against whom the judg- 
 ment is rendered, must not be inchided in the judgment. (13 
 J. R. 350 and 460. 14 id. 369. 15 id. 195. 1 Cow. 111.) 
 Thus, when judgment is rendered in favor of the plaintiff, 
 the Justice must not include in the judgment the defendant's 
 costs for subpoenas, swearing his witnesses, adjournments ob- 
 tained on his motion, &c. ; and on the other hand, the Justice 
 must not include, in a judgment in favor of the defendant, the 
 costs of the summons, constables' fees, or other costs which the 
 plaintiff has vohmtarily made in the prosecution of his suit. 
 
 The costs of a venire, however, always abide the event of a 
 suit; and must therefore be always included in the judgment. 
 (18 J. R. 131.) 
 
 If the Justice should, through mistake or otherwise, errone- 
 ously tax items which do not properly belong in the judgment, 
 the judgment cannot for that reason be reversed ; neither will 
 the judgment be reversed, because the total amount of costs ex- 
 ceeds five dollars; the remedy of the party who has paid them 
 being by action against the party who has received them, in 
 which he may recover the amount of the fees improperly al- 
 lowed and paid, with the interest. (2 R. S. 352, sec. Ib8. Jd. 
 193, sec. 230. 19 Wend. 551.) 
 
 Double Costs. 
 
 In some instances, double and treble costs are allowed. Dou- 
 ble costs arc defined to be the amount of the party's costs, and 
 one half in addition ; treble costs are common costs, with three- 
 fourths or seventy-five per cent in addition. (9 Wend. 443.) 
 Double costs arc pormitled by statute. (2 R. S. 512, sec. 25.) 
 1. Inactions against public oliicers appointed under the au- 
 thority of this state, or elected by the people; or against any 
 person specially .-ippninted according to law, to execute the du- 
 ties of siu'h public oliif^cr, for or concerning any act done by 
 such o(iic(!r or person, by \irtue of his office, or for or concern- 
 ing the omission, by such ofliccr or person, to do any act which 
 it was his oiriciul duty to perform.
 
 FILING TRAM SCRIPTS THEREOF. 203 
 
 2. Ill actions against any other person, for doing any act by 
 the commandment of such officers or persons, or in their aid 
 and assistance, touching the duties of such office or appoint- 
 ment. 
 
 3. In actions against any person for taking any distress, ma- 
 king any sale, or doing any other act, by authority of any sta- 
 tute of this state. 
 
 It must be borne in mind that the foregoing sections of the 
 statute are only applicable to a judgment in favor of the defend- 
 ant. 
 
 A party sued as a public officer is entitled to double costs ; 
 and if the fact of his being so sued does not sufficiently appear 
 from the pleadings, the Justice may, before rendering judgment, 
 inquire, in the presence of the parties, and ascertain the defend- 
 ant's right to such costs. (19 Wend. 351, 352.) 
 
 If the party in the process, for acting under which an officer 
 is sued, indemnify the officer, or assume the defence of the suit, 
 he, and not the officer, will be entitled to double costs. (2 De- 
 nio, 183.) 
 
 Where an officer is sued jointly with another, and they plead 
 jointly, the officer is entitled to single costs only, although judg- 
 ment be in favor of both ; but where they sever in their defence, 
 and plead separately, the officer, in case judgment is in his favor, 
 is entitled to his double costs. (2 Cow. 426. 6 J. R. 109.) 
 
 Fees of Officers and of Witnesses and Jurors. 
 
 The following are the fees allowed by statute : — (2 R. S. 
 359.) 
 
 To the Justice. 
 
 For a summons, nine cents ; when judgment shall be ren- 
 dered against the defendant, no more than two summons ; and 
 the service of the two summons shall be included in the costs 
 of such judgment. 
 
 For a warrant, twelve and a half cents. 
 
 For an attachment or execution, nineteen cents. 
 
 For every adjournment, except such as shall be made by the 
 Justice without the motion of either party, nine cents. 
 
 For a subpoena, six cents. 
 
 For administering any oath, six cents. 
 
 For filing every paper required to be filed with him, three
 
 204 OF JUDGMENTS, AND 
 
 cents ; but no fee shall be allowed for filing any written decla- 
 ration, plea, or other written pleading, or lor filing any process 
 issued in any cause. 
 
 For a venire, nineteen cents. 
 
 For swearing a jury, twelve and a half cents. 
 
 For entering a judgment, twenty-five cents. 
 
 For every bond or other written security directed to be taken 
 by any of the provisions of this title, if drafted by the Justice, 
 twenty-five cents. 
 
 For making a return, upon an appeal, one dollar. (Code, 
 sec. 371.) 
 
 For every order for a commission to examine witnesses, at- 
 tending, settling, and certifying interrogatories to be annexed to 
 a commission, fifty cents. (Laws 1841, p. 112.) 
 
 To one or more commissioners for taking and returning testi- 
 mony, in the whole, one dollar. 
 
 For every subpoena or oath, six cents. 
 
 For serving subpoenas, and attendance of witnesses before the 
 commissioners, the same fees as are now allowed by law in Jus- 
 ces' Courts. 
 
 For postage for sending and returning commission, with testi- 
 mony, not to exceed one dollar. 
 
 To Witnesses. 
 From the same county, subpoenaed and attending, twelve and 
 a half cents ; from any other place than the same county, 
 twenty-five cents for every day's actual attendance. 
 
 To Constables. 
 
 For serving a warrant or summons, twelve and a half cents. 
 
 For a copy of every summons, delivered on request, or left at 
 the dwelMng of the defendant, in his absence, nine cents. 
 
 For serving an attachment, fifty cents ; for a copy thereof, 
 and of the inventory of the property seized, left at the last lesi- 
 dcnce of the defendant, fifty cents. 
 
 For serving an execution, five cents for every dollar collected 
 to the amount of fifty dollars, and two and a half cents for ev- 
 ery dollar collected over fifty dollars. 
 
 l-'or every mile, going only more than one mile, when serving 
 a suMiMioMs, warrant, attachment or execution, six cents ; to be 
 corri[)iiU'(l from tin; place of abode of the defendant, or where 
 he shall be found, to the place where liic precept is returnable.
 
 FILING TRANSRIPTS THEREOF. gQS 
 
 For notifying a plaintiff of the service of a warrant, twelve 
 and a half cents ; and for going to the plaintiff's residence, or 
 where such notice was served, six cents for every mile more than 
 one ; summoning a jury, fifty cents. 
 
 To Jurors. 
 
 For attending to serve as such, though not sworn, six cents 
 each ; 
 
 For attending and trying a cause, twelve and a half cents 
 each ; 
 
 To each juror sworn before any officer, in any special pro- 
 ceeding allowed by law, or before any sheriff, upon any writ of 
 inquiry, or to try any claim to personal property, twelve and a 
 half cents. (2 R. S. 735.) 
 
 To a constable or other person, for serving a subposna, twelve 
 and a half cents for each witness served ; but no allowance 
 shall be made in any judgment, for service upon more than four 
 witnesses in any cause. 
 
 The same fees and no others, shall be allowed to sheriffs, for 
 seiTing executions issued upon the judgment of a Justice, as 
 are allowed to constables in like cases. (Id .360, sec. 235.) 
 
 Fees of Justices of the Peace, in Proceedings before them, not 
 provided for in the foregoing Act. (Id. 728, sec. 39.) 
 
 For a warrant for the apprehension of any person charged 
 with any violation of the laws, concerning the internal police 
 of the state, or with being the father of a bastard, nineteen 
 cents. 
 
 Endorsing any such warrant, issued from another county, 
 twelve and a half cents ; 
 
 Summons for any offence relating to the internal police of the 
 state, or in case of any special proceeding to recover the pos- 
 session of land, or otherwise, twenty-five cents ; 
 
 Drawing, signing and depositing with the clerk of the county, 
 a record of conviction, thirty-seven and a half cents ; 
 
 An execution upon any conviction before him, nineteen cents ; 
 
 Drawing, copying and certifying a bond of recognizance, and 
 filing the same with the county clerk, twenty-five cents ; 
 
 Warrant of commitment for any cause, nineteen cents ; 
 
 Every subpoena, six cents;
 
 206 OF JUDGMENTS, AND 
 
 For a precept to summon a jury, thirty seven and a half 
 cents ; 
 
 Swearing any jury, twenty-five cents ; 
 
 Hearing the matter concerning which a jury is summoned, 
 fifty cents ; 
 
 Receiving ond entering their verdict, twelve and a half cents; 
 
 For taking and certifying the acknowledgment of any instru- 
 ment, which is required to he acknowledged, before a Justice, 
 twenty-five cents. 
 
 Ever}^ additional person, twelve and a half cents. 
 
 Every oath, six cents ; 
 
 For a view of premises alleged to be deserted, fifty cents. 
 
 Fees of Constables, for Services in special proceedings in Civil 
 Cases not otherwise provided for. (2 R. S. 738, sec. 56.) 
 
 Serving summons, twelve and a half cents ; 
 
 Serving a warrant, nineteen cents ; 
 
 Mileage for going only, for each mile, six cents ; 
 
 Summoning and swearing appraisers, and taking the ap- 
 praisement, fifty cents ; and twenty-five cents to each of the 
 appraisers ; 
 
 Advertising and selling any property distrained for rent, or 
 doing damage or levying any fine, penalty or sum, pursuant to 
 any warrant, the same fees as are allowed for similar services 
 on executions from Justices' Court ; 
 
 Arresting and committing any person pursuant to process, 
 fifty cents ; and mileage for going only, six cents. 
 
 And for any services not herein provided for, which may be 
 rendered by a constable, the same fees as are allowed by law 
 to sherifls, for similar services, among which arc the following: 
 
 Putting any person entitled, into the possession of premises, 
 and removing the tenant, one dollar and twenty-five cents ; 
 [and the same travelling fees as upon an execution.] 
 
 SuiMinoniiig a, jiny to try the title to any personal property, 
 attending such jury, ^fcc, one dollar and fifty cents. 
 
 Sinumoniug a jury pursuant to any precept or summons o 
 any ofliccr in any special proceeding, one dollar; and for at- 
 tending .su<:h jury when required, fifty cents.
 
 FILING TRANSCRIPTS THEREOF. 207 
 
 An officer is not entitled to fees for travelling to serve process 
 unless the service is actually made. (1 Denio, G58.) 
 
 The following fees and costs are allowed on appeals from 
 Justices' Courts. (Code, sec. 371.) 
 
 To the appellant, on reversal : if upon affidavits, ten dollars ; 
 if upon a return, fifteen dollars. 
 
 To the defendant, on affirmance : if upon affidavit, seven 
 dollars ; if upon a return, seven dollars. 
 
 To a Justice of the Peace, for his return, one dollar. 
 
 If the judgment appealed from, he reversed in part, and af- 
 firmed as to the residue, the amount of costs allowed to either 
 party, shall be such sum as the appellate court may award, not 
 exceeding ten dollars. 
 
 For every day's attendance in holding the Courts of Oyer and 
 Terminer and Sessions in any county, the Justices of the Peace 
 designated for that purpose, pursuant to law, shall receive the 
 sum of two dollars each, and six cents per mile, in going and 
 returning from court ; such compensation to be a county charge, 
 and paid by the county treasurer, on the production of the cer- 
 tificate of the clerk of the court specifyhig the number of days 
 such Justices shall have attended, and the distance they shall 
 have travelled respectively, and but one allowance of travel 
 shall be made for any term of said courts ; and the said Jus- 
 tices for all services in cases of appeals from the decisions of 
 commissioners of highways, shall receive the same rate of com- 
 pensation as above provided, for attending courts. (Laws of 
 1847, ch. 277, sec. 6.) 
 
 If judgment be rendered by any Justice for a greater amount 
 of costs than is allowed by law, or for any item of costs, or 
 fees, improperly, and the same be collected, the person paying 
 the same, may, notwithstanding such judgment, recover of the 
 party who shall have received such costs, or fees the amount 
 thereof, with interest.
 
 CHAPTER XI. 
 
 EXECUTION. 
 
 The subjects of this chapter, are the following: 
 
 1. Definition and nature of Execution, and how and when 
 prepared and issued, 
 
 2. Endorsement on Execution, when and how made. 
 
 3. Renewal of Execution. 
 
 4. Of issunig a further Execution. 
 
 5. When Party may be Arrested on Execution. 
 
 6. Of the Service and Return of an Execution. 
 
 7. Execution where a Transcript of the Judgment is Filed. 
 
 8. Of the Liability of the Constable and his Sureties on 
 Execution. 
 
 Judgment having been rendered, it only remains for the pre- 
 vailing party to put it in force. This is effected by execution ; 
 by means of which the complaining party, if successful, is put 
 in possession of the right withheld, or of competent redress in 
 the shape of damages, for the injury committed ; or, if unsuc- 
 cessful, is compelled to pay his adversary's costs of suit. 
 
 The execution has been termed by some of the older writers, 
 " The fruit and end of the law." In a Justices' Court, it is 
 issued by the Justice before whom judgment was obtained, 
 and directed to any constable within the same county, com- 
 manding him to levy the debt or damages, and costs, of the 
 goods and chattels of the person against whom the same shall 
 be issued, (excepting such goods and chattels as arc by law 
 exempt from execution,) and to bring the money, at a certain 
 time and place therein to be mentioned, before such Justice, to 
 render (o the party who recovered the same. The constable is 
 furthermore recpiircd to moke his return within a given number 
 of days from the date of the execution. 
 
 Every execution must be entirely filled up. having no blank 
 in the dato, or otherwise, at the time of its deHvcry to the con- 
 stable ; it must be. dated when it was actually issued, and be 
 made returnable, in all cases, in sixty days from date. If the
 
 EXECUTION. 
 
 209 
 
 judgment be docketed with the county clerk, it must be issued 
 by him to the sheriff of the county ; and it will then have the 
 same effect, and must be executed in the same manner, as other 
 executions and judgments of the county court, except that 
 where the judgment is for a less sum than twenty-five dollars, 
 it cannot be enforced against real property. (Code, sees. 63, 64. 
 2 R. S. 344, sec. 129.) 
 
 FORM OP AN EXECUTION. 
 
 Toum of Oxford, ss. — 
 To any constable within the county of Chenango, Greeting : 
 
 Whereas, judgment against Richard Roe for the sum of fifteen 
 dollars damages, (or debt,) and three dollars costs, in favor of 
 John Doe, was rendered by and before me, the undernamed 
 Justice of the Peace of Oxford aforesaid, on the first day of 
 May inst., at Oxford aforesaid : You are, therefore, hereby com- 
 manded, in the name of the people of the state of New York, 
 to levy the said damages, (or debt,) and costs, of the goods and 
 chattels of the said Richard Roe, (excepting such goods and 
 chattels as are by law exempt froai execution,) and bring the 
 money in sixty days from the date hereof, before me at my 
 ofiice in Oxford, in said county, to render to the said John Doe, 
 for his damages and costs. And make return in sixty days 
 from the date hereof, according to law. Given under my hand 
 at Oxford, May 2d, 1849. 
 
 David Long, Justice. 
 
 By the Code, execution may be issued on a judgment ren- 
 dered in a Justice's Court, at any time within five years from 
 the rendering of the same. As this clause is without qualifi- 
 cation, it will be seen that execution from Justices' Courts may 
 now, in all cases, issue immediately.* (Code, sec. 64.) 
 
 * Under the Revised Statutes, upon the rendering of a judgment against any 
 person, who was not at tlie time a freeholder of the county where the Justice re- 
 sided, nor an inhabitant of such county having a family, execution might issue 
 immediately ; but the Justice was required to demand proof from the party desiring 
 the execution, on his oath, or otherwise, of the fact entitling him thereto. This 
 proof was required, in all cases, unless it had been previously given, in the progress 
 of the cause, as might have been done at the issuing of process. 
 
 If the judgment was against a freeholder of the county, or an inhabitant of the 
 
 14
 
 210 EXECUTION. 
 
 When a judgment is rendered npon any contract, or upon a 
 prior judgment, a direction should be endorsed upon the execu- 
 
 county having a family, execution might not, as a general rule, be issued until the 
 expiration of t'lirty days, if the amount recovered, exclusive of costs, did not exceed 
 twenty-five dollars, — nor until the expiration of ninety days, if the amount reco- 
 vered, exclusive of costs, exceeded twenty-five dollars. But this rule had these 
 qualifications : — 
 
 1. The execution might sooner issue, by the consent, in writing, of the party 
 against whom the judgment was obtained. This consent might be drawn and 
 signed upon the Justice's docket, under the title of the cause, thus : — " I consent 
 that executiou may be issued upon the judgment in this cause, forthwith," {or as 
 the case might be.) " Dated June 15i.h, 1849. Richard Roe, defendant." 
 
 2. Execution might be issued immediately, if the party obtaining the judgment 
 made it appear, by his own oath or other competent testimony, to the satisfaction 
 of the Justice, that such party would be in danger of losing the debt or damages 
 recovered by him, if the execution were delayed. Application for such executiou 
 might be made either be/ore or at the time of rendering the judgment ; or if rea- 
 sonable notice was given to the adverse party, of the intention to apply for such 
 execution, the application might bo made at any time alter the judgment was 
 rendered. 
 
 The application for an execution, if made before, or at the time of rendering 
 judgment, was general!}' made in the hearing of the opposite party, if present ; 
 though this was not necessary. And where an application was made at the close 
 of the trial, it was unnecessary to make the oath on the spot, whether the defen- 
 dant appeared in the suit or not. It was enough, if the application were made at 
 the proper time ; the oath might be administered afterwards, without further notice. 
 
 The reason of requiring notice, was to afibrd the party an opportunity to stay 
 the execution, by giving security. What should be deemi-d u / / < sonahle notice 
 was left to the discretion of the Justice, under consideration of the circumstances 
 of each case. 
 
 It was held, that notice given by the plaintiff, at the clo.'e of the trial, and be- 
 fore the rendering of judgment, in the hearing of the defendant's attorney, that he 
 would apply for an immediate execution, should judgment pass in his favor, was 
 sufficient to authorize the issuing of the execution on the oath of danger. 
 
 So, a written notice, given to the defendant, the day next after the rendering of 
 the judgment, and three days before the issuing of the execution, of an intention 
 to apply for an execution, was sufficient, although it stated neither time nor place 
 when or where, the application would bo made. 
 
 The statute did not require that the notice should bo in writing. For greater 
 certainty and security, however, a written notice was usually served, and a copy 
 of it, with an affidavit of service filed wilii the Justice. 
 
 rORM OF NOTICE. 
 
 /n JiJHtice'.s Covit, l/ffnir David Long, Justice. 
 John Dor, x 
 
 a^'aitmt / 
 
 RiCIIAUK IJoK. ' 
 
 Sir — Take notice, that I iiiti-nd to ap|>ly to tho above-named Justice, to-morrow,
 
 EXECUTION. 
 
 211 
 
 tion to collect interest from the time judgment was rendered, 
 until paid. 
 
 FORM OF ENDORSEMENT, 
 
 "Collect Damages, . . $20 00 
 " Costs, . . 3 50 
 
 $23 50 
 
 Interest from February 1st, 1849, until paid, and your fees. 
 
 David Long, Justice." 
 
 at two o'clock in the afternoon, at his office, in Oxford, for the immediate issuing 
 of execution upon the judgment iu the above cause. Dated May 1st, 1849. 
 
 John Doe, Plaintiff. 
 To Richard Roe, the above named defendant. 
 
 The person serving the foregoing notice, (and eitiier the party, or any other per- 
 son might serve it,) delivered a copy to the party to be notified, and retained a copy. 
 On the copy retained, an affidavit of service was endorsed thus : 
 
 " Town of Oxford, ss : — John Doe, being duly sworn, says, that on the 1st day 
 of May, 1849, he personally served the within notice, by dehvering a copy thereof 
 to the within named Richard Roe. 
 
 John Doe." 
 Subscribed and sworn this 1st day of May, 1849, before me, 
 David Long, Justice. 
 
 In making the oath of danger, for the immediate issuing of execution, it was not 
 enough for the party or witness, to swear generally to the mere apprehension of 
 danger; he was required to state facts and circumstances, sufficient to satisfy the 
 Justice that he had good grounds for his apprehension. 
 
 The party against whom any judgment might have been recovered, could stay 
 the issuing of execution thereon, until the regular time, by giving a bond to th« 
 party in whose favor judgment was obtained, in such penalty and with such secu- 
 rity, as the Justice might approve, conditioned for the payrr:eut of the money re- 
 covered, and the costs, with interest, at or before the expiration of ninety days from 
 the time of rendering such judgment, if such money exceeded twenty-five dollars, 
 e.KcIusive of costs ; and at the expiration of thirty days, from the rendering of judg- 
 ment, if such money did not exceed twenty-five dollars, exclusive of costs. If 
 such bond were left with the Justice, for the use of the party to whom it was given, 
 at the time of rendering judgment, or before the actual issuing of execution thereon, 
 no execution could be issued on such judgment, until the regular time. 
 
 FORM OF BOND TO STAY EXECUTION. 
 
 Know all men, by these presents, that we, Richard Roo and John Stiles, are 
 held and firmly bound, unto John Doe, in the sura of one hundred dollars ; to be 
 paid to the said John Doe, or to his certain attorney, executors, administrators, or
 
 212 
 
 EXECUTION. 
 
 AYhen a judgment is obtained against joint debtors, upon 
 process which was not served upon all the defendants, execution 
 may be issued in form against all ; but the Justice is required 
 to endorse on the execution the names of such of the defend- 
 ants, who did not appear in the suit, as were not served with 
 process. (2 R. S. 346, sec. 141.) 
 
 The statute requires only an endorsement of the names ; but 
 it would be well to have a more specific form, to prevent the 
 constable from being misled, thus : 
 
 " The within named Richard Roe, was not served with pro- 
 cess, and did not appear in the within named suit." 
 
 Such execution cannot be levied upon the sole property of 
 any such defendant. But it may be collected of the personal 
 property of any such defendant, owned by him as a partner of 
 the other defendants, appearing or served with process, or with 
 any of them. (Id. sec. 142.) 
 
 An action lies against a party who wrongfully and wilfully 
 sues out an execution on a judgment which he knows to have 
 been satisfied, whereby the property of the defendant is taken 
 and sold ; and to support the action it is unnecessary to allege 
 and prove actual mahce. (7 Wend. 301.) 
 
 If an execution be returned in part or wholly unsatisfied, it 
 may, from time to time, be renewed, or a new execution issued 
 to collect the residue. To renew an execution, the Justice must 
 make an endorsement to that effect, signed by him, and dated 
 when made. If part of the same has been satificd, the cndorse- 
 
 assigns ; to whicli payment, well and truly to be made, we bind ourselves, our heirs, 
 executors and administrators, jointly and severa 1 ly by these presents. 
 
 Sealed with our seals, and dated this 1st day of May, 1849. 
 
 Whereas, on this 1st day of May, 1849, a judgment was recovered before David 
 Long, Esquire, one of the Justices of the Peace of the county of Clianango, by the 
 said John Doe, against the above bounden Richard Roe, for fifteen dollars dama- 
 ges, (or debt,) and three dollars costs. Now, therefore, the condition of this obli- 
 gation iH Huch, that if the above bounden Richard Roe shall well and truly pay the 
 said damages (or debt) and costs, ho recovered, with interest, at or before the expi- 
 ration of thirty dayH from the time of tho rendition of the said judgment, then 
 this obligation to bo void, otherwise of force. 
 
 ' Ricii.\Rn Roe, [l. s.] 
 
 John Stiles, [l. b.] 
 Scaled :\w\ delivered in pre.'cncc of, ;ind penally 
 and surety approve! by, 
 
 David Lono, Justice.
 
 EXECUTION. 
 
 213 
 
 ment of renewal must express the amount due. Every such 
 endorsement will be deemed to renew the execution in full 
 force, in all respects, for sixty days. (2 R. S. 347, sec. 145. 
 12 Wend. 14G.) 
 
 It has been held, that to authorize a renewal of the execution 
 a formal written return, that no goods, &c., can be found, is not 
 necessary, but that verbal information of the fact, given to the 
 Justice by the constable, would be sufficient. (12 J. R. 320.) 
 It would, however, be much better for the Justice, before re- 
 newing the execution, to require the constable to endorse a 
 return thereon, in order that he may know judicially whether 
 any thing has, or has not, been collected on the execution ; he 
 would thus always have it in his power to justify the act of 
 renewal, by proper and competent testimony. (6 Wend. 367.) 
 
 FORM OF RENEWAL. 
 
 " The within execution is renewed this 1st day of March, 
 1849, for the full amount. 
 
 David Long, Justice." 
 
 Or, "The within execution is renewed this 1st day of March, 
 1849, to collect the sum of twenty dollars, and interest from 
 January 5th, 1849, which remain due." 
 
 An execution from a Justices' Court may be renewed by the 
 Justice while it remains unsatisfied, even though sufficient pro- 
 perty to satisfy it has been levied on, and is held under the levy, 
 when there is not time enough remaining to advertise and sell. 
 (1 Denio, 574.) 
 
 Any Justice before whom any judgment shall have been 
 entered, and whose term of office shall have expired, may issue 
 or renew executions on any such judgment after the expiration 
 of his said office, at any time within six months from the time 
 said judgment shall have been rendered. If he is re-elected, 
 and duly qualified, he may issue executions on judgments pre- 
 viously rendered by him, at any time within two years from the 
 rendition of the judgments. (2 R. S. 366, sec. 270.) 
 
 Instead of renewing the execution, the Justice may, where it 
 is returned unsatisfied in whole or in part, issue a further exe- 
 cution for the amount remaining due. (2 R. S. 347, sec. 147.) 
 
 Verbal information is insufficient to authorize the issuing of a
 
 214 EXECUTION. 
 
 further execution ; (8 J. R. 337. 6 Wend. 3G7. 3 id. 382. 5 
 Cow. 417 ;) and in one case, where a Justice issued a second 
 execution after the first was satisfied, it was held that he was a 
 trespasser, and that it was no excuse for him that the second 
 execution was issued on the false representation of the plaintiff 
 that the first was lost, (6 Wend. 367.) A Justice should, in 
 no case, issue a further execution until the first is duly returned. 
 
 The further execution may be in form the same as the one 
 first issued, directing the collecting of the full amount of the 
 judgment, and, in case any thing was collected upon the prior 
 execution, the Justice should, by way of endorsement, state the 
 amount remaining due. 
 
 In an action for a ivrong committed by any person, and in 
 all actions which do not arise upon contract, express or implied, 
 and in actions against public officers for monies collected by 
 them in their official capacity, or for neglect of duty, when 
 judgment is obtained against either party, either for damages or 
 costs, the execution must be issued against the body as well as 
 the property of the party against whom such judgment is ob- 
 tained, in the same manner as previous to the Non-Imprison- 
 ment Act, 
 
 The form of an execution against the body of a defendant, 
 is the same as the form already given, with the following 
 addition : 
 
 " xind if no goods or chattels can be found, or not sufficient 
 to satisfy this execution, you are further commanded to take the 
 body of the said Richard Roc, and convey him to the common 
 jail of said county, there to remain until this execution shall be 
 paid and satisfied, or until discharged by law ; and make re- 
 turn in sixty days from the date hereof, according to law." 
 
 If any person taken in execution against his body die while 
 so charged, new executions may be issued against the goods, 
 chattels, lands, and tenements of the deceased, in the same 
 manner as if he had never been charged in execution. (2 R. 
 S. 405, sec. 30.) 
 
 When a recovery is had for any penalty or forfeiture incurred 
 for a violation of the provisions of the statute entitled, " Of 
 exci.se, and tb(! ifgulation of taverns and groceries," or of the 
 act relating to fishciics, the Justice is required to endorse upon 
 t^ie exf;culion, \.\\v, (;aus(! for which th(! judgment was rendered ; 
 and if the defendant is connnilled to jail for want of goods and
 
 EXECUTION. 
 
 215 
 
 chattels to satisfy the execution, lie is to be confined without 
 being allowed the liberties of the jail, for a term not exceeding 
 sixty days. (Id, 346, sec. 143.) 
 
 The execution may be issued in common form. The required 
 endorsement may be more briefly and explicitly made, by a 
 reference to the section of the statute upon which the prosecu- 
 tion was founded. 
 
 Of the Service and Return of an Execution. 
 
 This process must be executed by a constable of the county 
 where the Justice resides. The constable cannot depute a third 
 person to act for him, but must execute it in his own proper per- 
 son. (2 R. S. 368, sec. 285.) 
 
 The Justice, however, whenever he shall deem it expedient, 
 on the request of a party, may, by written authority endorsed on 
 the process, empower any person, being of lawful age, (that is, 
 of the age of twenty-one years.) and not a party in interest in 
 the suit, to execute the same. (Id. 2S3.) The person so em- 
 powered will possess all the authority of a constable, in rela- 
 tion to the execution of the process, and be subject to the same 
 obhgations, but cannot receive any fee or reward for his ser- 
 vices. (Id. 284.) 
 
 FORM OF AUTHORITY TO BE ENDORSED ON THE EXECUTION. 
 
 Chenango County^ ss. — On the request of the within named 
 plaintiff, I adjudge it expedient to empower some proper person 
 to -execute the within process ; and I therefore empower John 
 Smith, being of lawful age, and not a party in interest in the 
 suit, to execute the same. May ist, 1849. 
 
 David Long, Justice. 
 
 Upon the receipt of an execution, the constable must endorse 
 thereon the year, month, day, and hour of the day when he re- 
 ceives the same. (2 R. S. 462, sec. 10.) 
 
 It is the duty of the constable to make, within a reasonable 
 time, search for goods and chattels, as directed by the execu- 
 tion ; but if, after a diligent inquiry, no goods can be found, 
 he is blameless, though there be in fact goods and chattels suf- 
 ficient. (1 Conn. R. 387.) 
 
 Although a constable will be justified in serving an execution
 
 216 EXECUTION. 
 
 regular upon its face, whether the Justice has or has not, in fact, 
 jurisdiction in the particular case, yet he is not bound to do so, 
 and consequently is not, in such case, liable for neglecting to 
 proceed under the execution. (8 Mass. R. 79, 85.) 
 
 The execution must be levied before the return day. A con- 
 stable cannot levy upon or sell any property upon any execu- 
 tion after the time limited for its return, unless such execution 
 shall have been renewed ; nor can he do any act under a re- 
 newed execution, after the expiration of the time or times for 
 which the same may have been renewed. (2 R. S. 349, sec. 
 162.) 
 
 In making a levy, the constable need not remove the pro- 
 perty ; nor is it necessary that an assistant of the officer should 
 be left in possession of the goods. The goods should be brought 
 within view of the constable, and be subject to his control ; and 
 it is proper, if not necessary, that an inventory should be taken. 
 The officer should assert his title to the goods by virtue of the 
 execution, and his acts in the assertion of his right, and the 
 divesting of the possession of the defendant, should be of such 
 a character as would subject him to an action as a trespasser, 
 unless protected by the execution. 
 
 The constable should be careful, on the one hand, not to seize 
 an unreasonable quantity of goods, and on the other to take suf- 
 ficient to raise the money at an ordinary public sale. For if 
 sufficient goods to satisfy an execution be once taken, the debtor 
 is discharged, even if the officer waste the goods or misapply 
 the money. (12 J. R. 207. 7 Cow. 13.) 
 
 The property liable to be taken upon a Justice's execution is 
 sometimes of difficult determination. The following points 
 seem to be settled : — 
 
 The term "goods and chattels" means personal and movable 
 goods, such as may be taken into custody, and not such as are 
 immovable, and partake of the freehold. A leasehold property, 
 or term for years, cannot therefore be sold under a Justice's exe- 
 cution. The constable may seize and sell growing crops of 
 wheat, corn, .-md other grain or roots which are the fruits of an- 
 nual labor — but not grass, trees, (fcc, which are the natural pro- 
 ductions of the soil. (19 J. R. 73. 2 id. 418. 9 id. 108.) 
 Wlicn, however, grass is owned by one who does not also own 
 the land, it is pcrsmud yioiicrty^ and may be sold as such. 
 
 lie may also lake spinning or carding machinery, a bark mil),
 
 EXECUTION. 217 
 
 or any other chattel set up for the coiiveinence of a trade, and 
 not permanently attached to the freehold. So also he may, as a 
 general rule, fake such articles set up in a house for use or orna- 
 ment as arc placed with a view to severance and removal. 
 
 Between landlord and tenant, the claim to have articles con- 
 sidered as personal property is received with the greatest lati- 
 tude. Many articles which would be considered personal chat- 
 tels as between landlord and tenant, would be deemed fixtures 
 as between individuals standing in a different relation to each 
 other. It has been held that a tenant may remove all chimney- 
 pieces and wainscot put up by himself. So of beds fastened to 
 the ceiling, even where they are nailed. So he may remove al^ 
 such things put up him as are necessary for trade, such as brew- 
 ing utensils, furnaces, coppers^ fire engines, cider mills, (fcc, (fcc, 
 which he has erected, and by which he not only enjoys the 
 profit of the estate, but carries on a species of trade. (2 Cow. 
 Tr. 1049.) 
 
 For many purposes, money is included within the term goods 
 and chattels ; and on executions against the property of a de- 
 fendant, the officer may levy upon any current gold or silver 
 coin belonging to such defendant, and pay and return the 
 same as so much money, without a sale. ( R. S. 464, sec. 19.) 
 He may also levy upon and sell any bills or other evidences of 
 debt issued by any monied corporation, or by the government of 
 the United States, and circulated as money. (Id. sec. 20.) 
 
 Where goods or chattels are pledged for the payment of mo- 
 ney, or the performance of an agreement, the right and interest 
 in such goods of the person making the pledge may be sold on 
 execution against him ; and the purchaser will acquire all such 
 right and interest, and be entitled to possession of the goods, on 
 complying with the conditions of the pledge. (Id. sec. 21.) 
 
 The constable cannot break the outer door of a dwelling- 
 house to serve an execution ; but if he find the outer door open, 
 he may break an inner door. He may, however, break open a 
 store, warehouse, barn or other out-house not annexed to, or 
 forming part of a dwelling house, and being uninhabited, or 
 trunks, boxes, <fcc., to serve an execution. So where a man lets 
 his house, reserving an inner room, an officer may break the 
 door of such inner room to serve process. (5 J. R. 352. 4 Hill, 
 487. 5 J. R. .389.) 
 
 The following property, when owned by any person being a
 
 218 EXECUTION. 
 
 householder, shall be exempt from levy and sale under any exe- 
 cution ; and such articles thereof as are movable shall cominue 
 so exempt while the family of such person, or any of them, 
 may be removing from one place of residence to another. (2 
 R. S. 350, sec. 170. 18 J. R. 400.) 
 
 1. All spinning wheels, weaving looms and stoves, put up or 
 kept for use by the family. 
 
 2. The family bible, family pictures and school books, used 
 by or in the family of such person, and books not exceeding in 
 value fifty dollars, which are kept and used as part of the family 
 hbrary. 
 
 3. A seat or pew occupied by such person or his family in any 
 house or place of public worship. 
 
 4. All sheep, to the number of ten, with their fleeces, and the 
 yarn or cloth manufactured from the same; one cow, two swine, 
 and the necessary food for them ; all necessary pork, beef, fish 
 flour and vegetables actually provided for family use, and neces- 
 sary fuel for the use of the family for sixty days. 
 
 3. All necessary wearing apparel, beds, bedsteads and bed- 
 ding, for such person and his family: arms and accoutrements, 
 required by law to be kept by such person ; necessary cooking 
 utensils, one table, six chairs, six knives and forks, six plates, 
 six tea cups and saucers, one sugar dish, one milk pot, one tea- 
 pot and six spoons, one crane and its appendages, one pair of 
 andirons, and a shovel and tongs. 
 
 6. The tools and implements of any mechanic, necessary to 
 the carrying on of his trade ; but the amount thereof shall not 
 exceed twenty-five dollars in value. 
 
 In addition to the articles exempted from sale, under execu- 
 tion by the foregoing, by a subsequent enactment there is ex- 
 empted from such sale necessary household furniture and work- 
 ing tools and team, owned by any person being a householder, 
 or having a family for which he provides, to the value of not 
 exceeding one hurjdred and fifty dollars — provided that such 
 exemption shall not extend to any execution issued on a demand 
 for the jiiirrhase money of such furniture, or tools, or team, or 
 articles now enumerated by law. (Sess. Laws, 1842, p. 193, 
 sec. 1.) 
 
 Goods are not bound by a .Justice's execution mitil a levy is 
 made. (13 J. H.2'19.) An (ixcciUion or allacbnuMit, if actually 
 levied, takes preference over any other execution issued out of
 
 EXECUTION. 219 
 
 any court, whether of record or not, which has not been pre- 
 viously levied. (2 R. S. 463, sec. 17.) 
 
 It sometimes happens that a debtor, in order to avoid the 
 payment of his debts, disposes of all his property, except such 
 as is exempt by law, and then sets his creditors at defiance. 
 When this is done with a fraudulent intent, he is not entitled 
 to the benefit of the statute. (11 Wend. 548. 21 Wend, 68.) 
 
 Another impediment in the way of executions, is that which 
 is created by assignment of the debtor's property in trust, for 
 the benefit of creditors, before the levy of the execution. This 
 results from the principle which is well settled, that a debtor in 
 failing circumstances, may prefer one creditor or class of cred- 
 itors to another ; and that such preference will protect his prop- 
 erty from being levied on, at the suit of a judgment creditor, 
 whose execution is issued subsequently to the assignment. (7 
 Cow. 735. 2 J. Ch. R. 307.) The validity of such an assign- 
 ment is only recognized however, when it is fair and without 
 fraud. If it be of the latter character, it is void, both at law 
 and in equity; and the plaintiff in the execution, may either 
 treat it as such, and levy nowithstanding the assignment, or, as 
 is more usual, may file a bill in equity to remove the fraudulent 
 obstruction. (2 Cow. Tr. 1065, 1066.) 
 
 If the goods levied on are claimed by some one other than 
 the debtor ; or if the constable is doubtful as to the ownership 
 of the property, he is bound, if no indemnity be tendered by the 
 creditor, to call a jury and try the title ; (7 Wend. 236, 238,) and 
 if they find the goods are not the debtor's, the execution may 
 be returned no goods found. The creditor need not tender a 
 bond of indemnity until after the jury has passed upon the ques- 
 tion of property, previous to which, an officer acts at his peril in 
 making a return of no goods found. Even the declaration of 
 the creditor or his attorney, that he would sell, let the jury find 
 as they would, does not dispense with the necessity of calling a 
 jury. (8 Cow, 65.) When a bond of indemnity is tendered, 
 the constable is bound, to proceed, notwithstanding the finding of 
 the jury. 
 
 If the party is willing to give it, the constable may avoid the 
 necessity of calling a jury, by taking a bond of indemnity in the 
 first instance ; if not, the constable should proceed to try the 
 title, in the manner above mentioned. 
 
 The constable cannot pay the plaintiff with his own money,
 
 220 EXECUTION. 
 
 and levy or retain the levy under the execution, even though 
 the defendant agree with him that this may be done for the con- 
 stable's security, where the money is raised on their joint credit. 
 (16 J. R. 443.) 
 
 If, upon seizing the goods, the constable should deliver them 
 to a third person, he ought to take a written acknowledgment, 
 with a promise to re-deliver them. 
 
 FORM OF A RECEIPT OF GOODS LEVIED UPON BY A 
 CONSTABLE. 
 
 In Justices' Court. 
 
 John Doe ^ Execution issued by David Long, a Jus- 
 against > tice of the Peace of the county of Chenango, 
 
 Richard Roe. 5 dated 1st May, 1849, for - $20 00 
 Constable's fees for collecting 2 00 
 
 122 00 
 By virtue of the above execution, William Cooke, a constable 
 of the said county, has levied upon the following goods, viz : 
 1 black walnut bedstead - - - $20 00 
 
 5 chairs worth two dollars each - - 10 00 
 
 1 centre table - - - - 10 00 
 
 1 looking-glass - - - - 9 00 
 
 $49 00 
 Received of the said William Cooke, the goods above men- 
 tioned, which I promise to deliver to him at any time when he 
 shall demand the same ; or in default thereof, to pay him the 
 amount of said execution and the costs of collection. 
 
 Henry Brower. 
 
 The constable, after taking the goods and chattels into his 
 custody, must endorse on the execution the time of seizing 
 the same. If the articles levied on arc numerous, they should 
 be enumerated in an inventory annexed to the execution. 
 
 FORM OI' endorsement BY CONSTABLE, OF A LEVY. 
 
 By virliio of tiie williin cxocution, I have levied on [It ere spe- 
 cify the articles,] the ])inpcrty of the defendant. June 1st, 1849. 
 
 William Cooke, Constable.
 
 EXECUTION. 221 
 
 Or, instead of the foregoing : By virtue of the within execu- 
 tion, I have levied on the goods and chattels of the defendant, 
 mentioned in the annexed inventory. June 1st, 1849. 
 
 William Cooke, Constable. 
 
 FORM OF AN INVENTORY TO BE ANNEXED. 
 
 An inventory of goods and chattels this day levied on, and 
 taken into my custody, by virtue of the annexed execution. 
 1 bedstead, 
 5 chairs, 
 1 looking-glass, &c., (fee. 
 
 June 1st, 1849. 
 William Cooke, Constable. 
 
 After taking the property, the constable must also immediately 
 give public notice by advertisement, signed by himself, and put 
 up at three public places in the city or town where the goods 
 and chattels are taken, of the time and place within such city or 
 town, when and where they will be exposed for sale. The no- 
 tice must describe the goods and chattels taken, and must be 
 put up at least five days before the time appointed for sale. (2 
 R. S. 347, sec. 148.) 
 
 FORM OF constables' NOTICE OF SALE. 
 
 By virtue of an execution, I have seized and taken, one bed- 
 stead, five chairs, one centre table, and one looking-glass, the 
 goods and chattels of Richard Roe, which I shall expose to sale 
 at public vendue, to the highest bidder, on the 10th day of June, 
 instant, at two o'clock in the afternoon, at the Farmers' Hotel, 
 in the village of Oxford. Dated June 1st, 1849. 
 
 William Cooke, Constable. 
 
 At the time and place appointed for the sale, the constable 
 must sell the property at public vendue, to the highest bidder. 
 (Id. sec. 119.) The goods and chattels must be present, and 
 pointed out to the inspection and examination of the bidder ; 
 otherwise, no property in them will pass to the purchaser. (1 
 John. Cas. 284.) A general sale of all the jyersonal property of 
 the defendant, or the residue of his personal property, is a nul- 
 lity ; for, in order to pass the title of the property, it must be 
 pointed out specifically, and sold in separate parcels. (14 J. R.
 
 222 
 
 EXECUTION. 
 
 352. 1 John. Ch. R. 502.) But if part of the property be pre- 
 sent though property which is absent be set up for sale in the 
 same parcel, that which is present will pass, while the title to 
 the absent property remains unchanged. (14 J. R. 222.) 
 
 The constable should levy and sell in due season. If no bid- 
 ders attend, he should postpone the sale, and give notice to the 
 party to attend and bid himself; and if he do not so attend, the 
 constable will be excused in returning that the property remains 
 on hand for want of buyers. The constable might also make 
 such a return if he could not sell the property, hut at a great 
 sacrifice. He must, however, proceed and sell the first oppor- 
 tunity. 
 
 A constable is gnilty of a misdeaieanor, and, on conviction, 
 subject to fine or imprisonment, or both, in the discretion of the 
 court, and forfeiture of his office, if he ask or receive any money 
 or valuable thing from a defendant or any other person, as a 
 consideration, reward or inducement for postponing the sale of 
 any property under any execution, or for omitting or delaying 
 the execution of any duty pertaining to his office. (2 R. S. 362. 
 sees. 240, 242.) 
 
 A constable's sale may be adjourned to a different time and 
 place even after it has commenced. (5 J. R. 345.) If his term 
 of office expires before the expiration of the time for the collec- 
 tion or return of the execution, he may proceed in the same 
 manner as though his term of office had not expired. (7 Wend. 
 220.) 
 
 On a sale at auction, the bargain is not struck until the arti- 
 cle is knocked down, until which, the bid being a mere proposi- 
 tion, may be withdrawn. But when the article is knocked 
 down, if the bidder do not receive it, and pay tiie money, the 
 article may be sold again, and the bidder is liable to pay the 
 constable the loss upon the second sale, or the constable may 
 prosecute the purchaser. (4 Esp. 251.) 
 
 If the article amount to over fifty dollars, in order to comply 
 with the statute of frauds, there should be a note or memoran- 
 dum of sale, earnest, or part delivery. 
 
 The constable's authority over the property ceases on the ex- 
 ecution being returned satisfied, so that he cannot then remedy 
 any defect in the first sale. 
 
 An exccuiion against the person cannot issue, in any instance,
 
 EXECUTION. 223 
 
 until that against the property has been returned in whole or in 
 part satisfied. 
 
 Execution where the Tra7iscrij>t of a Judgment is filed. 
 
 We have seen that a party may demand a transcript of a judg- 
 ment in his favor from the Justice by whom the judgment was 
 rendered, which may be filed and docketed in the clerk's office 
 of the same county, the time of its receipt being entered thereon, 
 and entered in the docket; and from that time the judgment 
 will have the same effect as a lien, and be enforced in the same 
 manner as a judgment of a county court. (Code, sec. 63.) 
 
 If the judgment be docketed with the county clerk, the execu- 
 tion must be issued by him to the sheriff of the county. It will 
 then have the same effect, and must be executed in the same 
 manner as other executions and judgments of the county court, 
 except that if the judgment be for a less sum than twenty-five 
 dollars, exclusive of costs, it cannot be enforced against real pro- 
 perty. (Id. sec. 64.) 
 
 The execution should intelligibly refer to the judgment, sta- 
 ting the court, the names of the parties, the amourU of the judg- 
 ment if it be for money, and the amount actually due thereon, 
 and the time of docketing in the county to which the execution 
 is issued, and require the sheriff to satisfy the judgment out of 
 the personal property of the defendant ; or, if sufficient cannot 
 be found, then out of the real property in such county belonging 
 to him, on the day when the judgment was docketed in the 
 county, or at any thereafter ; if against the person of the debtor, 
 it should require the sheriff to arrest the debtor, and commit hini 
 to the jail of the county until he pay the judgment, or be dis- 
 charged according to law. 
 
 FORM OP EXECUTION AGAINST PROPERTY. 
 
 The people of the State of New York to the sheriff of Chenango 
 county, greeting : — 
 Whereas, judgment was rendered on the 10th day of June, 
 one thousand eight hundred and forty nine, in an action before 
 David Long, Esquire, a Justice of the Peace of the county of 
 Chenango, between John Doe, plaintiff, an Richard Roe, de- 
 fendant, in favor of the said John Doe, for the sum of twenty- 
 one dollars and fifty cents, a transcript whereof, given by the
 
 224 EXECUTION. 
 
 said Justice for that purpose, was filed, and the said judgment 
 was docketed in the clerk's office of the said county of Che- 
 nango, on the fifteenth day of June, eighteen hundred and forty- 
 nine, on which judgment the said sum of twenty-one dollars and 
 fifty cents, together with interest thereon, from the said 10th day 
 of June, eighteen hundred and forty-nine, is now due. 
 
 Therefore, we command you, that you satisfy the said judg- 
 ment out of the personal property of the said judgment debtor, 
 within your county, belonging to him, on the said fifteenth day 
 of June, eighteen hundred and forty-nine, or at any time there- 
 after in whose hands soever the same may be ; and that you 
 return this execution, within sixty days after its receipt by you, 
 to the undernamed, clerk of the said county of Chenango. Da- 
 ted June 15th, 1849. 
 
 John Doyle, County Clerk of Chenango County. 
 
 If execution be against the person of the defendant, after sta- 
 ting that judgment was rendered, and a transcript filed, as in the 
 preceding, add : — 
 
 " Therefore, we commend you to arrest the said Richard Roe, 
 if he shall he found in your county, and commit him to the jail 
 thereof until he shall pay the said judgment, or be discharged 
 according to law ; and that you return this execution within 
 sixty days after its receipt by you, to the undernamed, clerk of 
 the said county of Chenango." 
 
 After the lapse of five years from the entry of judgment, an 
 execution can be issued only by leave of the court on motion, 
 wilh notice to the adverse party. Such leave cannot be given 
 unless it is established by the oath of the party^ or other proofs 
 that the judgment, or some part thereof, remains unsatisfied and 
 due. (Code, sec. 284.) 
 
 When the judgment shall have been rendered in a Court of 
 Justice of the Peace, or in a Justices' or other inferior court in a 
 city, and docketed in the office of the clerk of the county, the 
 application for leave to issue execution must be to the county 
 court of the county where the judgment was rendered, or in the 
 city and county of Now York, to the Court of Common Pleas of 
 thai fity and county. (Id.) 
 
 Of the Liability of the Constable^ and his Sn7'ctics on Exe- 
 cution. 
 Every person chosen or appointed to the oflice of constable,
 
 EXECUTION. 
 
 225 
 
 before he enters on ihe duties of his office, and within eight days 
 after he is notified of his election or appointment, is required to 
 execute, in the presence of the supervisor or the town clerk, 
 with one or more sureties, to be approved by such supervisor or 
 town clerk, an instrument in Avriting, by which such constable 
 and his sureties jointly and severally agree to pay to each and 
 every person who may be entitled thereto, all such sums of mo- 
 ney as the said constable may become liable to pay, on account 
 of any execution which may be delivered to him for collection. 
 The supervisor or town clerk is to endorse on such instrument 
 his approbation of the sureties therein named, and file it in the 
 town clerk's ofHce ; and a copy of the instrument, certified by 
 the town clerk, is presumptive evidence, in all courts, of the ex- 
 ecution thereof. (1 R. S. 396, sees. 38, 39.) 
 
 FORM OP INSTRUMENT TO BE EXECUTED BY A CONSTABLE 
 AND HIS SURETIES. 
 
 William Cooke, chosen (or appointed) constable of the town 
 of Norwich, county of Chenango, and John Brown and James 
 Wilson, as sureties, do hereby jointly and severally agree to pay 
 to each and every person who may be entitled thereto, all such 
 sums of money as the said constable may become liable to pay, 
 on account of any execution which shall be delivered to him 
 
 for collection. Dated the day of , 1849. 
 
 William Cooke, [l. s.] 
 John Brown, [l. s.J 
 James Wilson, [l. s.] 
 Executed in the presence of, and 
 the sureties approved by 
 
 William Hawkins, Supervisor of Norwich ; ox 
 Benjamin Sprague, Toion Clerk of Nonvich. 
 
 The constable or his sureties cannot object that the instru- 
 ment is not under seal ; nor in the foi'ni prescribed by the sta- 
 tute ; nor that the sureties were not approved by the clerk or 
 supervisor. (12 Wend. 306.) 
 
 The omission to file the instrument within the eight days 
 prescribed by statute, does not affect its validity ; the statute 
 being merely directory. (2 Wend. 615.) 
 
 If ail execution is delivered to a constable, he cannot avoid 
 
 15
 
 226 EXECUTION. 
 
 any liability which may subsequently accrue upon it, by deliver- 
 ing it over to another officer. (I Serg. 148.) 
 
 If a constable neglect to return an execution, within five days 
 after the return day thereof, the party in whose favor the same 
 was issued, may maintain an action against such constable, and 
 recover therein the amount of the execution, with interest, from 
 the time of the rendition of the judgment upon which the same 
 was issued. (2 R. S. 348, sec. 160.) 
 
 If moneys are collected by a constable, upon an execution, and 
 not paid over by him according to law, an action may be maintain- 
 ed by the party entitled to such money, in his own name, upon the 
 instrument of security given by such constable and his sureties^ 
 and in such suit, the amount so collected, with interest from the 
 time of collection, be recovered. (2 R. S. 349, sec. 164.) 
 
 Actions upon the constable's instrument of security, against 
 him or his sureties, must be prosecuted within two years after 
 the expiration of the year for which the constable was elected. 
 (Id. 396, sec. 40.) This, however, is only where the suit is iipori 
 the instniment. The constable will, at all times, be liable in 
 an action brought by the party on whose execution he has col- 
 lected money, if the suit is brought before the claim becomes 
 barred by the statute of limitations. 
 
 The responsibility of the sureties is coextensive with that of 
 the constable ; and they are liable, wherever he is liable to a 
 party in whose favor an execution has been delivered to him. 
 An action, therefore, lies upon the constable's instrument of 
 security, against the constable and his sureties, for the 7nere 
 neglect to return an execution within five days after the return 
 day thereof, and this, without showing any moneys collected. 
 (10 Wen. 370.) 
 
 The responsibility of the constable and his sureties is suffi- 
 ciently broad to cover all the constable's lial)ilitics to parties who 
 may be allected by his misconduct in relation to executions. If 
 he return to an execution no goods found, when the defendant 
 has properly in his open and visible possession, he is liable to 
 an action. And an action for falsely returning no goods found, 
 may be maintained, even after the defendant is taken and im- 
 j)risoned on excrution in the same cause. (I Camp. 323.) 
 
 If the constable snllcr an escape from execution, he is liable Iq 
 an action, to be conuneiiced within one year from the time of 
 the escape. (2 11. «. 394, sec. 21.)
 
 EXECUTION. 
 
 227 
 
 A voluntary return, or recaption of the prisoner, where the 
 escape was not voluntary, constitutes a good defence, if such 
 return or recaption were before suit commenced. (2 R. S. 533, 
 sec. 82.) 
 
 If the plaintiff consent that the defendant be discharged, or 
 that he go out of the custody of the constable, or off the jail 
 hmits, the judgment is thereby discharged, and the debt extin- 
 guished, unless the consent is obtained fraudulently. If, howe- 
 ver, the debtor has once escaped, the plaintiff's subsequent con- 
 sent, that he may remain at large, will not discharge the judg- 
 ment, nor protect the officer from an action for the escape. (13 
 J. R. 181.) 
 
 A constable, instead of arresting the defendant or taking his 
 goods, may take the defendant's note, or other security, for the 
 debt ; and, though he have no previous authority to do this, 
 if the plaintiff subsequently approves of it, the note is valid. 
 (4 Camp. 46.)
 
 CHAPTER XII. 
 
 OP THE REMOVAL OF CAUSES TO THE COUNTY COURT, BY 
 
 APPEAL. 
 
 This chapter comprises the following subjects : — 
 
 1. Theo iirt to which an Appeal must be taken. 
 
 2. "When and how the Appeal must be made. 
 
 3. Steps by the Appellant, to stay Execution. 
 
 4. Of the Justice's Return. 
 
 5. Proceedings and Costs in Appellate Court. 
 
 The mode of reviewing judgments, rendered by Coiirts^of 
 Justices of the Peace, is by appeal to the county court of the 
 county where the judgment was rendered. (Code, sec, 352 ) 
 
 The party appealing is known as the appellant, and the ad- 
 verse party as the respondent. But the title of the cause should 
 not be changed, nor the names of the parties reversed, as for- 
 merly. (Id. sec. 326.) 
 
 Within twenty days after the judgment, an affidavit, as the 
 foundation of the appeal, must be made by, or on behalf of, the 
 appellant, stating the substance of the testimony and proceed- 
 ings before the court below, and the grounds of the appeal. 
 The affidavit may be made by the party bringing the appeal, 
 his attorney, or by any other person who is acquainted with the 
 facts of the case. (Id. sec. 353. ) 
 
 FORM OF AFFIDAVIT. 
 
 Chenanffo County, ss : — Richard Roe being duly sworn, says, 
 that on the first day of June, eighteen hundred and forty-nine, 
 a suit was commenced, by summons, against this deponent, by 
 John Doc, before David Long, Esquiie, a Justice of the Peace of 
 the viihige of Oxford, county aforesaid, returnable on the ninth 
 day of June, tin n instant, at his office, at ten o'clock in the 
 forenoon ; that, on tli;it day, the parlies appeared, and joined is- 
 sue as follows: — \li.(r(i statu the siihstance of the ])leadinffs] ; 
 that the cause was lh<Mi adjourned to the fifiecnth day of June, 
 then instant, at the same j)la(:e, at two o'clock, i>. m., at which
 
 REMOVAL OF CAUSES TO THE COUNTY COURT, &c. 229 
 
 time and place, the parties again appeared, and proceeded to 
 trial. 
 
 Deponent further says, that on the said trial, the said plaintiff 
 called Peter Pray as a witness, who was duly sworn, and testi- 
 fied as follows : — \Jiere state the testimony given on the trials 
 a7id the objections taken by the respective parties.] 
 
 Deponent further says, that after the evidence was closed, this 
 deponent moved the court that the plaintiff be nonsuited, on the 
 ground, — [here state the grounds'] ; but the Justice denied the 
 motion, and decided, — [here state the decision, the amount of the 
 judgment, and the time when rendered.] 
 
 Deponent assigns the following grounds as error, upon which 
 his appeal is founded, viz. : 
 
 1. That the Justice erred in excluding the evidence offered 
 by this deponent. [Here state the offer and ruli^ig.] 
 
 2. That the Justice erred in admitting the evidence of A. B., 
 which was objected to. 
 
 3. That the Justice erred in refusing to nonsuit the plaintiff. 
 
 Richard Roe. 
 Subscribed and sworn, this 25th day of 
 June, 1849, before me, 
 
 David Long, Justice. 
 
 A copy of the foregoing affidavit, and a notice of appeal, 
 must within twenty days after the rendering of the judgment, 
 be served on the Justice, and on the opposite party. The service 
 on the party, if he is a resident of the city or county, may either 
 be personal, or by leaving the copy affidavit and notice at his 
 residence, with some person of suitable age and discretion ; if 
 he is not a resident, the service may be on the attorney or agent, 
 if any, who is a resident of such city or county, who appeared 
 for him on the trial. (Code, sec. 354.) 
 
 FORM OP NOTICE. 
 
 In Justices'' Court, before David Long, Justice. 
 John Doe ) 
 against V 
 
 Richard Roe. j 
 
 Sir : — Please take notice, that Richard Roe, defendant in 
 this cause, appeals from the judgment rendered against him by
 
 230 OF THE REMOVAL OF CAUSES TO 
 
 the aforesaid Justice, on the fifteenth day of June last, which 
 judgment is mentioned and referred to in the affidavit, a copy 
 of which is hereunto annexed, and herewith served on you — to 
 the county court of the county of Clienango, and tliat the said 
 appeal will he heard by the Hon. Alfred B. Ketcham, county 
 Judge, at his office in the village of Norwich, on the first day 
 of July next, at ten o'clock in the forenoon. Dated Oxford, 
 June 25th, 1849. Yours, &c., 
 
 John Myers, Defendant's Attorney. 
 To John Doe, Esquire. 
 
 If the party appealing, wishes to prevent the issuing of exe- 
 cution on the judgment rendered by the Justice, he must give 
 security. The security for the purpose of staying execution, 
 must be a written undertaking, executed by one or more suffi- 
 cient sureties approved by the county Judge, or by the Justice 
 who rendered the judgment, to the effect that if judgment be 
 rendered against the appellant, and execution thereon be re- 
 turned unsatisfied in whole or in part, the sureties will pay the 
 amount unsatisfied. (Code, sec. 35G.) 
 
 FORM OF AN UNDERTAKING TO PROCURE A STAY OF PRO- 
 CEEDINGS ON A justice's judgment. 
 
 In Justices' Court, before David Long, Justice. 
 John Doe ^ 
 
 against > Undertaking on Appeal. 
 
 Richard Roe. j 
 
 The defendant Riehard Roe, having appealed from the judg- 
 ment rendered against him— [here describe the judgme?it] — in 
 this action : Now, therefore, in order to slay the execution of 
 the said judgment, and in consideration thereof, we, Richard 
 Roe and Henry Jones, undertake and promise to and with the 
 .said John Doe, that if judgment be rendered against the said 
 Ricburd Roe on the said appeal, and execution thereon be re- 
 turned unsatisfied in wliolc or in part, we will pay the amount 
 unsatisfied. 
 
 As witness our hands and seals this 24lh day of Juno, 1849. 
 
 Richard Roe, [l. s.] 
 Henry .Iones, [l. s.J 
 
 The foregoing must be approved by the county Judge, or by
 
 THE COUNTY COURT, BY APPEAL. 231 
 
 the Justice who rendered the judgment. (Code, sec. 356.) The 
 approval may be by an endorsement on the undertaking, thus : 
 
 " I approve of the within undertaking, and the surety therein 
 named. 
 
 David Long, Justice." 
 
 The officer to whom the undertaking is presented, should 
 satisfy himself that the sureties are sufficient, and that no 
 other officer to whom the same may legally be presented for 
 approval, has refused to approve the same. 
 
 The delivery of the undertaking to the Justice, will stay the 
 issuing of execution. Or, if the execution has already been 
 issued, the service of a copy of the undertaking, certified by the 
 Justice, upon the officer holding the execution, will stay further 
 proceedings thereon. (Id. sec. 357.) 
 
 When by reason of the death of a Justice of the Peace, or 
 his removal from the county, or any other cause, the underta- 
 king on the appeal cannot be delivered to him, it must be filed 
 with the clerk of the appellate court, and notice thereof given 
 to the opposite party, or his attorney or agent. (Id. sec. 358.) 
 
 When the affidavit and notice of appeal have been served, 
 the respondent may supply or correct material omissions or mis- 
 statements therein, by an affidavit on his part, a copy of which 
 must be served on the Justice, and also the attorney, if any, 
 who prosecutes the appeal, or if there be none, on the appellant, 
 within ten days after receiving notice of the appeal. (Code, 
 sec. 359.) 
 
 The Justice who rendered the judgment appealed from, must 
 thereupon, after ten days, and within thirty days after service of 
 the notice of appeal, make a return to the appellate court of the 
 testimony, proceedings, and judgment, and file the same with 
 the affidavits in the appellate court. If the Justice refuse to 
 make a return, he may be compelled to do so by attachment. 
 No Justice, however, will be bound to make a return, unless the 
 sum of one dollar be paid him, on service of the notice of appeal. 
 (Id. 360, 371.) 
 
 When a Justice of the Peace by whom a judgment appealed 
 from was rendered, shall have gone out of office before a return 
 is ordered, he must nevertheless make a return in the same 
 manner and with the like effect, as if he were still in office, 
 (Id. sec. 361.)
 
 232 OF THE REMOVAL OF CAUSES TO 
 
 If the return be defective, the appellate court may direct a 
 further or amended return, as often as may be necessary, and 
 may compel a compliance with its order by attachment. (Id. 
 sec. 362.) 
 
 If a Justice of the Peace whose judgment is appealed from, 
 die, become insane, or remove from the state, the appellate 
 court may examine witnesses on oath, to the facts and circum- 
 stances of the trial or judgment, and determine the appeal, as 
 if the facts had been returned by the Justice. If he shall have 
 removed to another county within the state, the appellate court 
 may compel him to make the return, as if he were still within 
 the comity where the judgment was rendered. (Id. sec. 363.) 
 
 FORM OF justice's RETURN. 
 
 Justices^ Court, before David Long, Justice. 
 John Doe ^ 
 
 agaijist > Return on Appeal. 
 
 Richard Roe. ) 
 
 To the County Court of the County of Chenango : 
 Upon the affidavits which are hereunto annexed, I, the un- 
 dernamed Justice, do return, that on the first day of June, 
 eighteen hundred and forty-nine, I issued a summons, in behalf 
 of John Doe, against Richard Roe, summoning the said Roe to 
 appear before mc at my office, in the village of Oxford, on the 
 9th day of June then instant, at ten o'clock in the forenoon, to 
 answer to the said John Doe, in an action on a promissory note. 
 1'he summons was returned, personally served, on the third day 
 of June, by William Cooke, constable, with his return endorsed 
 thereon ; and at the time and place last mentioned, the parties 
 appeared and joined issue in said suit. The plaintiff thereupon 
 complained upon a promissory note, dated February 1st, 1849, 
 purporting to have been drawn by the defendant, and payable 
 to the plainlill, for the sum of fifty dollars, on demand ; to 
 which the defendant answered substantially as follows : [here 
 set out the atisver.] 
 
 Issue being thus joined, the cause was adjourned, by the de- 
 fendant, to the 15th day of June instant, at the same place, at 
 two o'clock in the afternoon. 
 
 At the time and place last aforesaid, the said parties again 
 appeared ; and on the trial of the said cause, the following tes-
 
 THE COUNTY COURT, BY APPEAL. 233 
 
 timony and proceedings were had, to wit : Ira Smith, being 
 sworn as a witness on the part of the plaintiff, testified as fol- 
 lows : [set out the substance of his tesiimotii/.] 
 
 John Brown, another witness for plaintiff, testified as fol- 
 lows : — 
 
 The plaintiff here rested. Thereupon the defendant called 
 James Hardy as a witness in his behalf, who, being sworn, tes- 
 tified substantially as follows : &.c. 
 
 And after hearing the proofs and allegations of the parties, I, 
 the said Justice, then and there rendered judgment in favor of 
 the said plaintiff, for the said sum of fifty dollars, together with 
 two dollars and fifty cents costs. 
 
 All which I respectfully return to the said court, as by law 
 required. Dated July 15th, 1849. 
 
 David Long, Justice. 
 
 When a return is made, the appeal may be brought to a hear- 
 ing at a general term of the Appellate Court, upon a notice by 
 either party of not less than eight days. It must be placed upon 
 the calendar and continue thereon, without further notice, until 
 finally disposed of; but if neither party bring it to a hearing 
 before the end of the second term, the court must dismiss the 
 appeal, unless it continue the same by special order, for cause 
 shown. (Code, sec. 364.) 
 
 The appeal must be heard on the original papers ; and no 
 copy thereof need be furnished for the use of the court. (Id. 
 sec. 365.) 
 
 Upon the hearing of the appeal, the Appellate Court must 
 give judgment according to the justice of the case, without re- 
 gard to technical errors or defects which do not affect the merits. 
 In giving judgment, the court may affirm or reverse the judg- 
 ment of the court below, in whole or in part, and as to any or 
 all the parties, and for errors of law or fact. (Id. sec. 366.) 
 
 To every judgment upon an appeal, there must be annexed the 
 affidavits or return on which it was heard, which must be filed 
 with the clerk of the court, and constitute the judgment roll. 
 (Id. sec. 367.) 
 
 If judgment be affirmed, costs must be awarded to the re- 
 spondent. If it be reversed, costs must be awarded to the ap- 
 pellant. If it be affirmed in part, the costs, or such part as to
 
 234 OF THE REMOVAL OF CAUSES, &c. 
 
 the court shall seem just, may be awarded to either party. (Id. 
 sec. 36S.) 
 
 If the judgment below, or any part thereof, be collected, and 
 the judgment be afterwards reversed, the Appellate Court must 
 order the amount collected to be restored, with interest from the 
 time of collection. The order may be obtained, upon proof of 
 the facts made, at or after the hearing, upon a previous notice 
 of six days. (Id. sec. 349.) 
 
 If, upon an appeal, a recovery be had by one party, and costs 
 be awarded to the other, the Appellate Court must set off the 
 one against the other, and render judgment for the balance. 
 (Id. sec. 370.) 1 
 
 The following fees and costs, and no other, except fees of offi- 
 cers, can be allowed on appeals : — 
 
 To the appellant on reversal, fifteen dollars. 
 
 To the respondent on affirmance, twelve dollars. 
 
 To a Justice of the Peace, for his return, one dollar. 
 
 If the judgment appealed from be reversed in part, and 
 affirmed as to the residue, the amount of costs allowed to either 
 party must be such sum as the Appellate Court may award, not 
 exceeding ten dollars. 
 
 If the appeal be dismissed for want of prosecution, no costs 
 can be allowed to cither party. (Code, sec. 371.)
 
 CHAPTER XIII. 
 
 MISCELLANEOUS PROVISIONS AND PROCEEDINGS. 
 
 I shall treat the subjects of this chapter under the following 
 heads : — 
 
 1. Power of Courts in Cases of Contempts. 
 
 2. When Justices of the Peace may Punish, as for a Con- 
 
 tem,pt. 
 
 3. The Punishment for Contempt, and when and how en- 
 
 forced. 
 
 4. Proceedings against Witnesses or Jurors, for no?i-attend- 
 
 ance or refusal to serve. 
 
 5. Surety for the Peace. 
 
 6. Of Weights and Measures. 
 
 7. Computation of Time. 
 
 8. Of the Justices'' Docket. 
 
 9. Of the Abatement of Suits by Death. 
 
 1. Poiver of Courts in Cases of Contem^pts. 
 
 All courts have power, while in the exercise of their lawful 
 functions, to preserve order, decency, and silence. (1 Chitt. Or. 
 Law, 88, 89.) This power was held to be incident to every 
 court at common law ; and the Supreme Court of this state has 
 decided that the power of a magistrate to commit for insults or 
 contempts offered to him while in the due exercise of his office, 
 is incidental to magisterial authority, without which he could 
 never vindicate or support the laws which are intrusted to his 
 management, and over which he has jurisdiction. 
 
 2. When Justices of the Peace 7nay Punish as for a Con- 
 tempt. 
 
 In the following cases, and in no others, a Justice may pun- 
 ish as for a criminal contempt, persons guilty of :— 
 
 1. Disorderly, contemptuous, or insolent behavior towards
 
 236 MISCELLANEOUS PROVISIONS 
 
 such Justice while engaged in the trial of a cause, or in the ren- 
 dering of any judgment, or in any judicial proceeding, which 
 shall tend to interrupt such proceedings, or to impair the respect 
 due to his authority. 
 
 2. Any breach of the peace, noise, or other disturbance, tend- 
 ing to interrupt tiie official proceedings of a Justice. 
 
 3. Resistance wilfully offered by any person, iti the presence 
 of a Justice, to the execution of any lawful order or process, 
 made, or issued by him. (2 R. S. 368, sec. 286.) 
 
 It will be seen, by reference to the statute, that a Justice is 
 empowered to punish for contempt in those cases only where 
 the contempt is committed while he is engaged in his official 
 duties, or where wilful resistance is made, in his presence, to his 
 lawful order or process. 
 
 3. The Punishment for Contempt, and when andhoiu enforced. 
 
 A Justice may punish for contempt, by fine not exceeding 
 twenty-five dollars; or by imprisonment, in the county jail, not 
 exceeding five days; or both, in his discretion. But the impri- 
 sonment for the non-payment of a fine, cannot exceed ten days. 
 (2 R. S. 368, sec. 287.) No person can be punished for a con- 
 tempt, until an opportunity shall have been given him to be 
 heard in his defence. In most instances, the offence will be 
 committed in the immediate presence of the Justice ; and under 
 such circumstances, that the offender may be required, by the 
 Justice, to make his defence, forthwith ; but if he withdraw, be- 
 fore such requirement is made, he must be brought before the 
 Justice by warrant. (2 R. S. 369, sec. 288.) 
 
 The acts constituting a contempt, will, of course, vary with 
 the circumstances of each case. I can, therefore, only give the 
 forms for a supposed case. I have selected one which will, pro- 
 bably, be of most frequent occurrence — thatof insolent language, 
 addressed to the Justice on the trial. 
 
 FORM OF A WARRANT. 
 
 Town of Oxford, ss : 
 
 To any Constable of the County of Chenango, Greeting : 
 You are hereby commanded, in the name of the people of the 
 State of New York, to apprehend Peter Brown, and bring him 
 before me, the undcriifuned Justice of the Peace, at my office,
 
 AND PROCEEDINGS. 237 
 
 in Oxford, to be heard in his defence, against his conviction for 
 a supposed criminal contempt, commiited by iiim, on tlie 10th 
 day of June, instant, at Oxford aforesaid, in speaking to, and 
 of, and concerning me, the said Justice, and in my presence and 
 hearing, while I was engaged in the trial of a certain cause, 
 wherein John Doe was plaintiff, and the said John Smith de- 
 fendant, and in open court, there disorderly, contemptuous, and 
 insolent words, tending to interrupt the proceedings on said trial, 
 and to impair the respect due to my authority, as a Justice of 
 the Peace, that is to say, "You are a partial Justice." And 
 make due return hereof Given under my hand June lllh, 
 1849. 
 
 David Long, Justice, 
 
 When the offender is brought before the Justice on the war- 
 rant, or, where the Justice proceeds forthwith, while the offen- 
 der remains before him, his defence is to be heard, if any shall 
 be offered. If no sufficient defence is made, the Justice must 
 make up and sign a record of conviction, stating therein the 
 particular circumstances of the offence, and the judgment ren- 
 dered thereon. (2 R. S. 369, sec. 289.) 
 
 The following form is adapted to the case of a proceeding 
 forthwith, upon the commission of the offence, which will most 
 commonly be done : 
 
 FORM OF RECORD OF CONVICTION. 
 
 Tow7i of Oxford, ss : 
 
 Be it remembered, that John Smith is convicted before mo, the 
 undermentioned Justice of the Peace of Oxford, aforesaid, on 
 this 10th day of June, eighteen hundred and forty-nine, at Ox- 
 ford, aforesaid, as for a criminal contempt; and the particular 
 circumstances of said offence, the proceedings before me had in 
 relation thereto, and the judgment by me rendered therein, are 
 as follov/s — that is to say : On the day and year aforesaid, and 
 at the place aforesaid, a court was held before me, for the trial 
 of an issue joined in a certain action, on a promissory note, be- 
 tween John Doe, plaintiff, and the said John Smith, defendant, 
 pursuant to the statute in such case made and provided ; and 
 while I was engaged in said court, in the trial of said cause, 
 and in the lawful exercise of my powers and duties, as a Jus- 
 tice of the Peace, the said John Smith spoke the following dis-
 
 238 MISCELLANEOUS PROVISIONS 
 
 orderly, contemptuous, insolent words, tending to interrupt the 
 proceedings on said trial, and to impair the respect due to my 
 authority, to, and of, and concerniug me, the said Justice, and in 
 my presence and hearing, and in the presence of other citizens,, 
 then and there present, — that is to say : " You are a partial Jus- 
 lice." Upon the speaking of which words, I required the said 
 John Smith, forthwith to make his defence against his convic- 
 tion for a criminal contempt ; but the said Smith, although then 
 and there present before me, and having opportunity to be hoard 
 in his defence, did not make any sufficient defence against his 
 conviction for said offence ; whereupon the said John Smith 
 was convicted before me, as aforesaid, and by me adjudged to be 
 imprisoned for said offence, in the common jail, in said county, 
 for the term of three days. (Or, " adjudged to pay a fine of ten 
 dollars, and to stand committed until such fine be paid, or he 
 be discharged from imprisonment, according to law ; or, to pay 
 a fine of ten dollars, and be imprisoned, in the common jail of 
 said county, for the term of three days : and until such fine be 
 paid, or he be discharged from imprisonment, according to law.) 
 Given under my hand, at Oxford, the day and year above 
 written. 
 
 David Long, Justice. 
 
 Within ten days after the date of the record of conviction, 
 the Justice is required to file it in the county clerk's office. 
 
 The warrant of commitment must set forth the particular 
 circumstances of the offence, or it will be void. A commitment 
 can be made in two cases : First, where, by the adjudication of 
 the Justice, imprisonment is directed ; and secondly, where a fine 
 is imposed, and the offender neglects, or refuses, to pay it. 
 There is also a third case, compounded of the other two, where 
 the offender is adjudged to both fine and imprisonment ; in 
 which case, he may be detained in prison after the adjudged 
 term of im[»risonment has expired, for the non-payment of tlio 
 fine ; but such imprisonment cannot exceed ten days. Where 
 imprisonment is adjudged, or the offender is committed for the 
 non-payment of the fine, the warrant should direct the number 
 of days for which the offender is to be imprisoned. (2 R. S. 
 360, sec. 200.)
 
 AND PROCEEDINGS. 239 
 
 FORM OF A WARRANT OF COMMITMENT. 
 
 Town of Oxford, ss : 
 
 To any Constable of the County of Chenango, Greeting: 
 Whereas, John Smith has, this tenth day of June, eighteen 
 hundred and forty-nine, at Oxford aforesaid, been convicted be- 
 fore me, the undernamed Justice of the Peace, of said town, of 
 a criminal contempt ; and the particular circumstances of said 
 offence, the proceedings before me had in relation thereto, and 
 the judgment by me rendered therein, as the same are set forth 
 in my record of said conviction, are as follows, — that is to say: 
 [here transcribe, from the record of conviction, the circumstan- 
 ces of the offence, and the proceedings and judgment therein ; 
 and if the commitment be for the non-payment of a fine, add 
 the further recital, " and whereas, the said John Smith, although 
 fully notified of said conviction and judgment, has not paid the 
 said fine."] You are, therefore, hereby commanded, in the 
 name of the people of the state of New York, to convey the 
 said John Smith to the common jail of said county, the keeper 
 whereof is required to detain him, in custody in the said jail, 
 for the term of three days. (Or, if the commitment be for the 
 non-payment of a fine, " the keeper whereof, is hereby required 
 to detain him in custody, in said jail, until said fine be paid ; but 
 in case of non-payment thereof, such imprisonment is not to ex- 
 ceed ten days ;" or if it be the compound case above-mentioned, 
 then say, " the keeper whereof is required to detain him in 
 custody, in said jail, for the term of three days ; and if said fine 
 shall then remain unpaid, the said keeper is further required to 
 detain him in custody in said jail, until such fine be paid ; but 
 the term of such imprisonment, for the non-payment of said 
 fine, is not to exceed ten days, from and after the expiration of 
 the term of three days, as above expressed." Given under my 
 hand, at Oxford, this 10th day of June, 1849. 
 
 David Long, Justice. 
 
 4. Proceedings against Wit7iesses or Jurors, for Non- Atten- 
 dance or Refusal to Serve. 
 
 Every witness duly subpoenaed, who shall not appear, or, ap- 
 pearing, shall refuse to testify, forfeits, for the use of the poor 
 of the town, a fine, not less than sixty-two cents, nor more than 
 ten dollars, in the discretion of the Justice ; unless some reason-
 
 240 MISCELLANEOUS PROVISIONS 
 
 able cause or excuse be shown, on his own oath, or the oath 
 of some other person. (2 R. S. 338, sees. 86, 112.) 
 
 Every person summoned as a juror, who does not appear, nor 
 tender a reasonable excuse for his default, or appearing, refuses 
 to serve, is subject to the same fine, to be prosecuted for, and 
 collected with costs, in the same manner, and applied to the 
 same use, as in the case of a defaulting witness. (Id. 341, sec. 
 112.) 
 
 If the witness or juror be present, and have opportunity to be 
 heard in his defence, as will be the case, where the default is 
 for refusal to serve or testify, the Justice may proceed in the 
 matter forthwith. The statute would seem to imply at first 
 view, that the fine could not be imposed in any case, unless the 
 defaulting party was personally present at the imposition thereof. 
 I am, however, led to the opinion, upon comparing the present 
 with the corresponding provisions of the former law, and the 
 analagous proceedings in higher courts, as well as by a consid- 
 eration of the severity of a rule which would require the issuing 
 of a warrant in all such cases, that the fine may be imposed 
 when the defaulting juror or witness has been personally sum- 
 moned and does not attend ; and that the statute is only intended 
 to give the Justice the power to impose the fine summarily, and 
 without a formal prosecution, when the defaulting party is be- 
 fore him. (Id.) 
 
 FORM OF SUMMONS. 
 
 Town of Oxford, ss. 
 
 To any constable of the county of Chenango, Greeting : 
 You are hereby commanded, in the name of the people of the 
 state of New York, to summon Henry Strong to appear before 
 me, the imdcrnamed Justice of the Peace, at my office, in Ox- 
 ford, on the 20th day of June, instant, at two o'clock in the af- 
 ternoon, to show cause, and to be heard in his defence, against 
 the imposition of a fine for his non-attendance as a juror, at my 
 office, aforesaid, on the lOlh day of June, instant, at two o'clock 
 in the afternoon of that day, in a cause then and there depend- 
 ing before me, in which John Doe was plaintifl", and Richard 
 Roe, defendant, the said action arising on contract ; the consta- 
 ble to whom the venire in said cause was delivered, having duly 
 returned said venire, with the panel of jurors by him summoned, 
 annexed, and the said Strong being one of the jurors named in
 
 AND PROCEEDINGS. 241 
 
 said panel and returned as being so summoned. Given under 
 my hand, at Oxford, June IStli, 1849. 
 
 David Lokg, Justice. 
 
 If the Justice imposes the fine, he is required to enter in his 
 docket, a minute of the conviction and of the cause thereof; and 
 the same is then to be deemed a judgment at the suit of the over- 
 seers of the poor of the town. (Sec. 87.) 
 
 form of docket entry. 
 
 Overseers op the Poor of ] 
 
 THE Town of Oxford ' 
 
 against | 
 
 Henry Strong. J 
 
 On this twelfth day of June, eighten hundred and forty-nine, 
 Henry strong is convicted before me, for not having appeared 
 before me as a juror, at my office, on the 10th day of June, in- 
 stant, for the trial of a cause depending before me and then and 
 there to be tried, wherein John Doe was plaintiff' and Richard 
 Roe, defendant, the said action arising on contract ; it appear- 
 ing to me, by the official return of the constable to whom the 
 venire in said cause was delivered, and his panel thereto an- 
 nexed, that the said Henry Strong was duly summoned to at- 
 tend before me as a juror, at the time and place last aforesaid ; 
 and the said Henry Strong having this day personally appeared 
 before me, and by me having been required to show cause or 
 excuse against the imposition of a fine for his said default, and 
 having opportunity of being heard, (fcc, and no reasonable cause 
 or excuse having been shown, the said John is convicted as 
 aforesaid ; and I adjudge and determine that said John Doe pay 
 a fine for his default aforesaid, of five dollars, to be levied for 
 the use of the poor of the town, and also two dollars costs at- 
 tending the prosecution for the imposition of said fine, according 
 to the form and eflect of the statute, in such case made and pro- 
 vided. 
 
 If the fine and costs are not paid, the Justice is required to 
 issue an execution forthwith. 
 
 form of the execution. 
 
 Town of Oxford^ ss. 
 
 To any constable of the county of Chenango, Greeting : 
 Whereas, Henry Strong has been this day duly convicted be- 
 
 16
 
 242 MISCELLANEOUS PROVISIONS 
 
 fore me, the midernamed Justice, for not appearing as a juror 
 on the tenth day of June, instant, at my office in Oxford, afore- 
 said, in a certain cause depending before me, and then and there 
 appointed to be tried, wherein John Doe was plaintiff", and Rich- 
 ard Roe, defendant, the said action arising on contract, the said 
 Henry Strong having been duly summoned to attend as such 
 juror, at the time and place aforesaid. And whereas, upon such 
 conviction, I did adjudge and determine that said Henry Strong 
 pay a fine of five dollars, to be levied for the use of the poor of 
 said town, and also the sum of two dollars costs attending the 
 prosecution for the imposition of said fine, &c. All things in 
 relation to which conviction and adjudication will appear by 
 reference to the docket entry thereof, remaining before me. You 
 are, therefore conmianded, in the name of the people of the state 
 of New York, to levy the said fine and costs of the goods and 
 chattels of the said Henry Strong ; and for want thereof, to take 
 and convey him to the jail of the county there to remain until 
 he shall pay said fine and costs ; and the keeper of said jail is re- 
 quired to keep the said Henry Strong in close custody in said 
 jail, until the fine and costs be paid, but such imprisonment is 
 not to exceed thirty days. Given under my hand, at Oxford, 
 June 20th, 1849. 
 
 David Long, Justice. 
 
 When a witness attending before a Justice, in a cause, refuses 
 to be SAvorn ; or, being sworn, refuses to answer any pertinent 
 and proper question ; and the party at whose instance he at- 
 tended, shall make oath that the testimony of such vv'itness is so 
 far material, that without it he cannot safely proceed to the trial 
 of the cause, the Justice may commit the witness to jail, there to 
 be confined until he shall submit to be sworn, or to answer. 
 (2 R. S. 369, sec. 291.) 
 
 J'ORM OF WARRANT. 
 
 Town of Oxford, ss. 
 
 To any consta1)le of tlic county of Chenango, Greeting : 
 
 Whereas, a court is now, to wit, the 10th day of June, 1819, 
 
 held before me, the undernamed Justice of the Peace at Oxford, 
 
 aforesaid, for the (rial of an issue joined between .Tolm Doe, 
 
 plaintiff*, and Richard Roe, defendant, the said plaintiff having
 
 AND PROCEEDINGS. 243 
 
 complained upon a promissory note, payable to him, and pur- 
 porting to have been drawn by the defendant, the defendant 
 having in his answer, denied the drawing of such a note ; and 
 during said trial, the said plaintiff called as a witness in his be- 
 half, Peter Brown, who was then attending before me in said court 
 as a witness in behalf of said plaintiff; and I thereupon required 
 of the said Peter Brown that he should be sworn as such wit- 
 ness, but he refused to be sworn as a witness in said cause, in 
 any form prescribed by law, [or, " And the said Peter Brown 
 consented to be, and was, by me duly sworn as a witness in said 
 cause, and thereupon the said plaintiff presented the note com- 
 plained on as aforesaid, and to which the name of Peter Brown 
 was set as a subscribing witness, and asked the said witness 
 whether he saw the defendant execute the said note, and 
 whether he, the witness, set his name thereto as a subscribing 
 witness 1 To which question, the said Peter Brown refused tc' 
 give an answer, nor would he answer the same, although there- 
 unto by me specially required."] Whereupon the said John 
 Doe made oath before me, that the testimony of the said Peter 
 Brown is so far material, that without it, he cannot safely pro- 
 ceed in the trial of said cause. You are therefore hereby com- 
 manded, in the name of the people of the state of New York, to 
 take and convey the said Peter Brown to the common jail of said 
 county, the keeper whereof is required to detain him in close 
 confinement in said jail, until he shall submit to be sworn, [or 
 to testify,] as lawfully required in said cause. Given under my 
 hand, this 10th day of June, 1849. 
 
 David Long, Justice. 
 
 5. Surety for the Peace. 
 
 Surety for the peace is the being bound with one or more 
 sureties in a recognizance or obligation to the people of the 
 state, entered on record, and taken in some court, or by some 
 judicial officer, whereby the parties acknowledge themselves 
 indebted to the people in a certain sum, with a condition to be 
 void and of none effect, if the party complained of shall appear 
 in court, at such a time, and not depart the same without leave, 
 and in the meanwhile keep the peace towards the people of the 
 state, and especially towards the person requiring the security. 
 (4 Blk. Com. 252. Barb. Cr. Law, 443.) 
 
 A Justice of the Peace has power to cause to be kept all laws.
 
 244 MISCELLANEOUS PROVISIONS 
 
 made for the preservation of the peace ; and in the execution of 
 that power, to require persons to give security to keep the peace. 
 (2R.S. 791.) 
 
 Whenever complaint is made in writing, and on oath, to a 
 Justice of the Peace, that any person has threatened to commit 
 any offence against the person or property of another, it is made 
 the duty of the Justice to examine the complainant, and any 
 witnesses who may be produced, on oath ; to reduce such ex- 
 amination to writing, and to cause the same to be subscribed 
 by the parties so examined. (Id.) 
 
 FORM OF COMPLAINT. 
 
 Chenango County^ ss. — Henry Brown, being duly sworn 
 before David Long, one of the Justices of the Peace of Oxford, 
 in said county, makes oath and complains, that John Smith did 
 this day, at Oxford aforesaid, threaten that he would hereafter 
 tear down the fences of the said Henry Brown on his farm in 
 Oxford aforesaid. [Or other threat to commit an offence against 
 the person or property.] 
 
 Deponent further says, that in consequence of said threat, he 
 has jnst reason to fear, and he does fear, that said John Smith 
 will commit the ofience so by liini threatened. 
 
 Henry Brown. 
 Subscribed and sworn, June lOth, 1849, 
 before me, 
 
 David Long, Justice. 
 
 The Justice is required to examine the complainant, and any 
 witnesses who may be produced, on oath ; and he should ex- 
 amine the witnesses as well in behalf of the party complained 
 of, if any appear, as those in favor of the complainant. 
 
 FORM OF A memorandum OF THE TESTIMONY. 
 
 CJicnungo County^ ss. — The examination and testimony, on 
 oath, of Henry lirown, John Doe, Richard Roe and Peter Pray, 
 touching the complaint of Henry Brown against John Smith, 
 that the said John Smith, <fcc. — [here set forth the complaint.] 
 
 The said Henry Brown saith, <fec. — [liere set forth the mate- 
 rial parts of the testimony of each witness ; and let each witness 
 subscribe the paragraph containing his evidence.]
 
 AND PROCEEDINGS. 245 
 
 Taken and subscribed at Oxford, June 10th, 1849, before me, 
 
 David Long, Justice. 
 
 If it appear from the examination that there is just reason to 
 fear the commission of any such offence by the person com- 
 plained of, the Justice must issue his warrant reciting the com- 
 plaint, and commanding the officer to whom it is directed, 
 forthwith to apprehend the person so complained of, and bring 
 him before the Justice. (2 R. S. 791.) 
 
 FORM OF WARRANT. 
 
 Chenango County, ss. — 
 
 To any Constable of said County, Greeting : 
 
 Whereas, Henry Brown has this day made complaint in 
 writing and on oath, before me, the undernamed Justice of the 
 Peace of Oxford, in said county, that John Smith, (fcc. — [here 
 set forth the complaint] — and has demanded sureties of the 
 peace against the said John Smith. And whereas, I have 
 examined the said Henry Brown, and John Doe, Richard Roe, 
 and Peter Pray, witnesses produced before me, on oath, touching 
 said complaint, which examination was by me reduced to wri- 
 tmg, and duly subscribed ; and it appearing to mo, from such 
 examination, that there is just reason to fear the commission of 
 said offence by the said John Smith : You are, therefore, 
 hereby commanded, in the name of the people of the state of 
 New York, forthwith to apprehend the said John Smith, and 
 bring him before me, at my office, in Oxford aforesaid, to be 
 dealt with in the premises according to law. 
 
 Given under my hand at Oxford, June 10th, 1849. 
 
 David Long, Justice. 
 
 Upon the person being brought before the Justice, he may be 
 required to enter into a recognizance in such sum, not exceeding 
 one thousand dollars, as the Justice shall direct, with one or 
 more sufficient sureties, to appear at the next Court of Sessions 
 of the county, and not to depart the same without leave, and 
 in the meanwhile to keep the peace towards the people of the 
 state, and particularly towards the person requiring the secu- 
 rity. (2 R. S. 791.)
 
 \ 
 
 246 MISCELLANEOUS PROVISIONS 
 
 FORM OF THE RECOGNIZANCE. 
 
 Chenango Conuty, ss. — We, John Smith and Richard Roe, 
 of Chenango in said county, acknowledge ourselves to owe to 
 the people of the state of New York, the sum of two hundred 
 dollars, to be levied of our several goods and chattels, lands and 
 tenements, to the use of said people, if default shall be made in 
 the condition following : 
 
 The condition of this recognizance is such, that whereas 
 Henry Brown has this day made complaint in writing and on 
 oath, before David Long, Justice of the Peace of Oxford, that 
 John Smith, <fcc. — [here set forth the complaint] — and has de- 
 manded sureties of the peace of the said John Smith, and the 
 said Justice having examined the said Henry Brown, and wit- 
 nesses produced, on oath, touching said complaint ; and upon 
 such examination having adjudged that there is just reason to 
 fear the commission of said offence by said John Smith : Now, 
 therefore, if the'said John Smith shall appear at the next Court 
 of Sessions, to be held in said county, and not depart the same 
 without leave ; and shall, in the meanwhile, keep the peace 
 towards the people of this state, and particularly towards the 
 said Henry Brown ; then this'recognizance is to be void, other- 
 wise of force. 
 
 John Smith. 
 Richard Roe. 
 Taken, subscribed and acknowledged. 
 
 June 10th, 1849, before me, 
 
 David Long, Justice. 
 
 The recognizance must bo transmitted by the Justice to the 
 :iext Court of Sessions of the county. (2 R. S. 791.) 
 
 Upon entering into the recognizance, the party complained 
 of must be discharged. If he refuses to find the required secu- 
 rity, the Justice must commit him to prison until he find the 
 same, specifying in the warrant the cause of commitment, and 
 ihc sum in which the security was required. (Id.) 
 
 FORM OF WARRANT TO COMMIT. 
 
 Chenango County^ ss : — 
 
 ^I'o any Constable of said County, Greeting: 
 "Whereas, Henry Brown has this day made complaint in
 
 AND PROCEEDINGS. 247 
 
 writing and on oath before me, the undernamed Justice of the 
 Peace of Oxford, in said county, that John Smith, &c. — [here 
 set forth the residue of the recital, as in the foregoing form of a 
 warrant] — and the said John Smith, upon being brought before 
 me, was required to enter into recognizance in the sum of two 
 hundred dollars, with one or more sufficient sureties, conditioned 
 to appear at the next Court of Sessions of said county, and not 
 to depart the same without leave ; and in the meanwhile, to 
 keep the peace towards the people of this state, and particularly 
 towards the said Henry Brown ; and the said John Smith 
 having refused to comply with the said requirement : You are, 
 therefore, hereby commanded, in the name of the people of the 
 state of New York, forthwith to convey the said John Smith to 
 the common jail of said county, and him deliver to the keeper 
 thereof; and the said keeper is required to receive the said 
 John Smith into his custody in said jail, and him there safely 
 keep, until he shall enter into recognizance as aforesaid, or be 
 thence discharged according to law. 
 
 Given under my hand at Oxford, June 10th, 1849. 
 
 David Long, Justice. 
 
 A person committed for not finding sureties of the peace, may 
 be discharged by any two Justices of the Peace, upon giving 
 such security as was originally required. 
 
 FORM OF DISCHARGE. 
 
 Chenapgo County, ss. — Whereas, John Smith was lately 
 committed to your custody, upon the warrant of David Long, 
 one of the Justices of the Peace of Oxford, in said county, for 
 his not entering into a recognizance, in the sum of two hundred 
 dollars, with one or more sufficient sureties, conditioned to ap- 
 pear at the next Court of Sessions, to be held in said county, and 
 not depart without leave, and, in the mean time, to keep the 
 peace towards the people of this state, and particularly towards 
 Henry Brown, &.c. ; and the said John Smith having this day 
 entered into the required recognizance, with surety : You are, 
 therefore, hereby required, if the said John Smith do remain in 
 your custody, in said jail, for the cause aforesaid, and no other
 
 248 MISCELLANEOUS PROVISIONS 
 
 to forbear to detain hitn longer for the cause aforesaid, but to 
 suffer him, forthwith, to go at large. 
 
 Given under our hands, at Oxford, June 15th, 1949. 
 
 Alvin Kent, 
 William Roberts, 
 
 Justices of the Peace. 
 
 Every person who, in the presence of a Justice of the Peace, 
 shall make any affray, or threaten to kill or beat another, or to 
 commit any offence against his person or property ; and all per- 
 sons who, in the presence of the Justice, shall contend, with hot 
 and angry words, may be ordered by the Justice, without any 
 other proof, to give such security as is above specified ; and, in 
 case of refusal, may be committed in the manner herein before 
 mentioned. (2 R. S. 791.) 
 
 In this case, the recitals in the foregoing forms of a recogni- 
 zance and warrant to commit, should be varied by substituting 
 recitals like the following : 
 
 " Whereas, John Smith did, this day^ iji the presence of the 
 undernamed Justice of the Peace, of Oxford aforesaid, threaten 
 to heat Henry Brown, and I did, thereupon, ivithout any other 
 proof, require the said John Smith to e?iter into a recognizance 
 with surety, which requirement is herewith complied ivitli," i^'c. 
 
 " Whereas, John Smith did, this day, in the presence of me, 
 the undernamed Justice of the Peace, of Oxford aforesaid, 
 threaten to beat Henry Brown, and I did, thereupon, without 
 any other proof, require the said John Smith to enter into a re- 
 cognizance in the sum of two hundred dollars, with one or more 
 sufficient sureties," tyc. 
 
 No security to keep the peace, or to be of good behavior, can 
 be required, nor can any person be committed to prison for not 
 giving the same in any case, except such as are prescribed or 
 authorized by statute. {2 R. S. 792, sec. 14.) 
 
 All persons whatever, being of sane memory, whether natu- 
 ral born citizens, or aliens, have a right to demand surety to 
 keep the peace. Wives may demand it against their husbands, 
 and husbands against their wives. (1 Hawk. P. C. ch. G8.) 
 
 ('). Of Weights and Measures. 
 
 The statute declares, that there sliall be but one standard of 
 measure of length and surface, and one measure of capacity
 
 AND PROCEEDINGS. 249 
 
 throughout the state. (Vide 1 R. S. 775 to 780.) The statute 
 directs the manner in which uniform standards of weights and 
 measures shall be constructed, and copies thereof deposited in the 
 several counties for general use. 
 
 The unit or standard measure of length and surface, from 
 whence all other measures of extension, whether they be lineal, 
 superficial, or solid, is derived or ascertained, is the yard of three 
 feet, or thirty-six inches. 
 
 The unit, or standard of weight, from which all other weights 
 are derived and ascertained, is the pound averdupois. 
 
 The unit, or standard of measures of capacity, as well for li- 
 quids as for dry commodities, not measured by the heaped mea- 
 sure, is the gallon, of which there are two kinds : one, for the 
 measure of all liquids, and one for the measure of all other sub- 
 stances not measured by heaped measure, the first of which is 
 denominated the gallon for liquid measures, and the second, the 
 gallon for dry measures. 
 
 All other measures of capacity for liquids must be derived 
 from the liquid gallon, by continual division by the number 
 two. 
 
 All other measures of capacity, for substances not being li- 
 quids, must be derived from the dry gallon by continual multi- 
 plication by the number two in the ascending scale ; and by 
 continual division by the same number, in the descending 
 scale. 
 
 The standard measure of capacity for coal, ashes, marl, ma- 
 nure, Indian corn in the ear, fruit, and roots of every kind, and 
 for all other commodities commonly sold by heaped measure, is 
 the bushel ; and the measures used to measure such commodi- 
 ties, must be made round, with a plain and even bottom, and be 
 of the following diameters at top, measured from outside to out- 
 side : the bushel, nineteen and a-half inches ; the half bushel, 
 fifteen and a-half inches ; and the peck, twelve and a third 
 inches. 
 
 All commodities sold by heaped measure, must be duly heaped 
 up in the form of a cone ; the outside of the measure by which 
 the same is measured, to be the extremity of the base of such 
 cone, and such cone to be as high as the articles measured will 
 admit. 
 
 Whenever wheat, rye, Indian corn, barley or oats, are sold by 
 the bushel, and no special agreement, as to the measurement or
 
 250 MISCELLANEOUS PROVISIONS 
 
 weight thereof, is made, by the parties, the means thereof, must 
 be ascertained by weight, and must be computed as follows : 
 
 Sixty pounds for a bushel of wheat. 
 
 Fifty-six pounds for a bushel of rye or Indian corn. 
 
 Forty-eight pounds for a bushel of barley. 
 
 Thirty-two' pounds for a bushel of oats. 
 
 It is provided, that the standard measure, or capacity for bran 
 and shorts, shall be forty quarts to the bushel. The measure 
 used for measuring said commodities must be made round, with 
 a plain or even bottom, and be thirteen inches and a-half in dia- 
 meter in the clear, at the top, and fifteen inches and a-half in 
 diameter in the clear, at the bottom, and of sufficient depth to 
 contain the aforesaid quantity, when stricken with a round 
 straight stick or roller, of uniform diameter. 
 
 All contracts made within the state, for any work to be done, 
 or for any thing to be sold, delivered, done or agreed for, by 
 weight or measure, must be taken and construed to be made, ac- 
 cording to the standard weights and measures. 
 
 If any person or persons use any weights, measures, or beams, 
 in weighing or measuring, not conformable to the legal stan- 
 dards whereby any purchaser of any commodity, or article of 
 trade or traffic, is injured or defrauded, such purchaser may 
 maintain an action against the offender ; and if judgment be 
 rendered for the plaintiff, he will recover treble damages, with 
 costs of suit. (Vide 1 R. S. 779.) 
 
 7. Computation of Time. 
 
 Whenever the term " year," or " years," is used in any sta- 
 tute, deed, or contract, or in any public or private instrument, 
 the year intended must be taken to consist of three hundred and 
 sixty-five days ; a half year, of one hundred and eighty-two 
 days ; and a quarter of a year, of ninety-one days ; and the ad- 
 ded day of a leap year, and the day immediately preceding, if 
 they shall occur in any period so to be computed, shall be reck- 
 oned together as one day. Whenever the word " month," or 
 " months," is used in any statute, act, deed, verbal or written 
 contracts, or any public or private instrument whatever, it must 
 be construed to mean a calendar, and not a lunar month ; un- 
 less otherwise expressed, (1 R. S. 77'1.) 
 
 For the purpose of calculating interest, a month is to be consid- 
 ered the twelfth part of a year, and as consisting of thirty days ;
 
 AND PROCEEDINGS. 251 
 
 and interest for any number of days less than a month, must be 
 estimated by the proportion which such number of days bears 
 to thirty. (2 R. S. 58.) 
 
 Wlien the computation of time in a statute is to be after date 
 o^ from an act done, the first day, that is, the day of the date, or 
 the day when the act is done, must be excluded. Thus an exe- 
 cution, dated May 7th, and returnable thirty days from the date, 
 would continue in force until after the Gth of June ; and in com- 
 puting the time allowed for service on a Justice of a notice of ap- 
 peal, it has been held that the day of rendering the judgment 
 must be excluded. (2 Cow. 518 and 605.) 
 
 In the space of a day, all the twenty-four hours are usually 
 reckoned, and the law rejects all fractions of a day, so as to avoid 
 confusion, (2 Blk. Com. 141.) And in general, when a person 
 is bound to pay money, or do any other act on a certain day, he 
 has till twelve at night of that day, after which the following 
 day commences. (Id.) 
 
 8. Of the Justice's Docket. 
 
 The statutes require that every Justice of the Peace shall keep 
 a book in which he shall enter, 
 
 1. The title of all causes commenced before him ; 
 
 2. The time when the first process was issued against the de- 
 fendant, and the particular process issued ; 
 
 3. The time when the parties appeared before him, either 
 without process or upon the return of process ; 
 
 4. Where the pleadings are made orally, a concise statement 
 of the complaint of the plaintiff, the answer of the defendant, the 
 further pleadings of the parties, if any, and the issue joined ; 
 
 5. Every adjournment, stating on whose motion, and to what 
 time and place ; 
 
 6. The issuing of a venire, stating at whose request, and the 
 time and place of its return ; 
 
 7. The time when a trial Avas had, the names of the jurors 
 returned summoned who did not appear, and the fines imposed 
 on them, if any ; 
 
 8. The names of the jurors who appeared, and of the jurors 
 who were sworn ; the names of the witnesses sworn at the re- 
 quest of either party, stating at whose request ; the objections, if
 
 252 MISCELLANEOUS PROVISIONS 
 
 any made to the competency of a witness, and the decision 
 thereon ; 
 
 9. The verdict of the jury, and when received ; 
 
 10. The judgment rendered by the Justice, and the time of 
 rendering the same ; 
 
 11. The time of issuing execution, and the name of the offi- 
 cer to whom delivered ; and if issued upon the apphcation of 
 any party before the time when the same should regularly issue, 
 such fact shall be noted, and the nature of the proof given ; 
 
 12. The return of every execution, and when made, and every 
 renewal of an execution made by him, with the date of such re- 
 newal ; 
 
 13. The fact of his having given a transcript of the judgment 
 to be filed in the clerk's office, and the time when the same was 
 given ; 
 
 14. The fact of an appeal having been made from any judg- 
 ment rendered by him, and the time when made. (2 R. S. 363, 
 sec. 249.) 
 
 The above items are to be entered under the title of each 
 cause to which they relate, and in addition, the Justice may en- 
 ter any other proceeding before him in the cause, which he may 
 think useful. (2 R. S. 364, sec. 250.) 
 
 In addition to the entries required by statute to be made in 
 the docket, it will be very necessary to enter the time when the 
 process was served, the manner of service, the constable by 
 whom it was served, and his fees. It would also be useful to 
 enter the issuing of subposnas, and for which party. Also the 
 name of the constable by whom the venire was served. These 
 several entries will be useful in making up the costs. 
 
 justice's docket. 
 
 John Doe 
 
 against 
 
 RiciiAiii) Roe. 
 
 June 1 St, 1819. Issued summons, returnable 13th instant, at 
 2 p. M. at my ofllce, June 13th, summons returned personally 
 served by William Cooke, constable, on the 4th inst., fees 12^ 
 cents. Parties appear -plaintifl', by T. Jones, who swears to 
 his authority ; dcfendiinl in person. Plaintiff complains on a
 
 AND PROCEEDINGS. 
 
 253 
 
 promissory note from defendant to Iiim, dated 1st January, 1848, 
 for $25 00 at sixty days, with interest. Defendant denies the 
 making of the note, and answers that plaintiff is indebted to him 
 on an account for goods sold, and for work and labor. Cause 
 adjourned on plaintiff's motion, to 2 1st instant, at 2 p. m., at my 
 oiRce. Issued venire at plaintiff's request, returnable at the 
 same time and place. 
 
 June 21st. Parties appear pursuant to adjournment and try 
 cause. Venire returned by William Cooke, constable. The 
 following jurors returned summoned did not appear : — Robert 
 Boyd, Samuel Pierson, and Joshua Day. 
 
 The following jurors appeard, viz : Alfred Merill, John Stone, 
 Henry Brown, James Moore, Edward Strong, Albert Conway, 
 Thomas Doyle, Jacob Green, and Peter Doolittle ; and the fol- 
 lowing jurors were sworn, viz : John Stone, Henry Brown, Ed- 
 ward Strong, Thomas Doyle, James Moore, Albert Conway. 
 Henry Peters, Thomas Noakes, and Peter Pray, sworn as wit- 
 nesses for the plaintiff. Alfred Somers, sworn as a witness for 
 the defendant. 
 
 After hearing the testimony, the arguments of the respective 
 parties, and the Justice's charge, the jury retired under the care 
 of William Cooke, constable, duly sworn for that purpose, and 
 found a verdict in favor of the plaintiff, for ten dollars damages 
 which was received on the day last mentioned. 'Whereupon I 
 immediately rendered judgment for 
 
 Damages, ----- |10 00 
 
 Costs, - - - - - 3 56 
 
 $13 56 
 
 June 21st. Execution issued to William Cooke, constable, on 
 the application of plaintiff. 
 June 29. Execution returned satisfied. 
 
 ENTRY OF JUDGMENT BY CONFESSION, NOT EXCEEDING FIFTY 
 
 DOLLARS. 
 
 John Smith i 
 
 agaifist > 
 
 Peter Pray. ) 
 
 June 1st, 1849. Parties appear, and judgment entered against
 
 254 MISCELLANEOUS PROVISIONS 
 
 the defendant, on a demand arising upon contract, on his con- 
 fession in writing, for 
 
 Damages, $30 00 
 
 Costs, - - - - . - 47 
 
 $30 47 
 
 same for a sum exceeding fifty dollars. 
 
 John Doe ) 
 against \ 
 
 Richard Roe. j 
 June 1st, 1849. Parties appear, and judgment entered against 
 the defendant on a demand arising on contract, on his confes- 
 sion in writing, accompanied by the affidavits of the plaintiff and 
 defendant, as required by the statute, for 
 
 Damages, ----- $250 00 
 Costs, _ . . - . 62 
 
 $250 62 
 
 entries in docket when the defendant does not 
 
 APPEAR. 
 
 John Stone ') 
 against > 
 
 Joseph Day. } 
 
 June 1st, 1849. — Issued summons, returnable 13th instant, at 
 2, p. M., at my office. June 13th. — Summons returned perso- 
 nally served, by WilHam Cooke, const., on the 6th inst, — fees, 
 twelve and a-half cts. Plaintiff appears ; defendant does not 
 appear. Plaintiff complains, on a promissory note from defen- 
 dant to bim, dated January 1st, 1849, for $15 00, at thirty days, 
 with interest. Adjourned, on plaintiff's motion, to ISlh instant, 
 at 2, p. M., at my office, and issued subpoena for plaintiff. 
 
 June 18. — Plaintiff appears ; defendant does not appear. Ja- 
 cob Doolittle, sworn as a witness for plaintiff, and judgment 
 rendered against the defendant, for $15 35, damages, and $1 25 
 costs. 
 
 Damages, $15 35 
 
 Costs, 1 25 
 
 $16 60
 
 AND PROCEEDINGS. 255 
 
 TliG Justice should be careful to have all the entries made in 
 liis docket accurately, and conformably to the truth. This is the 
 more important, as his docket, or a transcript from it, is evidence 
 of the facts which it contains. 
 
 The Justice is required, by statute, to keep an alphabetical 
 index of all judgments entered in his docket book in the course 
 of any judicial proceeding had before him, in which must be in- 
 serted the names of the parties to each judgment, and the page 
 of his book where such judgment is entered. (2. R. S. 366.) 
 
 Of the Deposite of Books and Papers with the Toimi Clerk. 
 
 In case any Justice shall remove out of the town in which he 
 was elected, before or after his term of office expires, he shall de- 
 posite, with the town clerk of such town, all the books and pa- 
 pers in the custody of such Justice, relating to any cause or 
 matter which shall have been heard by him, or relating to 
 any proceeding or cause which shall have been commenced 
 before him. 
 
 Whenever any Justice shall be removed from office, he 
 shall, within ten days after receiving notice of such removal, 
 and upon the demand of the town clerk, deliver to such clerk, 
 all the books and papers in the custody of such Justice, relating 
 to any cause or matter which shall have been heard by hin), 
 or relating to any proceeding or cause which shall have been 
 commenced before him. 
 
 In every book of minutes delivered by any Justice to the 
 town clerk, pursuant to the foregoing provisions, in which he 
 shall iiave kept the docket of any judgments, he shall enter a 
 certificate, to be subscribed by him, staling that the judgments 
 entered in such book, were duly rendered as therein stated, 
 and that the amounts appearing by such book to be due on 
 such judgments respectively, have not been paid to his know- 
 ledge. 
 
 In case any Justice shall die, or his office shall, in any way, 
 become vacant, and any books or papers belonging to such Jus- 
 tice, in his official capacity, shall come to the hands of any per- 
 son, the town clerk may demand and receive such books and 
 papers, from the person having the same iu. his possession. 
 
 The entries contained in the book of minutes kept by 
 any Justice, and by him delivered to the clerk, shall, in all
 
 256 MISCELLANEOUS PROVISIONS, &c. 
 
 cases, be presumptive evidence of the facts stated in such en- 
 tries, but may be repelled by contrary proof. (2 R. S. 366.) 
 
 9, Of the Abatenieni of Suits by Death. 
 
 At common law, the death of one of two or more plaintiffs 
 or defendants, before final judgment, abated the suit. By the 
 Code, no action shall abate by the death, marriage, or other dis- 
 ability of a party, or by the transfer of any interest therein, if 
 the cause of action survive or continue. (Code, sec. 121.) In 
 case of death, marriage, or other disability of a party, the court 
 may allow the action to be continued by or against his repre- 
 sentative, or successor in interest. In case of any other transfer 
 of interest, the action shall be continued in the name of the ori- 
 ginal party ; or the court may allow the person to whom the 
 transfer is made, to be substituted in the action, (Id.) 
 
 By the Revised Statutes, it is provided, that if, in any action, 
 there be two or more plaintiffs, and one or more of them shall 
 die before final judgment, the action shall not thereby be abated, 
 if the cause of action survive to the surviving plaintiff or plain- 
 tiffs ; and if there be two or more defendants, and one or more 
 of them shall die before final judgment, the action shall not 
 thereby be abated, but such death shall be suggested on the re- 
 cord, and the action shall proceed at the suit of the surviving 
 plaintiff, or against the surviving defendant. An entry of the 
 death, in the Justice's docket, would be a sufficient suggestion, 
 on the record, within the meaning of the above section. In ac- 
 tions in Justices' Courts, however, it is presumed the death of a 
 sole plaintiff or defendant, at 'any time before judgment, would 
 abate the suit. (2 R. S. 486.) 
 
 Where an action is authorized or directed by law, to be brought 
 by, or in the name of a pubHc officer, or by any trustee appointed 
 by virtue of any statute, his death or removal shall not abate 
 the suit, but the same may be continued by his successor, who 
 shall be substituted for that purpose by the court, and a sugges- 
 tion of such substitution shall be entered on the record. (2 R. 
 S. 485, sec. 14.)
 
 CHAPTER XIV. 
 
 OF ARBITRATIONS. 
 
 This chapter embraces the following subjects : 
 
 1. Definition of Arbitration. 
 
 2. Who may submit matters in controversy to Arbitrators. 
 
 3. What claims may be submitted to Arbitration. 
 
 4. Duty of Arbitrators ; how sworn ; how Witnesses com- 
 
 pelled to appear before them, and swearing of Witnesses. 
 
 5. What is necessary to entitle an Award to be enforced. 
 
 6. Submission to Arbitrators, how made. 
 
 7. Revocation, how made. 
 
 8. Consequences of Revocation. 
 
 9. What is necessary to constitute an Award. 
 
 10. Effect of Submission and Award. 
 
 11. Award, how confirmed. 
 
 12. Award, how vacated. 
 
 13. Award, how modified or corrected. 
 
 14. Proceedings by the Court, upon the Award being confirmed 
 
 or modified. 
 
 15. Proceedings on an Appeal from an order, vacating an 
 
 Award. 
 
 Arbitration is where the parties, injuring and injured, submit 
 all matters in dispute, concerning any personal chattels, or per- 
 sonal wrong, to the judgment of two or more arbitrators ; or 
 frequently there is only one arbitrator originally appointed. The 
 decision, in such a case, is called an award. (3 Blk. Com. 16.) 
 
 All persons, except infants and married women, and persons 
 of unsound mind, may, by an instrument in writing, submit to 
 the decision of one or more arbitrators, any controversy existing 
 between them, which might be the subject of an action at law, 
 or of a suit in equity, except as herein otherwise provided ; and 
 may, in such submission, agree, that a judgment of any court 
 of law and of record, to be designated in such instrument, 
 shall be rendered upon the award made, pursuant to such sub- 
 mission. (2 R. S. 028, sec. 1.) 
 
 17
 
 258 OF ARBITRATIONS. ' 
 
 No such submission shall be made respecting the claim of any 
 person to any estate, in fee or for life, to real estate ; but any 
 claim to an interest for a term of years, or for one year, or less, 
 in real estate, and controversies respecting the partition of lands 
 between joint tenants, or tenants in common, or concerning the 
 boundaries of lands, or concerning the admeasurement of dower, 
 may be so submitted to arbitration. (Id. sec. 2.) 
 
 The arbitrators thus selected, shall appoint a time and place 
 for the hearing, and shall adjourn the same, from time to time, 
 as may be necessary ; and, 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 ren- 
 dering their award. (Id. sec. 3.) 
 
 The arbitrators should see that the respective parties have a 
 reasonable notice of their meetings, and a fair opportunity to 
 procure the attendance of their witnesses. In one case, it was 
 held, that unless this is done, the award is a nullity. (6 Cow. 
 103.) On the other hand, where due notice is given, and either 
 party refuses to attend, the arbitrators have power to proceed, 
 and decide ex parte. 
 
 Before proceeding to hear any testimony, the arbitrators shall 
 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. (2 R. S. 629, sec. 4.) 
 
 Such oath may be administered by any judge of any court 
 of record, or by any Justice of the Peace, or by any commission- 
 er of deeds. (Sess. Laws 1843, chap. 187, p. 246.) 
 
 FORM OF OATH TO BE ADMINISTERED TO ARBITRATORS. 
 
 " You and each of you, do solemnly swear, that you will faith- 
 ful ly and fairly hear and examine the matters in controversy 
 submitted to you as arbitrators by and between John Doe of the 
 one part, and Richard Roc of the other part, and a just award 
 thcj'cof make, according to the best of your understanding." 
 
 "Witnesses may be compelled to appear before such arbitrators 
 by subpojnas to be issued by any Justice of the Peace, in the 
 same manner, and with the like effect, and subject to the same 
 pcnallies for disobedience, as in cases of trials before Justices of 
 the Peace. (2 R. S. 029, sec. 6.) 
 
 It would .seem, that on ap)>lication by cither party to a Justice 
 of (lie Peace for a subpcena to^compel the attendance of witnesses
 
 OF ARBITRATIONS. 259 
 
 before arbitrators, he may issue the subpoena without any proof 
 whatever. 
 
 It would be well however, in all cases, for the Justice to take 
 proof of the submission by the oath of the party or some third 
 person applying in his behalf 
 
 FORM OF THE OATH. 
 
 You do swear that you will make true answers to such ques- 
 tions as I shall put to you, touching the necessity and propriety 
 of my issuing a subposna upon your present aj)plication. 
 
 If the answers of the person examined under oath are satis- 
 factory, a subpoena should issue in the following form : — 
 
 SUBPCENA TO APPEAR BEFORE ARBITRATORS. 
 
 Town of Oxford^ ss. 
 To John Smith, Peter Brown, and David Stone. Greeting : 
 
 You, and each of you, are hereby commanded, in the name 
 of the people of the State of New York, to appear at the Drover's 
 Inn, in the town of Oxford, County of Chenango on the first day 
 of July next, at two o'clock in the afternoon of that day, before 
 John Doe and Richard Roe, arbitrators chosen to determine a 
 controversy between Henry Strong and Abram Bevier, then 
 and there to testify in relation thereto before said arbitrators, on 
 the part of the said Henry Strong. Hereof fail not at your 
 peril. Given under my hand this 10th day of June 1849. 
 
 David Long, Justice. 
 
 All the arbitrators must meet together, and hear all the proofs 
 and allegations of the parties ; but an award by the majority of 
 them shall be valid unless the concurrence of all the arbitrators 
 be expressly required in the submission. (2. R. S. 029, sec. 7.) 
 
 The oaths to witnesses and other persons examined before the 
 arbitrators, may be administered by the arbitrators, or any, or 
 either of them. (Sess. Laws, 1843, chap. 187, p. 246.) 
 
 FORM OF OATH TO BE ADMINISTERED TO A WITNESS BY 
 ARBITRATORS. 
 
 " You do swear, that the evidence you shallgive to these arbi- 
 trators, \or this arbitrator^ touching the matters in difference 
 submitted for their [or his] determination and award, by and 
 between Henry Long of the one part, and Abram Bevier of
 
 260 
 
 OF ARBITRATIONS. 
 
 the other part, shall be the truth, the Avhole truth, and nothing 
 but the truth." 
 
 To entitle any award to be enforced, according to the provi- 
 sions of this title, it must be in writing, subscribed by the arbi- 
 trators making the same, and attested by a subscribing witness. 
 (2 R. S. 629, sec. 8.) 
 
 Notwithstanding the above provision it has been held that a 
 submission to arbitrators is valid, though by parol, and is never 
 required to be in writing except for the purpose of enforcing the 
 award in the manner prescribed by the statute. (23 Wend, 258. 
 
 2 Hill, 271.) 
 
 Though in general a submission by parol is valid, yet where 
 from the subject of the arbitration a writing is necessary to pass 
 the right to the thing in demand, or defeat or destroy the de- 
 mand, the submission and award, to be availing as a bar to that de- 
 mand, must be in writing. (Cow. &, Hill's Notes, 1026 and 1037.) 
 
 Very little form is necessary either in submitting or deciding 
 by arbitration, those controversies which are cognizable before 
 a Justice. The parties may, either in writing, or by parol, agree 
 on such men as they choose, consisting of what number they 
 please, to settle their disputes, whose duty it is to hear the proofs 
 and allegations of the parties, as nearly as may be, according to 
 the rules of law. (3 Cai. 166.) 
 
 A very usual mode of submission, where the controversy is 
 not complicated, is drawing mutual promissory notes sufficient 
 to cover the amount or balance claimed on either side ; and 
 agreeing that the arbitrators shall endorse down, or deliver up, 
 both, or either of the notes, as they shall award. A note thus 
 passed upon and endorsed down, so as to meet what one party 
 ought to recover against the other, has been held valid and 
 binding, as a promissory note. (Id.) 
 
 FORM OF SUBMISSION IN WRITING. 
 
 "VVo the undersigned, hereby mutually agree to submit [here 
 describe the matter in difference] to the award and determina- 
 tion of John Doc and Richard Roe, for them to hear and deter- 
 mine the same, and make their award in writing. 
 Witness our hands this 8th day of June, 1849. 
 
 HicNRY Strong, 
 Signed in j)n"Sonco of Aijram Bkviek. 
 
 Alvin Wiikklkr.
 
 OF ARBITRATIONS, 261 
 
 Either party may revoke the powers of the arbitrators, at any 
 time before the cause or matter is finally submitted to them upon 
 a hearing of the parties, for their decision. (2 R. S. 631, sec. 23.) 
 
 The revocation need not be in any particular form ; any 
 thing showing an intention to revoke, would be sufficient. In 
 case the submission be by parol, it would be enough for the party 
 revoking, to say in the presence of the arbitrators and the oppo- 
 site party, that he revokes their powers under their submission. 
 As a general rule, however, it would be better to adopt the fol- 
 lowing : 
 
 FORM OF REVOCATION. 
 
 To John Doe and Richard Roe. 
 
 This is to inform you that I hereby revoke your powers as ar- 
 bitrators, under the submission in writing made to you by Abram 
 Bevier and myself, on the 8th day of June, 1849. Witness my 
 hand, this 14th day of June, 1849. 
 
 Henry Strong. 
 
 If the submission be by an instrument under seal, the revo- 
 cation should also be under seal. 
 
 Where the submission is by two on the one side, and one on 
 the other, one of the two cannot revoke the powers of the arbi- 
 trators, without the assent of the other. (12 Wend. 578.) 
 
 A revocation is not complete, until notice of it be given to the 
 opposite party. 
 
 FORM OF NOTICE OF REVOCATION. 
 
 To Abram Bevier, — 
 
 Sir. — Please take notice that I have this day revoked the powers 
 of John Doe and Richard Roe, arbitrators, chosen to settle the 
 matters in controversy between us, by an instrument of revoca- 
 tion, of which the annexed is a copy. Dated June 14th, 1849. 
 
 Yours, Henry Strong. 
 
 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 the costs, expenses and damages, which he may 
 have incurred in preparing for such arbitration. (2 R, S. 631, 
 sec. 23.) 
 
 If the submission so revoked was contained in the condition
 
 262 OF ARBITRATIONS. 
 
 of any bond, the obligee in such bond shall be entitled to prose- 
 cute the same, in the same manner as other bonds, with condi- 
 tions other than for the payment of money, and to assign such re- 
 vocation as a breach thereof; and for such breach he shall recover 
 as damages, the costs and expenses incurred, and the damages 
 sustained by him in preparing for such arbitration. (Id. 24.) 
 
 No other sum, penalty, forfeiture, or damages, shall be recov- 
 ered for any revocation of a submission to arbitration than such 
 as are prescribed in the two last sections ; notwithstanding any 
 stipulated damages, penalty or forfeiture contained in such sub- 
 mission, or in any other instrument or agreement collateral 
 thereto. (Id. sec. 25.) 
 
 The award must be made within the time limited by the sub- 
 mission, unless extended by agreement. (Kyd on Awards, 96.) 
 A stipulation to extend the time may be by agreement not under 
 seal, although the submission was under seal. (5 Paige, 575.) 
 Where no time is limited within which the arbitrators are to 
 make their award, they may take their own time. (5 Paige, 577.) 
 
 The award must correspond with the submission, and the 
 arbitrators must not exceed the powers conferred on them, and 
 make an award concerning matters not within the terms of the 
 submission. 
 
 The award must also be certain and final. That is, the act 
 awarded to be done, and the thing about which it is to be done, 
 should be so far pointed out that any one can see or ascertain 
 what steps are to be taken in performing it ; and therefore an 
 award to finish the house or to pay for the stone, without saying 
 " what house or what stone, is void for uncertainty, (2 Caines, 235,) 
 as also an award to give good and si/fficient security, without 
 defining the nature of the security. (9 J. R. 43. 8 Cow. 235.) 
 And the award must make a final disposition of the matters em- 
 braced in the submission, so that they may not become the sub- 
 ject or occasion of future litigation between the parties. (12 
 Wend. 377.) 
 
 DOND OF AllIilTRATION. 
 
 Know all men by tlicse presents, that I, Henry Strong, of the 
 village of Hinghamton, in the county of Broome, am held and 
 firmly bomid unto Abram IJevicr, of the same place, in the sum 
 of five hundred dollars, good and lawful money, to be paid to the
 
 OF ARBITRATIONS. 263 
 
 said Abram Bevier, or to his certain attorney, executors, admin- 
 istrators, or assigns ; for which payment, to be well and truly 
 made, I bind myself, my heirs, executors, and administrators, 
 firmly by these presents. Sealed with my seal, and dated this 
 8th day of June, 1849. 
 
 The condition of this obligation is such, that if the above 
 bounden Henry Strong, his heirs, executors, and administrators, 
 on his or their parts, shall do, and in all things well and truly 
 stand to, obey, abide by, perform, fulfil, and keep to the 
 award, order, arbitrament, and final determination of John Doe 
 and Richard Roe, arbitrators, indifferently elected and named, 
 as well on the part and behalf of the above bounden Henry 
 Strong, as of the above named Abram Bevier, to arbitrate, award, 
 order, judge, and determine, of and concerning [here set forth 
 the matter in difference, as stated in the submissio7i,] by and 
 between the said parties, so as the said award be made in wri- 
 ting under the hands of the the said John Doe and Richard Roe, 
 and ready to be delivered to the said parties in difference, or such 
 of them as shall desire the same on or before the 1st day of July 
 next ; then this obligation to be void — otherwise of force. 
 
 Henry Strong, [l. s.] 
 
 Sealed and delivered in presence of 
 Samuel Hardy. 
 
 If it is intended to have a judgment entered on the award, 
 to the foregoing, add : — 
 
 " And it is hereby agreed that a judgment in the Supreme 
 Court may be rendered upon the award, to be made pursuant to 
 the above submission." 
 
 form of an award. 
 
 To all to whom these presents shall come, Greeting : 
 
 Whereas, a controversy has arisen, and is now depending, be- 
 tween Henry Strong, of Binghamton, and Abram Bevier, of 
 the same place, for determining which, the said Henry Strong 
 and Abram Bevier, have bound themselves, each to the other, 
 in the penal sum of five hundred dollars, by their several bonds, 
 bearing date the 8th day of June, 1849, conditioned, [here state 
 the substance of the terms of the suhmission :] now, therefore, 
 know ye that we, the said John Doe and Richard, taking upon
 
 264 OF ARBITRATIONS. 
 
 US the charge and burden of said award, and having dehberately 
 heard the allegations and proofs of both the said parties do, by 
 these presents, award of, and concerning the premises, in man- 
 ner and form following, that is to say : — 
 
 We do award, order, decree, and adjudge [here state the facts 
 as the arbitrators determine.] 
 
 In witness whereof, the said arbitrators to this award, have 
 set their hands and seals, this 1st day of July, 1849. 
 
 John Doe, [l. s.] 
 Richard Roe, [l. s.] 
 
 form op release in pursuance of an award. 
 
 Broome County, ss. — Know all men by these presents, that I, 
 Henry Strong, of Binghamton, county aforesaid, for and in con- 
 sideration of the sum of one dollar, to me in hand paid, by 
 Abram Bevier, of the same place, hereby release and discharge 
 the said Abram Bevier of and from all actions, cause and causes 
 of actions, debts, damages, and demands whatsoever, from the 
 beginning of the world to the day of the date of the bonds of 
 submission, between the said Abram Bevier and myself; and 
 this release is given in pursuance of the award made by John 
 Doe and Richard Roe, arbitrators between us, and dated the 1st 
 day of July, 1849. 
 
 Witness my hand and seal, this 2d day of July, 1849. 
 
 Henry Strong, [l. s.] 
 
 The submission and award are final and conclusive between 
 the parties, as to all matters embraced by the terms of the sub- 
 mission, whether the same be actually submitted and passed 
 upon at the hearing or not, or whether such submission or award 
 be by writing or parol. (5 Wend. 268.) And should the par- 
 ties submit all demands between them, and the arbitrators make 
 an award thereupon, and the party by mistake should omit to 
 bring any one of his demands, though entire and distinct, before 
 the arliitrators, yet he cannot afterwards sue for it. (12 J. R. 
 311.) A submission to arbitration, is, moreover, a discontinu- 
 ance of a suit. If, therefore, after the commencement of an ac- 
 tion, ^^ all actions, ^'C," be submitted to arbitration, the defen- 
 dant may plead the fact in bar of the further maintenance of the 
 suit.
 
 OF ARBITRATIONS. 265 
 
 After an appeal from a Justice's judgment, the parties agreed 
 to arbitrate the subject matter of the suit, and accordingly enter- 
 ed into bonds of submission which contained this clause : "all 
 furtlicr proceedings in said suit at law, are to be hereby stayed 
 and ended, and the award or determination is to be final.'' 
 The arbitrators met and heard the parties, but were unable to 
 agree within the time limited by the submission, and finally ad- 
 journed without day. Held, that the submission not only put an 
 end to the appeal, but extinguished the right of sueing upon the 
 original judgment. (6 Hill, 615.) 
 
 Parties to a submission to arbitration may waive the oath of 
 the arbitrators, and such waiver will not divest the proceeding 
 of the character of a statute arbitration. (1 Denio, 440.) Such 
 waiver may be tacit, by going on where the arbitrators are not 
 sworn without objection. 
 
 Upon the submission being proved, by the affidavit of a sub- 
 scribing witness thereto, and upon the award made in pursuance 
 thereof, being proved in like manner, or by the affidavit of the 
 arbitrators, 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 herein provided. (2 R. S. 
 629, sec. 9.) 
 
 Any party complaining of such award, may move the court 
 designated in such submission, to vacate the same upon either 
 of the following grounds. (Id. sec. 10.) 
 
 1. That such award was procured by corruption, fraud, or 
 other undue means. 
 
 2. That there was evident partiality or corruption in the arbi- 
 trators, or either of them. 
 
 3. That the arbitrators were guilty of misconduct in refusing 
 to postpone the hearing upon a sufficient cause shown, or in re- 
 fusing to hear any evidence pertinent and material to the con- 
 troversy, or any other misbehavior by which the rights of any 
 party shall have been prejudiced. 
 
 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. 
 
 Any party to such submission may also move the court desig- 
 nated therein, to modify or correct such award, in the following 
 cases : —
 
 266 OF ARBITRATIONS. 
 
 1. Where there is an evident miscalculation of figures, or an 
 evident mistake in the description of any person, thing or pro- 
 perty referred to in such award. 
 
 2. Where the arbitrators shall have awarded, upon some mat- 
 ter not submitted to them, not affecting the merits of the decision 
 upon the matters submitted. 
 
 3. Where the award shall be imperfect in some matter of 
 form, not affecting the merits of the controversy ; and where, if 
 it had been a verdict, such defect could have been amended or 
 disregarded by the court according to the provisions of law. (2 
 K. S. 629, sec. 11.) 
 
 Every such application to vacate or modify an award, shall 
 be made to the court designated in the submission 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 proceedings on such award, either absolutely, or upon such 
 terms as shall appear just, until the term of the court next after 
 such first term. (Id. sec. 12.) 
 
 On such application, the court may vacate such award, in 
 any of the cases herein before specified ; and if the time within 
 which such award shall have been required to be made, by the sub- 
 mission, has not expired, may, in their discretion, direct a re-hear- 
 ing by the arbitrators ; and in the cases herein specified, the 
 court may modify and correct such award, so as to affect the in- 
 tent thereof, and to promote justice between the parties, (Id. 
 sec. 13.) 
 
 Upon such award being confirmed or modified, the court shall 
 render judgment in favor of the party to whom any sum of mo- 
 ney or damages shall have been awarded, that he recover the 
 same ; and if the award shall have ordered any act to be done 
 by cither party, judgment shall be entered that such act be done 
 according to sucli order. The costs of the proceedings shall be 
 taxed as in suits ; and if no provision for the fees and expenses 
 of the arbitrators, shall have been made in the award, the court 
 ehall make the allowance, as provided by law for references ; 
 but no costs shall be taxed for any otlicr services or expenses 
 prior to such application. (2 R. 8. 630, sec. 11.) 
 
 A record of such judgmout shall be made commencing with 
 a memorandum, reciting the submission ; then stating the hear-
 
 OF ARBITRATIONS. 267 
 
 ing before the arbitrators their award ; the proceedings of the 
 court thereupon, in modifying or confirming such award ; and 
 the judgment of the court, for the recovery of the debt or dama- 
 ges awarded, and that the parties perform the acts ordered by 
 the award, and for the recovery of the costs allowed. (Id. sec. 15.) 
 
 Such record shall be filed and docketed, as records of judg- 
 ments in other cases ; shall 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, on appeal ; and execution shall issue thereupon against 
 the property or person of any party against whom a recovery 
 shall be had, in all respects as upon other judgments. (Id. 
 sec. 16.) 
 
 When any appeal shall be taken on such judgment, certified 
 copies of the original affidavits, upon which any application in 
 relation to such award was founded, and of all other affidavits and 
 papers relating to such application, shall be annexed to, form a part 
 of and be returned with the record of the judgment ; and the court 
 to which such appeal shall be taken, shall reverse, modify or 
 amend, or affirm such judgment, or any part thereof, according 
 to justice. (2 R. S. 630, sec. 17.) 
 
 Where by such judgment, any party shall be required to per- 
 form any act, other than the payment of money, the court ren- 
 dering such judgment, shall enforce the same by rule ; and the 
 party refusing or neglecting to perform and execute such act, or 
 any part thereof, shall be subject to all the penalties of continu- 
 ing an order of such court, and may be proceeded against in the 
 manner prescribed in the thirteenth title of this chapter. (2 R. 
 S. 631, sec. J 8.) 
 
 If upon any application, made pursuant to the foregoing pro- 
 visions, the court shall vacate and set aside, any award of arbi- 
 trators, costs shall be awarded to the prevailing party ; and the 
 payment thereof may be enforced by rule of the court, as in 
 other cases. (Id. sec. 19.) 
 
 Upon every such order vacating an award, the party ag- 
 grieved may appeal, as upon any other judgment of such court ; 
 on which appeal shall be returned certified copies of such order, 
 and of all affidavits and papers used in such application ; and 
 the court to which the appeal shall be taken, shall proceed to 
 confirm or reverse such order, as shall be just. (Id. sec. 20.) 
 
 If such order be reversed, the proceedings shall be remitted
 
 268 OF ARBITRATIONS. 
 
 to the court from which they were removed, to proceed thereon ; 
 or the court to which such proceedings shall have been returned 
 may proceed thereon, after due notice to the party complaining 
 of such awardj to modify, or confirm the same^ in the same 
 manner, and with the Uke effect, as if application for that pur- 
 pose had been originally made to such court. (2 R. S. 631. 
 sec. 21.) 
 
 Arbitration, as a mode of settling controversies, is in many 
 respects preferable to any other. There is but little personal 
 animosity and vituperation incident to it. It saves much time^ 
 trouble, and expense, and places the adjustment of differences 
 in the hands of men of the parties' own choosing, in whom they 
 repose confidence, and by whose judgment and decision they 
 are willing to abide.
 
 CHAPTER XV. 
 
 OF MASTERS, SERVANTS, AND APPRENTICES. 
 
 This chapter embraces the following subjects : 
 
 1. The Relation of Master and Servant. 
 
 2. Apprentices. 
 
 3. When and how an Infant may be bound out as an Ap- 
 
 prentice by consent of the Mother. 
 
 4. When and how an Infant who has no parent living, or 
 
 none in a legal capacity to give consent, may bind 
 himself, or herself, an Apprentice. 
 
 5. When Overseers of the Poor are authorized to bind out 
 
 a child. 
 
 6. Assignment of contract of Apprenticeship. 
 
 7. Steps to be taken when a person lawfully bound to ser- 
 
 vice, refuses to serve. 
 
 8. Steps to be taken when the Apprentice is guilty of any 
 
 misdemeanor or ill behavior. 
 
 9. Proceedings by Apprentice against Master for cruelty? 
 
 misusage, or violation of the contract of Appren- 
 ticeship. 
 
 10. Complaint against Apprentice by Master where money is 
 
 paid with the Apprentice. 
 
 11. Assignment of contract of Apprenticeship upon the death 
 
 of the Master. 
 
 The Relation of Master and Servaiit. 
 
 The relation of master and servant, rests altogether upon 
 contract ; the one obligating himself to render the service, and 
 the other to pay the stipulated consideration. 
 
 If a person retain a servant, and agree to pay him so much a 
 day, month, or year, the servant may have an action against 
 the master on the contract ; and every such retainer will be 
 presumed in consideration of wages, until the contrary appear. 
 (2 Will. 4. Bac. Ab., tit. Master and Servant.) A promise by 
 the servant, to obey the lawful and reasonable orders of the
 
 270 OF MASTERS, SERVANTS, 
 
 master, within the scope of the services contracted for, is also 
 impHed by law. 
 
 Where there is an agreement to work so long, at such a price, 
 or to work so long, or do a particular piece of work, without 
 any specific price agreed on, the party employed has no right to 
 go forward and perform for part of the time, or a part of the 
 job, and then break off without his employer's consent, and 
 bring his action for the work as far as he has gone ; on the 
 contrary, a strict performance, according to agreement is a. con- 
 dition precedent ; and unless the servant fulfils it to the utmost 
 of his capacity, he can recover nothing, but is himself liable to 
 an action for a breach of the contract. In such cases, the con- 
 tract is considered entire, and nothing short of a full 'perform- 
 ance, will enable the party to sustain an action upon it. But 
 where the contract is not entire — as where, by the terms of the 
 agreement, payment may be demanded for a part performance, 
 an action lies for the money due for such part performance. 
 In such case, however, the other party may give evidence of 
 damages sustained in consequence of the non-performance of 
 the residue of the contract, in diminution, or even extinguish- 
 ment of, the claim made against him. (3 Vin. Abr., tit. 5. 2 
 Dane's Abr., 314.) 
 
 A. contracted with B. the owner of a factory, to spin for him 
 ten and a half months, to be paid three cents per run, for the 
 yarn he should spin. A. entered upon the execution of his 
 contract, and spun until his services, at the rate agreed on, 
 amounted to about twenty-five dollars, and then finding his 
 bargain a hard one, he quit before the expiration of the time, 
 and brought his action for the work done. B. kept regular debt 
 and credit in his book, charged A. with three dollars paid, and 
 credited him with the work, at so much a run. On this evi- 
 dence, the jury before a Justice of the Peace, found a verdict in 
 favor of A. for twenty-two dollars and thirty-five cents. But 
 the Supreme Court reversed the judgment, holding the contract 
 to be entire ; that its performance was a condition precedent, 
 and no suit could lie until performance of the ten and a half 
 months' service. (12 John. 165.) And where C. agreed to 
 work for I), eight months for .fl04, or $13 per month, and 
 worked near two months, and left, refusing to work any longer, 
 it was hold that the contract was entire for eight months at a 
 stipulated price, and that, as there was no modification or re-
 
 AND APrRENTICES. 271 
 
 cisioii of it, C. had no claim until the expiration of eight 
 months ; that the work was a condition precedent to payment 
 by D. (19 John. 337. 2 Pick. R. 267. Id. 332.) So where a 
 sailor hired for a voyage, and took a promissory note from his 
 employer for thirty guineas, provided he proceeded, continued, 
 and did his duty as second mate from Kingston to Liverpool^ 
 but died on the voyage ; it was held that no action lay for v/hat 
 he had done. (6 T. K. 320.) So, where A. agreed with B. to 
 erect and finish a barn by such a day, for four hundred dollars ; 
 but performed only a part, and left it unfinished, without B.'s 
 consent ; it was held that A. could recover nothing for what he 
 had done. (2 Mass. R. 147.) And in a contract between C. 
 and D., that C. should repair U.'s damaged chandelier, and 
 make it complete, for ten pounds ; held, that no action could be 
 sustained for the value of a partial repair, though beneficial to 
 D., and consisting partly of a supply of fresh materials, such 
 materials not having been demanded back. (4 Man. & Ryl. 1.) 
 And in an action for work and labor in curing a flock of sheep 
 of the scab, it was proved that the plaintiff had declared that 
 he did not expect to be paid unless he cured all ; and it appear- 
 ing that forty out of the flock were not cured ; held, that he 
 was not entitled to recover any thing. (6 Dowl. & Ryl. 3.) 
 
 If a servant hired for a definite term, leaves the service before 
 the end of it, without reasonable cause, or is dismissed for such 
 misconduct as justifies it, he loses his right to wages for^the 
 period he has served. (2 Carr. & Payne's N. P. Rep. 510. 6 
 id. 15.) 
 
 Where L. hired to P. for a year, and after working ten months 
 and a half, went away, saying he would work no more for P., 
 but two days after returned, and offered to fulfil his contract, 
 which P. would not permit ; held, that L. could not recover 
 any thing for the time he had worked ; and that L. having 
 wantonly deserted P.'s service without his fault, he was guilty 
 of a violation of the contract, and P. was under no obligation 
 to receive him again. (8 Cow. 63.) So, where the plaintiff 
 agreed to log up, burn and clear, fit for sawing, in a farmer like 
 manner, ten acres of land by the 20th of September, to be paid 
 at the rate of eight dollars per acre ; and the plaintiff did clear 
 part of the land, but put uj) no fence, and then quit the work 
 of his own accord without the default of the defendant ; it was 
 held, that the plaintiff could recover nothing. (13 John. 44.)
 
 272 OF MASTERS, SERVANTS, 
 
 And where a sailor contracts for certain wages, to serve the 
 master of a ship, and not depart the ship without leave, until 
 the voyage be ended, and the vessel discharged of her cargo ; 
 although the vessel arrive at her port of discharge, and is there 
 moored, yet if the sailor quit the vessel, without leave, before 
 the cargo is discharged, all his wages are forfeited, and he can 
 recover nothing. (13 John. 390.) 
 
 A servant may be dismissed by the master before the expira- 
 tion of the term, either for wilful disobedience, immoral conduct, 
 or habitual neglect. (4 Carr. & Payne's N. P. Rep. 518.) 
 
 In one case, the plaintiff" was a yearly servant to the defend- 
 ant, a farmer ; he refused, as dinner was ready, to go Avith the 
 defendant's horses about a mile, before he had eaten his dinner, 
 though asked to do so by his master ; on this ground, the mas- 
 ter dismissed him immediately, and before the end of the year ; 
 yet it was held that the servant could not recover ; that the 
 master was warranted m turning him away ; that after a refu- 
 sal on the part of the servant, to perform his work, the master 
 was not bound to keep him as a burthensome and useless ser- 
 vant, to the end of the year. (2 Stark. 256.) The fact of a 
 servant's inducing his master's apprentice to run away, or of a 
 clerk's having made fraudulent entries in his master's account 
 books, have been held justifiable causes for an immediate dis- 
 missal. So, if the acting manager of a theatre conduct himself 
 in such an improper manner, as to make it injurious to the inte- 
 rests of the theatre to keep him, the lessee, or proprietor may 
 lawfully dismiss him. (Chitt. on Con. 580.) 
 
 Where a justifiable cause for dismissal exists, it is sufficient 
 to prevent the servant's recovering wages, though the servant 
 might not, in fact, have been dismissed upon that ground ; and 
 it is not necessary that the cause relied on, in answer to an ac- 
 tion for wages, should have been stated at the time of dismissal. 
 (Id.) 
 
 ■Where the contract is dissolved by mutual consent before the 
 period at which the wages became due, the servant may recover 
 his wages yro rala, without any express contract to that effect. 
 (Id.) 
 
 The master is bound by the act of his servant, either in re- 
 spect to contracts or injuries, when the act is done by authority 
 of the master. 
 
 A master is liable for any act done by his servant, in exccu-
 
 AND APPRENTICES. 273 
 
 ting liis orders with ordinary care. Consequently, where a mas- 
 ter ordered his servant to lay down a quantity of rubbish near 
 his neighbor's wall, but so that it might not touch the same, 
 and the servant used ordinary care in executing the orders of 
 his master, but some of the rubbish naturally ran against the 
 wall, it was held that the master was liable. (Steph. N. P. 3, 
 2337.) 
 
 The master is also liable if the injury proceeds from negli- 
 gence or want of skill in the servant ; for it is the duty of the 
 master to employ servants who are honest, skilful, and careful. 
 An action, therefore, lies against a master, if, while the servant 
 is driving his master in a gig, the horse runs away and does 
 damage. So also, in an action for damage done to the plaintiff's 
 carriage, against which the defendant's cart was driven, the de- 
 fendant was held liable, although it appeared that the defen- 
 dant's servant was not driving at the time of the accident, but 
 had entrusted the reins to a stranger, who was driving him, and 
 who was not in the service of the defendant. (Steph. N. P. 3, 
 2338.) A person occasionally employed by the defendant as 
 his servant, being sent out by him on his business, took the 
 horse of another person, in whose service he also worked, and 
 in going, rode over the plaintiff. At the trial, it was left to the 
 jury to say whether or not the horse v/as taken by the servant, 
 with the implied authority of the defendant ; and a verdict hav- 
 ing been found for the plaintiff, a new trial was refused. (Id.) 
 
 If a servant employs another servant to do his business, and 
 in doing it, the servant so employed is guilty of an injury, the 
 master is liable. Thus, A. contracted with B. to repair a house, 
 and B. contracted with C. to do the work, and C contracted 
 with D, to furnish the materials ; and the servant of D. brought 
 a large quantity of lime to the house, and placed it in the road, 
 by which the plaintiff's carriage was overturned ; it was held 
 that A. was answerable for the damage, on the ground that all 
 the sub-contracting parties were in the employment of A. To 
 render this principle applicable, however, the nature of the busi- 
 ness must be such as to require the agency of subordinate per- 
 sons, and then there is an implied authority to employ such per- 
 sons. (2 Kent's Com. 260.) 
 
 fif a servant does an injury fraudulently, while in the imme- 
 diate employment of his master, the master and servant are both 
 liable. (Id. 259.) In such a case, it is competent for the plain- 
 
 18
 
 274 OF MASTERS, SERVANTS, 
 
 tiff to bring his action either against the person from whom the 
 authority flowed, or against the person by whom the injury was 
 actually committed. (Steph. N. P. 3, 2337.) 
 
 The master is only answerable for the fraud of his servant, 
 while he is acting in his business, and not for fraudulent or tor- 
 tious acts, or misconduct, in those things which do not concern 
 his duty to his master, and which, when he commits, he steps 
 out of the course of the service. (2 Kent's Com. 259.) If a ser- 
 vant driving a carriage, in order to effect some purpose of his 
 own, wantonly strike the horses of another person, and produce 
 the accident, the master will not be liable ; nor will he be lia- 
 ble if the servant use the carriage for his own purpose, and with- 
 out his master's consent. (Steph. N. P. 2340.) Where a van 
 was standing at the door of A., from which A.'s goods were un- 
 loading, and A.'s gig was standing behind the van ; and B.'s 
 coachman, who was driving B.'s carriage, came up, and there 
 not being room for the carriage to pass, the coachman got off his 
 box, and laid hold of the van horse's head, which caused the 
 van to move, and thereby a case fell out of the van upon the 
 shafts of the gig and broke them ; it was held that B. was not lia- 
 ble for this, as the coachman was not acting in the employment 
 of B. at the time the accident occurred. (Id.) 
 
 If a master command his servant to do an illegal act, the ser- 
 vant, as well as the master, will be liable to the party injured, 
 and the servant cannot plead the command of his master in bar 
 of the action. (Steph. N. P. 3, 2339.) 
 
 A master is not bound to provide medical attendance or medi- 
 cines for his servant, in case of illness, even though the illness 
 arise from an accident which occurred whilst the servant was 
 performing the duties of his situation. (Id.) 
 
 Apprentices. 
 
 Apprentices arc a species of servants, who arc bound to ser- 
 vice for a term of years, by deed, to serve their masters, and to 
 be maintained and instructed by them, in some art or trade. (1 
 Blk. Com. 420.) 
 
 "'^riio relation of master and apprentice is an intimate and in- 
 teresting connection, calculated to give the apprentice a thor- 
 ough trade; and education, and to advance the mechanic arts in 
 skill, neatness, and fidelity of workmanship, as well as in the
 
 AND APPRENTICES. 275 
 
 facility- and utility of their application. The relation, if duly 
 cultivated under a just sense of the responsibility attached to it, 
 and with the moral teachings which belong to it, will produce 
 parental care, vigilance, and kindness, on the part of the master, 
 and a steady, diligent, faithful and reverential disposition and 
 conduct, on the part of the apprentice." (Note to 2 Kent's Com. 
 265.) 
 
 It is a settled principle of law, that the relation of master and 
 apprentice cannot be created, and the corresponding rights and 
 duties of the parent transferred to a master, except by deed. 
 (Id.) The general rule, and the law of this state is, that male 
 infants may be bound to serve until the age of twenty-one, and 
 unmarried females until the age of eighteen. 
 
 The master is bound to provide medical assistance for his ap- 
 prentice ; and he may correct him, with moderation, for negli- 
 gence or misbehavior. (8 Car. & P. 153.) 
 
 The master is entitled to the wages and fruit of the personal 
 labor of the apprentice, while the relation continues and the ap- 
 prentice is in his service ; and there are cases which give the 
 master a right to the wages or earnings of the apprentice, while 
 in another's service, and with or without his master's license, 
 and even though the trade or service be different from that to 
 which the apprentice is bound. (2 Kent's Com. 265.) 
 
 Justices of the Peace may often be required to aid in binding 
 out apprentices. The cases where their aid is required, are the 
 following : (2 R. S. 215.) 
 
 When an infant is bound by the consent of the mother, a Jus- 
 tice of the Peace of the town must certify by endorsment on the 
 indenture, to the fact that the father of such infant is dead, or is 
 not in a legal capacity to give his consent, or has abandoned 
 or neglected to provide for his family. One of these facts must 
 exist to render the mother's consent valid and effectual. (Sees. 
 1 and 2.) 
 
 FORM OP CERTIFICATE. 
 
 I, the undernamed Justice of the Peace of the town of Owego, 
 do certify that the father of the within named John Long, is 
 dead, [or, " is not in a legal capacity to give his consent to the
 
 276 OF MASTERS, SERVANTS, 
 
 binding of the said John Long," or " has absconded and ne- 
 glected to provide for his family."] Dated May 1st, 1849. 
 
 James Bush, Justice. 
 
 An infant who has no parent living, or none in a legal capa- 
 city to give consent, and no guardian, may bind himself or her- 
 self an apprentice, by the consent of the overseers of the poor, or 
 any two Justices of the Peace of the town, or a judge of the 
 county court of the county. Such consent must be in writing, 
 and subjoined to, or endorsed on the indenture. (Sees. 2 and 3.) 
 
 CERTIFICATE OF CONSENT. 
 
 We, two of the Justices of the Peace of the town of Owego, 
 do declare and certify our assent to the binding out of the above 
 [or " within"] named John Long, an apprentice with the within 
 named Henry Peters, according to the form and effect of the 
 within indenture. Dated May 1st, 1849. 
 
 James Bush, ) 
 
 . o ? Justices. 
 
 Alfred Strong, \ 
 
 Overseers of the poor of any town or city, are authorized to 
 bind out any child who, or whose parent or parents shall become 
 chargeable to such town or city ; or who shall have been sent 
 to a poor house, other than the county poor house. The writ- 
 ten consent of two Justices, or of the mayor, recorder, or alder- 
 man of the citj"", or any two of them, is required to such bind- 
 ing ; and it is made their special duty to inform themselves fully 
 of the infant's age. (2 R. S. 215, sec. G. 18 J. R. 270.) 
 
 The act of the Justices, in assenting to the binding, is judi- 
 cial, and they must, therefore, confer together, and not separate- 
 ly ; and their judgment should be exercised solemnly and can 
 tiously. (3 T. R. 380.) 
 
 As it may bo often convenient that a Justice should draw tlie 
 indentures, and necessary that he should understand what the 
 law requires to be inserted therein, to guide him in the deter- 
 mining of his assent, I propose the following form of an inden- 
 ture : — 
 
 FORM OF INDENTUIIE. 
 
 This indenture, made the 10th day of May, in the year eno-
 
 AND APPRENTICES. 
 
 277 
 
 thousand eight hundred and forty-nine, between WiUiatn Stow 
 and Henry West, overseers of the poor in the town of Norwich, 
 in the county of Chenango, and James Jackson, of Norwich 
 aforesaid, carpenter— witnesseth, — 
 
 That the said overseers of the poor have bound, and by these 
 presents do bind, John Burns, who is now chargeable [or, 
 " whose parents are now chargeable," or " who has been sent to 
 the poor house in said town, other than the county poor house,"] 
 to said town, and who is on this day, as we have fully informed 
 ourselves, of the age of ten years, three months and six days 
 as an apprentice to the said James Jackson, and to reside with 
 and serve the said James Jackson, as such apprentice, until he 
 shall arrive at the full age of twenty-one years, and so to serve 
 in all respects, faithfully, obediently, and honestly. 
 
 And the said James Jackson, hereby, for himself, his execu- 
 tors and administrators, covenants and agrees, to and with the 
 said overseers of the poor, as such overseers, and their succes- 
 sors in office, and to and with the said John Burns, that he 
 will instruct the said John, in every reasonable and practicable 
 manner in the trade or business of a carpenter, which he now 
 follows ; that he will, during said term, provide for him neces- 
 sary boarding, lodging, apparel, medicines, and medical atten- 
 dance ; that he will cause him to be instructed in reading, 
 writing, and the ground rules of arithmetic ; that he will pro- 
 vide for, and deliver to him, at the expiration of said term, one 
 good suit of holiday clothes, and give to him all articles of his 
 every day apparel, then in wear, and also a new bible ; and that 
 he will in such manner provide for, and take care of said appren- 
 tice, that he shall not, during said term, be, in any manner, a 
 charge to said town. In witness whereof, we have hereunto set 
 our hands and seals the day and year first above written. 
 
 William Stow, [l. s.] 
 
 Henry West, [l. s.] 
 James Jackson, [l. s.] 
 
 Sealed and delivered in presence of, 
 John Doe. 
 
 The agreement to instruct the apprentice in reading, writing, 
 and (if a male) arithmetic, and to give a new bible, must be 
 inserted in the indenture ; the other agreements by the master 
 as expressed in the above form, are customary, and may be va-
 
 278 OF MASTERS, SERVANTS, 
 
 ried to conform to the contract as actually made. It is, howe- 
 ver, to be observed, that a female can be bound only to the age 
 of eighteen. (2 R. S. 215, sees. 10 and 1.) 
 
 FORM OF justice's CERTIFICATE TO BE SUBJOINED TO, OR 
 ENDORSED UPON THE INDENTURE. 
 
 We, being two of the Justices of the Peace of the town of 
 Norwich, having fully informed ourselves of the age of the 
 within named John Burns, and having conferred together 
 touching the propriety of the binding of the said John Burns, 
 as by the within [or " foregoing"] indenture, do hereby declare 
 our assent thereto. Dated May 10th, 1849. 
 
 , Alvin Hunt, 
 Henry St. John, 
 Justices. 
 
 An infant coming from a foreign country, beyond sea, may 
 bind himself to service in the manner specified in the statute. 
 But such contract of service must be acknowledged, before 
 either a mayor, recorder, alderman, or Justice of the Peace, and 
 a certificate thereof, endorsed on the contract. (2 R. S. 215, 
 sees. 12 and 13.) 
 
 form of CERTIFICATE. 
 
 I, the undernamed Justice of the Peace of the county of Che- 
 nango, do certify, that, on the 10th day of May, 1849, the within 
 named, John Doe, personally came before me, and being by me 
 privately examined, acknowledged that he freely made the 
 within contract. 
 
 David Long, Justice." 
 
 Such contract may be assigned by the master, by a written 
 endorsement, executed in the presence of two witnesses. But 
 to render such assignment valid, the written approbation of one 
 of the above mentioned officers must be endorsed on the con- 
 tract, (id. 21G, sec. 14.) 
 
 FORM OF APPROBATION. 
 
 T, the undernamed Justice of the Peace of the county of Che- 
 nango, do hereby declare my approbation of the assignment of
 
 AND APPRENTICES. 279 
 
 the within contract by the within named James Jackson, to 
 Richard Roe, of said county. Dated May 10th, 1849. 
 
 David Long, Justice. 
 
 If a person lawfully bound to service, refuse to serve, as by 
 law, and the terms of his contract or indenture, required, the 
 master may apply to a Justice of the Peace of the county where 
 he resides, to enforce his service. The act authorizes the Jus- 
 tice to send for the person so refusing, either by warrant, or 
 otherwise. Although the act requires no formal complaint to be 
 made, yet, it seems to me proper to be done, before issuing the 
 warrant. (2 R. S. 219, sec. 29.) 
 
 FORM OF COMPLAINT. 
 
 Chenango County, ss. — Henry Strong, of Oxford, in said 
 county, being duly sworn before the undernamed Justice of the 
 Peace of said county, makes oath and complains, that Samuel 
 Hardy, who has been lawfully bound to service, to the said 
 Henry Strong, and on whose binding no sum of money was 
 received, or entitled to be received, by said Henry Strong, and 
 whose term of service is now unexpired, refuses to serve the 
 said Henry Strong, as by law, and the terms of his indenture, 
 required. 
 
 Henp.,y Strong. 
 Subscribed and sworn before me, 
 June 1st, 1849. 
 
 David Long, Justice. 
 
 FORM OF WARRANT. 
 
 County of Chenango, ss. 
 
 To any Constable of said County, Greeting. 
 Whereas, Henry Strong, of Oxford, in said county, has this 
 day made complaint, on oath before me, the undernamed Jus- 
 tice of the Peace of said county, that Samuel Hardy, \as in the 
 complaint.] You are, therefore, hereby commanded, in the 
 name of the people of the State of New York, forthwith to 
 bring the said Samuel Hardy before me, at my office, in Oxford 
 aforesaid, to be dealt with, in the premises, as the law requires. 
 Given under my hand, at Oxford, the 1st day of June, 1849. 
 
 David Long, Justice.
 
 280 OF MASTERS, SERVANTS, 
 
 If the apprentice, when brought before the Justice, persist in 
 his refusal to serve, he must be committed, &-c., until he will 
 consent to serve. (2 R. S. 219, sec. 29.) 
 
 FORM OF WARRANT TO COMMIT. 
 
 Chenango County, ss. 
 
 To any Constable of said County, Greeting. 
 Whereas, Samuel Hardy, an apprentice, lawfully bound, to 
 service to Henry Strong, of Oxford, in said county, has been 
 this day brought before me, the undernamed Justice of the 
 Peace of said county, by my warrant, issued upon the com- 
 plaint, on oath, of the said Henry Strong, that the said Samuel, 
 &c., [as in the complamt.] And inasmuch as the said Samuel 
 Hardy, now before me, persists in his refusal to serve the said 
 Henry Strong, and it appears to me, upon due proof, that said 
 Samuel Hardy has been lawfully bound to service to the said 
 Henry Strong ; that said Henry Strong has not received, nor is 
 entitled to receive, any sum of money for his instruction of said 
 Samuel Hardy ; that the term for which he is so bound is now 
 unexpired, and that his said refusal is contrary to the terms of 
 his indentures, and to the law, in such case made and provided : 
 You are, therefore, hereby commanded, in the name of the peo- 
 ple of the State of New Yorkj to convey the said Samuel 
 Hardy to the common jail of said county, the keeper whereof is 
 hereby required to detain the said Samuel Hardy in custody in 
 said jail, until he shall consent to serve the said Henry Strong, 
 as by law required. Given under my hand, at Oxford aforesaid, 
 June 2d, 1849. 
 
 David Long, Justice. 
 
 If a person lawfully bound to service under the provisions of 
 the above mentioned title, be guilty of any misdemeanor, or ill 
 behavior, the master may make complaint thereof on oath, to 
 two Justices of the Peace of the county, who are required to 
 cause the offender to bo brought before them ; and if they find 
 the complaint well founded, may cither commit him to jail for 
 a term not exceeding one month, or discharge him from his 
 service. (2 R. S. 219, sees. 30, 31.)
 
 AND APPRENTICES. 281 
 
 FORM OF COMPLAINT. 
 
 Chenango County, ss. — Henry Strong of Oxford in said 
 county, being duly sworn, makes oath and complains, before 
 the undernamed Justices of the Peace of said county, that 
 Samuel Hardy, who is lawfully bound as an apprentice to said 
 Henry Strong, and on whose binding no sum of money was re- 
 ceived, or entitled to be received, by said Henry Strong as a 
 compensation for the instruction of said Samuel Hardy, and 
 whose term of service is unexpired, has been guilty in his ser- 
 vice of divers acts of misdemeanor and ill behavior ; that is to 
 say, the said Samuel Hardy has for some time past, against the 
 will, and repeated reproofs and remonstrances of said Henry 
 Strong, habitually resorted to taverns and places of amusement, 
 and become altogether unsteady and unfaithful. — \or other 
 cause of complaint which gave rise to the prosecution, as the 
 case may &e.] 
 
 Henry Strong. 
 Subscribed and sworn before us,. 
 
 June 1st, 1849. 
 
 David Long, ; 
 
 T X) } Justices. 
 
 James IIussell, \ 
 
 FORM of warrant. 
 
 Chenango County, ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas, Henry Strong of Oxford, in said county, has this 
 day made complaint on oath to us, the undernamed Justices of 
 the Peace of said county, that Samuel Hardy, &c. — [Acre set 
 forth the substance of the com,plaint.'\ You are, therefore, 
 hereby commanded, in the name of the people of the state of 
 New York, forthwith to apprehend the said Samuel Hardy, and 
 bring him before us, at the office of the undernamed David 
 Long in Oxford aforesaid, that we may hear, examine and de- 
 termine said complaint, and deal with said Samuel Hardy in 
 the premises as by law required. 
 
 Given under our hands at Oxford, June 1st, 1849. 
 
 David Long, \ oi-j'-,::^ 
 
 James Russell, \ Justices. ' 
 
 Although the statute does not, in terms, require a record of
 
 282 OF MASTERS, SERVANTS, 
 
 conviction, in case they find the apprentice guilty, to be made, 
 yet the importance and effect of a decision against the ap- 
 prentice, seems to render such a proceeding proper and ne- 
 cessary. 
 
 FORM OP RECORD. 
 
 Chenango County^ ss. — Be it remembered, that on the 1st 
 day of June, instant, at Oxford, in said county, came personally 
 Henry Strong, of Oxford aforesaid, before us, the undernamed, 
 being two of the Justices of the Peace of said county, and 
 made to us complaint on oath, that Samuel Hardy, &.c. — [here 
 set forth the complaint] — whereupon we did issue our warrant, 
 to cause the said Samuel Hardy to be brought before us to 
 answer to said complaint, &c. ; and now, at this day, to wit, on 
 the 2d day of June, 1849, at Oxford aforesaid, the said Samuel 
 Hardy is personally brought before us, and the said Henry 
 Strong also appears ; and we, having heard and examined the 
 proofs and allegations, as well of the said Henry Strong, touch- 
 ing his said complaint, as of the said Samuel Hardy, in his 
 defence thereof; and it appearing to us, that said complaint is 
 well founded, and that the said Henry Strong has not received, 
 nor is entitled to receive, any sum of money as a compensation 
 for his instruction of said Samuel Hardy, do determine and 
 adjudge, that said Samuel Hardy is guilty of the premises 
 whereof the said Henry Strong has complained against him, as 
 aforesaid ; and we do further adjudge and determine, that said 
 Samuel Hardy be imprisoned for his said offence, in the com- 
 mon jail of said county, there to be employed in hard labor, and 
 be confined in a room with no other person, for the term of 
 twenty days. 
 
 In witness whereof, we have hereunto set our hands, at 
 Oxford aforesaid, this 2d day of June, 1849. 
 
 David Long, ) 
 James Russell, \ 
 
 form of warrant to commit, &c. 
 
 Justices. 
 
 Chenango County, ss : 
 
 To any Constable of said County, Greeting : 
 Wlioroas, Henry Strong of Oxford, in said county, made 
 complaint on oath to us, two of the Justices of the Peace of
 
 AND APPRENTICES. 283 
 
 said county, that Samuel Hardy, &.c. — [here set forth the com- 
 plaint.] And whereas, we caused the said Samuel Hardy to 
 appear this day before us. at Oxford aforesaid, (and the said 
 Henry Strong also appeared,) and upon hearing and examining 
 the proofs and allegations both of said Henry Strong and 
 Samuel Hardy, touching the matter in said complaint alleged, 
 and it appearing to us, that said complaint is well founded, and 
 that said Henry Strong had not received, and was not entitled 
 to receive, any sum of money for the instruction of said Samuel 
 Hardy, we did adjudge and determine, that said Samuel Hardy 
 be imprisoned as hereinafter directed : You are, therefore, 
 hereby commanded, in the name of the people of the state of 
 New York, to take and convey the said Samuel Hardy to the 
 common jail of said county, the keeper whereof is required to 
 retain the said Hardy in safe custody in said jail, employed in 
 hard labor, and in a room with no other person, for the term of 
 twenty days. Witness our hands at Oxford, June 2d, 1849. 
 
 David Long, 
 James Russell, 
 
 Justices. 
 
 If the Justices find the complaint to be well founded, and 
 adjudge, instead of imprisonment, that the offender be dis- 
 charged from his service, (fcc, then, instead of concluding the 
 record as in the foregoing form with the sentence of imprison- 
 ment, say : 
 
 " And do further adjudge and determine, that said Samuel 
 Hardy be henceforth discharged from his service, and the said 
 Henry Strong from all obligations to the said Samuel Hardy, 
 by reason of any contract of service, or indenture of apprentice- 
 ship, between them, or in behalf of said Samuel Hardy, here- 
 tofore made." 
 
 FORM OP CERTIFICATE OF DISCHARGE. 
 
 Chenango County^ ss. — Whereas, upon due hearing and ex- 
 amination before us, being two of the Justices of the Peace of 
 said county, touching certain acts of misdemeanor and ill beha- 
 vior of Samuel Hardy, in his service as an apprentice, lawfully 
 bound to Henry Strong, of Oxford, in said county, whereof the 
 said Henry Strong made complaint on oath before us ; and
 
 284 OF MASTERS, SERVANTS, 
 
 whereas, upon hearing the proofs and allegations, both of said 
 Henry Strong and Samuel Hardy, who appeared before us and 
 submitted the same, touching said complaint, and it appearing 
 to us that said Henry Strong had not received, nor was entitled 
 to receive, any sum of money, as a compensation for his in- 
 struction of said Samuel Hardy ; we did adjudge and deter- 
 mine that said complaint was well founded, and that said 
 Samuel Hardy be henceforth discharged from his service, and 
 the said Henry Strong from all obligations to the said Samuel 
 Hardy ; as by the record of our said determination remaining 
 before us, may more fully be seen. Now, therefore, know all 
 men whom it may concern, that the said Samuel Hardy is dis- 
 charged from his service to the said Henry Strong, and the said 
 Henry Strong from all obligations to the said Samuel Hardy ; 
 any contract of service, or indenture of apprenticeship between 
 them, or in behalf of the said Samuel Hardy, heretofore made, 
 to the contrary notwithstanding. 
 
 Given under our hands at Oxford, June 2d, 1849. 
 
 David Long, ; _ 
 
 T -n [ Justices. 
 
 James IIussell, ) 
 
 If a master be guilty of any cruelty, misusage, refusal of ne- 
 cessary provisions or clothing, or any other violation of law, or 
 the terms of his contract, towards the person bound to his ser- 
 vice, such person may complain to two Justices of the Peace of 
 the county, who are empowered to summon the parties before 
 them, examine into, hear, and determine the complaint, and if 
 they find sufficient cause, discharge such person from his obli- 
 gation of service. (3 R. S. 219, sec. 32.) 
 
 FORM OF COMPLAINT. 
 
 Chenango Countij, ss. 
 
 Samuel Hardy, of Oxford, in said county, being duly sworn, 
 makes oath and complains to the undernamed Justices of the 
 Peace of said county, that he is now an apprentice, lawfully 
 bound to Henry Strong, of Oxford, aforesaid, tin smith, the said 
 Henry Strong not liaving received, nor being entitled to receive 
 any sum of money with him as a compensation for his instruc- 
 tion ; and that said Henry Strong has misused him, the said
 
 AND APPRENTICES. 285 
 
 Samuel Hardy, by refusing to him necessary clothing — [or 
 
 other matter of complaint, as the case may he.\ 
 
 Samuel Hardy. 
 
 Subscribed and sworn before us, 
 
 June 2d, 1849. 
 
 David Long, ; ^ 
 
 T -D \ Justices. 
 
 James Kussell, \ 
 
 form op summons. 
 
 Chenango County^ ss. 
 
 To any Constable of said county, Greeting : 
 Whereas, Samuel Hardy, has this day made complaint, on 
 oath, to us, the undernamed Justices of the Peace of said county, 
 [here set forth the complaint ;] you are therefore hereby com- 
 manded, in the name of the people of the state of New York, to 
 summon the said Henry Strong and Samuel Hardy to appear be- 
 fore us, at the office of the undernamed David Long, in Oxford, 
 aforesaid, on the 7th day of Jane, instant, at two o'clock in the 
 afternoon, that we may examine into, hear, and determine, said 
 complaint. Given under our hands, at Oxford, aforesaid, June 
 2d, 1840. 
 
 David Long, 
 
 T T, f Justices. 
 
 James Kussell, 
 
 If the Justices find this complaint well founded, they are di- 
 rected to discharge the apprentice from his service. The fore- 
 going forms of the record and certificate of discharge, upon the 
 complaint of the master, may be easily varied and adapted to 
 this case. 
 
 All the preceding cases relating to proceedings against ap- 
 prentices and masters, for refusing to serve, ill behavior, misus- 
 age, &c., are not applicable where the master or mistress shall 
 have received, or shall be entitled to receive, money with the 
 apprentice, as a compensation for instruction. For, in cases 
 where money is paid, or agreed to be paid, the final order be- 
 tween the master and apprentice, can be made only by the Court 
 of Sessions of the Peace, as in the cases following. (2 R. S. 219. 
 sec. 33.) 
 
 In case money is paid or agreed for, on the binding, the per- 
 son bound may make the like complaint against the master for
 
 2ge OF MASTERS, SERVANTS, 
 
 cruelty, misusage, &c, to a Justice of the Peace of the county 
 where he resides. The Justice is authorized to make such order 
 and direction between the master and apprentice as the equity 
 of the case may require ; and if he cannot reconcile the diffi- 
 culty, must recognize the master to appear at the next Sessions, 
 in such sum and with such surety as he shall approve. (Id. sec. 
 
 35.) 
 
 The two preceding forms of a complaint and summons, may 
 housed in this case, upon reversing the allegation as to the pay- 
 ment, or agreement to pay money on the binding, and slightly 
 varying the conclusion of the summons. 
 
 FORM OF RECOGNIZANCE. 
 
 We, Henry Strong and John Doe, both of Oxford, in the county 
 of Chenango, acknowledge ourselves to owe to the people of the 
 state of New York,— that is to say, the said Henry Strong, the 
 sum of one hundred dollars, and the said John Doe, the sum of 
 fifty dollars, to be respectively made and levied of our several 
 floods and chattels, lands and tenements, to the use of said peo- 
 ple, if default shall be made in the condition following : 
 
 The condition of this recognizance is such that, whereas Sam- 
 uel Hardy has made complaint, on oath, to the undernamed 
 Justice of the Peace of said county, that he is now an appren- 
 tice lawfully bound to Henry Strong, of Oxford, aforesaid, — that 
 the said Henry Strong did receive, on the binding of the said 
 Samuel Hardy, [or, " it was agreed, on the binding of said Sam- 
 uel Hardy, that said Henry Strong should be paid," the sum 
 of (fee, [i?isert the residue of the complaint ;] and the said 
 Henry Strong and Samuel Hardy having this day appealed be- 
 fore said Justice, and the said Justice thereupon proceeded to 
 inquire into the matter of said complaint, and to make equitable 
 order and direction between them, was unable to compound or 
 reconcile the difficulty between them : Now, therefore, if the 
 said Henry Strong shall appear at the next Court of Sessions of 
 the Peace, to be holden in and for said county of Chenango, and 
 abide the order of said court, touching the matter of said com- 
 plaint, or matter relating to the binding or service of said Sam-
 
 AND APPRENTICES. 287 
 
 uel Hardy, and not depart from the court without leave — then 
 this recognizance to be void, otherwise of force. 
 
 Henky Strong. 
 Taken, subscribed, and acknowledged, 
 this 2d day of June, 1849, before me, 
 
 David Long, Justice. 
 
 The master may, in like manner, where money was paid or 
 agreed to be paid on the binding, complain to a Justice of the 
 Peace of the county, of the refusal to serve, misdemeanor, or 
 ill behavior of the person bound ; and the Justice is bound to 
 inquire in the same manner, and may recognize the person 
 bound to serve for his appearance at the next Court of Sessions. 
 (2 R. S. 220, sec. 37.) 
 
 The forms already given, may be readily adapted to the last 
 mentioned case. 
 
 Upon the death of a master to whom a person may have been 
 bound to service, by either the superintendents or overseers of 
 the poor, the executors or administrators of the master, with the 
 written consent of the person bound, may assign the contract of 
 service to any other person. Such written consent must be 
 acknowledged before a Justice of the Peace. (Id. sec. 41.) 
 
 FORM OP CERTIFICATE OP ACKNOWLEDGMENT. 
 
 I certify that Samuel Hardy this day personally appeared be- 
 fore me, and acknowledged that he freely executed the within 
 [or " foregoing," or " aribexed,"] written conset. 
 
 David Long, Justice,
 
 CHAPTER XVI. 
 
 DUTIES OF JUSTICES OF THE PEACE, IN REFERENCE TO THE 
 INTERNAL POLICE OP THE STATE. 
 
 I shall treat the subjects of this chapter under the following 
 heads : — 
 
 1. Of the Relief and Support of Indigent Persons. 
 
 2. Of Beggars and Vagrants. 
 
 3. Of Disorderly Persons. 
 
 4. The support of Bastards. 
 
 5. The safe keeping and care of Lunatics. 
 
 6. The care of Habitual Drunkards. 
 
 7. Of Profane Cursing and Swearing. 
 
 8. Of the Disturbance of Religious Meetings. 
 
 9. Of the observance of Sunday. 
 
 10. Of Excise, and the Regulation of Taverns and Gro- 
 
 ceries. 
 
 11. Of the Destruction of Wolves, and other noxious Ani- 
 
 mals. 
 
 1 2. Of Hnvkers and Pedlars. 
 
 13. Proceedings for Draining Swamps, Marshes, and 
 
 other Low Lands. 
 
 14. Preservation of Public Health. 
 
 1. Of the Relief and Support of Indigent Persons. 
 
 In any county where a poor house is established, or other 
 place is provided for the reception of the poor, if a person apply 
 for relief to an overseer of the poor, the overseers, or any of 
 them, must inquire into the state and circumstances of the ap- 
 plicant, and if they find such person a proper subject for perma- 
 nent rcHef, and can bo safely removed, they must, by a written 
 order, cause such applicant to be taken to the poor house or 
 othet place provided as aforesaid. If the county is one of those 
 where the respective towns are required to support their own 
 poor, tlie overseers should designate, in their order of removal,
 
 DUTIES OF JUSTICES OF THE PEACE, &c. 289 
 
 whether the pauper is chargeable to the county or not. If no 
 such designation is made, the pauper will be deemed to belong 
 to the town whose overseers or overseer make the order. (1 R. 
 S. 791, sec. 43.) 
 
 FORM OP ORDER OP REMOVAL TO POOR HOUSE. 
 
 Town of Norwich^ ss. — Application for relief having been 
 made by Samuel Jones, a county (or " town") pauper, to us, 
 overseers of the poor of the said town of Norwich, and we hav- 
 ing inquired into the state and circumstances of the said Samuel 
 Jones, and it appearing to us that he is in such indigent circum- 
 stances, as to require permanent relief and support, and that he 
 can be safely removed ; we do, therefore, hereby order, that the 
 said Samuel Jones be removed to the county poor house, to be 
 relieved and provided for as his necessities may require. 
 Given under our hands, this 1st day of June, 1849. 
 
 Jacob King, 
 Henry West, 
 Overseers of the Poor. 
 
 If it appear that the person applying for relief requires only 
 temporary assistance, or is sick, lame, or otherwise disabled, so 
 that he cannot be conveniently removed, the overseers of the 
 poor have the discretionary right to expend a sum, not exceed- 
 ing ten dollars, for the relief of such poor person, or family, to 
 be received from the county treasurer, to be by him charged to 
 the county, if such person be a county charge ; if not, to be 
 charged to the town where the relief was afforded. (1 R. S. 
 792, sec. 46.) 
 
 No greater sum than ten dollars can be expended or paid, for 
 the relief of any one poor person, or one flimily, without the 
 sanction, in writing, of one of the superintendents of the poor of 
 the county, which must be presented to the county treasurer, 
 with an order from a Justice of the Peace of the town. (Id.) 
 
 FORM OF justice's ORDER. 
 
 Town of Oxford, ss : 
 
 To the County Treasurer of the County of Chenango. 
 "Whereas, the overseers of the ])oor of the town of Oxford, have 
 made application to me, the undernamed Justice of the Peace of 
 
 19
 
 290 DUTIES OF JUSTICES OF THE PEACE. 
 
 said town, representing that John Daly, who is now in said 
 town, has applied to them for relief as a pauper — that he is in 
 such indigent circumstances, as, in their opinion, to require the 
 relief sought — and that he is so sick, (or " lame," or " disabled,") 
 that he cannot be conveniently removed to the county poor 
 house. And whereas, since said application to me, 1 have exa- 
 mined into the facts and circumstances, and find that the said 
 representation is, in all respects true, and that said John Daly re- 
 quires temporary relief. The said county treasurer is, therefore, 
 hereby ordered to pay to the said overseers, to be expended in 
 the relief of the said John Daly, the sum of fifteen dollars. Da- 
 ted June 1st, 1849. 
 
 David Long, Justice. 
 
 The sanction of one of the county superintendents of the poor, 
 may be endorsed on the order, thus : 
 
 '•I hereby sanction the payment of the within mentioned sum, 
 by the county treasurer, to the overseers of the poor of the town 
 of Oxford, to be expended by the said overseers for the relief of 
 the person mentioned, and described in the within order. Dated 
 June 1st, 1849. 
 
 Henry Strong, Superintendent of the Poor 
 for the County of Chenango." 
 
 If application for relief be made in any of those counties 
 where no county poor house, or other place, shall have been pro- 
 vided for the reception of the poor, the overseers of the poor 
 must, with the assistance of some Justice of the Peace of the 
 same town, inquire into the facts and circumstances of the case, 
 and make an order, in writing, for such allowance, weekly or 
 otherwise, as the Justice and one of the overseers think required 
 by the necessities of the poor person. (Id. 47.) 
 
 ORDER FOR RELIEF. 
 
 Chenango County, 
 Town of Oxford, 
 
 ^ ss. 
 
 "NVlKjrcas, Ptjtcr Black, of the said town, a poor person, lias 
 ap[)licd for relief to the overseers of the poor, of the said town, 
 and the said overseers, and David Long, a Justice; of the Peace 
 of tlic said town, have in(juircd into the facts and circumstan-
 
 INTERNAL POLICE OF THE STATE. 291 
 
 COS of tlie case, and have ascertained that the said Peter Black 
 is sick, and in such indigent circumstances as to require relief; 
 and that he has a family, consisting of a wife and five children, 
 under the age of ten years, who are dependent on him for sup- 
 port. It is, therefore, hereby ordered, that there shall be allowed, 
 for the relief of the said Peter Black, and his family, weekly, 
 the sum of six dollars, and also, such further sum for medicine, 
 and medical attendance, as shall be necessary, until the ne- 
 cessity for such relief shall cease. Dated this 1st day of June. 
 1849. 
 
 David Long, Justice. 
 
 Jacob King, j 
 
 Tj isr f Overseeis. 
 
 Henry West, ) 
 
 If the pauper has a legal settlement in the town where appli- 
 cation for relief is made, or in any other town of the same 
 county, the overseers must apply the moneys so allowed, to the 
 relief and support of the pauper. The moneys paid by them, or 
 contracted to be paid pursuant to the order, must be drawn by 
 them from the county treasurer on producing the order, out of 
 the funds in his hands, belonging to the town. (1. R. S. 792, 
 sec. 48.) 
 
 If the pauper has no legal settlement in the same county, the 
 overseers must immediately give notice to one of the county su- 
 perintendents ; and, until the county superintendents take charge 
 of the support of the pauper, the overseers are to provide for his 
 relief and support, the expense of which, from the time of giv- 
 ing the notice, is to be paid to the overseers by the county trea- 
 surer, on the production of the order, and proof, by affidavit, of 
 the time of the giving the notice.* (Id. 49.) 
 
 * Any person of full age, who is a resident and inhabitant of any town for one 
 year, is deemed settled in such town. A minor may be emancipated from his or 
 her father, and may gain a settlement. 
 
 1. If a female, by being married and living for one year with her husband, in 
 which case the husband's settlement determines that of the wife. 
 
 2. If a male, by being married and residing for one year separately from the fa- 
 mily of his father. 
 
 3. By being bound as an apprentice, and serving one year. 
 
 4. By being hired, and actually serving for one year, for wages to be paid to sucii 
 mhior. 
 
 A woman of full age, by marrying, acquires the settlement of her husband, if he 
 have anv.
 
 292 DUTIES OF JUSTICES OF THE PEACE. 
 
 The father, mother, and children, who are of sufficient ability, 
 of any poor person, who is bHnd, old, lame, impotent, or decre- 
 pit, so as to be unable to work or maintain himself, are required, 
 by statute, at their own charge, to relieve and maintain such 
 poor person. (1 R. S. 782, sec. 1.) 
 
 The application to compel such relief, is to be made by the 
 overseers of the poor of the town where such poor person may 
 be, to the Court of Sessions of the Peace of the county where 
 such relative may dwell ; of which application, at least fourteen 
 days notice, in writing, must be given, by serving the notice per- 
 sonally, or by leaving it at the last place of dwelling of the in- 
 dividual to whom the same may be directed, in case of his ab- 
 sence therefrom, with some person of mature age. (Sec. 2.) 
 
 FORM OF NOTICE. 
 
 To Mr. John Doe, 
 
 You are hereby notified, that an application will be made by 
 us, the undersigned, the overseers of the poor of the town of 
 Norwich, in the county of Chenango, to the Court of Sessions 
 of the Peace of the said county, at the court house, in Norwich, 
 aforesaid, on the first Tuesday of June next, at ten o'clock in the 
 forenoon, for an order to compel you to relieve and maintain 
 your son Henry, of the said town of Norwich, a poor person, 
 who is lame and decrepit, so as to be unable to work to main- 
 tain himself. Dated the 15th day of May, 1849. 
 
 Jacob King, } ^ 
 
 ' > Overseers. 
 Henry West, ) 
 
 The application to the sessions may be by petition. 
 
 Until a poor person gains a settlement in liis own right, liis settlement is deemed 
 that of hiH fathsr or motlier. But no cliild, born in any place, and used and occu- 
 pied as a residence for the poor of any town, city, or county, can gain any settle- 
 ment merely by reason of the place of such birth; nor can any child, horn while 
 the mother Ih a county pauper, gain any settlement by reason of tlie place of its 
 birth. (2 R. S. 7R1), m-c. Xl) 
 
 No reHidcnce of any person, a3 a i)aupcr, in the county poor house, or place pro- 
 vided for the Bupjiort of the poor, or in any town while supported at the expense of 
 any other town or county, can operate to give sucii pauper a settlement in the 
 town where such actual residence may be had. (Id. sec. 34.)
 
 INTERNAL POLICE OF THE STATE, 293 
 
 FORM OP PETITION. 
 
 To the Court of Sessions of the Peace of the County of 
 
 Chenango. 
 
 The Petition of Jacob King and Henry West, overseers of the 
 
 poor of the town of Norwich, county aforesaid, respectfully 
 
 showeth : 
 
 That Henry Doe, a poor person, wlio resides in the said town, 
 is lame and decrepit, so as to be unable to work to maintain 
 himself; and that John Doe, of the said town of Norwich, the 
 father of the said Henry, is of sufficient ability to relieve and 
 maintain the said Henry, but has neglected and refused so to do, 
 although requested by your petitioners. 
 
 Your petitioners, therefore pray, that the said John Doe may 
 be compelled, by this honourable court, to relieve and maintain 
 his said son Henry, pursuant to the statute in such case made 
 and provided. Dated the 1st day of June, 1849. 
 
 Jacob King, ) ^ 
 
 rx -<:,r I Overseers. 
 
 Henry West, ) 
 
 form of order by the sessions. 
 
 Chenmtgo County Sessions. 
 Jacob King and Henry West, 
 Overseers of the Poor of the 
 Town of Norwich, |. J^^^e 8th, 1849. 
 
 against \ 
 
 John Doe. J 
 
 On reading and filing the petition of the said overseers, and 
 after hearing the proofs and allegations of both the said parties, 
 whereby it appears to the said court that Henry Doe, a poor 
 person who resides in the said town of Norwich, is lame and 
 decrepit, so as to be unable to work to maintain himself, and 
 that John Doe, of the said town of Norwich, the father of the 
 said Henry, is of sufficient ability to relieve and maintain the 
 said Henry, but has neglected and refused so to do, although 
 requested by the said overseers. It is, therefore, ordered by the 
 said court, that the said John Doe, until the further order of this 
 court, shall relieve and maintain his said son Henry, in such 
 manner as shall be approved by the overseers of the poor of the 
 said town of Norwich, or shall pay to the said overseers of the
 
 294 DUTIES OF JUSTICES OF THE PEACE. 
 
 poor weekly, the sum of three dollars, which sum the said court 
 adjudge to be necessary for the support of the said Henry. And 
 it is further ordered, that the said John Doe pay to the said over- 
 seers of the poor, the sum of five dollars, for the costs and ex- 
 penses of this application. 
 
 The father of the decrepit person, is first liable for his sup- 
 port. If the father is not living, or is not of sufficient ability, 
 then the children of such decrepit person. If there are no chil- 
 dren, or they are not of sufficient ability, then the mother. (1 
 R. S. 782, sec. 3.) 
 
 If it appears that any such relative is unable wholly to main- 
 tain such poor person, but is able to contribute towards his sup- 
 port, the court may in its discretion, direct two or more relatives 
 of different degrees to maintain such poor person, and must 
 prescribe the proportion which each shall contribute for that 
 purpose ; and if it appear that the relatives liable as aforesaid, 
 are not of sufficient ability wholly to maintain such poor per- 
 son, but are able to contribute something, the court is required 
 to direct the sum in proportion to their ability, which the rela- 
 tives shall pay weekly for that purpose. (Id. sec. 4.) 
 
 The order may specify the time during which the relatives 
 shall maintain the poor person, or during which any of the 
 sums so directed by the courf, shall be paid ; or it may be in- 
 definite, and until the further order of the court. The court 
 may, from time to time, vary the order, whenever circumstances 
 shall require it, on the application of any relative affected by the 
 order, or of any overseers of the poor of the town, upon fourteen 
 days notice being given. (1 R. S. 783, sec. 5.) 
 
 The payment of the costs and expenses of application to the 
 court of sessions, as well as obedience to the order of mainte- 
 nance may be enforced by process of attachment. (Id. sec. 6.) 
 
 If any relative who shall have been required, by the order, 
 to relieve or maintain any poor person, shall neglect to do so, 
 in such manner as shall be approved by the overseers of the 
 poor of the town where such poor person may be, and shall ne- 
 glect to pay to the overseers weekly, the sum prescribed by the 
 court for tlie support of such poor person, the overseers may 
 maintain an action against such relative, and recover the sum 
 so prescribed by the court for every week the order shall have 
 been disobeyed, up to the time of the recovery, with costs of 
 suit, for the use of the poor. (Id. sec. 7.)
 
 INTERiSTAL POLICE OF THE STATE. 295 
 
 Whenever the father or mother, being a widow, or Uving se- 
 parate from her husband, shall abscond from their children, or a 
 husband from his wife, leaving any of them chargeable, or 
 likely to become chargeable upon the public for their support, 
 the overseers of the poor of the town where such wife or chil- 
 dren may be, may apply to any two Justices of the Peace of the 
 county in which any estate, real or personal, of the said father, 
 mother, or husband, may be situated, for a warrant to seize the 
 same. Upon due proof of the facts aforesaid, the Justices, to 
 whom application is made, must issue their warrant, authoriz- 
 ing the overseers to take and seize the goods, chattels, effects, 
 things in action, and the lands and tenements of the person so 
 absconding. (Id. sec. 8.) 
 
 FORM OF WARRANT. 
 
 Chenango County, ss. 
 
 To the Overseers of the Poor of the Town of Norwich, in 
 
 said County. 
 Whereas, it appears to us, the undersigned, two of the Justi- 
 ces of the Peace of the said county, as well upon the complaint 
 and application of you, the said overseers, as upon due proof 
 upon oath, before us made, that Richard Roe, late of the said, 
 town of Norwich, has absconded from Sarah, his wife, and John 
 and Margaret, his children, leaving them chargeable, [or " likely 
 to become chargeable,"] upon the jDublic for their support, and 
 that the said Richard Roe has some estate in the said county. 
 We do, therefore, authorize you, the said overseers of the poor, 
 to take and seize the goods, chattels, effects, things in action, 
 and the lands and tenements of the said Richard Roe, wherever 
 the same may be found, in the said county. And do you imme- 
 diately make an inventory of the property so seized by you, and 
 return the same, together with your proceedings, to the next 
 Court of Sessions of the Peace of said county. 
 Giren under my hand, this 5th day of June, 1849. 
 
 James Brewster, ) 
 
 T o^ { Justices of the Peace. 
 
 John -Uogardus, ) 
 
 The overseers, by virtue of the warrant, may seize the pro- 
 perty wherever it may be found in the same county ; and they 
 are vested with all the right and title to it which the person ab-
 
 296 DUTIES OF JUSTICES OF THE PEACE. 
 
 sconding had, at the thne of his or her departure. All sales and 
 transfers of any personal property left in the county from which 
 such person absconded, made by him after the issuing of the 
 warrant, whether in payment for an antecedent debt, or for a 
 new consideration are absolutely void. (I R. S. 783, sec. 9.) 
 
 The overseers must immediately make an inventory of the 
 property seized by them, and return the same, together with 
 their proceedings, to the next Court of Sessions of the^^Peace of 
 the county, there to be filed. (Id.) 
 
 FORM OF INVENTORY. 
 
 An inventory of the property of Richard Roe, seized the 5th 
 day of June, 1S49, by Jacob King and Henry West, overseers 
 of the poor of the town of Norwich, by virtue of the warrant 
 hereto annexed, to wit : 
 
 ten sheep, one table, 
 
 one cow, six chairs, 
 
 four swine, one bureau. 
 
 All which we certify, and return to the Court of Sessions of 
 the Peace of the county of Chenango, as by the said warrant 
 we arc commanded. Dated June 5th, 1849. 
 
 Jacob King, 
 Henry West, 
 
 Overseers. 
 
 The court, upon inquiring into the facts and circumstances of 
 the case, may confirm the warrant and seizure, or may dis- 
 charge the same ; and if the same be confirmed, shall, from 
 time to time, direct what part of the personal property shall be 
 sold, and how much of the proceeds of the sale, and of the rents 
 and profits of the real estate, if any, shall be applied towards 
 the maintenance of the children or wife of the person so ab- 
 conding. (1 R. S. 783, sec. 10.) 
 
 FORM OF ORDER BY THE SESSIONS. 
 
 Chenango County Sessions. 
 In the matter of the Overseers ^ 
 OF THK Poor of the town of 
 Norwich V 
 
 against I 
 
 Richard Roe. J 
 
 On reading and filing a warrant and inventory, whereby it
 
 INTERNAL POLICE OF THE STATE. 297 
 
 appears that the said overseers of the poor have seized certain 
 property of the said Richard Roe, late of the said town of Nor- 
 wich, who has absconded from Sarah, his wife, and John and 
 Margaret, his children, leaving them chargeable [or " likely to 
 become chargeahle'^] upon the public for their support, and upon 
 inquiry into the facts and circumstances of the case : It is or- 
 dered, that the said warrant and seizure be confirmed ; and it 
 is further ordered, that all the personal property so seized, be 
 sold by the said overseers, and that out of the proceeds of such 
 sale, the sum of five dollars, weekly, shall be applied by the 
 said overseers, towards the maintenance of the said wife and 
 children of the said Richard Roe. 
 
 The overseers must sell at public vendue, the property so or- 
 dered to be sold, and receive the rents and profits of the real es- 
 tate of the person so absconding ; and in those towns which are 
 required to support their own poor, the overseers must apply the 
 same to the maintaining, bringing up, and providing for the 
 wife, child, or children, so left and abandoned, and for that pur- 
 pose shall draw on the county treasurer. The overseers are re- 
 quired to account to the court granting the oider, for all moneys 
 so received by them, and for the application thereof, from time 
 to time, and may be compelled by the said court, to render such 
 account at any time. (1 R. S. 784, sec. 12.) 
 
 If the person absconding retin-n and support the wife or chil- 
 dren abandoned, or give security, approved by the Justices, to 
 the overseers of the poor of the town, that the relations so aban- 
 doned shall not become chargeable to the town or county, then 
 the Justices who issued the warrant, must, by an order, dis- 
 charge the warrant, and the property seized must be restored. 
 (Id. sec. 11.) 
 
 The statute does not prescribe the kind of security which the 
 Justices may require. In analogy to other similar cases, I se- 
 lect for the form a bond. 
 
 FORM OF SECURITY. 
 
 Know all men by these presents, that we, Richard Roe and 
 John Smith, both of Norwich, in the county of Chenango, are 
 held and firmly bound unto Jacob King and Henry West, over- 
 seers of the poor of said town, in the sum of five hundred dol- 
 lars, for the payment whereof, to the said overseers of the poor.
 
 298 DUTIES OF JUSTICES OF THE PEACE 
 
 or their successors in oillce, wc bind ourselves, our heirs, execu- 
 tors and administrators, jointly and severally, firmly by these 
 presents. Sealed with our seals, and dated the 10th day of June, 
 1849. 
 
 The condition of this obligation is such, that whereas the said 
 overseers of the poor have lately seized the property of said 
 Richard Roe, under a warrant issued by the undernamed James 
 Brewster and John Bogardus, Justices of the said town, upon 
 due proof to them given, that said Richard Roe had absconded 
 from his wife and children, leaving them chargeable [or ^'-likely 
 to become chargeable^''] upon the public for support ; and the said 
 Richard Roe, having returned, and being desirous of having his 
 property so taken, restored to him ; now, therefore, if the said 
 wife and children so abandoned, shall not become, nor hereafter 
 be chargeable, either to said town or county, then this obliga- 
 tion is to be void, otherwise of force. 
 
 Richard Roe, [l. s.] 
 John Smith, [l. s.] 
 Sealed and delivered, and the security 
 
 approved by and before us, 
 
 James Brewster, 
 
 Justices. 
 
 :er, j 
 
 John Bogardu 
 
 FORM OF order TO DISCHARGE THE WARRANT. 
 
 Chenango County^ ss. 
 
 To the Overseers of the Poor of the Town of Norwich, in said 
 
 County. 
 
 Whereas, by our warrant to you directed, bearing date the 
 5th day of June, 1849, we authorized you to seize the goods, 
 chattels, effects, things in action, and the lands and tenements 
 of Richard Roe, of said town, upon due proof to us, that said 
 Richard Roe had absconded from his wife and children leaving 
 them chargeable [or " likely to be chargeable'^] to the public for 
 support. And whereas, the said Richard Roe has returned and 
 sufjporled, and continues to support his wife and children so 
 abandoned, [or " given security to the said overseers of the jjoor, 
 satisfactorily to iis, that the ifife (Did cJiildrcn so abandoned^ 
 shall not become chargeable either to said toirn or county.'''] We 
 do, thorclbre, herel)y discharge our said warrant, and direct the
 
 INTERNAL POLICE OF THE STATE. 299 
 
 property of the said Richard R,oe, taken by virtue thereof, to he 
 
 restored to him. Witness our hands, June 10th, 1849. 
 
 James Brewster, 3 
 
 T T> f Justices. 
 
 JOHN UOGARDUS, ) 
 
 In those counties where all the poor are a charge tipon the 
 county, the superintendents of the poor are vested with the same 
 powers as overseers of the poor, in respect to compelhng rela- 
 tions to maintain paupers, and in respect to the seizure of the 
 property of an absconding parent or husband. (1 R. S. sec. 784, 
 sec. 13.) 
 
 When the proceedings are on behalf of the superintendents, 
 the preceding forms may be readily altered to suit the case. 
 
 2. Of Beggars mid Vagrants. 
 
 The statute defines vagrants to be — " All idle persons, who 
 not having visible means to maintain themselves, live without 
 employment — all persons wandering abroad, and lodging in 
 taverns, groceries, beer houses, out houses, market places, sheds 
 or barns, or in the open air, and not giving a good account of 
 themselves — all persons wandering abroad and begging, or who 
 go about from door to door, or place themselves in the streets, 
 highways, passages, or other public places, to beg or receive 
 alms." (1 R. S. 802, sec. 1.) 
 
 It is made the duty of every constable, or other peace officer, 
 whenever required by any person, to carry a vagrant before a 
 Justice of the Peace of the same town ; or if he be found in a 
 city, before the mayor, recorder, or an alderman, for the purpose 
 of examination. (Id, sec. 2.) For such arrest no process is 
 required. 
 
 The offender may, and probably would, in most cases, be 
 proceeded against by complaint and warrant. I shall, there- 
 fore, propose forms of a complaint and warrant, giving therein 
 the first offence mentioned in the statute. These forms may be 
 readily varied to suit any supposable case. 
 
 FORM OP COMPLAINT. 
 
 Chenango Cotinti/, ss. — John Smith of the town of Norwich 
 in said county, being duly sworn, makes oath and complains, 
 before James Jackson, one of the Justices of the Peace of the
 
 300 DUTIES OF JUSTICES OF THE PEACE. 
 
 said town, that Peter Pray is now in said town, and is an idle 
 person, not having any visible means to maintain himself, and 
 being without employment, and is, as deponent believes, a va- 
 grant, within the meaning and intent of the statute, in such 
 case made and provided. 
 
 John Smith. 
 Subscribed and sworn before me, this 1st day 
 of July, 1849. 
 
 James Jackson, Justice. 
 
 FORM OF WARRANT. 
 
 Chenango County^ ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas, John Smith of Norwich, in said county, has this 
 day made complaint on oath, before me, the undernamed Justice 
 of the Peace of said town, that Peter Pray, &c. — \Jiere set out 
 the complaint.^ You are, therefore, hereby commanded, in the 
 name of the people of the state of New York, forthwith to 
 arrest the said Peter Pray, and bring him before me, the said 
 Justice, at my office in Norwich aforesaid, to answer to said 
 complaint, and to be otherwise dealt with in the premises as the 
 law requires. 
 
 Given under my hand at Norwich aforesaid, this 1st day of 
 July, 1849. 
 
 J AMES Jackson, Justice. 
 
 When the person charged as a vagrant, is brought before the 
 Justice, cither with or without process, the Justice must take 
 his examination, and hear the proofs oiTcred ; and if, upon his 
 confession, or by competent testimony, he is found to be a 
 vagrant, within the description above mentioned, the Justice 
 must make and sign a record of his conviction, which must be 
 filed in the office of the clerk of the county. (1 R. S. 802, sec. 2.) 
 
 The power of a Justice of the Peace to convict an offender 
 in a sunnnary way, witliout a trial by jury, is in restraint of the 
 common law, and nothing will be presu??ied in favor of this 
 branch of iiis office ; but the intendment will be against it. 
 Where, therefore, this especial power is given to him by statute, 
 it must appear that he has strictly pursued it ; otherwise his 
 proceedings will be void. 
 
 There Uiust, in the first place, be an information, or charge
 
 INTERNAL POLICE OF THE STATE. 301 
 
 against a person ; then he must be summoned, or have notice 
 of such charge, and have an opportunity to make his defence ; 
 and the evidence against him must be such as the common law 
 approves, unless the statute specially direct otherwise ; then, if 
 the person be found guilty, there must be a conviction, judg- 
 ment, and execution, according to the course of the common 
 law, directed and influenced by the special authority given by 
 statute ;* and finally, there must be a record of the whole pro- 
 ceedings, wherein the Justice must set forth the ti a • 
 manner and circumstances, so that if an appeal should be taken, 
 it may appear that he has conformed to the law, and not ex- 
 ceeded the bounds prescribed to his jurisdiction. 
 
 A conviction (in the sense in which it is here used,) is a 
 record of the summary proceedings upon any penal statute, 
 before one or more Justices of the Peace, or other persons duly 
 authorized, in a case where the offender has been convicted and 
 sentenced. 
 
 The following observations on the form of a record of con- 
 viction, are principally intended for those cases in which no 
 directions are given by the statute authorizing this mode of 
 proceeding in the particular instance. 
 
 When the conviction proceeds on the information of some 
 person, and not on the Justice's own knowledge, that informa- 
 tion should be set forth, stating the day when it was taken, that 
 it may appear to have been given within the time limited by 
 law ; the place where it was taken, that it may appear that the 
 Justice was acting within the limits of his jurisdiction ; the 
 name of the Justice or Justices to whom it was given ; and if 
 directed to be taken on oath, it should be stated to be so taken. 
 The facts by which the information is supported, must have 
 arisen before the information Avas given ; for if they appear to 
 be subsequent to the information, the conviction will be quashed. 
 The time of committing the offence, must likewise be stated 
 for the same reason as the time of giving the information, that 
 from the day of the offence, and the day of commencing the 
 prosecution, it may appear that it was commenced in due time, 
 and also that the party may be enabled to defend himself 
 against a second charge. But the offence need not be proved 
 
 * The rule of cnpimon law, that statutes in derogation of that law, are to bs 
 strictly construed, has no application to the Code. (Code, sec. 467 )
 
 302 DUTIES OF JUSTICES OF THE PEACE. 
 
 to have been committed precisely on the day alleged ; it has 
 been held, that it was sufficient to state that it was between 
 such and such a time. 
 
 The information must state the place where the offence was 
 committed, that it may appear to have arisen within the juris- 
 diction of the Justice ; and it must be proved to have been com- 
 mitted in the place laid in the information ; for where the juris- 
 diction of the magistrates who try the offence is local, the offence 
 must be proved to have been committed within their juris- 
 diction. 
 
 The particular manner in which the offence was committed, 
 must be set forth and described in the manner directed by the 
 act creating it an offence, that it may appear to come within its 
 provisions. 
 
 Whenever the statute inflicts a penalty for an offence created 
 b}'' it, upon conviction before one or more Justices of the Peace, 
 but there is an exception in the enacting clause of persons 
 under particular circumstances, it is necessary to state in the 
 information, that the defendant is not within any of the excep- 
 tions. And it seems immaterial whether the exception be in 
 the same section, or a preceding section, or in a preceding act, 
 referred to by the enacting clause. 
 
 But where the exemption is contained under a proviso, it is 
 matter of defence, and therefore it is not necessary to state in 
 the conviction that the defendant is not within such proviso. 
 
 It is a fundamental rule, that the party should be summoned, 
 before he is convicted. But the defendant's appearance will, in 
 this case, as in other cases of process, cure not only all defects 
 and informalities in the summons, but also the want of a 
 sunnnons. 
 
 It the party on being summoned, do not appear, proof having 
 been made on oath of the service of the sunnnons, the Justice 
 may proceed to convict him, for he will not be allowed, by his 
 own dcfauU, to escape the penaUy of tiic law. 
 
 The information should be read to the defendant, and he 
 should ho put to plead thereto ; that is, either to confess or deny 
 it, Ijefore the Justice })rocceds to hear evidence in its support. 
 
 Tli<! defendant's confession of the chaige before the Justice, 
 is the strongest evidence of the offence. For though a statute 
 should direct a conviction to be " Upon the oath of one or two 
 credible witnesses," without adding, " Or, by confession of the
 
 INTERNAL POLICE OF THE STATE. 393 
 
 offender," yet conviction upon his confession before the Justice, 
 has been held sufficient ; and what is still stronger, it has been 
 held, tliat a confession made to others, and not to the Justice, if 
 proved by such persons to his satisfaction, in the presence of 
 the defendant, will be sufficient evidence to convict. Where 
 the defendant confesses the charge, it seems to be sufficient only 
 to state in the conviction, the information, the defendant's ap-. 
 pearance, the confession, and adjudication. 
 
 But a confession will extend no further than to the facts 
 charged in the information ; therefore, if the offender be not 
 brought by the information within the act upon which the con- 
 viction is founded, the defendant's confession will not make the 
 conviction good. 
 
 The informer where he receives part of the penalty, cannot 
 be a witness. For which reason, it is requisite to name the 
 witness in the conviction, that it may appear that it is not the 
 same person with the informer. 
 
 It is essential that the evidence be given in the presence of 
 the defendant, that he may have an opportunity of cross-exam- 
 ining the witness ; and it must appear on the face of the convic- 
 tion, that the evidence was so given. But if it appear on the 
 conviction that the evidence was given on the same day that 
 the defendant appeared and pleaded, the court will presume that 
 it was given in his presence. 
 
 The evidence should be set forth particularly in the convic- 
 tion, that the court may judge whether the Justice has convicted 
 on proper evidence. 
 
 The conviction should state not merely the result of the evi- 
 dence, but the whole evidence itself It is not sufficient that the 
 witness swear generally that the defendant was guilty of the 
 premises ; particular facts must be proved and stated. 
 
 The magistrate is the sole judge of the weight of the evidence ; 
 and it is entirely and conclusively for his consideration, and he 
 is placed in the situation of a jury, and the court, before whom 
 the conviction is brought on appeal, will not substitute them- 
 selves in the place of the Justices acting as jurymen ; they can- 
 not judge of the credit due to witnesses whom they did not hear 
 examined, and can only look to the form of the conviction, and 
 see that the party, if convicted, has been convicted by legal evi- 
 dence. 
 
 There must be a judgment in the conviction, stating not only
 
 304 DUTIES OF JUSTICES OF THE PEACE. 
 
 that the defendant was guilty, but likewise adjudging the fine 
 or forfeiture to which the party is subjected. 
 
 The Justice ought to give the defendant a copy of the convic- 
 tion, if he demand it. 
 
 The form of conviction given by statute, must be strictly ad- 
 hered to. Where a conviction was drawn up in another form, 
 and a warrant granted on it, it was held illegal, and that an ac- 
 tion of trespass lay against the Justice, and those acting under it. 
 
 The judgment should be stated in the present tense ; but the 
 previous parts of the record of conviction may be in the past 
 time ; although it has been held that the Avhole of the record 
 should be in the present tense, which is, perhaps, the safest ride 
 to pursue. 
 
 If the convicting magistrate give a proper date to the time of 
 conviction upon the face of it, and afterwards add an impossi- 
 ble date when he sets his hand to the conviction, (being before 
 the oflence committed,) the latter may be rejected as surplusage. 
 It is enough that the conviction sets forth that the witness was 
 examined on oath, without stating that the magistrate had au- 
 thority to administer the oath. Where a penalty is to be sued 
 for, before Justices of the Peace, within a certain time after the 
 offence committed, upon conviction for such offence, it ought to 
 appear on the face of the evidence stated in such conviction,, 
 that the prosecution was in time ; and if the .witness bo only 
 stated to have mentioned the month in which the offence was 
 committed, omitting the year, and there be no word of reference 
 to connect it with the true date, the omission cannot be supplied, 
 cither by reference to the oflence charged in the information, or 
 by presumption arising from the Justice having convicted the 
 defendant. 
 
 In committing a vagrant, if the Justice finds that the vagrant 
 is not a notorious offender, and is a proper subject for relief, he 
 must commit him by warrant, under his hand, to the county 
 poor house, if there be one, and if not, to the alms house or 
 poor house of the town or city, there to be kept at hard labor, 
 for a term not exceeding six months. If the offender be an im- 
 proper person to be sent to the poor house, lie nuist be commit- 
 ted to tin; hridtnvc.'ll or house of correction, if there be one, and 
 if not, ir) the. conuiion jail of the county, for a term not exceed 
 ing sixty days, and to be kept, if the Justice think proper so to 
 direct, upon bread and water only, for a time not exceeding one
 
 INTERNAL POLICE OF THE STATE. 305 
 
 half the time for which he shall be committed. (1 R. S. S02. 
 sec. 3.) 
 
 RECORD OP CONVICTION OF A VAGRANT. 
 
 Chenango County^ ss. — Be it remembered, that Peter Pra^'-. 
 is now, at this day, brought before me, the imderiiamed Jus- 
 tice of the Peace of the town of Norwich, in said county, at Nor- 
 wich, aforesaid, upon the charge and accusation that said Peter 
 Pray was found in said town an idle person, not having visible 
 means to maintain himself, and living without employment, \or 
 as the case may 6e,] and a vagrant, within the intent and mean- 
 ing of the provisions of title second, of chapter twentieth, of the 
 iirst part of the Revised Statutes ; and. I, the said .Justice, being 
 satisfied, upon due and personal examination of said Peter Pray, 
 and by his confession now before me, had and made, [or " sat- 
 isfied upon due and jjersonal exatnination of said Peter Pray, 
 and upon competent testimony before me had and ^ive/i,"] that 
 said charge and accusation, are in all respects true — the said 
 Peter Pray is therefore duly convicted before me of being a va- 
 grant, withhi the true intent and meaning of said statute. And 
 it appearing to me, that said Peter Pray is not a notorious ofien- 
 der, and that he is a proper object for relief, I adjudge and deter- 
 mine that said Peter Pray be committed to the county poor house 
 of said county, [or the alms house or poor house of the town,] for 
 the term of forty days, there to be kept at hard labor, [or, '• it ap- 
 pearing to me that said Peter Pray is an itnproper person to 
 he sent to the poor house, I do, therefore, adjudge and deter- 
 mine, that said Peter Pray be committed to the county jail of 
 said county — or the bridewell or house of correction — for the 
 term of thirty days, and {jf the Justice so determine,) to be kept 
 during the first ten days of said term, on bread and ivater 
 only"] In witness whereof, I have hereunto set my hand, this 
 1st day of July, 1849. 
 
 James Jackson. Justice. 
 
 FORM OF COMMITMENT. 
 
 Chenango County, ss. 
 
 To any Constable of said county, Greeting : 
 Whereas, Peter Pray has been this day duly convicted before 
 me, the undernamed Justice of the Peace, of tlie town of Nor- 
 
 20
 
 306 DUTIES OF JUSTICES OF THE PEACE. 
 
 wich, in said county, of being a vagrant ; and inasmuch as it 
 appeared to me tliat said Peter Pray is not a notorious offender, 
 and is a proper subject of relief, [or, " that said Peter Pray is 
 an improper person to be sent to the poor hoiise ;"] I did, upon 
 such conviction, adjudge that said Peter Pray be committed, as 
 hereinafter expressed. You are, therefore, hereby commanded, 
 in the name of the people of the state of New York, to convey 
 the said Peter Pray to the county poor hoouse, [or alms house, 
 or toion poor house,] the keeper whereof is required to keep the 
 said Peter Pray therein, at hard labor, for the term of forty days, 
 [or, to convey the said Peter Pray to the common jail of said 
 county, the keeper whereof is required to detain the said Peter 
 Pray in safe custody tlierein, for the term of thirty days'' — 
 '•' and to he kept for the first ten days of said term, on bread and 
 water only." Given under my hand, at Norwich, July 1st, 1849. 
 
 James Jacksox, Justice. 
 
 The magistrate who commits the vagrant, may cause him to 
 be searched, for the purpose of discovering any property he may 
 have ; and if any property be found, the same may be taken and 
 applied to the support of such vagrant while in confinement. (2 
 R. S. 831, sec. 33.) 
 
 If any child shall be found begging for alms, or soliciting 
 charity from door to door, or in any street, highway, or public 
 place, of any city or town, any Justice of the Peace, on com- 
 plaint and proof thereof, shall commit such child to the county 
 poor house, if there be one, or to the alms house or other place 
 provided for the support of the poor, there to be detained, kept, 
 employed, and instructed, in such useful ^labor as such child 
 shall be able to perform, until discharged therefrom, by the 
 county superintendents of the poor, or bound out as an appren- 
 tice by them, or by the commissioners of the alms house, or the 
 overseers of the poor. (1 11. S. 802, sec. 4.) 
 
 COMMITMENT OP A CHILD FOUND BEGGING. 
 
 Chcnanffo County, ss. 
 
 To any Constable of said county. Greeting : 
 Whereas, complaint has this day been made, and due proof 
 thereof given to me, one of the Justices of the Peace of said 
 county, that a child of the name of John Roberts, has been found
 
 Ix^TERNAL POLICE OF THE STATE. 397 
 
 in the town of Norwich, in said county, begging for alms. You 
 are, therefore, hereby commanded, in the name of the people of 
 the state of New York, to convey the said child to the poor 
 house of said county, [or, " town," or the " alms house of said 
 city,"j the keeper whereof is required to detain, keep, employ, 
 and instruct, said child, in such useful labor as said child shall 
 be able to perform, until discharged therefrom by the county 
 superintendents of the poor, or bound out as an apprentice by 
 them, [or, " by the commissioners of such alms house," or, " by 
 the overseers of the poor."] 
 
 Given under my hand, at Norwich, July 1st, 1849. 
 
 James Jackson, Justice. 
 
 If a person having his face painted, discolored, covered, or 
 concealed, or being otherwise disguised, in a manner calculated 
 to prevent him from being identified, appear in any road or 
 public highway, or in any field, lot, wood, or enclosure, he may 
 be pursued and arrested ; and if, upon being brought before a 
 Justice of the Peace of the same county where he was arrested, 
 he do not give a good account of himself, he must be deemed 
 a vagrant ; and, on conviction, must be committed to, and im- 
 prisoned in, the county jail of the county where he was found. 
 (1 R. S. 803, sec. 5.) 
 
 Every sheriff, deputy sheriff, constable, marshal of a city, or 
 other public peace officer, or other' citizen, of the county where 
 the person or persons may be found disguised, as above, can, of 
 his own authority., and ivithoiU process, arrest, secure, and 
 convey before a Justice of the Peace residing in the county 
 where the arrest is made, any person found having his face 
 painted, discolored, covered or concealed, or otherwise disguised, 
 to be examined and proceeded against as a vagrant. (1 R. S. 
 803, sec. 6.) 
 
 It is the duty of any sheriff", deputy sheriff, constable, mar- 
 shal, or other peace officer, whenever any of them shall dis- 
 cover any person with his face so painted, discolored, covered, 
 or concealed, or otherwise disguised, immediately to arrest, 
 secure, and convey such person to a magistrate, to be proceeded 
 with according to law ; and whenever any such officer shall 
 receive credible information of any person having his face so 
 painted, discolored, covered, or concealed, or otherwise disguised,
 
 308 DUTIES OF JUSTICES OF THE PEACE. 
 
 it is his duty forthwith to pursue such person, and arrest, secure, 
 and convey him to a magistrate. (Id.) 
 
 In the execution of the foregoing duties, any sheriff, deputy 
 sheriff, constable, marshal, or other peace oflicer, is authorized 
 to command any male inhabitant of his county, or as many as 
 he shall think properj to assist him in seizing, arresting, confi- 
 ning and conveying to a magistrate, and committing to the 
 common jail of the county, every person with his face painted, 
 discolored, covered, or concealed, or otherwise disguised ; and 
 any inhabitant so commanded, may provide himself, or be pro- 
 vided with, such means and weapons as the oflicer giving such 
 command shall designate. (Id. sec. 7.) 
 
 Every person so commanded, who refuses or neglects, without 
 lawful cause, to obey the command, will be deemed guilty of a 
 misdemeanor, and be subject to a fine, not exceeding f 250, or 
 to imprisonment; not exceeding one year, or to both. (1 R. S. 
 804, sec. 8.) 
 
 Any magistrate to whom complaint is made that any person 
 has appeared in the public highway, or in any lot, field, woods, 
 or enclosure, with his face painted, discolored, covered, or con- 
 cealed, or otherwise disguised, may in his discretion, by warrant 
 under his hand, depute and empower any elector of the county 
 to arrest, seize, and confine, and bring sncli person before such 
 magistrate, to answer such complaint. And in any such war- 
 rant, or in any other warrant or process against any person 
 charged with having his face painted, discolored, covered, or 
 concealed, or olherv/iso disguised, whose name is not known, it 
 will be sufficient to describe the ofiender by some fictitious 
 name. (Id, sec. 9.) 
 
 The statute authorizes other oflicers besides Justices of the 
 Peace, to execute the powers and duties in relation to the fore- 
 going offence. (Vide 1 R. S. 803, and 2 R. S. 793.) 
 
 3. Of Disorderly Persons. 
 
 The statute defines particularly who are to be deemed disor- 
 derly persons, to wit : — persons who threaten to run away and 
 leave their wives and children a burthen on the pid)Hc ; persons 
 pretending to tell fortunes, or wlicrc lost or stolen goods may be 
 foimd ; common prostitutes, keepers of bawdy houses, or houses 
 fi;r the resort of prostitutes, driinK'ards, tipplers, gamesters ;
 
 INTERNAL POLICE OF THE STATE. 3,39 
 
 persons who have no visible profession or calhiig to maintain 
 themselves by, bat who do, for the most part support them- 
 selves by gaming ; jugglers, common showmen and mounte- 
 banks, who exhibit or perform for profit any puppet show, wire 
 or rope dance, or other idle shows, acts or feats ; persons who 
 keep in any public highway or place, or in any place where 
 liquors are sold, any faro table, wheel of fortune, thimbles, or 
 other tables, box, machine, or device, exhibiting tricks, or ga- 
 ming therewith ; persons who play in public streets or high- 
 ways with cards, dice, or any other instrument or device for 
 gaming. (1 R. S. 819, sec. 1.) 
 
 The first proceeding in the prosecution of a disorderly person, 
 is a complaint, on oath, to a Justice of the Peace. (Id. sec. 2.) 
 
 FORM OP COMPLAINT. 
 
 Tioga County, ss. — John Smith of Owego, in said county, 
 being duly sworn, makes oath and complains, before Thomas 
 Trueman, one of the Justices of the Peace of said town, that 
 on the 9th day of June instant, he heard Henry Brown of said 
 tOAvn, threaten to run away and leave his wife and children a 
 burthen on the public ; \or other facts, as the case may he, con- 
 stituting the person disorderly lolthin the description in the 
 statute.] 
 
 John Smith. 
 Subscribed and sworn before me, 
 June 10th, 1849. 
 
 Thomas Trueman. Justice. 
 
 Upon the complaint, the Justice is required to issue liis war- 
 rant to apprehend the offender, and bring him before him for 
 examination. (Id.) 
 
 FORM OF warrant. 
 
 Tioga Coimty, ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas, John Smith of Owego, in said county, has this day 
 made complaint, on oath, before me, the undernamed Justice of 
 the Peace of said county, against Henry Brown, in which com-
 
 310 DUTIES OF JUSTICES OF THE PEACE. 
 
 plaint the said John Smith alleges, that, <fcc. — [here set forth 
 the complaint.\ Yon are, therefore, hereby commanded, in the 
 name of the people of the state of New York, forthwith to ap- 
 prehend the said Henry Brown, and bring him before me, the 
 said Justice, at my office in Owego aforesaid, to be dealt with 
 in the premises, as by law required. 
 
 Given under my hand at Owego, June 10th, 1849. 
 
 Thomas Trueman, Justice. 
 
 When the person accused is brought before the Justice, if it 
 appears, either by the confession of the offender, or by compe- 
 tent testimony, that he is a disorderly person, the Justice may 
 require him to find sureties for his good behavior, for the space 
 of one year. (1 R. S. 820, sec. 2.) The statute contemplates 
 that the security should be by recognizance. 
 
 FORM OF RECOGNIZANCE. 
 
 Tioga County, ss. — We, Henry Brown, John Stow, and 
 Samuel Peters, of Owego in said county, acknowledge our- 
 selves to be indebted to the people of the state of New York in 
 the manner following : the said Henry Brown in the sum of 
 one lumdred dollars, and the said John Stow and Samuel 
 Peters, each in the sum of fifty dollars, to be respectively made 
 and levied of our several goods and chattels, lands and tene- 
 ments, to the use of said people. 
 
 The condition of this recognizance is such, that whereas 
 John Smith made complaint, on oath, before the undernamed 
 Thomas Trueman, against the said Henry Brown, in Avhich 
 complaint the said John Smith alleged, that — [set forth the 
 complaint.] And whereas the said Justice this day caused the 
 said Henry Brown to be brought before him, and examined 
 touching the offence in said complaint alleged ; and it appear- 
 ing to said Justice, upon said examination, and by the con- 
 fession of the said Henry Brown, [or, by " competent testimo?i7/"] 
 that said Henry Brown is guilty of the offence alleged in said 
 complaint, and is a disorderly person : Now, therefore, if the 
 said Ifcnry Brown shall be, and continue, of good behavior to- 
 wards the j)eopk; of the slate of New York, for the space of
 
 INTERNAL POLICE OF THE STATE. 31 X 
 
 one year, from and after this day, then this recognizance to be 
 
 void, otherwise of force. 
 
 Henry Brown, 
 John Stow, 
 Samuel Peters. 
 Taken, subscribed, and acknowledged, 
 June 10th, 1849, before me, 
 
 Thomas Trueman, Justice. 
 
 If any breach of such recognizance for good behavior hap- 
 pen, such recognizance shall be prosecuted, at the instance of 
 any overseer of the poor, county superintendent of the poor, or 
 Justice of the Peace ; and the penalty, when collected, shall be 
 paid into the county treasury, for the benefit of the poor of such 
 county. (1 U. S. 820, sec. 4.) 
 
 Upon a recovery being had upon any such recognizance, the 
 court before which it shall be had, may, in its discretion, either 
 require new sureties for good behavior to be given, or may 
 commit the offender to the common jail of the city or county, 
 for any term, not exceeding six calendar months. (Id. sec. 5.) 
 
 In default of the offenders finding sureties, the Justice must 
 make up, sign, and file, in the county clerk's office, a record of 
 the conviction of such offender, as a disorderly person, specify- 
 ing generally, the nature and circumstances of the offence; and 
 must, by warrant, commit the offender to the common jail of 
 the city or county, there to remain until such sureties be found, 
 or such offender be discharged according to law. (Id. sec. 2.) 
 
 FORM OF RECORD. 
 
 Tioga Cmmty, ss. — Be it remembered, that whereas, John 
 Smith made complaint, on oath, before me, the undernamed 
 Justice of the Peace of said county, against Henry Brown, in 
 which complaint, the said John Smith alleges, that, — [^e^ forth 
 the cojnjjlaint^^ — and whereas, I, the said Justice, did cause the 
 said Henry Brown to be brought before me this day, at Owego, 
 county aforesaid, and examined touching the offence in said 
 complaint alleged ; and it appearing to me, the said Justice, 
 upon such examination, and by the confession of said Henry 
 Brown, before me made, [or, '• hy competent testimony,''^] that 
 said Henry Brown is guilty of the offence in said complaint al- 
 leged ; the said Henry Brown is, therefore, convicted before me, 
 the said Justice, of being a disorderly person. And inasmuch
 
 312 DUTIES OF JUSTICES OF THE PEACE. 
 
 as the said "Henry Brown, now before me, has made default in 
 finding sureties for his good behavior, as by me required, that is 
 to say, two sufficient sureties to be recognized with the said 
 Henry Brown, each in the sum of fifty dollars, and the said 
 Henry Brown in the sum of one hundred dollars. I do, there- 
 fore, in pursuance of Ihe statute in such case made and provi- 
 ded, make this my record of the conviction of the said Henry 
 Brown, of the ofience aforesaid, at Owego aforesaid, this 10th 
 day of Jnne, 1849. 
 
 Thomas Trueman, Justice. 
 
 FORM of warrant TO COMMIT. 
 
 Tioga County, ss. 
 
 To any Constable of said County, Greeting : 
 Whereas, Henry Brown has this day been duly convicted be- 
 fore me, the undernamed Justice of the Peace of said county, of 
 being a disorderly person ; and, upon such conviction, the said 
 Henry Brown was by me required to find two sufficient sure- 
 ties, to be recognized with the said Brown, the sureties each in 
 the sum of fifty dollars, and the said Henry Brown in the sum 
 of one hundred dollars, for his good behavior, for the space of 
 one year, from the time of his conviction, as aforesaid ; and in- 
 asmuch as the said Henry Brown has made default in finding 
 such sureties, you are, therefore, hereby commanded, in the 
 name of the people of the State of New York, forthwith to 
 convey the said Henry Brown to the common jail of said coun- 
 ty, the keeper whereof is required to detain the said Henry 
 Brown in custody in said jail, until he shall find such sureties, 
 or shall be thence discharged, according to law. Given under 
 my hand, June 10th, 1849. 
 
 Thomas Tuukman, Justice. 
 
 It will be seen, that in the foregoing forms, the sureties requi- 
 red arc particularly stated. The reason is, that if the offender 
 is committed, he may be discharged by ani/ two Justices of the 
 Peace, upon giving such snretics as were originally required. 
 (1 R. S. 820, sec. G.) Such statement is therefore necessary to 
 guide the other Justices, when the committing Justice is not one 
 of them.
 
 INTERNAL POLICE OF THE STATE. 313 
 
 FORM OP DISCHARGE. 
 
 Tioga County, ss. 
 To the Keeper of the Common Jail of said County, Greeting : 
 
 Whereas, Henry Brown was lately committed to your cus- 
 tody, in said jail, by the warrant of Thomas Trueman, Justice, 
 upon the conviction of the said Henry Brown, before the said 
 Justice, of being a disorderly person, and upon the failure of the 
 said Henry Brown to procure sureties for his good behavior, as 
 by said Justice required. And whereas, the said Henry Brown 
 has given such sureties as were originally required by said 
 Thomas Trueman, Justice, from him — Now, therefore, wo, be- 
 ing two of the Justices of the Peace of the county, do require 
 you forthwith to discharge the said Henry Brown out of your 
 custody, in said jail, under his commitment aforesaid. Given 
 under our hands at Owego, June 10th, 1849. 
 
 Robert Strong, } -r ,■ 
 
 I Justices. 
 James Myers, ) 
 
 4. Of the iSupport of Bastards. 
 
 A bastard is defined, by statute, to be a child begotten and 
 born : (I R. S. 822, sec. 1.) 
 
 1. Out of lawful matrimony. 
 
 2. While the husband of its mother continued absent out of 
 this state, for one whole year previous to such birth, separate 
 from its mother, and leaving her, during that time, continuing 
 and residing in this state. 
 
 3. During the separation of its mother from her husband, 
 pursuant to a decree of any court of competent authority. 
 
 The reputed father, and the mother of a bastard child, are 
 liable for its support; and in case of their default, or inability, it 
 must be supported by the town or county where it is born. 
 The mother of a bastard child, if unable to support herself dur- 
 ing her confinement and recovery, or subsequent thereto, is, as 
 well as her child, to be provided for, in all respects, as a pauper. 
 The old system of compulsory removal of paupers is wholly 
 abolished ; still, however, questions of settlement, between dif- 
 ferent towns in the same county, may arise, which are to be 
 determined by the superintendents of the poor. The rules, as to 
 the legal settlement, for the purpose of maintenance, of a mother
 
 314 DUTIES OF JUSTICES OF THE PEACE. 
 
 and her bastard child, are as follows : (I R. S. 822, sees. 3 and 
 4 ; sec. 53.) 
 
 1. If the mother have no legal settlement in the county where 
 the child is born, they are to be supported at the expense of 
 such county. 
 
 2. They must be supported at the expense of the county 
 where the child is born, if such county be one of those where 
 the distinction between town and county poor is abolished. If, 
 however, the mother has been removed, or clandestinely brought, 
 or enticed to remove, from any other part of the state, to avoid 
 the charge of their support, the overseers of the poor, or super- 
 intendents of the poor, have the same remedies therefor as in 
 the case of paupers. 
 
 3. In counties where the respective towns support their own 
 poor, they are to be supported at the expense of the town v/here 
 the ciiild is born, if the mother have a legal settlement therein. 
 
 4. If the mother have a settlement in some other town, than 
 that in which the child is born, of the same county, and which 
 town is required to support its own poor, they are to be support- 
 ed at the expense of such other town. 
 
 In respect to the latter rule, it is to be observed, that although 
 the mother and child are to be provided for at the expense of 
 the town where the mother is legally settled, yet they are to be 
 suppoi'ted in the tovvn where the child is born, unless they are 
 taken voluntarily to the town chargeable. The proceedings to 
 compel the town chargeable, to indemnify the town where they 
 are supported are to be conducted by the overseers of the poor. 
 (Id. sees. 54, 58, and 63.) 
 
 Tlie preceding summary of statutory provisions, is deemed 
 necessary as a guide to Justices of the Peace in their official du- 
 ties, under the statute. 
 
 In counties where the poor are all a county charge, the super- 
 intendents of the poor niake provision for the support of a bas- 
 tard child and its mother. In counties which have a county 
 poor house, and the jioor are chargeable to the respective towns, 
 the overseers of tiie poor may, with the approbation of two of 
 the superintendents, and where the situation of the mother will 
 permit, remove the mother and child to tlic poor house. In the 
 last mi.-ntiou'd C(tuutics, where the situation of the mother will 
 not admit of the removal to the poor house, (and in those cases 
 only, where no moneys have been received from the putative
 
 liNTERNAL POLICE OF THE STATE. 315 
 
 father, or from the mother, to repay the expenses of tlieh- sup- 
 port,) the overseers of the poor may apply to a Justice of the 
 Peace for an order for the temporary rehef of the bastard, and 
 the sustenance of the mother, during her confinement and reco- 
 very therefrom, as in case of otlier paupers. (I R. S. 833, 834, 
 sees. 65, 66.) 
 
 In the counties where there is no poor house, or other place 
 provided for the reception of the poor, and application be made 
 for the relief of a bastard and its mother, and no moneys shall 
 have been received from the putative father, or from the mother, 
 for their support, the overseers of the poor, with the assistance 
 of some Justice of the Peace of the town, must inquire into the 
 circumstances of the case, and make an order for such weekly 
 allowance, or otherwise, as the Justice and one of the overseers 
 shall deem to be required. (Id. sec. 65.) 
 
 The most important branch of this subject relates to the mode 
 of compelling the putative father, and the mother, when she 
 has property in her own right, to indemnify the public. 
 
 If a woman be delivered of a bastard child, which is charge- 
 able, or likely to become chargeable, to any county, city, or 
 town ; or shall be pregnant with a child likely to be born a 
 bastard, and to become so chargeable, a superintendent or over- 
 seer of the poor, where the woman shall be, is required to apply 
 to a Justice of the Peace of the county, to make inquiry into 
 the facts and circumstances of the case. (I R. S. 823, sec. 5.) 
 
 The first proceeding before the Justice, is the examination of 
 the woman, and the hearing of other testimony which may be 
 offered to ascertain the putative father. For the purpose of 
 such examination, the woman usually appears voluntarily 
 before the Justice. The examination must be on oath ; and. 
 although the statute does not require it, there seems to be great 
 propriety in reducing it to writing. (Id. sec. 6.) 
 
 FORM OF EXAMINATION BEFORE BIRTH. 
 
 CJienango County, ss. — The voluntary examination of A. 
 B. of Norwich, in said county ; who, being duly sworn, before 
 the undernamed Justice of the Peace of said county, says, that 
 she is now with child, and that the child of which she is preg- 
 nant, is likely to be born a bastard, and to be become chargeable
 
 316 DUTIES OF JUSTICES OF THE PEACE. 
 
 to said town, [or " to said county ;■'] and that 0. D., of Norwich 
 aforesaid, is tlie father of said child. 
 
 A. B. 
 Subscribed and sworn, June 1st, 1849, before me, 
 James Jackson, Justice. 
 
 EXAMINATION AFTER BIRTH. 
 
 Chenango County, ss. — The examination of A. B. of Nor- 
 wich, in said county ; who, being duly sworn, before the under- 
 named Justice of the Peace of said county, says, that on the 
 25th day of March last, she was delivered of a bastard child, 
 which is chargeable, [or " likely to become chargeable,"] to said 
 town, [or " county ;"] and that C. D. of Norwich aforesaid, is 
 the father of said bastard child. A. B. 
 
 Subscribed and sworn, June 1st, 1849, before me, 
 James Jackson, Justice. 
 
 The next proceeding, is the issuing of a warrant, to appre- 
 hend the reputed father, and bring him before the Justice. (1 
 R. S. 823, sec. 6.) 
 
 This warrant can be issued only upon the application of one 
 of the overseers, or a superintendent of the poor. (10 J. R. 93.) 
 
 FORM OF warrant. 
 
 Chenango County, ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas, A. B. of Norwich in said county, upon her exami- 
 nation on oath, before me, the undernamed Justice of the Peace 
 of said county, this day had, did declare that, (fcc. — \as hi the 
 examijiation] — and whereas John Long, one of the overseers of 
 the poor of said town — [or one of the superintendents, as the 
 case may be] — in order to indemnify the said town, [or " coun- 
 ty,"] in tlic })remises, hath applied to me to inquire into the 
 facts and circumstances of tiic case, and to issue my warrant 
 to apprehend the said C. 1)., (Sec. : You are, therefore, hereby 
 commanded, in tiio name of the people of the state of New 
 York, (orlliwiili to apprehend the said C. 1). and him bring 
 before me at my ollice in Norwich aforesaid, for the purpose of
 
 INTERNAL POLICE OF THE STATE. 3^7 
 
 having an adjudication respecting the fihation of such bastard 
 child, [or " of such child likely 10 be born a bastard."] 
 
 Given under my hand at Norwich aforesaid, June 1st, 1849. 
 
 James Jackson, Justice. 
 
 If the Justice who issued the warrant, shall have died, vaca- 
 ted his office, or be absent on the return of the warrant, the 
 constable must carry the putative father before some other 
 Justice of the same town, who, in such case, will have the same 
 authority to proceed in the case, as the Justice who issued the 
 warrant. (10 J. R. 43.) 
 
 When the person charged as the reputed father, is brought 
 before the Justice, such Justice must immediately call to his 
 aid some other Justice of the same county ; and the two Jus- 
 tices must then proceed, without unnecessary delay, to make 
 examination of the matter, and to make an order of filiation and 
 maintenance. (1 R. S. 824, sec. 11.) 
 
 Either of the Justices is required to issue subpoenas to compel 
 the attendance of v/itnesses, on the application of either the 
 person charged, or the person appearing in behalf of the public ; 
 and the witnesses may be compelled to appear and testify as in 
 civil cases. 
 
 FORM OF SUBPCENA. 
 
 Chenango Counti/, ss : 
 
 To John Doe, Richard Roe, &c.. Greeting : 
 
 You are hereby commanded, m the name of the people of 
 the state of New York, personally to aj^pear before David Long 
 and the undernamed James Jackson, two of the Justices of the 
 Peace of said county, forthwith [o)' at the ti7ne fixed upon] at 
 the office of the said Jackson, in Norwich in said county, to 
 testify touching the father of a bastard child, wherewith A. B. 
 alleges she is now pregnant, [or " which was lately born of A. 
 B."] and any other knowledge you may have touching the 
 matter then and there to be examined into, before the said Jus- 
 tices. 
 
 Given under my hand at Norwich, June 2d, 1849. 
 
 James Jackson, Justice. 
 
 If the Justices when convened, are not prepared to proceed,
 
 318 DUTIES OF JUSTICES OF THE PEACE. 
 
 or the person charged, require delay, and assign sufficient 
 reason therefor, they may adjourn the examination, for a time 
 not exceeding six weeks. If the adjournment is requested by 
 the person charged, he may give a bond with sureties, for his 
 appearance on the adjourned day, in such a penalty as shall be 
 deemed a full indemnity for the expense of supporting the 
 bastard and its mother. (1 R. S. 824, sees. 12 and 16.) 
 
 FORM OF BOND. 
 
 Know all men by these presents, that we, C. D. and E. F. of 
 Norwich, in the county of Chenango, are held and firmly bound 
 imto the people of the state of New York, in the sum of five 
 hundred dollars, for the payment whereof to the said people, 
 we bind ourselves, our heirs, executors, and administrators, 
 jointly and severally, firmly by these presents. Sealed with 
 our seals, and dated this 2d day of June, 1849. 
 
 The condition of this obligation is such, that whereas the 
 undernamed C D. has been this day brought before James 
 Jackson and David Long, two of the Justices of the Peace of 
 the said county, charged upon the oath of A. B. of Norwich 
 aforesaid, as the reputed father of a bastard child, with which 
 the said A. B. alleges she is pregnant — [or "of a bastard child 
 lately born of said A. B.J— the said Justices having associated 
 pursuant to statute, to examine the matter, and adjudicate re- 
 specting the filiation and maintenance of such bastard child — 
 [or " child likely to be born a bastard."] And whereas at the 
 request of C. D.. and for sufiicient reason given, the said Jus- 
 tices have determined to adjourn the said examination and ad- 
 judication, upon the execution of this bond, until the 20th of 
 June instant, at two o'clock in the afternoon, at the office of the 
 said James Jackson, in Norwich aforesaid : Now, therefore, if 
 the said C. D. shall personally appear before the said Justices, 
 at the time and place last aforesaid, and not depart therefrom 
 without leave of said Justices, then this obligation to be void ; 
 otherwise of force. 
 
 Sealed and (l<live'r('d in presence of, and 
 
 approved by ns, 
 
 Jamks Jackson, } 
 
 IX r \ Justices. 
 
 Uavid Long, \ 
 
 G. D. [l. s.] 
 E.F. [l.s.]
 
 INTERNAL POLICE OF THE STATE. 319 
 
 Upon the examination and hearing before the two JusticcSj 
 the mother of the bastard, or woman so pregnant, must be again 
 examined on oath, in tlie presence of the person charged, touch- 
 ing the father of such child, and they must hear any proofs that 
 maybe offered in relation thereto. (1 R, S. 824, sec. 11.) 
 
 If they determine that the person charged is not the father of 
 the bastard or child likely to be born a bastard, they must forth- 
 with discharge him. (Id. sec. 13.) 
 
 If they determine that he is such father, they must then make 
 an order of filiation, specifying therein, the sum to be paid weekly 
 or otherwise, by such putative father, for the support of the bas- 
 tard, or child likely to be born a bastard. If the mother be in 
 indigent circumstances, they must determine the sum to be paid 
 by the putative father, for the sustenance of the mother during 
 her confinement and recovery therefrom. They must, also, cer- 
 tify the reasonable costs of apprehending and securing the father, 
 and of the order of filiation. Their proceedings must be re- 
 duced to writing, and subscribed by them. (Id.) 
 
 The order may be so drawn as to comprise all the proceedings 
 of the two Justices, which they are required to reduce to wri- 
 ting, and this is probably the better course. 
 
 FORM OF THE ORDER. 
 
 Chenango County, ss. — Whereas, we, the undernamed, being 
 two of the Justices of the Peace of said county, have this day 
 associated; at Norwich, in said county, upon the application of 
 the overseers of the poor of said town, [or superintendents,] for 
 the purpose of making examination and determination, touching 
 a certain bastard child, lately born in said town, of the body of A. 
 B., [or, '• a certain child wherewith A. B. was said to be pregnant, 
 and that said child, when born, would be a bastard,"] and 
 chargeable, [or " likely to become chargeable,"] to said town, [or 
 " county,"] and of which child, C. D. was alleged to be the father. 
 And, whereas, we have duly examined the said A. B. on oath, 
 in the presence of the said C. D., touching the father of said 
 child, and have also heard the proofs and allegations to us of- 
 fered in relation thereto, as well on the part, and in behalf of the 
 said overseers, as of the said C. D., whereby it appears that the 
 said A. B. was on the 25th day of March last, delivered of a 
 bastard child in said town, [or, '• appears that the said A. B. is
 
 320 DUTIES OF JUSTICES OF THE PEACE. 
 
 now pregnant of a child, whicb, when horn, will be a bastard,"] 
 and which is chargeable, [or, " likely to become chargeable,"] to 
 said town, [or " county,"] and the said C. D. is the father of said 
 child. We, therefore, upon examination of the matter, as well 
 by the oath and examination of A. B., in pursuance of the said 
 C. D. as otherwise, do adjudge him, the said C. D. to be the father 
 of said bastard child. 
 
 And thereupon, we order that said C. D. pay to the overseers 
 of the poor of said town, [or, " to the said superintendents of the 
 poor,"] for the support of said child, the weekly sum of one dol- 
 lar, so long as said child shall continue chargeable to said town, 
 [or, to said county."] 
 
 And, inasmuch as it appeared to us, and we find that said A. 
 B. is in indigent circumstances, we determine and order, that 
 said C. D. pay to said overseers of the poor, [or, " superintend- 
 ents,"] for the sustenance of the said A. B., during her confine- 
 ment and recovery therefrom, the sum of twenty dollars. 
 
 And we do hereby certify the reasonable costs of apprehend- 
 ing and securing the said father, and of the order of filiation, at 
 the sum of ten dollars. Given under our hand at Norwich, 
 aforesaid, this 2d day of June, 1849. 
 
 James Jackson, 
 David Long, 
 
 Justices. 
 
 Upon notice of tlie order, [which will be best done by de- 
 livering a copy,] the reputed father is required to pay immedi- 
 ately the costs so certified by the Justices, and also to enter into 
 a bond, with good and sufficient sureties, to be approved by 
 them, to the people of this state, in such penal sum as shall be 
 deemed a full indemnity for the expense of supporting the bas- 
 tard and its mother, and with one of these two conditions : either 
 first to pay the sums for the support of the child and the suste- 
 nance of the mother, as ordered by the Justices, or as shall 
 thereafter bo ordered by the Court of Sessions, and to indemnify 
 the county, city, or town where tiie bastard was born, or where 
 the mother likely to liave the bastard, shall be, and every 
 other comity town, or city, which niay have incurred any 
 expense, or may be put to any expense, for the support of 
 the child, or its niolh'M', during her confinement and recove- 
 ry ; or secondly, to ai)j)ear at the next Court of Sessions of the
 
 INTERNAL POLICE OF THE STATE. 33]^ 
 
 Peace of the said county, and not depart the court without its 
 leave. (1 R. S. 825, sees. 14 and 16.) 
 
 FORM OF BOND. 
 
 Know all men by these presents, that we, C. D., E. F., and 
 G. H., of Norwich, in the county of Chenango, are held and 
 firmly bound unto the people of the State of New York, in the 
 sum of one thousand dollars, for the payment whereof to said 
 people, we bind ourselves, our heirs, executors, and administra- 
 tors, jointly and severally, firmly by these presents. Sealed with 
 our seals, and dated this 2d day of June, 1849. 
 
 The condition of this obligation is such, that whereas, by au 
 order this day duly made and subscribed by the undernamed 
 Justices of the Peace of said county, it is adjudged, that the said 
 C. D. is the reputed father of a bastard child, of which A. B., of 
 Norwich, is pregnant, and likely to become ohargeable [or, " of 
 a bastard child lately born, in said town, of the said A. B., and 
 which is chargeable,"] to said town, [or " county."] and it is 
 thereby ordered, that — [here recite the order for the supjiort of 
 the bastard, and sustenance of the mother, as in the order.] 
 Now, therefore, if the said C. D. shall pay the sums for the sup- 
 port of the said bastard child, and the sustenance of its mother, 
 as the same is ordered by said Justices, as aforesaid, — or as shall 
 at any time hereafter be ordered, by the Court of Sessions 
 of the Peace of said county, and shall fully and amply in- 
 demnify the said town [or " county,] and every other coun- 
 ty, town, or city, which may have incurred any expense, 
 or may be put to any expense for the support of such child or 
 its mother, during her confinement or recovery therefrom, 
 against all such expenses, then this obligation to be void, other- 
 wise of force. 
 
 C. D. [l. s.] 
 E. F. [l. s.] 
 G. H. [l. s.] 
 Sealed and delivered in the presence of, and 
 
 the penalty and sureties approved, by us. 
 
 James Jackson, ^ 
 
 T» T C Justices. 
 
 Uavid Long, ^ 
 
 If the reputed father mean to appeal from the order of the 
 
 21
 
 322 DUTii:s OF justices of the peace. 
 
 Justices, then the condition of the bond must be varied thus: — 
 {To the end of the recital as in the foregoing form, then add,) 
 
 '' Now, therefore, if the said C. D. shall personally appear at 
 the next Court of Sessions of the Peace, of said county, and 
 shall not depart the said court without leave, then," &c., {con- 
 cluding as in the foregoing form.) 
 
 A bond, with the latter condition, is to be deemed an appeal, 
 and no other, or further notice of the appeal is required. And 
 it must be transmitted by the Justices to the next Court of 
 Sessions, at the opening thereof. (1 R. S. 827, sec. 24.) 
 
 Upon the execution of the bond, the putative father must be 
 discharged from arrest by the Justices. But if he neglect, or 
 refuse to execute the bond, or to pay the costs and charges cer- 
 tified by the Justice, the Justices, (or one of them), are required 
 to commit him to the common jail, there to remain until dis- 
 charged by the Court of Sessions, or until he shall execute 
 such bond, in the penalty required by the Justices. (Sec. 15.) 
 
 FORM OF WARRANT TO COMMIT. 
 
 Chenango County, ss. 
 
 To any Constable of said County, Greeting : 
 Whereas, by an order of filiation, this day made by us, the 
 imdernamed Justices of the Peace of the said county of Nor- 
 wich, in said county, we did adjudge C. D. to be the father of a 
 bastard child, begotten upon the body of A. B. of said town, 
 and did therein order that said C. D. pay, &c. — \Jiere set forth 
 the direction for the sujjport of the child, the sustenance of the 
 mother, and the certificate of the Justices of the amount of 
 costs and charges required to be paid, as in the order express- 
 ed.] — And whereas, upon the making and subscribing of such 
 order, we did require the said C. D. immediately to pay the costs 
 so certified, and to enter into a bond to the people of this state, 
 in the penal sum of one thousand dollars, with good and suffi- 
 cient sureties, to be by us approved, with one or other of the con- 
 ditions, which, by ihc statute in such case made and provided, ^s 
 prescribed. And whereas, due notice of our said order and re- 
 quirement lias been given to the said C. D-, but he has wholly 
 neglected either to pay the said costs and charges, or to execute 
 the bond aforesaid, — [or a default in either particular, as the
 
 INTERNAL POLICE OF THE STATE. 323 
 
 case may he.\ You are, therefore, hereby commanded, in the 
 name of the people of the Slate of New York, to convey the 
 said C. D. to the common jail of said county, the keeper 
 whereof is required to receive and detain the said C. D. in cus- 
 tody in said jail, until he shall be discharged by the Court of 
 Sessions of the Peace of said county, or shall execute such bond 
 in the penalty required by said Justices, as aforesaid. Given 
 under our hands, at Norwich, June 2d, 1849. 
 
 James Jackson, 
 
 David Long, 
 
 Justices. 
 
 During the examination, and until the person apprehended 
 is discharged by the Justices, he must remain in the custody of 
 the constable, unless he gives the bond for appearance, as afore- 
 said ; and when committed to jail, can neither be let to bail nor 
 upon the limits. (1 R. S. 825, sec. 17.) 
 
 When the putative father is committed to prison, before the 
 birth of the child, and the woman so pregnant be married before 
 her delivery, or miscarry, so that the child be not born alive, or 
 it shall appear that she is not pregnant, the Justices by whom 
 he was committed, upon such fact appearing to them, must im- 
 mediately relieve him out of custody, by warrant, under their 
 hands and seals. (Id. 826, sec. 30.) 
 
 FORM OF WARRANT. 
 
 Chenango County, ss. 
 
 To the keeper of the common jail of said county. Greeting : 
 Whereas, by the warrant of us, the undernamed Justices of 
 the Peace, of said county, bearing date the 2d day of June, in- 
 stant, C. D. was committed to your custody in said jail, being 
 charged as the reputed father of a bastard child, whereof it was 
 testified to us that A. B. of Norwich, in said county, was preg- 
 nant, and likely to become chargeable to said town, [or "county,"] 
 and was so committed for not paying the costs by us certified; 
 and executing the bond consequent upon our order of filiation, 
 as by statute required. And, whereas, it is now testified, and 
 appears to us, upon due proof to us given, that said A. B. hath 
 married before her delivery of said child, [or, " has miscarried of 
 such child," or, " appears not to have been pregnant :"j you are.
 
 324 DUTIES OF JUSTICES OF THE PEACE. 
 
 therefore, hereby commanded, in the name of the people of the 
 state of New York, forthwith to reheve the said C. D. out of your 
 custody, under the commitment upon our warrant, as aforesaid. 
 Given under our hands and seals, June 20th, 1849. 
 
 James Jackson, [l. s.] 
 David Long, [l. s.] 
 
 If the person charged as the reputed father resides in any other 
 county than that in which the warrant issued, the Justice issu- 
 ing the warrant, must direct, by endorsement thereon, the sum 
 in which a bond shall be taken of the person so charged. (1 R. 
 S. S23, sec. 7.) 
 
 FORM OF ENDORSEMENT. 
 
 I, the within named Justice of the Peace, direct that the penal 
 sum in which any bond shall be taken, of the within named C. 
 D. shall be one thousand dollars. 
 
 James Jackson. 
 
 The constable having the warrant, must carry it to some Jus- 
 tice of the county where the person charged resides, or may be 
 found ; who, upon proof of the hand writing of the Justice issu- 
 ing the warrant, must endorse his name thereon, with an au- 
 thority to arrest such person in the county where the Justice en- 
 dorsing the warrant resides. The proof required, may be made 
 by the constable having the warvant. (Id.) 
 
 FORM OF ENDORSEMENT. 
 
 Due proof having been made to me, one of the Justices of the 
 Peace of the county of Broome, of the handwriting of the within 
 named James Jackson, Justice, I hereby authorize the arrest of 
 the within named C. D., in the county of Broome. Dated June 
 5th, 1819. 
 
 William Stow, Justice. 
 
 Tile Justice endorsing the warrant, cannot be prosecuted for 
 so doing, although it should afterwards appear that the warrant 
 was iilf'gally issued. 
 
 When the person charged is arrested, he must be taken be- 
 fore the Justice who endorsed the warrant, or some other Jus-
 
 INTERNAL POLICE OF THE STATE. 325 
 
 tice of the same county, to the end that he may be discharged, 
 if he shall elect to give the bond required. The bond so to be 
 given, must be in the penal sum which is directed on the war- 
 rant, and with one or other of the conditions, either j^r*^ — to in- 
 demnify the county and town, or city, whore the bastard shall 
 have been born, or where the woman likely to have such bas- 
 tard, shall be, and every other county, town, or city, which may 
 have incurred any expense, or may be put to any expense for 
 the support of such child or its mother, during her confinement 
 and recovery therefrom, against all such expense, and to pay 
 the cost of apprehending such father, and of any order of filia- 
 tion that may be made ; or secondly, that such person will ap- 
 pear at the next Court of Sessions, to be holden in the county 
 where such warrant was originally issued, and not depart the 
 said court without leave. (1 R. S. 823, sec. 8.) 
 
 FORM OF RECITAL IN THE CONDITION, &C. 
 
 Whereas, the said C. D. has this day been brought before the 
 undernamed William Stow, one of the Justices of the Peace of 
 the county of Broome, by virtue of a warrant issued by James 
 Jackson, one of the Justices of the Peace of the county of Chen- 
 ango, whereon the name of the said William Stow is endorsed, 
 with an authority to arrest the said C. D. in the county of Broome, 
 {if the endorsement and authority were made hy a differ- 
 ent Justice than the one before whom the person charged is 
 brought, vary the recital thus : " whereon the name of John 
 Burns, one of the Justices of the Peace of the said county of 
 Broome, is endorsed with authority," &c.,] in which warrant it 
 is recited that A. B., of Norwich, in said county of Chenango, 
 upon her examination on oath, before the said James Jackson, 
 Justice, did declare herself pregnant of a child, which is likely 
 to be born a bastard, [or, " did declare that she was, on the 25th 
 day of March last, at Norwich, aforesaid, delivered of a bastard 
 child,"] and to become chargeable [or, " and which is chargea- 
 ble"] to said town, [or ^' county ;"] and upon the said warrant is 
 endorsed the direction of the said James Jackson, that the penal 
 sum in which any bond should be taken of the said C. D., should 
 be one thousand dollars. Now, therefore, if the said C. D., [in- 
 sert one of the conditions i?i the preceding paragraph.] 
 
 If the bond be executed with either of the conditions specified
 
 326 DUTIES OF JUSTICES OF THE PEACE. 
 
 in the statute, the Justice taking the same, must discharge the 
 person so apprehended, and endorse upon the warrant, a certifi- 
 cate to that effect. (1 R. S. 824, sec. 9.) 
 
 FORM OF CERTIFICATE. 
 
 I certify that the within named C. D., who was brought be- 
 fore me, one of the Justices of the Peace of the county of Broome, 
 by virtue of the within warrant, was by me discharged from ar- 
 rest, upon his executing a bond, pursuant to statute. Dated 
 June 6th, 1849. 
 
 William Stow, Justice. 
 
 The Justice must then deliver the bond taken and the war- 
 rant, to the constable, who is required to deliver them to the 
 Justice who issued the warrant. (Id.) 
 
 When a bond is taken out of the county in which the prose- 
 cution is instituted, with a condition to indemnify the county or 
 town, (fcc, no order of filiation is required ; and the bond may 
 be prosecuted when the town becomes damnified. But if the 
 bond be conditioned for the appearance of the person charged 
 at the Sessions, upon its return to the Justice who issued the 
 warrant, he is required to call in the aid of another Justice of 
 the county, and the two Justices must proceed to the examination, 
 making the order of filiation, fcc, as in other cases. And, in this 
 case, the examination and order of filiation, &c., may be made 
 in the absence of the person, unless before the same is made, he 
 shall 'personally require of the Justice issuing the warrant, that 
 such examination be made in his presence ; in which case, rea- 
 sonable notice of the time and place of the examination must be 
 given to such person ; and he may appear and contest the charge, 
 and the same proceedings must be had, as in case he had been 
 brought before the Justice. (1 R. S. 826, sees. 18, 19. 1 J. R. 
 486.) 
 
 If the person so charged and apprehended in another county, 
 neglect or refuse to execute the bond, to the satisfaction of the 
 Justice before whom he is brought, the constable must take him 
 before the Justice who originally issued the warrant, to be pro- 
 ceeded against in the same manner as if he had been arrested 
 in the county where the warrant was issued. (1 R. S. 824, 
 sec. 10.)
 
 INTERNAL POLICE OF THE STATE. 327 
 
 III making any examination authorized by the statute, the 
 Justice or Justices may compel the mother of a bastard, charge- 
 able, or likely to become chargeable, or a woman pregnant with 
 a child likely to be born a bastard, and to become so charge- 
 able, to testify and disclose the name of the father. And in 
 case of her refusal, may, after the expiration of one month, from 
 her delivery, if she shall be sufficiently recovered, commit her 
 to jail, there to remain until she will so testify and disclose. If 
 she so refuse, on the original examination, before a Justice, the 
 commitment must be made by him ; if she refuse, before the 
 two Justices associated, to make an order of filiation, it must be 
 done by the two so associated. (Id. 826, sec. 20.) The follow- 
 ing form is adapted to the latter case : 
 
 FORM OF WARRANT TO COMMIT. 
 
 Chenango County^ ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas, we, the undernamed Justices of the Peace of said 
 county, are now associated, for the purpose of examining into 
 the matter, and making order for the indemnity of the town of 
 Norwich, in said county, [or, "for the indemnity of the said 
 county,") against the support of a certain child, said to have 
 been born a bastard of the said A. B. and chargeable, [or, " like- 
 ly to become chargeable to said town,"] [or, "county";] and 
 whereas, upon the application of the overseers of the poor of 
 said town, [or, " the superintendents of the poor of said county,'"] 
 we have caused C, D. to be brought, and he now is before us, 
 charged as the father of such child ; and whereas, we have re- 
 quired the said A, B., who is now before us. to submit to an ex- 
 amination on oath, in the presence of said C. D., and to testify 
 touching the father of said child, and to disclose his name, but 
 the said A. B. wholly refuses so to testify and disclose ; and inas- 
 much as it now appears to us, upon due proof thereof, given 
 on oath before us, that more than a month has elapsed since the 
 said A. B. was delivered of such child, and that she is now suf- 
 ficiently recovered from her confinement. You are, therefore, 
 hereby commanded, in the name of the people of the State of 
 New York, to take the said A. B. and convey her to the com- 
 mon jail of said county, the keeper whereof is required to de- 
 tain the said A. B. in his custody in said jail, until she shall so
 
 328 DUTIES OF JUSTICES OF THE PEACE. 
 
 testify and disclose the name of such father. Given under our 
 
 hands, at Norwich, June 2d, 1849. 
 
 James Jackson, > ^ 
 
 T^ T } Justices. 
 
 David Long, ^ 
 
 When the mother of a bastard child, chargeable, or likely to 
 become chargeable, is possessed of property in her own right, 
 two Justices of the county, on the application of a superinten- 
 dent or overseer of the poor, are required to examine into the 
 matter, and, in their discretion, make an order, to charge the 
 mother with the weekly payment of money or other susten- 
 tation, for the support of the child. Although the statute does 
 not in terms require, that the mother should be notified to show 
 cause against the order, yet this notification is obviously proper, 
 and, perhaps, requisite. I propose that notice be ofiicially given 
 by {summons. (1 R. S. 826, sec, 21.) 
 
 FORM OF SUMMONS. 
 
 Chenango County ^ ss. 
 
 To any Constable of said County, Greeting : 
 You are hereby required to summon A. B. of Norwich, in said 
 county, to appear before us, the imdernamed Justices of the 
 Peace of said county, on the 10th day of June, instant, at two 
 o'clock in the afternoon, at the office of the undernamed James 
 Jackson, to show cause, if any she may have, why we should 
 not make an order for the keeping of a child, said to have been 
 lately born of the said A. B., a bastard, and to be chargeable, or 
 likely to become chargeable, to said county, [or " town,"] by 
 charging the said A. B. with the payment of money weekly, or 
 other sustentation — the overseers of the poor of said town [or 
 " the superintendents of the poor of said county,"] having ap- 
 plied to us for that purpose. Given under our hands, at Nor- 
 v;ich, June 5th, 1849. 
 
 James Jackson, ) 
 
 •TV T ? Justices. 
 
 David Long, \ 
 
 form op an order. 
 Chenango County^ ss. — Whereas, E. F., one of the superin- 
 tendents of the poor of said county, [or " G. II., one of the 
 overseers of the poor of Norwich, in said county,"] has 
 made applicalioii lo us, two of the Justices of the Peace of said 
 county, cnnplaiiiiiig, that A. B., of Norwich, in said county, was 
 lately dcl'vercd at Norwich, Q,foresaid, of a bastard child, which
 
 INTERNAL POLICE OF THE STATE. 329 
 
 is chargeable, [or " likely to become chargeable,"] to said county, 
 [or " town,"] and that said A. B. is possessed of property in her 
 own right, and is of sufficient ability to support said child, and 
 desiring that we should examine into the matters, and make or- 
 der for the relief of such county, [or " town."] And whereas, 
 upon examination into the matters of said application, and upon 
 due proof thereof on oath, before us given — and the said A. B., 
 although present at such examination, not showing any suffi- 
 cient cause to the contrary — [or, " and the said A. B. neglect- 
 ing to appear before us, and show cause, if any she might have, 
 to the contrary, although duly summoned so to appear."] There- 
 fore we do hereby order, that the said A. B. pay weekly to said 
 overseers, [or " to said superintendents,"] the sum of one dollar, 
 for the support of said child. Witness our hands, at Norwich, 
 
 June 10th, 1849. 
 
 James Jackson, 
 David Long, 
 
 Justices. 
 
 The order will, perhaps, more usually be made for the pay- 
 ment of money conditionally, thus : 
 
 " We do, therefore, hereby order, that unless the said A. B. 
 shall nurse, and take care of said child herself, she shall pay 
 weekly to said overseers," &c. {as before.) 
 
 A copy of the order, subscribed by the Justices, should be 
 served on the woman ; and if she means to appeal from the or- 
 der, she must execute a bond to the people of this state, in such 
 penal sum as the Justices shall direct, and with good and suffi- 
 cient sureties to appear at the next Court of Sessions, and not 
 depart the court without leave. The execution of such a bond, 
 is, in itself, to be deemed an appeal, without further notice. 
 (1 R. S. 827, sec. 24.) 
 
 For the form of such a bond, the form heretofore given for a 
 similar bond, to be executed by the putative father, may be va- 
 ried to suit this case. 
 
 If, after service of the order, the woman refuse or neglect to 
 perform the same, she is to be committed to jail, until she does 
 comply, unless she shall have executed the bond, as aforesaid. 
 
 FORM OF warrant TO COMMIT. 
 
 Chenango County, ss. 
 
 To any Constable of the said County, Greeting. 
 Whereas, by an order, duly made by us, the undernamed Jus-
 
 330 DUTIES OF JUSTICES OF THE PEACE. 
 
 tices of the Peace of said county, bearing date the 10th day of 
 June, instant, we made direction for the keeping of a certain 
 bastard child, lately bom in Norwich, in said county, of the 
 body of A. B., which is chargeable to said town, [or " county,"] 
 by charging the said A. B. with the payment, &,c. — [as in the 
 oi'de)'] — which order was so made, upon the application to us 
 of the overseers of the poor of said town, [or "of the superin- 
 tendents of the poor of the said county ;"j and after due notice 
 to the said A. B. to show cause, if any she might have, against 
 the making of such order. And whereas, a copy of said order 
 subscribed by us, has been served upon the said A. B., and she 
 has not executed a bond, as by law authorized, for her appear- 
 ance at the next Court of Sessions, (fee, and inasmuch as it is 
 now proved before us, and fully appears, that said A. B, has 
 wholly neglected to perform the requirement in our said order : 
 You are, therefore, hereby commanded, in the name of the peo- 
 ple of the State of New York, to take the said A. B. and con- 
 vey her to the common jail of said county, there to remain, 
 without bail, until she shall comply with said order, or execute 
 the bond authorized by statute, as aforesaid. Given under our 
 hands, at Norwich, June 20ih, 1849. 
 
 James Jackson, ) j^^^.^^^^ 
 David Long, ) 
 
 If the mother execute the bond, the Justices must transmit 
 the same, with the order of sustenance, to the clerk of the 
 court, before the opening of the next Court of Sessions ; or 
 copies of such bond and order, signed by the Justices. And 
 all further proceedings in the case, are to be then conducted 
 before the Court of Sessions. (1 R. S. 827, sec. 26.) 
 
 It may happen that the woman will refuse to appear volun- 
 tarily before a Justice or Justices, to testify, and disclose the 
 name of a putative father. In such cases, as the Justices have 
 authority to compel such testimony and disclosure, they will be 
 required to issue process to enforce her attendance, and particu- 
 larly iu the case where they arc associated to make an order of 
 filiation ; for in that case, the woman must be examined on 
 oatli, in the j)resencc of the person charged. I, therefore, sub- 
 join the form of process to bring the woman before the Justices 
 associated to make an mdcr of filiation, and which, with slight 
 variation, may be used in other cases.
 
 INTERNAL POLICE OF THE STATE. 331 
 
 FORM OF PROCESS. 
 
 Chenango County, ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas, we, the undernamed Justices of the Peace of said 
 county, have, upon the application of the overseers of the poor 
 of the town of Norwich, in said county, — [or " the superintend- 
 ents of the poor of said county,"] — associated for the purpose 
 of examining into the matter of a certain complaint made to us 
 by said overseers — [or " superintendents,"] — that A. B. of said 
 town, is now pregnant with a child, which, when born, will be 
 a bastard, and which is likely to become chargeable to said 
 town, [or " county,"] — [or, " that A. B. has been delivered, in 
 said town, of a bastard child, which is chargeable, or likely to 
 become chargeable to said town or county,"] — and C. D. having 
 been brought before us this day, charged to be the putative 
 father of said child : Now, therefore, to the intent that the said 
 A, B. may be examined before us, on oath, and in the presence 
 of the said C. D., touching the father of said child, you are 
 hereby commanded, in the name of the people of the state of 
 New York, to bring the said A. B. forthwith before us, at the 
 office of the undernamed James Jackson, in Norwich aforesaid. 
 
 Given under our hands, June 2, 1849. 
 
 James Jackson, ) 
 
 T\ t } Justices. 
 
 Uavid Long, ^ 
 
 If the putative father, or the mother of a bastard, or of any 
 child likely to be born a bastard, and likely to become chargea- 
 ble, run away from their ordinary residence, leaving such bas- 
 tard or child, the overseers of the poor of the town, or the 
 superintendents of the poor of the county, may apply to any 
 two Justices of the Peace of the county, where any estate, real 
 or personal, of such father or mother may be, for a warrant to 
 seize such estate. Proof of the facts must be made to the Jus- 
 tices. (1 R. S. 831, sec. 52.) 
 
 FORM OF WARRANT. 
 
 Chenango Count?/, ss. 
 To the Overseers of the Poor of the town of Norwich, in said 
 County,— [or, " To the Superintendents of the said County :"j 
 It appearing to us, two of the Justices of the Peace of the
 
 332 DUTIES OF JUSTICES OF THE PEACE. 
 
 said county, as well by the representation and application to us 
 made by the said overseers, [or " the said superintendents,] as 
 upon due proof of the facts before us given, that 0. D. is the 
 father of a bastard child, whereof A. B, of said town, is now 
 pregnant, and which, when born, is likely to become chargeable 
 to said town, [or " county,"] [or " that C. D. is the father of a 
 bastard child, lately born in the said town of Norwich, and 
 which is chargeable, — or likely to become chargeable, — to the 
 said town — or said county ;"] and that C. D. has absconded 
 from said town, which is the place of his ordinary residence, 
 leaving in said county some estate, real or personal : And 
 whereas, the said overseers [or " superintendents"] have applied 
 to us for our warrant, to seize said estate : We, therefore, au- 
 thorize you to take and seize the goods, chattels, effects, things 
 in action, and the lands and tenements of the said C. D. wliere- 
 ever the same may be found in your county. And you will, 
 immediately upon such seizure, make an inventory of the pro- 
 perty by you taken, and return the same, together with your 
 proceedings to the next Court of Sessions of the Peace of said 
 county. 
 
 Given under our hands at Norwich, May 30th, 1849. 
 
 James Jackson, 
 
 David Long, 
 
 i Justices. 
 
 The same proceedings must be had under this warrant, and 
 it may be discharged for the same cause, and in the same 
 manner, as is provided in relation to absconding parents. (I R. 
 S. 831, sec. 52.) 
 
 The Justices who have made an order of filiation or mainte- 
 nance, cither against the putative father, or the mother, may, 
 from time to time, vary the amount directed to be paid by redii- 
 cing the sum, as circumstances may require. But the sum can 
 be increased only by the Court of Sessions. 
 
 In case of reduction by the Justices, it seems proper, although 
 the statute is silent on the subject, that they should make a new 
 order expressive of their determination, and give a copy to the 
 person charged. As the application for reduction will probably, 
 in most instances, be made by the person charged, the over- 
 seers or superintendents, as the case may require, should have 
 an opportunity of showing cause against such reduction, and 
 shoiili], therefore, be notified of the application.
 
 INTERNAL POLICE OF THE STATE. 333 
 
 FORM OF ORDER. 
 
 Chenango County^ ss. 
 To the Overseers of the Poor of the town of Norwich in said 
 
 County, [or, " The Superintendents of the Poor of said 
 
 County :"j 
 
 Whereas, by an order of fiUation, by us made, bearing date 
 the 2d day of June last, we did determine that C. D. is the 
 father of a certain bastard child, then lately born in Norwich 
 aforesaid, and did therein order, among other things, that tlie 
 said C, D. should pay to you, the said overseers [or " superin- 
 tendents"] for the support of said child, the weekly sum of one 
 dollar, so long as said child shall continue chargeable to said 
 town [or " county"] — And whereas, upon the application of the 
 said C. D., we have this day made inquiry into the circumstan- 
 ces of the case, and heard the proofs and allegations to us 
 submitted in relation thereto ; and it appearing to us upon such 
 inquiry, that the circumstances in relation to said bastard child, 
 render it proper and expedient that the sum required to be paid 
 by the said C. D. by our former order should be reduced, as 
 hereinafter expressed. And, inasmuch as the said overseers — 
 [or " superintendents"] — have shown before us no sufficient 
 reason against such reduction, although appearing before us, — 
 [or " notified to appear before us, and show such cause, if any 
 they might have."] 
 
 We do, therefore, reduce the sum required to be paid weekly, 
 by the said C. D. by our former order as aforesaid, to the weekly 
 sum of seventy-five cents. 
 
 Given under our hands at Norwich, July 1, 1849. 
 
 James Jackson, ; 
 David Long, J"«^^^^^' 
 
 Whenever a compromise shall be made with the putative 
 father of a bastard child, pursuant to section sixty-eight and 
 sixty-nine of title six, of chapter twenty of the first part of the 
 Revised Statutes, the mother of such child, on giving security 
 for the support of the child, and to indemnify the city and 
 county, or the town and county, from the maintenance of the 
 child, to the satisfaction of the officers making the compromise, 
 shall be entitled to receive the moneys paid or secured by
 
 334 DUTIES OF JUSTICES OF THE PEACE. 
 
 such putative father, as the consideration of such compromise. 
 (Sess. Laws, 1838, ch. 202, p. 173, sec. 1.) 
 
 When the mother of such child shall be unable to give such 
 security, but shall be able and willing to nurse and take care of 
 the child, she shall be paid the same weekly allowance for nur- 
 sing and taking care of the child, out of the moneys paid by 
 the father on such compromise, as he shall have been liable to 
 pay by the order of filiation ; such weekly sum to be paid the 
 mother, may be prescribed, regulated, or reduced, as in the case 
 of an order of filiation. (Id. sec. 2.) 
 
 5. Of the Safe Keeping and Care of Lunatics. 
 
 Any person who, by lunacy or otherwise, becomes furiously 
 mad, or so far disordered in his senses as to endanger his own 
 person, or the person or property of others, if permitted to go at 
 large, may be confined. (1 R. S. 805.) 
 
 If the lunatic has sufficient property to maintain himself, the 
 committee of his person and estate must provide a place for his 
 confinement. If he has not sufficient property, his parents and 
 children must confine and maintain him, if of sufficient ability. 
 AVhen there is no such committee, nor parent, or child, of suffi- 
 cient ability, or in case of their neglect or refusal, the duty de- 
 volves upon the overseers of the poor of the city or town where 
 the mad person shall be found. (Id.) 
 
 It is made the special duty of the overseers of the poor of a 
 city or town where any such lunatic or mad person shall be 
 found, to apply to two Justices of the Peace of the same town, 
 for their warrant, directing his confinement. Such Justices may 
 also, whenever they deem it necessary, issue such warrant, 
 either upon their own view, or upon the information or oath of 
 others. (Id.) 
 
 Where the Justices proceed upon the information of others, it 
 would be safer and more regular to take the information in wri- 
 ting, and on oath. 
 
 FORM OF INFORMATION. 
 
 Town of Oxford, ss. — Robert Morris, being duly sworn, makes 
 oath and gives information, before David Long and Alvin Pe- 
 ters, Justic(!S of the Peace of the said town, that Henry Brown, 
 wlio is now in said town, is so far disordered in his senses, as.
 
 INTERNAL POLICE OF THE STATE. 335 
 
 in their opinion and belief, to endanger his own person, or the 
 
 person or property of others, if permitted to go at large, 
 
 Robert Morris. 
 
 Subscribed and sworn before us, 
 
 this 1st day of July 1849. 
 
 David Long, 
 
 Justices. 
 
 .( 
 
 Alvin Peters 
 
 When the Justices are desirous of becoming further satisfied 
 of the necessity of the confinement by an examination, [and 
 such examination is expressly required, when they proceed upon 
 the application of the overseers of the poor,] the proper course 
 seems to be, to issue their warrant, to bring the kmatic before 
 them. 
 
 FORM OF A WARRANT. 
 
 Chenango County, ss. 
 
 To any Constable of the town of Oxford, in said County, 
 Greeting : 
 
 Whereas, the overseers of the poor of said town, have made 
 application to us, two of the Justices of the Peace of the said 
 town, representing [or, " whereas, information on oath, has been 
 given to us, two of the Justices of the Peace of the said town,"] 
 that Henry Brown, who is now in said town, is so far disordered 
 in his senses as to endanger his own person, or the person or 
 property of others, if suffered to go at large. You are, therefore, 
 hereby commanded, in the name of the people of the state of 
 New York, forthwith to apprehend the said Henry Brown, and 
 bring him before us, at the office of the undernamed David Long, 
 in Oxford, aforesaid, that we may examine the said Henry 
 Brown, and make such further order in the premises, as the ne- 
 cessities of the case and the law may require. 
 
 Given under our hands at Oxford, July 1st, 1849. 
 
 David Long, ; 
 A T> > Justices. 
 
 Alvin Peters, ^ 
 
 warrant of two justices to confine a lunatic. 
 
 Town of Oxford^ ss. 
 
 To the Constables and Overseers of the Poor of said 
 town. Greeting : 
 Whereas, upon application made by the said overseers of the
 
 336 DUTIES OF JUSTICES OF THE PEACE. 
 
 poor to us, two of the Justices of the Peace of said town, and 
 upon personal view and examination, by us had and made, [or, 
 " whereas, upon our own view ;" or, " whereas, u-pon information 
 upon oath, to 21s given,'"] as well as by the evidence of two re- 
 putable physicians under oath, we are satisfied that Henry 
 Brown, now in said town, is so far disordered in his senses, as 
 to endanger his own person, or the person or property of others, 
 if sutfered to go at large, and deeming it necessary that he should 
 be forthwith confined : We, therefore, command you, in the 
 name of the people of the state of New York, forthwith to ap- 
 prehend the said Henry Brown, and him safely lock up and 
 confine, in such secure place as may be provided, in conformity 
 to law. Given under our hands at Oxford, aforesaid, July 1st, 
 1849. 
 
 David Long, 
 
 'J 
 Alvin Peters, 
 
 Justices. 
 
 It is the duty of the overseers to whom the warrant is di- 
 rected, to procure a suitable place for the confinement of the lu- 
 natic, as therein directed. (1 R. S. 805, sec. 5.) This confine- 
 ment must, however, be understood as only temporary, and such 
 as is demanded by the immediate and pressing exigencies of the 
 case. 
 
 It is provided, that loithin ten days, the lunatic shall be sent 
 to the State Lunatic Asylum, or to such public or private asylum 
 as may be approved by a standing order, or resolution of the su- 
 pervisors of the county. The superintendents and overseers of 
 the poor, are severally enjoined to see that this provision is car- 
 ried into eficct in the most humane and speedy manner ; as well 
 in case the lunatic or his relatives are of sufficient ability to de- 
 fray the expenses as in case of a pauper. (1 R. S. 811.) 
 
 ORDER SENDING A LUNATIC TO THE ASYLUM. 
 
 Chenango County, ss. — It is hereby ordered by the superin- 
 tendents of the poor of the county aforesaid, that Henry Brown, 
 a lunatic, now in the town of Oxford, in said county, be sent to 
 the State Lunatic Asyhnn, [or, " to the jmblic" or ^^ private asy- 
 lum, at , the said asylum having been ajtproved by a
 
 INTERNAL POLICE OF THE STATE. 337 
 
 standing order or resolution of the board of supervisors of said 
 
 counti/.''] 
 
 Given under our hands, at Oxford, July 8th, 1849. 
 
 James Jackson, ^ Superintendents 
 Samuel Kelly, of the Poor. 
 
 William Brown, ) 
 
 In all cases of confinement under the statute, whether of a 
 pauper or not, neither Justices, superintendents, nor overseers of 
 the poor, can order or approve of such confinement, without 
 having the evidence of two reputable physicians under oath, as 
 to the alleged fact of insanity. (1 R. S. 811, sec. 35.) 
 
 affidavit of physicians. 
 
 Chenango County^ ss. — Thomas Jackson and John Bogert, 
 physicians, living in the town of Oxford, county aforesaid, be- 
 ing severally sworn, depose and say, and each for himself, de- 
 poses and says, that they have carefully examined into the men- 
 tal state and condition of Henry Brown, and particularly in 
 reference to his alleged insanity, and that in their opinion de- 
 rived from such examination, the said Henry Brown is a con- 
 firmed Lunatic. 
 
 Thomas Jackson. 
 John Bogert. 
 Sworn this 8th day of July, 1849, 
 before me, 
 
 David Long, Justice. 
 
 The affidavit must be filed, with a brief report of all the other 
 proofs, facts and proceedings in the case, in the oifice of the 
 county clerk. The county clerk is required to file the papers 
 and register, with date, the names and residences of the lunatic 
 and officers severally, in tabular form, in the book of miscella- 
 neous records kept in his ofiice. The certificate of the clerk; 
 and seal of the court verifying such facts, will warrant the luna 
 tic's admission into the asylum. (Id.) 
 
 If any lunatic confined under the statute is dissatisfied with 
 any final decision or order of the Justices, or of any overseer or 
 superintendent of the poor, he may, within three days after such 
 order or decision, appeal to the judge of the county, making 
 
 22
 
 338 DUTIES OF JUSTICES OF THE PEACE. 
 
 complaint on oath ; and the Judge must thereupon stay his be- 
 ing sent out of the county, and forthwith call a jury to decide 
 upon the fact of lunacy. After a full and fair investigation, 
 aided by the testimony of two respectable physicians, if the jury 
 find him sane, the judge must forthwith discharge him, other- 
 wise he must confirm the order for his being immediately sent 
 to an asylum. (1 R. S. 811, sec. 34.) 
 
 In case the Justices refuse to make an order for confinement, 
 they must state their reasons for such refusal in writing, so that 
 any person aggrieved thereby, may appeal, as above, to a County 
 Judge, who must hear and determine the matter in a summary 
 way, or call a jury, as he may think most fit and proper. (Id.) 
 In every case of appeal, the Judge has the same power to 
 take testimony and compel the attendance of witnesses and 
 jurors, as a Justice has in civil cases. (Id.) 
 
 The superintendent of the State Lunatic Asylum, is required 
 to make, in a book kept for the purpose, at the time of receiving 
 a lunatic, a minute, with date, of the name, residence, office, 
 and occupation of the person by whom, and by whose authori- 
 ty, each insane person is brought to the asylum, and have all 
 the orders, warrants, requests, certificates, and other papers, ac- 
 companying him, forthwith copied into the same. (1 R. S. 812, 
 sec. 37.) 
 
 Each county may, at all times, have one indigent insane pa- 
 tient in the asylum^ whose disease, at the time of admission, 
 was a first attack, and did not exceed six months ; and such 
 further number of either eld, or recent cases, as the asylum can 
 accommodate, in proportion to the insane population of the 
 county. The patients must be designated by the superinten- 
 dents of the poor, or, if the county has no such superintendents, 
 by the county Judge. (Id. sec. 37.) 
 
 Whenever there are vacancies in the asylum, the managers 
 may authorize the superintendent to admit, under special agree- 
 ment, such recent cases as may seek admission, under peculiarly 
 afflictive circumstances, or which, in his opinion, promise spee- 
 dy recovery. (1 R. S. 813, sec. 42.) 
 
 All town and county officers sending a patient to the asylum, 
 
 are rociuirod, bofore sending him, to see that he is in a state of 
 
 perf(!ctly bodily cleanliness, and is comfortably clothed, and 
 
 provided with suifnljlo clinngos of raiment. (Id. sec. 43.) 
 
 When .in insane person, in indigent circimistanccs, has been
 
 INTERNAL POLICE OF THE STATE. 339 
 
 sent to the asylum by his friends, who have paid his bills there 
 for six months, if the superintendent certifies that he is a fit pa- 
 tient, and likely to be benefitted by remaining in the institution, 
 the supervisors of the county of his residence are authorized 
 and required, upon an application under oath in his behalf, to 
 raise a sum of money sufficient to defray the expenses of his 
 remaining there another year, and pay the same to the treasurer 
 of the asylum ; and they are required to repeat the same for 
 two succeeding years, upon like application, and the production 
 of a new certificate, each year, of like import, from the superin- 
 tendent. (Id. sec. 40.) 
 
 When a person in indigent circumstances, not a pauper, be- 
 comes insane, application may be made, in his behalf, to the 
 Judge of the county where he resides. The Judge must, there- 
 upon, call two respectable physicians, and other credible wit- 
 nesses, and fully investigate the facts of the case, as well as to 
 his insanity, as with regard to his indigence. The question of 
 insanity may be passed upon, either with or without the verdict 
 of a jury. If the Judge certifies that satisfactory proof has been 
 adduced, showing the person insane, and his estate is insufficient 
 to support him and his family, (or to support himself, if he has 
 no family,) on such certificate, authenticated by the county 
 clerk, and seal of the county court, he must be admitted into the 
 asylum, and supported there at the expense of the county, un- 
 til restored to soundness of mind — provided such restoration is 
 effected in two years. The Judge, in such case, has requisite 
 power to compel the attendance of witnesses and jurors. He is 
 required to file the certificate of the physicians, taken under 
 oath, and other papers, with a report of his proceedings and de- 
 cision, with the clerk of the county, and report the fiicts to the 
 supervisors, whose duty it will be, at their next annual meeting, 
 to raise the money requisite to meet the expenses of support. 
 (IR.S. 812, sec. 39.) 
 
 FORM OF APPLICATION TO COUNTY JUDGE. 
 
 To the Hon. A. B. Ketcham, County Judge of Chenango 
 
 County. 
 The petition of Samuel Peterson, of the town of Norwich, in 
 said county, respectfully showeth : 
 That Henry Brown, now a resident of said town, is a lunatic ; 
 that he is now in the care and custody of James Jackson, at the
 
 340 DUTIES OF JUSTICES OF THE PEACE. 
 
 town aforesaid ; that he is in indigent circumstances, and has no 
 property in his own possession, or held by any person in trust 
 for him, sufficient for his support, [or " for the support of him- 
 self and his family,"] under the visitation of insanity aforesaid. 
 Your petitioner tiierefore prays, that an examination and in- 
 vestigation may be had in the premises, pursuant to statute. 
 
 Samuel Peterson. 
 
 order of judge on the petition. 
 
 In the Matter of Henry Brown, ^ 
 
 an alleged indigent Lunatic. ) 
 
 Upon the petition of Samuel Peterson, of the town of Nor- 
 wich, in the county of Chenango, it is hereby ordered, that Tho- 
 mas Jackson and John Bogert, two respectable physicians of said 
 county, be hereby designated and appointed, pursuant to statute, 
 to examine Henry Brown, in respect to his alleged insanity ; and 
 that they appear before me, at my office, in Norwich, on the 
 12th day of July, instant, at ten o'clock in the forenoon, and 
 certify their respective opinions in relation thereto; and that, at 
 the time and place aforesaid, other witnesses be examined, 
 touching the mental condition and pecuniary circumstances of 
 the said Henry Brown. Given under my hand this 10th day 
 of July, 1849. 
 
 A. B. Ketcham, County Judge 
 of Chenango County. 
 
 FORM OF SUBPCENA. 
 
 To John Doe, Richard Roe, &c. 
 
 You and each of you are hereby commanded, in the name 
 of the people of the State of New York, to appear before me, 
 at my office, in the town of Norwich, on the 12th day of July, 
 instant, at ten o'clock in the forenoon, to testify what you, or 
 cither of you, may know, touching the mental condition and pe- 
 cuniary circumstances of Henry Brown, now in the town of 
 Norwich, in tlio coimty of Chenango. Given under my hand, 
 at Norwich, this 10th day of July, 1849. 
 
 A. B. Ketcham, County Judge 
 of Chenango County,
 
 INTERNAL POLICE OF THE STATE. 341 
 
 CERTIFICATE OF PHYSICIANS. 
 
 In the Matter of Henry Brown, ? 
 an alleged indigent Lunatic. ) 
 
 We, the undersigned physicians, resident in the town of Nor- 
 wich, county of Chenango, being severally sworn, do certify, 
 and each for himself certifies, under oath, that, in pursuance of 
 the order of A. B. Kelcham, County Judge of Chenango county, 
 made in the above entitled matter, and bearing date the 10th day 
 of July, 1849, we have carefully examined into the mental state 
 and condition of Henry Brown, above named, and particularly 
 in reference to his alleged insanity ; and that, in our opinion, de- 
 rived from such examination, the said Henry Brown is a con- 
 firmed lunatic. Dated July 12th, 1849. 
 
 Thomas Jackson. 
 John Bogert. 
 Subscribed and sworn, this 12th day of 
 July, 1849, before me, 
 
 A. B. Ketcham, 
 County Judge of Chenango County. 
 
 certificate of the county judge. 
 
 In the Matter of Henry Brown, ? 
 
 an alleged indigent Lunatic. ) 
 
 Application having been made to me, by Samuel Peterson, of 
 the town of Norwich, county of Chenango, for an examination 
 into the mental state and condition, and alleged indigence, of 
 Henry Brown, of the said town : I, thereupon, appointed Tho- 
 mas Jackson and John Bogert, two respectable physicians of the 
 said town, to examine the said Henry Brown, who have ap- 
 peared before me, and certified that the said Henry Brown is a 
 confirmed lunatic ; and I have also had satisfactory proof touch- 
 ing the indigence of the said Henry Brown : Now, therefore, I 
 do hereby certify, that it satisfactorily appears to me, from said 
 certificate and proof, that the said Henry Brown is a lunatic, 
 and that he has no estate of any kind sufficient for his support, 
 [or " for the support of himself and his family,"] under the dis- 
 pensation aforesaid. Given under my hand, at Norwich, this 
 12th day of July, 1849. 
 
 A. B. Ketcham, County Judge 
 of Chenango County.
 
 342 DUTIES OF JUSTICES OF THE PEACE. 
 
 Every insane person, supported in the asylum, is personally- 
 liable for his maintenance there, and for all necessary expenses 
 incurred by the institution in his behalf; and the committee, re- 
 lative, town, city, or county, that would have been bound by 
 law to provide for, and support him, if he had not been sent to 
 the asylum, are liable to pay the expenses of his clothing and 
 maintenance in the asylum, and actual necessary expenses lo, 
 and from the same. (1 R. S. 814, sec. 49.) 
 
 The expenses of clothing and maintaining in the asylum, a 
 patient, who has been received upon the order of any court, or 
 officer, must be paid by the county from which he was sent to 
 the asylum. The treasurer of the county is authorized and di- 
 rected, to pay to the treasurer of the asylum, the bills for clo- 
 thing and maintenance, as they become due and payable, ac- 
 cording to the by-laws of the asylum, upon the order of the 
 steward ; and the supervisors of the county are required annually 
 to levy and raise the amount of such bills, and such further sum 
 as will, probably, cover all similar bills, for one year in advance. 
 The county, however, has the right to require any individual, 
 town, cit}'', or county, that is legally liable for the support of such 
 patient, to reimburse the amount of the bills, with interest, from 
 the day of paying the same. (Id., sec. 50.) 
 
 Every town or county paying for the support of a lunatic in 
 the asylum, or for his expenses in going to or from the same, has 
 the like rights and remedies to recover the amount of such pay- 
 ments, with interest from the time of paying each bill, as if such 
 expenses had been incurred for the support of the same, at other 
 places, under existing laws. (1 R. S. 815, sec. 52.) 
 
 It is provided that no patient shall be discharged from the 
 asylum without suitable clothing ; and if it cannot be otherwise 
 obtained, the steward is required, upon the order of two mana- 
 gers, to furnish it, and also to furnish money not exceeding 
 twenty dollars, to defray his necessary expenses until he reaches 
 his friends, or has an opportunity of earning a subsistence. (Id. 
 sec. 5G.) 
 
 6. The Care of Habitual Drunkards. 
 
 Whenever tlu; overseers of the poor of any town discover any 
 person to be an habitual drunkard, they must, by writing under 
 their hands, designate and describe such drunkard, and by writ-
 
 INTERNAL POLICE OF THE STATE. 343 
 
 ten notice signed by them, require every merchant, distiller) 
 shop-keeper, grocer, tavern keeper or other dealer in spirituous 
 liquors, and every other person residing within the city or town 
 where such drunkard resides, or in any other city or town near to 
 or adjoining such city or town, not to give or sell, under any pre- 
 tence, any spirituous liquors to such drunkard. (1 R. S. 817, 
 sec. 1.) 
 
 DESIGNATION OF A DRUNKARD. 
 
 We, the overseers of the poor of the town of Norwich, do 
 hereby designate Israel Putnam, of the said town, as an habitual 
 drunkard. 
 
 Given under our hands this 1st day of June, 1849. 
 
 Jacob King, j 
 
 TT isr f Overseers. 
 
 Henry West, ^ 
 
 notice not to sell or give liquor to a de,unkard. 
 
 To Mr. Henri/ Peters : — 
 
 You are hereby informed that we, the overseers of the poor of 
 the town of Norwich, have, by writing under our hands, this 
 day designated Israel Putnam, of the said town, as an habitual 
 drunkard ; and we do hereby require you not to give or sell, 
 under any pretence, any spirituous liquors to the said Israel 
 Putnam. Dated June 1st, 1849. 
 
 Jacob King, 
 
 XT Aiir /■ Overseers, 
 
 Henry West, 
 
 If, after the personal service of such notice, any such person, 
 or any clerk, agent or member of the family of such person 
 shall knowingly give or sell, in any manner whatever, spirituous 
 liquors to any such drunkard, except by the personal direction 
 or on the written certificate of some ph^^sician, regularly 
 licensed to practice according to the laws of this state, stating 
 that such liquor is necessary for the preservation or recovery of 
 the health of such drunkard, he shall forfeit, for every offence, 
 the sum of ten dollars, for the use of the poor of the town where 
 such drunkard resides. (1 R. S. 817, sees. 3, 4.) 
 
 Where the parents or guardian of a minor under sixteen 
 years of age, or the master of an apprentice or servant, have 
 been designated by the overseers of the poor as habitual drunk-
 
 344 DUTIES OF JUSTICES OF THE PEACE. 
 
 ards, no tavern keeper, grocer, or other person licensed to sell 
 any strong or spirituous liquors or wines, can sell any such 
 liquors or wines to any such minor or apprentice, or servant, 
 without the consent of the overseers of the poor of the city or 
 town where such minor, or apprentice, or servant resides, under 
 the penalty of ten dollars for every offence, to be recovered by 
 the overseers for the use of the poor of the town. (1 R. S. 818, 
 sec. 5.) 
 
 When the overseers of the poor have designated a person as 
 an habitual drunkard, he may contest the fact of drunkenness 
 before a jury. For that purpose, he must apply to a Justice of 
 the Peace of his town for a venire. Upon such application, the 
 Justice is required to give immediate notice to the overseers of 
 the time and place which he may fix upon to try the question. 
 He must also issue a venire for a jury. 
 
 FORM OF NOTICE. 
 
 To the Overseers of the Poor of the totvn of Norwich : — 
 
 You are hereby notified that Israel Putnam, who has been 
 designated by you as an habitual drunkard, has applied to me 
 for process to summon a jury, to try and determine the fact of 
 such drunkenness ; and that I have fixed upon the 8th day of 
 June instant, at two o'clock in the afternoon, at my office in said 
 town, as the time and place for such trial. Dated June 1st, 
 1849. 
 
 James Jackson, Justice. 
 
 FORM of venire. 
 
 Chenango County, ss. 
 
 To any Constable of the town of Norwich, in said County. 
 Greeting : — 
 
 You are hereby commanded, in the name of the people of the 
 state of New York, to summon a jury of twelve persons, com- 
 petent to serve on jnrics, to appear at my oflice in Norwich 
 aforesaid, on tlio Sth day of Jinie instant, at two o'clock in the 
 afternoon, to try the fact whether Israel Putnam, of the said 
 town, is an haljitual druiilcard, he having been designated as 
 such })y the ovcrscMMS of (lie ])oor of said town ; and have there 
 and then a pant^i of the names of the jurors you shall so sum-
 
 INTERNAL POLICE OF THE STATE. 345 
 
 mon, and this precept. Given under my hand, at Norwich 
 aforesaid, June 1st, 1649. 
 
 James Jackson, Justice. 
 
 Witnesses may be summoned and sworn, and their testimony 
 enforced, in the same manner as in suits in the Justices' Court. 
 (1 R. S. 818, sec. 8.) 
 
 FORM OF SUBPCENA. 
 
 Chenango Contity, ss. 
 
 To John Doe, Richard Roe, &c., Greeting : — 
 You are hereby commanded, in the name of the people of the 
 state of New York, to appear before me, the undernamed Jus- 
 tice of the Peace, at my office in the town of Norwich, in said 
 county, on the 8th day of June instant, at two o'clock in the 
 afternoon, to give evidence touching the fact of the habitual 
 drunkenness of Israel Putnam, the said Putnam having been 
 designated by the overseers of the poor of said town as an ha- 
 bitual drunkard, and the said Putnam having demanded a 
 jury to try such alleged fact. Given under my hand at Noi 
 wich aforesaid, June 1st, 1849. 
 
 James Jackson, Justice. 
 
 The jury are to be summoned, returned, and six balloted for, 
 as in suits in the Justices' Court. The six drawn must be 
 sworn, and sit as a jury. (Id.) 
 
 FORM OF juror's OATH. 
 
 You do swear, in the presence of Almighty God, that you 
 will well and truly try the fact of the alleged habitual drunken- 
 ness of Israel Putnam, and a true verdict will give, according 
 to evidence. 
 
 form OF witness' oath. 
 
 You do swear, in the presence of Almighty God, that the evi- 
 dence you shall give, touching the fact of the alleged habitual 
 drunkenness of Israel Putnam, shall be the truth, the whole 
 truth, and nothing but the truth. 
 
 The jury are to hear the proofs and allegations, and proceed
 
 346 DUTIES OF JUSTICES OF THE PEACE. 
 
 in all respects, as in trials at law, to render their verdict, which 
 is to be entered by the Justice in a book, to be provided by him 
 for that purpose. (1 R. S. 818, sec. 9.) 
 
 If it be found by the verdict that the person demanding such 
 trial is an habitual drunkard, the Justice must enter judgment 
 against him, and award execution for the costs of the overseers 
 of the poor in the same manner as in suits between individuals, 
 which Justices of the Peace are authorized to try. (Id. sec. 10.) 
 
 FORM OF EXECUTION. 
 
 Chenango County, ss. 
 
 To any Constable of said County, Greeting : — 
 Whereas, Israel Putnam, of Norwich, in said county, was de- 
 signated and described by the overseers of the poor of said 
 town as an habitual drunkard, and by the verdict of a jury em- 
 pannelled, drawn and sworn before me, the undernamed Jus- - 
 tice, upon the application of the said Israel Putnam, it is found 
 that said Putnam is an habitual drunkard ; whereupon I did ren- 
 der judgment against said Putnam for the costs of the said over- 
 seers in attending the trial, amounting to the sum of three dollars. 
 You are therefore hereby commanded, in the name of the people 
 of the state of New York, to levy the said costs of the goods 
 and chattels of the [said Israel Putnam, (excepting such goods 
 and chattels as are exempt, by law, from execution,) and bring 
 the money which you shall collect, in thirty days from the date 
 hereof, before me at my office in Norwich, to render to the said 
 overseers. Given under my hand at Norwich, June 8th, 1849. 
 
 James Jackson, Justice. 
 
 If it be found by the verdict that the person designated is not 
 an habitual drunkard, the Justice must render judgment there- 
 upon ; but execution must not be awarded against the overseers 
 of the poor for costs, unless it appear to the Justice that they 
 did not act in good faith, and had not reasonable cause to be- 
 lieve lliat the person designated was an habitual drunkard. If 
 it appear that they did act in good faith, and had reasonable 
 cause, (fcc, each party must pay their own costs. (1 R. S. 819, 
 sec. 12.) 
 
 It would seem proper, that when the verdict^is in favor of the
 
 INTERNAL POLICE OF THE STATE 347 
 
 person designated, the Justice should make a special suggestion 
 in his entry of judgment, thus : 
 
 " But inasmuch as it appears that the said overseers of the 
 poor acted in good faith, and had reasonable cause to believe 
 the said Israel Putnam to be an habitual drunkard — therefore, 
 the parties respectively must pay their own costs." Or, 
 
 " But, inasmuch as it appears that the said overseers of the 
 poor did not act in good faith, and had not reasonable cause to 
 believe the said Israel Putnam to be an habitual drunkard, judg- 
 ment is rendered against said overseers, for the costs of said Put- 
 nam, amounting to the sum of three dollars." 
 
 If at any time the overseers of the poor shall be satisfied that 
 the drunkard has reformed and become temperate, they may re- 
 voke and annul any such notice given by them, or any of their 
 predecessors in office. (Id. sec. 14.) 
 
 REVOCATION OF NOTICE. 
 
 Whereas, we, the overseers of the poor of the town of Nor- 
 wich, [or, " whereas, A. B. and C D., late overseers of the poor 
 of the town of Norwich,"] did designate Israel Putnam, of the 
 said town, as an habitual drunkard, and did give notice prohib- 
 iting the selling any spirituous liquors to the said Putnam. And, 
 whereas, we are satisfied that the said Putnam has become tem- 
 perate : Now, therefore, we do hereby revoke the said designa- 
 tion and notice. Given under our hands, this 1st day of Octo- 
 ber, 1849. 
 
 Jacob King, I r\ 
 
 ,,_ ' > Overseers. 
 Henry West, ) 
 
 7. Of Profane Cursing and iSwearing. 
 
 The penalty for profane cursing or swearing, is one dollar for 
 each offence. (1 R. S. 846, sec. 50.) 
 
 No prosecution for this offence can be maintained, unless the 
 same is instituted either by the actual issuing of process, or the 
 appearance of the offender to answer the complaint within 
 twenty days next after the offence is committed. (Id. 850, sec. 72.) 
 
 There are two cases in which a Justice of the Peace, mayor, 
 recorder, or alderman of any city, are authorized to convict for.
 
 348 DUTIES OF JUSTICES OF THE PEACE. 
 
 this offence upon their own hearing, without other proof : ( L R 
 S. 846, sees. 50, 51.) 
 
 1. When the offence is committed in the presence and hear- 
 ing of the magistrate, while he is holding a court ; and 
 
 2. When committed at any other time, in his presence and 
 hearing, under such circumstances, as, in his opinion to amount 
 to a gross violation of public decency. 
 
 In other cases, a summary inquiry must be had, and proofs 
 exhibited. 
 
 Whenever complaint is made to the magistrate, of the com- 
 mission of this offence, he must cause the offender to be brought 
 before him. (Sec. 71.) 
 
 FORM OF COMPLAINT. 
 
 Chenango County^ ss. — John Smith, of Oxford, in said county, 
 
 being duly sworn, makes oath and complains, before David 
 
 Long, one of the Justices of the Peace of said county, that John 
 
 Doe, on the first day of September, instant, at Oxford, aforesaid, 
 
 did, in the presence and hearing of the said Smith, profanely 
 
 curse, [or, '' profanely swear,"] contrary to the form and effect of 
 
 the statute, in such case made and provided, that is to say, the 
 
 said John Doe, did, then and there openly say and declare — 
 
 [here set forth the words spoke?i.] 
 
 John Smith. 
 
 Subscribed and sworn before me, this 
 
 10th day of September, 1849. 
 
 David Long, Justice. 
 
 FORM of warrant. 
 
 Chenango County, ss. 
 
 To any Constable of said County, Greeting : 
 Whereas, John Smith, of Oxford, in said county, has this day 
 made complaint on oath, before me, the undernamed Justice of 
 the Peace of Oxford, aforesaid, that John Doe, (fcc, [here set 
 forth the comjdaint.^ You are, therefore, hereby commanded, 
 in the name of the people of the State of New York, forthwith 
 to apitrohcnd the said John Doe, and bring him before me, at 
 my office in Oxford, aforesaid, to answer to said complaint, and 
 to be dealt with according to law. Given under my hand, at 
 Oxford, aforesaid, September 10th, 1849. 
 
 David Long, Justice.
 
 INTERNAL POLICE OF THE STATE. 349 
 
 If the offender be found guilty, the Justice must make and 
 sign a record of his conviction. The recital in the record, will, 
 of course vary in different cases, and will be materially different 
 when the conviction is upon the hearing of the Justice, from the 
 case where the proceeding is by complaint and proofs. A form 
 in each case, will therefore be proposed. 
 
 RECORD OF CONVICTION, WHERE THE OFFENCE IS COMMITTED 
 IN THE PRESENCE OF THE JUSTICE, WHILE HOLDING A 
 COURT. 
 
 Chenango County^ ss. — Be it remembered, that on this tenth 
 day of September, one thousand eight hundred and forty nine, a 
 court was duly held, by and before me, the undernamed Justice 
 of the Peace of Oxford, in said county, at Oxford, aforesaid, pur- 
 suant to statute, in such case made and provided, for the trial of 
 a certain action on contract, wherein Richard Roe was plaintiff, 
 and John Stiles, defendant ; and while I was so holding the said 
 court, the said Richard Roe, did then and there, in my presence 
 and hearing, profanely swear one profane oath, contrary to the 
 form and effect of the statute, in such case made and provided, 
 that is to say, the said Richard Roe did utter and declare, the 
 words following, [here state the ivords constituting the offence ;] 
 whereupon I did immediately convict the said Richard Roe, of 
 the said offence, and he is convicted thereof; whereby, and 
 in pursuance of the statute in such case made and provided, 
 the said Richard Roe is b^i me adjudged to have forfeited, and to 
 pay for his said offence, the sum of one dollar. Given under 
 my hand at Oxford, September 10th, 1840. 
 
 David Long, Justice. 
 
 RECORD OF conviction, WHERE THE OFFENCE IS COMMIT- 
 TED IN PRESENCE OF THE JUSTICE NOT HOLDING A COURT ; 
 BUT UNDER CIRCUMSTANCES AMOUNTING TO A GROSS VIO- 
 LATION OF PUBLIC DECENCY, 
 
 Chenango County, ss. — Be it remembered, that on this first 
 day of September, one thousand eight hundred and forty-nine, 
 at Oxford, in said counter, John Stone did, in the presence and 
 hearing of me, the undernamed Justice of the Peace of the said 
 town, profanely swear one profane oath, contrary to the form 
 and effect of the statute, in such case made and provided, that
 
 350 DUTIES OF JUSTICES OF THE PEACE. 
 
 is to say, the said John Stone did then and there utter and de- 
 clare the words following ; [here state the ivords ;] and inasmuch 
 as the said John Stone did so profanely swear, in the presence 
 and hearing of divers citizens of this state, and under such cir- 
 cumstances as, in my opinion, to amount to a gross violation of 
 public decency, I did thereupon, and without other proof, and in 
 pursuance of the statute, in such case made and provided, con- 
 vict the said John Stone, and he is convicted of the said offence ; 
 whereby, &c., [as in the p7'ecedmg form.] 
 
 RECORD OF COVICTION ON A COMPLAINT. 
 
 Chejiango County^ ss. — Be it remembered, that on the 10th 
 day of September, instant, at Oxford, in said county, John Smith 
 personally appeared before me, the undernamed Justice of the 
 Peace of Oxford, aforesaid, and made complaint on oath, that 
 John Doe, &c., [Aere state the complaint y] upon Avhich com- 
 plaint I issued my warrant, to cause the said John Doe to be 
 brouglit before me, to answer to said complaint. And now, at 
 this day, to wit, the 12th day of September, 1849, at Oxford, 
 aforesaid, the said warrant is returned, and the said John Doe is 
 brought before me ; and, I, having in the presence of said John 
 Doe proceeded summarily to inquire into the facts, and hear the 
 proofs and allegations to me submitted, touching said complaint ; 
 and it appearing to me, upon competent testimony before me 
 given, (and the said John Doe not having shown any sufficient 
 matter in his defence thereof,) that the said John Doe is guilty 
 of the premises in said complaint alleged — the said John Doe 
 is therefore, in pursuance of the statute, in such case made and 
 provided, duly convicted before me, of profanely swearing one 
 profane oath ; whereby, (fcc, [as in the foregoing form.] 
 
 A person may be convicted for several offences at the same 
 time, for each of which lie will incur the forfeiture of one dollar. 
 If the offender do not forthwith pay the penalties incurred with 
 the costs ; or give security for their payment, he must be com- 
 mitted to jail for every oflcnco, or for any number of offences, 
 whereof he was convicted at one and the same time, for not less 
 than one day, nor more tlian three days, there to be confined in 
 a room, se])aratc from all otlicr persons. (1 R. S. 847, sec. 52.)
 
 INTERNAL POLICE OF THE STATE. 351 
 
 SECURITY FOR PAYMENT OF PENALTY AND COSTS. 
 
 Chenango County^ ss. — Whereas John Doe has this day 
 been convicted before David Long, Esquire, a Justice of the 
 Peace of the said county, of swearing one profane oath at the 
 town of Oxford in said county, whereby ho has forfeited the 
 sum of one dollar ; and the said Justice has settled and ascer- 
 tained the costs of the said conviction at the sum of two dollars 
 and seventy-five cents : We, the said John Doe and Henry 
 Peters as his surety, do hereby engage to pay the said penalty 
 and costs to the overseers of the poor of the said town, within 
 six days from the date hereof. 
 
 Witness our hands and seals, the 12th day of September, 
 1849. John Doe, [l. s.] 
 
 Henry Peters, [l. s.] 
 
 commitment for non-payment of penalty AND costs. 
 
 Chenango County^ ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas John Doe was this day duly convicted before me, 
 the undernamed Justice of the Peace of Oxford in said county, 
 of the offence of profanely swearing one profane oath, contrary 
 to the form and effect of the statute in such case made and pro- 
 vided, whereby he was by me adjudged to have forfeited, and 
 to pay the sum of one dollar, and became also liable to pay the 
 costs of his prosecution and conviction therefor, amounting to 
 the sum of two dollars and seventy-five cents ; and whereas 
 the said John Doe has not paid the said forfeiture and costs, 
 nor secured the payment thereof, as by law required, and I have 
 made and signed my record of said conviction : You are, 
 therefore, hereby commanded, in the name of the people of the 
 state of New York, forthwith to take the said John Doe, and 
 him convey to the common jail of said county, the keeper 
 whereof is required to confine him in said jail for the term of 
 two days, in a room separate from all other prisoners. 
 
 Given under my hand at Oxford, September 12th, 1849. 
 
 David Long, Justice. 
 
 The costs to be charged the same as in civil cases, and to 
 an amount not exceeding five dollars, must be paid by the 
 party offending, over and above the penalties incurred ; but in
 
 352 DUTIES OF JUSTICES OF THE PEACE. 
 
 case of the imprisonment of the offenderj no charges or fees 
 are to be collected. (1 R. S. 851, sec. 75.) 
 
 Within thirty days after the conviction, the Justice must 
 cause to be filed in the county clerk's office, a certificate of such 
 conviction, briefly stating the offence charged, the conviction 
 and judgment thereon, and, if any fine has been collected, the 
 amount thereof, and to whom paid. (Id. sec. 74.) 
 
 FORM OF CERTIFICATE. 
 
 Town of Oxford, ss. — I certify, that on the 12th day of Sep- 
 tember, instant, at Oxford aforesaid, John Doe was duly con- 
 victed before me, the undernamed Justice of the Peace, of 
 Oxford aforesaid, of the offence of profanely swearing one pro- 
 fane oath, contrary to the form and effect of the statute, in such 
 case made and provided ; and upon such conviction, the said 
 John Doe was by me adjudged to have forfeited and to pay the 
 sum of one dollar penalty. And I further certify that imme- 
 diately upon said conviction, the said John Doe paid to me the 
 sum so forfeited. [Or, " I certify that the sum so forfeited has 
 not been collected, the said John Doe having been imprisoned, 
 for the non-payment thereof"] 
 
 Dated September 20th, 1849. 
 
 David Long, Justice. 
 
 8. Of the Disturbance of Religious Meetings. 
 
 To wilfully disturb, interrupt or disquiet, any assemblage of 
 people, met for religious worship, is an offence punishable by 
 the forfeiture of a sum not exceeding twenty-five dollars, and 
 the costs of the prosecution and conviction. (1 R. S. 847, sees. 
 53, 54.) 
 
 The statute specifies the acts which are to be considered as 
 necessary to constitute the offence. They are — profane dis- 
 course ; rude and indecent behavior ; making a noise, either 
 within the place of worship, or so near it as to disturb the order 
 and solemnity of the meeting ; exposing to sale or gift any 
 ardent or distilled liquors, within two miles of the place of as- 
 semblage ; keeping open any huckster shop in any other place, 
 inn, store, or grocery, than such as shall have been duly licen- 
 sed, and where the person keeping the same usually resides, or
 
 INTERNAL POLICE OF THE STATE. 353 
 
 carries on business ; exhibiting within such distance, any 
 shows or plays, unless the same shall have been duly licensed 
 by proper authority ; promoting, aiding, or being engaged within 
 that distance, in racing any animals, or in gaming of any de- 
 scription ; or within that distance, obstructing the free passage 
 of a highway to the place of worship. (Id.) 
 
 If the offence is committed in the presence of any judge, 
 mayor, recorder, alderman, or Justice of the Peace, the magis- 
 trate may order the offender into the custody of any sheriff, 
 deputy, coroner, marshal, constable, or other peace officer, or 
 any official member of the church, or society assembled, for 
 safe keeping, until he shall be let to bail, or tried for the offence. 
 And either of the above mentioned officers, who is present at 
 the meeting, may apprehend the offender, and take him before 
 a Justice, or other magistrate authorized to convict, to be pro- 
 ceeded against according to law. (1 R. S. 847, sees. 55, 56.) 
 
 FORM OP COMPLAINT. 
 
 Tioga County^ ss. — Henry Brown of Owego, in said county, 
 makes oath and complains, before James Bush, one of the Jus- 
 tices of the Peace of said county, that on the first day of June, 
 instant, at Owego aforesaid, there was an assemblage of people 
 met for religious worship, and that John Smith of Owego 
 aforesaid, who was present at said meeting, did disturb the 
 people so assembled, by laughing, making a noise, and other 
 rude and indecent behavior, within the place of worship, \or as 
 the facts may 6e,] and that said Henry Brown believes that said 
 John Smith did wilfully make such disturbance. 
 
 Henry Brown. 
 Subscribed and sworn before me, this 2d 
 
 day of June, 1849. 
 
 James Bush, Justice. 
 
 FORM OF WARRANT. 
 
 Tioga County^ ss : 
 
 To any Constable of said County, Greeting : 
 Whereas, Henry Brown of Owego, in said county, has this 
 day made complaint on oath, before me, the undernamed J ustice 
 of the Peace of said county, that, &,c., [here set forth the com- 
 plaint.] You are, therefore, hereby commanded, in the name 
 
 23
 
 354 DUTIES OF JUSTICES OF THE PEACE. 
 
 of the people of the state of New York, forthwith to apprehend 
 the said John Smith, and bring him before me, at Owego afore- 
 said, to answer to said complaint, and to be proceeded against 
 according to law. 
 Given under my hand at Owego aforesaid, June 2d, 1849. 
 
 James Bush, Justice. 
 
 *" When the offence is committed in the presence of the officer, 
 he is authorized to cause the offender to be brought before him, 
 and proceed to inquire into the facts. Under this provision, the 
 officer may probably, immediately upon the commission of the 
 offence, cause the offender to be brought before him by a verbal 
 order ; but if the offender has departed, a warrant should be 
 issued. 
 
 WARRANT FOR OFFENCE IN JUSTICE'S PRESENCE. 
 
 Tioga County, ss. - . 
 
 To any Constable of said County, Greeting : 
 
 Whereas, on the 1st day of June, instant, at the town of 
 Owego, in the said county, John Smith did, in my presence, wil- 
 fully disturb and interrupt an assemblage of people, met for reli- 
 gious worship. [Set forth the manner of the disturbance.] You 
 are, <fec., \_as in f>receding formal 
 
 Any person complained of for ^a violation of the statute, in 
 relation to the disturbance of religious meetings, before the court 
 shall proceed to investigate the merits of the cause, may de- 
 mand of such court, that he be tried by a jury. Upon such de- 
 mand, it is the duty of the court, to issue a venire to any con- 
 stable of the county, or marshal of the city, where the offeiidcr 
 is to be tried, commanding such officer to summon the same 
 number of jurors, and in the same manner, as is provided for 
 the summoning of jurors before the Court of Sessions. The 
 court are to proceed to impannel a jury for the trial, in the same 
 manner, and are subject to all the rules and regulations pre- 
 scribed in the acts providing for trials by jury, in Courts of 
 Sessions. (1 R. S. 848, sec. 58.)
 
 INTERNAL POLICE OF THE STATE, 355 
 
 FORM OF VENIRE. 
 
 Tioga County, ss. 
 
 To any Constable of said County, Greeting : 
 
 You are hereby commanded to summon twelve good and law- 
 ful men, qualified to serve as jurors, and not exempt from such 
 service, by law, and who are in no wise of kin to John Smith, 
 to be and appear before me, James Bush, a Justice of the Peace 
 of the said county, on the 4th day of June, instant, at two 
 o'clock in the afternoon, at my office, in the town of Owego, to 
 make a jury for the trial of the said John Smith, for an alleged 
 violation of article seventh, title eighth, chapter twentieth, part 
 first, of the Revised Statutes, entitled, " Of the disturbance of 
 religious meetings." And have you, then and there, a panel of 
 the jurors and this precept. Given under my hand, at Owego 
 aforesaid, the 2d day of June, 1849, 
 
 James Bush, Justice. 
 
 When the off"ender is brought before the Justice, either upon 
 a warrant, or otherwise, the magistrate must summarily inquire 
 into the facts, hearing the proofs which may be off'ered ; and 
 if he be found guilty, must determine on the penalty to be 
 imposed, not exceeding twenty-five dollars, and make and sign 
 a record of conviction, before issuing any process to enforce the 
 same. 
 
 FORM OF RECORD OF CONVICTION, WHEN THE PROSECUTION 
 'IS BY COMPLAINT AND WARRANT. 
 
 Tioga County^ ss. — Be it remembered, that on the 2d day of 
 June, instant, at Owego, in said county, Henry Brown, of Owe- 
 go, aforesaid, personally appeared before me, the undernamed 
 Justice of the Peace of said county, and being by me duly 
 sworn, made oath, and complained, that, (fee, — [here set forth 
 the complaint.^ Whereupon, I did issue my warrant to cause 
 the said John Smith to appear before me, to the intent, that I 
 might inquire into the facts touching said complaint, as by law 
 required. And now at this day, to wit, on the 3d day of June. 
 1849, the said John Smith is brought, and now appears before 
 me, at Owego, aforesaid, and I have proceeded, in the presence 
 of the said John Smith, to inquire summarily into the facts, &c. 
 — and inasmuch as it appears to me, upon said inquiry, and
 
 356 DUTIES OF JUSTICES OF THE PEACE. 
 
 by the confession of the said John Smith, now before me madt?, 
 that the matters set forth in the said complaint, are true, [or, 
 "and by competent testimony, that the matters set forth in said 
 complaint, are true ;"j the said John Smith is, therefore, con- 
 victed before me of said offence. And I do adjudge and deter- 
 mine, that said John Smith pay, as a forfeiture for his said of- 
 fence, the sum of ten dollars, for the benefit of the poor of 
 said county. Witness my hand, at Owego, aforesaid, June 3d, 
 1849. 
 
 James Bush, Justice. 
 
 The Justice should then ascertain the amount of the costs, as 
 in civil cases ; and if the offender do not forthwith pay the pe- 
 nalty and costs, or give security, satisfactory to the Justice, to 
 pay the same in twenty days, he must be committed. (1 R. S. 
 848, sec. 57.) The statute does not prescribe the kind of secu- 
 rity to be required. I propose the following form, deeming it 
 sufficient and suitable : 
 
 FORM OF SECURITY. 
 
 Tioga County, ss. — Whereas, John Smith, of Owego, in 
 said county, has been this day convicted, before James Bush, 
 one of the Justices of the Peace of said county, of the offence of 
 wilfully disturbing an assemblage of people, lately met in said 
 town for religious worship, contrary to the form and effect of 
 the statute, in such case made and provided, as by the record of 
 such conviction, made and signed by said Justice, and remain- 
 ing before him, will more fully appear ; and upon said convic- 
 tion, the said Justice did adjudge and determine, that the said 
 John Smith pay, as a forfeiture for his said offence, the sum of 
 ten dollars, for the benefit of the poor of said county; and the 
 said Justice did further ascertain the cost of prosecution and 
 conviction, to amount to the sum of four dollars. And wherea.*? 
 the said John Smith, being unable forthwith to pay said penal- 
 ty and costs, I, the undernamed Richard Roe, have, at the re- 
 quest of the said John Sniith, consented to become his security 
 for the payment of the same. I do, therefore, in consideration 
 of the premises, and in compliance with the provisions of the 
 statute, in such case made and provided, promise and engage, to 
 and with, the superintendents of tfie poor of the county of Tio-
 
 INTERNAL POLICE OF THE STATE. 357 
 
 ga, that said John Smith shall pa)^ the said penalty and costs, 
 within twenty days hereafter. Dated June 3d, 1849. 
 
 Richard Roe. 
 Executed in presence of, and the 
 security approved by me, 
 
 James Bush, Justice. 
 
 if neither payment be made, nor security given, the Jus- 
 tice is required to commit the offender to the common jail, 
 until the same be paid, or for such term, not exceeding thir- 
 ty days, as shall be specified in the warrant. (1 R. S. 848, 
 sec. 57.) 
 
 FORM OF WARRANT TO COMMIT. 
 
 Tioga County^ ss. 
 
 To any Constable of said County, Greeting : 
 
 Whereas, John Smith, of Owego, in said county, has been 
 this day convicted before me, the undernamed Justice of the 
 Peace of said county, of the offence of wilfully disturbing an as- 
 semblage of people, lately met in Owego, aforesaid, for reli- 
 gious worship, contrary to the form and effect of the statute, in 
 such case made and provided, as by my record of such convic- 
 tion, by me made and signed, will more fully appear ; and upon 
 such conviction, I did adjudge, that said John Smith had forfei- 
 ted, for his said offence, the sum of ten dollars, for the benefit 
 of the poor of 'said county, whereby the said John Smith became 
 liable to pay the said penalty, together with the costs of his pro- 
 secution and conviction, which costs are ascertained, by me, to 
 amount to the sum of four dollars. And whereas, the said John 
 Smith has neglected, either to pay the said penally and costs, or 
 to give security for the payment thereof, as by law required : — 
 You are, therefore, hereby commanded, to take the said John 
 Smith, and him convey to the common jail of said county, the 
 keeper whereof is hereby required to receive and detain the said 
 John Smith in custody, in said jail, until the said penalty and 
 costs are paid ; but in case of non-payment thereof, the said John 
 Smith is to be discharged from his imprisonment for the cause 
 aforesaid, upon the expiration of the term of ten days, from and 
 after the date thereof. Given under my hand, at Owego, afore- 
 said, June 3d, 1849. 
 
 James Bush, Justice.
 
 358 DUTIES OF JUSTICES OF THE PEACE. 
 
 The Justice must cause a certificate to be filed in the county- 
 clerk's office, within thirty days after, similar to the one required 
 on conviction for profane swearing. 
 
 No person shall wilfully disturb, Interrupt, or disquiet any as- 
 semblage of persons, met at any school district, with the assent 
 of the trustees of the school district, for the purpose of receiving 
 instruction in any of the branches of education usually taught in 
 the common schools of this state, or in the science of music. 
 (1 R. S. 848, sec. 60.) 
 
 Whoever shall violate the provisions of the foregoing section, 
 may be tried before any Justice of the Peace of the county, or 
 mayor, alderman, recorder, or other magistrate of any city where 
 the offence shall be committed ; and upon conviction, shall for- 
 feit a sum not exceeding twenty-five dollars, for the use and be- 
 nefit of the school district, in which such offence shall be com- 
 mitted. (1 R. S. 848, sec, 61.) 
 
 It shall be the duty of the trustees of any school district in 
 which any such offence shall be committed, to prosecute such 
 oflender before any officer having cognizance of such offence. 
 (Id. 62.) 
 
 If any person convicted of the offence herein prohibited, shall 
 not immediately pay the penalty incurred, Avith the costs of the 
 conviction, or give security, to the satisfaction of the officer be- 
 fore whom such conviction shall be had, for the payment of the 
 said penalty and costs, within twenty days thereafter, he shall 
 be committed by warrant to the common jail of the county until 
 tlie same be paid, or for such term, not exceeding thirty days, as 
 shall be specified in such warrant. (Id. 63.) 
 
 It shall and may be lawful for any person who may be com- 
 jjlaincd of for a violation of the provisions of this act, to demand 
 of such magistrate that he may be tried by a jury. Upon such 
 demand, it shall be the duty of such officer to issue a venire to 
 the proper officer, commanding him to summon the same num- 
 ber of jurors, and in the same manner ; and the said, court shall 
 proceed to impannel a jury for the trial of said cause in the same 
 manner, and subject to all the rules and regulations proscribed 
 in the act providing for trials by jury in courts of Sessions. (Id. ' 
 64.) 
 
 9. Of Uie Observance of Sunday. 
 What acts arc to be deemed an offence, if done on the first
 
 INTERNAL POLICE OF THE STATE. 359 
 
 day of the week, called Sunday, are recited in the statute as 
 follows : shooting, hunting, fishing, sporting, playing, horse- 
 racing, gaming, frequenting of tippling houses, or any unlawful 
 exercises or pastimes ; traveling, unless in cases of charity or 
 necessity, or in going to or returning from some church or place 
 of worship within the distance of twenty miles, or in going for 
 medical aid or for medicines, and returning, or in visiting the 
 sick and returning, or in carrying the mail of the United States, 
 or in going express by order of some public officer, or in remo- 
 ving a family or household furniture, when such removal was 
 commenced on some other day ; servile laboring or working, 
 excepting works of necessity and charity, unless done by a per- 
 son who uniformly keeps Saturday as holy time, and does not 
 work on that day, and whose labor on Sunday shall not disturb 
 others in their observance of the day as holy time. (1 R. S. 
 849, sec. 66.) 
 
 Persons of the age of fourteen years, offending against the 
 provisions of the foregoing section, forfeit one dollar for each 
 offence. (Id. ) 
 
 The statute prohibits the exposing to sale of any wares, mer- 
 chandise, fruit, herbs, goods or chattels on Sunday, except 
 meats, milk and fish, which may be sold before nine o'clock in 
 the morning. The articles so exposed to sale will be forfeited 
 to the use of the poor, and may be seized by virtue of a warrant 
 for that purpose, which any Justice of the Peace of the county, 
 or mayor, recorder or aldermen of the city, is authorized to issue 
 upon a conviction of the offender. When seized, they must be 
 sold, on one day's notice being given, and the proceeds must be 
 paid to the overseers of the poor of the town or city. (Id. sec. 
 67.) 
 
 The statute also prohibits every keeper of an inn or tavern, 
 or of an ale house, porter house or grocery, and all other persons 
 authorized to retail strong or spirituous liquors, from selling or 
 disposing on Sunday of any ale, porter, strong or spirituous 
 liquors, except to lodgers in any such inn or tavern, or to per- 
 sons actually and lawfully travelling on that day. The for- 
 feiture for this offence is two dollars and fifty cents. (Sec. 68.) 
 
 If any of the offences above mentioned are committed in the 
 presence of the magistrate, he may issue his warrant against the 
 offender without a complaint. In other cases, prosecution is 
 instituted by complaint.
 
 360 DUTIES OF JUSTICES OF THE PEACE. 
 
 FORM OF COMPLAINT. 
 
 Tioga County, ss. — John Doe, of Owego, in said county, be- 
 ing duly sworn, makes oath and complains, before James Bush, 
 one of the Justices of the Peace of said county, that John 
 Smith, who, as said John Doe believes, is of the age of fourteen 
 years and upwards, was, on the 3d day of June instant, (being 
 the first day of the week, called Sunday,) personally engaged 
 at Owego aforesaid, in fishing, [or other offence as the case may 
 6e,J contrary to the statute in such case made and provided. 
 
 John Doe. 
 Subscribed and sworn before me, 
 
 June 4th, 1849. 
 
 James Bush, Justice. 
 
 If the complaint be for any of the other offences specified, the 
 foregoing form can be readily varied according to the circum- 
 stances of each case. 
 
 form of warrant. 
 
 Tioga County^ ss. 
 
 To any Constable of said County, Greeting : — 
 Whereas, John Doe, of Owego, in said county, has this day 
 made complaint on oath, before me, the undernamed Justice of 
 the Peace of said county, that John Smith, (fee, [here set forth 
 the co7nplai7it.] You are, therefore, hereby commanded, in the 
 name of the people of the State of New York, to apprehend the 
 said John Smith, and him bring before me, the said Justice, at 
 Owego aforesaid, to answer to said complaint, and to be dealt 
 with in the premises as the law requires. Given under my 
 hand, at Owego, June 4, 1849. 
 
 James Bush, Justice. 
 
 When the offender is brought before the Justice, he must pro- 
 ceed to inquire summarily into the focts, and hear the proofs 
 offered, <fcc. ; and if lie find the person charged guilty, must 
 make and sign a record of his conviction, before issuing process 
 to enforce the same. 
 
 FORM OF RECORD. 
 
 Tioga Coujity, ss.~Uc it remembered that on the 4lh day of
 
 INTERNAL POLICE OF THE STATE. 261 
 
 June instant, at Owego, in said county, personally appeared be- 
 fore me, the undernamed Justice of the Peace of said county, 
 John Doe, of Owego aforesaid, who, being by me duly sworn, 
 made oath and complained that John Smith, (fcc, [as in the 
 complaint.] Upon which complaint, I did issue my warrant to 
 apprehend the said John Smith, and bring him before me, to 
 answer to said complaint, <fcc. And now at this day, to wit, on 
 the 5th day of June, 1849, at Owego aforesaid, the said warrant 
 is returned, and the said John Smith is brought, and now ap- 
 pears before me, the said Justice ; and I, having upon such ap- 
 pearance proceeded summarily to inquire into the facts, and 
 heard the proofs and allegations to me submitted, touching said 
 complaint ; and it appearing to me, by competent testimony be- 
 fore me given, touching said complaint, and the said John Smith 
 not having shown any sufficient matter in his defence thereof — 
 that the said Smith is guilty of the premises in said complaint 
 alleged — the said John Smith is therefore, in pursuance of sta- 
 tute, &c., duly convicted before me, the said Justice, of the 
 offence in said complaint set forth and charged, and is hereby 
 adjudged to have forfeited the sum of one dollar [or " two dol- 
 lars and fifty cents," as the case may be] for said offence. Given 
 under my hand, at Owego aforesaid, June 5th, 1849. 
 
 James Bush, Justice. 
 
 The like fees are allowed as in civil cases, not exceeding in 
 amount five dollars. (1 R. S. 851, sec. 75.) 
 
 If the offender do not, upon the conviction, pay the penalty 
 and costs, the Justice is required to issue an execution to collect 
 the same of the goods and chattels of the offender ; and for 
 want thereof, to commit him to jail for a time, to be specified in 
 the execution, not less than one, nor more than three days. (Id. 
 sec. 73.) 
 
 FORM OF EXECUTION. 
 
 Tioga Comity, ss. 
 
 To any Constable of said County, Greeting : — 
 Whereas, John Smith, of Owego, in said county, has been 
 this day convicted before me, the undernamed Justice of the 
 Peace of said county, of the offence of fishing on the third day 
 of June instant, being the first day of the week, called Sunday, 
 [or as the offence may be,] contrary to the statute in such case
 
 362 DUTIES OF JUSTICES OF THE PEACE. 
 
 made and provided — as by my record of such conviction by me 
 made and signed, and now remaining before me, will more fully 
 appear — whereby the said John Smith has forfeited, and become 
 liable to pay the penalty or forfeiture of one dollar, together with 
 the costs of prosecution and conviction, amounting to the sum of 
 four dollars. And whereas, the said John Smith has neglected to 
 pay the said forfeiture and costs, and the same remain wholly un- 
 paid : You are therefore hereby commanded, in the name of the 
 people of the state of New York, to levy the said penalty and 
 costs of the goods and chattels of the said John Smith, in said 
 county ; and in case sufficient goods and chattels cannot be 
 found, you are further commanded to convey the said John 
 Smith to the common jail of said county, the keeper whereof is 
 hereby required to detain him in safe custody in such jail for the 
 period and term of two days. Given under my hand at Owego, 
 June 5th, 1849. 
 
 James Bush, Justice. 
 
 In enforcing the forfeiture for exposing goods to sale on Sun- 
 day, the preceding forms of a complaint, warrant, and record of 
 conviction, varied to correspond with the recital, in the follow- 
 ing form of a warrant, and the facts of the case may serve as 
 precedents. 
 
 FORM OF WARRANT TO SEIZE GOODS &C. FORFEITED. 
 
 Tioga County, ss : 
 
 To any Constable of said County, Greeting : 
 
 Whereas, John Smith, of Owego, in said county, is duly con- 
 victed before me, the undernamed Justice of the Peace of said 
 county, of the offence of having, on the third day of Jane, in- 
 stant, being the first of the week, called Sunday, at Owego, 
 aforesaid, exposed to sale one bushel of apples, one barrel of 
 flour, one spool of thread, (fee, [specifying the number, quality, 
 and Kind, of goods,'] contrary to the statute in such case made 
 and provided, whereby the said John Smith has forfeited all and 
 singular the said goods and articles so exposed to sale, to the 
 use of the poor of tlic said town — all things in relation to such 
 conviction more fully appearing by my record thereof, by me 
 made and signed, and which is now remaining before me. You 
 arc, therefore, hereby commanded, in the name of the people of
 
 INTERNAL POLICE OF THE STATE. 353 
 
 the state of New York, to take and seize all and singular the 
 said goods and articles, and sell the same at public vendue, as 
 by law required — and you are further required to levy of the 
 goods and chattels of the said John Smith, other than the goods 
 so exposed to sale, as aforesaid, the sum of three dollars, by me 
 ascertained as the costs of the prosecution and conviction afore- 
 said. And you will bring the moneys which you shall so levy, 
 before me, with this warrant, without delay. Given under my 
 hand at Owego, Jime 5th, 1849. 
 
 James Bush, Justice. 
 
 The magistrate must cause a certificate of the conviction to 
 be filed in the county clerk's office, within thirty days after the 
 conviction, briefly stating the offence charged, the conviction 
 and judgment therein, and if any fine has been collected, the 
 amount thereof, and to whom paid. (1 R. S. 851, sec. 74.) 
 
 No court shall be opened, or transact any business on Sunday, 
 unless it be for the purpose of receiving a verdict or discharging 
 a jury ; and every adjournment of a court on Saturday to another 
 day, shall always be to some other day than Sunday, except 
 such adjournment as may be made after a cause has been com- 
 mitted to a jury. But this section shall not prevent the exercise 
 of the jurisdiction of any single magistrate, when it shall be ne- 
 cessary in criminal cases, to preserve the peace, or arrest offen- 
 ders, (2 R. S. 374, sec. 9.) 
 
 No writ, process, warrant, order, judgment, decree, or other 
 proceeding of any court or office of Justice of the Peace, which 
 shall be served or executed on the seventh day of the week, 
 commonly called Saturday, by or upon any person whose re- 
 ligious faith and practice is to keep the seventh as a day set 
 apart by divine command, as the sabbath of rest from labor, and 
 dedicated to the worship of God, shall be valid, except in cases 
 of breaches of the peace, or apprehension of persons charged 
 with crimes and misdemeanors. The service of any such pro- 
 ceeding, in all other cases, shall be utterly void. (1 R. S. 850, 
 sec. 69.) 
 
 Any person who shall knowingly and maliciously cause or 
 procure any process issued from a Justice's Court, in a civil suit, 
 to be served on said day, upon any such person, or who shall 
 serve any such process, which shall be made returnable on said
 
 364 DUTIES OF JUSTICES OF THE PEACE. 
 
 day, shall be guilty of a misdemeanor, and upon conviction 
 thereof, shall be subject to a fine not exceeding one hundred 
 dollars, or imprisonment not exceeding thirty days, or both. 
 (Laws 1847, ch. 349, sec. 2.) 
 
 Any person who shall in like manner procure any such suit 
 pending in such court against any person of such religious faith 
 and practice, to be adjudged and to be tried on said day, shall 
 be deemed guilty of a misdemeanor, and subject to like punish- 
 ment. (Id. sec. 3.) 
 
 No person whose religious faith and practice is to keep the 
 seventh day of the week commonly called Saturday, as a day 
 set apart by divine command, as the sabbath of rest from labor, 
 and dedicated to the worship of God, shall be subject to perform 
 military duty, or jury duty in a Justice's Court, on such day, 
 except that such persons shall be subject to perform military 
 duty on such day, in case of invasion, insurrection, or in time of 
 war. (Id. sec. 1.) 
 
 10. Of Excise, and the Regulation of Taverns and Groceries. 
 
 Commissioners of excise, are the supervisors of every town, 
 and Justices of the Peace resident therein. Three of them, con- 
 sisting of the supervisor and any two Justices, form a compe- 
 tent board. If there are not two Justices in the town, the super- 
 visor may associate with him two Justices of a neighboring 
 town. If the office of supervisor be vacant, then any three of 
 the Justices form the board. (1 R. S, 852, sec. 1.) 
 
 All the Justices of the town, are, by virtue of their office, com- 
 missioners of excise. More than two may, therefore, be associ- 
 ated with the supervisor, and the acts of the majority are valid, 
 although the supervisor do not concur. (Id. 1 J. R. 500.) 
 
 The duties of the board are confined to granting licenses to 
 tavern keepers and grocers, to sell strong and spirituous liquors 
 and wines. 
 
 The commissioners are required to meet in their respective 
 towns on the first Monday of May. in each year, and on such 
 other days as the supervisors shall appoint, at such place as he 
 shall designate ; and if the office of supervisor be vacant, on such 
 other days and at such oilier places as the Justices of the town 
 may appoint. (1 R. S. 852, sec. 2.) 
 
 They have jjowcr to grant licenses to keepers of inns and tav-
 
 INTERNAL POLICE OF THE STATE. 3^5 
 
 ems, being residents of their town, to sell strong and spirituous 
 liquors and wines, to be drank in their houses ; and to grocers 
 being such residents, a license to sell such liquors in quantities 
 less than five gallons, but not to be drank in their shops, houses, 
 out-houses, yards or gardens. (Sec. 4.) 
 
 The statute does not require the commissioners to take an 
 oath before granting a license. As they are commissioners by 
 virtue of their offices, they are deemed to act under their general 
 official oath. 
 
 The board are required to keep a book of minutes of all their 
 proceedings, in which must be entered every resolution passed 
 by them, granting a license to any person, with the sum required 
 therefor from the applicant. The minutes must be verified by 
 their signatures, and filed with the town clerk within five days. 
 (Sec. 3.) 
 
 No license can be granted, except to a resident of the town, 
 for which the board is formed. (Sec. 4.) 
 
 The duty required to be paid for a license, must be deter- 
 mined by the board, at a sum, however, not less than five dol- 
 lars, nor more than thirty dollars. (Id.) 
 
 Every license must be in writing, and signed by the commis- 
 sioners. A parol license, although the money is paid, is wholly 
 void. (11 J. R. 179.) 
 
 No fee or reward can be taken by any board of excise, nor by 
 any member of such board, for any license to keep a tavern, or 
 to sell strong and spirituous liquors, or for any service required 
 of the board ; nor can any compensation be retained by any such 
 board, or by any member thereof, out of the excise money, but 
 the whole amount thereof must be paid over, in the manner now 
 required by law. The persons composing the board of excise, 
 however, are entitled each to receive the sum of one dollar and 
 twenty-five cents for one day's attendance only thereon, when 
 actually done, to be audited, allowed, and paid in like manner as 
 other town charges ; but no other or greater compensation is al- 
 lowed, whether any license shall be granted or not, or whether 
 such board shall be in session one day or more than one. The 
 expenses of procuring blanks for the licenses, when actually in- 
 curred, must be audited, allowed, and paid, in like manner as 
 other town charges. (Laws 1843, ch. 97, sec. 3.) 
 
 A license can in no case be granted to sell liquors and wines 
 in the house of the seller, unless the applicant proposes to keep
 
 366 DUTIES OF JUSTICES OF THE PEACE. 
 
 a tavern, nor unless the commissioners are satisfied in the fol- 
 lowing particulars, to wit : that the applicant is of good moral 
 character ; that he is of sufficient ability to keep a tavern ; that 
 he has the necessary accommodations to entertain travelers ; 
 and that a tavern is absolutely necessary for the actual accom- 
 modation of travelers, at the place where the applicant proposes 
 to keep the same ; all of iiyhich must be expressly stated in 
 every license. (1 R. S. 853, sec. 7.) 
 
 Nor can a license be granted to a person proposing to keep 
 tavern, until he shall have executed and delivered to the super- 
 visor — or, in case of his absence, to one of the Justices of the 
 town — a bond to the people of this state, in the penal sum of 
 one hundred and twenty-five dollars, with a sufficient surety to 
 be approved by the board of commissioners, with a condition 
 according to the following form. (Id. sec. 8.) 
 
 FORM OF BOND. 
 
 Know all men by these presents, that we, John Doe and 
 Richard Roe, of Norwich, in the county of Chenango, are held 
 and firmly bound unto the people of the state of New York, in 
 the penal sum of one hundred and twenty-five dollars, for the 
 payment of which sum to the said people, we bind ourselves, 
 our heirs, executors, and administrators, jointly and severally, 
 firmly by these presents. Sealed with our seals, and dated this 
 7th day of May, 1849. 
 
 The condition of this obligation is such, that whereas, the 
 said John Doe is about to make application to the commission- 
 ers of excise of said town, for a license to sell strong and spiri- 
 tous liquors, and wines, during the ensuing year, to be drank in 
 his present dwelling house in said town, where he proposes to 
 keep an inn or tavern : Now, therefore, if said license shall be 
 granted, and during tlic time tlie said John Doc shall keep an 
 inn or tavern, he shall not suffi3r it to be disorderly, or suffer 
 any cock fighting, gaming, or playing with cards or dice, or 
 keep any billiard table, or other gaming table, within the tavern 
 so kept by him, or in any out-house, yard, or garden, belonging 
 thereto — then tliis obligation to be void, otherwise of force. 
 
 John Doe, [l. s.] 
 Richard Roe, [l. s.] 
 Scaled and cJc^livered in presence of 
 
 John Smith.
 
 INTERNAL POLICE OF THE STATE. 367 
 
 The board should certify their approbation of the surety, 
 either beneath or upon the bond. 
 
 FORM. 
 
 We, the commissioners of excise of the town of Norwich, 
 
 convened as a board, this seventh day of May, 1S49, approve 
 
 of the surety to the within (or 'Aforegoing") bond. 
 
 James Strong, Supervisor. 
 
 Henry Sandford, ) 
 
 c, r> r Justices. 
 
 Samuel Park, ^ 
 
 Licenses to keep taverns may be granted, without including 
 a license to sell strong or spirituous liquors, or wines, or alco- 
 holic drinks. In such cases, the license must express the re- 
 striction on its face ; and no sum of money or fee for such 
 license can be required. A bond, however, similar to the fore- 
 going, must be given. (1 R. S. 853, sec. 9.) 
 
 FORM OF tavern KEEPEr's LICENSE. 
 
 Whereas, John Doe, a resident of the town of Norwich, has 
 this day applied to the undernamed, being associated and 
 forming a board of commissioners of excise, in and for said 
 town, for a license to sell strong and spirituous liquors and 
 wines, to be drank at his dwelling house in said town, where 
 said John Doe proposes to keep an inn or tavern, (or, " for a 
 license to keep an inn or tavern for the accommodation of trav- 
 elers, in which said inn or tavern, no strong and spirituous 
 liquors and wines are to be kept for sale ;) and we, being sat- 
 isfied that said John Doe is of good moral character, that he is 
 of sufficient ability to keep a tavern, has the necessary accom- 
 modations to entertain travelers, and that a tavern is absolutely 
 necessary for the actual accommodation of travelers at the 
 place where he proposes to keep tavern as aforesaid ; and the 
 said John Doe having executed the required bond with surety, 
 by us approved : We do, therefore, grant to said John Doe, the 
 license by him applied for, as aforesaid, to be and remain in 
 force, until the day after the first Monday of May next, and no 
 longer.
 
 368 DUTIES OF JUSTICES OF THE PEACE. 
 
 Given under our hands at Norwich, May 7th, 1849. 
 
 James Strong, Supervisor. 
 
 Henry Sandford, ) ^ 
 
 o Ti ^ Justices. 
 
 Samuel Fark, ) 
 
 It is provided, that every inn holder or tavern keeper shall, 
 within thirty days after obtaining his license, put up a proper 
 sign, on or adjacent to the front of his house, with his name 
 thereon, indicating in some way that he keeps a tavern, and 
 shall keep up such sign during the time he keeps a tavern. 
 For every month's neglect to keep up such sign, he will forfeit 
 one dollar and twenty-five cents. (1 R. S. 853, sec. 11.) 
 
 No person, who has not at the time, a license to keep a tavern, 
 can erect, put up, or keep up, any sign indicating that he keeps 
 a tavern, under the penalty of one dollar and twenty-five cents 
 for every day such sign is kept up. (Id. sec. 12.) 
 
 No inn holder or tavern keeper can trust any persons, other 
 than those who may be lodgers in his house, or travellers not 
 residing in the same city or town, for any sort of strong or 
 spirituous liquors, or tavern expenses, above the sum of one 
 dollar and twenty-five cents ; nor can he recover the same by 
 any suit. All securities given for such debts are void ; and the 
 inn keeper taking such securities with intent to evade the sta- 
 tute, will forfeit double the sum intended to be secured.* (1 R. 
 S. 854, sec. 13.) 
 
 * An inn keeper is defined to be a person who keeps open house, and supplies 
 the public with board and lodging, for hire. (Story on Con. 646.) 
 
 A private boarding house, lodging house, or a cuffee house, is not an inn. So 
 also, entertaining strangers occasionally, for compensation, does not constitute a 
 person an inn keeper. 
 
 An inn keeper cannot lawfully refuse to receive guests to the extent of his ac- 
 commodations ; nor can he impose unreasonable terms upon them. IIo is bound 
 to receive all who come, unleas they are drunk, or disorderly, or alilicted with con- 
 tagious diseases ; to accommodate them with board and convenient lodging rooms ; 
 to take jtroper caro of their goods and baggage ; and to supply their reasonable 
 wants and requeslH for a reasonable compensation. (Story on Bail. 476.) 
 
 If an inn keeper refuses, improperly, to receive or provide for a guest, ho may be 
 indicted ; unless ho has a well founded objection to the guest's personal character 
 or conduct. But if such person be disorderly, he may not only refuse to receive 
 him, but after ho has received him, he may eject him from the house. Guests 
 must conform to the reasonable regulations of the house, and the reasonable re- 
 quests of the inn keeper. (.Story on Con. 647.) 
 
 An inn keeper is responsible for the acts of his servants, and for thefts, and is
 
 INTERNAL POLICE OF THE STATE. 359 
 
 The commissioners cannot grant a license to a grocer, unless 
 they are satisfied that the applicant is of good moral character, 
 nor until he shall have executed a bond, with surety to be ap- 
 proved by the board, and with a penalty and condition substan- 
 tially in the following form : (1 R. S. 854, sec. 15.) 
 
 FORM OF A grocer's BOND. 
 
 (Draw the penal j)art of the bond as in the fo7'egoing form of 
 a tavern keejier^s hand, to which add the following condition.) 
 
 The condition of this obligation is such, that whereas the 
 said John Doe is about to apply to the commissioners of excise 
 of said town for a license to sell strong and spirituous liquors 
 and wines, in quantities less than five gallons, as a grocer. Now 
 if the said license shall be granted, and the said John Doe, dur- 
 ing the time for which his license shall be granted, shall not 
 suffer his grocery to become disorderly, and shall not sell or 
 suffer to be sold any strong or spirituous liquors or wines, to be 
 drank in his shop or house, or in any out-house, yard or garden 
 appertaining thereto, and shall not suffer any such liquor, sold 
 
 bound to take all due care of the goods and baggage deposited in his house, or 
 intrusted to the care of his family or domestics. He is said to be chargeable on 
 the ground of the profit he receives for entertaining his guests. The custody of 
 the goods of his guest, is part and parcel of the contract to feed, lodge, and accom- 
 modate the guest for a suitable reward, His responsibility is nearly coincident with 
 that of a common carrier. It is not necessary that the goods belonging to the 
 guest should be put specially iu the charge of tlie inn keeper ; for if they are in his 
 house, they are under his implied care, whether he is ignorant of such fact or not ; 
 and if they are stolen, he is responsible. (_2 Kent's Com. 592. Story on Con- 
 tracts, 648.) 
 
 A person who lodges temporarily at an inn, or who leaves his horses and goods 
 there, and lodges elsewhere, is a guest ; and the inn keeper is responsible for goods 
 so left, provided he receives a compensation therefor. But if he come upon a 
 special contract and stay, he is a boarder, and not a guest. So also, a neighbor or 
 friend, who comes at the request of the inn keeper, is not a guest. (Id.) 
 
 Whenever there is a loss by a guest at an inn, the inn keeper \s prima facie 
 responsible. He may, however, exonerate himself by proving that the loss was 
 not by means of any person for whom he is liable ; that it was not of such a nature 
 as to render him legally responsible ; or that the guest had undertaken the exclu- 
 aive custody of the goods, or exposed them to peril by his own negligence. (Id.) 
 
 As a compensation for the inn keeper's responsibility, he has a lien on all the 
 goods at the inn, for all his expenses there, (Story on Bail. 311.) The lien does 
 not, however, extend to the person of the guest, or personal clothing that he has 
 on. (Story on Con. 647.) 
 
 24
 
 370 DUTIES OF JUSTICES OF THE PEACE. 
 
 by virtue of such license, to be drank in his shop or house, or in 
 any out-house, yard or garden belonging thereto, then this obli- 
 gation to be void — otherwise, of force. 
 
 John Doe, [l. s.] 
 Richard Roe, [l. s.] 
 Sealed and delivered in presence of 
 John Smith. 
 
 The approbation of the board "with the surety should be sub- 
 joined to, or endorsed upon the foregoing, as in the preceding 
 form. 
 
 In all licenses that maybe granted to grocers or other persons 
 applying for the same, (excepting tavern keepers,) to sell strong 
 or spirituous liquors or wines, in quantities less than five gal- 
 lons, there must be inserted an express declaration that such 
 license shall not be deemed to authorize such sale of any 
 liquor or wine to be drank in the house or shop of the person 
 receiving such license, or in any out-house, yard or garden ap- 
 pertaining thereto, or connected therewith, (1 R. S. 854, sec- 
 tion 14.) 
 
 FORM OF grocer's LICENSE. 
 
 Whereas, John Doe, a resident of the town of Norwich, has 
 applied to us the undernamed, being associated, and forming a 
 board of commissioners of excise, in and for said town, for a 
 license to sell strong and spirituous liquors and wines, in quan- 
 tities less than five gallons ; and we, being satisfied that said 
 John Doe is of good moral character, and he having executed 
 a bond, with surety by us approved, as by law required, license 
 is therefore hereby granted to said John Doc, pursuant to his 
 application aforesaid, to remain in force until the day after the 
 first Monday in May next, and no longer. But it is hereby ex- 
 pressly declared, that this license shall not be deemed to autho- 
 rize such sale of any liquor or wine to be drank in the house 
 or shop of the said John Doe, or in any out-house, yard or gar- 
 den appertaining thereto, or connected therewith. Given under 
 our hands at Norwicii, May 7th, 1840. 
 
 James Strong, Supervisor. 
 
 Henry Sandford, / t *• 
 ^ ,^ ' > Justices. 
 
 oAMifEL Park, )
 
 INTERNAL POLICE OF THE STATE. 
 
 FORM OF commissioners' BOOK OF MINUTES. 
 
 371 
 
 At a meeting of the Commissioners of Excise of the town of 
 Norwich, in the county of Chenango, on the 7th day of May, 
 1849, 
 
 Present, James Strong, Supervisor. 
 
 Henry Sandford, ) Justices of the Peace 
 Samuel Park, ) of said town. 
 
 Resolved. That hcenses be granted to the following persons 
 to retail strong and spirituous liquors and wines, and that the 
 sum to be paid for each license be the sum put opposite the 
 name of such person, to wit : — 
 
 John Doe, as a tavern keeper, ^15 00 
 
 Jesse Orcutt, " '• 15 00 
 
 Hiram Way, as a grocer, 8 00 
 
 In witness whereof, we, the said commissioners, have here- 
 unto subscribed our names, the day and year above written. 
 
 James Strong, Supervisor. 
 
 Henry Sandford, } r ^■ 
 „ „ ' > Justices. 
 
 Samuel Park, ) 
 
 From the whole tenor of the statute, it is obvious that the 
 commissioners of excise can do no valid act, except while or- 
 ganized as a board. 
 
 A license is a personal trust, which cannot be assigned to 
 another. (14 J. R. 231.) 
 
 All licenses expire on a given day. If, therefore, a license be 
 granted at an adjourned meeting of the board, however short a 
 time it may remain in force, the duty required cannot be less 
 than five dollars. 
 
 No commissioner of excise can demand or receive any greater 
 fee for drawing any bond under the foregoing provisions, than 
 twenty-five cents. (1 R. S. 854, sec. 16.) 
 
 Whoever sells any strong or spirituous liquors or wines, in 
 any quantity less than five gallons at a time, without having a 
 license therefor, granted in the manner directed by statute, will 
 forfeit twenty-five dollars. (Id. sec. 17.) 
 
 Whoever sells any strong or spirituous liquors or wines, to be
 
 372 DUTIES OF JUSTICES OF THE PEACE. 
 
 drank in his house or shop, or in any out-house, yard or garden 
 appertaining thereto, or suffers any such hquors or wines, sold 
 by him, or under his direction or authority, to be drank in his 
 house or shop, or in any out-house, yard or garden appertaining 
 thereto, without first obtaining a Hcense therefor, as a tavern 
 keeper, will forfeit twenty-five dollars. (Id. sec. 18.) 
 
 It is provided that no tavern keeper, grocer or other person, 
 licensed to sell any strong or spirituous liquors or wines, shall 
 sell any such liquors or wines to any apprentice or servant, 
 knowing or having reason to believe him to be such, without the 
 consent of his master ; nor to any minor under the age of four- 
 teen years, without the consent of his father or mother, or guar- 
 dian, under the penalty of fi~ve dollars, to be recovered of the 
 master of the apprentice or servant, or by the parent or guardian 
 of the minor. (Id. sec. 19.) 
 
 It is further provided that no tavern keeper, grocer or other 
 person shall, directly or indirectly, take or receive, from any 
 such apprentice, or servant, or minor, any clothing or any goods, 
 money or things in action, in payment for any strong or spiritu- 
 ous liquors or wines, sold to such apprentice, servant or minor, 
 or in pawn or pledge, to secure any such payment. The person 
 offending against this provision forfeits three times the sum or 
 value of the money or articles so received to the master of the 
 apprentice or servant, or to the parent or guardian of the minor, 
 as the case may be, to be recovered by them, together with the 
 money or articles so received. (1 R. S. 855, sec. 20.) 
 
 No tavern keeper, grocer or other dealer in strong or spiritu- 
 ous liquors, can, directly or indirectly, sell, or cause to be sold, 
 any strong or spirituous liquor to any pauper, knoAving him or 
 her to be such pauper. Nor can a person, directly or indirectly, 
 receive, or cause to be received, by purchase or otherwise, from 
 any such pauper or person, any clothing or effects whatever, 
 knowing, or having reason to know, that such clothing or effects 
 were, in the whole or in part, furnished to such pauper or per- 
 son, at the public expense. Every one thus offending, forfeits 
 for each oflbnce the sum of five dollars, in addition to the A^alue 
 or amount of such clothing, effects or money, obtained or taken 
 in violation of the statute, to be sued for and collected, with 
 costs, by and in the name of the superintendents of the poor of 
 any county in the state having such officers, or by and in the 
 name of the overseers of the poor of any town which supports
 
 INTERNAL POLICE OF THE STATE. 373 
 
 its own poor, for the use of the poor of such county or town, 
 as the case may be. (Id. sees. 23, 24, 25.) 
 
 As a general rule, the foregoing penalties must be sued for 
 and recovered by the overseers of the poor of the town where 
 the offence is committed. (Id. sec. 21.) 
 
 In case the overseers of the poor neglect for ten days to prose- 
 cute for the penalty, any other person may prosecute therefor, 
 in the name of the overseer, by giving security to the court or 
 officer before whom he prosecutes, for the payment of all costs, 
 if he fails to recover judgment. (Id. sec. 22.) 
 
 In those counties in which the distinction between town and 
 county poor is abolished, all moneys received for excise duty, in 
 any city or village, except the city of New York, must be paid 
 into the county treasury, for the support of the poor ; and the 
 same remedies may be had for the collection thereof, by the 
 county treasurer, against the trustees, or other persons receiving 
 the same, as in the case of commissioners of excise of a town. 
 (1 R. S. 857, sec. 38.) 
 
 Whenever any conviction or judgment is obtained against 
 any person licensed to sell strong or spirituous liquors, or wines, 
 for any violation of the statute, either in a suit for a penalty, or 
 in a suit upon the bond given by such person, it is the duty of 
 the Justice, or court, before whom the same is had, to transmit 
 to the next Court of Sessions of the Peace of the county, a 
 statement of such conviction or judgment, and of the offence 
 for which it was obtained. (1 R. S. 856, sec. 29.) 
 
 The Court of Sessions must cause the person, against whom 
 such conviction or judgment was obtained, to be notified to ap- 
 pear on such day as the court shall appoint, to show cause why 
 any license that may have been granted to him, to sell strong 
 or spirituous liquors, or wines, should not be revoked. At the 
 day appointed, and at such other days as the court shall ap- 
 point, it must proceed to inquire into the circumstances, and 
 may, in its discretion, revoke and annul any such license. If 
 the conviction or judgment is for a second, or other offence after 
 the first, the court is required to revoke and annul the license. 
 (Id. sec. 30.) 
 
 Upon any order being entered, for the revocation of any such 
 license, the license will be annulled, and altogether void ; and 
 the person whose license is so revoked, will be incapable of re- 
 ceiving any license to sell strong or spirituous liquors, or wines,
 
 374 DUTIES OF JUSTICES OF THE PEACE. 
 
 for the space of three years, from the time of such revocation. 
 (Id. sec. 31.) 
 
 11. Of the Destruction of Wolves, and oilier noxious Animals. 
 
 A state bounty is allowed to any inhabitant of this state, who 
 shall kill a wolf within any county of the state. Ttie bounty 
 is ten dollars for a full grown wolf, and five dollars for a whelp. 
 (1 R. S. SS8, sec. 1).* 
 
 The person intending to apply for the bounty, must take the 
 wolf or whelps, or the head thereof, Avith the skin and ears en- 
 tire thereon, to a Justice of the Peace of the town where it was 
 taken. The Justice must, thereupon, associate with him, to de- 
 cide upon the application, either an assessor, overseer of the 
 poor, or commissioner of highways of the town. (Id. sec. 2.) 
 
 The person applying is then to be sworn by the Justice, and 
 must state the time and place when and where the wolf or 
 whelps was taken or killed, and must also submit to such exa- 
 mination as the officers associated may require, concerning such 
 taking and killing. The statements so made on oath by the 
 applicant, must then be reduced to writing, and subscribed by 
 the applicant. (1 R. S. 888, sec. 3.) 
 
 FORM OF AFFIDAVIT. 
 
 ToiV7i of Oxford^ ss. — Richard Roe being duly sworn by 
 David Long, the undernamed Justice of the Peace of said town, 
 and examined by the said Justice, and Henry Brown, one of the 
 overseers of the poor of said town, deposes and says, that, on 
 the first day of June, instant, and in Oxford, aforesaid, he per- 
 sonally took and killed a full grown wolf, [or, "a wolf's whelp, 
 and that the mother of said whelp was not taken before she 
 brought forth the same,"] and that the wolf [or " whelp",] so 
 taken and killed by him is the same which is now presented to 
 said Justice and overseer, [or, " is the same wherefrom the head 
 now presented to said Justice and overseer was severed."] 
 
 Subscribed and sworn, Richard Roe. 
 
 June 5th, 1849, before mo, 
 
 David Long, Justice. 
 
 * All exiotiiig laws, in relation to the destruction of wild beasts, are repealed — 
 the repeal to take cfllct on the iHt day of .laniiiiry, 1850. Tlio power to enact 
 Hucli lawH, iH now vested in the boards of supervisors of tlie respective counties 
 (Laws, 1819, cb. 191.)
 
 INTERNAL POLICE OF THE STATE. 375 
 
 If it appear to tlie Justice and officer associated with him, 
 upon such examination, that the wolf or whelp was taken and 
 killed within this state, by the person applying for the bounty, 
 and that the mother of the whelp was not taken before she 
 brought forth the same, they are to cut off and burn the ears 
 and scalp of the wolf or whelp, and deliver to the person so ap- 
 plying a certificate of the facts, annexing thereto the original 
 affidavit made and subscribed by such person. (Sec. 4.) 
 
 FORM OF CERTIFICATE. 
 
 We, the undernamed David Long, one of the Justices of the 
 Peace of the town of Oxford, and Henry Brown, one of the 
 overseers of the poor of said town, do hereby certify, that upon 
 the application of Richard Roe, of the said town, we have this 
 day associated to examine the said Richard, on oath, and other- 
 wise to do as by law required, respecting the claim of the said 
 Richard, to a bounty for having taken and killed a full grown 
 wolf, [or " wolf's whelp,"] which said Richard brought before us, 
 [or " the head whereof, with the skin and ears entire thereon, the^ 
 said Richard brought before us."] And we further certify, that 
 said Richard has been duly sworn by said Justice, and examin- 
 ed by us, touching his said claim, and that the statements made 
 by said Richard, on oath before us, or the substance thereof, are 
 contained in the annexed affidavit, made in our presence. And 
 it appearing to us, that the said Richard did take and kill said 
 wolf, within this state, [or, " said wolf's whelp, within this 
 state, and that the mother of such whelp was not taken before 
 she brought forth the same,"] and at the time and place set forth 
 in said affidavit, we did, therefore, cut off and burn the ears and 
 scalp of said wolf, [or " whelp,"] as by law required. Given 
 under our hands, at Oxford, June 5th, 1849. 
 
 David Long, Justice. 
 
 Henry Brown, Overseer of the Poor. 
 
 The Justice is required to number every certificate issued by 
 him during the year, and to mark the number and year on each 
 certificate. (1 R. S. 888, sec. 4.) 
 
 The certificate and affidavit, within five days after the date 
 thereof, are to be delivered to the supervisor of the town, or left 
 at his dwelling house in case of his absence. If the supervisor 
 doubt the correctness of the certificate or affidavit, he is to give
 
 376 DUTIES OF JUSTICES OF THE PEACE. 
 
 notice to the person claiming the bounty to give further evidence 
 of the correctness thereof, (Id. sec. 5.) 
 
 If the supervisor shall have no doubt as to the correctness of 
 the certificate and affidavit, or if his doubts shall be removed by 
 farther proof, he is to lay the certificate and affidavit before the 
 board of supervisors. If the board are satisfied that the certifi- 
 cate and affidavit are just and correct, they are to award the 
 bounty. (Sec. 6.) 
 
 The boards of supervisors of several of the counties of the 
 state, are authorized to give additional bounties for wolves and 
 panthers. In such cases, the same proof is required as upon ap- 
 plication for a state bounty. (Sec. 12.) 
 
 i.{ any Justice or other ofiicer, wilfully gives a false certificate, 
 he is guilty of a misdemeanor, and punishable by a fine, not ex- 
 ceeding one thousand dollars, or by imprisonment, not exceeding 
 two years. (1 R, S. 890, sec. 13.) 
 
 12. Of Hawkers and Pedlars. 
 
 The statute prohibits persons from travelling from place to 
 place, selhng, or exposing to sale, goods, wares, or merchandise, 
 of the growth, produce, or manufacture of a foreign country, un- 
 less they obtain a license. (1 R. S. 707, sec. 1.) 
 
 Every person found traveling and trading without a license, 
 or contrary to the terms of his license, forfeits, for each offence, 
 twenty-five dollars, to the use of the poor of the town in which 
 the offence is committed ; and for refusing to produce his li- 
 cense to any officer or citizen, demanding the inspection of the 
 same, forfeits to the like use, the sum of ten dollars. (Sees. 
 6 and 7.) 
 
 Any person is authorized to arrest a person found trading as 
 a hawker and pedlar, without license, or contrary to the terms 
 of his license, or who shall refuse to produce his license, and 
 convey him before a Justice of the Peace of the town or county 
 whore ho shall bo apprehended. It is also made the duty of the 
 overseers of the poor of the several towns of the state to enforce 
 the provisions of tiie law, in the manner prescribed, whenever 
 any violation thereof, within their respective towns, shall come 
 to their knowledge. (Sec. 8.) 
 
 It may be deemed the safer, and will, probably, be the usual
 
 INTERNAL POLICE OF THE STATE. 377 
 
 course, to proceed by complaint and warrant. The following 
 forms are adapted to that mode of prosecution : 
 
 FORM OF COMPLAINT. 
 
 Tioga County^ ss. — John Smith, being duly sworn, makes 
 oath and complains, before James Bush, one of the Justices of 
 the Peace of Owego, in said county, that, on the first day of 
 June, instant, he found John Doe travelling and trading in said 
 town, as a hawker or pedlar, in goods of the manufacture of a 
 foreign country, to wit, silks, manufactured in France, hnens, 
 manufactured in Ireland, &,c., [stating thus, some, or one of the 
 articles sold, 01^ exposed for sale,] and that he thereupon demand- 
 ed, from the said John Doe, an inspection of his license so to 
 trade, but that said John Doe confessed to the said John Smith, 
 that he had not, and never had, such license, [or, " that said 
 John Doe did not and would not produce to said John Smith 
 such license," or, "that said John Doe so travels and carries said 
 goods 2oith an horse, when it appears by the license, which he 
 then and there produced to said John Smith, that he is authori- 
 zed so to travel and trade on foot only ; or other violation of the 
 terms of the license, as the case may he.\ 
 
 John Smith. 
 Subscribed and sworn, 
 
 June 2d, 1849, before me, 
 
 James Bush, Justice. 
 
 FORM OF WARRANT. 
 
 Tioga County, ss. 
 
 To any Constable of said County, Greeting : 
 Whereas, John Smith has this day made complaint, on oath 
 before me, the undernamed Justice of the Peace of Owego, in 
 said county, that on the 1st day of June, instant, he found John 
 Doe, &c., [here set forth the complaint ;] you are, therefore, here- 
 by commanded, in the name of the people of the state of New 
 York, forthwith to apprehend the said John Doe, and bring him 
 before me at my office, in Owego, aforesaid, to be dealt with in 
 the premises, according to law. Given under my hand at 
 Owego, June 2, 1849. 
 
 James Bush, Justice.
 
 378 DUTIES OF JUSTICES OF THE PEACE. 
 
 When the offender is brought before the Justice, to enforce 
 the penahy for refusing to produce his hcense, the facts to be 
 estabhshed to warrant the conviction, are : — the traveling and 
 selling, or exposing to sale^ foreign goods, and the refusal to 
 produce a license. If these facts are established, either by the 
 confession of the ofiender, or by competent testimony, the Justice 
 should make a record of the conviction. 
 
 FORM OF RECORD. 
 
 Tioga County, ss. — Be it remembered, that John Doe has 
 been this day brought before me, the undernamed Justice of the 
 Peace of Owego, in said county, at Owego, aforesaid, upon my 
 warrant issued upon the complaint on oath of John Smith, 
 wherein the said Smith made oath, and complained that on the 
 first day of June, instant, he found John Doe, &c., [here set forth 
 the complaint.'\ And upon the appearance of tlie said John Doe 
 before me, as aforesaid, and in his presence, I did then and there 
 proceed to make inquiry into the matters in said com^Dlaint al- 
 leged ; and it appearing to me on such inquiry, and by the con- 
 fession of said John Doe, [or, " by the oath of competent wit- 
 nesses before me sworn and examined,"] that the said John Doe 
 is guilty of the offence, whereof the said John Smith, in his com- 
 plaint aforesaid, informed against him, he is, therefore, before 
 me, duly convicted of said offence. And the said John Doe is 
 by me adjudged, in pursuance of the statute in siicli case made 
 and provided, to have forfeited, and to pay for his said offence, 
 to the overseers of the poor of said town, to the use of the poor 
 therein, the sum often dollars. Dated Owego, June 3d, 1849. 
 
 James Bush, Justice. 
 
 If the offender, after duo notice of his conviction, neglects or* 
 refuses to pay the penalty, the Justice must commit him to jail 
 for the term of one month. (1 R. S. 708, sec. 7.) 
 
 FORM OF WARRANT TO COMMIT. 
 
 Tioga County^ ss. 
 
 To any Constable of said County, Greeting: 
 Whereas, John Doc has been this day duly convicted before 
 me, the undernamed Justice of the Peace of Owego, in said 
 county, of the olfencc of refusing, contrary to the form and effect
 
 INTERNAL POLICE OF THE STATE. 379 
 
 of the statute in such case made and provided, to produce to 
 John Smith for his inspection, on the first day of June, instant, 
 at Owego, aforesaid, who then and there demanded the same, 
 his license as a hawker and pedlar, the said John Doe, being at 
 the time of said demand, traveling from place to place, and sel- 
 ling goods in Owego aforesaid, of the manufacture of a foreign 
 country, to wit : [state some of the goods sold oi- exposed to sale ;] 
 whereby the said John Doe, in pursuance of the statute in such 
 case made and provided, was by me adjudged to have forfeited, 
 and to pay to the overseers of the poor of Owego, aforesaid, to 
 the use of the poor therein, the sum of ten dollars, as a penalty 
 for his said offence ; and the said John Doe, having, after due 
 notice of his said conviction, and my adjudication, thereupon 
 neglected to pay said penalty : You are, therefore, hereby com- 
 manded, in the name of the people of the state of New York, to 
 take the said John Doe, and convey him to the common jail of 
 said county, the keeper whereof, is required to detain him in his 
 custody in said jail, for the term of one month. Given under 
 my hand at Owego, June 3d, 1849. 
 
 James Bush, Justice. 
 
 When the offender is brought before the Justice, to enforce 
 the penalty of twenty-five dollars for traveling and trading 
 without license, or contrary to the terms of his license, and the 
 requisite facts are proved, either by the confession of the offender, 
 or by the testimony of competent witnesses, the Justice should 
 make a record of the conviction ; and if the penalty, with the 
 costs, are not paid, he must issue his warrant to collect the same 
 of the goods, wares, and merchandises, of the offender. (1 R. 
 S. 709, sec. 9.) The foregoing form of a record of conviction, 
 may serve as a precedent. 
 
 FORM OF WARRANT TO LEVY PENALTY AND COSTS, 
 
 Tiogo County^ ss. 
 
 To any Constable of said County, Greeting : 
 Whereas, John Doe has been this day duly convicted before 
 me, the undernamed Justice of the Peace of said county, of the 
 offence of traveling and selling goods of the manufacture of 
 a foreign country without license, [or, " contrary to the terms of 
 his license,"] contrary to the form and effect of the statute in
 
 380 DUTIES OF JUSTICES OF THE PEACE. 
 
 such case made and provided ; as by my record of such convic- 
 tion remaining before me at Owego, aforesaid, will more fully 
 appear ; whereby the said John Doe was by me adjudged, in 
 pursuance of the statute in such case made and provided, to 
 have forfeited and to pay as a penalty for his said offence, the 
 sum of twenty-five dollars, and became also liable to pay the 
 costs of his said prosecution and conviction, amounting, as by 
 me adjudged, to the sum of four dollars ; which penalty and 
 costs, although the said John Doe has had due notice thereof, 
 remain Avholly unpaid : You are, therefore, hereby commanded, 
 in the name of the people of the state of New York, to levy the 
 said penalty and costs of the goods, wares, and merchandise, of 
 the said John Doe ; and make due return of this warrant, and 
 the moneys which you shall so levy, to me at Owego, aforesaid, 
 as by law required. Given under my hand at Owego, June 3d, 
 1849. 
 
 James Bush, Justice. 
 
 The penalty, when collected, must be paid by the Justice to 
 the overseers of the poor of the town where the offence was com- 
 mitted. (1 R. S. 709, sec. 9.) 
 
 No prosecution can be maintained for any offence above men- 
 tioned, unless prosecuted for within sixty days after the com- 
 mission of the offence. (Id. sec. 11.) 
 
 13. Of Proceedings for the Draining of Swamps , Marshes^ 
 and other Low Lands. 
 
 When the owner or occupant of a swamp, bog, meadow, or 
 other low land, situated in any county except Orange, wishes 
 to drain the land, and deems it necessary for that purpose, that 
 a ditch or ditches should be opened through the lands of others, 
 whose consent cannot be obtained, he may apply to a Justice of 
 the town where the lands lie, to summon a jury to determine 
 the necessity and propriety of the ditch or ditches, assess dam- 
 ges, (S6C. (2 11. S. 035, sec. 1.) 
 
 The summons must be directed to a constable of the town, 
 requiring him to summon twelve reputable freeholders not in- 
 terested in tiic lands, nor of kin to eiliiorof the parlies, to appear 
 on the premises, at a tiiiu! to hi; sjHMuficd in the summons, not 
 less than ten nor more than twenty days from the date thereof.
 
 INTERNAL POLICE OF THE STATE. 331 
 
 The summons must also direct the constable to give at least six 
 days notice to the owner of the lands, of the lime at which the 
 jury are to appear, (Id. sec. 2.) 
 
 FORM OF SUMMONS. 
 
 Town of Chenango, ss : 
 
 To any Constable of said Town, Greeting : 
 
 Whereas, John Doe has applied to me, the undernamed Jus- 
 tice of the Peace of the said town, to issue this precept, repre- 
 senting that he is the owner (or '' is in possession") of a certain 
 swamp, situated on the farm in said town, whereon he resides ; 
 [or other' description, as the case may he) — that he is desirous 
 of draining said swamp, and deems it necessary that a ditch 
 should be opened for that purpose, through lands adjoining to 
 said swamp belonging to Richard Roe ; and that said Richard 
 Roe refuses to permit the opening of such ditch : You are, 
 therefore, hereby commanded, in the name of the people of the 
 state of New York, to summon twelve reputable freeholders, 
 who are not interested in the said lands, nor in any of them, 
 nor in any wise of kin to either of the parties, to be and appear 
 on the premises, on the 15th day of November, instant, at two 
 o'clock in the afternoon, to make a jury to determine on the 
 necessity and propriety of such ditch, and to assess the dama- 
 ges, &c. And you are further required to give at least six 
 days' notice to the said Richard Roe of the time at which said 
 jury are to appear. 
 
 Given under my hand at Chenango, November 1st, 1848. 
 
 William Stow, Justice. 
 
 The constable must summon the jurors, and make return 
 thereof, as in a civil cause ; and must return, also, the fact of 
 his having given the notice. (2 R. S. 635, sec. 3.) 
 
 The Justice must attend at the time and place appointed, 
 and if it appear that due notice has been given, and if twelve 
 freeholders appear, he must administer to them an oath or affir- 
 mation. (Id. sec. 4.) 
 
 FORM OF OATH. 
 
 " You swear, in the presence of Almighty God, that you will 
 well and truly examine and certify, in regard to the benefits or
 
 382 DUTIES OF JUSTICES OF THE PEACE. 
 
 damages, which will result from the opening of the ditch now 
 in question." 
 
 The applicant is required to deliver to the jury a map of the 
 lands through which the ditch is proposed to be made, with a 
 particular designation thereon of the plan, length, width, and 
 depth of the ditch. The jury must personally examine the 
 premises, and hear any reasons that may be offered in regard to 
 the question submitted to them. The jury may, if they think 
 proper, vary the plan and dimensions of the ditch ; and, in 
 such case, must designate on the map, the alterations made by 
 them. The jury are to determine, first, whether the proposed 
 ditch is necessary or proper, either as designated by the appli- 
 cant on the map, or upon any other plan or dimensions; and 
 secondly, if they find it necessary, they must assess the dama- 
 ges of the owner of the lands, if any, and in making the 
 assessment, they must take into consideration the benefits 
 which the owner of the lands will derive from the construction 
 of the ditch. (2 R. S. 635, sees. 5, 6.) 
 
 The jury must next make, sign, and deliver to the Justice, if 
 they find the proposed ditch necessary, their inquisition in wri- 
 ting. The inquisition will be abbreviated, and rendered more 
 explicit, if it is annexed to the map ; and 1 have, therefore, 
 drawn the following form with reference to its being so an- 
 nexed. 
 
 FORM OF INdUISITION. 
 
 Town of Chenango, ss. — We, the undersigned freeholders, 
 having been duly summoned, convened, and sworn as a jury, 
 by and before William Stow, one of the Justices of said town, 
 upon the application of John Doe, to determine the necessity 
 and propriety of a proposed ditch, which said John Doe is 
 desirous to make for the purpose of draining a swamp on his 
 farm in said town, through certain lands of Richard Roe — the 
 plan, length, width and depth of which ditch, as the said John 
 Doe claims that the same ought to be constructed, being par- 
 ticularly designated on the annexed map, which was delivered 
 to us by the said John Doc ; and we having together and per- 
 sonally examined the premises, and heard the reasons offered 
 in regard to the question to us submitted, and taken all the cir- 
 cumstances into consideration — do hereby certify, that we are
 
 INTERNAL POLICE OF THE STATE. 383 
 
 satisfied that the opening of said ditch is necessary and proper, 
 in the manner, on the plan, and of the dimensions, in the an- 
 nexed map designated ; [or, if the plan is altered by the jury, 
 " in the manner, on the plan, and of the dimensions which are 
 particularly designated in the alteration thereof, by us made in 
 the annexed map ;"] and we assess the damages which, in our 
 judgment, the said Richard Roe will sustain by reason of the 
 opening of said ditch, over and above any benefits which he 
 may receive therefrom, at fifty dollars, [or, " and we further 
 certify, that the benefits which will accrue to the said Richard 
 Roe from the opening of said ditch, will be equal to any dama- 
 ges which he will sustain thereby."] 
 
 In witness whereof we have set our hands to this inquisition, 
 this 15th day of November, 1848. 
 
 A. B. ^ 
 
 C. D. > Jurors. 
 
 E. F. (fcc. ) 
 
 The Justice must then certify the inquisition to have been 
 taken before him, which he may do by endorsement, thus : — 
 (2 R. S. 636, sec. 10.) 
 
 " I certify that the within inquisition was taken before me 
 this 15th day of November, 1848. 
 
 " William Stow, Justice." 
 
 The Justice must file the map and inquisition so certified, in 
 the town clerk's office. (Id.) 
 
 After the inquisition shall have been delivered to the Justice, 
 and the applicant has paid the damages and costs of the pro- 
 ceedings, or the costs, where no damages were allowed, he may 
 enter on the lands and open the ditch, &c. (Id. sec. 7.) 
 
 14. Preservation of Public Health. 
 
 It is provided, that any two Justices of the Peace in any 
 town in the state, may cause all persons who are sick of any 
 infectious or pestilential disease, and not being residents of such 
 town, by an order in writing, to be removed to such place of 
 safety within the town as they may deem necessary for the 
 preservation of the public health. (1 R. S. 508, sec. 22.)
 
 384 DUTIES OF JUSTICES OF THE PEACE. 
 
 FORM OF ORDER. 
 
 Chenango County, 
 
 Town of Oxford, ' 
 
 Whereas we, the undersigned, two of the Justices of the 
 Peace of the town of Oxford, county aforesaid, have ascer- 
 tained that VYilHam Freeman, who is not a resident of said 
 town, is now lying sick of an infectious disease, beUeved to be 
 small pox, at the Farmers Hotel in said town, and we deem his 
 immediate removal therefrom necessary for the preservation of 
 the public health ; and whereas, upon due inquiry, we have 
 ascertained that John Brown is willing to receive and take care 
 of said William Freeman, at his dwelling house in said town : 
 Now, therefore, by virtue of the authority vested in us by sta- 
 tute, we do hereby order and empower the said John Brown, 
 and all others whom he may call to his aid and assistance, to 
 remove the said William Freeman to the dwelling house of the 
 said John Brown, without delay, there to be kept until he 
 recover, or until our further order. 
 
 Given under our hands at Oxford aforesaid, July 1st, 1849. 
 
 David Long, ) ^ 
 
 T T \ Justices. 
 
 James Jackson, \ ^
 
 CHAPTER XVII. 
 
 LANDLORD AND TENANT. 
 
 I SHALL treat the subjects of this chapter under the following 
 heads : — 
 
 1. The Relation of Landlord and Tenajit. 
 
 2. Proceedings hy Landlord to dispossess Tenant after the 
 
 expiration of his Term. 
 
 3. Proceedings to turn Tenant out for non-payment of Rent. 
 
 4. Proceedings where Preinises are deserted by Tenant. 
 
 5. Proceedings in cases of forcible Entry and Detainer, 
 
 1. The Relation of Landlord and Tenant. 
 
 The relation of landlord and tenant exists whenever there is 
 a contract for the possession and profits of lands and tenements 
 on the one side, and a recompense for rent on the other. The 
 contract is called a lease or demise. (2 Blk. Com. 317.) When 
 the agreement is under seal, its stipulations are called covenants. 
 The lease must be for a shorter space of time than he who lets 
 it himself has it for ; for if he part with his whole interest, it is 
 more properly an assignment than a lease. (Id.) By the con- 
 stitution of this state, no lease or grant of agricultural land, for 
 a longer period than twelve years, in which is reserved any rent 
 or service of any kind, is valid. (Cons. art. 1, sec. 14.) 
 
 A lease for one year, or less, by verbal agreetnetit, is good. 
 (2 R. S. 194, sec. 6.) The statute, however, declares that every 
 lease for a longer period than a year shall be void, unless the 
 contract or some note or memorandum thereof, expressing the 
 consideration, be in writing, and be subscribed by the party by 
 whom the lease is made, or by his authorized agent. (Id. sees. 
 8 and 9.) When a party enters into possession without any 
 agreement, it is generally considered a taking from year to year. 
 
 No particular form of words is necessary to create a lease. 
 Any expressions showing the intentions of the parties that one 
 should divest himself of the possession of the premises and the 
 
 25
 
 386 LANDLORD AND TENANT. 
 
 Other come into it, for a certain space of time, is sufficient. Nor 
 is it necessary that the lessor be in possession of the premises, 
 if he have the undisputed right to them. 
 
 A tenant has a right to underlet as long as his interest lasts, 
 unless he has agreed with his landlord not to do so. Verbal 
 explanations cannot vary an agreement in writing, whatever it 
 may be. The landlord cannot therefore aver that the tenant 
 agreed to pay taxes, re-build in case of fire, repair, or that he 
 would not underlet or assign his lease without the landlord's 
 consent, unless it is so stated in the lease. 
 
 Agreements for the occupation of lands or tenements in the 
 city of New York, which do not particularly specify the dura- 
 tion of such occupation, will be deemed valid until the first day 
 of May next, after the possession under such agreement shall 
 have commenced ; and the rent under such agreement will be 
 payable at the usual quarter days for the payment of rent in 
 the said city, unless otherwise expressed in the agreement. (2 
 R. S. 29.) 
 
 A mere agreement for a lease^ which is not to commence 
 within a year, must be in writing. (Id. 195, sec. 2.) 
 
 landlord's contract. 
 
 This is to certify that I have, this first day of April, 1849, let 
 and rented unto William Stow my house and lot, known as 
 "The Cottage," in Church street, in the village of Binghamton, 
 with the appurtenances, and the sole and uninterrupted use and 
 occupation thereof for one year, to commence on the first day of 
 May next, at the yearly rent of one hundred dollars, payable 
 quarterly on the usual quarter days ; rent to cease in case the 
 premises are destroyed by fire. The taxes to be paid by me. 
 
 James Hawley. 
 
 tenant's contract. 
 
 Tliis is to certify that I have hired and taken from Mr. James 
 Ilawley his house and lot, known as "The Cottage," in Church 
 street, in the village of IJinghamton, with the appurtenances, for 
 the term of one year, to commence the first day of May next, 
 at the yearly rent of one hundred dollars, payable quarterly on 
 the usual quarter days. And I do hereby promise to make 
 punctual payment of the rent in manner aforesaid, except in
 
 LANDLORD AMD TENANT. 387 
 
 case the premises become imtenantable from fire or any other 
 cause, when the rent is to cease ; and do further promise to quit 
 and surrender the premises, at the expiration of the term, in as 
 good state and condition as reasonable use and wear thereof 
 will permit, damages by the elements excepted. Given under 
 my hand the first day of April, 1849. 
 
 William Stow. 
 
 SECURITY for RENT. 
 
 In consideration of the letting of the premises above described, 
 and for the sum of one dollar, to me in hand paid, I do hereby 
 become surety for the punctual payment of rent and perform- 
 ance of the stipulations in the above written agreement men- 
 tioned, to be paid and performed by WiUiam Stow as therein 
 specified and excepted ; and if any default shall be made 
 therein, I do hereby promise and agree to pay unto the said 
 James Hawley such sum or sums of money as will be sufficient 
 to make up such deficiency, and fully satisfy the conditions of 
 the said agreement, without requiring any notice of non-pay- 
 ment, or proof of demand being made. Given under my hand, 
 the 1st day of April, 1849. 
 
 Henry Lynch. 
 
 If the rent is secured by a mortgage upon furniture or other 
 personal property, the tenant should be required to add to or en- 
 dorse upon the lease the following : — 
 
 I do hereby mortgage and pledge the following articles of 
 household furniture [or as the case may be ; describing each 
 article so that it can be identified] to the faithful performance 
 of the foregoing [or within] agreement ; hereby authorizing the 
 said James Hawley, or his assigns, to levy upon and sell the 
 same, in case of any failure on my part to perform the said 
 agreement, or any part of the same. Given under my hand, the 
 1st day of April, 1849. 
 
 William Stow. 
 
 ANOTHER form OF SECURITY. 
 
 In consideration of the letting of the above described prem- 
 ises, and of one dollar to me paid, I do hereby promise and 
 bind myself that the said William Stow shall pay the rent and
 
 388 LANDLORD AND TENANT. 
 
 perform the above lease or agreement, on his part, in all respects. 
 Given under my hand, this 1st day of April, 1849. 
 
 William Power. 
 
 LEASE OF A HOUSE FOR FIVE YEARS. 
 
 This indenture, made the 1st day of March, 1849, between 
 John Doe, of the village of Owego, county of Tioga, of the first 
 part, and Richard Roe, of the same place, of the second part : 
 Witnesseth that the said party of the first part hath let, and by 
 these presents doth grant, demise and to farm let, unto the said 
 party of the second part, his executors, administrators and as- 
 signs, all that stone house, messuage or tenement, with all and 
 singular its appurtenances, situate, standing and being on Water 
 street, in the village of Owego aforesaid, known as number 42 ; 
 to have and to hold the said premises, with the appurtenances, 
 unto the said Richard Roe, his executors, administrators and 
 assigns, for the term of five years from the first day of May, 
 1849, at the yearly rent or sum of two hundred and fifty dol- 
 lars, to be paid in equal quarter yearly payments, as long as the 
 said premises are in good tenantable condition. And it is agreed 
 that if any rent shall be due and unpaid, or if default shall be 
 made in any of the covenants herein contained, then it shall be 
 lawful for the said party of the first part to re-enter the said 
 premises. 
 
 And the said party of the second part doth hereby covenant 
 to pay the said party of the first part the said yearly rent as 
 herein specified, save and except at all times during the said 
 term such proportional part of the said yearly rent as shall grow 
 due during such time as the said house shall, without ihe hin- 
 drance of the said party of the second part, be and remain un- 
 tenantable, by reason of accidental fire. And the said Riciiard 
 Roe, his executors, administrators and assigns, shall and will, 
 during the said term, at his own pioper costs and charges, well 
 and suflicicntly /i-ec7> in repair the said demised premises, when 
 and as often as the same shall require [damages by fire only ex- 
 cepted.] And at the expiration of the said term, the said party 
 of the second part will quit and surrender the premises hereby 
 demised in as good state and condition as reasonable use and 
 wear thereof will i)crmit, damages by fire only excepted. And 
 also that the said party of the second part, his executors, admin-
 
 LANDLORD AND TENANT. 389 
 
 istrators and assigns, shall and will, during the said term, pay 
 and discharge all taxes, assessments and other charges which 
 shall be taxed, assessed or charged upon the said premises, or 
 any part thereof. 
 
 And the said party of the first part doth covenant that the 
 said party of the second part, on paying the said yearly rent, 
 and performing the covenants aforesaid, shall and may, peace- 
 ably and quietly, have, Viold and enjoy the said demised prem- 
 ises for the term aforesaid. And also in case the premises are 
 destroyed by accidental fire, the said party of the first part, his 
 executors, administrators or assigns, shall forthwith proceed to 
 re-build or repair the said premises, and put them in as good 
 condition as they were before the fire ; and that until such 
 repairs are made and completed, the rent shall cease. 
 
 In witness whereof, the parties to these presents have hereun- 
 to set their hands and seals, the day and year first above men- 
 tioned. 
 
 John Doe, [l. s.] 
 Richard Roe, [l. s.] 
 Sealed and delivered in presence of 
 Robert Doyle. 
 
 There must be some time specified, or event referred to in a 
 lease, for its duration, or it will be void ; a lease for so many 
 years as a certain perso7i shall live, no certain number of years 
 being mentioned, and it being uncertain how long such person 
 will live, is void for uncertainty. But if it be for twenty years, 
 provided such a person live so long, it is good ; though it termi- 
 nates on his death. If a person having an interest for five 
 years, make a lease for six, though it exceeds his authority, it is 
 good for the five years. 
 
 There is, however, a species of lease where no certain time is 
 mentioned, which continues during the pleasure of the parties, 
 the lessee, in such case, is called a tenant at will. There is 
 also another similar to this, called a tenancy at sufferance ; this 
 happens when a man takes a lease for a year or more, and, af- 
 ter his term has expired, continues to hold the premises without 
 any new lease from the owner. The difference between ten an 
 at will., and tenant at sufferance^ is, that the tenant at will holds 
 by right, whereas, tenant by sufferance enters by a lawful 
 ease, and holds over by wrong. It is now settled, however,
 
 390 LANDLORD AND TENANT. 
 
 that where there is no limitation as to the time which the te- 
 nant is to occupy the premises, (he tenancy shall be from year 
 to year, not determinable at the will of either party ; nor even 
 at the end of the current year, unless a notice in writing is re- 
 gularly served. 
 
 If, upon the expiration of a lease, the tenant holds over by 
 consent of parties, the law implies, that he holds on the former 
 terms, and the parties are supposed to have renewed their agree- 
 ment for at least another year. In case of a tenancy for a year, 
 or any other definite period, no notice to quit is necessary ; but 
 in all other cases, it is ; and a tenant for a year, holding over, 
 so as to create a tenancy at will, is entitled to notice before he 
 can be ejected. 
 
 To put an end to a tenancy at will or sufterance, thirty days 
 notice, in writing, must be given. (2 R. S. 30, sec. 7.) 
 
 FORM OF NOTICE. 
 
 To Richard Roe : 
 
 Sir, — This is to notify you, that you are required to surren- 
 der possession of the house and lot, [he?'e insert a brief descrip- 
 tion of the premises^'] which you now hold of me, and to remove 
 therefrom on the 5th day of June next. Dated this 6th day of 
 May, 1849. 
 
 Yours, &c., 
 
 John Doe, Landlord. 
 
 The notice must be served by delivering the same to the te- 
 nant, or to some person of proper age residing on the premises ; 
 or, if the tenant cannot be found, and there is no such person 
 residing on the premises, such notice may be served by affixing 
 the same on a conspicuous part of the premises, where it may 
 be conveniently read. (Id. sec. 8.) At the expiration of the 
 thirty days, from the service of the notice, the landlord may 
 re-enter, or proceed in the manner prescribed by law to remove 
 such tenant, without any further or other notice to quit. (Id. 
 
 sec. 9.) 
 
 TJie landlord usually covenants that the tenant shall have 
 the (jnict enjoyment and possession of the premises during his 
 lorni. Under such a covenant, the landlord is not answerable 
 to the tenant, unless he has been actually evicted by some per- 
 son claiming legal title If the tenant is turned out by one
 
 LANDLORD AND TENANT. 39,| 
 
 who has no title, it is a trespass, and his remedy is against 
 the wrong doer, and not against the landlord. (3 J. R. 471. 
 5 id. 120.) 
 
 It is also implied, that the tenant shall have the free use of 
 the premises. Where, therefore, the lessor enters wrongfully 
 into part of the demised premises, the tenant is discharged from 
 the payment of the whole rent, until he is restored to the whole 
 possession. (4 Wen. 423.) Or the tenant may retain posses- 
 sion of the remaining part of the premises, and sue the land- 
 lord for the damages sustained. Where a tenant is thus evicted, 
 the presumption of law is, that he continues out of possession ; 
 such presumption may, however, be rebutted by proof that he 
 was subsequently restored to the possession. (4 Wen. 423.) 
 
 Legal eviction of the tenant, by a third person, excuses the 
 payment of rent. So any eviction by the lessor. If the evic- 
 tion is partial, by a third person, the rent will be apportioned ; 
 but a partial eviction by the lessor, excuses from the payment of 
 the whole rent. (8 Cow. 727. 4 id. 581.) A lessor, erecting 
 an intolerable nuisance, so as to deprive the lessee of his enjoy- 
 ment, would be equivalent to an expulsion. (Id.) 
 
 Where the lessor was guilty habitually of bringing lewd wo- 
 men under the same roof with the demised premises, though in 
 an apartment not demised, by which nightly noise and distur- 
 bance were made ; and in consequence, the lessee quitted the 
 premises, and remained away with his family ; held, that this 
 was evidence to go to a jury, under the plea of eviction by the 
 landlord ; and that the jury might, upon such evidence, find 
 the plea true ; and the lessor would thereby be barred of his 
 rent the same as on an actual or physical entry and expulsion 
 of the tenant. (Id.) 
 
 Taxes must be paid by the landlord, when the lease is silent 
 on the subject, and if the tenant pay them, he will have a right 
 to deduct them from the rent. All public charges must be paid 
 by the landlord, except such as the tenant has expressly agreed 
 to pay. 
 
 A tenant from year to year, unless he agrees to do so, is not 
 bound to make lasting or general repairs ; he is impliedly liable 
 to repair only what he has broken or injured. He must also re- 
 pair so far as to prevent waste and decay, when it can be easily 
 done. He must not destroy any ornamental or fruit trees, 
 shrubbery, &c., and must cultivate the soil so as not to do it
 
 392 LANDLORD AND TENANT. 
 
 any permanent injury. These duties fall upon the tenant, with- 
 out any express agreement, and a breach of them will, in gene- 
 ral, render him liable for waste. A tenant cannot recover of 
 his landlord, for repairs done by him to the demised premi- 
 ses, unless there is a special agreement by the latter, to pay 
 for them. (6 Cow. 473.) 
 
 The tenant is permitted to take down and carry away, provi- 
 ded he does so before the lease expires, all such fixtures as he 
 himself has erected, which are merely ornamental, or for his do- 
 mestic convenience. The character of the property, whether 
 personal or real, in respect to fixtures, is governed very much by 
 the intention of the owner, and the purposes to which the erec- 
 tion was to be applied. Thus, things set up by a lessee, in re- 
 lation to his trade, as vats, coppers, tables, and partitions, belong- 
 ing to a soap boiler, may be removed during the term. The 
 tenant may take away chimney pieces, and even wainscot, if 
 put up by himself; or a cider mill and press, erected by him on 
 the land, or a pump, erected by him, if removable, without ma- 
 terial injury to the freehold. So, a building resting upon blocks, 
 and not let into the soil, has been held a mere chattel. A post 
 wind mill erected by the tenant, and machinery for spinning 
 and carding, though nailed to the floor, and copper stills, and 
 distillery apparatus, and potash kettles, though fixed and set on 
 arches, are held to be personal property. On the other hand, 
 iron stoves, fixed to the brick work of the chimneys of a house, 
 have been adjudged to pass with the house as part of the free- 
 hold, in a case where the house was set off on execution to a 
 creditor. Between landlord and tenant, the claim to have arti- 
 cles considered as personal property, is received with the great- 
 est latitude and indulgence. The right of removal, in all cases, 
 will depend upon the mode of annexation of the article, and 
 the effect which the removal would have upon the premises. (2 
 Kent, 342, 343.) 
 
 If the landlord, after leasing, sell the property, the purchaser 
 has all the benefit of the lease, and all the remedies, by entry, 
 action, (fcc, that the landlord had. 
 
 Assigjimejits. 
 
 An assignment is properly a transfer, or making over to ano- 
 ther, the right one has in anp estate ; but it is usually applied 
 to an estate for life or years. The difference between an assign
 
 LANDLORD AND TENANT. 393 
 
 ment and a lease, is, that, by a lease, one grants an interest less 
 than his own ; in assignments, he parts with the whole proper- 
 ty, and the assignee stands, to all intents and purposes, in the 
 place of the assignor. (2 Blk. Com. 262.) 
 
 In assigning a lease, the assignment should be endorsed on 
 the lease. 
 
 FORM OP ASSIGNMENT. 
 
 For value received, I hereby assign and transfer the within 
 instrument of lease and term of years therein mentioned and 
 contained, and all my right, title, and interest therein, to John 
 Smith, subject, however, to all the payments, reservations, and 
 agreements therein contained. 
 
 Dated this 1st day of June, 1849. 
 
 Richard Roe. 
 
 The assignee is liable only while he continues to be the legal 
 assignee — that is, while he remains in possession under, or by 
 virtue of, the assignment ; so that he is not chargeable for a 
 breach of covenant previous to the assignment to him. 
 
 2. Proceedings hy Landlord to Dispossess Te7iant after the 
 Expiration of his Term. 
 
 Any tenant, or lessee at will, or at sufferance, or for any part 
 of a year, or for one or more years, of any houses, lands, or tene- 
 ments, and the assigns, under tenants or legal representatives of 
 such tenant or lessee, may be removed from such premises by 
 any Judge of the county courts of the county, or by any Justice 
 of the Peace of the city or town lohere the preinises are situa- 
 ted^ or by any mayor or recorder of the city where such premi- 
 ses are situated, or, in the city of New York, by the mayor, re- 
 corder, any Justice of the Marine Court, or any one of the Jus- 
 tices of the Justices' Courts of the city of New York, in the man- 
 ner hereinafter prescribed in the following cases : (Laws 1849, 
 ch. 193.) 
 
 1. Where such person shall hold over and continue in pos- 
 session of the demised premises, or any part thereof, after the 
 expiration of his term without the permission of the landlord. 
 
 2. Where such person shall hold over without such permis- 
 sion as aforesaid, after any default in the payment of rent, pur- 
 suant to the agreement under which such premises are held,
 
 394 LANDLORD AND TENANT. 
 
 and a demand of such rent shall have been made, or three days 
 notice in writing, requiring the payment of such rent, or the pos- 
 session of the premises, shall have been served by the person 
 entitled to such rent, on the person owing the same, in the man- 
 ner prescribed for the service of the summons. (Vide post.) 
 
 3. Where the tenant or lessee of a term of three years or less, 
 shall have taken the benefit of any insolvent act, or been dis- 
 charged under any act for the relief of his person from impris- 
 onment during such term. 
 
 4. Where any person shall hold over and continue in posses- 
 sion of any real estate which shall have been sold by virtue of 
 an execution against such person, after a title under such sale, 
 shall have been perfected. 
 
 Any landlord or lessor, his legal representatives, agents, or as- 
 signs, may make oath in writing, of the facts which, according 
 to the foregoing, authorize the removal of a tenant, describing 
 therein the premises claimed ; and may present the same to one 
 of the officers in the above section specified. 
 
 FORM OF LANDLORD S AFFIDAVIT OF THE HOLDING OVER OF 
 TENANT AT SUFFERANCE. 
 
 Chenango County^ ss. — ^James Brown, of the town of Oxford, 
 in said county, being duly sworn, says, that on or about the 1st 
 day of June, 1848. this deponent demised unto John Barns, a 
 certain lot of land, \jiere describe the jyj-emlses,] for the term of 
 one year from the first of the next July, which said term has 
 expired, and that the said John Burns holds over, and continues 
 in possession of the premises, without the permission of this de- 
 ponent. 
 
 James Brown. 
 Subscribed and sworn, this 5th day 
 of July, 1849, before me, 
 
 A. B. Ketch AM, 
 Judge of Chenango County. 
 
 'I'((:liiji<;il accuracy in the statements of the foregoing affida- 
 vit arc not required. Facts, however, must be set forth suffi- 
 cient to make out a case within the statute. 
 
 On receiving such affidavit, such ollundcr shall issue his sum-
 
 LANDLORD AND TENANT. 395 
 
 mons, describing the premises of which possession is claimed, 
 and requiring any person in possession of the said premises, or 
 claiming the possession thereof, forthwith to remove from the 
 same ; or to show cause before said magistrate on the same day, 
 or within such time as shall appear reasonable, not less than 
 three nor more than five days, why possession of the said prem- 
 ises should not be delivered to such applicant. (2 R. S. 604, 
 sec. 30.) 
 
 Previous to issuing such summons in the case of a tenancy at 
 will, or at sufferance, the magistrate shall be satisfied by afiida- 
 vit, that such tenancy has been terminated, by giving notice in 
 the manner prescribed by law. And if application be made for 
 such summons to be served on any person holding over real es- 
 tate, which shall have been sold on execution, the magistrate 
 shall, in like manner, be satisfied that a demand of the posses- 
 sion of such premises has been made. (Id.) 
 
 The notice spoken of in the preceding section of the statute, 
 must be one month's notice in writing to the tenant, requiring 
 him to remove from the premises. (2 R. S. 30, sec. 7.) 
 
 Such notice shall be served, by delivering the same to such 
 tenant, or to some person of proper age, residing on the premi- 
 ses ; or, if the tenant cannot be found, and there be no such per- 
 son residing on the premises, such notice may be served by af- 
 fixing the same on a conspicuous part of the premises, where it 
 may be conveniently read. (Id. sec. 8.) 
 
 NOTICE TO TENANT, OF TERMINATION OF TENANCY AT 
 WILL, OR AT SUFFERANCE. 
 
 To Mr. Robert Doyle : 
 
 Sir : This is to inform you that you are required to remove 
 from the premises now occupied by you as tenant at will, [or at 
 sufferance,] to me, situate in the town of Sherburne, county of 
 Chenango, to wit : \here describe premises,] at the expiration of 
 one month from the service of this notice upon you. Dated 
 Sherburne, July 1st, 1849. 
 
 Alvin Hunt. 
 
 affidavit of service of notice. 
 
 •Jhenmigo County, ss. — Alfred Wheeler, of Sherburne, in said 
 county, being duly sworn, says, that on the 1st day of July
 
 396 LANDLORD AND TENANT. 
 
 1849, he served a notice, of which the annexed is a copy, upon 
 Robert Doyle, by deUvering said notice to said Doyle personally, 
 [or, if service was made in either of the other modes permitted 
 by statute, so state.] 
 
 Alfred Wheeler. 
 Sworn before me this 3d day 
 of August, 1849. 
 
 KoBERT Morris, Justice. 
 
 ^AFFIDAVIT OF TERMINATION OF TENANCY AT WILL, AND 
 HOLDING OVER BY TENANT. 
 
 Chenango County, ss. — Alvin Hunt, of said county, being 
 duly sworn, says, that on or about the 1st day of September, 
 1848, he did demise and lease to Robert Doyle, of said county, 
 for and during the will and pleasure of this deponent, certain 
 premises situate in the town of Sherburne, county of Chenango, 
 to wit : [here describe the premises.'] 
 
 Deponent further says, that the said Robert Doyle has, ever 
 since the aforesaid 1st day of September, 1848, up to and until 
 the termination of said tenancy, as hereinafter mentioned, con- 
 tinued in the possession and occupation of said premises, as ten- 
 ant at will to this deponent, and that said tenancy has been ter- 
 minated by deponent's giving one month's notice in writing to 
 said Doyle, requiring him to remove from the premises aforesaid, 
 as appears by the copy of said notice, and the affidavit of the 
 service of the same, hereunto annexed. 
 
 Deponent further says, that the said Robert Doyle has not yet 
 removed from said premises, as required by the said notice, but 
 that he holds over and continues in possession of the same after 
 the expiration of his said term therein, without the permission 
 of this deponent. 
 
 Alvin Hunt. 
 Sworn before me this 3d day of 
 
 August, 1849. 
 
 Robert Morris, Justice. 
 
 SUMMON.S RKdTIIRING THE TENANT AT SUFFERANCE TO 
 
 REMOVE. 
 
 ^Vo John IIi/rn.s : "Whereas, .Tames Brown has made oath, 
 and presented the same to me, that on or about the Lst day of
 
 LANDLORD AND TENANT. 397 
 
 June, 1848, he demised unto you a certain lot of land, [he?'e de- 
 scribe the pi^emises,] for the term of one year from the first of 
 the next July, and that you or your assigns hold over and 
 continue in possession of the said premises, after the expiration 
 of your term therein, without the permission of the landlord : 
 Therefore, the people of the state of New York hereby summon 
 and require you, forthwith to remove from the said premises, or 
 show cause before me, at my office in the village of Norwich, 
 on the 9th day of July, 1849, at ten o'clock in the forenoon, why 
 possession of the said premises should not be delivered to the 
 said James Brown. Norwich, July 5th, 1849. 
 
 James Jackson, Justice of the Peace. 
 
 If the summons is directed to a tenant at will, the form of the 
 summons will be substantially as given above, but the circum- 
 stances under which the tenant holds over should be recited. 
 
 The summons must be served either 
 
 1. By delivering to the tenant to whom it shall be directed, a 
 true copy thereof, and at the same time showing him the ori- 
 ginal ; or, 
 
 2. If such tenant be absent from his last or usual place of 
 residence, by leaving a copy thereof at such place with some 
 person of mature age residing on the premises. (2 R. S. 604, 
 sec. 32.) 
 
 AFFIDAVIT OF THE SERVICE OF SUMMONS. 
 
 Chenango County, ss. — Samuel Peterson, of Norwich, in said 
 county, being duly sworn, says, that on the 6th day of July, 
 1849, he served the annexed summons upon John Burns, the 
 tenant therein named, by delivering to him a true copy thereof, 
 at the same time showing him the orignal, [or by leaving a copy 
 of the summons at the last (or usual) j^lace of residence of the 
 said John Burns, in the town of Norivich, aforesaid, loith John 
 /Smith, a person of mature age, the said John Burns being at 
 the time of such service, absent therefrom.^ 
 
 Samuel Peterson. 
 Sworn before me, this 7th day 
 
 of July, 1849. 
 
 Robert Morris, Justice.
 
 398 LANDLORD AND TENANT. 
 
 If, at the time appointed in the summons, no sufficient cause 
 be shown to the contrary, and due proof of the service of such 
 summons be made to the magistrate, he shall thereupon issue 
 his warrant to the sheriff of the county, or to any constable or 
 marshal of the city or town where the premises are situated, 
 commanding him to remove all persons from the said premises, 
 and to put the said applicant to such magistrate into the posses- 
 sion thereof. (2 R. S. 604, sec. 33.) 
 
 Any person in possession of such demised premises, and any 
 person claiming possession thereof, may, at the time appointed 
 in such summons, for showing cause, or before, file an affidavit 
 with the magistrate who issued the same, denying the facts 
 upon which the said summons was issued, or any of those facts : 
 and the matters thus controverted, shall be tried by a jury, pro- 
 vided either parly to such proceeding; shall at the time appointed 
 in such summons for shon'ing cause, [and before adjournment,^ 
 dernand snch jury, and shall at the ti?ne of such demand, pay 
 the necessary costs and expenses of obtaining such jury. (Laws 
 1849.) 
 
 In order to form such jury, the magistrate with whom such 
 affidavit shall be filed, shall nominate tivelve reputable per- 
 sons qualified to serve as jurors in courts of record ; and shall 
 issue his precept directed to the sheriff, or one of the constables 
 of the county, or any constable or marshal of the city or town, 
 commanding him to summon the persons so nominated to ap- 
 pear before such magistrate, at such time and place as he shall 
 therein appoint, not more than three days from the date thereof, 
 for the purpose of trying the said matters in difference. 
 
 Six of the persons so summoned, shall be balloted for, and 
 drawn in like manner as jurors in Justices' Courts ; and shall be 
 sworn by such magistrate, well and truly to hear, try, and de- 
 termine the matters in difference between the parties. (2 R. S. 
 423, sec. 36.) 
 
 Any magistrate before whom such application may be pend- 
 ing, may, upon the request of either party, adjourn the hearing 
 of such application, for the purpose of enabling such party to 
 procure his witnesses, whenever it shall appear to be necessary ; 
 but such adjouriuncnt sliall in no case exceed ten days. (Id. 
 00.'), sec. 41.) 
 
 Any magistrate before whom such application may be pend- 
 ing, may, at the request of cither parly, issue his subpoena, re-
 
 LANDLORD AND TENANT. 399 
 
 quiring any person to appear and testify before such magistrate, 
 or before the jury, touching the matters herein directed to be 
 heard by them ; and every person who being served with such 
 subpoena, shall, without reasonable cause, refuse or neglect to 
 appear; or appearing, shall refuse to answer upon oath, touch- 
 ing the matters aforesaid ; shall be subject to the proceedings 
 and penalties provided by law in similar cases. (Id. 42.) 
 
 After hearing the allegations and proof of the parties, the jury 
 shall be kept together, until they agree on their verdict, by the 
 sheriff, or one of his deputies, or a constable, or by some proper 
 person appointed by the magistrate for that purpose, who shall 
 be sworn to keep such jury, as is usual in like cases, in courts 
 of record. (2 R. S. 605, sec. 37.) 
 
 If such jury cannot agree, after being kept together for such 
 time as such magistrate shall deem reasonable, he may dis- 
 charge them, and nominate a new jury, and issue a new pre- 
 cept in manner aforesaid. (Id. 605, sec. 38. 9 Wend. 230.) 
 
 If the verdict of any jury so summoned, shall be in favor of 
 the lessor or landlord, or other person claiming the possession of 
 the premises, the magistrate shall issue his warrant to the sher- 
 iff of the county, or to the marshal or constable, of the city or 
 town in which the premises are situated, commanding such of- 
 ficer to put such landlord, lessor, or other person, into possession 
 of the premises, as herein before directed. (2 R. S. 605, sec. 39.) 
 
 The officer, to whom such warrant for delivering possession 
 shall be directed and delivered, in either of the cases aforesaid, 
 is hereby required to execute the same, according to the tenor 
 thereof. (2 R. S. 605, sec. 40.) 
 
 WARRANT TO PUT THE LANDLORD IN POSSESSION. 
 
 To any one of the Constables of the County of Chenango, 
 Greeting : 
 Whereas, James Brown, of the town of Oxford, in said county, 
 on the 5th day of July, 1849, made oath in writing, and pre- 
 sented the same to me, that on or about the 1st day of June, 
 1848, he demised unto John Burns a certain lot of land, [here 
 describe the premises,] for the term of one year from the first 
 day of July, then next, and that he or his assigns hold over and 
 continue in possession of the same, after the expiration of said 
 term therein, without the permission of the landlord. Where-
 
 400 LANDLORD AND TENANT. 
 
 upon I issued a summons, requiring the tenant forthwith to 
 remove from the said premises, or show cause before me, at a 
 certain time now past, why the possession of the said premi- 
 ses should not be dehvered to the landlord ; and no sufficient 
 cause having been shown to the contrary, and due proof of the 
 service of the said summons having been made, I do, therefore, in 
 the name of the people of the state of New York, command you 
 to remove all persons from the said premises, and put the land- 
 lord into full possession thereof. Witness my hand, this 10th 
 day of July. 1849. 
 
 James Jackson, Justice. 
 
 WARRANT TO REMOVE THE TENANT IN CASE OF TENANCY 
 
 AT WILL. 
 
 To any one of the Constables of the County of Chenango, 
 Greeting : 
 Whereas, Alvin Hunt has made oath in writing, and pre- 
 sented the same to me, that on or about the 1st day of Septem- 
 ber, 1848, he did demise and lease to Robert Doyle, certain 
 premises situate in the town of Sherburne, county aforesaid, to 
 wit : {here describe the jjremises,] as his tenant, at his will, 
 without any fixed time agreed on for the termination of said ten- 
 ancy. And that he caused a notice in writing to be served on 
 the said Robert Doyle, in due form of law, on the 1st day of 
 July last, requiring him, the said tenant, to remove from the 
 said premises within one month from the day of the service 
 thereof And that the said month has expired, but that the said 
 tenant, or his assigns, hold over, and continue in possession of 
 said premises after the expiration of said time, without the per- 
 mission of said landlord. Whereupon I issued a summons re- 
 quiring the said Robert Doyle to remove from said premises, or 
 show cause before me at a certain time now past, why Alvin 
 Hunt, tlic landlord, should not be put in possession of said premi- 
 ses ; and due proof of the service of said summons having been 
 made to me, and no good cause against the said landlord's ap- 
 plication liaving been shown, or any way appearing ; therefore, 
 you are hereby commanded, in the name of the people of the 
 state of New York, to remove all ])crsons from the said premi- 
 ses, and ])ul th(! said Alvin Hunt into the full possession thereof. 
 Witness my hand, this 15th day of September, 1849. 
 
 James Jackson, Justice.
 
 LANDLORD AND TENANT. 
 
 401 
 
 Whenever a v/arrant shall be issued, as aforesaid, by any such 
 magistrate, for the removal of any tenant from any demised 
 premises, the contract or agreement for the use of the premises, 
 if any such exists, and the relation of landlord and tenant be- 
 tween the parties, shall be deemed to be cancelled and annulled. 
 (2 R. S. 605, sec. 43.) 
 
 When the application to the magistrate is founded on the 
 fact that the tenant or lessee has taken the benefit of any insol- 
 vent act, or been discharged under any act for the relief of his 
 person from imprisonment, the proceedings shall be stayed, if at 
 any time before issuing the warrant for removal, the tenant, or 
 lessee, or his assignee, shall pay the costs of such proceedings 
 as have been had, and give such security to the person entitled 
 to the rent for the payment thereof, as it shall become due, as 
 shall be satisfactory to the magistrate. (Id. sec. 45.) 
 
 When such application is founded on an alleged sale, by exe- 
 cution, of the premises occupied by the defendant in such exe- 
 cution, the proceedings shall be stayed, if at any time before 
 issuing the warrant of removal the occupant shall — 
 
 1. Pay the costs of such proceedings. 
 
 2. File, with the officer before whom the application is pend- 
 ing, an affidavit that he claims the possession of such premises 
 by virtue of some title or right acquired after such premises 
 were sold, or as guardian or trustee for any other ; and 
 
 3. Execute a bond to the applicant for such warrant, in such 
 penalty and with such sureties as the magistrate shall approve, 
 conditioned to pay the costs which may be recovered against 
 him in any ejectment that may be brought by such applicant, 
 within six months, for the recovery of the possession of the 
 premises, and to pay the value for the use and occupation of 
 such premises from the date of such bond to the time such ap- 
 plicant shall obtain possession of the same, by virtue of a reco- 
 very in such action of ejectment ; and also conditioned not to 
 commit any waste or injury to such premises during his occu- 
 pation thereof. (2 R. S. 605, sec. 46.) 
 
 In all cases of an application pursuant to the statute, the pre- 
 vailing party shall recover costs, and may maintain an action 
 for the recovery thereof ; and if the proceedings be reversed, or 
 quashed on appeal, the tenant or lessee may recover against the 
 person making application for such removal, any damages he 
 
 26
 
 402 LANDLORD AND TENANT. 
 
 may have sustained by reason of such proceedings, with costs. 
 (Id. 50.) 
 
 3. Proceedings to turn Tenant ont^for non-payment of Rent. 
 
 NOTICE TO PAY RENT, OR LEAVE THE PREMISES. 
 
 To Henry Long, Tenant: — 
 
 Sir — Six months rent is due upon the house and lot leased 
 by me to you, which you have hitherto neglected and refused to 
 pay. This is to inform you that you must pay the same within 
 three days from the service of this notice, or give up the posses- 
 sion of the said premises to me. Dated Binghamton, the 1st 
 
 day of June. 1849. 
 
 Yours, &,c., 
 
 Samuel Stow. 
 
 The foregoing must be served, either — 
 
 1. By delivering to the tenant to whom it shall be directed a 
 true copy thereof, at the same time showing the original ; or, 
 
 2. If such tenant be absent from his last or usual place of 
 residence, by leaving a copy thereof at such place with some 
 person of mature age residing on the premises. 
 
 affidavit of landlord, [after service of PRECEDING 
 NOTICE,] to obtain SUJIMONS AGAINST THE TENANT FOR 
 non-payment OF RENT. 
 
 Broome County^ ss. — Samuel Stow, of Binghamton, in said 
 county, being duly sworn, says that Henry Long, of Bingham- 
 ton aforesaid, is indebted to deponent in the sum of fifty dollars, 
 due the tenth day of May last, for rent of a house and lot be- 
 longing to deponent, situate in the village of Binghamton afore- 
 said, lately demised by deponent to the said Henry Long, and 
 in which the said Henry Long noAv resides ; that on the 25th 
 day of May last he demanded the said rent from the said Henry 
 Long, by serving him personally with a true copy of the an- 
 nexed notice, at the same lime showing the original ; [or hy 
 leaving a copy tltercnf at lite In. si [or usual] place of residence 
 of said J1ei\ry Lo)ig^ in the village <f BiiigJunnton aforesaid^ 
 with Peter I* ray., a person nf inalare age residing on ilie prem- 
 ises, said Long being, at the time (f such service, absent there- 
 from.]
 
 LANDLORD AND TENANT. 403 
 
 Deponent further says that said Henry Long has not yet paid 
 the said rent, in pursuance of the agreement under whicli the 
 premises were demised to him, or delivered up possession of the 
 said premises ; but that the said Long has made default in the 
 payment of the said rent ; and that the said Long holds over, 
 and continues in possession of the said premises, without the 
 permission of deponent, and that satisfaction of the said rent 
 cannot be obtained. 
 
 Samuel Stow. 
 Subscribed and sworn this 4th day 
 
 of June, 1849, before me, 
 
 John Miller, Justice. 
 
 SUMMONS REQ.UIRING THE TENANT TO LEAVE THE PREM- 
 ISES, OR TO APPEAR AND SHOW CAUSE WHY HE SHOULD 
 NOT BE REMOVED. 
 
 To Henry Long : — 
 
 Broome County, 55.— Whereas, Samuel Stow, landlord of the 
 premises hereinafter mentioned, has this day made oath in wri- 
 ting that you are justly indebted to him in the sum of fifty dol- 
 lars, due the tenth day of May last for rent of a house and lot 
 belonging to the said Samuel Stow, situated in the village of 
 Binghamton, county aforesaid, which house and lot you con- 
 tinue to occupy ; that he has demanded of you the said rent or 
 possession of said premises, in due form of law ; and that de- 
 fault has been made in the payment thereof pursuant to the 
 agreement under which the premises were let ; and that you 
 hold over, and continue in possession of the same, without the 
 permission of the said Samuel Stow, landlord, after default in 
 the payment of rent as aforesaid : You are therefore hereby 
 summoned, in the name of the people of the state of New York, 
 to remove from the said premises, or show cause before me, at 
 my office in the said village of Binghamton, on the Sth day of 
 June, 1849, at two o'clock in the afternoon, why possession of 
 the said premises should not be delivered to the said Samuel 
 Stow. Witness my hand, this 4th day of June, 1849. 
 
 John Miller, Justice. 
 
 The tenant may, at the time appointed in the summons for 
 showing cause, or before, deny by affidavit any or all the mate-
 
 404 LANDLORD AND TENANT. 
 
 rial facts stated in the affidavit made by the landlord ; and 
 upon filing such affidavit with the magistrate at or before the 
 time for showing cause, the facts thus controverted are to be 
 tried by a jury, provided either party to such proceeding shall, 
 at the time appointed in such summons for showing cause, [and 
 before adjournment,] demand such jury, and shall, at the time 
 of such demand, pay the necessary costs and expenses of ob- 
 taining such jury. (Laws, 1849.) 
 
 AFFIDAVIT OF THE TENANT. 
 
 Broome County, 55.— Henry Long, of Binghamton, in said 
 county, being sworn, says he does not owe the said Samuel 
 Slow the sum of fifty dollars for the rent of a house and lot oc- 
 cupied by this deponent in the village of Binghamton, as is 
 alleged by the said Samuel Stow, in an affidavit lately made 
 before John Miller, Esquire, one of the Justices of the Peace of 
 Broome county, and on which proceedings have been had be- 
 fore him, to remove this deponent from the said premises. 
 
 Henry Long. 
 Subscribed and sworn this 8th day 
 
 of June, 1849,before me. 
 
 John Miller, Justice. 
 
 PRECEPT TO summon JURY. 
 
 Broome County, ss. 
 To the Sheriff, or any Constable of the said County, Greeting: 
 
 Whereas, Samuel Stow did, on the 4th day of June, 1849, 
 make oath in writing, that Henry Long was justly indebted to 
 him in the sum of fifty dollars, due the tenth day of May last, 
 for rent of a house and lot belonging to the said Samuel Slow, 
 situate in the village of Binghamton, county aforesaid, which 
 house and lot the said Henry Long continued to occupy ; that 
 he had demanded of said Henry Long the said rent, or posses- 
 sion of said premises, in due form of law ; and that default had 
 been made in the payment thereof, pursuant to the agreement 
 under which the premises were let : and that the said Henry 
 Long held over and continued in possession of the same, with- 
 out the permission of the said Samuel Stow, landlord, after de- 
 fiuil in the payment of rent, as aforesaid. Wliercupon, upon
 
 LANDLORD AND TENANT. 405 
 
 the presentation of said oath, in writing, to me, I issued a sum- 
 mons, describing therein the premises of which possession was 
 claimed as aforesaid, and requiring the said Henry Long forth- 
 with to remove from the same, or to show cause before me, on 
 the 8th day of June, 1849, why possession of the said premises 
 should not be delivered to the said Samuel Stow, the said ap- 
 plicant. 
 
 And whereas, in order to form a jury to try the matters thus 
 controverted, I have nominated, and hereby do nominate [insert 
 the naiJiGs,] twelve reputable persons qualified to serve as jurors 
 in courts of record. You are, therefore, hereby commanded, 
 in the name of the people of the state of New York, to summon 
 the above named persons so nominated, to appear before me, at 
 my office, in the village of of Binghamton, on the lOtli day of 
 June, 1849, at two o'clock in the afternoon, to try the said mat- 
 ters in diflference. Dated this 8th day of June, 1849. 
 
 John MilleR; Justice. 
 
 SUBPCENA FOR WITNESSES. 
 
 Broome County, ss. 
 
 To John Doe, Richard Roe, and James Smith. 
 
 In the name of the people of the state of New York, you and 
 each of you, are hereby commanded, all business and excuses 
 being laid aside, to appear before me, at my office, in the village 
 of Binghamton, on the 10th day of June, 1849, at two o'clock 
 in the afternoon, to testify touching the matters in controversy 
 between Samuel Stow, landlord, and Henry Long, tenant, rela- 
 tive to the summary removal of such tenant from the premises 
 of the said Samuel Stow, on the part of the said Stow. And 
 for a foilure to attend, you will be responsible to the aggrieved 
 party for the loss and hindrance sustained by such faiUire, and 
 for all other damages sustained thereby, and forfeit ten dollars 
 to the aggrieved party in addition to such damages. Given un- 
 der my hand this 8th day of Jime, 1849. 
 
 John Miller, Justice. 
 
 WARRANT TO DISPOSSESS THE TENANT FOR NON-PAYMENT 
 
 OF RENT. 
 
 To any Constable of the County of Broome, Greeting : 
 Whereas. Samuel Stow, landlord of the premises hereinafter
 
 406 LANDLORD AND TENANT. 
 
 mentioned, has made oath, in writing, that Henry Long is justly 
 indeiited unto him in the sum of fifty dollars, due the tenth day 
 of May last, for rent of a house and lot belonging to the said 
 Samuel Stow, situate in the village of Bingliamton, county 
 afoicsaid, in which the said Henry Long now resides ; that he 
 had demanded the said rent, or possession of the premises, in 
 due form of law, from the said Henry Long, who has made de- 
 fault in the payment thereof, pursuant to the agreement under 
 which the premises were let ; and that he holds over, and con- 
 tinues in possession of the same, without the permission of the 
 landlord, after default in the payment of the reirt, as aforesaid. 
 Whereupon, I issued a summons, requiring the tenant to remove 
 from said premises, or to show cause, before me, on the 8th day 
 of June last past, why possession of the said premises should 
 not be delivered to the said landlord ; and due proof of the ser- 
 vice of the said summons having been made to me, and no good 
 cause against the said landlord's application having been shown : 
 Now, therefore, you are hereby commanded, in the name of the 
 the people of the state of New York, to remove all persons from 
 the said premises, and to put the s'^id Samuel Stow, the said ap- 
 plicant, into the full possession thereof. Given under my hand, 
 at Binghamton aforesaid, the 9th day of June, 1849. 
 
 John Miller, Justice. 
 
 The foregoing is the form of a warrant, in case the tenant 
 makus no defence. If he controverts the landlord's affidavit, 
 and the matter is tried by a jury, the warrant will be the same 
 as above, with the following addition: 
 
 "And whereas, on [or before] the time appointed in such sum- 
 mons, the said Henry Long, being in possession [or claiming 
 possession] of said premises, having filed an afiidavit with me, 
 the undersigned, who issued the sununons, denying the facts 
 [or some, or one of the facts,] upon which said summons was 
 issued, and a jury having been regularly nominated, summon- 
 ed, ballotled for, and sworn, pursuant to the statute in such case 
 made and provided, to determine the matters controverted be- 
 tween the said parlies; and the said jury, after hearing the 
 proofs and allegations of thu j)ariies, and being kept together by 
 a i)roper ofiicer duly sworn, until they were agreed on their ver- 
 dict, havinir found a verdict in favor of the said Samuel Stow :
 
 LANDLORD AND TENANT. 407 
 
 Now, therefore, you are hereby commanded, in the name of the 
 peof)le of the state of New York, to remove all persons from 
 the said premises, and put the said Samuel Stow in full posses- 
 sion of the same. Given under my hand this 11th day of June, 
 1S49.' ' 
 
 The issuing of the warrant of removal shall be stayed, in 
 the case of a proceeding for the non-payment of rent, if the per- 
 son owing such rent shall, before such warrant be actually is- 
 sued, pay the rent due, and all the costs and charges of the pro- 
 ceedings ; or give such security as shall be satisfactory to the 
 said magistrate, to the person entitled to such rent, for the pay- 
 ment thereof, and the costs aforesaid, in ten days. (2 R. S. 606, 
 sec. 44.) 
 
 FORM OF SECURITY. 
 
 Know all men by these presents, that we, Henry Long, of 
 Binghamton, Broome County, and John Smith, of the same 
 place, are held, and firmly bound, unto Samuel Stow, of the 
 same place, in the sum of one hundred dollars, lawful money, 
 to be paid to the said Samuel Stow, his executors, adminis- 
 trators, or assigns, for which payment, well and truly to be made, 
 we bind ourselves, our heirs, executors, and administrators, 
 jointly and severally, firmly by these presents. Sealed with our 
 seals. Dated the 8ih day of June, 1849. 
 
 The condition of this obligation is such, that whereas, the 
 above named Samuel Stow, on the 4th day of June, 1849, made 
 oath, in writing, that — [here recite the oath] — and did present 
 the sam.e to John Miller, a Justice of the county of Broome, 
 and such proceedings were thereupon afterwards had, by and 
 before the said John Miller, as such Justice, that the said 
 Justice is about to issue his warrant to a constable of the county 
 of Broome, commanding him to remove all persons from the 
 said premises, and put the said Samuel Stow into the full pos- 
 session thereof. And whereas, such warrant is not yet actually 
 issued, and the said Henry Long is -anxious to stay the issuing 
 of such warrant of removal: Now, therefore, if the said Henry 
 Long and John Smith shall pay the said rent, sworn to, as afore- 
 said, due to the said Samuel Stow, and all the costs and charges
 
 408 LANDLORD AND TENANT. 
 
 of the said proceedings, in ten days from the date hereof, then 
 this obligation to be void ; otherwise of force. 
 
 Henry Long, [l. s.] 
 John Smith, [l. s.] 
 Sealed and delivered in presence of, 
 William Brady. 
 
 The magistrate should endorse upon the bond his approval, 
 thus : 
 
 " I approve the within bond, and the surety therein named, 
 considering the security satisfactory." 
 
 Though a tenant be removed from demised premises for non- 
 payment of rent, by summary proceedings, the landlord may 
 nevertheless recover the rent by action. (6 Hill, 507.) 
 
 In case the foregoing proceedings are had before a Justice of 
 the Peace, the Justice is required to enter the finding of the 
 jury, or in case no jury is called, his final decision upon said 
 application for such warrant in his docket, and render judgment 
 therefor, and include in such judgment costs of such proceed- 
 ings to the prevailing party, at the same rate of fees now 
 allowed by law in civil actions in Courts of Justices of the 
 Peace, and limited in like manner ; and in the warrant for de- 
 livery of possession, or by execution issued by him, the Justice 
 must direct the collection of such costs. 
 
 The proceedings before such Justice may be removed by 
 appeal to the County Court of the county, in the same manner, 
 and with the like effect, and upon like security, as appeals from 
 the judgment of Justices of the Peace in civil actions, except 
 that the decision of such county Judge must be an aOirmance 
 or reversal of such judgment, and be final. IJut in addition to 
 the security for such judgment, as required by law, in case of 
 such appeal ; in order to stay the issuing of such warrant or 
 execution, there must, in case of appeal by the tenant, be secu- 
 lity also given for the p;iymont of all rent, accruing or to accrue, 
 upon said premises, subsc(iuent to the said application to the 
 said Justice. 
 
 No appeal under the foregoing can be allowed, unless such 
 security for said judgment be given and approved by the Judge,
 
 LANDLORD AND TENANT. 409 
 
 at the time of allowing such appeal, and served on the Justice, 
 with the affidavit for appeal. (Vide Laws of 1849.) 
 
 4. Proceedings where premises are Deserted hy Tenant. 
 
 If any tenant, being in arrear for rent, shall desert the de- 
 mised premises, and leave the same unoccupied and unculti- 
 vated, without any goods thereon subject to distress, to satisfy 
 the arrears of rent, any Justice of the Peace of the county may, 
 at the request of the landlord, and upon due proof that the 
 premises have been so deserted, leaving such rent in arrear, and 
 no goods thereon subject to distress, go upon and view the said 
 premises ; and upon being satisfied upon such view, that the 
 premises have been so deserted, he shall affix a notice in wri- 
 ting, upon a conspicuous part of the premises, requiring the 
 tenant to appear and pay the rent due, at some time in the said 
 notice specified, not less than five, nor more than twenty days 
 after the date thereof. (2 R. S. 603, sec. 24.) 
 
 At the time specified in such notice, the Justice shall again 
 view the premises ; if the tenant appear and deny that any 
 rent is due to the landlord, all proceedings shall cease. If, upon 
 such second view, the tenant, or some one for him, shall not 
 appear and pay the rent in arrear, and there shall not be suffi- 
 cient goods on the premises to satisfy such rent, then such 
 Justice may put the landlord into possession of the said demised 
 premises ; and any demise of the said premises to such tenant 
 shall, from thenceforth, become void, (Id. sec. 2.5.) 
 
 An appeal from the proceedings of any Justice in such case, 
 may be made by the tenant, at any time within three months 
 after such possession delivered, to the County Court, by serving 
 notice in writing thereof upon such Justice, and by giving secu- 
 rity, to be approved by such Justice, to pay to the landlord all 
 costs of such appeal which may be adjudged against such 
 tenant ; and thereupon such Justice shall return the proceedings 
 had before him to the said court, within ten days after such 
 notice and security given, and shall give notice to the landlord 
 of such appeal. (2'R. S. 603, sec. 26.) 
 
 It is presumed that the security required by the foregoing 
 section of the statute, may be either by a bond or written un- 
 dertaking, or by a deposit. 
 
 The appellate court must examine the proceedings, and hear
 
 410 LANDLORD AND TENANT. 
 
 the proofs and allegations of the parties in a summary way ; 
 and may order restitution to be made to such tenant, with costs 
 to be paid by the landlord ; or, in case of affirming such pro- 
 ceedings, may award costs against the tenant. (Id. sec. 27.) 
 
 An action lies for use and occupation, though the tenant has 
 deserted the demised premises, if the contract still remains in 
 force ; if the tenant voluntarily abstains from the occupation, it 
 is no defence. (25 Wend. 669.) 
 
 5. Proceedings in cases of Forcible Entry and Detainer, 
 
 These proceedings are not confined to landlord and tenant, 
 but extend to all persons whose lands whether owned, or simply 
 possessed by them, are unjustly and forcibly entered or withheld 
 by force. 
 
 No entry shall be made into any lands or other possessions, 
 but in cases where entry is given by law ; and in such case, 
 only in a peaceable manner, not with strong hand, nor with 
 multitude of people. (2 R. S. 599, sec. 1.) 
 
 Where any such forcible entry shall be made, or where the 
 entry shall be made in a peaceable manner, and the possession 
 shall be held by force, the person so forcibly put out, or so for- 
 cibly holden out of possession, and the guardian of any such 
 person being a minor, may be restored to such possession, by 
 making a complaint to a Judge of the county court of the same 
 county ; or to any Circuit Judge or Supreme Court Commis- 
 sioner ; or any Mayor, Recorder or Alderman of any city ; any 
 special Justice ; any Justice of the Marine Court, or any assist- 
 ant Justice of the city of New York ; in their respective cities 
 or counties, and by such proceedings as are hereinafter directed. 
 (2 R. S. 599, sec. 2. Id. sec. 18.) 
 
 Such complaint shall be in writing, and shall be accompa- 
 nied by an affidavit of such forcible entry, or forcible holding 
 out, and that the complainant has an estate of freehold, or for 
 term of years, in the j)rcn)ises, then subsisting, or some other 
 right (() the j)osscssion thereof, stating the same ; and the Judge 
 shall thereupon issue a precept to tiie sherill", or any constable of 
 the comity, (■oiiiin.iii'lini; him to cause twenty-four inhabitants 
 of the same county, duly (pialified to serve as jurors, to come
 
 LANDLORD AND TENANT. 411 
 
 before such Judge at some time, not less than two days there- 
 after, to inquire of such forcible entry, or such forcible holding. 
 (2 R. S. 599, sec. 3.) 
 
 FORM OF COMPLAINT OF FORCIBLE ENTRY OR DETAINER. 
 
 Broome County^ ss. — To the Hon. Edward Kettel, Judge of 
 Broome County : 
 
 The complaint of David Gray of Binghamton, in said county, 
 respectfully showeth : — That your complainant was, on the 1st 
 day of September, 1849, forcibly put out [or forcibly holden out 
 of possessioii] of a certain house and lot, situate at Binghamton 
 in said county, to wit : [here describe premises.'] 
 
 That your complainant was so forcibly put out [or forcibly 
 holden out of possession] of said house and lot, by [here state 
 the f Acts as they occurred.] 
 
 Dated September 2d, 1849. David Gray. 
 
 FORM OF AFFIDAVIT TO BE ANNEXED TO THE COMPLAINT. 
 
 Broome County, ss. — David Gray, of Binghamton in said 
 county, being duly sworn, says : [here set forth the facts stated 
 in the complaint.] 
 
 Deponent further says, he has an estate of freehold [or for a 
 term, of years] in the said house and lot now subsisting, to wit: 
 [here state the precise nature of the estate.] 
 
 David Gray. 
 Subscribed and sworn before me, this 2d day 
 
 of September, 1849, 
 
 Henry West, Justice. 
 
 PRECEPT FOR JURY. 
 
 Broome County, ss. 
 To the Sheriif [or " any Constable"] of the County, Greeting : 
 Whereas, David Gray, of Binghamton in said county, has 
 this day made complaint in writing, to me, the undersigned, 
 Judge of Broome County, that [recite the co7nplai?it ,] which 
 said complaint was accompanied by an affidavit of such forcible 
 entry, [or such forcible holding out,] and that the said David 
 Gray had an estate of freehold [or for a term of years,] to wit : 
 [here state the nature of the estate :] Now, therefore, you are
 
 412 LANDLORD AND TENANT. 
 
 hereby commanded, in the name of the people of the state of 
 New York, to cause twenty-four inhabitants of the said county 
 of Broome, duly qualified to serve as jurors, to come before me 
 at my office in the village of Binghamton, on the 5th day of 
 September, 1849, at two o'clock in the afternoon, to inquire into 
 the matters stated in the complaint. 
 
 Given under my hand, this 2d day of September, 1849. 
 
 Edward Kettel, 
 
 Judge of Broome County. 
 
 The Judge shall immediately cause a notice in writing of the 
 issuing of such precept, and of the time and place of the return 
 thereof, to be served upon the party against whom such com- 
 plaint is made : — 
 
 1. By delivering the same to such person ; or 
 
 2. If he cannot be found, by delivering such notice to some 
 person of proper age on the premises : or 
 
 3. If there be no such person, by affixing the same on the 
 front door of the house, if there be one ; or 
 
 4. If there be no house, on some other public and suitable 
 place on the premises. (2 R. S. 600, sec. 4.) 
 
 FORM OF NOTICE TO DEFENDANT. 
 
 To William Pierson, 
 
 Whereas, \Jicre recite the proceedings that have been had^ 
 setting forth substantially^ the complaint, affidavit, and precept 
 for jury.] 
 
 You will therefore please take notice of the issuing of said 
 precept, and of the time and place for the return of the same. 
 Dated the 2d of September, 1849. 
 
 Edward Kettel, Judge of Broome County. 
 
 At the day and place appointed for the return of the precept, 
 the Judge shall administer an oath to the persons returned sum- 
 moned, who shall appear, not being less than thirteen nor more 
 than twenty-three, well and truly to inquire into the matters 
 complained of, and a true inquisition thereof, to make. And 
 the jury so sworn, shall proceed to make inquiry into the forci- 
 ble entry, or the forcible holding complained of, and may ex- 
 amine witnesses on oath, to l)o administered by such Judge ;
 
 LANDLORD AND TENANT. 413 
 
 and shall make and sign their inquisition before such Judge, 
 and deliver the same to him. (Id. sec. 5.) 
 
 If by such inquisition as is mentioned in the last section, it 
 shall be found : — 
 
 1. That forcible entry was made as aforesaid ; or 
 
 2. That the entry being peaceable, the possession was forci- 
 bly kept as aforesaid ; 
 
 The party complained against, may traverse such inquisition 
 in writing : — 
 
 1. Denying such forcible entry, or forcible holding out; or 
 
 2. Alleging that he or his ancestors, or those whose estate he 
 has in such lands, have been in quiet possession thereof, for the 
 space of three whole years next before such inquisition found, 
 and that his interest therein is not ended or determined. 
 
 And if said traverser shall pay to the Judge mentioned in the 
 last section, the fees of summoning a jury to try such traverse, 
 and the jurors and judges fees on such trial, such traverse shall 
 stay all further proceedings on such complaint and inquisition, 
 until the same be tried. And if any person shall make affida- 
 vit, before such judge, that the party complained against, is the 
 tenant of such person (making the affidavit,) under a valid and 
 then subsisting demise, he shall be permitted, on payment of 
 the fees just specified, to traverse the said inquisition as land- 
 lord, in the same manner as is allowed to the party complained 
 of, either with such party or without him. (2 R. S. 600, sees. 
 6 and 7.) 
 
 FORM OF AFFIDAVIT. 
 
 Broome County^ ss. — Abram Bevier, being duly sworn, de- 
 poses and says, that William Pierson of Binghamton county 
 aforesaid, against whom David Gray of the same place, did, on 
 the 1st day of September, 1849, make a complaint to the Hon. 
 Edward Kettel, Judge of Broome County, to the effect that 
 the said William Pierson forcibly entered and took (or forcibly 
 detained) possession of a certain house and lot, situate [here de- 
 scribe 2^re7}iises,] holds the aforesaid house and lot, under a 
 valid and still subsisting demise from deponent. 
 
 Abram Bevier. 
 Subscribed and sworn before me, this 
 5th day of September, 1849. 
 
 Edward Kettel, Judge of Broome County.
 
 414 LANDLORD AND TENANT. 
 
 Upon the traverse in the last section mentioned, heing made 
 (either by the party complained against, or his landlord,) the 
 Judge shall issue a precept to the sheriff" or any constable of the 
 county, commanding him to summon twelve qualified jurors to 
 come before such Judge at the place therein to be specified, at 
 a time not less than four, nor more than eight days thereafter, 
 to try such traverse. (Id. 600, sec. 8.) 
 
 PRECEPT FOR JURY TO TRY TRAVERSE. 
 
 Broo7ne County, ss. 
 
 To the Sheriff, (or " any Constable") of the County of Broome, 
 Greeting : 
 
 Whereas, \Jiere recite the proceedings that have been had., 
 setting forth substantially the complaint, affidavit, precept of 
 jury to try inquisition, notice to defendant, and proceediiigs on 
 the inquisition!] 
 
 And whereas, the said William Pierson, did, in writing trav- 
 erse said inquisition, [state traverse,] and did pay to me, the 
 said Judge, the fees of summonmg a jury to try such traverse, 
 and the jurors and judges fees on said trial : now, therefore, you 
 are hereby commanded, in the name of the people of the State 
 of New York, to summon twelve qualified jurors, to come be- 
 fore me the said judge, at my office in the village of Bingham- 
 ton, county aforesaid, on the IGth day of September instant, at 
 two o'clock in the afternoon, to try such traverse. Given under 
 my hand, this 10th day of September, 1849. 
 
 Edward Kettel, Judge of 
 the County of Broome. 
 
 Sheriffs and constables to whom any process issued by a 
 Judge, as herein authorized, shall bo directed and delivered, 
 shall execute tlic same, and, if need l)o, shall command and 
 take the power of the county for iliat purpose. (2 R. S. 601, 
 sec. 15.) 
 
 Twenty-four hours personal notice to any juror, to attend 
 upon any precejit issued as aforesaid, shall be deemed sufficient 
 service, and any person so sunnnon(Ml who shall neglect to at- 
 tend and serve as such juror wilhout reasonable excuse, to be 
 allowed by tlic Judg<! issuing such precept, shall be subject to 
 the same fine, to be prosecuted for, collected, and applied to the
 
 LANDLORD AND TENANT. 415 
 
 same use as provided by law, in respect to jurors in Justices' 
 Courts. (Id. sec. 16.) 
 
 Tlie Judge before whom the complaint shall be made, may, 
 at the request of either party, issue his subpoena, requiring any 
 person to appear and testify before him, or before the jury of 
 inquiry, or before the petit jury, touching the matters herein 
 before directed to bo heard by them. And any person served 
 with such subpoena, who, without reasonable cause, shall neg- 
 lect to appear, or appearing, shall refuse to answer on oath, 
 touching the matters aforesaid, shall be subject to the proceed- 
 ings and penalties prescribed by law, in similar cases, in Jus- 
 tices' Courts. (2 R. S. 601, sec. 17.) 
 
 The jurors shall be summoned, returned, and empanelled, in 
 the same manner as provided by law, in civil actions before 
 Justices of the Peace, and shall be sworn by such Judge well 
 and truly to hear, try and determine the said traverse. They 
 shall be kept together by such judge, and shall hear and exam- 
 ine any competent witnesses, who maybe offered on oath, to be 
 administered by such Judge ; and after hearing the allegations 
 and proofs of the parties, the jury shall be kept together until 
 they agree on a verdict, by an officer who shall be sworn, as is 
 usual in trials in courts of record. If the jury cannot agree, 
 after being kept together for such time as the judge shall deem 
 reasonable, he may discharge them and issue a precept for a 
 new jury, and the same proceedings shall be had in respect to 
 such new jury. (Id. 601, sees. 9, 10.) 
 
 On the trial of such traverse the complainant shall only be 
 required to show, in addition to the forcible entry or detainer 
 complained of, that he was peaceably in actual possession at 
 the time of a forcible entry ; or was in the constructive posses- 
 sion of the premises at the time of a forcible holding out ; and 
 the traverser may show, in his defence, that he or his ancestors, 
 or those whose interest in such premises he claims, have been 
 in quiet possession thereof, for the space of three whole years 
 together, next before the said inquisition found, and that his in- 
 terest therein, is not then ended or determined, and such show- 
 ing shall be a bar to the prosecution. (Id. sec. 11.) 
 
 The verdict of the jury shall be received and recorded by the 
 said Judge, and if the defendant is thereby found guilty, the 
 said Judge shall thereupon award restitution of the premises so
 
 415 LANDLORD AND TENANT. 
 
 forcibly entered, or forcibly held out, and shall assess the costs 
 and expenses of the proceedings. (2 R. S. 601, sec. 12.) 
 
 He shall thereupon issue his precept, reciting the proceedings 
 before him, and commanding the sheriff of the county, or any 
 constable thereof, to cause the complainant to be restored and 
 put into full possession of the said premises, according as he 
 was seized or possessed thereof before such entry, and shall 
 also, in the same precept, or in separate execution, direct the 
 costs and expenses so assessed, to be levied and collected of the 
 defendant in the same manner as costs are, or may be collected 
 on judgments before Justices of the Peace, in personal actions. 
 (Id. sec. 13.) 
 
 The precept which the Judge is required to issue, is similar 
 to the forms already given. After reciting the proceedings be- 
 fore the Judge, it should command the sheriff (or constable,) to 
 cause the complainant to be restored and put into full posses- 
 sion of the premises, according as he was seized or possessed 
 thereof previous to the entry complained of; and furthermore to 
 levy and collect the costs and expenses assessed by the jury, of 
 the goods and chattels of the defendant in the same manner as 
 in executions from Justices' Courts. 
 
 If no such traverse shall be made, as authorized by the stat- 
 ute in the manner specified, within twenty-four hours after the 
 inquisition found, the Judge shall in like manner, award resti- 
 tution of the premises, and assess the costs and expenses of the 
 proceedings ; and shall issue his precept in the same manner, 
 to cause restitution and for the collection of the costs. (2 R. S. 
 601, sec. 14.)
 
 CHAPTER XVIII 
 
 OF HIGHWAYS. 
 
 I SHALL treat the subjects of this chapter under the foIlowiKg 
 heads : — 
 
 1. General Principles of Lmv, applicable to Highuays. 
 
 2. The duties of Overseers^ in regard to the Performance of 
 
 Labor upon Highways. 
 
 3. Of the Obstruction of Highways^ and encroachmints 
 
 thereon. 
 
 4. Of laying out Public Roads. 
 
 5. Regulation of Public Stages. 
 
 1. General Principles of Laio, applicable to Highways. 
 
 Every thoroughfare which is used by the pubhc, and is com- 
 mon to all the people of the state, is a highway, whether it be a 
 carriageway, a horseway, a footway, or a navigable river. (3 
 Kent, 432.) The owners of the land, on each side, go to the 
 centre of the road or river, and they have the exclusive right to 
 the soil, subject to the riglit of passage to the public ; so that a 
 conveyance of land bounded on a public highway, carries with 
 it the fee to the centre of the road. (Id. 432, 433.) It is, how- 
 ever, competent for the owner of a fann or lot, having one or 
 more of its sides on a public highway, to bound it, by express 
 terms, on the side or edge of the highway, so as to rebut the 
 presumption of law, and thereby reserve to himself his fee in 
 the highway. He may convey the adjoining land without the 
 soil under the highway, or the soil under the highway, without 
 the adjoining land. So also, it is competent for the ower of land, 
 on a river, to sell his upland to the top or edge of the bank oi 
 the river, and to reserve the stream and flats below high water 
 mark, if he does it by specific boundaries. The purchaser, in 
 such a case, takes the bank of the river as it is, or may, there- 
 after, be, by alluvion or decrease of the flow of the river, subject 
 to the common incidents which may diminish or increase the 
 
 27
 
 418 OF HIGHWAYS 
 
 extent of !iis boundaries. The owner may also convey the 
 bed of a stream, separate from the lands which bound it. (Id.) 
 The public acquire no more than a right of way in a public 
 thoroughfare, with the powers and privileges incident to that 
 right, such as digging the soil, and using the timber and other 
 materials, found within the space of the road, in a reasonable 
 manner, for the purpose of making and repairing the road and 
 its bridges. The right of way in the public, over the land of 
 an individual, does not extinguish his title. When, therefore, 
 the road is discontinued or abandoned, the entire and exclusive 
 enjoyment reverts to the proprietor of the soil. (15 J. R. 453.) 
 
 The owner of land bordering on a highway, may maintain 
 an action against another, for any use of the road, except for the 
 purpose of traveling ; as for cutting timber, digging in the soil, 
 piling boards, or any other exclusive appropriation of the soil. 
 (1 R. S. 638, sec. 131.) 
 
 Whenever any persons traveling with any carriages, shall 
 meet on any turnpike road or public highway, the persons so 
 meeting, must seasonably turn their carriages to the right oi the 
 centre of the road, so as to permit such carriages to pass with- 
 out interference or interruption, and an action lies, if any injury 
 arise from not complying with this provision. (1 R. S. 873, 
 sec. 1.) 
 
 The term carriage, includes stage coaches, wagons, carts, 
 sleighs, sleds, and every other carriage or vehicle used for the 
 transportation of persons and goods, or either of them. (Id. 
 874, sec. 7.) 
 
 The right of the centre oj the road^ as used in the above sta- 
 tute, means the right of the centre of the ivorked j^art of the 
 road. The centre of the smooth, or most traveled part of the 
 road, is not the dividing line, it is the centre of the tvorked part, 
 although the whole of the smooth or most traveled part may be 
 upon one side of that centre, and it is held to be no defence to 
 an action that the party had no design to offend ; that he at- 
 tempted to prevent a collision ; that the road on his side was 
 rough and rutty, and that it was more difiicult for him, than for 
 the other party to turn out ; unless the obstacles to turning out 
 are insuperable, or extremely difiicult, he is without excuse. (7 
 Wen. 18.5.) 
 
 An action also lies against one who obstructs the highway, in 
 consequence of whi(;h, another is injured by running against
 
 OF HIGHWAYS. 419 
 
 he obstruction. But the plaintiff must in this, as in other ca- 
 ses, exercise ordinary care himself, and, if there be an unlawful 
 obstruction in the highway, plain to be seen at such a distance, 
 as would enable the plaintiff to avoid it, and he, nevertheless, 
 rides with careless violence against it, and is injured, he can- 
 not sustain an action, for the injury arises from his own fault ; 
 he must use ordinary diligence to avoid it. (11 East, 60. 6 
 Cow. 189.) 
 
 An action may be maintained for an injury received by being 
 run against, in the highway, even though done accidentally, the 
 defendant being no otherwise blamable, than driving on the 
 wrong side of the road, in a dark night. (5 Term R. 648. 1 
 Camp. 497. 3 East, 593. 10 Bing. 112.) 
 
 But if the injury happen by unavoidable accident, no action 
 will lie ; otherwise if blame attach to the defendant, though he 
 be innocent of any intention to injure, as if he drive a horse too 
 spirited, or pull the wrong rein, or use imperfect harness, and. 
 the horse take flight and kill another horse. (1 Bing. 213.) 
 
 Where a child of such tender age as not to possess sufficient 
 discretion to avoid danger, is permitted, by his parents, to be in 
 the highway, without any one to guard him, and. is there run 
 over by the carriage of a traveler, and injured, no action lies 
 against the traveler, unless it is shown that the injury is vohin 
 tary, or arose from culpable negligence on his part, in an action 
 for such injury ; and if there he negligence on the part of 
 the plaintiff, there cannot be a recovery. (21 Wen. 615.) 
 
 Where an injury has resulted from the negligence of both 
 parties, without any intentional wrong on the part of either, an 
 action cannot be maintained. (5 Hill, 282. 19 Wen. 343.) 
 
 An action, prosecuted in the ordinary way, before a Justice 
 of the Peace, is the only proper mode of recovering the penalty 
 for obstructing or encroaching upon highways. (3 Caines, 259. 
 1 J. R. 510. 7 Wen. 247.) 
 
 If a servant, in the course of his master's business, do an in- 
 jury to another, the master is acconntable ; as if, in driving his 
 master's team, he negligently run a cart against another's car 
 riage, by which it is broken. (6 Cow. 189.) But if such injury 
 be wilfully done by the servant, without his master's consent, 
 the master is not liable ; for he is only liable for employing a 
 negligent or unskilful servant; and the servant's wilfully doing 
 an injury, is beyond the authority given him. If, however, the
 
 420 ^r HIGHWAYS. 
 
 business in which the servant is engaged, be such, that he can 
 justify himself to his master, the master is liable for any injury 
 resulting from negligent performance. In an action, therefore, 
 against the master for an injury resulting from an obstruction in 
 the highway, where it appeared that the master had been accus- 
 tomed to lay his wood in a certain place for several years, and 
 the seivant laid his master's wood in the same place, while the 
 latter was sick, and without his knowledge, it was held, that this 
 was an act in the course of his business as servant, and conse- 
 quently that the master was liable. (6 Cow. 1S9.) 
 
 Where a man is in my employ building a cliimney, and he 
 lays lime in the road, by which another's carriage is overturned 
 and injured, I am accountable for the damages : and I shall be 
 equally responsible, if the man employed by me, hired another, 
 who laid out the lime, either in person, or by his servant. So, if 
 I own a farm, and employ a man to work it for me, and h(^ hires 
 other persons under him, who are paid out of my funds : if any 
 damage happen, through their default, I am answerable. (2 
 Cow. Tr. 3l)9.) The servant who does the injury, is answer- 
 able over to the master ; or the person injured, may bring his 
 action in the first instance, (id.) 
 
 2. The Duties of Overseers, in regard to the Performance of 
 Labor iipon Highways. 
 
 Every person assessed to work on the highways, and warned 
 to work, may appear in person, or by an able-bodied Uian, as a 
 substitute, and the person or substitute so appearing, shall ac- 
 tually work eight hours in each day, under the penalty of twelve 
 and a half cents for every hour such person, or substitute, shall 
 be in default, to be imposed as a fine on the person assessed. 
 (1 R. S, 625, sec. 47.) 
 
 If any such person, or his substitute, shall, after appearing, 
 remain idle, and not woik faithfully, or hinder others from 
 working, such oflender shall, (or every olTcnce, forfeit the sum 
 of one dollar. (Sec. 48 ) 
 
 Every person so assessed, and duly notified, who shall not 
 commute, and who shall refuse or neglect to appear, as above 
 provided, shall luif<;il, for every day's refusal or neglect, the sum 
 of one dollar. (S<;c. 41).) 
 
 If he was recjuiicd to furnish a team, carriage, man, or imple- 
 ments, and shall refuse or neglect to comply, he shall be fined 
 as follows :
 
 OF HIGHWAYS. 421 
 
 1. For wholly omitting to comply with such requisition, three 
 dollars for each day. 
 
 2. For omitting to furnish a cart, wagon or plough, one dollar 
 for each day. 
 
 3. For omitting to furnish a pair of horses or oxen, one dollar 
 for each day. 
 
 4. For omitting to furnish a man to manage the team, one 
 dollar for each day. 
 
 It is made the duty of every overseer of highways, within six 
 days after any such penalty is incurred, if the delinquent do not 
 render him a satisfactory excuse for his neglect or refusal, to 
 make complaint, on oath, to one of the Justices of the Peace of 
 the town. (1 R. S. 625, sec. 50.) 
 
 The form of the complaint, where the person assessed is no- 
 tified merely to appear with hand implements, must necessarily 
 be so different from the case where there is a requirement to 
 furnish a team, that I shall propose a precedent for each case. 
 
 COMPLAINT FOR NEGLECT TO APPI3AR, WORK, &C. 
 
 Town of Owesfo, ss. — John Smith, overseer of highways in 
 and for road district number 6, in said town, makes oath and 
 complains, before Henry Rodgers, one of the Justices of the 
 Peace of said town, that he gave to James Stone, [who resides 
 in said district, is assessed to work on the highways therein, and 
 who has not commuted for such assessment,] twenty-four hours 
 previous notice to appear, either in person or by an able bodied 
 man as a substitute, on the 15th day of May instant, at eight 
 o'clock in the forenoon', at the dwelling house of the said John 
 Smith, and to bring with him a hoe, for the purpose of working 
 on the highways in said district, under the direction of the said 
 John Smith as overseer ; that said James Stone neglected to ap- 
 pear pursuant to said notice [or " appeared jnirsiiant to said 
 notice^ and rejnained idle,^^] [or " did not uwrk faithfully ^^\ [or 
 " hindered others from ivorking,'^] [or " did not ivork the re- 
 quired number of hours on, said dai/, but teas in defaidt two 
 hours ;"j and that said James Stone has not rendered to said 
 John Smith any satisfactory excuse for his neglect aforesaid. 
 
 John Smith. 
 Subscribed and sworn before me, 
 
 this 17th day of May, 1849. 
 
 Hknry Rodgers, Justice.
 
 422 OF HIGHWAYS. 
 
 FORM OF COMPLAINT FOR NOT FURNISHING TEAM. 
 
 Town of Owego, ss. — John Smith, overseer of highways, in 
 and for road district number 6, in said town, makes oath and 
 complains, before Henry Rodgers. one of the Justices of the 
 Peace of said town, that he gave to James Stone [who resides 
 in said district, is assessed to work on the highways therein 
 three days, or "more than three days," and which he has not 
 commuted for] twenty-four hours previous notice, whereby said 
 James Stone was required to furnish a plough, pair of oxen, and 
 a man to manage them, [or other team or utensils, man. 4*c., as 
 may he required^ on the 15th day of May instant, at eight 
 o'clock in the morning, at the house of said John Smith, in said 
 district, \or other place designated in the notice,] to work on the 
 highways under the direction of said John Smith as overseer ; 
 and that said James Stone wholly omitted to comply with such 
 requisition, [or " omitted to furnish a plough as so required," or 
 as the oniissio7i may 6e,] and has not rendered to said John 
 Smith any satisfactory excuse for such omission. 
 
 John Smith. 
 Subscribed and sworn before me, 
 
 this 17th day of May, 1849. 
 
 Henry Rodgers, Justice. 
 
 Upon the complaint being made, the Justice is required forth- 
 with to issue a summons, directed to a constable of the town, 
 requiring the delinquent to appear forthwith, and show cause 
 against the imposition of a fine. (] R. S. 625, sec. 51.) 
 
 FORM OF SUMMONS. 
 
 Town of Uwego, ss. 
 
 To any Constable of said town. Greeting : 
 Whereas, John Smith, overseer of highways in and for road 
 district number 6, in said town, has this day made complaint, 
 on oath, before me, the undernamed Justice of the Peace of said 
 town, that, <fec. [here set forth the complaint :] You are there- 
 fore hereby commandf^d, in the name of the people of the state 
 ol New York, to siinmion the said James Stone forthwith to 
 appear before iiic, at my olWcv. in Owego aforesaid, to show 
 cause why he should not be fined according to law, for the re-
 
 OF HIGHWAYS. 423 
 
 fusal or neglect in said complaint alleged [against him. Given 
 under my hand, at Owego, May 17th, 1849. 
 
 Henry Rodgers, Justice. 
 
 The summons must be served personally on the delinquent, 
 or by leaving a copy at his personal abode. (1 R. S. 625, sec. 
 51. 9 J. R. 229.) 
 
 If, upon the return of the summons, no sufficient cause to the 
 contrary be shown, the Justice must impose the fine as provided 
 for the ofience complained of, and forthwith issue his warranty 
 under his hand and seal, to levy such fine, with the costs of the 
 proceedings, of the goods and chattels of such delinquent. (1 
 R: S. 625, sec. 52.) 
 
 FORM OP WARRANT. 
 
 Toioii of Oioego^ ss. 
 
 To any Constable of said town. Greeting : 
 Whereas, John Smith, overseer of highways of road district 
 number 6, in said town, made complaint on oath before me, the 
 undernamed Justice of the Peace of said town, that, &c. [hej'e 
 set forth the cotnplaint.] And whereas, upon said complaint, I 
 caused the said James Stone to be summoned by my precept, 
 for that purpose duly issued, to appear forthwith before me, at 
 my office in Owego aforesaid, to show cause why he should not 
 be fined according to law for his refusal or neglect, complained 
 of as aforesaid, as appears by said precept and the endorsement 
 thereon, returned to me by John Brown, constable, by whom 
 the same was served. And the said James Stone not having 
 appeared before me, pursuant to said summons, nor shown suffi- 
 cient cause to the contrary, [or " having- appeared before me, 
 pursuant to said summons, hut not showing sufficient cause to 
 the^^contrary,^^] I did impose upon the said James Stone, as a 
 fine for his offence, complained of as aforesaid, the sum of one 
 dollar [or as the fine may he :\ You are therefore hereby com- 
 manded, in the name of the people of the state of New York, 
 to levy the said fine, together with three dollars costs of the pro- 
 ceedings in the prosecution therefor of the goods and chattels of 
 the said James Stone, and bring the monies which you shall 
 collect, before me, with this warrant, as by law required. Given 
 under my hand and seal, at Owego, this 17th day of May, 1849. 
 
 Henry Rodgers, Justice, [l. s.]
 
 424 OF HIGHWAYS. 
 
 When the money is collected, tlie constable must pay it to the 
 Justice who issued the warrant, who is required to pay the fine 
 to the overseer, to he by him expended in improving the roads 
 and bridges in his district, 
 
 3. Of the Obstructions of Highways, and Encroachments 
 
 thereon. 
 
 If any person obstruct any highway, or fill up or place any 
 obstruction in any ditch constructed for draining the water from 
 any highway, he is made hable, by statute, for every such 
 oflence, to the penahy of five dollars. (1 R. S. G37, sec. 123.) 
 
 If a highway is encroached upon by fences, and the commis- 
 sioners of highways deem it necessary, they may order the 
 fences to be removed, so that the highway may be of the breadth 
 originally intended. The order must be in writing, and signed 
 by them. They must also give written notice to the occupant 
 to remove his fences in sixty days. The order and notice must 
 specify the breadth of the road originally intended, the extent 
 of the encroachment, and the place or places where the same 
 may be. (1 R. S. 637, sec. 124.) 
 
 If such removal shall not be made within sixty days after the 
 service of such notice, the occupant to whom the notice shall be 
 given, shall forfeit the sum of fifty cents for every day after the 
 expiration of that time, for which such fences shall continue un- 
 removed. (Id. 125.) 
 
 If the occupant to whom notice is given within five days, 
 deny the encroachment, the commissioners, or one of them, must 
 apply to some Justice of the Peace of the county, to summon a 
 jury to try the question. The precept of the Justice is to be 
 directed to any constable of the town, requiring liim to summon 
 twelve freeholders thereof, to meet at a certain day and place, 
 to be specified in such precept, and not less \\\diU four days after 
 the issuing thereof 'J'he constable must give at least three days 
 noticfi to the commissioners and occupant, of the time and place 
 at which such jury is to tneet. (Id. 126.) 
 
 PinX'KPT TO SUMMON THE JURY. 
 
 Chen'tngo County, ss. 
 
 To any ('onsial)l(! of the Town of Oxford, in said County, 
 (irreting : 
 Whereas, the commissioners of highways, of said town, have
 
 OF HIGHWAYS. 425 
 
 represented to me, the undernamed Justice of the PeEC3 of said 
 county, that John Rogers is the occupant of the land, through 
 or by which a certain highway'', in said town, leading from the 
 house of said John Rogers to the Chenango River, runs, and 
 that the said John Rogers has encroached, by fences, upon the 
 said highway, and that the said John Rogers, after notice given 
 to him, denies such encroachment. And said commissioners 
 having applied to me for a precept to summon a jury to inquire 
 into the premises : You are, therefore, hereby commanded, in the 
 name of the people of the state of New York, to summon twelve 
 freeholders of said town, to meet at the Drovers' Inn, in said 
 town, on the 23d day of May, instant, at ten o'clock in the fore- 
 noon, to inquire whether such encroachment has been made, and 
 by whom. And you are further required to give at least three 
 days notice to the said commissioners and occupant, of the time 
 and place of the meeting of the freeholders, as aforesaid ; and 
 have tliere the names of the jurors summoned, and this precept. 
 Given under my hand, this 19tli day of May, 1849. 
 
 David Long, Justice. 
 
 The freeholders,'when assembled, must be sworn by the Jus- 
 tice. (1 R. S. 637, sec. 127.) 
 
 FORM OP OATH. 
 
 "You do swear, in the presence of Almighty God, that you 
 will well and truly inquire whether any encroachment has been 
 made, and by whom, on the highway now in question ; and a 
 true finding will make." 
 
 Witnesses may be produced by either party, and sworn as in 
 other cases. (Id.) 
 
 If the jury find that an encroachment has been made, they 
 must make and subscribe a written certificate thereof, stating 
 the particulars of the encroachment, and by whom made. (Id. 
 128.) The certificate must be filed in the office of the town 
 clerk. 
 
 FORM OF CERTIFICATE. 
 
 We, the undernamed freeholders of the town of Oxford, this
 
 426 OF HIGHWAYS. 
 
 day convened, and duly sworn to inquire whether any encroach- 
 ment has been made, and by whom, on the pubhc highway 
 leading from the house of John Rogers to the Chenango River, 
 and having heard the proofs and allegations before us produced 
 and submitted, and due inquiry made, &c., do hereby certify, 
 that we find that the said John Rogers, did, in the month of 
 April last, erect, and has since continued, on the highway afore- 
 said, a fence extending from a point opposite his dwelling house, 
 westwardly forty rods, which is an encroachment on said high 
 way, through its whole extent, of an average width of six feet. 
 Witness our hands, at Oxford, May 23d, 1849. 
 
 A. B. ^ 
 
 C. D. > Jurors. 
 
 E. F., &c. ) 
 
 If the jury find that an encroachment has been made, the oc- 
 cupant must pay the costs of the inquiry. If the same be not 
 paid in ten days, the Justice is required to issue a warrant 
 against him for the collection thereof. (1 R. S. 638, sec. 128.) 
 
 FORM OF WARRANT. 
 
 County of Chenango^ ss. 
 
 To any Constable of the Town of Oxford, in said County, 
 Greeting : 
 Whereas, it has been found, by the inquiry of twelve freehol- 
 ders of said town, convened and sworn according to law, by and 
 before me, the undernamed Justice of the Peace, that John Ro- 
 gers has encroached, by the erection and continuance of fences, 
 upon a certain public highway, in said town, as by the certifi- 
 cate of said freeholders, duly made and filed, in the clerk's oflice 
 of said town, will more fully appear. And, whereas, the costs 
 of said inquiry, amounting to the sum of five dollars, have not 
 been paid by the said John Rogers, as by law required, aUhough 
 more than ten days have elapsed since said inquiry and finding 
 were made : You are, therefore, hereby commanded, in the name 
 of the people of the state of New York, to levy the said costs of 
 the goods and chattels of the said John Rogers, and bring the 
 moneys whicli you shall so collect, together with this warrant, 
 before me, as by law required. Given under my hand at Ox- 
 ford, June 4tli, 184'J. 
 
 David Long, Justice.
 
 OF HIGHWAYS. 427 
 
 If the jury find that no encroachment has been made, they 
 must so certify, and must also ascertam and certify the dam- 
 ages of the occupant, by reason of the proceedings against him. 
 The damages, together with the costs of the inquiry, must be 
 paid by the commissioners, and are a charge in their favor 
 against the town. (Id. 129.) 
 
 4. Of laying out Public Roads. 
 
 No pubUc or private road shall be laid out through any or- 
 chard or garden without the consent of the owner thereof, if 
 such orchard be of the growth of four years or more, before the 
 laying out of such road. Nor shall any such road be laid out 
 through any buildings ; or any fixtures or erections for the pur- 
 pose of trade or manufactures ; or any yards or enclosures ne- 
 cessary to the use and enjoyment thereof, without the consent 
 of the owner. (1 R. S. 628, sec. 69.) 
 
 Every person liable to be assessed for highway labor, may 
 apply to the commissioners of highways of the town in which 
 he resides, to alter or discontinue any road, or to lay out any 
 new road. Every such application must be in writing, addres- 
 sed to the commissioners, and signed by the person applying. 
 (Sec. 65.) 
 
 FORM OP APPLICATION TO COMMISSIONERS. 
 
 To the Commissioners of the Town of Oxford, in the county 
 of Chenango : 
 
 The undersigned, a resident of said town, and liable to be as- 
 sessed for highway labor therein, hereby makes application to 
 you, to lay out a highway in said town commencing at, {here 
 state the route with stifficietit certainty, by courses, ^^c.,] which 
 said highway, will pass through the improved, [or enclosed, or 
 cultivated,'] lands of John Brown and Alvin Wheeler, who do 
 not consent to the laying out of the same. Dated Oxford, May 
 2d, 1849. 
 
 Joseph Baxter. 
 
 No highway can be laid out through enclosed, improved, or 
 cultivated land, without the consent of the owner or occupant 
 thereof, unless certified to be necessary by twelve reputable 
 freeholders of the town. (Sec. 70.) 
 
 Every person applying for the laying out of a highway
 
 428 OF HIGHWAYS. 
 
 through any such land, must cause notices in writing to be 
 posted up at three of the most pubhc places of the town, speci- 
 fying, as near as may be, the route of the proposed highway, 
 the several tracts of land through which the same is proposed 
 to be laid, and the time and place at which the freeholders will 
 meet to examine the ground. Such notice- must be posted up 
 at least six days before the time specified therein, for the meet- 
 ing of the freeholders. (1 R. S. G29, sec. 71.) 
 
 FORM OF NOTICE OF APPLICATION, AND OF THE MEETING 
 OF FREEHOLDERS. 
 
 Notice is hereby given, that the undersigned has made a])pli- 
 cation to the commissioners of highways of the town of Oxford, 
 county of Chenango, for the laying out of a highway, commen- 
 cing, [here insert description of route, br/ courses, S)^c.,\ and 
 which highway will pass through the improved lands of John 
 Brown and Alvin Wheeler, and that on the 28th day of May, 
 instant, at two o'clock in the afternoon, at the house of George 
 Morris in said town, twelve freeholders, duly qualified for that 
 purpose, will meet to examine the grounds, and certify with 
 respect to the necessity and propriety of such highway. 
 
 Dated Oxford, May 20th, 1849. 
 
 Joseph Baxter. 
 
 If the freeholders appear at the time and place specified in 
 the notice, they must be sworn well and truly to examine and 
 certify in regard to the necessity and propriety of the highway 
 applied for. The oath may be administered by a Justice of the 
 Peace, or any officer authorized to administer oaths. (1 R. S. 
 629, sec. 72.) 
 
 FORM OF OATH TO THE FREEHOLDERS. 
 
 "You, and each of you, do solemnly swear, well and truly 
 to examine and certify in regard to the necessity and propriety 
 of th(; highway applied for, through the lands of John Brown 
 and Alviu Wheeler." 
 
 Thf! cotiimissioners must personally examine the route of the 
 proposed highway, and hear any reasons that may be oflercd,
 
 OF HIGHWAYS. 429 
 
 for or against laying out the same. If they are of opinion that 
 such highway is necessary and proper, they must make and 
 subscribe a certificate in writing, to that effect, which must be 
 delivered to the commissioners of highways of the town. (Id. 
 sec. 73.) 
 
 FORM OF CERTIFICATE OF FKEEIIOLDERS 
 
 Chenango Count ij, j 
 Town of Oxford, \ 
 
 We, the undersigned, twelve reputable freeholders of the said 
 town, not interested in the lands through which the road de- 
 scribed in the annexed notice is to be laid, nor of kin to any 
 owner thereof, having appeared at the time and place specified 
 in the said notice, and having been duly sworn well and truly 
 to examine and certify in regard to the necessity and propriety 
 of the highway applied for ; and having proceeded to and per- 
 sonally examined the route of such highway, and heard all the 
 reasons that were offered, for and against laying out the same, 
 do hereby certify, that we are of opinion that the highway 
 applied for, and described in the annexed notice, is necessary 
 and proper. 
 
 In witness whereof, we have hereunto subscribed our names, 
 this 28th day of iMay, 1849. 
 
 A. B. 1 
 
 CD. \ Freeholders. 
 
 E. F. &c. ) 
 
 Before the commissioners determine to lay out the highway 
 so applied for and certified, they must cause notice in writing 
 to be given to the occupant of the land through which the road 
 is to run, of the time and place at which they will meet to 
 decide on the application. 
 
 FORM OF NOTICE TO THE OCCUPANT OF THE LAND THROUGH 
 WHICH THE ROAD IS TO RUN. 
 
 To Mr. John Broion : — 
 
 Please take notice, that on the 4th day of June next, at two 
 o'clock in the afternoon, at the house of Ira Davis, in the said 
 town of Oxford, the undersigned, commissioners of highways 
 of said town, will meet to decide on the application of Joseph
 
 430 OF HIGHWAYS. 
 
 Baxter, for the laying out of a highway, commencing [here 
 describe the 7'07ite,] twelve freeholders having certified that the 
 said road is necessary and proper. Dated Oxford, May 20th, 
 1849. 
 
 * r» r»* ? Commissioners. 
 
 o. u. ^ 
 
 The foregoing notice must be served by delivering the same 
 to the occupant, or if he be absent, by leaving the same at his 
 dwelling house ; and, in either case, at least three days before 
 the time of meeting. (1 R. S. 629, sec. 75.) 
 
 The commissioners must meet at the time specified in the 
 notice, and hear any reasons that may be offered for or against 
 laying out the highway. If they determine to lay out the 
 highway, they must make out and subscribe a certificate of 
 such determination, describing the road so laid out particularly, 
 by routes and bounds, and by its courses and distance, and 
 deposit the same with the town clerk. (Id. sec. 76.) 
 
 FORM OF CERTIFICATE FOR LAYING OUT HIGHWAY. 
 
 At a meeting of the commissioners of highways of the town 
 of Oxford, in the county of Chenango, at the house of Ira 
 Davis, in said town, on the 4th day of June, 1849, the said 
 commissioners having met and deliberated on the subject matter 
 of this order, upon the application of Joseph Baxter, a resident 
 of said town, and liable to be assessed to work on the highways 
 therein, for the laying out of the highway hereinafter described 
 — and on the certificate of twelve reputable freeholders of said 
 town, convened and duly sworn, after due public notice, as re- 
 quired by the statute, certifying that such highway is necessary 
 and proper ; and notice in writing, of at least throe days, having 
 been given in due form of law, to John Brown and Alvin 
 Wheeler, occupants of the lands through which the highway 
 hereinafter described is to run, that the undersigned would meet 
 at this time and place, to decide on the application aforesaid ; 
 and the undersigned having heard the reasons for and against 
 laying out sucli highway : It is ordered, determined, and cer- 
 tified, that a public highway shall be, and the same is hereby 
 laid out, pursuant to said application, whereof a survey hath 
 been made, and is as follows, to wit :" beginning [here insert the
 
 OF HIGHWAYS. 431 
 
 survey of the road.] And the line of the said survey, is to be 
 the centre of said highway, which is to be three rods wide. 
 
 In witness whereof, we have here subscribed our names, this 
 4th day of June, 1849. 
 
 A. B. ; 
 
 C D [ Commissioners. 
 
 If the commissioners refuse to lay out the highway, as certi- 
 fied by the twelve freeholders, they should make the following 
 order : 
 
 FORM OF ORDER REFUSING TO LAY OUT OR ALTER THE 
 HIGHWAY. 
 
 At a meeting of the undersigned, commissioners of highways 
 of the town of Oxford, in the county of Chenango, at the house 
 of Ira Davis, in said town, on the 4th day of June, 1849, 
 having deliberated on the subject matter of this^order ; it is 
 hereby ordered and determined, that the application of Joseph 
 Baxter, dated the 20th day of May, 1849, for the laying out 
 [or altering, as the case may 6e,] of the highway therein men^ 
 tioned be, and the same is hereby denied and refused. 
 
 In witness whereof, we have hereunto set our names, this 
 4th day of June, 1849. 
 
 A. B. ) 
 
 Q -pj > Commissioners. 
 
 The commissioners of highways and the owner of the land 
 through which the road is to run, may agree upon the damages 
 which are allowed by statute, provided such damages do not 
 exceed one hundred dollars. (Laws of 1847, ch. 455, sec. 22.) 
 
 FORM OF AGREEMENT AS TO DAMAGES. 
 
 It is hereby agreed between Jesse Orcutt and Peter' Pray, 
 commissioners of highways of the town of Oxford, of the one 
 part, and John Brown of the other part, that the damages sus- 
 tained by the said John Brown, by reason of the laying out 
 and opening of a highway through the lands of the said John 
 Brown, on the application of Joseph Baxter, by order of the
 
 432 OF HIGHWAYS. 
 
 commissioners; dated the 4th day of June, 1849, be fixed an ^ 
 
 liquidated at the sum of fifty doHars. 
 
 Witness our hands, this 5th day of June, 1849. 
 
 Jesse Orcutt, j ^^ . . 
 
 T, „ V Commissioners. 
 
 Peter Fray, ^ 
 
 John Brown. 
 
 If the owner of the land through which the road is to run, 
 will release his damages, adopt the following form : 
 
 FORM OF RELEASE OF DAMAGES. 
 
 I hereby release to the town of Oxford, all claim to damages, 
 by reason of the laying out and opening of a highway through 
 my lands, by order of the commissioners of highways. Dated 
 the 5th day of June, 1849. 
 
 In witness whereof, I have hereunto set my hand and seal, 
 the day and year above mentioned. 
 
 John Brown, [l. s.J 
 
 In case damages are to be assessed, for the laying out, alter- 
 ing, or discontinuing any highway, it is now by law, to be as- 
 sessed, by not less than three commissioners, to be appointed by 
 the county court of the county in which such road or highway 
 shall be, on the application of the commissioner or commission- 
 ers of the town ; and the commissioner so appointed, must take 
 the oath of office prescribed by the constitution, and proceed, 
 on receiving at least six days notice of the time and place, to 
 meet the highway commissioners and take a view of tlie prem- 
 ises, hear the parties, and such witnesses as may be offered be- 
 fore them ; and tliey must all moot and act, and assess all dam- 
 ages which may be required to be assessed on the same high- 
 way, and are authorized to administer oatlis lo witnesses pro- 
 duced before them, and when they shall all have mot and acted 
 the assessment agreed to by a mnjovUy of them will bo valid ; 
 and when so made must be delivered to a commissioner of 
 highways of the town, who, within ten days aftcu' rccr-iving it, 
 must file it in the office of the town clerk. (Laws 1S47, ch. 
 455.) 
 
 FORM OF THE FINI)IN(i OF THE COM MIS.SIONE RS. 
 
 Chenango County^ ss. — We, llie undersigned, three commis-
 
 OF HIGHWAYS. 
 
 433 
 
 sioners, appointed by the county court of the county aforesaid, 
 pursuant to statute in such case made and provided, having 
 taken the oath of office prescribed by the constitution, and pro- 
 ceeded, after receiving six days notice of the time and place, 
 together with the undersigned commissioners of highways of 
 the town of Oxford, county aforesaid, to assess the damages 
 sustained by John Brown, by reason of the laying out and 
 opening of a road through his enclosed land, in pursual^e of an 
 application of the commissioners of the said town of Oxford, bear- 
 ing date the 1st day of June, 1849, after having viewed and 
 examined the premises, heard the parties, and the witnesses 
 offered by them, determine and assess the said damages of the 
 said John Brown, at fifty dollars. 
 
 Given under our hands, at Oxford aforesaid, this 1st day of 
 July, 1849. 
 
 A. B. ; 
 
 Commissioners. 
 
 Commissioners of Highways. 
 
 Any person conceiving himself aggrieved, or the commis- 
 sioner, or commissioners, on the part of the town, feeling dis- 
 satisfied by any such assessment, may within twenty days after 
 the filing'thereof in the town clerk's office, signify the same by 
 notice in writing, and serving the same on the town clerk, and 
 on the opposite party, that is, the persons for whom the assess- 
 ments were made, or the commissioner or commissioners of 
 highways, as the case may be, asking for a jury to re-assess the 
 damages, and specifying a time, not less than ten, nor more 
 than twenty days, from the time of filing said assessment when 
 such jury will be drawn at the clerk's office of an adjoining 
 town of the same county by the town clerk thereof. (Laws 
 1847, ch. 455, sec. 3.) 
 
 FORM OF NOTICE OF APPEAL. 
 
 To James Davis, town clerk of the town of Oxford : — 
 
 Sir : — You will please take notice that I require a review of 
 the assessment of damages made by A. B., C. D., E. F., com- 
 missioners appointed by the County Court of the county of 
 Chenango, and by G. H. and I. J. commissioners of highways 
 
 28
 
 434 OF HIGHWAYS. 
 
 in the town of Oxford, county aforesaid, dated the 1st day of 
 July, 1849, for a road running through the land of John Brown 
 in the said town. And I hereby require that a jury be drawn 
 at the clerk's office of the town of Norwich, county aforesaid, 
 on the 2oth day of July instant, for the purpose of reviewing 
 the said assessment. Dated July 8th, lb49. 
 
 Henry Stow, 
 Commissioner of the town of Oxford. 
 
 The foregoing notice must be served upon the opposite party 
 within three days after service upon the town clerk. It may be 
 served personally, or by being left at the dwelling-house of the 
 party, with some person in charge thereof, or, if there be no such 
 person, or the house be closed, then by fixing the same upon the 
 outer door of said dwelling-house. (Laws 1847, ch. 455, sec. 3.) 
 
 At the time and place mentioned in the notice, the town clerk 
 of such adjoining town, having received three days previous 
 notice that such jury is to be drawn, from the person or party 
 asking the re-assessnient, must deposite in a box the names of 
 all such persons then residents of his town, whose names are 
 on tJie last list filed in said town clerk's office, of those selected 
 and relumed as jurors, who are not interested in the lands 
 through which such road is located, nor of kin to either or any 
 of tlie parties, and must draw therefrom the names of twelve 
 persons, and make a certificate of such names, and the purposes 
 for which they are drawn, and deliver the same to the party 
 first asking for the re-assessment. (See. 4.) 
 
 FORM OF CERTIFICATE. 
 
 Town of Norwich, ss. — This is to certify, that the following 
 are the names of twelve persons drawn by me as a jury, for the 
 purpose of reviewing the assessment of damages made by A. 
 B., C. I), and E. F. connnissioners appointed by the County 
 Court, of the county of Chenango, and by C H. and 1. J. com- 
 missioners of highways in tiic town of Oxford county afore- 
 said, dated the 1st day of July, 1849. for a road running through 
 the land of John Brown in said town, in pursuance of a notice 
 to that cAXvA-A served on me by Henry Slow, commissioner of the 
 town of Oxford aforesaid. 
 
 Witness my hand, tin's 25111 day of July 18^9. 
 
 William Perkins, Town Clerk 
 
 of the town of Norwich.
 
 OF HIGHWAYS. 435 
 
 The party receiving such certificate must within twenty four 
 hours thereafter, deUver the same to a Justice of the Peace of the 
 town in which the damages are to he assessed. It is the duty 
 of the Justice forthwith to issue a summons to one of the con- 
 stables of his town directing him to summon the persons named 
 in said certificate, and specifying a time and place in the sum- 
 mons at which the persons summoned, must meet ; but no meet- 
 ing of such persons can be had within twenty days from the 
 time of filing the assessment of damages in the town clerk's 
 office, by the commissioner or commissioners of highways. 
 (Laws 1847, ch. 455, sec. 5.) 
 
 FORM OF A SUMMONS FOR A JURY. 
 
 Chenango County^ ^ 
 Town of Oxford, ^ 
 
 To any Constable of the Town of Oxford, Greeting : — 
 
 On application of Henry Stow, commissioner of the town of 
 Oxford, and the delivery by him to me, the undersigned, a Jus- 
 tice of the Peace of the town of Oxford aforesaid, of the an- 
 nexed certificate, you are hereby commanded, in the name of 
 the people of the State of New York, to summon the twelve 
 persons in the said certificate named, to appear as a jury at the 
 Drovers' Inn, in said town of Oxford, on the 1st day of August 
 next, at two o'clock in the afternoon, for the purpose of review- 
 ing an assessment of damages made by A. B., C. D., E. F., 
 commissioners appointed by the County Court of the county of 
 Chenango, and by G. H. and I. J. commissioners of highways 
 in tha town of Oxford county aforesaid, dated the 1st day of 
 July, IS 19, for a road running through the improved land of 
 John Brown in the said town. And have you then there, the 
 names of the jurors and this precept. 
 
 Given under my hand, this 28th day of July, 1849. 
 
 David Long, Justice. 
 
 Upon such persons appearing at the time and place mentioned 
 in the summons, the Justice who issued the summons must 
 draw by lot six of the persons attending to serve as a jury, and 
 the first six persons drawn who are free from all legal exceptions 
 must be the jury to re-assess all the damages required to be re- 
 assessed upon the said highway. (Sec. 6.)
 
 436 OF HIGHWAYS. 
 
 The jury must be sworn by the Justice, well and truly to de- 
 termine and re-assess such damages as shall be submitted to 
 their consideration. (Id.) 
 
 The jury must take a view of the premises, hear the parties, 
 and such witnesses as may be offered and sworn before them, 
 and render their verdict in writing under their hands. (Id.) 
 
 FORM OF VERDICT OF JURY ASSESSING DAMAGES. 
 
 Chenango County, 55.— We, the undersigned, freeholders of 
 said county, being the jury summoned, drawn, and sworn by 
 David Long, a Justice of the Peace of the town of Oxford, 
 county aoresaid, to review an assessment of damages made by 
 A. B. C. D. E. F, commissioners appointed by the county court 
 of the county of Chenango, and by G. H. and I. J., commis- 
 sioners of highways in the town of Oxford, county aforesaid, 
 dated the 1st day of July, 1849, for a road running through the 
 improved land of John Brown, in the said town, not being inter- 
 ested in the lands through which such road is located, nor of 
 kin to either or any of the parties, after having viewed and ex- 
 amined the premises, heard the parties, and the witnesses offered 
 by them, and sworn by the said Justice, determine and assess 
 the said damages of the said John Brown, at sixty-five dollars. 
 Given under our hands, this 1st day of August, 1849. 
 
 [Jw'ors names.] 
 
 The verdict of the jury must be certified by the Justice, and 
 be delivered to the commissioners of highways of the town. 
 (Laws 1847, ch. 455, sec. 6.) 
 
 It is provided that in all cases of assessments of damages by 
 commissioners appointed by a county court, the costs thereof 
 must be paid by the town in which the damages are assessed. 
 In case of re-assessment of damages by a jurj^, on the applica- 
 tion of ilic commissioners of highways of any town, and the 
 fust assessment is reduced, ihe costs of such assessment must 
 be paid by the j)aity claiming the damages — otherwise, by the 
 town. In case a re-assessment of damages is had on the appli- 
 cation of the party for wliom the damages were assessed, and 
 sucli purly fail to inci(;ase the same, Ik^ nnist pay the costs; but 
 when such damages are increased by die jury, tlie costs must 
 be [)aid ]>y the town. When a|t])heafions are made by two or
 
 OF HIGHWAYS. 437 
 
 more persons for the re-assessment of damages by a jury, such 
 jury must be obtained in conformity with the notice first served 
 upon the clerk of the town in which the damages are to be as- 
 sessed ; and all persons liable for costs are liable in proportion to 
 the amount of dam.ages respectively assessed to them, by the 
 first assessment which may be recovered in an action, at the 
 suit of any person or persons entitled to the same, before a Jus- 
 tice of the Peace. (Laws 1817, ch. 455, sec. 7.) 
 
 In assessing the damages for laying out or altering any pri- 
 vate road, the commissioners of highways of the town where 
 the road is situated must serve a notice of the assessment upon 
 the town clerk of the town, and upon the persons interested in 
 the road, specifying a time when a jury of the town will be 
 drawn by the town clerk at his office, which time must be within 
 not less than six, nor more than ten days from the time of ser- 
 vice of the notice. At the time mentioned in the notice, the 
 clerk must proceed to draw by lot, from the jury list last filed, 
 the names of twelve persons, and make a certificate of such 
 names and the purposes for which they were drawn. The per- 
 sons so drawn must be summoned, six of whom must be drawn 
 by lot, and sworn as a jury. The jury must take a view of the 
 premises, hear the parties and such witnesses as may be offered 
 and sworn before them, and render their verdict in writing, un- 
 der their hands, which must be certified and delivered to the 
 commissioner of highways of the town. (Sec. 10.) The same 
 jury must assess all damages required to be assessed for the 
 same road. (Id.) 
 
 In re-assessing damages, town clerks are allowed the sum of 
 fifty cents for drawing and certifying a jury ; and a constable, 
 for summoning such jury, two dollars, except when the jury 
 are taken from the same town in which the road is located, in 
 which case he is allowed only one dollar. Jurors who are sum- 
 moned from an adjoining town, and attend, but do not serve, are 
 entitled each to fifty cents — and if they serve, to one dollar ; if 
 from the same town, and attend, but do not serve, twenty-five 
 cents ; if they serve, fifty cents each. (Sec. 19.) 
 
 Any person who conceives himself aggrieved by any determi- 
 nation of the commissioners of highways, either in laying out, 
 altering, or discontinuing any road, may, at any time within 
 sixty days after such determination has been filed in the office
 
 438 OF HIGHWAYS. 
 
 FORM OF APPEAL TO COUNTY JUDGE. 
 
 To Alfred Wheeler, Judge of the County Court of the County 
 of Chenango : — 
 
 I, the undersigned, a resident of the town of Oxford, county 
 aforesaid, and hable to be assessed for highway labor, conceiv- 
 ing myself to be aggrieved by the determination of the commis- 
 sioners of highways of the said town of Oxford, contained in 
 the order, a copy of which is hereto annexed, do hereby appeal 
 to you therefrom. This appeal is brought to reverse the deter- 
 mination of the commissioners, on the ground that the laying 
 out of said highway is unnecesary and improper. 
 
 Made and signed by me, this Ist day of September, 1849. 
 
 Henry Tracy. 
 
 form of notice by judge to commissioners. 
 
 To William Peters, Samuel Strong, and John Roberts, Com- 
 missioners of Highways of the town of Oxford, in the County 
 of Chenango : — 
 
 Please take notice that Henry Tracy has appealed to me, the 
 undersigned, judge of the county of Chenango, from your de- 
 termination contained in your order, dated the 28th day of July, 
 1849, laying out [or altering or discontinuing] the highway 
 therein mentioned ; and that I shall attend on Monday the 10th 
 instant, at ten o'clock in the morning, at the inn of Anthony 
 Dillon, in said town, to hear and decide the said appeal. Dated 
 Norwich, September 1st, 1849. 
 
 Alfred Wheeler, 
 
 Judge of Chenango County. 
 
 form of notice of the hearing of the appeal TO the 
 
 APPLICANT. 
 
 To Henry Tracy : — 
 
 Please take notice that I shall attend at the inn of Anthony 
 Dillon, in the town of Oxford, on Monday the 10th instant, at 
 ten o'clock in the morning, to hear and decide the appeal from 
 the determination of the commissioners of highways, as con- 
 of tlie town clerk, appeal to the county judge of the county. 
 (Sec. 8.) \
 
 OF HIGHWAYS. 439 
 
 tained in their order, dated the 28th day of July, 1849, upon 
 your apphcation. 
 
 Dated Norwich, September 1st, 1849. 
 
 Alfred Wheeler, 
 
 Judge of Chenango County. 
 
 FORM OF SUBPOENA TO A WITNESS TO ATTEND ON THE 
 
 APPEAL. 
 
 Chenango County, ss. 
 
 To John Doe, Richard Roe, cfcc, Greeting : — 
 
 You, and each of you, are hereby commanded, in the name 
 of the people of the state of New York, to appear before the 
 undersigned, county judge of Chenango county, at the inn of 
 Anthony Dillon, in the town of Oxford, in said county, on the 
 10th day of September instant, at ten o'clock in the forenoon, to 
 testify respectively in the matter of a certain appeal made from 
 the decision of the commissioners of highways, of the said town 
 of Oxford, to the undersigned, and then and there to be heard 
 on the part and in behalf of Henry Tracy. 
 
 Given under my hand, at Norwich, the 5th day of Septem- 
 ber, 1849. 
 
 Alfred Wheeler, 
 
 Judge of Chenango County. 
 
 form op the decision of the judge, upon the APPEAL. 
 
 Whereas, on the 1st day of September, in the year eighteen 
 hundred and forty nine, Henry Tracy, of the town of Oxford, 
 in the county of Chenango, appealed to the undersigned, county 
 judge of Chenango county, from the order and determination of 
 the commissioners of highways of said town, bearing date the 
 28th day of July, 1849, copies of which said order and appeal 
 are hereto annexed. 
 
 And within sixty days after such order and determination of 
 the said commissioners of highways had been filed in the office 
 of the town clerk of Oxford aforesaid, the undersigned appointed 
 the time and place of the hearing of the said appeal to be on 
 the 10th day of September, 1849, at the inn of Anthony Dillon, 
 in the said town of Oxford, and caused written notice of the 
 said appeal, specifying therein that the said judge would attend 
 at the said time and place to hear the said appeal, to be served
 
 440 OF HIGHWAYS. 
 
 on the said commissioners and upon the said Henry Tracy, the 
 apphcant for said order, at least three days before the time and 
 place of meeting as aforesaid, in the manner prescribed and 
 directed by the statute in such case made and provided. 
 
 And the undersigned attended at the time and place men- 
 tioned in the said notice, to hear the proofs and allegations of 
 the parties, and such proceedings were thereupon had ; and hav- 
 ing heard the said proofs and allegations, the undersigned there- 
 upon adjudged and decided, and doth adjudge and decide, that 
 the order and determination of the commissioners aforesaid be, 
 and the same is hereby reversed [or affirmed.] 
 
 In witness whereof, T have hereunto set my hand, this 10th 
 day of September, 1849. 
 
 Alfred Wheeler, Judge of 
 the County of Chenango. 
 
 If the order appealed from, is for refusing to lay out a road, 
 and the Judge reverses the decision, he should add to the fore- 
 going decision, thus : 
 
 "And I do hereby farther order, adjudge, and determine, that 
 a highway be, and the same is hereby laid out, pursuant to the 
 application of the said Henry Tracy, according to a survey 
 thereof, which I have caused to be made as follows ; [here in- 
 sert the survey of the road.] And I do further order, that the 
 line above mentioned is to the centre Hue of the said highway, 
 v/hich is to be of the width of three rods. 
 
 " in witness whereof, &.c.," [as above.] 
 
 In case the County Judge has his residence in tho town, or 
 has an interest in the lands through which the road is laid out, 
 or in case he is of kin to any of the persons interested in said 
 lands, or in case of his disability for any cause, one of the Judges 
 of the Court of Sessions must, after the expiration of sixty days 
 from the filing of the order or determination of the conmiission- 
 ers, in the oflicc of the town clerk, appoint, in writing, three dis- 
 interested freeholders, who have not been named by the parties 
 interested in the appeal, and who are residents of the county, 
 but not of the town in which the road is located, as referees, to 
 liear and determine all the appeals that may liave been brought 
 within the said sixty days, and must notify them of their ap- 
 pointment, and deliver to them all papers pertaining to the mat-
 
 OF HIGHWAYS. 441 
 
 ters referred to them. Upon receiving notice of their appoint- 
 ment, the referees will possess all the powers, and must discharge 
 all the duties, otherwise possessed and discharged, by the coun- 
 ty judge. Before proceeding to hear the appeal or appeals, they 
 must be sworn by some officer authorized to take affidavits, to 
 be read in courts of record, faithfully to hear and determine 
 the matters referred to them. (Laws, 1847, ch. 455, sec. 8.) 
 "When the referees make any decision, laying out, alterhig, or 
 discontinuing any road, in whole or in part, it is the duty of the 
 commissioners of highways of the town, to carry out such de- 
 cision, and such decision must remain unaltered for the term of 
 four years from the time the same shall have been filed in the 
 office of the town clerk. (Sec. 9.) 
 
 Every referee appointed as above, is entitled to two dollars for 
 every day employed in the hearing and decision of such appeal 
 or appeals, to be paid by the party appealing, where the determi- 
 nation of the commissioners is conJQrmed, but, where it is rever- 
 sed, to be a charge upon the county. (Id.) 
 
 5. Regulation of Public Stages. 
 
 It is provided, that no person owning any carriage running or 
 travelling upon any road in this state, for the conveyance of pas- 
 sengers, shall employ, or continue in employment, any person 
 to drive such carriage, who is addicted to drunkenness, or to the 
 excessive use of spirituous liquor, under the penalty of five dol- 
 lars a day for all the time during which he shall have kept any 
 such driver in his employment, to be sued for by the district 
 attorney of the county in which the owner resides. (1 R. S. 
 873, sec. 2.) 
 
 If any driver, whilst actually employed in driving any such 
 carriage, is guilty of intoxication to such a degree as to endanger 
 the safety of the passengers in the carriage, it is the duty of the 
 owner of the carriage, on receiving written notice of the fact, 
 signed by any one of the passengers, and certified by him on 
 oath, forthwith to discharge the driver from his employment ; 
 and every owner who retains, or has in his service within six 
 months after the receipt of such notice, any driver who shall 
 have been so intoxicated, will forfeit at the rate of five dollars a 
 day for all the time during which he shall have kept any such 
 driver in his employment, after receiving such notice, to be sued 
 for as directed in the preceding section. (Id. sec. 3.)
 
 442 OF HIGHWAYS. 
 
 It is provided, that no person driving any carriage upon any 
 turnpike road or public highway within this state, with or with- 
 out passengers, sliall run his horses, or cause or permit the same 
 to run, upon any occasion, or for any purpose whatever. F<very 
 person so oftending will be guilty of a misdemeanor, and, on 
 conviction, must be fined, not exceeding one hundred dollars, 
 or imprisoned, not exceeding sixty days, at the discretion of the 
 court. (Id. sec. 4.) 
 
 It is not lawful for the driver of any carriage, used for the 
 purpose of conveying passengers for hire, to leave the horses at- 
 tached, thereto, while passengers remain in the carriage, with- 
 out first making the horses fast with a sufficient halter, rope, or 
 chain, or by placing the lines in the hands.of some other per- 
 son, so as to prevent their running. The penalty for oifending 
 against this provision, is twenty dollars, to be recovered by ac- 
 tion, to be commenced within six months, for the use of the 
 poor. (Id. sec. 5.) 
 
 The owners of any carriage, running or travelling upon any 
 turnpike road, or public highway, for the conveyance of passen^ 
 gers, are liable, jointly and severally, to the party injured, in all 
 cases, for all injuries and damages done by any person in the 
 employment of such owner or owners as a driver, while driving 
 such carriage, to any person, or the property of any person, whe- 
 ther the act occasioning the injury or damage be wilful, or ne- 
 gligent, or otherwise, in the same manner as the driver would 
 be liable. (Id. sec. 6.) 
 
 The proprietor or proprietors of the several lines of stages, 
 and the proprietors of the several canal boat lines, and the pro- 
 prietors of the several steam boats, and the several incorporated 
 rail road companies, and the keepers of the several inns and ta- 
 verns within the state, who have any unclaimed trunks, boxes, 
 or baggage, within his, their, or either of their custody, must 
 immediately enter the time the same was left, with a proper 
 description thereof, in a book, to be by them provided and kept 
 for that purpose. In case the name and residence of the owner 
 be ascertained, it is the duty of the person having the property 
 to immediately notify the owner by mail. (I R. S. 874, sec. 9.) 
 
 If no information is obtained as to the owner, it is the duty of 
 the person having possession of the property, to make out a cor- 
 rect written description of all such |)roj)erty as shall have been 
 unclaimed for thirty days, staling the time the same came into
 
 OF HIGHWAYS. 443 
 
 his possession. He must forward the description to the editor 
 of the state paper, whose duty it is, on the first Mondays of 
 July, October, January, and April, in each year, to pubhsh the 
 same, in the state paper, once a week for three weei<s succes- 
 sively. (Id. sec. 10.) 
 
 If the property remains unclaimed for sixty days after the 
 publication, it is the duty of the person or company having pos- 
 session of it, to apply to a Justice of the Peace of the town or 
 city in which the property is retained, in whose presence, and 
 under whose direction, it must be opened and examined, and 
 an inventory taken of it by the Justice. If the name and resi- 
 dence of the owner is ascertained by the examination, it is the 
 duty of the Justice forthwith to direct a notice thereof, to the 
 owner, by mail ; and, if the property remains unclaimed for 
 three months after the examination, it is the further duty of the 
 person or company having possession of it, to apply to a Jus- 
 tice of the Peace as aforesaid ; and if the Justice deems the 
 property of sufficient value, he must cause it to be sold at public 
 auction, giving six days previous notice of the time and place 
 of the sale. From the proceeds of such sale, he must pay the 
 charges and expenses legally incurred in respect to the property, 
 or a rateable proportion thereof, to each claimant, if insufficient 
 for the payment of the whole amount. The Justice is required 
 immediately to pay the balance of the proceeds of the sale, if 
 any, to the overseers of the poor of the town or city, for the use 
 of the poor thereof. The overseers are required to make an en- 
 try of the amount received, and the time of receiving it, upon 
 their official records ; and it will be subject, at any time within 
 seven years, to be reclaimed by, and refunded to, the owner of 
 the property, his heirs or assigns, on satisfactory proof of own- 
 ership. (1 R. S. 875, sec. 11.) 
 
 The person making the entry of unclaimed property, is enti- 
 tled to twelve and a half cents for each trunk, box, bale, pack- 
 age or bundle so entered, and has a lien on the property so en- 
 tered, until payment is made. In case any additional expense 
 is incurred for printing, the lien continues until payment is made 
 for such additional expense. (Id. sec. 12.) 
 
 In case any person neglects or refuses to comply with the fore- 
 going provisions, he forfeits the sum of five dollars for each and 
 every trunk, box, or bundle of baggage so neglected, to the bene- 
 fit of any person who will sue for the same, in his own name
 
 444 OF HIGHWAYS. 
 
 ill an action in any court liaving congnizance thereof. (Id. sec. 
 13.)* 
 
 Not the least of the responsibiUties of stage proprietors are 
 those wliich appertain to them as common carriers ; by which 
 is meant a person whose pubhc employment is the carriage of 
 goods for hire. 
 
 Common carriers are in the nature of iiisurers, and are liable 
 for every loss to property entrusted to their care, excepting those 
 which may arise from the act of God, or the public enemies. (2 
 Steph. N. P. 963, 964. 2 Kent's Com. 597.) 
 
 There is an implied undertaking on the part of the carrier, 
 safely to convey the goods, and on the part of the owner to com- 
 pensate him ; and no special agreement need be proved to ena- 
 ble the owner to maintain an action against the carrier, for a 
 breach of duty. (3 Wend. 161.) 
 
 The carrier's responsibilty commences as soon as there has 
 been a delivery to him, either actual or constructive ; continues 
 so long as the goods remain under his supervision and control ; 
 and ceases when they have arrived at their place of destination, 
 or when the owner, by any act or direction has waived a deliv- 
 ery at such a place. (4 Leigh's N. P. 513.) 
 
 The carrier will be excused from his liability, where the loss 
 arises from the bailor's own negligence, as in packing or putting 
 up his goods ; or in carelessly securing them in any way ; or 
 when he insists upon sending them, although the carrier may 
 not at the time be able to provide a safe conveyance. (11 Pick. 
 R. 41.) 
 
 As a general rule, the owner is not bound to state the value of a 
 package, unless he is asked ; and if the package be very valuable 
 and is lost, the carrier will be liable, although he knew not the 
 contents, unless he made a special acceptance, or the value was 
 fraudulently concealed from him. (8 Pick. R. 182.) 
 
 Common carriers transporting passengers and their baggage, 
 arc liable for the loss of the baggage, althongh no distinct sum 
 is agrf;od upon for conveying it. Rut the baggage must be no- 
 thing more valuable than is ordinarily used in traveling. If, 
 therefore, one were to place a large amount of money in his 
 
 • As Justices' CourtH have jiiriHtliction in actions for penalties grivcn by statute 
 to the ainouat of one hundred doliarB, bucIi HuitH will generally bo brought in these 
 courts.
 
 OF HIGHWAYS. 445 
 
 trunk, together with his clothing, the carrier could only be made 
 liable for the trunk and clothing, and so much of the money as 
 would ordinarily answer for traveling expenses. (2 Wend. Rep. 
 237. 9 Id. 85.) 
 
 Owners of public conveyances sometimes give notice that " all 
 baggage must he at the risk of the owners.''^ Such notice is, 
 however, insufficient to excuse the owner of the conveyance 
 from liability. (19 Wend. R. 234. Id. 251.) 
 
 As to accidents which may happen to passejigers, it may be 
 stated that the carrier of passengers does not assume all of the 
 responsibilities of the carrier of goods, so far as the passengers 
 themselves are concerned ; he does not ivarrant their safety, 
 and is only liable for injuries arising from negligence or want of 
 skill, and not for casualties which could not be foreseen or 
 guarded against. (Chitty on Con. 485. Story on Bailm. 379.) 
 
 It is the duty of a stage proprietor to furnish strong coaches, 
 gentle and well broken horses, sound and strong harness, and 
 careful and expert drivers ; and the proprietor will be liable for 
 any damage to a passenger arising from a defect or omission in 
 any of these particulars. He will be liable for a damage arising 
 from a slight fault or negligence in such preparations, or for the 
 least degree of negligence on the part of the driver. (9 Bing. 
 R. 457.)^
 
 CHAPTER XIX. 
 
 OP justices', and other inferior courts in cities. 
 
 I SHALL treat the subjects of this chapter under the following 
 heads : 
 
 1. Organization of the New York Marine Court. 
 
 2. Jurisdiction of the Marine Conrt. 
 
 3. Fees allowed in Actions aiid Proceedings in the Marine 
 
 Court. 
 
 4. Naturalization of Foreigners. 
 
 5. Pleadings in the Marine Court, and Appeal from a 
 
 Judgment therein. 
 
 6. The Justices^ Courts in the City of New York. 
 
 7. Of Jurors in the City of Neiv York. 
 
 8. Justices^ Courts in the City of Brooklyn. 
 
 9. The Justices'' Court of the City of Albany. 
 
 10. The Justices' Court of the City of Troy. 
 
 11. The Justices' Court of the City of Hudson. 
 
 12. Application of the Code to tlie foregoing subjects. 
 
 1. Organization of the New York Marine Court. 
 
 The Justices of the Marine Court of the city of New York, 
 are authorized and required to hold a court in the said city, to 
 be known by the name of the " Marine Court of the city of New 
 York." (2 R. S. 323, sec. 1.)* 
 
 * This court was ori|Tinally created by the title of the *' Justices' Court in and for 
 the city and county of New York" By ihe ad. creating it, it was provided that 
 the governor should, by and with the advice and consent of tiie council of appoint- 
 ment, from time to time, appoint and commission three proper and discreet persons 
 to bo tlie Justices thereof, who should liold their ofTices during the pleasure of the 
 council, excepting that their commissions should issue once, at least, in every three 
 years. (2 K. L. lHi:j, p. 318, sec. lOr).) 
 
 It was subscqiienliy re-organized by the title it now bears, — " The Marine Court 
 of the City of iNew York," by an act passed March i2Glli, 181D, with the same 
 powers as forineily, with some few exceptions. 
 
 When Ihe noiineil of uppointiiicnt was abolished, it was provided thiit the Justi- 
 ces should bo noininiiled by Ihe governor, and ii])pointed by him with the consent 
 of the Senate, and should iiold their oHiccs for five years. (1 R. S. 1 10, sees. 15, 16.)
 
 OF JUSTICES', AND OTHER INFERIOR COURTS, &c. 447 
 
 The statute provides that the Marine Court shall have two 
 Judges. (Laws 1849, ch. 144.) 
 
 The Judges of the Marine Court are elected by the electors 
 of tlie city and county of New York, once in every four years, 
 at the annual charter election. It is provided that they shall be 
 voted for on the same ballot ; that such ballot shall be separate 
 and distinct from any other ballot voted at the same election : 
 shall be designated on the inside, " For Justices of the Marine 
 Court," and be deposited in a separate box to be designated " Ma- 
 rine Court ;" but that the omission of either such designation or 
 endorsement shall not vitiate any ballot, provided the same be 
 found in a separate box. The votes must be canvassed and 
 certified in the same manner as the votes for register and clerk 
 of the city and county of New York, are canvassed and certi- 
 fied, and a certificate thereof, be filed with the secretary of state. 
 (Id.) 
 
 It is enacted that a clerk of the Marine Court shall be ap- 
 pointed by the supervisors of the city and county of New York, 
 to hold his office for four years from the second Tuesday in 
 May, unless sooner removed for cause. (Id. sec. 4.) 
 
 In case of the death, resignation, or vacancy arising from any 
 other cause, of either of the Judges or the clerk, the board of su- 
 pervisors of the city are required immediately to appoint some 
 suitable person to fill the residue of the term thus vacant. (Id. 
 sec. 3.) 
 
 The Judges and clerk each receive an annual compensation, 
 which is fixed by the common council of the city of New York, 
 and which cannot be increased or diminished during their con- 
 tinuance in office, and which is in lieu of all fees and other per- 
 quisites. The compensation, of the clerk is in full satisfaction 
 of all assistance which it may be necessary for him to have in 
 the discharge of the duties of his office. (Laws 1849, sec. 6.) 
 
 Each of the Judges and clerk are required, on the first day 
 of every month, or within three days thereafter, to account 
 under oath, for all fees and perquisites, if any, of every kind 
 and description, received by him by virtue of his office, directly 
 or indirectly ; and pay the same into tlio treasury of the city of 
 New York ; and upon such return being made, the Judge or 
 Clerk making the same, will be entitled to receive his compen- 
 sation for the period included in such return at the rate fixed. 
 No Judge or clerk can perform any service for which a fee is
 
 448 OF JUSTICES', AND OTHER 
 
 allowed by law, until such fee is paid for the use of the city. 
 (Id. sec, 5.) 
 
 It is provided, that the Marine Court shall be open every day 
 at seasonable hours, except Sundays, the fourth day of July, 
 the twenty-fifth day of November, the twenty-fifth day of De- 
 cember, and the first day of January, in every year. (Laws of 
 1819.) 
 
 The clerk of the court must cause to be entered or registered, 
 in the proper book to be kept for that purpose, a docket or regis- 
 ter of all summonses, warrants, precepts, executions, and pro- 
 cess, which may be issued by the court, and of the returns to 
 all such summonses, warrants, precepts, executions, and pro- 
 cess ; and also proper entries of all acts, orders, dismissions, 
 decrees, judgments, adjournments and proceedings of the said 
 court; and also the substance of the plaintiff's charge or de- 
 mand, and of the defendant's plea. (Id.) 
 
 All applications for process, for the recovery of any debt or 
 demand, to be sued for in the said court, must be made to the 
 clerk of the court, and not otherwise ; and all process to be 
 issued out of the said court, must be tested in the name of the 
 Justices, and be signed by the clerk of the court with his name, 
 and with the words " By the court," and sealed with the seal 
 of the court. (Id. sec. 111.) 
 
 Any constable of the city of New York is empowered to 
 execute process issued out of the Marine Court, in any part of 
 the city ; but no person can be proceeded against by summons 
 to be issued out of the said court, who shall not reside within 
 the said city. (Laws of 1819, sec. 114.) 
 
 Each Judge is required to perform his equal share of the 
 labors and duties of the office, so that at ten o'clock in the 
 morning of each day, (except Sundays, the usual holidays, and 
 the other days upon which the inhabitants of the city may 
 generally refrain from business,) the Judges shall be in attend- 
 ance, who must remain until the calendar for the day causes 
 set down for trial are disposed of, or such time as may be rea- 
 sonable, and one Judge until four o'clock in the afternoon. No 
 Judge while at the rooms of the court, not actually engaged in 
 the discliarge of other duties of his office, can refuse to consider 
 and act upon any application for his official action, which may 
 properly be made to him. (Laws of 1849, sec. 8.) 
 
 Either of tiic Judges may, at any time when the court shall
 
 INFERIOR COURTS IN CITIES. 449 
 
 not be sitting, take the confession of the defendant in any suit 
 or action commenced by warrant issued out of the said court, 
 and enter judgment and grant execution thereon, in the same 
 manner as if the same was done in open court ; and the Judge 
 before whom such proceedings shall be had, must enter, or 
 cause to be entered, in the proper book or books of the court, 
 the substance of the said proceedings, together with a note or 
 memorandum purporting that the same were had out of court ; 
 also, the time when, and the name of the Judge before whom 
 the same were had. (Laws of 1819, sec. 121.) 
 
 The registers and books of entries for the Marine Court, or 
 copies thereof proved, are deemed legal evidence of the acts 
 and proceedings of the court. (Id. sec. 138.) 
 
 The Judges of the Marine Court, jointly and severally, have, 
 exercise, and enjoy, all the powers and privileges of Justices of 
 the Peace, as to keeping the peace in the city and county of 
 New York, (except the right and power of holding Courts of 
 Sessions of the peace ;) and each of the said Judges have the 
 like power to commit offenders and to take recognizance for 
 the appearance of witnesses against offenders, as any other 
 Justice of the Peace in any other county of this state ; and all 
 recognizances taken by the said Judges, any, or either of them, 
 for the appearance of any person in any court, shall, together 
 with the examination and evidence taken before such Judge or 
 Judges, be delivered by him or them, to the court in which the 
 person for whose appearance such recognizance is taken, is to 
 appear. Each of the Judges have also power to take affidavits 
 and depositions to be read and used in the Supreme Court of 
 judicature of this state, according to the rules and practice of 
 the said court, which affidavits have the same force and effect 
 as if taken before any Judge of the said court, or any commis- 
 sioner empowered by law to take such affidavits, and are enti- 
 tled to such fees therefor as are allowed by law. (Sess. Laws 
 of 1819, sec. 139.) 
 
 In case the board of supervisors of the city and county of 
 New York shall, at any time, be satisfied that any judge of the 
 Marine Court has been guilty of corruption or gross misconduct 
 while in office, or habitually neglects to perform his share of the 
 duties of the office, or becomes incapacitated for the proper dis- 
 charge of such duties, the board, by a vote of a majority of its 
 members, are required to suspend such Justice from the exer- 
 
 29
 
 450 OF JUSTICES', AND OTHER 
 
 cise of the duties of his office, and direct that his compensation 
 cease. The board of supervisors must thereupon, without de- 
 lay, present a statement of the causes of its action to the Supe- 
 rior Court of the city of New York, and have a copy tliereof 
 served upon the judge affected thereby. The Superior Court is 
 required to appoint as early a day as may be practicable for 
 hearing the matter, notice of which day must be served upon 
 such judge, and proceed, with all reasonable dispatch, to hear 
 the parties and the testimony they may offer ; and must there- 
 upon make such order conformably to law, equity and good 
 morals — either restoring such judge to the full enjoyment of his 
 office, with all its powers, duties and benefits, or removing him 
 therefrom, as the facts proved may seem to require, assigning 
 the causes for any removal in the order therefor. (Laws, 1849, 
 sec. 10.) 
 
 The judges of the Marine Court have power to suspend the 
 clerk for corruption or gross misconduct while in office, improper 
 behavior to the court, neglect of the duties of his office, or inca- 
 pacity to perform the same, and also to designate a person to act 
 as clerk, until the matter is inquired into and decided. The 
 judges must immediately present a statement of the causes of 
 their action to the Superior Court of the city of New York, and 
 the said court are required to proceed thereupon in the same 
 manner as in relation to a judge under suspension,. If an order 
 is made for the removal of trie clerk, the mayor of the city must 
 designate a person to act as clerk until the vacancy in the office 
 is filled. (Laws 1849, sec. 10.) 
 
 2. Jurisdiction of the Marine Court. 
 
 The jurisdiction of this court divides itself into two branches. 
 1. Its civil — and, 2. Its marine jurisdiction. 
 
 1. Civil Jurisdiction. 
 
 Tlie Marine Court has civil jurisdiction in the following 
 cases : — (Code, sees. 65, 53.) 
 
 1. In an action arising on contract for the recovery of money 
 only, if tlie sum claimed do not exceed one hundred dollars. 
 
 2. In an action for damages for an injury to the person, or to 
 real properly, or for taking, detaining^ or injuring personal pro-
 
 INFERIOR COURTS IN CITIES. 451 
 
 perty, if the damages claimed do not exceed one hundred dol- 
 lars. 
 
 3. An action for a penalty given by statute, not exceeding one 
 hundred dollars. 
 
 4. An action commenced by attachment of property, as pro- 
 vided by statute, if the debt or damages claimed do not exceed 
 one hundred dollars. 
 
 5. An action upon a bond, conditioned for the payment of 
 money, not exceeding one hundred dollars, though the penalty 
 exceed that sum ; the judgment to be given for the sum actually 
 due. Where the payments are to be made by instalments, an 
 action may be brought for each Instalment as it becomes due. 
 
 6. An action upon a sm-ety bond, though the penalty or 
 amount claimed exceed one hundred dollars. 
 
 7. An action on a judgment rendered in a court of a Justice 
 of the Peace, or of a Justices' or other inferior court in a city. 
 
 8. To take and enter judgment on the confession of a defend- 
 ant, where the amount confessed shall not exceed two hundred 
 and fifty dollars. 
 
 9. In an action upon the charter or a by-law of the corpora- 
 tion of the city of New York, where the penalty or forfeiture 
 shall exceed two hundred and fifty dollars. 
 
 The Marine Court has not cognizance of a civil action in the 
 following cases : — (Code, sees. 65, 54.) 
 
 1. In an action in which the people of this state are a party, 
 excepting for penalties not exceeding one hundred dollars. 
 
 2. Nor where the title to real property shall come in question, 
 as provided by sections 55 to 62 of the Code, both inclusive. 
 
 3. Nor of a civil action for an assault, battery, false imprison- 
 ment, libel, slander, malicious prosecution, criminal conversa- 
 tion, or seduction. 
 
 4. Nor of a matter of account, where the sum total of ths ac- 
 counts of both parties, proved to the satisfaction of the court, 
 shall exceed four hundred dollars. 
 
 5. Nor of an action against an executor or administrator as 
 such. 
 
 2. Marine Jurisdiction. 
 
 This extends : (Code, sec. 65.) 
 
 1. To an action between a person belonging to a vessel in the 
 merchant service, and the owner, master, or commander thereof.
 
 452 OF JUSTICES', AND OTHER 
 
 demanding compensation for the performance, or damages for 
 the violation of a contract for services on board such vessel du- 
 ring a voyage performed, in whole or in part, or intended to be 
 performed by such vessel, though the sum demanded exceed 
 one hundred dollars. 
 
 2. In an action by or against any person belonging to, or on 
 board of a vessel in the merchant service, for an assault and 
 battery or false imprisonment, committed on board such vessel 
 upon the high seas, or in a place without the United States, of 
 which the ordinary courts of law of the state have jurisdiction, 
 though the damages demanded, exceed one hundred dollars. 
 But this court has no power to proceed in any case, as a court of 
 admiralty, or maritime jurisdiction. 
 
 It will be perceived that the right to sue for wages earned on 
 shipboard, though founded either on shipping articles, which 
 are never of a higher nature than a simple contract, or on an 
 implied promise, is placed upon the footing of a marine contract ; 
 and that in such a case this court has jurisdiction, whatever may 
 be the amount claimed. 
 
 It will be seen, also, that the Marine Court has jurisdiction of 
 cases of assault and battery and false imprisormient, though the 
 damages demanded exceed one hundred dollars. The assault 
 and battery or false imprisonment mast, however, have been 
 committed on board of a vessel in the merchant service, by or 
 against some person belonging to, or on board such vessel, upon 
 the high seas, or in a place without the United iStates, of which 
 the ordinary courts of law of this state have jurisdiction. 
 
 The question has sometimes arisen how far the Marine Court 
 has jurisdiction over actions of tort between foreigners, connnit- 
 ted on board a foreign vessel. It seems it has jurisdiction in 
 such cases, where it appears that, as between the parties, the 
 voyage is broken up, and the relation of seaman and master has 
 ceased to exist. (1 Cow. 543.) Not so, however, where both 
 the parties, being subjects or citizens of the country to which 
 the vessel belongs, will have an opportimity to seek redress in 
 the courts of their own country. (14 John. 134.) 
 
 3. I'^ccif allowed in actions and proceedings in the Marine 
 
 Court. 
 
 The (ollowiiig fees are all()W(!d in actions and proceedings in 
 this court : (Laws 1849.)
 
 INFERIOR COURTS IN CITIES. 453 
 
 For the first process against defendants, thirty-seven and a 
 half cents ; for every subsequent process, twenty-five cents ; to 
 be paid upon the issuing thereof. 
 
 For entering every action or other proceeding, fifty cents, to 
 be paid previous to the entry of the return of the first process. 
 
 For entering every complaint, demurrer, answer, or reply, ta- 
 king verification, if necessary, and filing same, twenty-five 
 cents, to be paid by the party making the same ; and for each 
 time any pleading may be amended, twelve and a half cents, to 
 be paid without recovery, by the party amending. 
 
 For the first jury process, one dollar, to be paid by the party 
 demanding a jury at the time of the demand, and for each time 
 a new jury may be rendered necessary by adjournment, an ad- 
 ditional fee of twenty-five cents, to be paid without recovery, by 
 the party desiring the adjournment. If either party refuse at 
 any time, to pay the requisite jury fee, they will be deemed 
 thereby, to waive a trial by jury. 
 
 For each adjournment, twenty-five cents, to be paid without 
 recovery by the party desiring the same. 
 
 For taking security, including affidavits of justification, twenty- 
 five cents, to be paid by the party required to give the same. 
 
 For every subpoena, including blank copies, twenty-five cents, 
 to be paid upon the issuing thereof. 
 
 For entering and filing the papers on which any application 
 may be made for an order, or other action by the court, twelve 
 and a half cents to be paid by the party applying. 
 
 For trial fee in every action in which the sum demanded in 
 the first process does not exceed fifty dollars, except marine ac- 
 tions, one dollar, and in every other action or proceeding, inclu- 
 ding all marine actions, two dollars ; provided that no trial fee be 
 charged in any action, in which there is no issue either of law 
 or fact. The trial fee must be paid, before the cause is placed 
 for trial upon any day calendar. If the issue of law be joined, 
 unless the judgment thereon, be fianl, one half of the trial fee, 
 otherwise provided, must be paid, without recovery, as an addi- 
 tional fee. by the party against whom the issue is decided. 
 
 For administering every oath, except oaths administered du- 
 ring the trial of a cause, and verifications of pleadings, twelve 
 and a half cents. 
 
 For final judgment, fifty cents, to be paid with the trial fee.
 
 454 OF JUSICES', AND OTHER 
 
 For every transcript of judgment, to file in any county clerk's 
 office, six cents. 
 
 For every writ of execution, twenty five cents. 
 
 For every commitment, twenty-five cents. 
 
 For taking and entering acknowledgment of satisfaction of 
 judgment, twelve and a half cents. 
 
 For each search, six cents a year, provided that the whole fee 
 for any search shall not exceed twenty-five cents. 
 
 For making and certifying copies of papers and proceedings 
 in said court, or before any Justice thereof, when required, ex- 
 cept returns upon appeals, ten cents for each folio of one hun- 
 dred words. 
 
 It is provided that the fees above specified, shall be received 
 for the use of the city of New York, and that they shall not in- 
 terfere with the payment or recovery of fees allowed by law, to 
 constables, witnesses, jurors and jailers. (Laws 1849.) 
 
 FEES ALLOWED TO CONSTABLES IN THE MARINE COURT. (LaWS 
 
 1813.) 
 
 For serving every summons, nineteen cents. 
 
 For serving every warrant, thirty-seven and a half cents. 
 
 For taking a bail bond, twenty-five cents. 
 
 For returning a summons or warrant, six cents. 
 
 For summoning a jury, fifty cents. 
 
 For taking the defendant into custody on a mittimus, commit- 
 ment, or execution, twelve and a half cents. 
 
 For conveying a person to jail, twelve and a half cents. 
 
 For serving an execution, twenty-five cents for the first two 
 dollars and fifty cents ; and at the rate of six cents for every 
 two dollars and fifty cents more. 
 
 I'or travelling, if the person summoned or arrested is taken 
 above one mile from the place where the court is holden, for 
 every mile, going only, twelve and a half cents. 
 
 For going with the plaintill" or defendant, to procure security, 
 in cases where it is ordered by the court, twenty-five cents. 
 
 For notifying defendant to give security, in cases where it is 
 ordered by the court, where the defendant is not in court, twelve 
 and a half cents. 
 
 I'Vjr notifying ])Iainti[r for trial, twelve and a half cents.
 
 INFERIOR COURTS IN CITIES. 455 
 
 For serving a subpoena on each witness, twelve and a half 
 cents. 
 
 It is provided that the fee to be paid to each witness in ac- 
 tions and proceedings in the Marine Court, or before any Justice 
 thereof, shall be twenty-five cents for each day he actually at- 
 tends as a witness. The party recovering costs, may include 
 therein fees at that rate, for each day every witness subpoenaed 
 or sworn on the trial actually attends, and also twelve and a 
 half cents for actually serving any subpoena on a witness, which 
 attendance and service fees must be proved by affidavit, and 
 taxed by the clerk or Justice. The fee for one day's attend- 
 ance, must be paid or tendered to each Avitness at the time he 
 is served with a subpoena, and any witness so served failing to 
 attend, may be proceeded against in the Marine Court, by the 
 same process, and will be subject to the same liability as is pro- 
 vided for defaulting witnesses in the Court of Common Pleas of 
 the city of New York. 
 
 The party demanding a jury, must pay for jurors' fees, before 
 the jury is sworn, twelve and a hah" cents for each juror empan- 
 nelled, which fees must be included in any costs such party may 
 recover ; and if he refuses to pay such fees, he will be deemed 
 to waive a trial by jury. The Marine Court has power to ap- 
 point and deputize any policeman detailed for duty at that 
 court, to summon and impannel jurors, provided that no police- 
 man receive any compensation therefor, in addition to his official 
 salary. (Laws, 1849, sec. 13.) 
 
 4. Naturalization of Foreigners. 
 
 The Marine Court is declared, by the statute creating it, to be 
 a court of record. (2 R. S. 1813, p. 390, sec. 134.) It has, how- 
 ever, none of the attributes of courts of record ; and its powers 
 and forms of proceeding are all inferior and limited. Yet, it 
 exercises one of the prerogatives of courts of record to a greater 
 extent than any other tribunal in the state, to wit : the naturali- 
 zation of foreigners ; a right conferred by the various acts of 
 congress relating to that subject, upon the courts of record of the 
 various states throughout the union. 
 
 The terms upon which any alien, being a free white person, 
 can be naturalized, are as follows : 
 
 It is required that he declare, on oath, before a state court,
 
 456 OF JUSTICES,' AND OTHER 
 
 being a court of record, with a seal and clerk, and having 
 common law jurisdiction ; or before a court, or district court of 
 the United States ; or before a clerk of either of the said courts ; 
 two years at least before his admission, his intention to be- 
 come a citizen, and to renounce his allegiance to his own so- 
 vereign. 
 
 This declaration need not be previously made, if the alien re- 
 sided here before the 18th of June, 1812, and has since conti- 
 nued to reside here. Such residence must be proved to the sa- 
 tisfaction of the court, by the oath or affirmation of two wit- 
 nesses, citizens of the United States, that he has resided for at 
 least five years immediately preceding the time of such applica- 
 tion within the limits, and under the jurisdiction of the United 
 States. The names of the witnesses, and the place or places 
 where the applicant has resided for at least the five years, must 
 be set forth in the record of the court. (Act of Congress, May 
 24, 1828, ch. 116.) 
 
 If the applicant shall have been a minor, under twenty-one 
 yetxYS of age, and shall have resided in the United States three 
 years next preceding his arrival to majority, he may also be ad- 
 mitted a citizen, without such previous declaration ; provided 
 he has arrived at the age of twenty-one years, and shall have 
 resided five years within the United States, including the three 
 years of his minority, and make the declaration aforesaid, at the 
 time of his admission, and declare, on oath, and prove, to the 
 satisfaction of the court, that, for three years next preceding, it 
 had been his bona fide intention to become a citizen, and in all 
 other respects comply with the laws in regard to naturalization. 
 (Act of Congress, May 26, 1824, ch. 186.) 
 
 In all other cases, the previous declaration is requisite. At 
 the time of his admission, his country must be at peace with the 
 United States, and he must take an oath before one of the courts 
 above mentioned, to support the constitution of the United 
 States, and likewise, on oath, renounce and adjure his native 
 allegiance, lie must, at the time of his admission, satisfy the 
 court, by other proof than his own oath, that he has resided five 
 years, at least, within the United States, and one year, at least, 
 within the state where the court is held ; and, if he shall have 
 arrived after the peace of 1815, his residence must have been 
 continued for five years next preceding his admission, without 
 being, at any time during the said five years, out of the territory
 
 INFERIOR COURTS IN CITIES. 457 
 
 of the United States. He must satisfy the court that, during 
 that time, he has behaved as a man of good moral character, at- 
 tached to the principles of the constitution of the United States, 
 and well disposed to the good order and happiness of the 
 same. He must, at the same time, renounce any title or or- 
 der of nobility, if he has any. (Act of Congress, 1828, ch. 
 106.) 
 
 The children of persons duly naturalized, being minors at 
 that lime, shall, if dwelling in the United States, be deemed ci- 
 tizens. If any alien shall die after his declaration, and before 
 actual admission as a citizen, his widow and children shall be 
 deemed citizens. (2 Kent Com. 65. Act of Congress, March 
 26, 1804, ch. 47.) 
 
 A person thus naturalized, becomes entitled to all the privile- 
 ges and immunities of natural born subjects, except that a resi- 
 dence of seven years is requisite to enable him to hold a seat in 
 congress, and no person except a natural born citizen is eligible to 
 the office of president of the United States. (2 Kent Com. 65.) 
 
 FORM OF DECLARATION OF INTENTION TO BECOME A CITIZEN. 
 
 I, Michael O'Donohue, do declare, on oath, that it is hojiajide 
 my intention to become a citizen of the United States, and to 
 renounce forever, all allegiance and fidelity, to all and any fo- 
 reign prince, potentate, state, and sovereignty whatever ; and 
 particularly to Victoria, Q,ueen of the United Kingdom of Great 
 Britain and Ireland. 
 
 Michael O'Donohue. 
 Sworn in open court, this 1st day 
 of June, 1847, before me, 
 
 Ezra Wetmore, Clerk. 
 
 certificate op clerk. 
 
 I, Ezra Wetmore, clerk of the Marine Court of the city of 
 New York, do certify, that the foregoing is a true copy of the 
 original declaration of intention of Michael O'Donohue, to be- 
 come a citizen of the United States, remaining of record in my 
 office. 
 
 In testimony whereof, I have hereunto subscribed my name, 
 and affixed the seal of the said court, this 1st day of June? 
 1849. 
 
 Ezra Wetmore, Clerk. 
 
 [L. S.]
 
 458 OF JUSTICES,' AND OTHER 
 
 DECLARATION OF INTENTION TO BECOME A CITIZEN, FOR 
 THREE YEARS PAST- 
 
 r, Dennis O'Flaherty, do declare, on oath, that it is bona fide 
 my intention, and has been, for the last three years, to become a 
 citizen of the United States, and to renounce for ever all alle- 
 giance and fidelity to all and every foreign prince, potentate, 
 state, and sovereignty whatever, and particularly to Victoria, 
 Q,ueen of the United Kingdom of Great Britain and Ireland. 
 
 Dennis O'Flaherty. 
 Sworn in open conrt, this 1st day 
 of June, 1849, before me, 
 
 Ezra Wetmore, Clerk of the 
 Marine Court. 
 
 CERTIFICATE OF CITIZENSHIP. 
 
 Be it remembered, that on the 1st day of June, 1849, Michael 
 O'Donohne, late of Dublin, Ireland, at present of the city of New 
 York, appeared in the Marine Court of the city of New York, 
 and applied to the said court to be admitted to become a citi- 
 zen of the United States of America, pursuant to the directions 
 of the several acts of congress in relation thereto. 
 
 And the said Michael O'Donohue having thereupon produced 
 to the court such evidence, made such declaration and renun- 
 ciation, and taken such oath, as are, by the said acts, re- 
 quired : 
 
 Thereupon, it was ordered by the said court, that the said 
 Michael O'Donohue be admitted, and he was accordingly admit- 
 ted, by the said court, to be a citizen of the United States of 
 America. 
 
 In testimony whereof, the seal of the said court is hereunto 
 affixed, this 1st day of June, 1849, and in the year of our inde- 
 pendence the 73d. 
 
 [l. S.J By the Court, 
 
 I'iZRA Wetmore, Clerk. 
 
 5. Pleadings in the Marine Court, and Appeal from a Judg- 
 ment therein. 
 
 The pleadings in this court, may be cither oral or written ;
 
 INFERIOR COURTS IN CITIES. 459 
 
 and its regulations and proceedings are similar to those of a 
 Justices' Court. 
 
 An appeal from the judgment of the Marine Court, must be, 
 to the Court of Common Pleas of the city of New York. (Code, 
 sec. 302.) 
 
 6. The Justicea^ Courts in the City of Neio York. 
 
 The city of New York is divided into six judicial districts, 
 in each of which there is a Justice's Court. (Laws, 1848, ch. 
 153, sec. 1.) 
 
 The first, second, third, and fifth wards of the city constitute 
 the first judicial district ; the fourth, sixth, and fourteenth wards 
 the second judicial district ; the eighth and ninth wards, the 
 third judicial district ; the tenth, fourteenth, and seventeenth 
 wards, the fourth judicial district ; the seventh, eleventh, and 
 thirteenth wards, the fifth judicial district ; and the twelfth, 
 sixteenth, and eighteenth wards, the sixth judicial district. (Id. 
 sec. 2.) 
 
 In each of the foregoing districts, a Justice must be elected, 
 at the annual charter election of the city. The election takes 
 place once in every four years. The Justices enter on their du- 
 ties on the second Tuesday of May, after their election, and 
 hold their respective offices four years. (Sees. 2 and 5.) 
 
 They receive, for their services, such an annual compensa- 
 tion as is fixed by the common council of the city, which com- 
 pensation is in lieu of all fees or other perquisites ; it cannot be 
 increased or diminished during their continuance in office, and 
 they can receive no other fees or perquisites whatever, by virtue 
 of their offices. (Sec. 4.) 
 
 Each of the Justice's Courts, in New York, has a clerk, who is 
 appointed by the common council of the city. The compensa- 
 tion of the clerk is fixed by the common council, and he holds 
 his office for four years. (Sec. 3.) The clerks must make out 
 and sign all process, and cause to be entered, in proper books to 
 be kept for that purpose, a docket or register of the returns of 
 the same, and also, proper entries of the proceedings before the 
 Justices to whom they shall be respectively appointed clerk. 
 (Laws, 1820.) They may administer all oaths necessary for the 
 issuing of any process or landlord's warrants ; but in case of 
 sickness or absence of any clerk, the Justice has power to issue
 
 460 OF JUSTICES,' AND OTHER 
 
 any process to be issued out of his court, and sign the name of 
 the clerk thereto. (Sess. Laws, 1837.) 
 
 The Justice or clerks of these courts are required, on the first 
 day of every month, or within three days thereafter, to account, 
 under oath, for all fees and perquisites, if any, of every kind and 
 description, received by them, by virtue of their offices, directly 
 or indirectly, and pay the same into the treasury of the city of 
 New York ; and no Justice or clerk is permitted to perform any 
 service for which a fee is allowed by law, until such fee is paid 
 for the use of the city. (Laws, 1848, ch. 153, sec. 9.) 
 
 Actions brought before any of the Justices must be com- 
 menced and prosecuted before the Justice either in the district 
 in which the plaintiff or plaintiffs reside, or in the district in 
 which the defendant or defendants, or one of them resides. 
 (Laws 1820.) 
 
 No suit brought, or action commenced in any of the- Justices' 
 Courts, will abate or be discontinued, by reason of the absence 
 of the Justice from the usual place of holding the court, on the 
 return day of any process or upon the day to which any cause 
 or proceeding shall have been adjourned ; but the clerk of the 
 court has power to adjourn such cause to such time as the Jus- 
 tice shall be in attendance upon the court. The adjournment 
 made by the clerk must not, however, at any one time, exceed 
 six days, without the mutual consent of the parties to the suit. 
 (Sess. Laws, 1840.) 
 
 Whenever the Court of Common Pleas orders a new trial in 
 any case, brought before it from any of the Justices' Courts, or 
 from the Marine Court, it is the duty of the Marine Court or of 
 the Justices' Court, as the case may be, to proceed and try the 
 same, upon the issue joined therein ; and for that purpose, such 
 court has power, on the application of cither party to the suit, 
 to issue a summons, directed to the other of the said parties in 
 the cause, to appear on a day and at a place, for such new trial 
 to be specified in the summons, which day must not be less 
 than six days from the service of the summons. (Sess. Laws, 
 1844.) 
 
 At the time ;ind ])lace specified in the summons, the Justices' 
 Court or the Marine Court, as the same may be, nuist proceed 
 to try and determine the issue joined in such suit, in the same 
 manner as if there had becMi no previous trial. (Id.) 
 
 Whenever the Court of Common Pleas orders a new trial in
 
 INFERIOR COURTS IN CITIES. 461 
 
 such cause, it has power to make such order relative to the 
 costs, as it may deem just. (Laws 1844.) 
 
 If the Justice who rendered judgment in any cause, be not in 
 office, his successor may issue or renew an execution. Such 
 execution must state the name of the Justice by whom the 
 judgment was rendered ; be tested in the name of the Justice 
 in office at the time of issuing the same ; be dated on the day 
 when issued ; and be returnable in twenty days therefrom. 
 (Laws 1837.) 
 
 A transcript of the process, pleadings and judgment, had be- 
 fore any of the said Justices ; of the execution issued thereon, 
 if any, and the return thereon, if any, when subscribed and 
 certified by the Justice or his clerk, and a certificate of the clerk 
 of the city and county of New York endorsed thereon, or at- 
 tached thereto, under the seal of the Court of Common Pleas, 
 of the said county, certifying that the person subscribing such 
 transcript, was at the date of such judgment, such Justice or 
 clerk, will be prima facie evidence in any Court of Justice in 
 this state, to prove ihe facts contained in such transcript, and 
 no more. (Id. sec. 5.) 
 
 No process, suit, judgment, execution or proceeding, had be- 
 fore either of the courts held by either of the said Justices, will 
 abate or be discontinued by reason of the death, removal from 
 office, or vacancy in office of any Justice, but the respective 
 successors in office of the said Justices, must proceed to hear, 
 try and determine, and give judgment in and upon the same, 
 and upon all matters and things pending before, and undecided 
 by, their predecessors in office, with the same powers, jurisdic- 
 tion and authority, as their predecessors had. (Id. sec. 6.) 
 
 The Justices' Courts in the city of New York, have jurisdic- 
 tion in the following cases : (Code, sec. 66.) 
 
 1. In actions similar to those in which Justices of the Peace 
 in the country, have jurisdiction. 
 
 2. In an action upon the charter, or a by-law of the corporation 
 of the city of New York, where the penalty or forfeiture does 
 not exceed one hundred dollars. 
 
 An appeal from a judgment of the above courts, lies to the 
 Court of Common Pleas. 
 
 7. Of Juries in the City of New York. 
 The following provision in relation to juries in the city of New
 
 462 OF JUSTICES', AND OTHER 
 
 York, were enacted by the legislature in 1847 : (Vide Sess. Laws, 
 1847, ch. 495.) 
 
 It is not necessary as a qualification, for any juror in the city 
 of New York, that he be actually assessed in the said city, but 
 all persons residing in said city who are qualified to serve as 
 jurors, and not exempted by any of the laws of this state, must 
 be selected as such, whether they have been assessed or not. 
 
 It is enacted that the said jurors shall be selected by a person 
 to be appointed by the supervisors of said city, the Judges of the 
 Superior Court, and the Judges of the Court of Common Pleas 
 of said city and county, who must be known as the commis- 
 sioner of jurors^ and be authorized to appoint one or more as- 
 sistants. 
 
 The commissioner of jurors is required to execute a bond to 
 the mayor, aldermen and commonalty of the city, in the penalty 
 of five thousand dollars, with two sureties, to be approved by 
 the mayor, conditioned for the faithful discharge of his duties. 
 
 The commissioner must proceed to the selection of jurors im- 
 mediately after the first day of May in each year, and the 
 names must be entered in a book alphabetically, designating 
 the ward, occupation and residence of each. After the first 
 day of June in each year, as soon as the list is completed, the 
 commissioner must publish a notice of at least ten days, in the 
 newspapers in which the notices of the corporation of the city 
 of New York are printed, that the petit jury list is ready for ex- 
 amination and correction at his ofiice, and he is to receive evi- 
 dence of exemptions in the same manner as authorized in courts 
 of record. The names of all persons found to be exempt from 
 serving as jurors, must be struck from the list, and the ground 
 of exemption recorded. When the list is Ct)mpleted, a certified 
 copy must be dehvcred to the county clerk, who is required to 
 prepare the ballots and deposit them in the box, in the manner now 
 required by law. The commissioner may, in like manner, at 
 any time return the names of any persons omitted on the list, 
 if no suilicient cause be shown to excuse such persons, and 
 their names must be deposited in the box as jurors for the resi- 
 due of the year that the other jurors arc to serve. 
 
 It is (Miacled that the jurors hereafter to be summoned for the 
 several courts authorized to try issues of fact in New York, 
 sh.ill, on rc(jnisition being made by such courts respectively, 
 directed to the county clerk, be drawn from the petit jury box
 
 INFERIOR COURTS IN CITIES. 463 
 
 in his office, a minute of which drawing must be certified and 
 filed with said clerk, as now required, who must deliver a copy- 
 thereof to the officer authorized to summon such jurors in the 
 manner now required by law. But no fine can be imposed by- 
 such courts on any juror failing to attend, unless he shall have 
 been duly summoned. 
 
 The clerks of the respective courts are required within ten 
 days after the jurors are discharged, to deliver to the clerk of 
 the city and county of New York, a certified list of all the 
 jurors who were returned to such court, and must specify 
 therein : 
 
 1. Those who appeared and served 
 
 2. Those who were discharged on account of their being ex- 
 empt from serving on juries, or on account of their being un- 
 qualified ; 
 
 3. Those who, for any other reason, were excused from serv- 
 ing, and those who made default in appearing and serving. 
 (Laws 1847. 2 R. S. 512, sec. 37.) 
 
 The county clerk is required to return to the box from which 
 they were taken, the names of those jurors who appear from 
 such certified list, to have been excused from serving, or to have 
 made default in their appearance ; he must destroy the ballots 
 containing the names of those who were discharged on account 
 of their being exempt, or on account of their being unqualified ; 
 and he must deposite the ballots containing the names of those 
 who appeared and served, in a separate box, distinct from that 
 from which they were taken. 
 
 The clerks of the several courts in New York, to which jurors 
 are summoned, must, within ten days after the expiration of 
 each term, or, after the discharge of the jurors thus summoned, 
 make a return to the commissioner of all jurors fined in their 
 respective courts, setting forth the date when fined, the amount 
 of each fine, and the residence of each juror. 
 
 The commissioner is required to notify each of the jurors, by 
 written or printed notice, of the fine imposed upon him, and re- 
 quiring the payment thereof, or to appear before him on a day 
 to be named in the notice, to show cause, if any he have, for 
 remitting the same.
 
 464 OF JUSTICES', AND OTHER 
 
 FORM OF NOTICE. 
 
 To Mr. John Doe :— 
 
 This is to inform you that the Court has imposed 
 
 upon you the fine of for refusal to serve therein as a juror 
 
 on the 7th day of May last, pursuant to the command of said 
 court ; and that you are required to pay the said fine, or to ap- 
 pear before me on the 10th day of June instant, at 11 o'clock in 
 the forenoon, to show cause, if any you may have, for remitting 
 the same. 
 
 Dated June 5th, 1849. David Boyd, 
 
 Commissioner of Jurors. 
 
 The commissioner, upon receiving a legal excuse, must enter 
 an order remitting the whole fine, or a part of it. 
 
 ORDER OF COMMISSIONER. 
 
 In the matter of John Doe, ) 
 a defaulting juror. S 
 
 Whereas, on the 5th day of June instant, I caused a notice to 
 be served upon John Doe, informing him that, &c. \liere recite 
 the notice.'] And whereas, the said John Doe, on this day, at 
 the hour aforesaid, came before me. and rendered the following 
 legal excuse for his said default, to wit : \Jiere state the excuse ;] 
 It is therefore ordered and adjudged that the said fine [or " that 
 
 the sum of , being one-third part of said fine"] be, and the 
 
 same is, hereby remitted. 
 
 Dated June 10th, 1849. David Boyd, 
 
 Commissioner of Jurors. 
 
 At the expiration of ten days from the day appointed for the 
 hearing of the excuses of such jurors, the commissioner must 
 issue a warrant, directed to the sheriff of the city and county of 
 New York, commanding him to collect of the several persons 
 named in a schedule to be annexed to such warrant the several 
 sums allixed to tiieir names respectively in such schedule, and 
 pay over the same to the treasurer of the county. 
 
 The schedule must contain the names of the jurors fined? 
 their respective places of residence, and the amount of fines im- 
 posed on each.
 
 INFERIOR COURTS IN CITIES. 
 
 FORM OF "WARRANT. 
 
 465 
 
 City and County of New York, ss. 
 
 To the Sheriff of said City and County, Greeting : 
 
 "Whereas, the persons named in the schedule hereunto an- 
 nexed were severally fined by the Court, on the 7th day 
 
 of May, 1849, as defaulting jurors, and I caused a written no- 
 tice of such fine, requiring the payment thereof, or an appear- 
 ance before me on the 10th day of June instant, to show cause, 
 if any they might have, why the same ought to be remitted, to 
 be served upon each of said defaulting jurors according to law. 
 And whereas, none of the said jurors either paid the said fine 
 or appeared before me to show cause pursuant to the notice 
 aforesaid [or whereas, the said jurors, each for himself, appeared 
 before me, pursuant to the notice aforesaid ; but each and every 
 of them failed to render any legal excuse for their said de- 
 fault.] Now, therefore, you are hereby commanded, in the name 
 of the people of the state of New York, to collect of the several 
 persons named in the schedule hereunto annexed the several 
 sums affixed to their names respectively in such schedule, by 
 levy and sale of the goods and chattels of such persons, and 
 pay over the same to the treasurer of your county. And make 
 return within thirty days from the receipt hereof, accordino- to 
 law. 
 
 Given under my hand this 21st day of June, 1849. 
 
 David Boyd, 
 
 Commissioners of Jurors. 
 
 The return of the warrant may be enforced in the Supreme 
 Court in the same manner as the return of civil process ; and it 
 may be renewed, in like manner, in cases where fines have not 
 been paid or collected. 
 
 Each person applied to by the commissioner or his assistants 
 for information as to the liability of persons to perform jury duty 
 in the city, must communicate correct information ; and in case 
 of a refusal to give such information as they may possess on the 
 subject, or give false information, they will forfeit the sum of 
 fifty dollars, to be prosecuted by the commissioner in the name 
 of the mayor, aldermen, and commonalty of the city, the money 
 to be paid into the treasury of the city. 
 
 The grand or petit jurors summoned to attend any court in 
 
 30
 
 466 OF JUSTICES', AND OTHER 
 
 the city, by written or printed notice left at their respective 
 places of residence, and not appearing before snch court pursu- 
 ant to the summons, must be ordered by the court to show cause 
 before tlie conmiissioner, on the first Monday succeeding the ex- 
 piration of tlie term of the court. Tlie jurors must be sum- 
 moned to appear before the commissioner, and the same pro- 
 ceedings must be had thereon by the commissioner as were hith- 
 erto had by the courts in relation to defaulting jurors. 
 
 After the deposit of the ballots, the several courts in the city 
 may order as many jurors to be summoned for their respective 
 courts, as in their judgment may be necessary. 
 
 It is provided that commandants, or other officers of uniformed 
 military companies in New York, shall not grant certificates of 
 membership to any person enlisting in their respective compa- 
 nies, unless such members are uniformed and equipped accord- 
 ing to law, and intend, in good faith, to perform all the service 
 required by law therein ; and such commandants are required 
 to report to the commissioner of jurors whenever any of the 
 members of their respective companies have been expelled, or 
 cease or neglect to perform duty therein, or become liable to 
 serve as jurors ; and such commandants or other officers are 
 permitted in no instance to grant certificates to honorary mem- 
 bers, with the view to evade the performance of jury duty. The 
 commandant or other officers of uniform companies ofl'ending 
 against any of the foregoing provisions, will forfeit the sum of 
 fifty dollars, to be prosecuted by the commissioner in the name of 
 the mayor, aldermen and commonalty of the city, the money to 
 be paid into the treasury of the cit}^ 
 
 The commissioner has authority to administer oaths or affirma- 
 tions in any matter relating to his duties, and he is required to 
 keep a record of all proceedings had before him, and is entitled 
 to the same fees allowed to clerks of courts of record, for orders 
 or copies thereof, for the benefit of the city and county of New 
 York ; and ihc supervisois of tlie said city and county are re- 
 quired to allow the connnissioner, out of such fees and the fines 
 which may bo collected from jmors, such reasonable compensa- 
 tion as they shall dccni just for the duties performed by him; 
 and the residue of the said money collected from jurors' fines 
 must be paid ovtjr and ap[)licd, as now ])i-ovided by law. 
 
 Tlic supervisors ol" the city are rcqniicd to jiiovide for the 
 payment for the Ijooks, stationery, and printing of notices ne-
 
 INFERIOR COURTS IN CITIES. 4G7 
 
 cessary to carry into effect the provisions of this act ; and they 
 are also required to provide a suitable room and accommoda- 
 tions for the commissioner's office. 
 
 It is provided that no fireman of the city shall be exempted 
 from jury duty, unless he actually performs all the duty of a 
 fireman in his company ; and to entitle him to such exemption, 
 he must produce a certificate of the foreman, or other chief offi- 
 cer of his company, that he is a faithful and acting member 
 thereof. This provision, however, is not to affect those who are 
 exempt from serving as jurors by reason of having served as 
 firemen for the period required by law. 
 
 8. Justices' Courts in the City of Brooklyn. 
 
 The Common Council of the city of Brooklyn have authority, 
 from time to time, to divide the city into two or more districts. 
 In each of these districts there must be elected, every four years, 
 at the charter election, by the electors of the city, a Justice of 
 the Peace, to hold his office for the term of four years, from the 
 first day of May next after. (Laws 1849, ch. 12.5, sec. 35.) 
 
 It is enacted that these Justices shall be deemed Justices of the 
 Peace of the county of Kings. They have cognizance of sum- 
 mary proceedings to recover the possession of land ; and in ex- 
 ercising civil jurisdiction, they are entitled to receive the same 
 fees, have the same powers, and are subject to the same general 
 laws of the state, in relation to civil causes before Justices, as 
 Justices of the Peace in towns. They have also cognizance of 
 actions upon the charter or by-laws of the corporation of their 
 city, where the penalty or forfeiture does not exceed one hun- 
 dred dollars. (Code, sec. 67.) 
 
 Appeals from their judgments may be made to the City Court 
 of Brooklyn in the same manner as appeals from Justices' judg- 
 ments in towns are made to county courts. (Laws 1849, ch. 
 135, sec. 36.) 
 
 In case the office of Justice of the Peace of the city becomes 
 vacant before the expiration of the regular term for which he 
 was elected, the vacancy may be filled by appointment by the 
 Common Council of the city, until it is supplied at the next 
 charter election, when it must be filled by election for the resi- 
 due of the unexpired term. (Id. sec. 37.) 
 
 All acts and parts of acts which relate to the organization of
 
 468 OF JUSTICES', AND OTHER 
 
 the municipal court of Brooklyn, the proceedings therein, and 
 the jurisdiction and powers of the Justices thereof, are repealed. 
 (Id. sec. 38.) 
 
 9. The Justices' Court of the City of Albany. 
 
 It is provided that there shall be elected, every four years, in 
 the city of Albany, at the election of the mayor, charter and 
 ward officers, held on the second Tuesday of April, five Justices 
 of the Peace, to hold their offices for four years, and until their 
 successors are duly chosen and qualified. (Laws 1848, ch. 70, 
 sec. 1.) 
 
 Notices of the election of the Justices must be given in the 
 manner as to the other officers elected at the same time. The 
 inspectors holding the election are required, in addition to the 
 other ballot boxes, to provide one other ballot box, which must 
 be distinctly marked " Justices of the Peace." The ballots for 
 Justices of the Peace must be distinct from those for any other 
 officers to be chosen at such election, and be distinctly endorsed 
 " Justices of the Peace." The votes given for such officers must 
 be canvassed, and the result certified and returned by the in- 
 spectors, in the same manner as for the other officers elected at 
 such elections. The clerk of the Common Council of the city 
 is required to deliver the returns to the Common Council at its 
 first meeting after the election ; and a meeting of the Common 
 Council for that purpose must be held previous to the first Tues- 
 day in May following the election. The Common Council must 
 thereupon proceed to canvass the returns, and determine who 
 has been elected Justices of the Peace, and cause a written cer- 
 tificate of their determination, signed by a majority of the mem- 
 bers present, to be filed in the office of the clerk, and the deter- 
 mination of the Common Council in the premises will be final 
 and conclusive. (Id. sec. 2.) 
 
 The Common Council are required, after the election, and 
 canvass and determination of the result, and before the first 
 Tuesday in May following the election, to select and designate 
 three of the persons so elected, to be Justices of the Justices' 
 Court of the city of Albany. The persons so selected and 
 designated, must ontor upf)ii l1io discharge of the duties of their 
 office on the first Tuesday in May, immediately after the elec-
 
 INFERIOR COURTS IN CITIES. 469 
 
 tion, and hold their office for four years, and until a successor 
 is duly chosen and qualified. (Id. sec. 3.) 
 
 The powers and duties of these Justices were created and are 
 defined by an act passed February 16th, 18'21, and by several 
 acts amendatory of the same, since passed.* (Id.) 
 
 The Revised Statutes declare that the several provisions rela- 
 ting to Justices of the Peace in the country, so far as the same 
 may be applicable, shall apply to this court, except in those 
 cases where repugnant provisions exist in the act organizing it, 
 or in acts relating thereto. (2 R. S. 362, sec. 237.) 
 
 The analogy of its powers and duties to those of Justices of 
 the Peace in towns, is explicitly declared by an act passed in 
 1845. (Laws of 1845, ch. 207.) It has also cognizance of 
 actions upon the charter or by-laws of the corporation of the 
 city, where the penalty or forfeiture does not exceed one hun- 
 dred dollars. (Code, sec. 67.) 
 
 On the return of any civil process, or on the day to which 
 
 * The act creating the Justices' Court of the city of Albany, passed February 
 16, 1821, enacts that the Governor shall appoint and commissiou, by and with the 
 advice and consent of the council of appointment, three proper and discreet persons, 
 to be called and known by the name of the Justices of " The Justices' Court, in 
 and for the city of Albany," to hold their offices for three years. 
 
 The same act authorizes them to hold a court at the capitol in the city of Al- 
 bany, or at such other proper and convenient place in the city, as the common 
 council may at any time direct and appoint. (Sec. 3.) 
 
 The fifth section provided, that no judgment should be given, or any rule or 
 order made, in any cause in the said court, to be held before the said Justices, nor 
 any conviction be had upon any statute or law, unless two of the same Justices 
 thereby authorized to hold such court were present ; and if only one of thera 
 should attend on any court day, he should adjourn the said court to the next court 
 day ; and if on any court day, neither of them should attend, then the clerk of the 
 same court, should and might adjourn the court to the next court day : provided 
 Hevertheless, that it should and might be lawful for any one of the said Justices to 
 receive the confession of the defendant or defendants, of the action of the plaintiff, 
 and of the debt and damages, or sum of money due to the plaintiff, and to give 
 judgment and issue execution thereupon, in like manner as if an}' two of them 
 were present ; and further, that in case of sickness or death of any two of the said 
 Justices, then and in that case, the survivor should have power to hold the court, 
 to hear, try and determine the causes, in the same manner as if two of the said 
 Justices were present. 
 
 It further declares it to be a court of record, and confers upon it exclusive juris- 
 diction in the city of Albany, to hear, try and determine, all actions which were 
 then cognizable before a single Justice of the Peace, in the said city, and to pro- 
 ceed in like manner, except as otherwise provided.
 
 470 OF JUSTICES', AND OTHER 
 
 any cause is adjourned, if only one of the parties in any suit 
 appears, one Justice may try and render final judgment, in the 
 same manner as if two or more of the Justices were present. 
 (Laws of 1844, ch. 347, sec. 1.) 
 
 The court has authority for reasonable cause, to suspend for 
 a limited time, or totally exclude, any person from appearing or 
 advocating as attorney or counsel, for any other person, in any 
 cause or proceeding pending in the court ; but the reason for 
 such suspension or exclusion, must be entered at length in the 
 book of records kept by the court. (Id. sec. 2.) 
 
 The Justices and Clerk of the court, have authority to exact 
 from all non-residents of the county of Albany a deposit suffi- 
 cient to secure the payment of all legal fees that will be likely 
 to accrue before any suit is commenced, or process granted. 
 (Sec. 3.) 
 
 The Justices of this court have the like authority to remove 
 any constable elected in any of the wards of the city of Albany 
 for the like causes, and the like manner that any three Justices 
 of any town have, to remove any constable in any town ; the 
 said Justices filing the instrument of removal in the office of the 
 county clerk, in the city of Albany. (Sec. 4.) 
 
 In case there is any vacancy in the office of any constable to 
 be elected by the qualified voters in either of the wards of the 
 city of Albany, for the term of two weeks or more, the Justices 
 of tiie court may supply the vacancy, in the same manner that 
 any three Justices may supply vacancies in certain town offices. 
 (Sec. 5.) 
 
 Any vacancy which may happen, the office of Justice must 
 be filled by the Common Council of the city. It is provided that 
 the person appointed to fill the same shall hold his office until 
 the first Tuesday in May, next ensuing. If the vacancy shalj 
 have been filled during the first three years of the official term 
 of the former incumbent, an election must be had at the next 
 charter election to fill such office. It is provided that the per- 
 son then elected shall liold his office until the expiration of the 
 regular official Uwrn of four years, for which tlie person last be- 
 fore elected shall liave been chosen, and until a successor is 
 duly chosen and (jualified. (Laws 1848, ch. 70, sec. 4.) 
 
 It is provided tli;it the Justices of this court shall be paid a 
 salary of not less llian eight Innidred dollars, nor more than 
 one thousand dollars a year, each, in lieu of all fees and perqui-
 
 INFERIOR COURTS IN CITIES. 471 
 
 sites whatsoever, to be fixed by the Common Council from time 
 to time, as they may deem best, but which cannot be increased 
 or diminished, during the official term of any incumbent, so as 
 to affect his compensation during that term. (Id. sec. 5.) 
 
 It is enacted that one of the Justices of the Albany Justices' 
 Court, shall act as clerk of said court. It is the duty of the 
 clerk, on the first Monday of each month, to report to the cham- 
 berlain of the city of Albany, an account of the amount of costs 
 so received by him, during the preceding month, and pay the 
 same to the chamberlain. The report must be accompanied by 
 his affidavit, that the report is correct. (Id. sec. 6.) 
 
 10. The Justices' Court of the City of Troy. 
 
 It was provided, by an act passed February 28th, 1848, that 
 there should be elected at the next charter election to be held in 
 the city of Troy, on the first Tuesday of March following, in the 
 same manner, as the general assessor of said city is elected, three 
 Justices and one clerk of the Justices' Court, in and for the city 
 of Troy. (Laws 1848, ch. 56, sec. 1.) 
 
 It was further provided that one of the said Justices should 
 hold his office for one year, one for two years, and one for three 
 years, from and after the second Tuesday of March, 1848 ; and 
 the Common Council of the city were required on that day to 
 designate, by lot, which of said Justices should hold his office 
 for one year, which for two, and which for three years. The 
 clerk was to hold his office for three years. (Sec. 2.) 
 
 It was enacted that there should be elected at each annual 
 charter election thereafter, one Justice, to hold his office for three 
 years, and every third year thereafter, one clerk of said court. 
 (Id.) 
 
 In case of a vacancy happening in the office of Justice or 
 clerk, the Common Council of the city are required to appoint a 
 successor, to hold his office until the second Tuesday of March 
 next, after the appointment. If the vacancy happen in the office 
 of a Justice, whose term of office would not expire on the second 
 Tuesday of March, there must be elected at the annual charter 
 election next after such vacancy, a Justice to fill the vacancy 
 from and after the second Tuesday of March following, for the 
 residue of the unexpired term, and if in the office of clerk, a suc- 
 cessor must be elected for the term of three years. Whenever
 
 472 OF JUSTICES', AND OTHER 
 
 there is an election to fill a vacancy, otherwise than by the ex- 
 piration of the term of office, the ballot must designate the per- 
 son intended to fill the office for the unexpired term. (Sec. 3.) 
 
 The Justices so elected, possess all the power and authority in 
 all respects, hitherto vested in the Justices of the said Justices' 
 Court. They are severally Justices of the Peace of the county 
 of Rensselaer, and have full power and authority to hear, try, 
 and determine all cases lawfully arising under the laws and or- 
 dinances of the Common Council of the city of Troy. They are 
 commissioners of deeds for the city, by virtue of their offices. 
 Their fees, and the fees of their clerk are the same as formerly. 
 
 The jurisdiction of this court is similar to that of courts of 
 Justices of the Peace in the country.* (Laws 1845, ch. 207.) 
 
 It has, also, jurisdiction of actions upon the charter, or by 
 laws of the corporation of the city, where the penalty or forfeit- 
 ure does not exceed one hundred dollars. (Code, sec. 67.) 
 
 It is declared to be a court of record. (Laws 1844, ch. 198.) 
 Like the New York Marine Court, however, it has no features in 
 common with courts of record, unless it be the privilege of grant- 
 ing certificates of naturalization. 
 
 All fees and costs due to this court, may be sued for and re- 
 
 * An act creating this court, was passed May 5th, 1834, authorizing and re- 
 quiring the governor, by and with the consent of the senate, from time to time, to 
 appoint and commi-ssion three persons, to be called and known by the name of " the 
 Justices of the Justices' Court, in and for the city of Troy," to hold their offices for 
 four years. 
 
 Section 5th provides that except as is thereinafter excepted, no judgment shall 
 be given or rendered, nor any rule or order made, in any cause in the said court, be- 
 fore the said Justices, nor any conviction had upon any statute or law, unless two 
 of the Justices authorized to hold such court, be present ; and if only one of them 
 shall attend on any court day, he shall adjourn the said court to the next court 
 day ; and if on any court day, neither of said Justices shall attend, then the clerk of 
 the court shall and may adjourn the court to the next court day. I!iit it shall aad 
 may be lawful, for any one of the said Justices to receive the confession of the de- 
 fendant or defendants, of the action of the plaintilF, and of the debt and damages 
 or sum of money duo to the plaiutitF, and to give judgment, and issue execution 
 thereupon in like manner aa if any (wo of the said Justices were present. In 
 case of the sickness or death, or temporary absence from the city, of any two of 
 the naid Justiccfl, then, and in either case, one of the said Justices shall liave 
 iiower to Iiold the said court, and to hear, try, and determine the causes in the same 
 manner, uh if two of the said Justices were present. And if eithcrof the said Justices 
 shall 1)0 of the degree of counsellor at law in the .Sui)remo Court, any t^ucli Justice 
 shall have power to hold said court, and perform all the duties appertaining thereto, 
 in the same manner as if two of the said Justices were present.
 
 INFERIOR COURTS IN CITIES. 473 
 
 covered in the name of the clerk. No suit for such costs and 
 fees will be abated by reason of any vacancy or change in the 
 office of the clerk after the suit shall have been commenced ; 
 but it may be continued and carried on to judgment, and execu- 
 tion may be issued on it, in the name of the clerk in whose 
 name the suit was commenced. (Laws 1844, ch. 198, sec. 3.) 
 
 11. The Justices' Court of the City of Hudson, 
 
 It was provided by an act passed February 27th, 1840, that 
 there should be elected at the next charter election, to be held on 
 the first Tuesday of April following, in the same manner as the 
 mayor of the city is elected, three Justices of the Justices' Court 
 in the city of Hudson. (Laws 1849, ch. 53, sec. 1.) 
 
 It is further provided that one of the Justices so elected, shall 
 hold his office for one year, one for two years, and one for three 
 years ; the time to be reckoned from the second Tuesday of 
 April, 1849. The Common Council are required on that day, to 
 designate by lot, which of the Justices shall hold his office for 
 one year, which for two years, and which for three years ; and 
 there must be elected at each subsequent charter election, one 
 Justice, to hold his office for three years. (Id. sec. 2.) 
 
 In cases of a vacancy happening in the office of Justice, the 
 Common Council of the city are required to appoint a successor, 
 to hold his office until the second Tuesday of April next, after 
 his appointment. If the vacancy happen in the office of a Jus- 
 tice whose term of office would not expire on the second Tues- 
 day of April, there must be elected at the annual charter election 
 next after the vacancy, a Justice to fill the vacancy from the 
 second Tuesday of April following for the residue of the unex- 
 pired term. Whenever there is an election to fill a vacancy 
 otherwise than by the expiration of the term of office, the ballot 
 must designate the person intended to fill the office for the un- 
 expired term. (Id. sec. 3.) 
 
 The Justices are required to appoint a clerk of the court, to 
 hold his office during the pleasure of a majority of the Justices. 
 (Id. sec. 4.) 
 
 The Justices so elected, possess all the power and authority 
 in all respects hitherto vested in the Justices of the said Justices' 
 Courts. They are severally Justices of the Peace of the county 
 of Columbia, and have full power and authority to hear, try
 
 474 OF JUSTICES', AND OTHER INFERIOR COURTS, &c. 
 
 and determine, all cases lawfully arising under the laws and 
 ordinances of the city of Hudson. Their fees, and the fees of 
 their clerk, are also the same.* 
 
 The jurisdiction given to Justices' Courts in towns, is declared 
 to extend to this court. (Laws of 1845, ch. 207, sec, 1.) It 
 has also cognizance of actions upon the charter or by-laws of 
 the corporation of the city, where the penalty or forfeiture does 
 not exceed one hundred dollars. (Code, sec. 67.) 
 
 12. Application of the Code to the foregoing subjects. 
 
 The provisions of the Code in reference to Courts of Justices 
 of the Peace, relating to forms of action, to pleadings, to the 
 times of commencing actions, to the rules of evidence, to filing 
 and docketing transcripts of judgments, to their effect, and the 
 mode of enforcing them, and to proceedings where title to real 
 property comes in question, apply to the courts embraced in this 
 chapter ; except that after the discontinuance of the action in 
 the inferior court, upon an answer of title, the new action may 
 be brought either in the Supreme Court, or in any other court 
 having jurisdiction thereof, and except also, that in the city and 
 county of New York a judgment, the transcript whereof is 
 docketed in the office of the clerk of that county, has the same 
 effect as a lien, and is enforced in the same manner as a judg- 
 ment of the Court of Common Pleas, for the city and county of 
 New York. (Code, sec. 68.) 
 
 * The act creating this court, was passed April 16, 1822. It provided that 
 three proper and discreet persons, to be called and known as the Justices of the 
 Justices' Court in the city of Hudson, should be commissioned respectively, as 
 Justices of the Peace were commissioned, and should hold their offices for the same 
 term of time. (Laws of 1822, p. 22G, sec. 1.)
 
 PART II. 
 
 OUTLINES OF THE POWERS AND DUTIES OF COUNTY AND 
 TOWN OFFICERS. 
 
 CHAPTER XX. 
 
 OF COUNTY AND TOWN OFFICERS. 
 
 The subjects of this chapter, are the following : — 
 
 1. Sheriff. 
 
 2. County Judge. 
 
 3. County Clerk. 
 
 4. Surrogate. 
 
 5. District Attorney. 
 
 6. County Treasurer. 
 
 7. Coroners. 
 
 8. Superintendents of the Poor. 
 
 9. Commissioners of Loans. 
 
 10. Notaries Public. 
 
 11. Sealers of Weights and Measures. 
 
 12. Supervisor. 
 
 13. Town Clerk. 
 
 14. Assessors. 
 
 15. Collector. 
 
 16. Constables, 
 
 17. Commissioiiers of Highways. 
 
 18. Overseers of Highioays. 
 
 19. Overseers of the Poor. 
 
 20. Town Superintendent of Comm,on Schools. 
 
 21. Pound' Masters. 
 
 22. Toivn Auditors. 
 
 23. Com^missioners of Excise. 
 
 24. Fence Viewers.
 
 476 OF COUNTY AND TOWN OFFICERS. 
 
 25. Compensation of County and Toimi Officers. 
 
 26. County Charges. 
 
 27. Town Charges. 
 
 1. Sheriff. 
 
 The constitution of this state provides, that sheriffs shall be 
 elected by the people of their respective counties, once in every 
 three years, and as often as vacancies shall happen. (Cons., 
 art. 10, sec. 1.) 
 
 A sheriff can hold no other office, and he is ineligible for the 
 next three years after the termination of his office. (Id.) 
 
 The sheriff is required, within twenty days after he receives 
 notice of his election, to execute a joint and several bond, with 
 two or more sureties, who must be freeholders, in the penal 
 sum of ten thousand dollars, and in the county of New York, 
 of twenty thousand dollars, conditioned for the faithful per- 
 formance of his duties. (1 R. S. 433, 434.) 
 
 FORM OP SHERIFFS BOND. 
 
 Know all men by these presents, that we, William Cooke, 
 Oliver Ely and Hazard Lewis, of the town of Chenango, in the 
 county of Broome, are held and firmly bound unto the people 
 of the state of New York, in the penal sum of ten thousand 
 dollars to be paid to the said people ; for which payment well 
 and truly to be made, we bind ourselves, our, and each of our 
 heirs, executors and administrators, jointly and severally, firmly 
 
 by these presents. Sealed with our seals, and dated the 
 
 day of , 1849. 
 
 The condition of this obligation is such, that whereas, the 
 above boundcn William Cooke has been elected to tlic office of 
 sheriff of the county of Broome aforesaid, at the general elec- 
 tion, [or, " at a special election,"] held therein, on the day 
 
 of : Now, therefore, if the said William Coolce shall 
 
 well and faithfully, in all things, perform the duties, and exe- 
 cute the office of sheriff of the said county of Broome, during 
 his contiimancc in the said office by virtue of tlie said election,
 
 OF COUNTY AND TOWN OFFICERS. 477 
 
 without fraud, deceit, or oppression, then this obhgation to be 
 void, otherwise to remain in full force. 
 
 William Cooke, [l. s.] 
 Oliver Ely, [l. s.] 
 Hazard Lewis, [l. e.] 
 Executed in the presence of, and the 
 sureties approved by, 
 
 John More, Clerk of the 
 County of Broome. 
 
 The bond must be filed in the clerk's office of the county 
 for which the sheriff" executing it has been elected ; and the 
 clerk must, at the time of filing the same, administer to each of 
 the sureties named therein, an oath, that he is a freeholder with- 
 in this state, and worth, if in the city and county of New York, 
 the sum of twenty thousand dollars, and if in any other coun- 
 ty, such sum as shall be proportionate to the number of sureties 
 in such bond, and to the amount of the bond required in such 
 county, over and above all debts whatever, owing by him. The 
 oath must be endorsed on the bond, and subscribed by each of 
 the sureties in the presence of the clerk, who must, notwith- 
 standing, judge for himself of, and determine, the competency 
 of the sureties. (1 R. S. 434, sec, 101.) 
 
 OATH OF sheriff's SURETY TO BE ENDORSED ON THE BOND. 
 
 Broome County, 
 
 Town of Chenango, 
 
 Oliver Ely, one of the sureties named in the within bond, be- 
 ing duly sworn, says, that he is a freeholder within the state of 
 New York, and worth the sum of ten thousand dollars, over and 
 above all debts whatever, owing by him. 
 
 Oliver Ely. 
 
 Subscribed a nd sworn, this day 
 
 of 1849, before me, 
 
 John More, Clerk of the 
 County of Broome. 
 
 The constitution declares, that the sheriff may be required by 
 law to renew his security from time to time ; and that in default 
 of giving such new security, his office shall be deemed vacant. 
 (Cons. art. 10, sec. 1.)
 
 47S OF COUNTY AND TOWN OFFICERS. 
 
 The Revised Statues make it the duty of every sheriff within 
 twenty days after the first Monday in January of each year, 
 subsequent to that in which he shaU have entered on the duties 
 of his office, to renew the security required to be given by him 
 before entering on the duties of his ofiice. The renewed secu- 
 rity must be in the same amount, and be given in the same 
 manner, and be subject, in all respects, to the same regulations 
 as the original security. (I R. S. 434, sec. 102.) 
 
 The sheriff is required, as soon as may be, after he takes up- 
 on himself the execution of his office, to appoint some proper 
 person under sheriff of the same county, to hold during the plea- 
 sure of the sheriff; and as often as a vacancy shall occur in the 
 office of the under sheriff, or he become incapable of executing the 
 same, another must, in like manner be appointed in his place. 
 (Sec. 103.) 
 
 Whenever a vacancy occurs in the ofiice of sheriff of any 
 county, the under sheriff of such county must, in all things, ex- 
 ecute the office of sheriff of the county, until a sherift' is elected 
 or appointed, and duly qualified ; and any default or misfea- 
 sance in office, of such under sheriff', in the meantime, as well 
 as before, will be deemed a breach of the condition of the bond, 
 given by the sheriff who appointed him, and also a breach of 
 the condition of the bond executed by such under sheriff, to the 
 sheriff by whom he was appointed. (Sec. 104.) 
 
 Every sheriff may appoint such and so many deputies, as he 
 may think proper ; and persons may also be deputed by any 
 sheriff, or under sheriff, by an instrument in writing, to do par- 
 ticular acts. (Sec. 105.) 
 
 Every appointment of an under sheriff, or of a deputy sherifl', 
 must be in writing, under the hand and seal of the sheriff, and 
 must be filed and recorded in the office of the clerk of the 
 county. (Sec. 106.) 
 
 Every sheriff, and under shcrilf, or deputy sheriff", must, before 
 he enters on the execution of the duties of his office, take the 
 following oath : (Cons. art. 12.) 
 
 " I do solemt)ly swear (or affirm, as the case viay he,) that I 
 will support the constitution of the United States, and the con- 
 stitulion of [\\c State of New York ; and that I will faithfully 
 di.scharg(; the duties of the office of sherilF, [or " under sheriff,"] 
 [or " deputy sheriff'," as the case may 6c,] according to the best 
 of my ability."
 
 OF COUNTY AND TOWN OFFICERS. 479 
 
 Such oath of office must be taken and subscribed, and depo- 
 sited in the office of the clerk of the county, within fifteen days 
 after the officer shall be notified of his election or appointment, 
 or wilhin fifteen days after the commencement of his term of of- 
 fice. (I R. S. 123, 124, sees. 23, 27.) 
 
 If any person shall execute any of the duties or functions of 
 any office, without having taken and subscribed the oath of of- 
 fice required by law, or without having executed and filed, ia 
 the proper office, any bond required by law, he shall forfeit the 
 office to which he may have been electedor appointed, and shall 
 be deemed guilty of a misdemeanor, punishable by fine or im- 
 prisonment. (Id. sec. 33.) 
 
 It is the duty of the sheriff to execute all writs and processes 
 directed to him ; to convey to the state prison all persons sen- 
 tenced thereto ; to attend the courts, when silting in his county, 
 and to preserve order and execute the process of such courts; to 
 summon persons who have been drawn to serve as grand or pe- 
 tit jurors ; to arrest criminals, and to serve executions, warrants, 
 attachments, dbc. 
 
 The sheriff is required to reside in the county for which he is 
 elected. It is made his duty to keep an office in some proper 
 place in the city or village in which the county courts are held; 
 of which he must file a notice in the office of the clerk of the 
 county. If there is more than one place of holding courts, the 
 notice must specify in which his office will be kept ; or it may 
 specify, that an office will be kept in all such places. His office 
 must be kept open in the city of New York from nine o'clock in 
 the forenoon till four o'clock in the afternoon, and in all other 
 parts of the state, from nine to twelve o'clock in tlie forenoon, 
 and from two to five o'clock in the afternoon. (2 R. S. 384, 
 sees. 61, 62.) 
 
 The sheriff may be removed from his office by the governor 
 of the state, who is required to give to such officer a copy of the 
 charges against him, and an opportunity of being heard in his 
 defence. (Cons. art. 10.) 
 
 Whenever a vacancy exists, or shall occur in the office of 
 sherift', the governor is required to appoint some fit person who 
 may be eligible to the office to execute the duties thereof, until 
 the commencement of the political year next succeeding the 
 first annual election after the happening of the vacancy. (Laws, 
 1848, ch. 4.)
 
 480 OF COUNTY AND TOWN OFFICERS. 
 
 The person so appointed, after taking the oath of office, and 
 executing the proper bond, shall possess all the rights and pow- 
 ers, and be subject to all the liabilities, duties, and obligations of 
 such officer. (Id.) 
 
 2. County Judge. 
 
 The constitution provides for the election, in each of the 
 counties of the state, except the city and county of New York, 
 of one county Judge, who holds his office for four years. (Cons, 
 act, 6, sec. 14.) He holds the county court, and (excepting in 
 counties having a population exceeding forty thousand,) per- 
 forms the duties of the office of surrogate. He is also empow- 
 ered, together with two Justices of the Peace, to hold Courts of 
 Sessions. (Id.) 
 
 The county Judge is empowered, and required, to perform all 
 such duties, and do all such acts, when uot holding a county 
 court, as might have been done, or performed by the Judges of 
 the Court of Common Pleas, or by any one or more of them, at 
 chambers or otherwise, when not holding court, or by any such 
 Judge, being of the degree of counsellor of the Supreme Court, 
 and acting as a Supreme Court Commissioner. (Laws, 1847, 
 oh. 470, sec. 27.) 
 
 The county Judge receives an annual salary, which is fixed 
 by the board of supervisors, and which can neither be increased 
 nor diminished, during his continuance in office. (Cons. art. G, 
 sec. 14.) He must be paid at the close of each quarter. (Laws, 
 1847, ch. 277.) 
 
 The county Judge is required to deliver an accurate account 
 of all fees and perquisites received and collected by him, and of 
 all sums due and unpaid for such services, at the expiration of 
 every t;ix months, from and after the time he enters upon the 
 duties of his office, to the county treasurer. He must accompa- 
 ny the account with a certificate, tbal the account rendered is a 
 just and true account of all odicial services rendered by him, 
 for which fees are authorized by law, to be demanded, and he 
 must ther(!upon pay over all sums so received by him, to the 
 coiiMiy treasurer. (Id.) 
 
 Iso county .ludge shall practice or act as an attorney, solicitor, 
 or counsellor, in any court of wliich he shall be, or shall lie en- 
 titled to act as a mcmlier; nor shall any partner of, or person 
 conncc'cd in law business with, any such Judge, practice or act
 
 OF COUNTY AND TOWN OFFICERS, 481 
 
 as ail attorney, solicitor or counsellor, in any court of which 
 such Judge shall be, or shall be entitled to act as a member, or 
 in any cause or proceeding originating in such court ; nor shall 
 any such Judge practice or act as a counsellor in any cause or 
 proceeding which shall have originated in a court of which he 
 shall be, or shall be entitled to act, as a member. (Laws, 1847. 
 ch. 470, sec. 48.) 
 
 Whenever a cause or matter shall be pending in any County 
 Court, in which the Judge of such court shall have been attor- 
 ney, solicitor or counsel, or shall be interested, or in which he 
 would be excluded from being a juror, by reason of consan- 
 guinity, or affinity to either of the parties, or in the decision of 
 which he shall have taken part when sitting as a Judge in any 
 court, it shall be his duty to make a certilicate stating such fact, 
 and file the same in the office of the clerk of such County 
 Court ; and thereupon, jurisdiction of such cause or matter, 
 shall be vested in the Supreme Court, in which such proceed- 
 ings shall be had therein, according to the practice of such 
 court, as might have been had in such County Court, if such 
 cause or matter had remained therein. (Id. sec. 31.) 
 
 The county Judge may be removed by the Senate, on the 
 recommendation of the governor ; but no removal can be made, 
 unless the cause thereof be entered on the journals, nor unless 
 the party complained of, shall have been served with a copy of 
 the complaint against him, and shall have had an opportunity 
 of being heard in his defence. On the question of removal, the 
 ayes and noes must be entered on the journals. (Cons. art. 6. 
 sec. 11.) 
 
 The legislature, may. on application of the board of super- 
 visors, provide for the election of local officers, not to exceed 
 two in any county, to discharge the duties of county Judge and 
 of surrogate, in cases of their inability, or of a vacancy, and 
 to exercise such other powers, in special cases, as may be pro- 
 vided by law. (Id. sec. 15.) 
 
 County Court. 
 
 The court over which the county Judge presides, has juris- 
 diction in the following actions and proceedings : (Code, sec- 
 tion 30.) 
 
 1. The exclusive power to review in the first instance, a judg- 
 
 31
 
 482 OF COUNTY AND TOWN OFFICERS. 
 
 ment rendered in a civil action within tlie county by a court of 
 a Justice of the Peace, or by the Justices' Courts in cities ; 
 
 2. For the foreclosure or satisfaction of a mortgage, and the 
 sale of mortgaged premises situated within the county ; 
 
 3. For the partition of real property situated within the 
 county ; 
 
 4. For the admeasurement of dower in real property situated 
 within the county ; 
 
 5. For the sale of the real property of an infant when the 
 property is situated within the county ; 
 
 6. To compel a specific performance by an infant heir, or 
 other person, of a contract made by a party who shall liave 
 died before the performance thereof; 
 
 7. For the care and custody of the person and estate of a 
 lunatic or person of unsound mind or an habitual drunkard re- 
 siding within the county ; 
 
 8. For the mortgage or sale, on the application of a religious 
 corporation, of its real property situated within the county and 
 the appropriation of the proceeds thereof; 
 
 9. To review judgments entered in the late court of Common 
 Pleas in the county, and to exercise the power and authority 
 heretofore vested in such Court of Common Pleas, over judg- 
 ments rendered by Justices of the Peace, transcripts of which 
 have been filed in the office of the county clerk. 
 
 10. In cases in which jurisdiction was vested by the Revised 
 Statutes, in the late Courts of Common Pleas, under the pro- 
 visions relating to attachments against absconding, concealed, 
 or non-resident debtors ; to voluntary assignments made pursu- 
 ant to the application of an insolvent and his creditors ; to vol- 
 untary assignments by persons imprisoned on execution in civil 
 cases, and the licensing and regulation of ferries, and the regula- 
 tion of fisheries in the county until the first day of January, 1850 ; 
 
 11. To remit fines and forfeited recognizances, in the same 
 cases and in like manner as such power was given by law to 
 Courts of Common Pleas. 
 
 It is provided that at least two general terms of each County 
 Court, and as many more as the county Judge shall appoint, 
 for the final hearing of actions or proceedings pending therein, 
 shall be held in each year at the places in the counties respect- 
 ively designated by statute, for holding County or Circuit Courts 
 on such days as the county Judge shall from time to time ap-
 
 OF COUNTY AND TOWN OFFICERS. 483 
 
 point, and may continue as long as the court deem necessary. 
 Notice of the appointment is required to be pubhshcd in the 
 state paper at least four weeks before the term, and also in a 
 newspaper, if any, printed in the county. So many terms as 
 the county Judge may designate for that purpose in the notice, 
 may be held for the trial of issues of law, and hearing any de- 
 cision of motions and other proceedings, at which no jury can 
 be required to attend. (Code, sec. 31.) 
 
 Jurors for the County Court and Court of Sessions, must be 
 drawn from the jury box of the county and summoned in the 
 same manner, as for the trial of issues at a Circuit Court. (Id. 
 sec. 32.) 
 
 3. County Clerk. 
 
 The county clerk is elected in the same manner, and for the 
 same time as the sheriff. (Cons. art. 10, sec. 1.) He has the 
 custody of the books, records, deeds, parchments, maps and 
 papers, deposited in his office and belonging to the county and 
 to the courts of record therein. (1 R. S. 430, sec. 75.) He is 
 required, at the expense of the county, to provide proper books 
 for the recording of deeds, mortgages or other conveyances, ac- 
 knowledged or proved according to law ; and for the recording 
 of all other papers, documents or matters, required by law to be 
 recorded in his office, and must receive and file all papers and ' 
 documents directed to be filed therein. (Sec. 76.) 
 
 The county clerk is clerk of the Supreme Court. (Cons, art. 
 6, sec. 19.) It is his duty to attend the Circuit and County 
 Courts, and keep a minute of all the convictions, verdicts, judg- 
 ments, and of all other proceedings thereat ; to record deeds, 
 mortgages, and other instruments proved according to law ; to 
 file all papers required to be put on file in his office ; to take the 
 oath of office and judge of the sufficiency of the sureties of 
 certain officers ; to report to the proper officer, vacancies, mis- 
 conducts, neglect of duty, (fee, and to give notices, assess dam- 
 ages, (fee. 
 
 It is the duty of every county clerk to search the files, paper: 
 records and dockets in his office, to make transcripts from any 
 such papers, records and dockets, and to certify to the correct- 
 ness of such transcripts and searches, when required to do so, 
 and on the payment, or offer to pay, the fees chargeable bylaw, 
 for such service. If he neglect or refuse to make such search
 
 484 OF COUNTY AND TOWN OFFICERS. 
 
 transcript, or certificate, he will be deemed guilty of a misde- 
 meanor. (Laws 1847, ch. 470, sec. 40.) 
 
 The seal required to be procured by any county clerk, is the 
 seal of the county of such clerk, and must be used by him in 
 all cases where he is or shall be required, to use an official seal. 
 (Id. sec. 36.) 
 
 The county clerk is required to appoint some proper person 
 deputy clerk of his county, to hold during the pleasure of the 
 clerk ; and as often as such deputy clerk shall die, resign, or be 
 removed from office, or remove out of the county, or become in- 
 capable of executing the duties of the office, another must be 
 appointed in his place. Every such appointment must be in 
 writing, under the hand and seal of the clerk, and must be re- 
 corded in the office of the clerk of the county. (1 R. S. 431, 
 sec. 81.) 
 
 Every person appointed to the office of deputy clerk, is re- 
 quired, before he enters on the duties of his office to take the 
 oath of office, prescribed in the constitution of this state. (Sec- 
 tion 82.) 
 
 Whenever the county clerk is absent from the county or from 
 his office, or by reason of sickness or any other cause, is inca- 
 pable of performing the duties of his ofiice, his deputy may 
 perform all the duties appertaining to the ofiice of clerk of the 
 county, except that of deciding upon the sufficiency of sureties 
 for any officer. (Sec. 83.) 
 
 No clerk or his deputy is allowed to practice as a counsellor 
 or attorney in the court of which they are clerks, during their 
 continuance in office. (1 R. S. 112, sec. 32.) 
 
 The county clerk is required to keep his office open every 
 day in the year except Sundays and the fourth of July, from 
 nine to twelve o'clock, a. m., and from two to five o'clock, p. m., 
 except, in the city of New York, where it must be kept open 
 from nine o'clock, a. m. to four p. m. (2 R. S. 384, sec. 61.) 
 
 The govenor of the state may remove the county clerk, within 
 the term for which he shall have been elected. He must how- 
 ever, first give to such oflicer a copy of the charges against 
 him, and an ()p[)ortunity of being heard in his defence. (T'ons. 
 art. 10, sec. 1.) 
 
 AVIi'Mievcr the office of any county clerk becomes vacant, his 
 deputy niusl pcrlnrni nil the duties, tind he will be enlillcd to 
 all the eniolumcnl^s, imd be subject to ail the penalties, appcr-
 
 OF COUNTY AND TOWN OFFICERS. 485 
 
 taining to the office of clerk of the county, until a new clerk 
 shall be elected for such county, and duly sworn. (1 11. S, 431, 
 sec. 84.) 
 
 4. Surrogate. 
 
 The constitution directs that the duties of the office of surro- 
 gate, shall be performed by the county judge. In counties hav- 
 ing a population exceeding forty thousand, however, the legis- 
 lature may provide for the election of a separate officer to per- 
 form such duties. (Const, art. 6, sec. 14. Vide Laws, 1S49, 
 ch. 306.) 
 
 The surrogate has power^(2 R. S. 318, sec. 1) — 
 
 1. To take the proof of wills of real and personal estate, in 
 the cases prescribed by law ; and also to take proof of any will 
 relating to real estate, situated within the county of such surro- 
 gate, when the testator in such will shall have died out of this 
 state, not being an inhabitant thereof, and not leaving any as- 
 sets therein. 
 
 2. To grant letters testamentary and of administration. 
 
 3. To direct and control the conduct, and settle the accounts 
 of executors and administrators. 
 
 4. To enforce the payment of debts and legacies, and the dis- 
 tribution of the estates of intestates. 
 
 5. To order the sale and disposition of the real estates of de- 
 ceased persons. 
 
 6. To administer justice in all matters relating to the affairs 
 of deceased persons, according to the provisions of the statutes 
 of this state. 
 
 7. To appoint guardians for minors, to remove them, to direct 
 and control their conduct, and lo settle their accounts, as pre- 
 scribed by law. 
 
 8. To cause the admeasurement of dower to widows. 
 Every surrogate has power to issue subpoenas under his seal 
 
 of office, for the purpose of compelling the attendance of any 
 witness or the production of any paper material to any inquiry 
 pending in his court, tlie form of which must be similar to that 
 used by courts of record in like cases. To punish disobedience 
 to any such subpoena, and to punish witnesses for refusing to 
 testify after appearing, in the same manner, and to the same ex- 
 tent, as courts of record in similar cases, and by process similar 
 in form to that used by such courts. To issue citations to par-
 
 486 OF COUNTY AND TOWN OFFICERS. 
 
 ties in all matters cognizable in his court, and, in the cases pre- 
 scribed by law, to compel the appearance of such parties. To 
 enforce all lawful orders, process, and decrees of his court by 
 attachment against the persons of those who neglect or refuse 
 to comply with such orders and decrees, or to execute such pro- 
 cess. To exemplify, under his seal of office, all transcripts of 
 records, papers or proceedings therein, which must be received 
 in evidence, in all courts, Avith the like effect as the exemplifica- 
 tions of the records, papers and proceedings of courts of record. 
 To preserve order in his court, during any judicial proceeding, 
 by punishing contempts which amount to an actual interruption 
 of business, or to an open and direct contempt of his authority 
 or person, in the same manner, and to the same extent, as courts 
 of record. (2 R. S. 319, sec. 6.) 
 
 The surrogate of the city and county of New York is re- 
 quired to execute to the people of the state, with two or more 
 sureties, being freeholders, a joint and several bond in the pen- 
 alty of ten thousand dollars, and in every other county of five 
 thousand dollars, conditioned for the faithful discharge of his 
 duties, and a proper application of all moneys that may come 
 into his hands in the course of his official duties. (1 R. S. 437, 
 sec. 119.) 
 
 A surrogate is not permitted to act as such in cases where he 
 is interested in the will or estate ; nor can he practice or act as 
 an attorney, counsellor, or solicitor in his court, nor in any cause 
 originating in his court ; nor can any partner of, or person con- 
 nected in law business with any surrogate, practice or act as 
 attorney, solicitor or counsellor in any cause or proceeding be- 
 fore such surrogate, or originating before such surrogate. (Laws 
 1847, ch. 470, sec. 51.) 
 
 Whenever any surrogate of any county shall be precluded 
 from acting as such in any case, by reason of interest, relation- 
 ship by consanguinity or affinity to any party interested therein, 
 so that he would be excluded from being a juror, or by reason 
 of being a witness to any will, or of having acted as counsel in 
 any cause, and tlierc shall be no local officer in such county to 
 discharge the duties of sucli surrogate, or where such local offi- 
 cer shall also be incapable of acting as such surrogate, by rea- 
 son of the forogoing disabilities in tlio case of the surrogate, the 
 county judge of such (;oini(y, or in c.-ise of his disability for like 
 cause, then the district attorney of such county shall possess the
 
 OF COUNTY AND TOWN OFFICERS. 487 
 
 power, and exercise the jurisdiction, in all respects in such case, 
 as the surrogate of such county would be authorized to possess 
 and exercise, were it not for such disabihtj^ (Laws 1817, ch. 
 470, sec. 32.) 
 
 The legislature may, on application of the board of supervi- 
 sors, provide for the election of local officers, not to exceed two 
 in any county, to discharge the duties of county judge and of 
 surrogate, in cases of their inability or of a vacancy, and to ex- 
 ercise such other powers in special cases as may be provided by 
 law. (Const, art. 6, sec. 14.) 
 
 Any separate officer elected to perform the duties of the office 
 of surrogate, shall receive an annual salary which shall be fixed 
 by the board of supervisors, and paid at the close of each quar- 
 ter by the county in which he shall be elected ; and such salary 
 shall not be increased or diminished during his continuance in 
 office. (Laws 1847, ch. 277, sec. 4.) 
 
 All local officers elected in any county of this state, to dis- 
 charge the duties of county judge and surrogate, and exercise 
 such other powers in special cases as may be provided by law, 
 shall, for their services respectively, be paid by the county in 
 which they shall be elected, such reasonable compensation as the 
 board of supervisors of such county may deem proper to allow. 
 (Id. sec. 5. 
 
 5. District Attorney. 
 
 There is a district attorney for each county of the state. (1 
 R. S. 99.) He is elected once in three years, and as often as a 
 vacancy shall happen. (Cons. art. 10, sec. 1.) It is his duty 
 to attend the courts of Oyer and Terminer and Sessions of the 
 Peace, and conduct all prosecutions for crimes and offences com- 
 mitted in the county, and to prosecute for certain penalties and 
 forfeitures. (1 R. S. 437, 438, sees. 122, 124.) 
 
 No attorney, solicitor or counsellor shall, directly or indirectly, 
 advise in relation to, or aid, or take any part whatever in the 
 defence of any cause, matter, suit or proceeding which shall be 
 brought, carried on, aided, advocated or prosecuted in any court 
 of civil or criminal jurisdiction, by any person as district attor- 
 ney or other public prosecutor with whom he shall be interested 
 or connected, either directly or indirectly, as a partner in the 
 same or any other court, or take or receive, directly or indirectly.
 
 488 OF COUISTY AND TOWN OFFICERS. 
 
 of or from any defendant therein, any fee, gratuity, or reward, 
 for or upon any cause, consideration, pretence, understanding or 
 agreement whatever, either express or implied, having relation 
 thereto or to the prosecution or defence thereof (Laws 1846, 
 ch. 120, sec. 1.) 
 
 No attorney, solicitor or counsellor, who shall have brought, 
 carried on, aided, advocated or prosecuted, or shall have been 
 in any wise connected with any cause, matter, suit or proceed- 
 ing in any court as district attorney or other public prosecutor, 
 shall, at any time thereafter, directly or indirectly, advise in re- 
 lation to, or aid or take any part whatever in the defence thereof, 
 or take or receive, either directly or indirectly, of or from any 
 defendant therein, or other person, any fee, gratuity or reward 
 for or upon any cause, consideration, pretence, understanding or 
 agreement whatever, either express or implied, having relation 
 thereto, or to the prosecution or defence thereof. (Sec. 2.) 
 
 Every attorney, solicitor or counsellor who shall violate either 
 of the two preceding sections, shall be deemed guilty of a mis- 
 demeanor, and, on conviction thereof, shall be punished by a 
 fine or imprisonment, or both, at the discretion of the court ; and 
 he shall be removed from office in the several courts in which 
 he is licensed. (Sec. 3.) 
 
 This act shall not be construed to prohibit any attorney, soli- 
 citor or counsellor from defending himself in person, if prosecu- 
 ted either civilly or criminall)'-. (Sec. 4.) 
 
 The govejnor of the state may remove any district attorney 
 at any time within the term for which he shall have been elect- 
 ed. He must, however, first give to the district attorney a copy 
 of the charges against him, and an opportunity of being heard 
 in his defence. (Const, art, 10, sec. 1.) 
 
 G. County Treasurer. 
 
 The statute provides that in each of the several counties of 
 the state the county treasurer shall be elected at a general elec- 
 tion. Ho holds his office for three years, and, except in the 
 cotmty of Kings, nnist enter upon the duties of his office on the 
 first day of January next after his election. (Laws of 1848, 
 ch. 130, sec. L Laws, 1849, ch. 300.) 
 
 It is the duly of the comity treasurer to receive all moneys 
 belonging to the county, from whatever source they may bo
 
 OF COUNTY AND TOWN OFFICERS. 489 
 
 derived, and all moneys belonging to the state which by law 
 are directed to be paid to him, and to pay and apply such 
 moneys in the manner required by law. (1 R. S. 423, sec. 35.) 
 
 The county treasurer is required to keep a just and true 
 account of the receipts and expenditures of all moneys which 
 come to his hands by virtue of his office, in a book or books to 
 be kept for that purpose ; which books must be provided at the 
 expense of the county. (Id. sec. 36.) He must, on or before 
 the first day of March in each year, transmit to the comptroller 
 of the state, a statement of all moneys received by him during 
 the preceding year, for penalties belonging to the people of the 
 state ; and it is his duty, at the same time to pay to the trea- 
 surer of the state, the amount of such penalties. At the annual 
 meeting of the board of supervisors, or at such other time as 
 they shall direct, the county treasurer is required to exhibit to 
 them all his books and accoimts, and all vouchers relating to 
 the same, to be audited and allowed. (Id. sees. 37, 38.) 
 
 In the counties where the several towns support their own 
 poor, the county treasurer is required to open an account with 
 each town, and credit the same with all moneys received from 
 it, and charge it with all moneys paid for the support of the 
 poor chargeable thereto ; and if there be a county poor house in 
 such county, he must charge to each town the sum specified in 
 the annual statement of the superintendents as being the pro- 
 portion which such town should pay towards supplying the 
 deficiency, if any, which may exist in their funds. This ac- 
 count he is to lay before the board of supervisors, at their anual 
 meeting ; and if there is a balance against any town, it is to be 
 added to the amount of taxes to be levied and collected thereof, 
 together with seven per cent interest on the advances made for 
 such town, which, when collected, is to be paid to the county 
 treasurer. (I R. S. 793, sees. 51, 52, 53.) 
 
 The county treasurer has, by virtue of his office, authority to 
 collect and take charge of the assets of every person dying 
 intestate, where such assets amount to one hundred dollars or 
 more, either in his county or out of it, upon which no letters of 
 administration shall have been granted, in the following cases : 
 (2 R. S. 189, sec. 48.) 
 
 1. Whenever such person dies, leaving assets in the county 
 of such treasurer, and there is no widow or relative in the 
 county entitled or competent to take letters of administration on
 
 490 OF COUNTY AND TOWN OFFICERS. 
 
 such estate : 2. Whenever assets of any person so dying intes- 
 tate, shall, after his death, come into the county of such treasu- 
 rer, and there is no person entitled or competent as aforesaid, to 
 take administration of such estate. 
 
 In the above cases, intestacy will be presumed until a will is 
 proved, and letters testamentary issued thereon. (Id.) 
 
 For the purpose of collecting and preserving the assets, the 
 county treasurer may maintain suits in his name of office, and 
 without any other authority, in the same manner as an execu- 
 tor. (Id. sec. 49.) 
 
 Although there may be a widow or relative of any such in- 
 testate, entitled to administration on his estate in the county, 
 yet if due proof be made to the surrogate of the county that 
 there are creditors or relatives of the deceased, residing more 
 than one hundred miles distant from the residence of such sur- 
 rogate, who are interested in the distribution of the estate, and 
 that the effects of the deceased are in danger of waste or em- 
 bezzlement, he may grant an order to the treasurer of the county 
 authorizing him to seize and secure the said effects, or any part 
 thereof. (Id. sec. 50.) 
 
 Any property taken into the charge of the county treasurer 
 that may be in a perishing condition, may be sold by him at 
 auction, on obtainmg an order for that purpose from the surro- 
 gate of the county. The order must be granted on due proof 
 of the fact, and must specify the time and manner, and the 
 notice of the sale. (Id. sec. 52.) 
 
 The powers and authority of the count}^ treasurer, in relation 
 to the estate of any deceased person, will be superseded, 
 
 1. By the production of any letters testamentary that may 
 have been granted before, or that shall be granted subsequent 
 to his becoming vested with the authority of an administrator 
 upon the same estate. 2. By the production of any letters of 
 administration that shall have been granted to any other person 
 upon the same estate, before the said county treasurer became 
 vested with the powers of an administrator thereon. 3. By the 
 production of any letters of administration issued by the surro- 
 gate of any county in this state, of which the deceased was a 
 resident at the time of his death, granted after the county trea_ 
 surer may have become vested with the powers of an adminis- 
 trator upon the estate of sticli deceased. (2 K. S. 191, sec. 67.) 
 
 All acts done by the county treasurer in good faith, previous
 
 OF COUNTY AND TOWN OFFICERS. 491 
 
 to notice, will be valid ; and all suits commenced by him, may- 
 be continued by and in the name of the executor or adminis- 
 trator of the estate in relation to which such suit may be 
 brought. (Id. sec. 69.) 
 
 Upon receiving letters of administration, the county treasurer 
 will be vested with all the powers and rights of other adminis- 
 trators, and will be subject to similar duties and obligations. 
 (Id. sec. 70.) 
 
 Whenever any district attorney refuses or neglects to account 
 for and pay over moneys received by him, which he is required 
 to pay into the county treasury, it is the duty of the county 
 treasurer to cause a suit to be instituted for the recovery of such, 
 moneys, for the benefit of the county, against such district at- 
 torney. (1 R. S. 438, sec. 127.) 
 
 The county treasurer, before entering upon the duties of his 
 office, within ten days after his appointment, must execute a 
 bond to the board of supervisors, with two or more sufficient 
 sureties, to be approved of by the supervisors, in such sum as 
 they may direct, for the faitliful and honest discharge of his 
 duties, and the proper application of all moneys that shall come 
 into his hands, and the rendering a just and true account thereof 
 to the board of supervisors, or to the comptroller of the state 
 when required. (1 R. S. 432.) 
 
 It is provided, that the several county treasurers of the state 
 shall receive for their services such compensation as shall be 
 fixed by the respective boards of supervisors of their respective 
 counties, not exceeding the half of one per cent for receiving, 
 and the half of one per cent for disbursing, and in no case to 
 exceed the sum of five hundred dollars per annum. (Laws of 
 1846, ch. 189.) 
 
 The county treasurers of the respective counties, are required 
 to collect all of the fees and perquisites belonging to the county, 
 that remain unpaid for the term of six months, and for that 
 purpose are authorized and empowered to bring all necessary 
 suits in the name of the treasurer of the proper county, and pro- 
 secute the same to judgment and execution in all respects, in 
 the like manner, and with the like effi^ct, as in other civil ac- 
 tions. (Laws of 1847, ch. 277, sec. 10.) 
 
 Any vacancy happening in the office of county treasurer, 
 must be filled by appointment by the board of supervisors, until
 
 492 OF COUNTY AND TOWN OFFICERS. 
 
 the first of January succeeding the next general election there- 
 after. (Laws of 1848, ch. 136.) 
 
 7. Coroners. 
 
 The statute directs that there shall he one coroner for the 
 city and county of New York, and four coroners for every other 
 county. (] R. S. 99.) They are elected by the people, once in 
 every three years, and as often as vacancies happen. (Cons. 
 art. 10, sec. 1.) They are required to reside within the county 
 or city in which the duties of their office are to he executed. (1 
 R. S. 105, sec. 17.) 
 
 Whenever any coroner receives notice that any person has 
 been slain, or has suddenly died, or has been dangerously 
 wounded, or has been found dead under such circumstances as 
 to require an inquisition, it is his duty to go to the place where 
 such person shall be, and forthwith to summon not less than 
 nine, nor more than fifteen persons, qualified by lavv^ to serve as 
 jurors, and not exempt from such service, to appear before him 
 forthwith, at such place as he shall appoint, to make inquisition 
 concerning such death or wounding. (Laws of 1847, ch. 118.) 
 
 Whenever six or more of the jury appear, they must be sworn 
 by the coroner, to inquire how and in what manner, and when 
 and wlicre such person came to his death, or was wounded, [as 
 the case may be,] and who such person was, and into all the 
 circumstances attending such deatli or wounding ; and to make 
 a true inquisition, according to the evidence ofi"ered to them, or 
 arising from the inspection of the body. (Id. sec. 2. 2 R. S. 
 827, sec. 2.) 
 
 The coroner has power to issue subpoenas for witnesses, re- 
 turnaljlo either forthwith, or at such time and place as he may 
 appoint therein ; and it is the duty of the coroner to cause some 
 surgeon or physician to be subpoenaed to appear as a witness 
 upon the taking of the inquest. (Sec. 3.) 
 
 Every person served with any such subpoena, will be liable 
 to the same penalties for disobedience thereto, and his attend- 
 ance may be enforced in like manner, as upon subpoenas issued 
 in Justices' Courts. (Sec. 4.) 
 
 The jury, upon the in.spection of the body of the person dead 
 or wounded, and after hearing the testimony, must deliver to 
 the coroner their inquisition in writing, to be signed by them, in 
 wliich they must find and certify, how and in what manner,
 
 OF COUNTY AND TOWN OFFICERS. 493 
 
 and when and where the person so dead or wounded came to 
 his death, or was wounded, [as the case may be,] and who such 
 person was ; and all the circumstances attending such death or 
 Avounding, and who were guilty thereof, either as princpal or 
 accessary, and in wliat manner. (Sec. 5.) 
 
 If the jury find that any murder, manslaughter, or assault, 
 has been committed, the coroner must bind over the witnesses 
 to appear and testify at the next criminal court, at which an in- 
 dictment for such offence can be found, that shall be held in the 
 county. And in such case, if the party charged with the of- 
 fence, be not in custody, the coroner has power to issue process 
 for his apprehension, in the same manner as Justices of the 
 Peace. (Sec. 6.) 
 
 The coroner issuing such process has the same power to ex- 
 amine the defendant as is possessed by a Justice of the Peace, 
 and may in all respects proceed in like manner. (Sec. 7.) 
 
 The testimony of all witnesses examined before a coroner's 
 jury, must be reduced to writing by the coroner, and be returned 
 by him, together with the inquisition of the jury, and all recog- 
 nizances and examinations taken by him, to the next criminal 
 court of record of the county. (2 R. S. 828, sec. 8.) 
 
 In case of the absence of the coroner of the city and county of 
 New York, or of his inability to attend, from sickness or any 
 other cause, at any time, any alderman or special Justice of the 
 city may perform, during such absence or inability, any duty 
 appertaining to the office of coroner ; and such alderman or Jus- 
 tice will possess the like authority, and be subject to the like ob- 
 ligations and penalties as the coroner. (Sec. 9.) 
 
 The coroners of the several counties in the state are required 
 to deliver over to the treasurer of their respective counties, all 
 moneys and other valuable things which are found with, or upon 
 the bodies of persons on whom inquests are held, and which 
 shall not be claimed by the legal representatives of sucli person 
 or persons, within sixty days after the holding of the inquest. 
 (Sec. 10.) 
 
 The county treasurer to whom any such valuable thing may 
 be delivered, is required, as soon thereafter as may be, to con- 
 vert the same into money, and place the same to the credit of 
 the county of which he is treasurer ; and if demanded w^ithin 
 six years thereafter, by the legal representatives of the person 
 on whom the same was found, the treasurer, after deducting the
 
 494 OF COUNTY AND TOWN OFFICERS. 
 
 expenses incurred by the coroner, and all other expenses of the 
 county, in relation to the same matter, is required to pay over 
 the balance to such legal representatives. (Sec. 11.) 
 
 Before auditing and allowing the accounts of the coroners, 
 the supervisors of the county must require of them respectively, 
 a statement in writing, containing an inventory of all money 
 and other valuable things found with or upon all persons on 
 whom inquests may have been held, and the manner in which 
 the same has been disposed of, verified by the oath or affirma- 
 tion of the coroner making the same, that such statement is, in 
 all respects, just and true, and that the money and other arti- 
 cles mentioned therein, have been delivered to the treasurer of 
 the county, or to the legal representatives of such person or per- 
 sons. (Sec. 12.) 
 
 The coroners are entitled to receive a reasonable compensa- 
 tion for making and rendering such statement, and for their 
 trouble and services in the preservation and delivery of said ef- 
 fects and property, and all reasonable expenses incurred by them 
 in relation thereto, to be audited by the board of supervisors, in 
 addition to the fees or compensation to be allowed by them for 
 holding an inquest. (Sec. 13.) 
 
 If the office of sheriff and under sheriff both become vacant, 
 the Judge of the county is to designate one of the coroners to 
 act as sheriff ; and if the coroner accept, he must execute the 
 like bond, and be subject to all the duties and liabilities of the 
 sherif}'. When the sheriff is a party in any proceeding, the pro- 
 cess therein must be executed by the coroner, to whom it may 
 be delivered ; and he has the like authority, and is subject to 
 the same obligations and liabilities as the sheriff, and is entitled 
 to the same fees. (1 R. S. 435. 2 R. S. 538.) 
 
 The compensation to be paid to the coroners of the several 
 cities and counties of the state, for holding any inquest in the 
 cases authorized by law, must be fixed, and together with all ne- 
 cessary incidental expenses, nuist be audited and allowed by 
 the board of supervisors of the respective counties, and paid in 
 like manner as other county charges. (2 R. S. 840, sec. 16.) 
 
 The coroner may be removed by the governor of the state, 
 after first giving to such officer a copy of the charges against 
 him, and an opportunity of being heard in his defence. (Cons, 
 art. 10.)
 
 OF COUNTY AND TOWN OFFICERS. 495 
 
 8. Superintendents of the Poor. 
 
 The board of supervisors in any county, at any annual meet- 
 ing of such board, may direct, by resolution, that thereafter only 
 one county superintendent of the poor shall be elected in and 
 for such county, to hold his office for three years ; but in alt 
 counties where no such resolution shall have been passed, three 
 county superintendents of the poor must be elected. (Laws 
 1847, ch. 498.) 
 
 In counties where three superintendents of the poor are cho- 
 sen, one is required to be elected annually, to hold his office for 
 three years. (Laws 1847, ch. 498, sec. 3.) 
 
 When vacancies happen in the offices of county superinten- 
 dents of the poor, they must be filled by appointment of the 
 board of supervisors. (Id. sec. 4.) 
 
 Every person elected to the office of superintendent of the 
 poor, is required within ten days after his election, to give a 
 bond to the supervisors, with two or more sufficient sureties, to 
 be approved by the board of supervisors, and in such sum as 
 they shall direct, conditioned that such person will faithfully 
 execute the duties of his office, and pay, according to law, all 
 moneys which may come to his hands as superintendent of the 
 poor, and render a just and true account thereof, to the board of 
 supervisors. (Laws 1848, ch. 327, sec. 1.) 
 
 Such bond, with the approbation of the board of superAdsors, 
 endorsed thereon by their clerk, must be filed in the office of the 
 county clerk. (Id. sec. 2.) 
 
 The county superintendents of the poor are a corporation, pos- 
 sessing the usual powers of a corporation for public purposes. 
 They are required to meet as often as the supervisors of the 
 county shall direct, at the county poor-house, if there be one, or 
 at the place of holding courts in their county, or at one of the 
 places of holding courts, if there be more than one, and at such 
 other times and places as they shall think expedient. They 
 have a general superintendence and care of the county poor in 
 their respective counties ; and have power, and it is their duty, 
 
 1. To provide suitable places for the keeping of such poor, 
 when so directed by the supervisors of any county, where houses 
 for that purpose have not been erected by the county ; and for 
 that purpose to rent a tenement or tenements, and land not ex- 
 ceeding fifty acres, and to cause the poor of the county to be
 
 496 OF COUiNTY AND TOWN OFFICERS. 
 
 maintained in such places. 2. To establish and ordain pruden- 
 tial rules, regulations, and by-laws, for the government and good 
 order of such places so provided, and of the county poor houses, 
 and for the emplyment, relief, management and government of 
 the persons therein placed ; but such rules and regulations will 
 not be valid until sanctioned by the Judge of the county, in 
 writing. 3. To employ suitable persons to be keepers of such 
 houses or places, and all nccessarj^ oflicers and servants, and to 
 vest such powers in them for the govonment of such houses, as 
 shall be necessary, reserving to the paupers who may be placed 
 under the care of such keepers, the right of appeal to the super- 
 intendents. 4. In counties where a poor-house is erected, or 
 other place provided for the poor, to purchase the furniture, im- 
 plements, and materials that shall be necessary, from time to 
 time, for the maintenance of the poor therein, and their employ- 
 ment in labor or manufactures, and to sell and dispose of the 
 proceeds of such labor, as they shall deem expedient. 5. To pre- 
 scribe the rate of allowance to be made to any persons for bring- 
 ing paupers to the county poor house, or place provided for the 
 poor, subject to such alterations as the board of supervisors may, 
 by a general resolution, make. 6. To authorize the keepers of 
 such houses or places so provided, to certify the amount due to 
 any person for bringing such paupers ; which amount must be 
 paid by the county treasurer, on the production of such certifi- 
 cate, countersigned and allowed by any two superintendents. 
 7. To decide any dispute that shall arise concerning the set- 
 tlement of any poor person, summarilj^, upon a hearing of the 
 parties ; and for that purpose, to issue subpoenas to compel the 
 attendance of witnesses, and to administer oaths to them in the 
 same manner, with the like power to enforce such process, as is 
 given to Justices of the Peace in any matter cognizable by them ; 
 their decisions must be filed in the office of the county clerk, with- 
 in thirty days after they are made, and will be conclusive and final 
 upon all parlies interested. 8. To direct the commencement of 
 suits by any overseers of the poor, who shall be entitled to prose- 
 cute for any penalties, or upon any recognizances, bonds, or se- 
 curities talvon for the indemnity of any town, or of the county ; 
 and in case of the neglect of any such overseer, to commence 
 and C()ndn<;t .such suit wilb^ut the autlioiily of such overseers, 
 in their names. 1). To draw, from time to time, on the county 
 treasurer, for all the necessary expenses incurred in the dis-
 
 OF COUNTY AND TOWN OFFICERS. 497 
 
 charge of their duties ; while drafts must be paid by him out of 
 the moneys placed iti his hands for the support of the poor. 
 10, To render to the board of supervisors of their county, at their 
 annual meeting, an account of all moneys received and expen- 
 ded by them, or under their direction, and of all their proceed- 
 ings, 11. To pay over all moneys remaining in their hands, 
 within fifteen days after the expiration of their office, to the 
 county treasurer, or their successors. (1 R. S. 785, sec. 18.) 
 
 The support of any pauper cannot be charged to the county 
 without the sanction of the superintendents. If a pauper be 
 sent to the county poor house, or place provided for the poor, 
 as a county pauper, the superintendents in those counties where 
 the respective towns are required to support their own poor must 
 immediately inquire into the fact ; and if they are of opinion 
 that such pauper has a legal settlement in any town of the said 
 county, they must, within thirty days after such pauper shall 
 have been received, give notice to the overseers of the poor of 
 tl^ town to which such pauper belongs, that the expenses of his 
 support will be charged to such town, unless the overseers, 
 within such time as the superintendents shall appoint, not 
 less than twenty days thereafter, show that such town ought 
 not to be so charged ; and on the application of the over- 
 seers, the superintendents must re-examine the matter, and take 
 testimony in relation thereto, and must finally decide the ques- 
 tion, — which decision will be conclusive. (1 R. S. 790, sec, 
 39.) 
 
 In counties where there is no county poor house or other place 
 provided, no person can be supported as a county pauper, with- 
 out the direction of at least one county superintendent. In such 
 cases, the overseers of the poor of the town where such person 
 is, must immediately give notice to one of the superintendents, 
 who must inquire into the circumstances ; and if he is satisfied 
 that the pauper has not gained a legal settlement in any town 
 of that county, he must give a certificate to that effect, and that 
 such pauper is chargeable to the county. He is required to re- 
 port every such case to the board of superintendents at their 
 next meeting, who may affirm such certificate, or may annul 
 the same, on giving due notice to the overseers of the poor of the 
 town interested, and after hearing the allegations and proofs in 
 the premises. (Sec. 40.) 
 
 If the superintendent to whom the overseers may have giver 
 
 32
 
 498 OF COUNTY AND TOWN OFFICERS. 
 
 notice, neglect to give the certificate, the overseers may apply to 
 the board of county superintendents, who must summarily hear 
 and determine the matter, and whose decision will be conclu- 
 sive. (Sec. 41.) 
 
 The decisions of the board of county superintendents, in re- 
 lation to the settlement of any paupers, or to their being a charge 
 upon the county, must be entered in books provided for that pur- 
 pose, and certified by the signatures of such of the superinten- 
 dents as make the decisions ; and a duplicate thereof, certified 
 in the same manner, must be filed in the county clerk's ofiice 
 within thirty days after the making of any decision. Such ori- 
 ginal duplicate, or a copy thereof, duly certified, will be conclu- 
 sive evidence of the facts therein contained. (1 R. S. 791, sec. 
 42.) 
 
 Whenever the county superintendents take charge of the 
 support of any county pauper in those counties where no poor 
 house is provided, they may authorize the overseers of the poor 
 of the town in which such pauper may be, to continue to sup- 
 port him on such terms and under such regulations as they 
 shall prescribe ; after which, no moneys can be paid to the over- 
 seers for the support of such pauper, without the order of the 
 superintendents ; or the superintendents may remove such pau- 
 per to any other town, and there provide for his support in such 
 manner as they may deem expedient. (Id. 793, sec. 50.) 
 
 In those counties where the respective towns are required to 
 support their own poor, if there be a county poor house or other 
 place in such county provided for the reception of the poor, the 
 superintendents of the poor of the county are required each 
 year, before the annual meeting of the board of supervisors of 
 such county, to furnish to the county treasurer a statement of 
 the sums charged by them to the several towns for the support 
 of their poor, which must be charged to such towns respectively 
 by the county treasurer in his accounts. 
 
 In counties in which a poor house is established, or a place 
 provided l)y the superintendents for the reception of the poor, 
 and in which tlic several towns arc liable for the support of 
 their poor respectively, it is the duty of the superintendents an- 
 nually, and during the week preceding the annual meeting of 
 the board of supervisors, to make out a statement of all the ex- 
 penses incurred by them the preceding year, and of the moneys 
 received, and exiiibiling the deficiency, if any, in the funds pro-
 
 OF COUNTY AND TOWN OFFICERS. 499 
 
 vided for the defraying such expenses ; and they are required 
 to apportion the said deficiency among the several towns in pro- 
 portion to tiie number and expenses of the paupers belonging 
 to the said towns respectively who shall have been pro- 
 vided for by the superintendents, and must charge the said 
 towns with the said proportions — which statement must, as 
 already directed, be delivered by them to the county treasurer. 
 (1 R. S. 793, sec. 52.) 
 
 The superintendents of the poor in each county are required 
 each year to present to the board of supervisors, at their annual 
 meeting, an estimate of the sum which, in their opinion, will be 
 necessary, during the ensuing year, for the support of the county 
 poor. (Sec. 54.) 
 
 It is provided that the superintendents of the poor, in the sev- 
 eral counties in the state, shall audit and settle all accounts of 
 overseers of the poor. Justices of the Peace, and all other per- 
 sons, for services relating to the support, relief, or transportation 
 of comity paupers ; and shall, from time to time, draw on the 
 county treasurer for the amount of the accounts which they 
 shall so audit and settle. (1 R. S. 795, sec. 62.) 
 
 Every county superintendent who neglects to render any ac- 
 count or statement to the board of supervisors, or to pay over 
 any moneys within the time prescribed by law, forfeits two hun- 
 dred and fifty dollars, to be sued for and recovered by and in 
 the name of the county treasurer. The superintendents will 
 also be liable to an action, either jointly or severally, by the 
 county treasurer, for all moneys in their hands after the time it 
 should have been paid over according to law, with interest 
 thereon at the rate of ten dollars upon the hundred for a year 
 from the time when the same should have been paid over. (Id. 
 796, sec. 68.) 
 
 The superintendents have pov/er to institute proceedings to 
 ascertain the father of bastard children, and to compel them to 
 support such children. (1 R. S. 823.) 
 
 9. Comtnissioners of Loans. 
 
 Commissioners of loans are nominated by the governor, and 
 appointed by him, with the consent of the senate. They hold 
 their offices for two years. (1 R. S. 118.) 
 
 They are appointed for the purpose of loaning certain public
 
 500 OF COUNTY AND TOWN OFFICERS. 
 
 moneys to the citizens and inhabitants of their respective coun- 
 ties, to be secured by mortgage on improved lands in the county 
 to which they respectively belong. It is their duty to apportion 
 the amount of money to which their several counties are enti- 
 titled among the towns, cities, and wards thereof, according to 
 their population. They are required to keep their offices at the 
 court house in their several counties, or at the place where the 
 county courts are held, and to give public notice of the times 
 when they will receive applications from borrowers. Such mo- 
 neys are to be loaned in sums not exceeding two thousand, nor 
 under two hundred dollars, except in the city of New York, 
 where the sums are not to be over fiye thousand, nor under five 
 hundred dollars. The interest must be paid annually on the 
 first Tuesday of October in each year, and a credit of not more 
 than five years given, subject to being called in, the one-half on 
 a previous notice of one year, and the other half on a previous 
 notice of two years. (1 R. S. 425 to 430.) 
 
 Every person hereafter appointed to the office of commissioner 
 of loans in any county in the state, is required, before he enters 
 on the duties of his office, to give a bond to the people of the 
 state, with two or more sufficient sureties in a sum equal to the 
 amount of the mortgages then under the charge of tlie commis- 
 sioners of loans of such county, conditioned that such commis- 
 sioner will well and truly perform the duties of his office pur- 
 suant to law, and will demean himself therein, witliout favor, 
 malice, or partiality. (1 R. S. 424, sec. 45.) 
 
 The board of supervisors of the county, together with the 
 county judge, must be the judges of the sufficiency of the sure- 
 ties ofi'ered by a loan officer ; and the bond of every such loan 
 officer and his sureties, witli the approbation of a majority of the 
 supervisors and of such judge endorsed thereon, must be filed 
 in the office of the clerk of the county. (Sec. 4G.) 
 
 Whenever the supervisors of any county in the state shall 
 apprehend that any commissioners of loans or ]iis sureties arc 
 likely to fail, it is his duty to require such commissioner to give 
 additional security, such as they may deem reasonable and sat- 
 isfactory. (Sec. 48.) 
 
 If any loan oliicer neglect or refuse, for tlic space of ten 
 days afl<'r the receipt of notice, to give such security as is re- 
 quired, the supervisors may appoint another loan officer in his 
 stead ; and if a commissioner of loans neglect or refuse, for the
 
 OF COUNTY AND TOWN OFFICERS. 501 
 
 space above specified, to give such security as may be required, 
 the supervisors must report such suspicion, as to the security 
 and the refusal of the commissioner of loans to comply with 
 tlieir requisition to the governor, in order to his removal. (1 
 R. S. 425, sec. 49.) 
 
 It is the duty of the loan officers and commissioners of loans, 
 in the several counties, to receive, from time to time, all moneys 
 which shall become payable for principal and interest, or for 
 either of them, upon the mortgages under their charge, and to 
 keep an account of all monies so received by them. (Sec. .50.) 
 
 Whenever the loan officers or commissioners of loans deem it 
 necessary to require additional security, for the purpose of se- 
 curing the payment of moneys loaned by them or their prede- 
 cessors in office, either on account of the reduction in value of 
 the premises mortgaged, or on account of any substantial defect 
 in the description of such premises in the original mortgage, 
 they have power, and it is their duty to demand such additional 
 security as they think requisite, from the mortgagor, his repre- 
 sentatives or assigns, and to take the same in like manner as 
 origina,l mortgages are directed to be taken by them ; and such 
 additional securities must be proceeded upon, in case of default 
 in payment, in the same manner as original mortgages. (Sec. 
 
 51-) 
 
 In case any mortgagor, his heirs or devisees, who may be in 
 the actual possession of the mortgaged premises, neglect or re- 
 fuse to give such additional security as may be required by such 
 loan officers or commissioners, for the purpose of supplying any 
 substantial defect in the description of the mortgaged premises, 
 the loan officers or commissioners of loans may file a bill in 
 equity to compel such mortgagor, his heirs or devisees, to supply 
 such defects. (Sec. 52.) 
 
 Whenever any moneys are paid to any loan officers or commis- 
 sionsers of loans for the principalof any loan under their charge, 
 the board of supervisors of the county have power, by resolu- 
 tion, to prohibit the re-loaning of such moneys. In such case, it 
 is the duty of the loan officers or commissioners to pay to the 
 treasurer of this state the moneys so received, within thirty days 
 after the receipt thereof, or if such resolution be made subse- 
 quent to such receipt, then within thirty days after notice thereof 
 (1 R. S. 426, sec. 53.) 
 
 If no order is made to the contrary by the board of super-
 
 502 ^^ COUNTY AND TOWN OFFTCKRS. 
 
 visors, the loan ofiicers and commissioners are required to re- 
 loan all moneys received hj them upon the mortgages under 
 their charge, in the manner prescribed in the several acts under 
 which they may have been appointed, at an interest of seven 
 per cent. (Sec. 54.) 
 
 It is the duty of the loan officers and commissioners of loans 
 to exhibit to the board of supervisors of their respective coun- 
 ties, at each annual meeting of the board, all the mortgages 
 taken by them or their predecessors in office, for moneys loaned 
 pursuant to law, together with their books of accounts, minutes 
 and vouchers ; in order that the board of supervisors may as- 
 certain whether the moneys committed to the charge of such 
 loan officers and commissioners, have been loaned and con- 
 tinued to be kept as loans, according to law. (Sec. 55.) 
 
 It is the duty of the board of supervisors to examine such 
 mortgages, accounts and minutes, and to certify under their 
 hands, the state in which the}'- shall find the moneys under 
 charge of such loan officers and commissioners, and to transmit 
 their certificate bf mail to the comptroller of the state. (Sec- 
 tion 56.) 
 
 If it appear to the comptroller, from such certificate, that the 
 whole of the mone^^s under the charge of the loan officers and 
 commissioners have not been loaned, as required by law, it is 
 his duty to order suits to be commenced on the bonds of the 
 loan officers or commissioners so found in default ; and it is also 
 his duty to report such commissioners of loans, or any or either 
 of them, being in default, to the governor, in order that they 
 may be removed, and others appointed in their place. (Sec. 57.) 
 
 In every case of a mortgage sale by loan officers or commis- 
 sioners of loans, it is their dnty, in addition to the notice direct- 
 ed by law to be given of such sale, in the several acts under 
 which they are appointed, to cause a copy of their advertise- 
 ment to be published, for the space of eight weeks successively, 
 immediately preceding the day of sale, at least once in each 
 week, in one of the newspapers printed and publislicd in the 
 county in which the mortgaged premises are situate ; or, if no 
 newspaper is printed and pul)lishcd in such county, then in the 
 county nearest thereto, in which a newspaper is printed and 
 published. Tlio expense of such publication must bo paid in 
 the same inainier as the other expenses of advertising loan of-
 
 OF COUNTY AND TOWN OFFICERS. 503 
 
 fice sales are by law directed and required to be paid. (1 R. S. 
 426, sec. 58.) 
 
 Whenever any county, in wliich loans may have been made, 
 pursuant to either of the acts authorizing loans of moneys to the 
 citizens of this state, is divided, and default is made in the pay- 
 ment of principal or interest of any such loan, the loan officers 
 or commissioners, under whose care any mortgage given for any 
 such loan may be, have power to proceed to a sale of the mort- 
 gaged premises, pursuant to the provisions of the act under 
 which the mortgage has been given, whether the mortgaged pre- 
 mises are situated within the county of such loan officers or 
 commissioners, or not. In such cases, all notices required to be 
 affixed or published, must be affixed and published in the coun- 
 ty in which the mortgaged lands lie, and the sale must be made 
 in that county. (Sec. 59.) 
 
 It is enacted, that the powers conferred, and the duties impo- 
 sed, on the attorney general, by the fourth, fifth, sixth, seventh, 
 and eighth sections of title sixth of the ninth chapter of the Re- 
 vised Statutes, shall extend to loan officers and commissioners 
 of loans, in all cases of foreclosure under their direction, ex- 
 cept that the expenses of any appraisement, by loan officers, 
 must be charged to the county ; that all purchasers of mortga- 
 ged premises made by the loan officers, at any mortgaged sale 
 had under their direction, must be in the name of the board of 
 supervisors, and for the use and benefit of their respective coun- 
 ties ; and that all purcliases of mortgaged premises, made by 
 the commissioners of loans, at any mortgaged sale had under 
 their direction, must be for the use and benefit of the state. 
 (Sec. 60.) 
 
 When mortgaged premises are bid in by loan officers or com- 
 missioners of loans, for an amount less than the mortgage mo- 
 ney, interest, and costs due, it is the duty of the comptroller, 
 upon satisfactory proof being made to him that nothing more 
 can be collected upon any covenant in the mortgage, or upon any 
 bond or other security for the mortgaged debt, and that the defi- 
 ciency has not arisen from any neghgence or fault of the loan 
 officers or commissioners, to credit them with the full amount 
 due on the mortgage at the time of sale, upon their delivering to 
 him the original mortgage, and all other securities for the mort- 
 gage debt. (1 R. S. 427, sec. 61.) 
 
 When any moneys received by any loan officers, or com mis-
 
 504 OF COUNTY AND TOWN OFFICERS. 
 
 sioners of loans, remain in their hands unloaned, without any 
 fault or negligence on their part, and unemployed, it is the duty 
 of the comptroller, on satisfactory proof thereof being made to 
 him, so to state the accounts of such loan officers or commission- 
 ers, that they be not charged, with interest, on such moneys 
 whilst so remaining unloaned and unemployed. (Sec. 63.) 
 
 It is the duty of the commissioners of loans, and loan officers 
 of the several counties, to deposite their books of mortgages in 
 the clerk's offices of the respective counties for which they were 
 appointed, there to remain at all times, except when the com- 
 missioners and officers are in actual session (or the despatch of 
 their official duties. (Sec. 67.) 
 
 In case the title of lands sold by the commissioners of loans, 
 upon the foreclosure of a mortgage, and by the purchaser again 
 mortgaged to secure the principal due on the original mortgage, 
 fail, and the second mortgagor, for that cause, decline to make 
 payment of interest or principal, the comptroller is required, up- 
 on satisfactory evidence thereof, and upon their release to the 
 state in the usual manner, and upon satisfactory evidence that 
 no negligence or fault is imputable to the existing commission- 
 ers, to pass to their credit the amount of principal and interest 
 due upon such mortgage, and if foreclosed, also the proper costs 
 of the foreclosure, and to discharge the last mortgagor ; but the 
 credit will not discharge any other persons from any liability 
 therein. (Sec. 70.) 
 
 "Whenever differences or difficulties exist in the settlement of 
 accounts, between the comptroller and any loan officer, or com- 
 missioner of loans, and it is deemed by the comptroller necessa- 
 ry, he must summon the loan officers, or the commissioners of 
 loans, to attend at his office, with their books of minutes and of 
 mortgages, and all other of their papers and books which may 
 be requisite, within a reasonable time, to the end that the ac- 
 counts may be reconciled and settled by a comparison between 
 them, and the deficiency, if any, known and collected. If any 
 such loan officer refuse or neglect to appear, the comptroller must 
 report him or them, to the governor, and to the supervisors of 
 their respective counties. The necessary disbursements of the 
 journey of the officers, must be audited by the comptroller and 
 credited to lluMii upon the interest account of the loan in their 
 charge ; unless ijie (■oini)troller is satisfied, from an investigation 
 that their conduct has been culpable. (1 11. S. 429, sec. 71.
 
 OF COUNTY AND TOWN OFJFICERS. 505 
 
 Actions may be brought by the loan officers and commission- 
 ers of loans in a county, in the name of their respective officers, 
 upon any contract lawfully made with them or their predeces- 
 sors in their official cliaracter — -to enforce any liability, or any 
 duty enjoined by law, to such officers, or the body they represent 
 — to recover any penalties ov forfeitures given to such officers or 
 the bodies they represent — and to recover damages for any in- 
 juries done to the property or rights of such officers, or of the 
 bodies represented by them. Such actions may be brought by 
 such officers in the names of their respective offices, notwith- 
 standing the contract or obligation on which the same is foun- 
 ded, may have been made with or to, any predecessors of such 
 officers, in their individual names or otherwise, and notwithstan- 
 ding any right of action may have accrued previous to the time 
 when the officers commencing such suit, entered upon the exe- 
 cution of the duties of their office. (2 R. S. 569, sec. 106 and 
 107.) 
 
 Action against the loan officers and commissioners of loans of 
 a county, must be brought against them individually, specifying 
 in the process, pleadings, and proceedings, their name of office ; 
 and such actions may be commenced in the same manner as 
 against individuals. (Id. sec. 110. Vide Cons. art. 10, sec. 2) 
 
 10. Notaries Ptiblic. 
 
 Notaries public are nominated by the governor, and appoint- 
 ed by him with the consent of the senate. They hold their 
 offices for two years. (1 R. S. 110.) 
 
 Notaries public must reside in the respective cities or coun- 
 ties for which they shall be appointed, but may execute the du- 
 ties of their office at any place within the state. (1 R. S. 105, 
 sec. 16.) There are one hundred appointed for the city of New 
 York, and as many for the other cities in the state as the Com- 
 mon Council thereof may, by resolution, determine, which reso- 
 lution must be transmitted to the governor within twenty days 
 after being passed ; and as many appointed for the several 
 counties as the governor and senate see fit. (1 R. S. 104 ) 
 
 They have authority to demand acceptance and payment of 
 foreign bills of exchange, and to protest tlie same for non-accep- 
 tance and non-payment; and to exercise such other powers and 
 duties, as by the law of nations, and according to commercial
 
 506 OF COUNTY AND TOWN OFFICERS, 
 
 usage, or by the laws of any other state, government, or coun- 
 try, may be performed by notaries public. They may also de- 
 mand acceptance of inland bills of exchange, and payment 
 thereof, and of promissory notes, and may protest the samo for 
 non-acceptance or non-payment, as the case may require. (2 K. 
 S. 382, sees. 50, 51.) 
 
 - In all actions at law, the certificate of a notary, under his 
 hand and seal of office, of the presentment by him of any pro- 
 missory note or bill of exchange, for acceptance or payment, 
 and of any protest of such bill or note for non-acceptance, or 
 non-payment, and of the service of notice thereof on any or all 
 of the parties to such bill of exchange or promissory note, and 
 specifying the mode of giving such notice, and the reputed 
 place of residence of the party to whom the same was given, 
 and the post office nearest thereto, is presumptive evidence of 
 the facts contained in such certificate ; unless the defendant an- 
 nex to his answer an affidavit, denying his having received no- 
 tice of the non-acceptance or non-payment of such bill or note. 
 (Sec. 55.) 
 
 In case of the death or insanity of any notary public, or of 
 his absence or removal, so that his personal attendance or his 
 testimony cannot be procured in any mode provided by law, the • 
 original protest of such notary, under his official seal, upon such 
 seal and his signature being duly proved, will be presumptive 
 evidence of the fact of any demand of acceptance or of pay- 
 ment therein stated. So also, under such circumstances, any 
 note or memorandum, made by him in his own hand- writing, or 
 signed by him at the foot of any protest, or in a regular register 
 of official acts kept by him, will be presumptive evidence of the 
 fact of any notice of non-acceptance or non-payment having 
 been sent or delivered, at the time and in the manner slated in 
 such note or memorandum. (2 R. S. 382, sec. 52, 53.) 
 
 For any misconduct in any of the cases where notaries public 
 appointed under the authority of this state, are autliorized to 
 act. either by the laws of this state, or of any other state, gov- 
 ernment, or country, or by the law of nations, or by commercial 
 usage, they will be liable to the parlies injured for all damages 
 sustained ; and will he subject to criminal prosecution and pun- 
 ishment, in the same cases, and in the same manner, in which 
 other public officers of this state arc liable for misconduct in any
 
 OF COUNTY AND TOWN OFFICERS. 507 
 
 ofRcial duty or act, authorized or enjoined by the laws of this 
 state. (Id. sec. 54.) 
 
 11. Sealer of Weights and Measures. 
 
 The secretary of state is state sealer of weights and measures 
 by virtue of his office. There is an assistant state sealer in the 
 city of Albany, appointed by the governor and senate for two 
 years, who is required to be a practical mechanic, skilled in the 
 manufacturing and regulating of weights and measures. The 
 sealer of the county of Oneida is also an assistant state sealer. 
 (1 R. S. 103.) 
 
 In every county of the state there must be a county sealer of 
 weights and measures, appointed by the board of supervisors of 
 the county, to hold his office during the pleasure of the board 
 appointing him. (Id. 117.) 
 
 There must be chosen in each town, at the annual town 
 meeting, a town sealer of weights and measures. (Id. 387.) 
 
 It is the duty of the assistant state sealers and the county 
 sealers, to carefully preserve the copies of the original standards 
 delivered to them by the state sealer, and to cause them to be 
 compared once in every five years with the copies in the office 
 of the clerk of the Supreme Court. (Id. 778.) 
 
 The county sealer is required to transmit to the several town 
 sealers, at the expense of their towns, copies of the original 
 standards sent him for that purpose, by the state sealer ; on 
 which he must impress, in addition to the state and county 
 devices, such other device as the board of supervisors may 
 direct, for the several towns, which town device is to be recorded, 
 in the county clerk's office. 
 
 It is the duty of the county and town sealers, to compare all 
 weights and measures brought to them with the copies in their 
 possession, and after making them conform to the legal stand- 
 ard, to seal and mark them. They are entitled to a reasonable 
 compensation for making such weights and measures conform 
 to the legal standard. 
 
 Whenever any sealer resigns, is removed from office, or re- 
 moves from the county or town for which he is appointed, it is 
 his duty, and in case of his death, the duty of his representa- 
 tives, to deliver to his successor all the standard beams, weights 
 and measures in his possession. For a refusal, or neglect, his
 
 508 <^^ COUNTY AND TOWN OFFICERS. 
 
 successor may maintain an action against him, and recover 
 double the value of such articles, with costs; one half of which 
 he may retain, and with the other purchase such standards as 
 may be required. If any person sustain loss or damage in con- 
 sequence of another using any weights, measures, or beams, 
 not conformable to the legal standards, he may sue and recover 
 treble damages, with costs of suit. 
 
 It is enacted that certain county officers, among whom are 
 the county judge, all local officers elected in any county of the 
 state to discharge the duties of county judge and surrogate, and 
 any separate officer elected to perform the duties of the office of 
 surrogate, shall in no case perform any official services, unless 
 upon pre-payment of the fees and perquisites imposed by law 
 upon any person for services rendered by such officers, in their 
 official capacity. Upon payment being made, it is the duty of 
 the officers to perform the services required. They are required 
 to pay over all sums so received by them, for fees and perqui- 
 sites, after deducting their salaries, to the treasurers of the re- 
 spective comities, on the first Monday of May and November 
 of each year. Also, to render an account, giving each item of 
 fees received, verified by their affidavit, to the board of super- 
 visors at their annual meeting of each year. (Laws of 1849, 
 ch. 95.) 
 
 No person is eligible to any town office, unless he is an elec- 
 tor in the town where he is chosen. (1 R. S. 395, sec. 26.) 
 
 The supervisor, town clerk, assessors, collector, overseers of 
 the poor, commissioners of highways, justices of the peace, and 
 constables, must be chosen by ballot. The other town officers 
 may be chosen, either. 
 
 1. By ballot ; 
 
 2. IJy ayes and noes ; or, 
 
 3. IJy the rising or dividing of tlie electors ; 
 As tlic mooting may dotcrminc. (Id. 392, sees. 2, 3.) 
 
 If any town neglect, at i(s animal town meeting, to choose 
 its proper town officers, or either of them, any three .lustices of 
 the Peace of the town may, by warrant, under their hands and
 
 OF COUNTY AND TOWN OFFICERS. 509 
 
 seals, appoint such officers. The persons so appointed, hold 
 their respective offices until others are chosen or appointed in 
 their places, and have the same powers, and are subject to the 
 same duties and penalties, as if they had been duly chosen by 
 the electors. (1 R. 8. 398, sec. 50.) 
 
 The Justices making the appointment, must cause such war- 
 rant to be forthwith filed in the office of the town clerk, who is 
 required forthwith to give notice to the person appointed. (Id. 
 sec. 51.) 
 
 If any person chosen or appointed to the office of supervisor, 
 assessor, or overseer of the poor, refuse to serve, or die, or resign, 
 or remove out of the town, or become incapable of serving, 
 before the next annual town meeting after he may have been 
 chosen or appointed, the town clerk is required, within eight 
 days after the happening of such vacancy, to call a special 
 town meeting for the purpose of supplying the same. (Id. 
 sec. 53.) 
 
 If the electors do not within fifteen days after the happening 
 of such vacancy, supply the same by an election at town meet- 
 ing, the same must be supplied by the Justices of the town in 
 the like manner, and with the like effect, as above provided. 
 (Id. sec. 54.) 
 
 Vacancies in all town offices except the office of supervisor, 
 assessor, commissioner of highways, overseer of the poor, col- 
 lector, or overseer of highways, must be supplied by the Jus- 
 tices of the town, in the manner provided above. (Id. sec. 55.) 
 
 Whenever a vacancy occurs in any town office which Justices 
 of the Peace are authorized to fill, and there are less than three 
 Justices residing in the town in which such vacancy occurs, the 
 Justice or Justices residing in such town, may associate with 
 themselves one or more Justices of the Peace from any adjoin- 
 ing town, as may be necessary to make the number of three ; 
 and such three Justices will have the like power to fill such 
 vacancy, as if they were respectively Justices of the town in 
 which the vacancy occurred. (Id. sec. 56.) 
 
 Any three Justices of the Peace of a town may, for sufficient 
 cause shown to them, accept the resignation of any town officer 
 of their town. Whenever they accept any such resignation, 
 they must forthwith give notice thereof to the town clerk of the 
 town. (1 R S. 398, sec. 52.)
 
 510 OF COUNTY AND TOWN OFFICERS. 
 
 Town officers hold their offices for one year, and until others 
 are chosen or appointed. 
 
 12. Supervisor. 
 
 The supervisor of each town is required to receive and pay 
 over all moneys raised therein for defraying town charges, ex- 
 cept those raised for the support of highways and bridges, of 
 common schools, and of the poor, where poor moneys shall be 
 raised ; (1 R. S. 399, sec. 1 ;) to prosecute, in the name of his town 
 or otherwise, as may be necessary, for all penalties of fifty dol- 
 lars or under, given by law to such town, or for its use, and for 
 which no other officer is specially directed to prosecute ; (Sec. 
 2 ;) to keep a just and true account of the receipt and expendi- 
 ture of all moneys which shall come into his hands by virtue 
 of his office, in a book to be provided for that purpose at the ex- 
 pense of the town, and to be delivered to his successor in office ; 
 (Sec. 2 ;) to attend the annual meeting of the board of supervi- 
 sors of the county, and every adjourned or special meeting of 
 such board of which he shall have notice ; (Sec. 6 ;) to receive 
 all accounts which may be presented to him against the town, 
 and lay them before the board of supervisors at their next meet- 
 ing ; (Sec. 7 ;) to lay before the board of supervisors such copies 
 of entries concerning moneys voted to be raised in his town, as 
 shall be delivered to him by the town clerk. (Sec. 8.) 
 
 The supervisor is required, on the Tuesday preceding the an- 
 nual town meeting, to account with the Justices of the Peace and 
 the town clerk of the town, for the disbursement of all moneys 
 received by him. At every such accounting, the Justice and 
 town clerk are required to enter a certificate in the supervisor's 
 book of accounts, showing' the state of his accounts, and the 
 date of the certificate. (Sees. 4 and 5.) 
 
 Whenever the supervisor of any town is required by the sur- 
 veyor-general to cause a survey to be made of the bounds of his 
 town, it is the duty of such supervisor, within sixty days there- 
 after, to cause such survey to be made, and to transmit by mail 
 or otlierwisc a map and description thereof to the stnveyor-gen- 
 eral. The expense of such survey and map must be defrayed 
 by the several towns whose bounds, cither wholly or in part, 
 shall be described tliercby — such expense to be apportioned by 
 the board of supervisors of the county. If any supervisor re-
 
 OF COUNTY AND TOWN OFFICERS 511 
 
 fuse or neglect to perform siicli duties, lie will forfeit the sum of 
 fifty dollars. (1 R. S. 399, 400, sees. 9 and 10.) 
 
 The supervisors of the several cities and tov/ns in each of the 
 counties of the state, are required to meet annually iu their re- 
 spective counties for the despatch of business, as a board of su- 
 pervisors. They may also hold special meetings at such times 
 and places as they may find convenient, and have power to ad- 
 journ from time to time, as they deem necessary. They 
 have power at their meetings — 1. To make such orders con- 
 cerning the corporate property of the county as they may deem 
 expedient ; 2. To examine, settle and allow all accounts charge- 
 able against such county, and to direct the raising of such sums 
 as may bo necessary to defray the same ; 3. To audit the 
 accounts of town officers and other persons against their re- 
 spective towns, and to direct the raising of such sums as 
 may be necessary to defray the same ; and, 4. To perform 
 all other duties which may be enjoined on them by any law of 
 the state. They have power, also, at their annual meeting, or 
 when lawfully convened at any other meeting — 1. To cause to 
 be levied, collected, and paid to the treasurer of the county, 
 such sum of money as may be necessary to construct and re- 
 pair bridges therein, and to prescribe upon what plan and in 
 what manner the moneys so to be raised shall be expended ; 2. 
 To apportion the tax so to be raised among the several towns 
 and wards of their county, as shall seem to them to be equitable 
 and just ; 3. To cause to be levied, collected and paid, all such 
 sums of money as they shall deem necessary for rebuilding or re- 
 pairing the court house or jail of their county, or for building, re- 
 building or repairing the clerk's office of the county, and to pre- 
 scribe upon Vv^hat plan and in what manner the moneys so raised 
 shall be expended ; 4. To appoint special commissioners to layout 
 public highways in those cases where they shall be satisfied 
 that the road applied for is important, and that the authority 
 now conferred by law upon commissioners of highways cannot 
 or will not be exercised to accomplish the laying out of sucli 
 road ; 5. To cause to be levied, collected, and paid, in the man- 
 ner provided by law, such sum of money, not exceeding five 
 hundred dollars, in any one year, as a majority of the qualified 
 voters of any town may, at any legal town meeting, have voted 
 to be raised upon their town, for constructing or repairing roads 
 and bridges in such town. (1 R. S. 418, sees. 4 and 5.)
 
 512 OF COUNTY AND TOWN OFFICERS. 
 
 Special meetings of the boards of supervisors of any county 
 may be called by the clerk of the board, at any time, on the 
 written request of a majority of the supervisors of the county. 
 (Sec. 9.) 
 
 A majority of the supervisors of any county constitute a quo- 
 rum for the transaction of business ; and all questions which 
 arise at their meetings must be determined by the votes of the 
 majority of the supervisors present. (Sec. 10.) They are re- 
 quired to sit with open doors, and all persons may attend their 
 meetings. (Sec. 11.) 
 
 The supervisors are required, at each annual meeting, to 
 choose one of their number as chairman, who must preside at 
 such meeting, and in all other meetings held during the year. 
 In case of his absence at any meeting, the members present 
 must choose one of their number as a temporary chairman. 
 The chairman has power to administer an oath to any person 
 concerning any matter submitted to the board or connected with 
 their powers or duties. 
 
 Each board of supervisors is required, as often as may be ne- 
 cessary, to appoint some proper person to be its clerk, who holds 
 his office during the pleasure of the board, and whose duty it is, 
 
 1. To record, in a book to be provided for the purpose, all the 
 proceedings of the board ; 2. To make regular entries of all 
 their resolutions or decisions on all questions concerning the 
 raising or payment of moneys ; 3. To record the vote of each 
 supervisor on any question submitted to the board, if required 
 by any member present ; and, 4. To preserve and file all ac- 
 counts acted upon by the board. (Sec. 24.) 
 
 The books, records and accounts of the board must be depo- 
 sited with the clerk, and must be open, without reward, to the 
 examination of all persons. It is the duty of the clerk to desig- 
 nate, upon every account upon which any sum may be audited 
 and allowed by the board, the amount so audited and allowed, 
 and the charges for which the same was allowed ; and he must 
 also deliver to any person who may demand it, a certified copy 
 of any account on file in his office, on receiving from such per- 
 son six cents for every folio of one hundred and twenty-eight 
 words contained in sncli copy. (1 R. S. 422, sees, 20, 27.) 
 
 All accounts presented in any year to the board of supervisors 
 of any county must bo mimbcred, fioin number one upwards, in 
 the order in which they are presented ; and a memorandum of
 
 OF COUNTY AND TOWN OFFICERS. 513 
 
 the time of presenting the same, of tlie names of the persons in 
 whose favor they are made out, and by whom they are pre- 
 sented, must be entered in the minutes of the board to which 
 they are presented ; and no such account, after being so pre- 
 sented, can be withdrawn from the custody of the board, or its 
 clerk, for any purpose whatever, except to be used as evidence 
 upon a judicial trial or proceeding ; and in such case it must, 
 after being so used, be forthwith returned to such custody. 
 (Sec. 20.) 
 
 It is the duty of the board of supervisors, in each county in 
 the state, annually to publish in one or more public newspapers 
 in such county, the name of every individual who shall have 
 had any account audited and allowed by said board, and the 
 amount of said claim as allowed, together with the amount 
 claimed, and also their proceedings upon the equalization of the 
 assessment roll. (Sec. 21.) 
 
 No account can be audited by any board of superviscjrs for 
 any services or disbursements, unless such account is made out 
 in items, and accompanied with an affidavit attached to, and to be 
 filed with such account, made by the person presenting or claim- 
 ing the same, that the items of such account are correct, and 
 that the disbursements and services charged therein have been 
 m fact made or rendered, or necessary to be made or rendered, 
 at that session of the board, and stating that no part thereof has 
 been paid or satisfied. (Laws, 1847, ch. 490.) 
 
 All fees and accounts of magistrates and other officers for 
 criminal proceedings, including cases of vagrancy, are required 
 to be paid by the several towns or cities wherein the ofience has 
 been committed ; and all accounts rendered for such proceed- 
 ings must state where the offence was committed, and the board 
 of supervisors are required to assess such fees and accounts 
 upon the several towns and cities designated by the accounts. 
 (Id. ch. 455.) 
 
 It is made the duty of clerks of boards of supervisors, on 
 the thirty-first day of December, or within ten days previous 
 thereto, in each year, to make out a statement showing : 1. 
 The amount of compensation audited by the board of supervi- 
 sors to the members thereof, severally, within the year, and the 
 items and nature of such compensation as audited. 2. The 
 number of days the board shall have been in session within 
 such year, and the distance traveled by the members respect- 
 
 33
 
 514 OF COUNTY AND TOWN OFFICERS. 
 
 ively, in attending the meeting of the board. 3. Whether any 
 accounts were audited or allowed, without being verified accord- 
 ing to law, for any member of the board of supervisors, or any 
 other person, and if any, how much, and for Avhat. Such 
 statement must be certified by the clerk, and be printed in a 
 newspaper printed in the county, in the manner that the ac- 
 counts audited by boards of supervisors are required by law to 
 be printed, within two weeks after the statement has been so 
 made out ; and it is made the special duty of the clerk to see 
 that the same is so published, and for every intentional neglect 
 so to do, the clerk will be deemed guilty of a misdemeanor. 
 (Laws of 1847, ch. 455.) 
 
 It is the duty of the several boards of supervisors, as often as 
 may be necessary, to cause the court house and jail of their 
 respective counties to be duly repaired at the expense of such 
 counties ; but the sums expended in such repairs, cannot exceed 
 five hundred dollars in any one ^'■ear. They are also required 
 to cause to be prepared, within the jails of their respective 
 counties, or elsewhere, at the expense of such counties, so 
 many solitary cells for the reception of convicts who may be 
 sentenced to punishment therein, as the county court may 
 direct. (1 R. S. 422, sees. 28, 29.) 
 
 The legislature at its last session, enlarged the duties of 
 boards of supervisors, vesting them with certain legislative 
 powers, to wit : (Laws of 1849.) 
 
 It is enacted, that the boards of supervisors of the several 
 counties in the state, the county of New York excepted, at their 
 annual meeting, shall have power, within their respective coun- 
 ties, by a vote of two-thirds of all the members elected, to divide 
 or alter in its bounds any town, or erect a new town ; but they 
 cannot make any alterations that will place parts of the same 
 town in more than one Assembly District. Application to the 
 board must be made by at least twelve freeholders of each of 
 the towns to be affected by the division, and the board must be 
 furnislif'd witli a map and survey of all the towns to be affected, 
 showing the proposed alterations ; and if the application is 
 granted, a copy of the map, with a certified statement of the 
 action of the board annexed, must be filed in the office of the 
 secretary of state, and it is made the duty of the secretary to 
 cause the same to be printed with the laws of the next legisla-
 
 OF COUNTY AND TOWN OFFICERS. 515 
 
 ture after such division takes place, and cause the same to be 
 pubhshed in the same manner as other laws are published. 
 
 Notice in writing of such intended application, subscribed by 
 not less than twelve freeholders of the town or towns to be 
 affected, must be posted in five of the most public places in 
 each of the towns to be aflected thereb}'-, four weeks next pre- 
 vious to such application to the board of supervisors, and a copy 
 of such notice must also be published for at least six weeks 
 successively immediately before the meeting of the board at 
 which the application is to be made, in all the newspapers 
 printed in the county, not exceeding three in number. 
 
 Whenever the board of supervisors erect a new town in any 
 county, they must designate the name thereof, tlie time and 
 place of holding the first annual town meeting therein, and 
 three electors of such town whose duty it is to preside at such 
 meeting, appoint a clerk, open and keep the polls, and exercise 
 the same powers as Justices of the Peace, when presiding at 
 town meetings ; and in case any of the said electors refuse or 
 neglect to serve, the electors of the town, present at the meeting, 
 have power to substitute some elector of the town for each one 
 so refusing or neglecting to serve. Notice of the time and place 
 of the town meeting, signed by the chairman or clerk of the 
 board of supervisors, must be posted in four of the most public 
 places of the town by the persons designated to preside at the 
 town meeting, at least fourteen days before holding the same. 
 They must also fix the place for holding the first town meeting 
 in the town or towns from which the new town is taken. It is 
 provided, however, that nothing in the act shall affect the rights 
 or abridge the term of office of any Justice of the Peace, or other 
 town officer, in any such town, whose term of office has not 
 expired. 
 
 The board of supervisors has power and is authorized — 1. 
 At any meeting thereof, lawfully assembled, to purchase for the 
 use of the county any real estate necessary for the erection of 
 buildings, and for the support of the poor of such county. 2. 
 To purchase any real estate necessary for a site for any court 
 house, jail, clerk's or surrogate's office, or other public county 
 buildings in said county. 3. To fix upon and determine the 
 site of any such buildings, where they are already located. 4. 
 To authorize the sale or leasing of any real estate belonging to 
 r.-.zh co'inty, and nrescribe the mode in which any conveyance
 
 516 OF COUNTY AND TOWN OFFICERS. 
 
 shall be made. 5. To remove or designate a new site for any 
 county buildings, when such removal shall not exceed one 
 mile. 6. To cause to be erected necessary buildings for poor 
 houses, jails, clerk's and surrogate's offices, or other county 
 buildings, and prescribe the manner of erecting the same. 7. 
 To cause to be collected, by tax upon such county, any sum of 
 money to erect any of the buildings mentioned above, not ex- 
 ceeding .$5000 in any one year. 8. To borrow money for the 
 use of such county, to be expended in the purchase of any real 
 estate, or for the erection of any such buildings, and to provide 
 for the payment thereof, with interest, by tax upon such counter, 
 within ten years from the date of such loan, in yearly instal- 
 ments, or otherwise. 9. To authorize any town in such county, 
 by a vote of such town, to borrow any sum of money, not ex- 
 ceeding $4000 in any one year, to build or repair any roads or 
 bridges in such town, and prescribe the time for the payment of 
 the same, which time must be within ten years, and for assess- 
 ing the principal and interest thereof upon such town. 10. To 
 abolish, or revive, the distinction between the town and county 
 poor of such county. 11. To fix the time and place of holding 
 their annual meetings. 12. To extend and determine by reso- 
 lution, at their annual meeting, the time when each collector in 
 said county shall make return to the county treasurer ; but such 
 time can, in no case, extend beyond the first day of March, 
 then next. 13. To make such laws and regulations as the)'- 
 may deem necessary, and provide for the enforcing of the same, 
 for the destruction of wild beasts, thistles, and other noxious 
 weeds, to prevent the injury and destruction of sheep by dogs, 
 and to levy and enforce the collection of any tax upon dogsj 
 and to direct the application of such tax, and to provide for the 
 protection of all kinds of game, of shell, and other fish, within 
 the waters of their respective counties ; and all laws of this 
 state now existing in relation to preserving, or destroying, killing 
 and taking v/ild beasts, or birds, fish, eels, and shell fish, are 
 hereby repealed, such repeal to take cflect on, the \st day of 
 Jantuuij^ ill the y<:ar 1S5(). 14. To re(|uirc any county oiliccr, 
 or any (jllicer whose salary is paid hy the county, to make a 
 report under oath, to thiMn, on any subj(,>cte or matters connected 
 with ill'; duties of their oliiees ; ami the .s;ii(l dliiccMS are retjui- 
 cd to niak<! such rejjort whenever called upon hy the resolution 
 j)f ayy such board ; and if any ollicer neglect or refuse to make
 
 OF COUNTY AND TOWN OFFICERS. 517 
 
 any such report he will be deemed guilty of a misdemeanor. 
 None of the foregoing powers can be exercised except by a vote 
 of a majority of all the members elected in the county, nor can 
 such power be exercised under the fifth, tenth, and thirteenth 
 of the foregoing subdivisions, without a vote of two-thirds of 
 all the members elected to such boards. 
 
 It is provided, that boards of supervisors shall also have 
 power, within their respective counties, to change the location 
 of court houses, jails, clerk's offices, surrogate's and treasurer's 
 offices, or other public buildings, when the distance shall not 
 exceed one mile, upon notice having been given, signed by at 
 least twelve freeholders, for six successive weeks, immediately 
 before any meeting of such board, and specifying the new site 
 in some newspaper printed in the county ; but the foregoing 
 power for the removal of public buildings, where the distance 
 exceeds one mile, cannot be exercised, unless at the next annual 
 meeting after the publication of the aforesaid notice, a resolution 
 is passed to change the site of the building or buildings to the 
 place mentioned in the notice, by a vote of two-thirds of all the 
 members elected, and then only upon said resolution being 
 published for at least six v/eeks successively in some newspaper 
 printed in the county, immediately previous to the next annual 
 meeting of the supervisors, when by a vote of two-thirds of all 
 the members elected, the resolution being again passed, must go 
 into effect. 
 
 Every resolution of any board of supervisors, passed in pur- 
 suance of the foregoing provisions, must be signed by the chair- 
 man and clerk of the board, and be recorded in the book of 
 miscellaneous records of the county. 
 
 The comptroller is authorized to loan to any of the towns or 
 counties of the state, any money in the treasury belonging to 
 the capital of the common school fund, as is authorized to be 
 borrowed by any county or town whenever application is made 
 to him by the treasurer of such county. When such moneys 
 are loaned to such county, the treasurer thereof must execute 
 his official bond for the payment thereof, and when loaned to 
 any town, the supervisor thereof is required to execute his 
 official bond, in like manner. 
 
 If any supervisor refuse or neglect to perform any of the
 
 518 OF COUNTY AND TOWN OFFICER?. 
 
 duties required of him by law, as a member of the board of 
 supervisors, for every such offence, he will forfeit the sum of 
 two hundred and fifty dollars. (1 R. S. 422, sec. 31.) 
 
 The mayor, recorder, and aldermen of the city of New York, 
 are the supervisors of the city and county of New York. (Id.) 
 
 13 Toiv7i Clerk. 
 
 Every person chosen or appointed to the office of town clerk, 
 is required, before he enters on the duties of his office, and 
 within ten days after he has been notified of his election or ap- 
 pointment, to take and subscribe, before some Justice of the 
 Peace, or commissioner of deeds, the oath of office prescribed 
 by the constitution. (1 R. S. 395, sec. 29.) 
 
 The town clerk of each town in the state, has the custody of 
 all the records, books, and papers of the town, and he must 
 duly file all certificates of oaths and other papers required by 
 law to be filed in his office. (Id. 400, sec. 11.) 
 
 He must transcribe, in the book of records of his town, the 
 minutes of the proceedings of every town meeting held therein ; 
 and he must enter in such book, every order or direction, 
 and all rules and regulations made by any such town meet- 
 ing. (Sec. 12.) 
 
 He must deliver to the supervisor, before the annual meeting 
 of the board of supervisors of the county, in each year, certified 
 copies of all entries of votes for raising money, made since the 
 last meeting of the board of supervisors, and recorded in the 
 town book. (Sec. 13.) 
 
 The town clerks, immediately after the qualifying of any 
 constables chosen, or appointed, in their respective towns, are 
 required to return to the clerks of their respective counties, the 
 names of such constables. If any town clerk wilfully omit to 
 make such return, such omission will be deemed a misde- 
 meanor, and, on conviction, the person ofl'ending must be ad- 
 judged to pay a fine not exceeding ten dollars. (Sees. 14 
 and 15.) 
 
 Copies of all papers duly filed in the office of the town clerk, 
 and transcripts from tlie book of records certified by him, will 
 be evidence in all courts, in like manner as if the originals were 
 produced. (Sec. 10.) 
 
 The town clerk is re([uired, within ten days after every town
 
 OF COUNTY AND TOWN OFFICERS. 619 
 
 meeting, to transmit to each person elected to any town ofFice, 
 whose name shall not have been entered on the poll list, as 
 a voter, a notice of his election. (1 R. S. 393, sec. 16.) 
 
 The town clerk, by virtue of his office, is the clerk of the 
 town superintendents of common schools, in each town ; and it 
 is his duty — 
 
 1. To receive and keep all reports made to the town superin- 
 tendents from the trustees of school districts, and all the books 
 and papers belonging to the town superintendents, and to file 
 them in his office. 2. To attend all meetings of the town su- 
 perintendents, and to prepare, under their direction, all their re- 
 ports, estimates, and apportionments of school money, and to 
 record the same, and their other proceedings, in a book to be 
 kept for that purpose. 3. To receive all such communications 
 as may be directed to him by the superintendent of common 
 schools, and dispose of the same in the manner directed therein. 
 4. To transmit to the clerk of the county, all such reports as 
 may be made for such clerk by the town superintendents. 5. 
 To call together the town superintendents, upon receiving notice 
 from the county clerk, that they have not made their annual re- 
 port, for the purpose of making such report. And generally, to 
 do, and execute, all such things as belong to his office, and may 
 be required of him by the town superintendents. (Laws, 1847, 
 eh. 480.) 
 
 Town clerks must be allowed, in their accounts, for all pos- 
 tages actually paid by them on communications from town su- 
 perintendents of common schools, or from trustees of school 
 districts ; and it is their duty to transmit to the superintendent 
 the names of the clerks of the several school districts, to distri- 
 bute communications from the superintendent to the clerks of 
 the school district, and to receive and transmit to the superin- 
 tendent such returns and papers as he shall, by regulation, 
 require to be transmitted by them. (Id.) 
 
 Whenever any logs, timber, boards, or plank, in rafts, or 
 otherwise, shall have been drifted upon any island in any of the 
 waters within this state, or upon the bank or shore of any such 
 waters, and the owner of such lumber shall not, within three 
 months from and after the time when such lumber shall have 
 been so drifted, take the same away, it is the duty of the owner 
 or possessor of the land on which the same may have been 
 drifted, to deliver to the clerk of such city or town, a note, in
 
 520 OF COUNTY AND TOWN OFFICERS. 
 
 writing, signed by him, describing, as near as may be, such 
 lumber, together with the quantity, and mark or marks there- 
 of, and the place where the same is lodged. (1 R. S. 877, 
 sees. 1 and 4.) 
 
 It is the duty of the clerk to whom any such note in writing 
 is deUvered, to file the same in his office, and to produce the 
 same for the inspection of any person who requests it. (Sec. 5.) 
 The person delivering the note, may detain the lumber descri- 
 bed therein, until the owner appears and pays the damages, if 
 any, which such person is entitled to demand ; which damages 
 must be settled, in case of disagreement, by the fence viewers of 
 the town. (Sec. 6.) 
 
 If no person, within six months after the filing of such note 
 in writing, claim the lumber described therein, it is the duty of 
 the owner or possessor of the land whereon the same has drift- 
 ed, to give notice thereof, in writing, to the clerk of the city or 
 town, who must cause such lumber to be sold, at public auction, 
 after giving at least twenty days previous notice of such sale, 
 by advertisement, to be posted in at least three of the most pub- 
 lic places in such city or town. (Sec. 7.) 
 
 The clerk making the sale will be entitled to the same fees 
 therefor, as are allowed to officers making sales on executions is- 
 sued out of Justices' Courts. The moneys arising from the sale, 
 must be applied — 
 
 1. To the payment of such fees ; and 2, to the payment of 
 the damages which the owner or possessor of the land shall 
 have sustained, by reason of such lumber, and which may ac- 
 crue in the removal thereof. 3. The surplus, if any, must be 
 paid by the clerk of the city or town to the treasurer of the 
 county wherein such lumber shall have been found, for the use 
 of the poor. (Sec. 8.) 
 
 The expenses incurred by the state in printing and transmit- 
 ting any list of lands liable to be sold for taxes, and in publish- 
 ing notices of sale, are re(|uired to be charged on the lands men- 
 tioned in sucli list. The; county treasurers must retain, in 
 their ofiicos, five of llie c()j)i(;s transmitted to them, and cause 
 the remaining copi(!s to bo delivered to the town clerks. Every 
 town clerk to whom such copies shall be delivered, is required 
 to give notice, at the opening of every town meeting for the 
 election of tf)wn ollicers, that lists of all lands advertised for sale 
 for taxes, by the comptroller, arc deposited in his oliice, and tha
 
 OF COUNTY AND TOWN OFFICERS. 521 
 
 they may be there seen and examined, at all reasonable hours, 
 free of expense. (1 R. S. 462, sees. G6, 67, and 69.) 
 
 It is made the duty of the town clerk, at least eight days bo- 
 fore the holding of any special town meeting, to cause notices 
 thereof, under his hand, to be posted at four or more of the most 
 public places in the town ; which notices must specify the time, 
 place, and purposes of such meeting. (1 R. S. 390, sec. 16.) 
 
 Whenever any person, at any time, have any strayed horse 
 upon his enclosed land, or between the first day of November, 
 in any year, and the first day of April thereafter, have any 
 strayed neat cattle or sheep, upon his enclosed lands, such per- 
 son must, within ten days after the coming of any such stray 
 thereon, deliver to the clerk of the town within which such 
 lands lie, a note, in writing, containing the name and place 
 of abode of such person, and the age, color, and marks, na- 
 tural and artificial, of each stray, as near as may be. (Id. 
 401, sec. 17.) 
 
 If any person upon whose enclosed lands any such neat cat- 
 tle, horses, or sheep come, neglect to deliver such note, in 
 Avriting, to the town clerk, within the time required, he will be 
 precluded from all claim to compensation for keeping such 
 strays. (Id. sec. 18.) 
 
 FORM OF NOTE TO BE DELIVERED TO TOWN CLERK. 
 
 To James Gary, Clerk of the Town of Chenango. 
 
 Please take notice, that, on or about the fith day of July, in- 
 stant, a brindle heifer, of the age of two years, or thereabouts, 
 with a star in her forehead, and part of the left horn broken off, 
 strayed upon my enclosed land in the town of Chenango, and 
 now remains thereupon ; and that I reside in the village of 
 Binghamton, in said town. 
 
 Dated July 8ih, 1849. 
 
 Henry West. 
 
 The town clerk, on the receipt of every such note, is required 
 to enter the same at large, in a book, to be provided by him for 
 that purpose ; for which entry he is entitled to receive six cents 
 each, for all neat cattle and horses, and three cents for each 
 sheep, to be paid by the person delivering the note. (Id. sec. 
 
 ) 
 The book in which such entries are made, must always be
 
 522 OF COUNTY AND TOWN OFFICERS. 
 
 kept open to inspection ; and no fee can be taken by the clerk 
 for any search therein. (Id. sec. 20.) 
 
 The person delivering the note, is entitled to receive nine 
 cents each, for all neat cattle and horses, and three cents for 
 each sheep described in the note ; and he may detain the strays 
 until the owner appear and pay such fees, together with tlie fees 
 paid or due the clerk, and all reasonable charges for keeping the 
 strays ; such charges being first ascertained by two of the fence 
 viewers of the town, to be selected by the person claiming the 
 same, in case he and the owner of the stray cannot otherwise 
 agree. (Id. sec. 21.) 
 
 The following act in relation to the registry of chattel mort- 
 gages by town clerks was passed by the last legislature : (Laws, 
 1849, ch. 69.) 
 
 (Sec. 1.) It shall be the duty of the clerks of the several towns 
 and counties in this state, in whose offices chattel mortgages are 
 by law required to be filed, to provide proper books at the ex- 
 pense of their respective towns, in which the names of all par- 
 ties to every mortgage or instrument intended to operate as a 
 mortgage of goods and chattels, hereafter filed by them or either 
 of them, shall be entered in alphabetical order, under the head 
 of mortgagors and mortgagees, in each of such books respec- 
 tively. 
 
 (Sec. 2.) It shall be the duty of said several clerks to number 
 every such mortgage or copy so filed in said office, by endorsing 
 the number on the back thereof, and to enter such number in a 
 separate column, in the books in which such mortgages shall be 
 entered, opposite to the name of every party thereto, also the 
 date, the amount secured thereby, when due, and the date of 
 the filing of every such mortgage. 
 
 (Sec. 3.) The said several clerks for services under this act 
 shall be entitled to receive therefor, the following fees ; for filing 
 every such mortgage, or copy, six cents ; for entering the same, 
 in books, as aforesaid, six cents. 
 
 Whenever the term of ofllcc of any town clerk or supervisor 
 expires, and another person is elected or appointed to such office, 
 it is the duty of such succeeding town clerk or supervisor im- 
 mediately after he shall have entered on the duties of his office, 
 to demand of his predecessor all the records, books, and papers, 
 under his control belonging to such office. (1 II. S. 410, sec. 9.) 
 If either of the foregoing officers resign, and another person is
 
 OF COUNTY AND TOWN OFFICERS. 523 
 
 elected or appointed in his stead, tlie person so elected or ap- 
 pointed must make such demand of the person so resigning. 
 (Sec. 10.) 
 
 It is the duty of every person so going out of office, whenever 
 required pursuant to statute, to deliver upon oath all records, 
 books, and papers, in his possession, or under his control, belong- 
 ing to the office held by him ; which oath may be administered 
 by the officer to whom such delivery is made. (Sec. 11.) 
 
 Upon the death of either of the above mentioned officers, the 
 successors or successor of such officer, must make the demand 
 as above provided, of the executors or administrators of such de- 
 ceased officer ; and it is the duty of such executor or adminis- 
 trator, to deliver upon the like oath, all records, books, and 
 papers, in their possession, or under their control, belonging to 
 the office held by their testator or intestate. (Sec. 12.) 
 
 If any person so going out of office, or his executors or admin- 
 istrators, refuse or neglect, when lawfully required, to deliver 
 such records, books, or papers he will forfeit to the town, for 
 every such refusal or neglect, the sum of two hundred and fifty 
 dollars. (Sec. 13.) 
 
 14. Assessors. 
 
 There are three assessors in each town, one of whom is elect- 
 ed each year at the annual town meeting. They hold their 
 office for the term of three years. (1 R. S. 388, sec. 7.) If any 
 person chosen or appointed to the office of assessor, refuse to 
 serve, he will forfeit to the town the sum of fifty dollars. (1 R. 
 S. 397, sec. 44.) A quaker or reputed quaker, however, chosen 
 or appointed to the office of assessor will not be liable to such 
 penalty, if within three days after receiving notice of his elec- 
 tion or appointment, he affirm that he has conscientious scru- 
 ples, about executing the duties of the office. Such affirma- 
 tion must be made before some Justice of the Peace of the town, 
 who is required, without reward, to certify in writing, the day 
 and year when the same is taken, and deliver such certificate 
 to the person by whom the affirmation is made ; and such per- 
 son within eight days thereafter, must cause the certificate to be 
 filed in the office of the town clerk. (1 R. S. 397, sec. 46, and 
 47.) 
 
 The assessors are, by virtue of their offices, fence viewers of 
 their town. (Id. 388, sec. 8.)
 
 524 OF COUNTY AND TOWN OFFICERS. 
 
 It is the duty of the assessors, between the first of May and 
 the first of July in each year, to proceed to ascertain, by dihgent 
 inquiry, the names of all the taxable inhabitants in their re- 
 spective towns or wards, and also all the taxable property, real 
 or personal, within the same. For the sake of convenience, they 
 may divide, by mutual agreement, each town or ward into con- 
 venient assessment districts, not exceeding the number of as- 
 sessors in such town or ward. (1 R. S. 444, sec. 7.) 
 
 They are required to prepare an assessment roll, divided into 
 four columns. In the first column they must set down, accord- 
 ing to the best information in their power, the names of all the 
 taxable inhabitants in the town or ward ; in the second column, 
 the quantity of land to be taxed to each person ; in the third 
 column, the full value of such land ; in the fourth column, the 
 full value of all the taxable p'rsonal property owned by such 
 person, after deducting the just debts owing by him. (Sec. 9.) 
 
 Where a person is assessed as trustee, guardian, executor or 
 administrator, he must be assessed as such, with the addition to 
 his name of his representative character, and such assessment 
 must be carried out in a separate line from his individual assess- 
 ment ; and he must be assessed for the value of the real estate 
 held by him in such representative character, at the full value 
 thereof, and for the personal property held by him in such re- 
 presentative character, deducting from such personal property 
 the just debts due from him in such representative character. 
 (Sec. 10.) 
 
 The lands of non-residents must be designated in the same 
 assessment roll, but in a part separate from the other assess- 
 ments. If the land to be assessed be a tract which is subdivided 
 into lots, or be part of a tract which is so subdivided, the assess- 
 ors must proceed as follows : 1. They must designate it by its 
 name, if known by one — or if not distinguished by a name, or 
 the name is unknown, they must state by what other lands it is 
 bounded ; 2. If they can obtain correct information of the sub- 
 divisions, they must put down in their assessment rolls, and in 
 a first cohimn, all the unoccupied lots in their town or ward, 
 owned by non -residents, by their numbers alone, and without 
 the names of tlieir owners, beginning at the lowest number, and 
 proceeding in numerical order to the highest; 3. In a second 
 cohunn, and opposite to the number of each lot, they must set 
 down til*; quantity of land therein liable to taxation; 4. In a
 
 OF COUWTY AND TOWN OFFICERS. 525 
 
 third column, and opposite to the quantity, they must set down 
 the vahuition of such quantity ; 5. If such quantity be a full lot, 
 it nnist be designated by the number alone ; if it be a part of a 
 lot, t^ie part must be designated by boundaries, or in some other 
 way by which it may be known. If the land to be assessed be 
 a tract which is not subdivided, or if its subdivisions cannot be 
 ascertained by the assessors, they must proceed as follows : 1. 
 They must enter in their roll the name or boundaries thereof as 
 above directed, and certify in the roll that such tract is not sub- 
 divided, or that they cannot obtain correct information of the 
 subdivisions, as the case may be ; 2. They must set down, in 
 the proper column, the quantity and valuation as above direct- 
 ed ; 3. If the quantity to be assessed be the whole tract, such a 
 description, by its name or boundaries, will be sufficient ; but if 
 a part only is liable to taxation, that part, or the part not liable, 
 must be particularly described ; 4. If any part of such tract be 
 settled and occupied by a resident of the town or ward, the as- 
 sessors are required to except such part from their assessment of 
 the whole tract, and to assess it as other occupied lands are as- 
 sessed ; and if they cannot otherwise designate such parts, they 
 must notify the supervisor of the town, who must cause a sur- 
 vey and two manuscript maps to be made, for the purpose of as- 
 certaining the situation and quantity of every such occupied 
 part ; 5. One of the maps must be delivered by the supervisor 
 to the county treasurer, to be by him transmitted to the comp- 
 troller, and the other must be delivered, in like manner, to the 
 assessors ; 6. The assessors must then complete the assessment 
 of the tract, and deposite the map in the town clerk's office for 
 the information of future assessors. (1 R. S, 445, sees. 11, 12, 
 and 13. 
 
 Whenever it is deemed necessary; by the assessors of any 
 town, to have an actual survey made to ascertain the quantity 
 of any lot or tract of non-resident lands which is divided by the 
 town line, they must notify the supervisor, who is required to 
 cause the necessary surveys to be made at the expense of the 
 town. (1 R. S. 445, sec. 14.) 
 
 If any person whose real or personal estate is liable to taxa- 
 tion, at any time before the assessors have completed their as- 
 sessments, makes affidavit that the value of his real estate does 
 not exceed a certain sum to be specified in such affidavit ; or 
 that the value of the personal estate owned by him, after de-
 
 526 OF COUNTY AND TOWN OFFICERS. 
 
 ducting his just debts, and his property invested in the stock of 
 incorporated companies hable to taxation on their capital, does 
 not exceed a certain sum, to be specified in the affidavit, it is 
 the duty of the assessors to vakie such real or personal estate, or 
 both, as the case may be, at the sums specified in the affidavit. 
 (Sec. 15.) 
 
 If any trustee, guardian, executor, or administrator, specify 
 by affidavit the value of the property possessed by him, or un- 
 der his control by virtue of sucli trust, after deducting the just 
 debts due from him, and the stock held by him in incorporated 
 companies Hable to taxation, in that capacity, the assessors are 
 required, in like manner, to value the same at the sum specified 
 in the affidavit. (Sec. 16.) 
 
 All real and personal estate liable to taxation, the value of 
 which shall not have been specified by the affidavit of the per- 
 son taxed, must be estimated by the assessors at its full value, 
 as they would appraise the same in payment of a just debt due 
 from a solvent debtor, except where the assessors are specially 
 required by law to observe a different rule. (Sees. 17 and 18.) 
 
 The assessors are required to complete the assessment rolls 
 on or before the first day of August in every year, and to make 
 out one fair copy, to be left with one of their number. They 
 must also cause notices thereof to be forthwith put up at three 
 or more public places in their town or ward. (Sec. 19.) 
 
 The notices must set forth that the assessors have completed 
 their assessment roll, and that a copy thereof is left with one 
 of their number, to be designated in such notice, at some place 
 to be specified therein, where the same may be seen and exa- 
 mined by any inhabitants of the town or ward during twenty 
 days ; and that the assessors will meet on a certain day at the 
 expiration of such twenty days, and at a place to be specified 
 in the notice, to review their assessments, on the application of 
 any person conceiving himself aggrieved. (1 R. S. 446, 
 sec. 20.) 
 
 FORM OF NOTICE. 
 
 To all whom it may concern : Notice is hereby given that the 
 assessors of the town of Chenango have completed their assess- 
 ment roll for the present year, and that a copy thereof is left 
 with the undersigned John Eldridge, at his dwelling house in
 
 OF COUNTY AND TOWN OFFICERS. 527 
 
 Binghamtou, where the same may be seen and examined by 
 any of the inhabitants of said town, during twenty days from 
 this date ; and that the said assessors will meet at the hotel of 
 Hiram Way, in said town, on the 21st day of August instant, at 
 two o'clock in the afternoon, to review their assessments, on the 
 application of any person conceiving himself aggrieved. 
 Dated August 1st, 1849. 
 
 John Eldridge, ^ 
 Phineas Tompkins, > Assessors. 
 Morgan Lewis, j 
 
 The assessor with whom the foregoing notice is left, is re- 
 quired to submit the same, during the twenty days, to the in- 
 spection of all persons who apply for that purpose. (Id. sec. 21.) 
 
 The assessors must meet at the time and place specified in 
 the notice ; and on the application of any person conceiving 
 himself aggrieved by their assessment, must review such assess- 
 ment ; and when the person objecting thereto shall not have 
 previously made affidavit concerning the value of his property, 
 the assessors are required, on the affidavit of such person, to re- 
 duce their assessments to the sum specified in the affidavit. (Id. 
 sec. 22.) 
 
 If the person objecting to the assessment can show, by other 
 proof than his own affidavit, to the satisfaction of the assessors, 
 or of a majority of them, that such assessment is erroneous, the 
 assessors must review and alter the same, without requiring any 
 affidavits. (Id. sec. 23.) 
 
 Where any person in possession of personal property liable to 
 taxation, makes an affidavit that such property, or any part 
 thereof, specifying what part, is possessed by him as agent for 
 the owner, and discloses in such affidavit the name and resi- 
 dence of the owner, the assessors, if it appear that such owner 
 is liable to be taxed, must not include such personal estate in 
 the assessment of the property of the possessor. (Sec. 24.) 
 
 The affidavits specified above must be made before the as- 
 sessors, or one of them, either of whom is authorized to admin- 
 ister an oath for that purpose ; and the assessors must cause all 
 such affidavits to be filed in the office of the town clerk. (Sec. 
 25.) 
 
 If no objection is made to their assessments, or immediately 
 after the assessors shall have disposed of the objections, the as-
 
 528 OF COUNTY AND TOWN OFFICERS. 
 
 sessors, or a majority of them, are required to sign the assess- 
 ment roll, and attach thereto a certif^cate,^which must also be 
 signed by them. (Sec. 26.) 
 
 FORM OF assessor's CERTIFICATE. 
 
 ToiC'ii of Chenango, ss. — We do severally certify that we 
 have set down in the above assessment roll all the real 
 estate situated in the town of Chenango, according to our 
 best information ; and that, with the exception of those cases 
 in which the value of the real estate has been sworn to by 
 the owner or possessor thereof, we have estimated the value 
 of the said real estate at the sums which a majority of the 
 assessors have decided to be the true value thereof, and at 
 which they Vv^ould appraise the same in payment of a just 
 debt due from a solvent debtor ; and also that the said as- 
 sessment roll contains a true statement of the aggregate amount 
 of the taxable personal estate of each and every person named 
 in the said roll, over and above the amount of debts due from 
 such persons respectively, and excluding such stocks as are 
 otherwise taxable ; and that with the exception of those cases 
 in which the value of such personal estate has been sworn to 
 by the owner or possessor, we have estimated the same accord- 
 ing to our best information and belief. 
 Dated August 1st, 1849. 
 
 John Eldridge, j 
 Phineas Tompkins, > Assessors. 
 Morgan Lewis, ) 
 
 The roll thus certified must, in or before the first day of Sep- 
 tember in every year, be delivered by the assessors of each ward 
 in the city of New York, to the clerk of the city, and by the 
 assessors of every other town or ward, to the supervisor thereof, 
 who is required to deliver the same to the board of supervisors 
 at their next meeting. (1 R. S. 447, sec. 27.) 
 
 Tiio assessors, in the execution of their duties, are required to 
 use the forms, and pursue the instructions which are, from time 
 to lime, transmitted to them by the comptroller. (Sec. 28.) 
 
 If any assessor wilfully neglects or refuses to perform any of 
 the duties required of hitn by statute, he forfeits to the people of 
 the slate the sum of filly dollars. (Sec. 29.)
 
 OF COUNTY AND TOWN OFFICERS. 529 
 
 If any assessor neglect, or from any canse omit to perform his 
 duties, the other assessors, or either of them, of the town or 
 ward, must perform such duties, and certify to the supervisors, 
 with their assessment roll, the name of such delinquent assessor, 
 stating therein the cause of such omission. (1 R. S. 448, sec. 
 30.) 
 
 The boards of supervisors of the several counties, at every 
 annual meeting, are required to transmit to the comptroller the 
 names and places of abode, of the assessors in their respective 
 counties, who shall have wilfully refused or neglected to per- 
 form their duties ; and the comptroller must, thereupon, give 
 notice to the district attornies of the proper counties, to the end, 
 that they may prosecute such delinquent assessors, for the pe- 
 nalties incurred by them. (Id. 473, sec. 3.) 
 
 15. Collector. 
 
 The statute provides that one collector shall be chosen at the 
 annual town meeting in each town. (Id. 387, sec. 4.) 
 
 Kvery person chosen or appointed to the office of collector, 
 before he enters on the duties of his office, and within eight days 
 after he receives notice of the amount of the taxes to be collect- 
 ed by him, is required to execute to the supervisor of the town, 
 and lodge with him a bond, with one or more sureties, to be ap- 
 proved of by such supervisor, in double the amount of the taxes, 
 conditioned for the faithful execution of his duties as collector. 
 (1 R. S. 396, sec. 36.) 
 
 collector's bond. 
 
 Know all men by these presents, that we, John Doe and 
 Richard Roe, of the town of Oxford, county of Chenango, are 
 held and firmly bound unto the supervisor of the town of Ox- 
 ford, aforesaid, in the penal sum of — [insert a sum equal to dou- 
 ble the amount of taxes to he collected] — dollars, to be paid to 
 the said supervisor, his successor or successors in office ; for which 
 payment well and truly to be made, we jointly and severally 
 bind ourselves, our heirs, executors, and administrators, firmly 
 by these presents. Witness our hands and seals this fifth day 
 of June, 1849. 
 
 The condition of the above obligation is such, that if the 
 above bounden John Doe, who has been duly chosen collector 
 
 34
 
 530 OF COUNTY AND TOWN OFFICERS. 
 
 of said town, shall well and faithfully execute his duties as 
 
 such collector, then the above obligation to be void, otherwise to 
 
 remain in full force and virtue. 
 
 John Doe, [l. s.] 
 Richard Roe, [l. s.] 
 
 Sealed and delivered in presence of 
 Henry Brown. 
 
 The supervisor is required, within six days, to file the bond, 
 with iiis approbation endorsed thereon, in the office of the coun- 
 ty clerk, who must make an entry thereof in a book to be provi- 
 ded for the purpose, in the same manner in wiiich judgments 
 are entered of record. The bond will be a lien on all the real 
 estate held jointly or severally by the collector or his sureties, 
 within the county, at the time of the filing of the bond ; and 
 will continue to be such lien until its condition, together with all 
 costs and charges which may accrue, by the prosecution there- 
 of, shall be fully satisfied. (1 R. S. 396, sec. 37.) 
 
 If the person chosen to the office of collector, does not give 
 the required security, within the time limited for that purpose, 
 such neglect will be deemed a refusal to serve. (Sec. 41.) 
 
 The boards of supervisors of the several counties of the state, 
 must cause the corrected assessment roll of each town or ward 
 in their respective counties, or a fair copy thereof, to be deliver- 
 ed to the collector of such town or ward, on or before the 
 fifteenth day of December, in each year. (1 R. S. 449, sec. 36.) 
 
 To each assessment roll so delivered to a collector, a warrant, 
 under the hands and seals of the board of supervisors, or of a 
 majority of them, must be annexed, connnanding the collector 
 to collect, from the several persons named in the assessment 
 roll, ihe several sums mentioned in the last column of such 
 roll opposite to ilieir respective names. (Sec. 37.) 
 
 If the warrant is directed lo the collector of a town, it must 
 direct the colUctor, out of the moneys so to be collected, after 
 dcdiiciing the con)j)cnsation to which he may be legally entitled, 
 to pay- - 
 
 1. To the town superintendent of common schools of his 
 town, such sum as shall have been raised for the su])port of com- 
 mon .'^chools therein. 2. To the conmiissioners of highways of 
 the town, such .sum as shall have been raised (ov the support of 
 highways and bridges therein. 3. To the overseers of the poor
 
 OF COUNTY AND TOWN OFFICERS. 531 
 
 of the town, if there is no county poor house, or other place 
 provided in the county for the reception of the poor, such sum 
 as shall have been raised for the support of the poor in such 
 town. 4. To the supervisor of the town, all other moneys 
 which shall have been raised therein, to defray the expenses of 
 the town ; and 5. To the treasurer of the county, the residue 
 of the moneys so to be collected. 
 
 If the warrant is directed to the collector of a ward, it must 
 direct the collector to pay all the moneys to be collected, after 
 deducting his compensation, to the treasurer of the county. 
 
 In all cases, the warrant must authorize the collector, in case 
 any person named in the assessment roll refuses or neglects to 
 pay his tax, to levy the same by distress and sale of the goods 
 and chattels of such person ; and it must require all payments 
 therein specified, to be made by such collector on or before the 
 first day of February, then next ensuing. 
 
 FORM OF WARRANT TO BE ANNEXED TO THE ASSESSMENT 
 
 ROLL. 
 
 Town of Chenango, ss. 
 
 To the Collector of the said Town, Greeting : 
 You are hereby commanded to collect, from the several persons 
 named in the assessment roll hereto annexed, the several sums 
 mentioned in the last column thereof, opposite to their respective 
 names ; and in case any person upon whom such tax is impo- 
 sed, shall neglect or refuse to pay the same, you are to levy the 
 same by distress and sale of the goods and chattels of the per- 
 son so taxed. And you are to make return of this warrant, on 
 or before the 1st day of February, next ensuing ; and, within 
 that time, to pay over all moneys collected by virtue hereof, af- 
 ter deducting the compensation to which you are legally enti- 
 tled, in the following manner and order : — 1. To the town su- 
 perintendent of common schools of your town. 2. To the com- 
 missioners of highways of the said town. 3. To the overseers 
 of the poor of the town, [or, " the superintendents of the poor ot 
 the county."] 4. To the supervisor of the town ; to each of the 
 foregoing the several sums to which they are respectively enti- 
 tied. And lastly, to the treasurer of the county, the residue of 
 the money so collected. Hereof, fail not. 
 
 Given under our hands and seals this 15th day of Dec. 1849. 
 
 A. B. ; [l. s.]
 
 532 OF COUNTY AND TOWN OFFICERS. 
 
 As soon as the board of supervisors shall have sent or deU- 
 vered the rolls, with the warrants annexed, to the collectors, 
 they are required to transmit to the treasurer of the couuly an 
 account thereof, staling the names of the several collectors, the 
 amount of money they are respectively to collect, the purposes 
 for which the same are to be collected, and the persons to 
 whom, and the time when, the same are to be paid ; and the 
 county treasurer, on receiving such account, is required to charge 
 to each collector the sums to be collected by him. (1 R. S. 449, 
 sec. 39.) 
 
 When the laws respecting cities, direct the moneys assessed 
 for any local purpose, to be paid to any person or officer, other 
 than those mentioned above, the collector's warrant may be 
 varied accordingly, so as to conform to such alteration. (Id. 
 sec. 40.) 
 
 Whenever any town collector receives a warrant for the col- 
 lection of taxes, he must immediately cause notices of its receipt 
 to be posted up in five public places in the ward or town, and 
 so located, as will be most likely to give notice to the inhabitants. 
 A centra] and convenient place in the town, must be designated 
 in the notices, where he will attend from nine o'clock forenoon, 
 till four o'clock afternoon, at least once in each week, for 
 thirty days, on a day to be specified in the notices, for the 
 purpose of receiving payment of taxes. (1 R. S. 450, sec. 1.) 
 
 FORM OP collector's NOTICE. 
 
 Notice is hereby given, to the taxable inhabitants of the town 
 of Chenango, that I, the undernamed collector of taxes, in and 
 for the said town, have received the warrant for the collection of 
 the taxes for the present year ; and that I will attend at the hotel 
 of Iliram Way, in the village of Binghamton, in said town, on 
 Wednesday of each week, for thirty days from the date hereof, 
 from nine o'clock in the forenoon, till four o'clock in the after- 
 noon, for the purpose of receiving payment of taxes. 
 
 Dated the 15ih day of December, 1849. 
 
 Henry Hudson, Collector. 
 
 It is tin; (hily of tlic collector to attend at the time and place 
 designated in the notice ; and any person may pay his taxes to 
 the collector at such lime and place, or at any other place or
 
 OF COUNTY AND TOWN OFFICERS. 533 
 
 time^ on paying one per cent fees thereon, within thirty days 
 from the first posting of the notices. The collector cannot re- 
 ceive over one per cent fees, for receiving or collecting any taxes 
 v/ithin the thirty days ; but he is entitled to one cent fees on 
 every amount of tax under one dollar, paid in, or collected, with- 
 in the thirty days. (Id.) 
 
 It is the duty of the collector, after the expiration of thirty 
 days, to proceed and collect the unpaid taxes. For that pur- 
 pose, upon receiving the tax list and warrant, he must call at 
 least once on the person taxed, or at the place of his usual resi- 
 dence, if in the town or ward for which the collector has been 
 chosen, and demand payment of the taxes charged to him on 
 his property, (Id. sec. 4.) 
 
 In case any person refuses or neglects to pay the tax imposed 
 upon him, the collector is required to levy the same by distress 
 and sale of the goods and chattels of the person who ought to 
 pay the same, or of any goods and chattels in his possession, 
 wherever the same may be found within the district of the col- 
 lector ; and no claim of property made by any other person 
 will be available to prevent a sale. (Id. sec. 5.) 
 
 The collector must give public notice of the time and place 
 of sale, and of the property to be sold, at least six days previous 
 to the sale, by advertisements to be posted up in at least three 
 pubhc places in the town where such sale is made. The sale 
 must be by public auction. (Id, sec. 6.) 
 
 If the property levied on, is sold for more than the amount of 
 the tax, the surplus must be returned to the person in whose 
 possession such property was when the levy was made, if no 
 claim is made to such surplus by any other person. If any 
 other person claim such surplus, on the ground that the property 
 sold belonged to him, and such claim is admitted by the person 
 for whose tax the same was levied, the surplus must be paid to 
 such owner ; but if the claim is contested by the person for 
 whose tax the property was levied, the surplus moneys must be 
 paid over by the collector to the supervisor of the town, who 
 must retain the same until the rights of the parties are deter- 
 mined by due course of law. (1 R. S. 451, sec. 7.) 
 
 In case any person upon whom any tax is assessed in any 
 ward of any of the cities, or in any town within the state, 
 remove out of such ward or town after the assessment, and 
 before the tax ought by law to be collected ; or if any person
 
 534 OF COUNTY AND TOWN OFFICERS. 
 
 neglect or refuse to pay any tax which is assessed in any ward 
 of either of the cities, or in any town, upon any estate of such 
 person situated out of the ward or town in which he resides, 
 and within the county ; in either of those cases, the collector of 
 the town or ward may levy and collect such tax of the goods 
 and chattels of the person assessed in any ward within the said 
 cities, or in any town within the said county, to which such 
 person may have removed, or in which he resides. (Id. sec. 8.) 
 
 In case of the refusal or neglect of any person to pay any 
 tax imposed on him for personal property, if there are no goods 
 or chattels in his possession upon which the same may be 
 levied, and if the property assessed exceed the sum of one 
 thousand dollars, the collector of the town or ward, if he has 
 reason to believe that the person taxed has debts, credits, choses 
 in action, or other personal property, not taxed elsewhere in the 
 state, and upon which levy cannot be made according to law, 
 must report the same to the assessors of the town or ward ; and 
 any assessor may thereupon, in his discretion make application 
 within one year to the County Court, or to the Supreme Court, 
 to enforce the payment of such tax. (Id. sec. 9.) 
 
 Every collector is required, within one week after the time 
 mentioned in his warrant for paying the moneys directed to be 
 paid to the town officers of his town and to the county treasu- 
 rer, to pay to such town officers and county treasurer the sums 
 required in the warrant to be paid to them respectively, first 
 retaining the compensation to which he may legally be entitled. 
 The town officers to whom any such moneys are paid, must 
 deliver to the collector duplicate receipts therefor, one of which 
 duplicates must be filed by the collector with the county trea- 
 surer, and will entitle him to a credit in the books of the county 
 treasurer for the amount therein stated to have been received ; 
 and no other evidence of such payment, can be received by the 
 county treasurer. (Id. sec. 13.) 
 
 Whenever any greater amount of taxes arc assessed in any 
 town than the town charges, and its proportion of the state tax 
 and county charges, the surplus must be paid by the collector 
 to the county treasurer, who is required to place it to the credit 
 of the town, and the same goes to the reduction of the tax o 
 the succeeding year. (1 R. S. 453, sec. 14.) 
 
 The collector is required to receive the lax on a part of any 
 lot, piece, or parcel of land, charged with taxes, provided the
 
 OF COUNTY AND TOWN OFFICERS. 535 
 
 person paying such tax, furnishes a particular specification of 
 such part ; and if the tax on the remainder of such lot, piece, 
 or parcel of land, remains unpaid, the collector is required to 
 enter such specification in his return to the county treasurer, to 
 the end that the part on which the tax remains unpaid may be 
 clearly known. (Id. sec. 15.) 
 
 If the part on which the tax is so paid, is an undivided share, 
 the person paying the same, must state to the collector who is 
 the owner of such share, that it may be excepted in case of a 
 sale for the tax on the remainder ; and the collector must enter 
 the name of the owner on his account of arrears of taxes. (Id. 
 sec. 16.) 
 
 If any of the taxes mentioned in the tax list annexed to his 
 warrant remain unpaid, and the collector is not able to collect 
 the same, he must deliver to the county treasurer an account of 
 the taxes so remaining due ; and upon making oath before the 
 county treasurer, or in case of his. absence, before any Justice 
 of the Peace, that the sums mentioned in such account remain 
 unpaid, and ^hat he has not, upon diligent inquiry, been able to 
 discover any goods and chattels belonging to, or in the pos- 
 session of the persons charged with, or liable to pay such sums, 
 whereon he could levy the same ; he must be credited by the 
 county treasurer with the amount thereof. (Id. sec. 17.) 
 
 If any person chosen or appointed to the office of collector of 
 any town or ward in the state refuses to serve, or dies, resigns, 
 or removes out of the town or ward, before he shall have en- 
 tered upon or completed the duties of his office, or is disabled 
 from completing the same, by reason of sickness or any other 
 cause, the supervisors and any two Justices of such town or 
 ward, must forthwith appoint a collector for the remainder of 
 the year, who is required to give the like security, and is subject 
 to the like duties and penalties, and has the same powers and 
 compensation as the collector in whose place he is appointed ; 
 and the supervisor must forthwith give notice of such appoint- 
 ment to the county treasurer. But such appointment will not 
 exonerate the former collector or his sureties, from any liability 
 incurred by him or them. (1 R. S. 454, sec. 21.) 
 
 If a warrant has been issued by the board of supervisors, pre- 
 vious to the appointment of a person in the place of the original 
 collector, the original warrant, if it can be obtained, must be 
 delivered to the collector so appointed, and be considered as
 
 636 01"' COUNTY AND TOWN OFFICERS. 
 
 giving him the same power as if originally issued to himself; 
 but if the warrant cannot he obtained, a new one must be made 
 out by the clerk of the board of supervisors of the county, 
 which must be directed to the collector so appointed. Upon 
 every such appointment, the supervisor of the town or ward, if 
 he thinks it necessary, may extend the time limited for the col- 
 lection of the taxes, for a period not exceeding thirty days ; of 
 which extension he must forthwith give notice to the county 
 treasurer. (Id. sec. 22.) 
 
 If any collector refuses or neglects to pay to the several town 
 officers of his town, or to the county treasurer, the sums re- 
 quired by his warrant to be paid to them respectively, or either 
 of them, or to account for the same as unpaid, the county trea- 
 surer must, within twenty days after the time when such pay- 
 ments ought to have been made, issue a warrant under his hand 
 and seal, directed to the sherifl" of the county, commanding 
 him to levy such sum as shall remain unpaid and unaccounted 
 for by such collector, of the goods and chattels, lands and tene- 
 ments, of such collector, and to pay the same X.o the county 
 treasurer, and return such warrant within forty days after the 
 date thereof, which warrant the county treasurer must imme- 
 diately deliver to the sheriff" of the county ; but no such warrant 
 can be issued by the county treasurer for the collection of moneys 
 payable to town officers, without proof, by the oath of such town 
 officers, of the refusal or neglect of the collector to pay the same, 
 or account therefor. (Id. sec. 23.) 
 
 The sheriff" to whom such warrant is directed, must imme- 
 diately cause the same to be executed, and make return thereof 
 to the county treasurer within the time therein specified, and 
 pay to him the money levied by virtue thereof, deducting for 
 his fees the same compensation that the collector would have 
 been entitled to retain. Such part of the moneys collected, if 
 any, as ought to have been paid by the collector to town officers, 
 must be paid by the county treasurer to the officers to whom 
 the colhjctor was directed to pay the same; but if the whole 
 amount of moneys due from the collector shall not be collected 
 in such warrant, the county treasurer must first retain the 
 amount which ought to have been paid to him, before making 
 any [);iyiii<'iii to iIk; lown oOiccis. (I R. 8. '15.'), sec. 2'J.) 
 
 If tin; whole sum dm; iVom liu! collector is collected, the 
 sheriff" must so slate in his return ; but if a part only, or if no
 
 OF COUNTY AND TOWN OFFICERS. 537 
 
 part of such sum is collected, the sherifF must state in his return 
 the amount levied, if any, exclusive of his fees, and must also 
 certify that such collector has no goods or chattels, lands or 
 tenements, in his county, from which the moneys, or the residue 
 thereof, as the case may be, could be levied ; and in either case, 
 the county treasurer must forthwith give notice to the supervisor 
 of the town, or ward, of the amount due from such collector. 
 (Id. sec. 25.) 
 
 The supervisor must forthwith cause the bond of such collec- 
 tor to be put in suit. He will be entitled to recover thereon the 
 sum due from such collector, with costs of suit ; and the moneys 
 recovered must be applied and paid by the supervisor in the 
 same manner in which it was the duty of the collector to have 
 applied and paid the same. (Id. sec. 26.) 
 
 If any sheriff neglect to return any such warrant, or to pay 
 the money levied thereon, within the time limited for the return 
 of such warrant ; or make any other return than such as is 
 above mentioned, the county treasurer must forthwith proceed 
 to collect by attachment, the whole sum directed to be levied 
 by such warrant. (Id. sec. 27.) 
 
 In case the county treasurer fail to collect such moneys by 
 attachment, he must certify to the comptroller that he has 
 issued such warrant, stating its contents ; that the sheriff has 
 neglected to return the same in the manner required by law, or 
 to pay the money levied thereon, as the case may be ; and that 
 he has pursued the remedy by attachment, without effect. (Id. 
 sec. 28.) 
 
 The comptroller must give notice thereof to the attorney 
 general, Avho must immediately prosecute the sheriff and his 
 sureties, for the sum due on the warrant ; which sum, when 
 collected, must be paid to the treasurer of the state, and by him, 
 on the comptroller's warrant, to the county treasurer. (1 R. S. 
 455, sec. 29.) 
 
 Upon the settlement of the amount of taxes directed to be col- 
 lected by any collector in any of the towns or wards in the 
 state, (the city of New York excepted,) the county treasurer is 
 required, if requested, to give such collector, or to any of his 
 .sureties, a satisfaction piece in writing, and to acknowledge the 
 same before some person authorized to take acknowledgments 
 of the satisfaction of judgment in courts of record. (Sec. 30.) 
 
 Upon the production of such satisfaction piece, acknowledged
 
 538 OF COUNTY AND TOWN OFFICERS. 
 
 as aforesaid, the clerk of the county must enter satisfaction of 
 record of the collector's bond, which will thereby be discharged. 
 (Sec. 31.) 
 
 All losses which may be sustained by the default of the col- 
 lector of any town or ward, are chargeable on such town or 
 ward. (1 R. S. 474, sec. 6.) 
 
 If in consequence of having received irregular and imperfect 
 descriptions of the lands of non-residents in any town, the 
 comptroller shall apprehend that irregular or imperfect returns 
 may again be received, he may give notice of such apprehension 
 to the board of supervisors of the proper county at their annual 
 meeting, specifying the several towns in such county, the re- 
 turns from which will probably require correction. (Sec. 8.) It 
 is the duty of the board of supervisors to require the assessors 
 and collector of the town, specified in the notice of the comp- 
 troller, to meet in such town, at such place as shall be designa- 
 ted by the supervisors within thirty days of the expiration of 
 the time when the collectors are to make their returns to the 
 county treasurers. (Sec. 9.) The assessors and collectors must 
 meet pursuant to such requisition. The collectors must specify 
 to the assessors, the several lots to be returned as non-resident 
 property, by reason of the non-payment of the taxes. In case 
 the descriptions of any of the lots are found erroneous and im 
 perfect, the assessors must correct the same conformable to such 
 instructions as may have been received from the comptroller, 
 and the collector must thereupon return the lots as arranged 
 and described by the assessors, to the county treasurer. (Sec. 10.) 
 
 It is provided that in all the counties of the state, except the 
 county of New York, there shall be annually collected and lev- 
 ied, the following tax upon dogs : Upon every bitch of three 
 months old, or upwards, kept by any one person or family, two 
 dollars ; upon every additional bitch kept by the same person or 
 family, five dollars ; upon two dogs, six months old or upwards, 
 other than bitches kept by one person or family, one dollar ; 
 upon every such dog more than two, kept by the same person 
 or family, three dollars. (1 R. S. 884, sec, 1.) 
 
 The assessors of any town, at the time of making their an- 
 nual assessments, must inquire and ascertain the number of 
 dogs liable to be taxed, and enter in lists to bo made by them, 
 the name of every per.son in their respective towns, then owning 
 or keeping any dog subject to the above tax, the number
 
 OF COUNTY AND TOWN OFFICERS. 539 
 
 by such person, and the whole amount of the tax to be paid by 
 him. (Sec. 2.) 
 
 The owner or possessor of every dog hable to the above tax, 
 must, whenever required by any assessor, deUver to him a de- 
 scription in writing of every such dog owned or possessed by 
 him. For every neglect or refusal so to do, and for every false 
 statement, made in any description so furnished, he will forfeit 
 five dollars, to be recovered by the supervisor of the town. 
 (Sec. 3.) 
 
 The assessors of every town are required, within the time 
 fixed by law, for the completion of their assessment rolls, of 
 real and personal property, to make out a duplicate of the lists 
 so by them made, containing the names of the owners and pos- 
 sessors of dogs liable to taxation, with the amount payable by 
 each person, and annex thereto a direction to the collector of 
 the town, to levy, raise, and collect, the several sums in such 
 lists specified, of the persons respectively, opposite to whose names 
 the said sums are set, according to law, and to pay over the 
 same, after deducting his legal commissions, to the county trea- 
 surer ; which must be signed by them, and immediately deliv- 
 ered to the town collector. (Sec. 4.) 
 
 The collector, to whom such list is delivered, must proceed 
 and collect the sums of money therein specified, within sixty 
 days from the time of such delivery, in the same manner, and 
 with the like authority, in all respects, as in the collection of 
 taxes imposed by the supervisors of the county, and must pay 
 the same to the county treasurer, after deducting the commis- 
 sions allowed by law ; and the same remedies to compel such 
 collection, and the payment over of the moneys collected, may 
 be had against such collectors and their sureties, as in case of 
 taxes levied by supervisors. (1 R. S. 884, sec. 5.) 
 
 If any person duly assessed, refuses or neglects to pay the tax 
 so assessed for five days after demand thereof, it is lawful for 
 any person to kill the dog so taxed. (Sec. 6.) 
 
 The collectors are allowed to retain a commission of five dol- 
 lars upon the hundred dollars, and at that rate upon all sums 
 collected by them, pursuant to the directions of the assessors. 
 (Sec. 7.) 
 
 16. Constables. 
 There must be chosen at the annual town meeting in each
 
 540 OF COUNTY AND TOWN OFFICERS. 
 
 town, constables for the ensuing year, not to exceed five. (1 
 R. S. 387, sec. 4.) 
 
 Every person chosen or appouited to the office of constable, 
 before he enters on the duties of his office, and within eight 
 days after he is notified of his election or appointment, must 
 take and subscribe the oath of office prescribed by the constitu- 
 tion, and execute, in the presence of the supervisor or town clerk 
 of the town, with one or more sureties, to be approved of by such 
 supervisor or town clerk, an instrument in writing by which 
 such constable and his sureties jointly and severally agree to 
 pay to each and every person who may be entitled thereto, all 
 such sums of money as the said constable may become liable 
 to pay, on account of any execution that may be delivered to 
 him for collection. (Id. 396, sec. 38.) 
 
 FORM OF SECURITY TO BE GIVEN BY A CONSTABLE. 
 
 William Cooke, chosen a constable in the town of Oxford, 
 county of Chenango, and John Doe and Richard Roe, as sure- 
 ties, do hereby jointly and severally agree to pay to each and 
 every person who may be entitled thereto, all such sums of 
 money as the said constable may become liable to pay on ac- 
 count of any execution that may be delivered to him for collec- 
 tion. Dated the 5th day of June, 1819. 
 
 William Cooke, [l. s.] 
 John Doe, [l. l.] 
 
 Richard Roe, [l. s.] 
 Executed in the presence of Samuel 
 Peters, Supervisor of the Town of 
 Oxford ; or in the presence of Wil- 
 liam Stow, Town Clerk of the 
 Town of Oxford. 
 
 The supervisor or town clerk must endorse on the foregoing, 
 his approbation of the sureties therein named. (1 R. S. 390, sec. 
 39.) 
 
 FORM OF ENDORSEMENT. 
 
 I approve the sureties named iu the within instrument. Dated 
 the 5th day of June, 18^19. 
 
 Samuel Peters, Supervisor, (fcc. ; or, 
 William S'J'ow, Town Clerk, &c.
 
 OF COUNTY AND TO UN OFFICERS. . 54^ 
 
 The supervisor or town clerk, must then cause the bond to be 
 filed in the office of the town clerk. A copy of such instrument, 
 certified by the town clerk, will be presumptive evidence in all 
 courts, of the execution thereof by the constable and his sure- 
 ties. (Id.) 
 
 If any person chosen or appointed to the office of constable, 
 does not give the required security and take the required oath 
 of office, within the time limited for that that purpose, such ne- 
 glect will be deemed a refusal to serve. (Sec. 41.) 
 
 All actions against a constable or his sureties npon any in- 
 strument given as security for the faithful discharge of his du- 
 ties, must be prosecuted within two years after the expiration of 
 the year for which the constable named therein shall have been 
 elected. (Sec. 40.) 
 
 The constable's duties in serving summons, executions, ven- 
 ires, attachments, and warrants, have already been treated under 
 those respective heads. 
 
 Any constable to whom any execution may have been issued 
 and delivered, and whose term of office expires before the time 
 within which the collection or return of such execution is re- 
 quired by law, must proceed in all matters relative to said exe- 
 cution, in the same manner as if his term of office had not ex- 
 pired. (1 R. S. 370, sec. 297.) 
 
 Such constable, and his bail, will be liable for any neglect of 
 duty, and for moneys collected upon such execution, in the same 
 manner, and to the same extent, as if the term of office of such 
 constable had not expired. (2 R. S. 370, sec. 298.) 
 
 The constable who serves either the original or jury process 
 in a cause, cannot appear and advocate for either party at the 
 trial, but may act as attorney at any other stage or proceeding in 
 the cause. (Id. 331, sec. 45.) 
 
 It is enacted, that no constable shall directly or indirectly buy, 
 or be interested in buying, any bond, note, or other demand, or 
 cause of action, for the purpose of commencing any suit there- 
 on before a Justice ; nor shall any constable, either before or af- 
 ter suit brought, lend or advance, or agree to lend or advance, 
 or procure to be lent or advanced, any money or other valuable 
 thing, to any person, in consideration of, or as a reward for, or 
 inducement to, the placing, or having placed in the hands of 
 such constable any debt, demand, or cause of action whatever, 
 for prosecution or collection. (Id. 362, sec. 241.)
 
 542 OF COUNTY AND TOWN OFFICERS. 
 
 It is provided, that no constable shall ask or receive any mo- 
 ney or valuable thing from a defendant, or any other person, as 
 a consideration, reward, or inducement, for omitting to arrest 
 any defendant, or to carry him before any Justice ; or for delay- 
 ing to take any party to prison ; or for postponing the sale of 
 any property under any execution ; or for omitting or delay- 
 ing the execution of any duty pertaining to his office. (Sec. 
 
 240.) 
 
 It is declared, that every constable offending against the fore- 
 going provisions of the statute, will be deemed guilty of a mis- 
 demeanor, and, on conviction, will be subject to fine or imprison- 
 ment, or both, in the discretion of the court, and to a forfeiture 
 of his office. (Sec. 242.) 
 
 If a constable have collected any money on an execution, 
 and a recovery therefor be had against his sureties, upon com- 
 plaint thereof to three Justices of the town, they are to summon 
 him before them, to show cause why he should not be removed 
 from office. If the complaint be established to the satisfaction 
 of two of the Justices, after a hearing of the parties, or after the 
 refusal or neglect of the constable to appear, they must, by an 
 instrument under their hands, remove him from office, assign- 
 ing in it the reason of such removal, and file it in the office of 
 the town clerk, whose duty it is to cause a certified copy there- 
 of to be served on such constable ; whereupon, he ceases to have 
 any power or authority as such, and his office is deemed vacant. 
 (2 R. S. 368, sees. 280, 281, 282.) 
 
 The sheriff of any county, where the Supreme Court holds a 
 term is required to summon two constables of the county to at- 
 tend the court, who receive such compensation tlierefor as the 
 comptroller may deem reasonable. It is also the duty of the 
 sheriff of each county, to summon as many marshals or consta- 
 bles thereof, to attend the sittings of any Circuit Court, Court of 
 Oyer and Terminer, County Court, or Sessions, as the presiding 
 Judge of such court may direct ; or if no such directions have 
 been given, then as many as such sheriff may think necessary. 
 And every marshal or constable, so summoned, is required to 
 attend the sitting of the court, upon pain of being fined for 
 every days neglect, a sum not exceeding five dollars. (Id. 200.) 
 
 A constable to whom any process is directed and delivered, 
 must execute the same in person ; he cannot depute or autho-
 
 OF COUNTY AND TOWN OFFICERS. 543 
 
 rize another person to execute or serve it for him. (Id. 368, sec. 
 285.) 
 
 If a constable neglect to return an execution within five days 
 after the return day thereof, the party in whose favor it was is- 
 sued, may maintain an action against him and his sureties, and 
 recover the amount of tlie execution, with interest, from the 
 time the judgment was rendered ; and if judgment be recover- 
 ed in such suit against the constable, execution may issue thereon 
 immediately. And if a constable fail to pay over money col- 
 lected on execution, an action may be maintained by the party 
 entitled to such money, in his own name, on the instrument of 
 security given by him, and recover the amount so collected, with 
 interest, from the time of collection ; and execution may issue 
 immediately. (Id. 348, 349.) 
 
 It is provided, that every constable, to whom shall be directed 
 and delivered any attachment, summons, precept to summon a 
 jury, warrant to apprehend a witness, or any other person, or 
 any other process authorized by law to be issued by a Circuit 
 Judge, Supreme Court Commissioner, Judge of County Courts, 
 or Justice of the Peace, in any special proceeding or matter be- 
 fore such Judge, Supreme Court Commissioner, or Justice, ex- 
 cept civil suits, before Justices of the Peace, shall execute such 
 process as therein commanded ; and for any wilful neglect so to 
 do, may be fined by the officer issuing the same, in a sum not 
 exceeding twenty-five dollars. (2 R. S. G37, sec. 3.) 
 
 When any constable or other officer who may have summon- 
 ed any jury, in the case mentioned above, shall be required, by 
 the officer issuing such summons, to attend such jury, and take 
 charge of them, he is bound to do so ; and for any wilful neglect 
 to obey such order, or for any misconduct while attending such 
 jury by which the rights or remedies of any party to such pro- 
 ceeding may be impaired or prejudiced, such constable will be 
 liable to be fined by the officer before whom such jury shall 
 have appeared, in a sum not exceeding twenty-five dollars. 
 (Sec. 5.) 
 
 Upon such fine being imposed in either of the cases herein 
 before specified, notice thereof must be given to the person fined, 
 to the end that he may render any excuse to the officer impos- 
 ing the same, or show cause why such fine should be remitted. 
 (Sec. 6.) 
 
 If no such excuse is rendered, or cause shown, within thirty
 
 544 OF COUNTY AND TOWN OFFICERS. 
 
 days after the service of the notice, and such fine shall not have 
 been remitted by the officer imposing the same, snch officer 
 must make a special return of the delinquency or misconduct 
 for wJiich the fine was imposed, with the amount thereof, to the 
 next County Court, in which the delinquent resides. (Sec. 7.) 
 
 The clerk of the court to which such return is made, must de- 
 liver a copy thereof to the district attorney of the county, with 
 copies of the minutes of fines imposed by such court ; which 
 must bo collected, and may be remitted or mitigated in the 
 same manner as fines imposed by courts of record, upon de- 
 faulting jnrors. (Sec. 8.) 
 
 It is provided, that if any constable shall — 1. Wilfully and 
 corruptly refuse to execute any lawful process directed to him, 
 requiring the apprehension or confinement of any person charg- 
 ed with a criminal offence ; or 2. Shall corruptly or wilfully 
 omit to execute such process, by which such person shall es- 
 cape ; or 3. Shall wilfully refuse to receive, in any jail under 
 his charge, any offender lawfully committed to such jail, and 
 ordered to be confined therein, on any criminal charge or con- 
 viction, or on any lawful process whatever; or 4. Shall wilfully 
 suffer any offender lawfully committed to his custody, to escape 
 and go at large; or 5. Shall receive any gratuity or reward, or 
 any security or engagement for the same, to procure, assist, con- 
 nive at, or permit any prisoner in his custody, on any civil pro- 
 cess or any criminal charge or conviction to escape, whether 
 such escape be attempted, or effected, or not. He shall, upon 
 conviction, be punished by imprisonment in a county jail, not 
 exceeding one year, or by fine, not exceeding one thousand dol- 
 lars or by both such fine and imprisonment, (2 R. S. 770, sec. 
 
 70.)' 
 
 Every constable who is convicted of any offence specified 
 above, forfeits his office, and is forever disqualified to hold any 
 office or place of trust, honor, or profit, under the laws or con- 
 stitution of this state. (Sec. 21.) 
 
 17. Commissioners of Highways. 
 
 The electors of each town iiavc power, at their annual town 
 meeting, to determine, by resolution, whether there shall be 
 chosen one, or three highway conunissioncrs, and the number 
 so determined upon, must be ballottcd for and chosen ; and if
 
 OF COUNTY" AND TOWN OFFICERS. 545 
 
 only one is determined upon and chosen, he possesses all the 
 powers, and must discharge all the duties of commissioners of 
 highways, as prescribed by law, and holds his office for one 
 year. (Laws, 1847, eh. 455.) 
 
 Whenever three commissioners are chosen in any town, they 
 must be divided by lot, by the canvassers, upon the result of 
 the canvass, into three classes, to be numbered one, two, and 
 three ; the term of office of the first class must be one year — of 
 the second, two — and of the third, three ; and one commissioner 
 only must thereafter be annually elected in such town, to hold 
 his office for three years, and until a successor shall be duly 
 elected or appointed. But in case any commissioner is elected 
 to fill a vacancy, he holds the office only for the unexpired term 
 which shall have become vacant ; and if two vacancies are re- 
 quired to be filled, the canvassers must, after the canvass, deter- 
 mine by lot, the terms they shall respectively hold. When any 
 vacancy occurs, by death, removal, resignation, neglect to qua- 
 lify, or refusal to serve, it must be supplied until the next suc- 
 ceeding annual town meeting, by an appointment in writing, 
 under the hands of any three Justices of the Peace, or two Jus- 
 tices, and the supervisor of the town. W^henever any town 
 shall have determined upon having three commissioners, and de- 
 sires to return two, or have but one, such town has the power so 
 to do, by resolution, taken at an annual town meeting, and when 
 such resolution may have been adopted, no other commissioner 
 can be elected or appointed, until the term or terms of those in 
 office, at the time of adopting the resolution, expires, or becomes 
 vacant ; and they have power to act until their terms severally 
 become vacant, or expire, as fully as if the three continued in 
 office. 
 
 Every person chosen or appointed to the office of commis- 
 sioner of highways, before he enters on the duties of his office, 
 and within ten days after he is notified of his election or appoint- 
 ment, must take and subscribe, before some Justice of the Peace, 
 or commissioner of deeds, the oath of office prescribed by the 
 constitution. The oath must be administered without reward, 
 and the Justice or commissioner, before whom the same is ta- 
 ken, is required also, without reward, to certify, in writing, the 
 day and year when the same was taken, and to deliver such 
 certificate to the person by whom the oath was made. Such 
 person, within eight days thereafter, must cause the certificate to 
 
 35
 
 546 OF COUNTY AND TOWN OFFICERS. 
 
 be filed in the office of the town clerk. If a person appointed 
 to the office of commissioner of highways, does not take and 
 subscribe such oath, and cause the certificate thereof, to be filed 
 as above required, such neglect will be deemed a refusal to 
 serve. 
 
 Every commissioner of highways is required, before entering 
 upon his duties, and within ten days after notice of his election 
 or appointment, to execute to the supervisor of his town a bond 
 with two sureties, to be approved by the supervisor by endorse- 
 ment thereon, and filed with him, in the penal sum of one thou- 
 sand dollars, conditioned that he will faithfully discharge his 
 duties as such commissioner, and within ten days after the ex- 
 piration of his term of office, pay over to his successor what 
 money may be remaining in his hands as such commissioner, 
 and render to such successor a true account of all moneys re- 
 ceived and paid out by him as such commissioner. (1 R. S. 
 397, sec. 42.) 
 
 FORM OF commissioner's BOND. 
 
 Know all men by these presents, that we, Henry Eldridge, 
 Alfred Merrill, and Joseph Ely, of the town of Chenango, in 
 the county of Broome, are held and firmly bound unto Thomas 
 Jackson, supervisor of said town, in the penal sum of one thou- 
 sand dollars, to be paid to the said Thomas Jackson, or his suc- 
 cessor in office ; to which payment well and truly to be made, 
 we bind ourselves, our heirs, executors, and administrators, 
 jointly and severally, firmly by these presents. Sealed with our 
 seals, and dated the day of , 1849. 
 
 The condition of this obligation is such, that whereas the 
 above bounden Henry Eldridge, has been duly elected (or ap- 
 pointed) commissioner of highways, in and for the said town of 
 Chenango : Now, therefore, if the said Henry Eldridge shall 
 faithfully discharge his duties as such commissioner, and within 
 ten days after the expiration of his term of office pay over to his 
 successor what money may be remaining in his hands as such 
 commissioner, and render to such successor a true account of all 
 moneys received and paid out as such commissioner, then this 
 obligation to be void, otherwise in force. 
 
 Hknry l"h,nRii)OE, [r-. s.] 
 
 Ar.KRKJ) MlillRILI-, [l. s.] 
 
 JosEi'ii Ely, [l. s.]
 
 OF COUNTY AND TOWN OFFICERS. 547 
 
 Sealed, signed and delivered 
 in presence of 
 
 Cyrus Strong. 
 
 Upon the foregoing, the supervisor must endorse his approval 
 thus : — 
 
 " I approve of the within bond, and the sureties therein named. 
 
 Dated at Binghamton, the day of , 1849. 
 
 Thomas Jackson, 
 Supervisor of the Town of Chenango." 
 
 If any person chosen or appointed to the office of commis- 
 sioner of highways, refuses to serve, he forfeits to the town the 
 sum of fifty dollars. (1 R. S. 397, sec. 42.) 
 
 The commissioners of highways in the several towns in the 
 state have the care and superintendence of the highways and 
 bridges therein; and it is their duty — 1. To give directions for 
 the repairing of the roads and bridges within their respective 
 towns ; 2. To regulate the roads already laid out, and to alter 
 such of them as they, or a majority of them, shall deem incon- 
 venient ; 3. To cause such of the roads used as highways as 
 shall have been laid out, but not sufliciently described, and such 
 as shall have been used for twenty years, but not recorded, to 
 be ascertained, described, and entered of record, in the town 
 clerk's office ; 4. To cause the highways, and the bridges which 
 are or may be erected over streams intersecting highways, to be 
 kept in repair ; 5. To divide their respective towns into so many 
 road districts as they shall judge convenient, by writing under 
 their hands, to be lodged with the town clerk, and by him to be 
 entered in the town book ; such division to be made annually, 
 if they shall think it necessary, and in all cases to be made at 
 least ten days before the annual town meeting ; 6. To assign to 
 each of the said road districts such of the inhabitants liable to 
 work on highways as they shall think proper, having regard to 
 proximity of residence as much as may be ; and, 7. To require 
 the overseers of highways, from time to time, and as often as 
 they shall deem necessary, to warn all persons assessed to work 
 on highways, to come and work thereon with such implements^ 
 carriages, cattle, or sleds, as the said commissioners, or any one 
 of them, shall direct. (1 R. S. 616, sec. 1.) 
 
 8. The commissioners of highways have power to lay out, on
 
 548 OF COUNTY AND TOWN OFFICERS. 
 
 actual survey, such new roads in their respective towns as they 
 may deem necessary and proper ; and to discontinue such old 
 roads and highways as shall appear to them, on the oaths of 
 twelve freeholders of the same town, to have become unneces- 
 sary. (Sec. 2.) 
 
 9. The commissioners of highways of each town must render 
 to the hoard of town auditors at their annual meeting for audit- 
 ing the accounts of town officers, an account in writing, stating, 
 1. The labor assessed and performed in such town ; 2. The 
 sums received by such commissioners for fines and commuta- 
 tions, or otherwise ; 3. The improvements which have been 
 made on the roads and bridges in their town during the year 
 immediately preceding such report, and an account of the state 
 of such roads and bridges ; and, 4. A statement of the improve- 
 ments necessary to be made on such roads and bridges, and an 
 estimate of the probable expense of making such improvements 
 beyond what the labor to be assessed in that year will accom- 
 plish. (1 R. S. 617, sec. 3.) 
 
 10. They must furnish and deliver to the supervisor of their 
 own town a statement of such necessary improvements as the 
 roads and bridges therein will require for the year, and the pro- 
 bable expense thereof, which he is to lay before the board of su- 
 pervisors at their next meeting. The board must cause the 
 amount so estimated to be assessed, levied and collected in the 
 town the same as other town charges ; but such sum cannot 
 exceed two hundred and fifty dollars. (Sec. 4.) The law re- 
 quires them to erect, or cause to be erected, mile boards or mile 
 stones, on the post roads, and on such other public roads, in their 
 towns, as they may think proper ; and also guide posts or boards, 
 with proper inscriptions and devices, at the intersections of such 
 roads. (Sees. 5 and 9.) 
 
 When the quantity of labor assessed on the inhabitants of any 
 road district by the commissioners shall be deemed insufiicient, 
 by the overseer of such district, to keep the roads therein in re- 
 pair, it is the duty of such overseer to make anollier assessment 
 on the actual residents in such district, in the same proportion, 
 as near as may be, and not exceeding one-third of the number 
 of days assessed in the same year by the connnissioncrs on the 
 inhabitants of such district ; and the labor so assessed by an 
 overseer, must be pcrfurmcd or connuulcd for, in like manner, as
 
 OF COUNTY AND TOWN OFFICERS. 549 
 
 if the same had been assessed by the commissioners of high- 
 ways. (Sec. 8.) 
 
 The commissioners of highways, whenever they shall think 
 it necessary or useful, may direct and empower any overseer of 
 highways, in their respective towns, to procure a good and suf- 
 ficient iron or steel-shod scraper and plough, or either of them, 
 for the use of his road district ; to be paid for by the moneys 
 arising from commutations and fines within such district. (1 
 Ft. S. 618, sec. 11.) 
 
 It is the duty of the commissioners of highways of each town, 
 whenever any person resident in their town makes complaint 
 that any overseer of highways in such town has refused or ne- 
 glected to perform any of the duties required of him, and gives 
 or offers to such commissioners sufficient security to indemnify 
 them against the costs which may be incurred in prosecuting 
 for the penalty annexed to such refusal or neglect, forthwith to 
 prosecute such overseer for the offence complained of. If the 
 commissioners refuse or neglect to prosecute for such penalty 
 they forfeit, in every such case, the sum of ten dollars, to be re- 
 covered by the person who makes the complaint, and gives or 
 offers security. (Sees. 17 and 18.) 
 
 Commissioners of highways are authorized to administer oaths 
 to any witnesses or juries, in proceedings which may be had by 
 or before them. (Laws, 1847, ch. 455.) 
 
 Whenever the commissioners of highways of any town in the 
 state are of opinion that the sum of two hundred and fifty dol- 
 lars will be insufficient to pay the expenses actually necessary 
 for the improvement of roads and bridges, they may apply in 
 open town meeting for a vote authorizing such additional sum 
 to be raised as they may deem necessary, not exceeding two 
 hundred and fifty dollars. Before making application, the com- 
 missioners must give notice of their intention so to apply by 
 posting the same in a conspicuous manner, in at least five of the 
 most public places in the town, at least four weeks next prece- 
 ding the annual town meeting. The notice must specify the 
 amount to be applied for, and the purposes for which the same 
 is intended to be appropriated, with the probable amount neces- 
 sary to be expended at each place, if there is more than one. (1 
 R. S. 389, sees. 10 and 11.) Whenever any application for a 
 grant of money, for the purposes mentioned above, is made to any 
 town meeting, it is the duty of the commissioners making the
 
 gSO OF COUNTY AND TOWN OFFICERS. 
 
 same to exhibit a statement of their accounts, and an estimate 
 of the expenses necessary for the improvement of roads and 
 bridges in such town the ensuing year. (Sec. 12.) 
 
 Whenever the woods in any town are on lire, it is the duty of 
 the Justices of the Peace, the supervisor, and the commissioners 
 of highways of such town, and of each of them, to order such 
 and so many of the inhabitants of such town, hable to work on 
 the highways, and residing in the vicinity of the place where 
 the fire occurs, as they shall severally deem necessary, to repair 
 to the place where such fire prevails, and there to assist in extin- 
 guishing the same, or in stopping its progress. (1 R. S. 876, 
 sec. 2.) 
 
 It is enacted, that if any person so ordered to repair to and 
 assist in manner aforesaid, shall refuse or neglect to comply with 
 any such order, he shall forfeit and pay the sum of fifty dollars, 
 and shall also be deemed guilty of a misdemeanor, — and, on 
 conviction, shall be punished by fine or imprisonment, or both, 
 at the discretion of the court ; such fine not to exceed one 
 hundred dollars, and such imprisonment not to exceed sixty 
 days, (Sec. 3.) The forfeiture so recovered must be applied as 
 a reward to such person or persons as the officers above men- 
 tioned, or a majority of them, shall deem best entitled thereto, 
 for superior exertions in extinguishing or stopping the progress 
 of the fire. (Sec. 4.) 
 
 Actions may be brought by commissioners of highways, to 
 enforce any liability, or any duty enjoined by law to such offi- 
 cers, upon any contract lawfully made with them or their pre- 
 decessors, in their official character ; to recover any penalties or 
 forfeitures given to such officers, and to recover damages for any 
 injuries done to the property or rights of such officers. Such 
 actions may be brought by such officers in the name of their 
 respective offices, notwithstanding the contract or obligation on 
 which the same is founded may have been made with or to any 
 predecessors of such officers, in their individual names or other- 
 wise, and notwithstanding any right of action may have accrued 
 previous to the time when the officers commencing such suit 
 entered upon the execution of the duties of their office. (2 R. 
 S. 50^), sees. 100 and 107.) 
 
 Actions against commissioners of highways must be brought 
 against tliem individually, specifying in the process, pleadings, 
 and procceding.s, their name of office ; and such actions may be
 
 OF COUNTY AND TOWN OFFICERS. 551 
 
 commenced in the same manner as against individuals. (Sec. 
 110.) 
 
 Whenever the term of office of any commissioner of high- 
 ways expires, and another person is elected or appointed to such 
 office, it is the duty of such succeeding commissioner, immedi- 
 ately after he shall have entered on the duties of his office, to 
 demand of his predecessor all the records, books, and papers 
 under his control belonging to such o0ice. If such officer re- 
 sign, and another officer is elected or appointed in his stead, the 
 person so elected or appointed must make the demand of the 
 person resigning. It is the duty of every person so going out of 
 office, whenever required, to deliver upon oath all the records, 
 books, and papers in his possession or under his control, belong- 
 ing to the office held by him, — which oath may be administered 
 by the officer to whom the delivery is made. It is also the duty 
 of every commissioner of highways, so going out of office, at 
 the same time to pay over to his successor the balance of mo- 
 neys remaining on his hands, as ascertained by the auditors of 
 town accounts. (1 R. S. 410, 411, sees. 9, 10, and 11.) 
 
 Upon the death of any of the commissioners, the successors 
 or successor of such officer must make the demand as above 
 provided, of the executors or administrators of such deceased 
 officer ; and it is the duty of such executors or administrators 
 to deliver, upon the like oath, all records, books and papers in 
 their possession, or under their control, belonging to the office 
 held by their testator or intestate. (Sec. 12.) 
 
 If any person so going out of office, or his executors or ad- 
 ministrators, refuses or neglects, when lawfully required, to de- 
 liver such records, books or papers, he forfeits to the town, for 
 every such refusal or neglect, the sum of two hundred and fifty 
 dollars. (Sec. 13.) 
 
 18. Overseers of Highiuays. 
 
 There are as many overseers of highways chosen in each 
 town, at the annual town meeting, as there are road districts 
 therein. (1 R. S. 387, sec. 4.) If any person chosen to the 
 office of overseer of highways refuses to serve, he forfeits to the 
 town the sum of ten dollars. (Id. 397, sec. 45.) When any 
 person so chosen refuses to serve, or if his office becomes vacant, 
 the commissioners of highways of the town must, by warrant,
 
 552 OF COUNTY AND TOWN OFFICERS. 
 
 under their hands, appoint some other person in his stead ; and 
 the overseer so appointed will have the same powers, be subject 
 to the same orders, and liable to the same penalties, as overseers 
 chosen in town meetings. The commissioners making the ap- 
 pointment must cause the warrant to be forthwith filed in the 
 office of ttie town clerk, who must give notice to the person ap- 
 pointed, as in other cases. (1 R. S. 619, sees. 14 and 15.) 
 
 It is the duty of the overseers of highways in each town — 
 1. To repair and keep in order the highways within the several 
 districts for which they shall have been elected ; 2. When so 
 required by the commissioners of highways, or any one of them, 
 to warn all persons assessed to work on the highways in their 
 respective districts, to come and work thereon ; 3. To cause the 
 noxious weeds on each side of the highway within their respec- 
 tive districts to be cut down or destroyed twice in each year — 
 once before the first day of July, and again before the first day 
 of September ; the requisite labor to be considered highway 
 work ; and, 4. To collect all fines and commutation money, and 
 to execute all lawful orders of the commissioners. (Id. 617, 
 sec. 6.) 
 
 It is the further duty of the overseers, once in every month, 
 from the first day of April until the first day of December, to 
 cause all the loose stones lying in the beaten track of every road 
 within their respective districts, to be removed, and to cause the 
 monuments erected or to be erected as the boundaries of high- 
 ways, to be kept up and renewed, so that the extent of such 
 roads may be publicly known. (Sec. 7.) 
 
 It is the duty of the overseers of highways of each town to 
 maintain and keep in repair, at the expense of the town, such 
 guide posts as may have been erected by order of the commis- 
 sioners, within the limits of the districts for which they shall 
 have been respectively elected or appointed. (Sec. 10.) 
 
 If any overseer is employed more days in executing the sev- 
 eral duties enjoined on him than he is assessed to work on the 
 highway, he must be paid for the excess at the rate of seventy- 
 five cents per day, and be allowed to retain the same out of the 
 moneys wiiich may come into his hands for fines ; but he can- 
 not be permitted to commute for the days he is assessed. (Sec. 
 13.) 
 
 Every overseer of highways who refuses or neglects either — 
 I. To warn the people assessed to work on the highways when
 
 OF COUNTY AND TOWN OFFICERS. 553 
 
 he shall have been required so to do by the commissioners, or 
 either of them ; 2. To collect the moneys that may arise from 
 fines or commutations ; 3. To perform any of the duties which 
 may be enjoined on him by the commissioners of highways of 
 his town, and for the omission of which a penalty is not other- 
 wise provided ; for every such refusal or neglect, forfeits the 
 sum often dollars, to be sued for by the commissioners of high- 
 ways of the town, and, when recovered, to be applied by them 
 in making the roads and bridges therein. (1 R. S. 619, sec. 16.) 
 
 Each of the overseers of highways is required to deliver to 
 the clerk of the town, within sixteen days after his election or 
 appointment, a list subscribed by such overseer, of the names of 
 all the inhabitants in his road district who are liable to work on 
 the highways. (Sec. 21.) 
 
 The overseers are required to give at least twenty-four hours 
 notice to all persons assessed to work on the highways, and re- 
 siding within the limits of their respective districts, of the time 
 and place when and where they are to appear for that purpose, 
 and with what implements ; but no person being a resident of 
 the town can be required to work on any highway other than in 
 the district in which he resides, unless he elect to work in some 
 district where he has land. (I R. S. 624, sec. 41.) 
 
 It is also their duty to notify the agent of every non-resident 
 landholder whose lands are assessed, (if the agent reside in the 
 town where the assessment is made,) of the number of days 
 such non-resident is assessed, and of the time when, and the 
 place where, the labor is to be performed — which notice must 
 be given at least five days previous to the time appointed. 
 (Sec. 42.) 
 
 If the overseer cannot ascertain that such non-resident has 
 an agent within the town, he must affix a written notice on the 
 outer door of the building in which the last town meeting in 
 such town was held, containing a list of the names of the non- 
 residents, when known, and a description of the tracts of land 
 comprised in his list, together with the number of days' labor 
 assessed on such tract, and a specification of the time when, and 
 the place where, such labor is to be performed — which notice 
 must be posted at least twenty days before the time appointed 
 for performing the labor. (Sec. 43.) 
 
 Every overseer of highways is required, on or before the first 
 day of October in each year, to make out and deliver to the su-
 
 554 OF COUNTY AND TOWN OFFICERS. 
 
 pervisor of his town a list of all the lands of non-residents, and 
 of persons unknown, which were taxed on his list, but on which 
 the labor has not been paid, and the amount of labor unpaid — 
 on which, he must make and subscribe an affidavit before some 
 Justice of the Peace of the town, that he has given the requi- 
 site notices, and that the labor has not been performed. If he 
 refuse or neglect so to do, he forfeits five dollars for each offence 
 and the amount of taxes for such labor, at the rate of sixty-two 
 and a half cents per day, to be recovered by the commissioners 
 of highways, and applied to making and improving roads and 
 bridges in the town. It is the duty of the supervisor of the 
 town to receive such list, and lay it before the board of supervi- 
 sors of the county. (1 R. S. 626, sees. 56, 57, and 58.) 
 
 It is the duty of the board, at their next meeting, to cause the 
 amount of such arrearages of labor (estimating a day at sixty- 
 two and a half cents,) to be levied and collected of the lands so 
 returned, and to order it to be paid to the commissioners of the 
 town, to be applied on the roads and bridges of the district where 
 the labor was assessed. (Sec. 59.) 
 
 Every overseer must, on the second Tuesday before the an- 
 nual town meeting in his town, within the year for which he is 
 chosen, render to one of the commissioners of the town, an ac- 
 count in writing, verified by his oath, which the commissioner 
 may administer, containing 1 . The names of all persons assessed 
 to work on the highways in his district. 2. The names of all 
 who have actually worked on the highways, and the number of 
 days worked. 3. The names of all who have been fined, and the 
 sums. 4. The names of all who have commuted, and how the 
 moneys arising from fines and commutations, have been expen- 
 ded. 5. A list of all the lands which he has returned to the 
 supervisor, for non-payment of taxes, and the amount of tax in 
 each tract of land so returned. (Sec. 60.) 
 
 He must also, then and there pay to the commissioner all 
 moneys in his hands, to be applied to the improvement of roads 
 and bridges in his town. For any refusal or neglect to render 
 such account, or pay such moneys, he forfeits five dollars, to be 
 recovered with the moneys in his hands, by the commissioners, 
 to be applied to the roads and bridges in the town. (Sees. 61 
 and 62.) 
 
 Whenever it appears from the animal return of any overseer 
 of highways, that any person assessed to work therein, (other
 
 OF COUNTY AND TOWN OFFICERS. 555 
 
 than non residents,) has neglected to work his full time, and has 
 not commuted therefor, or ot"herwise satisfied such deficiency, 
 the commissioners are to re-assess the same at the next assess- 
 ment, and add it to the annual assessment of such person. But 
 this does not exonerate an overseer from any penalty which he 
 may have incurred for any neglect of duty. (1 R. S. 627, sees. 
 63 and 64.) 
 
 19. Overseers of the Poor. 
 
 There are one (or two) overseers of the poor in each town, 
 chosen at the annual town meeting. (I R. S. 387, sec. 4.) 
 
 The father, mother, and children, who are of sufficient ability, 
 of any poor person who is blind, old, lame, impotent, or decrepit, 
 so as to be unable to maintain himself, is required to relieve 
 and maintain such person, in such manner as the overseers of 
 the poor of the town may approve. Upon failure to do so, it is 
 the duty of the overseer to apply to the Court of Sessions of the 
 county where such relative dwells, for an order to compel such 
 relief; giving fourteen days' notice, in writing, of such applica- 
 tion, to the person against whom the order is sought to be ob- 
 tained. (I R. S. 782.) 
 
 The court, upon a hearing, may order such of the relatives 
 as appear able, to maintain such poor person, specifying the sum 
 to be paid for that purpose weekly. Such relatives are liable as 
 follows : 1. The father is required to give such relief and sup- 
 port ; if there be none, or he be unable, then the children of such 
 poor person ; if there be none, or they be not able, then the 
 mother. If a relative is unable wholly to maintain such poor 
 person, but can do part, the court may direct two or more of dif- 
 ferent degrees, to render such support, and prescribe the propor- 
 tion in which they must contribute for that purpose ; or if the 
 relatives are not able wholly to give such support, but can do 
 part, the court may direct them to contribute for that purpose, 
 according to their ability. The costs of such application are to 
 be paid by the relatives against whom any order may be made ; 
 and payment thereof, and obedience to the order of maintenance, 
 may be enforced by attachment. (1 R. S. 782, 783, sees. 3, 4, 5 
 and 6.) 
 
 Any person neglecting to maintain such poor person, or to do 
 it in such manner as the overseers may approve, or neglecting
 
 556 OF COUNTY AND TOWN OFFICERS. 
 
 in any manner to obey the order of the court, is hable to an ac- 
 tion by the overseers, and for costs of suit. (Sec. 7.) 
 
 When any father, or mother being a widow, or hving separate 
 from her husband, shall abscond from their children, or a hus- 
 band from his wife, leaving them likely to become chargeable 
 upon the public, the overseers of the poor of the town where 
 such wife and children are, may apply to any two Justices of 
 the Peace of the county in which such absconding person may 
 have any real or personal estate, for a warrant to seize the same ; 
 to which, when seized, by virtue of such warrant, the overseers 
 have the same right and title as such person had at the time of 
 his or her departure. All sales or transfers of such property, 
 made after the issuing of such warrant, whether in payment of 
 an antecedent debt, or for a new consideration, are void. The 
 overseers must immediately make an inventory of the property 
 seized, and return the same, together with their proceedings, to 
 the next Court of Sessions of the county where they reside. If 
 the court confirm them, they are to direct what part of the per- 
 sonal property shall be sold, and how much of the proceeds, and 
 of the rents and profits of the real estate, if any, must be ap- 
 plied towards supporting such children or wife of the person ab- 
 sconding. (Sees. 8, 9, 10.) 
 
 If the party return, and support such wife and children, or 
 give security satisfactory to any two Justices of the town, or to 
 the overseers of the poor, that such wife and children shall not 
 become chargeable to the town or county, the warrant is to be 
 discharged by order of the Justices, and the property restored to 
 the party. (Sec. 11.) 
 
 The overseers must sell at public vendue, any property so or- 
 dered to be sold, and receive the rents and profits of the real es- 
 tate of the person so absconding, and in those towns which sup- 
 port their own poor, apply it to maintaining such wife or chil- 
 dren. They must account to the Court of Sessions for such 
 money, from time to time. In those counties where all the poor 
 arc a charge upon the county, the superintendents of the poor 
 have the same powers and rights as arc above given to the over- 
 seers, and arc subject to the same obligations in respect to com- 
 pelling relatives to maintain paupers, and in respect to the seiz- 
 ure of property of any person absconding or abandoning his wife 
 or family. (1 R. S. 784, sees. 12 and 13.) 
 
 All moneys collected by the overseers of any town in a county
 
 OF COUNTY AND TOWN OFFICERS. 557 
 
 where the poor are all a county charge, from the relatives of any- 
 poor person ; or from the sale of personal, or from the rents and 
 profits of real estate, of any person absconding and abandoning 
 his family ; or for any fines, penalties, or forfeitures ; or on any 
 bond or security given for the indemnity of the overseers of the 
 town ; and all other moneys received in their official capacity, 
 must be paid over within thirty days to the county treasurer. 
 For any neglect, the county treasury may recover the same, with 
 ten per cent, interest, from the time they should have been paid. 
 (Id. 787, sec. 24.) 
 
 The board of supervisors of any county, may abolish the dis- 
 tinction between town and county poor, and make the expense 
 a county charge. In case of such determination, the clerk of 
 the board must serve a copy thereof on the clerk of each town, 
 village, or city in the county, and give notice thereof to the over- 
 seers of the poor, who, within three months thereafter, must pay 
 over all moneys in their hands, to the county treasurer, after dis- 
 charging all demands against them as overseers. If they ne- 
 glect, the county treasurer may recover the same of them, with 
 interest from the time it should have been paid over. (Sec. 25.) 
 
 Every poor person Avho is blind, lame, old, sick, impotent, or 
 decrepit, so as to be unable to maintain himself, is to be main- 
 tained, in those counties where there is a distinction between the 
 town and county poor, by the town in which he has gained a 
 settlement ; and if he have no settlement then in the county 
 where he may be. (1 R. S. 792, sec. 46.) 
 
 Every adult, not being a pauper, having resided in any town 
 for one year, and his family are deemed settled in such town. 
 A minor may be emancipated from his or her father, and give a 
 settlement, if a female, by being married, and living for one year 
 with her husband, when his settlement will also be that of his 
 wife ; if a male, by being married and living one year separate 
 from his father ; or by being bound an apprentice, and serving 
 one year as such ; or being hired, and serving for one year, and 
 receiving the wages himself. Until a poor person have gained a 
 settlement in his own right, the settlement of the father or mother 
 is deemed his ; but no child born in any place used for keeping 
 the poor of any town, city, or county, or while the mother is a 
 pauper, can give a settlement, merely by reason of the place of 
 its birth. No pauper can be removed from one city or town to 
 another, but must be supported by the town in which he has
 
 558 OF COUNTY AND TOWN OFFICERS. 
 
 gained a settlement ; if he has gained no such settlement, then 
 by the county in which he has become sick or disabled ; if he be 
 in a county where the distinction between town and county 
 poor be abolished, he must be supported by such county ; if he 
 be in a town, in a county where the respective towns are liable 
 to support their poor, and have gained a settlement in some other 
 town of that county, he must be supported at the expense of the 
 town where he may be ; and the overseers thereof may notify in 
 writing, the overseers of the town where he belongs, or one of 
 them, requiring them to provide for the support of such piiuper ; 
 if they do not within ten days after such notice, give notice in 
 writing to the overseers of the town where such pauper then is, 
 that they will appear before the county superintendents, specify- 
 ing a place and day, which must not be lesss than ten, nor more 
 than thirty days, from the time of service thereof, and contest 
 the settlement of such pauper, they and their town are forever 
 precluded from denying or contesting the same. The superin- 
 tendents, on hearing and determining such controversy, may 
 award costs, not exceeding ten dollars, to the prevailing party, 
 which may be recovered by an action, from the opposite party, 
 and their decision is final and conclusive. (1 R. S. 792, 793.) 
 
 If the party against whom the superintendents decide, refuse 
 or fail to take and support such pauper, the charge of giving 
 notice, and all the expenses of his maintenance, after being 
 allowed by the superintendents, must be laid before the board 
 of supervisors at their annual meeting, and be by them annu- 
 ally added to the tax laid upon the town to which such pauper 
 belongs, so long as such expense is incurred. The said moneys 
 when collected, must be paid to the county treasurer, and be by 
 him credited to the account of the town incurring such ex- 
 pense. (Id.) 
 
 In a county where the towns are obliged to support their own 
 poor, no pauper can be charged to the county without the sanc- 
 tion of the superintendents. If a pauj)cr be sent to the poor 
 house of such county, and the superintendents arc of opinion 
 that he has a legal settlement in any town thereof, they must 
 within thirty days tiicreafter, give notice to the overseers of the 
 town, that his support will be charged to such town, unless 
 they, within not less than twenty days, show cause to the con- 
 trary. (I R. .S. 790, 791.) On the application of the overseers,
 
 OF COUNTY AND TOWN OFFICERS. 559 
 
 the superintendents must rc-cxamine and decide the matter, 
 which decision is conchisive. 
 
 In other counties where there is no county poor house, no 
 person can be supported as a county pauper, without the direc- 
 tion of at least one superintendent. In such case, the overseers 
 m the town where such person is, must immediately give notice 
 to one of the superintendents, who must inquire into the cir- 
 cumstances ; if he is satisfied that such pauper has not gained 
 a settlement in any town, he must give a. certificate to that 
 effect, and that he is chargeable to the county. He must report 
 such case to the board of superintendents at their next meeting, 
 who may affirm or annul the certificate, on giving notice to the 
 overseers of the town interested, and after hearing the allega- 
 tions and proofs. If the superintendents refuse such certificate, 
 the overseers may apply to the board of superintendents, who 
 must summarily hear and determine the matter, and whose 
 decision is conclusive. (Id.) 
 
 When any person applies for relief to an overseer of the poor, 
 in any county where there is a county poor house, he is to in- 
 quire into the condition of the applicant ; and if he require 
 permanent aid, cause him to be removed to the county poor 
 house, there to be provided for. If it be one of the counties 
 where the towns each support their own poor, the overseer must 
 designate, in the order of removal, whether he is chargeable to 
 the county or not ; otherwise Ire will be deemed to belong to 
 his town. The expense of such removal is to be paid by the 
 county treasurer, on the certificate of the keeper of the poor 
 house, countersigned by two of the superintendents, at such 
 rates as they have prescribed. And the overseers are to be paid 
 their necessary expenses by the county treasurer, on the order 
 of the superintendents, which is chargeable to the county, if 
 such pauper be a county charge, and to the town sending him, 
 if he be not a county charge. Such pauper is to be maintained 
 until the superintendents think he can support himself, when 
 they may discharge him. (1 R. S. 791, sec. 45.) 
 
 If such person require only temporary relief, or cannot well 
 be removed to the county house, any of the overseers have the 
 discretionary right to expend a sum not exceeding ten dollars 
 for the relief of one poor person or family ; and the overseer 
 may receive such sum from the county treasurer on such order, 
 to be charged to the county, if the person be a county charge.
 
 560 OF COUNTY AND TOWN OFFICERS. 
 
 or to the town for which the rehef was afforded; if he be a town 
 charge. (Id. 792, sec. 46.) 
 
 If apphcation for rehef is made in any of those counties 
 where no county poor house, or other place for the reception of 
 the poor, is provided, the overseers, assisted by a Justice, must 
 inquire into the case, and make an order in writing for such 
 allowance, weekly or otherwise, as they think required by the 
 necessities of such poor person. If the pauper have a legal 
 settlement in the town where such application is made, or in 
 any other town of the same county, the overseers must apply 
 the moneys so allowed to the relief and support of such pauper ; 
 the moneys paid by them, or contracted to be paid, pursuant to 
 such order, must be drawn by them from the county treasurer, 
 on producing the said order, out of the funds in his hands be- 
 longing to the town. If the person have no settlement in the 
 county, the overseers are to give notice, as above mentioned, to 
 the county superintendents, maintaining him until the superin- 
 tendents take charge of him ; for which the overseers are to be 
 paid by the county treasurer. (Id. sees. 47, 48 and 49.) 
 
 In the counties where the respective towns are required to 
 support their own poor, the county treasurers must respectively 
 open and keep an account with each town, in which the town 
 must be credited with all moneys received from the same, or 
 from its officers, and be charged with the moneys paid for the 
 support of the poor chargeable to such town. (Id. sec. 51.) 
 
 In the counties where no county poor houses are established, 
 the overseers of the poor of the respective towns must enter, in 
 books to be provided at the expense of their towns, an account 
 of all matters transacted by them relatmg to their official duties ; 
 of all moneys received by them, specifying from whom, and on 
 what account ; of all moneys laid out and disbursed by them, 
 to whom, and by what authority, and specifying in each case 
 whether to county poor or town poor ; the names of all persons 
 applying for relief, and ordered to bo relieved as aforesaid ; the 
 day and year when they were admitted to have relief; the weekly 
 or other sums, allowed for that purpose, and the cause of giving 
 such relief On the Tuesday next before the annual town 
 meeting, they must lay such books before the town auditors, 
 with a true account of all moneys received by them, and ex- 
 pended for the use of the poor, and in what manner ; with an 
 account of llic earnings of the poor employed by them ; which
 
 OF COUNTY AND TOWN OFFICERS. 561 
 
 account must be verified by their oaths, and filed with the town 
 clerk ; all of which are to be examined, audited, and settled bv 
 the board of town auditors, and the balance due to or from the 
 overseers, stated. No credit can be allowed them for moneys 
 paid, unless they appear to have been made pursuant to leo-al 
 orders. Any person having been an overseer, and neglecting 
 so to present such books and accounts, forfeits two hundred and 
 fifty dollars, to be recovered by, and in the name of, the over- 
 seers of the town. (I R. S. 794, sec. 55, 56 and 57.) 
 
 In counties where the respective towns are made liable for 
 the support of their poor, it is the duty of the town clerk to 
 exhibit at the annual town meetings the accounts for the sup- 
 port of the poor therein, the preceding year, as the same shall 
 have been allowed and passed by the board of town auditors 
 which accounts must be openly and distinctly read by the clerk 
 of the meeting ; and the overseers must also present an estimate 
 of the sum which they deem necessary to supply any deficiency 
 of the preceding year, and to provide for the support of the poor 
 the ensuing year. The inhabitants of the town must there- 
 upon, by a vote of a majority of the persons qualified to choose 
 town officers, determine upon the sum of money which shall be 
 assessed upon the town the ensuing year. The sum so voted, 
 when raised and collected in those counties where a county 
 poor house or other place is provided for the poor, must be paid 
 to the county treasurer, and by him placed to the credit of the 
 town ; in all other counties, the sum so voted by any town 
 must be paid to the overseers of the poor. (Id. sees. 58, 59.) 
 
 The accounts of overseers of the poor, and of Justices of the 
 Peace, for any personal or official services rendered by them in 
 relation to the poor, must be audited and settled by the board 
 of supervisors, and the sums thus audited and allowed, must 
 be paid to the county treasurer ; and if the services were ren- 
 dered in behalf of any town liable to support its own poor, the 
 same must be charged to such town. No allowance for time or 
 services, can be made to any officer for attending any board 
 Avith any accounts, for the purpose of having the same audited 
 or paid. (1 R. S. 795, sec. 61.) 
 
 If any person entice or remove, or cause to be removed, with- 
 out legal authority, any pauper or indigent person, from one 
 town, county, or city, into another, with intent to make him 
 chargeable therein, he forfeits fifty dollars, to be recovered by, 
 
 36
 
 562 OF COUNTY A^JD TOWN OFFICERS. 
 
 and in the name of, the overseers of the town, or the superin- 
 tendents of the coinity, into which such poor person is brought ; 
 and, on conviction thereof, he may he imprisoned not more than 
 six months, or fined not more than one hundred dollars, or both, 
 in the discretion of the court. If any person so remove a pau- 
 per from without the state, to a county or town within it, he for- 
 feits fifty dollars, to be recovered by, and in the name of, the 
 superintendents of the county to which such pauper is brought 
 before any Justice of the Peace therein ; and he is obliged to 
 support such pauper at his own expense, or convey him out of 
 the state ; and the Justice may require him to give satisfactory 
 security that he will do so within a reasonable time, or indem-. 
 nify the town or county for the support of such pauper ; and, if 
 he fail to give such security, the Justice must commit him to 
 the common jail of the county, for not more than three months. 
 (Sees. 63 and 64.) 
 
 When a pauper has been improperly brought or eniiced into 
 any town or county, he is to be supported by the county super- 
 intendents thereof ; but they may give notice to the overseers of 
 the town from which he came, if liable for his support, or, if 
 there be no town so liable, then to any of the superintendents of 
 the county from which such pauper was brought, requiring them 
 to take charge of liim. Such superintendents or overseers, with- 
 in thirty days after service of such notice, must take the pauper 
 and pay all the expenses of the notice and of his support, or else 
 notify some of the superintendents from M^iom the notice was 
 received, that they deny such improper removal, or that their 
 town is liable for the support of such pauper ; otherwise, their 
 towns or counties are liable for all expenses, and to support such 
 pauper, and are precluded from contesting the same. (I R. S. 
 796, sees. 65 and 66.) 
 
 Upon service of any such notice of denial, the county super- 
 intendents upon whom the same is served, must, within three 
 months, commence a suit against the overseers of the poor of 
 the town or coimty superintendents of the poor of the county, to 
 whom the first notice was directed, or against their successors 
 in ofiico, for the expenses inciu'red in the support of such pau- 
 per, and must prosecute the same to eO'cct ; if they neglect to 
 do so, they, tiicir successors, and their county, will be forever 
 nrncludfd frnm all claim against the county or town, lo whose 
 officers such notice was directed, or any of tiicir officers, for any
 
 OF COUNTY AND TOWN OFFICERS. 563 
 
 expenses that may have been, or may be, incurred, for the sup- 
 port of such pauper. (Sec. 67.) 
 
 All the penalties above named, when recovered, arc to be paid 
 to the county treasurer, for the benefit of the poor, and arc to be 
 credited by him to the town by whose ofiicers they are collected, 
 if such town is liable for the support of its own poor, or to the 
 county, when collected by the county superintendents ; if not 
 paid over by the persons collecting them, when demanded by 
 the county treasurer, he may sue for the same in his name of 
 office. (Sec. 71.) 
 
 Whenever it is made to appear to the satisfaction of any over- 
 seer of the poor, either upon complaint, or otherwise, that a pe- 
 nalty has been incurred by the violation of any provisions 
 contained in the statutes of this state, which such overseer is 
 directed by law to collect, it is his duty immediately to commence 
 a suit for such penalty, and to prosecute the same diligently to 
 eifect. (Sec. 72.) 
 
 In auditing the accounts of the overseers of the poor, by the 
 board of town auditors, allowance must be made to them for all 
 costs to which they may have been subjected, or which may 
 have been recovered against them, in any suit brought by them 
 pursuant to law; and they must also be allowed the same daily 
 pay for attending to any such suit, as is allowed them for the 
 performance of their official duties. Such allowances may be 
 credited to them in their accounts for moneys collected for pe- 
 nalties, and may be deducted from such moneys ; and the ba- 
 lance of such penalties must be paid to their successors in of- 
 fice, or to the couuty treasurer, as directed by law, in respect to 
 such penalties. If there is not sufficient money in their hands 
 to satisfy such allowances, the same must be paid as other town 
 charges. 
 
 In those counties where there is no county poor house, or 
 other place provided for the reception of the poor, the moneys 
 raised and collected in the several towns for the support of the 
 poor, must be received and disbursed by the overseers of the 
 poor in such towns respectively. 
 
 20. Town Superintendents of Common Schools. 
 
 The office of trustees of gospel and school lots, in the several 
 towns of this state, is abolished, and its powers and duties exer-
 
 554 OF COUNTY AND TOWN OFFICERS. 
 
 cised by the town superintendents of common schools. (Laws, 
 1846, ch. 186.) The latter office was created by a law of 
 1843, abolishing the offices of commissioners and inspectors of 
 common schools, and substituting the town superintendent. 
 
 A town superintendent of common schools is elected in each 
 of the towns of the state, at the same time, and in the same 
 manner, as other town officers. (Laws, 1847, ch. 480, sec. 1.) 
 
 It is his duty, on or before the first Monday of November suc- 
 ceeding his election, to execute to the supervisor of his town, 
 and file, with the town clerk, a bond, with one or more sufficient 
 sureties to be approved by the supervisor by endorsement, over 
 his signature on the bond, with a penalty in double the amount 
 of all the school moneys, received by his town, from all sources, 
 during the preceding year, and conditioned for the faithful appli- 
 cation and legal disbursement of all the school money coming 
 into his hands during his term of office, and for the faithful 
 discharge of all the duties of his office. (Id. sec. 3.) 
 
 If the bond is not executed, filed and approved, within the 
 prescribed time, the office of the town superintendent will be 
 deemed vacant. (Id.) 
 
 Such, or any vacancy, thai may occur in the office, must be 
 filled by any three Justices of the Peace of the same town, by 
 a warrant, under their hands and seals. The persons so ap- 
 pointed will hold their offices until others are elected or ap- 
 pointed in their places, and they will have the same powers, and 
 be subject to the same duties and penalties, as if they had been 
 duly chosen by the electors. (Id.) 
 
 The Justices making the appointment, must forthwith cause 
 the warrant to be filed in the office of the town clerk of the 
 town, and give immediate notice to the person appointed. 
 (Sec. 4.) 
 
 'riie town superintendent, upon giving the required security, 
 enters upon the duties of his office on the first Monday of No- 
 vember succeeding his election. He holds his office two years, 
 and until a successor, who shall have been duly elected, shall 
 have taken the oath of office and filed an official bond, pursuant 
 to the provisions of the statute. 
 
 No town superinlcinknt can hold the office of trustee of a 
 school district, nor the office of supervisor, or town clerk. 
 (Sec. 0.)
 
 OF COUNTY AND TOWN OFFICERS. 565 
 
 It is tlie duty of the town superintendent of commnn schools 
 in each town — 
 
 1. To divide the town into a convenient number of school dis- 
 tricts, and to regulate and alter such districts as hereinafter pro- 
 vided. 
 
 2. To set off by itself any neighborhood in the town adjoin- 
 ing to any state, where it has been usual, or shall be found con- 
 venient for such neighborhood to send their children to a school 
 in such adjoining state. 
 
 3. To describe and number the school districts, and to deli- 
 ver the description and numbers thereof, in writing, to the 
 town clerk, immediately after the formation or alteration thereof. 
 
 4. To deliver to such town clerk, a description of each neigh- 
 borhood, adjoining to any other state, set off by itself. 
 
 5. To apply for, and receive, from the county treasurer, all 
 moneys apportioned for the use of common schools in their town, 
 and from the collector of the town, all moneys raised therein for 
 the same purpose, as soon as such moneys become payable, or 
 are collected. 
 
 6. To apportion the school moneys received on the first Tues- 
 day of April, in each year, among the several school districts 
 and neighborhoods separately set off, within the town, in pro- 
 portion to the number of children residing in each, over the age 
 of five, and under that of sixteen years, as the same shall 
 have appeared from the last annual reports of their respective 
 trustees. 
 
 7. If the town superintendent shall have received the school 
 moneys of the town, and all the reports from the several school 
 districts therein, before the first Tuesday of April, he is required 
 to apportion such moneys as above directed, within ten days af- 
 ter receiving all of the reports and the moneys, 
 
 8. To sue for and collect, by his name of office, all penalties 
 and forfeitures, in respect to which the statute makes no other 
 provision, which may be incurred by any officer or inhabi- 
 tant of their town, and, after deducting their costs and ex- 
 penses, to add the sums recovered to the school moneys re- 
 ceived by them, to be apportioned and paid, in the same 
 manner. 
 
 In making the apportionment of public money among the se- 
 veral school districts, no share can be allotted to any district, 
 part of a district, or separate neighborhood, from which no suf-
 
 566 OF COUNTY AND TOWN OFFICERS. 
 
 ficient annual report shall have been received for the year end- 
 ing on the last day of December immediately preceding the ap- 
 portionment. (Laws, 1847, ch. 480. sec. 9.) 
 
 In making the apportionment of public money, it is the duty 
 of the town superintendent to designate the respective propor- 
 tions of teachers' and library money belonging to each district, 
 and to paj?' over as much as is designated teachers' money, on 
 the written order of a mojority of the trustees of each district, 
 to the teachers entitled to receive the same. (Id. sec. 10.) 
 
 It is provided that no moneys shall be apportioned and paid to 
 any district, or part of a district, unless it appears, by the report, 
 that a school had been kept therein for at least four months dur- 
 ing the year ending at the date of the report, by a qualified 
 teacher; that no other than a duly qualified teacher had, at any 
 time during the year, for more than one month been employed to 
 teach the school in said district ; and that all moneys received 
 during that year have been applied to the payment of the com- 
 pensation of such teacher; and no portion of the library money 
 can be apportioned or paid to any district, or part of a district, 
 unless it appears, from the last annual report of the trustees, that 
 the library money received at the last preceding apjiortionmenl 
 was duly expended according- to law, on or before the first day 
 of October, subsequent to such apportionment. (Sec. 11.) 
 
 No teacher will be deemed a qualified teacher within the 
 meaning of the foregoing, who shall not have received, and 
 shall not then hold, a certificate of qualification, dated within 
 one 3^ear, from the town superintendent of common schools, for 
 the town in which such teacher is employed. (Sec. 12.) 
 
 It is provided that no part of such moneys shall be appor- 
 tioned or paid to any separate neighborhood adjoining another 
 state, unless it appears from the report of (he trustees that all 
 moneys received by them during the year ending at the date of 
 sucli report, have been faithfully applied in paying for the in- 
 struction of children residing in tiio neighborhood. (Sec. 13.) 
 
 Whenever an apportionment of the j)ublic money is not made 
 to any school district, in consequence of any accidental omission 
 10 make any report required by law, or to comply with any other 
 provision of law, or any regulation, the slate superintendent may 
 direct an apportionment to be made to such district, according to 
 the C(]uilable circumstances of the case, to be paid out of the 
 public money on hand ; or if the same has been distributed, out
 
 OF COUNTY AND TOWN OFFICERS. 567 
 
 of the public money to be received in a succeeding year. (Sec. 
 14.) 
 
 It is provided that all moneys apportioned by the town super- 
 intendent to the trustees of a district, part of a district, or sepa- 
 rate neighborhood, which shall have remained in the hands of 
 the town superintendent for one year after such apportionment, 
 by reason of the trustees neglecting or refusing to receive the 
 same, shall be added to the moneys next thereafter to be appor- 
 tioned by the town superintendent, and shall be apportioned and 
 paid therewith in the same manner. (Lnws, 1817, ch. 480, sec. 
 17.) 
 
 In case any school moneys received by the town superinten- 
 dent cannot be apportioned by him for the term of two years 
 after the same are received, by reason of the non-compliance of 
 all the school districts in his town with the provisions of the sta- 
 tute, such moneys must be returned by him to the county trea- 
 surerer. to be by him apportioned and distributed together, and 
 in the same manner, with the moneys next thereafter to be re- 
 ceived by him, for the use of common schools. (Sec. 18.) 
 
 It is the duty of the town superintendent in each town, be- 
 tween the first day of July and the first day of August in each 
 year, to make and transmit to the county clerk a report in wri- 
 ting, bearing date on the first day of July, in the year of its trans- 
 mission, and stating, 
 
 1. The whole number of school districts, and neighborhor- 
 hoods separately set off within the town. 
 
 2. The districts, parts of districts, and neighborhoods from 
 which reports shall have been made to him, or to his immediate 
 predecessor in office, within the time limited for that purpose. 
 
 3. The length of lime a school shall have been kept in each 
 of such districts, or parts of districts distinguishing what por- 
 tion of that time the school shall have been kept by qualified 
 teachers. 
 
 4. The amount of public moneys received in each of such 
 districts, parts of districts, and neighborhoods. 
 
 5. The number of children taught in each, and the number 
 of children over the age of five, and under sixteen years, resi- 
 ding in each. 
 
 6. The whole amount of moneys received by him, or his pre- 
 decessor in office, during the year ending at the date of such re- 
 port, and since the dale of the last preceding report ; distinguish-
 
 5(38 OF COUNTY AND TOWN OFFICERS. 
 
 ing the amount received from the county treasurer, from the 
 town collector, and from any otiier and wiiat source. 
 
 7. The manner in which such moneys have been expended, 
 and whether any and what part remains unexpended, and for 
 what cause, 
 
 8. The amount of money paid for teachers' wages, in addi- 
 tion to the public money paid therefor ; the amount of taxes levied 
 for purchasing school house sites, for building, hiring, purcha- 
 sing, repairing and insuring school houses ; for fuel, and sup- 
 plying deficiencies in rate bills ; for district libraries, or for any 
 other purposes allowed by law, in the districts, parts of districts 
 and neighborhoods from which reports shall have been received 
 by him, or his immediate predecessor in office ; with such other 
 information as the state superintendent may from time lo time 
 require, in relation to the districts and schools within his town. 
 (Laws, 1847, ch. 480, sec. 19.) 
 
 Town superintendents who neglect to furnish the foregoing 
 information, will severally forfeit to the town, for the use of the 
 common schools therein, the sum of ten dollars, to be sued for 
 by the supervisor of the town. (Id. sec. 20.) 
 
 In case the town superintendent in any town does not, on or 
 before the first day of August in any year, make such report to 
 the clerk of the county, it is his duty to give immediate notice 
 of such neglect to the clerk of the town. (Sec. 21.) 
 
 The town superintendent neglecting to make such report 
 within the limited period, will forfeit to the town, for the use of 
 the common schools therein, the sum of ten dollars ; and the 
 share of school moneys apportioned to the town for the ensuing 
 year, may, in the discretion of the state su])erintendent, be with- 
 held, and be distributed among the other towns, in the same 
 county, from which the necessary reports shall have been re- 
 ceived. (Sec. 22.) 
 
 When the share of school moneys apportioned to a town is 
 lost to the town by the neglect of its town superintendent, the 
 town superintendent guilty of such neglect, and his sureties, will 
 be liable for the full amount so lost, with interest. (Sec. 23.) 
 
 It is the duty of the supervisor of the town, upon notice of 
 sucli loss from the state superintendent or county treasurer, to 
 prosecute, without delay, in the name of the town for sucli for- 
 feiture, 'i'he moneys recovered must be distributed and paid 
 by the supervisor to the several districts, parts of districts, or
 
 OF COUNTY AND TOWN OFFICERS. 569 
 
 separate neighboilioods of the town, in the same manner as it 
 would have been the duty of the town superintendent to have 
 distributed and paid them, if received from the county trea- 
 surer. (Sec. 24.) 
 
 The town superintendent in each town is required to keep a 
 just and true account of all school moneys received and expend- 
 ed by him during each year for which he shall have been cho- 
 sen, and to lay the same before the board of auditors of town 
 accounts at the annual meeting of the board in each year. 
 (Sec. 25.) 
 
 The town superintendent in each town is required to Iceep a 
 just and true account of all school moneys received and ex- 
 pended by him during each year for which he shall have been 
 chosen, and to lay the same before the board of auditors of town 
 accounts, at the annnal meeting of the board in each year. (Sec. 
 25.) 
 
 He is also required, within fifteen days after the termination 
 of his office, to render to his successor in office a just and true 
 account in writing of all school moneys received by him before 
 the time of rendering such account, and of the manner in which 
 he shall have appropriated and expended the same. The ac- 
 count so rendered must be delivered by his successor in office to 
 the town clerk, to be filed and recorded in his office. (Sec. 26.) 
 
 Upon rendering his account, if any balance is found remain- 
 ing in the hands of the town superintendent, it must be imme- 
 diately paid by him to his successor in oOice. (Sec. 27.) 
 
 If such balance, or any part of it, has been appropriated by 
 the town superintendent to atiy particular school district, part of 
 a district, or separate neighborhood, and remains in his hands 
 for the use thereof, a statement of such appropriation must be 
 made in the account rendered, and the balance paid to such suc- 
 cessor in office must be paid over by him according to such ap- 
 propriation. (Sec. 28.) 
 
 Such successor in office may bring a suit in his name of office 
 for the recovery, with interest, of any unpaid balance of school 
 moneys that shall appear to have been in the hands of any pre- 
 vious town superintendent, on leaving his office, either by the 
 accounts rendered by such town superintendent, or by other suf- 
 ficient proof; and in case of the death of such town superin- 
 tendent, such suit may be brought against his representatives. 
 (Sec. 29.)
 
 570 OF COUNTY AND TOWN OFFICERS. 
 
 The town superintendent in each town has the powers and 
 privileges of a corporation, so far as to enable him to take and 
 hold any property transferred to him for the use of common 
 schools in such town. (Sec. 30.) 
 
 The town superintendent is entitled to receive one dollar and 
 twenty-five cents per day for every day actually and necessarily 
 devoted by him, in his official capacity, to the service of the town 
 for which he may be chosen — the same to be paid in like man- 
 ner as other town officers are paid. (Sec. 31.) 
 
 It is the duty of the town clerk of each town to receive and 
 keep all reports made to the town superintendent from the trus- 
 tees of school districts, and all books and papers belonging to 
 the town superintendent when required, and to file them in his 
 office ; to receive all his estimates and apportionments of school 
 money, and to record the same in a book to be kept for that' 
 purpose ; to notify the town superintendent, upon receiving 
 notice from the county clerk, that he has not made his annual 
 report, for the purpose of making such report. (Laws of 1847, 
 ch. 480, sec. 32.) 
 
 The town superintendent in each town is the inspector of 
 common schools. (Id. sec. 33.) 
 
 It is his duty to examine all persons offering themselves as 
 candidates for teaching common schools in the town. (Id. 
 sec. 34.) 
 
 In making the examination, it is his duty to ascertain the 
 qualifications of the candidate in respect to moral character, 
 learning, and ability. (Id. sec. 35.) 
 
 If he is satisfied in respect to the qualifications of the candi- 
 date, he must deliver to the person so examined, a certificate 
 signed by him, in the form prescribed by the state superinten- 
 dent. (Id. sec. 36.) 
 
 The town superintendent may annul any such certificate 
 given by him, or his predecessors in office, when he thinks 
 proper. He must, however, give at least ten days previous 
 notice in writing, to the teacher holding the certificate, and to 
 the trustees of the district in which he is employed, of his inten- 
 tion to annul the same. (Id. sec. 37.) 
 
 The town superintendent, whenever he deems it necessary, 
 may ro(piirc a re-examination of all or any of the teachers in 
 his town, for the purpose of ascertaining their qualifications to 
 continue as teachers. (Id. sec. 38.)
 
 OF COUNTY AND TOWN OFFICERS. 571 
 
 The annulling of a certificate will not disqualify the teacher 
 to whom it was given, until a note in writing containing the 
 name of the teacher, and the time when his certificate was 
 annulled, is made hy the town superintendents, and filed in the 
 office of the town clerk. (Id. sec. 39.) 
 
 When any school district is composed of parts of two or more 
 towns, the town superintendent of the town in which the 
 school house of the district is situated, must examine into and 
 certify the qualifications of any teacher offering to teach in the 
 district, in the same manner as in the foregoing ; and he may 
 also, in the same manner, annul the certificate of such teacher ; 
 and it is provided that no school house shall he erected so as to 
 stand on {he division lines of any two or more towns. (Id. 
 sec, 40.) 
 
 It is the duty of the town superintendent to visit all the com- 
 mon schools in his town, which are organized according to law, 
 at least twice a year, and oftener, if he deems it necessary. 
 (Id. sec. 41.) 
 
 At such visitation, the town superintendent must examine 
 into the state and condition of the schools, both as respects the 
 progress of the scholars in learning, and the good order of the 
 schools ; and he may give his advice and direction to the trus- 
 tees and teachers as to the government of, and the course of 
 studies to be pursued in, the schools. (Id. sec. 42.) 
 
 In the erection or alteration of a school district, the trustees of 
 any district to be afl'ected thereby, may apply to the supervisor 
 and town clerk to be associated with the town superintendent ; 
 and their action will be final, unless duly appealed from. (Laws 
 of 1847, ch. 480, sec. 43.) 
 
 Whenever it becomes necessary, or convenient, to form a dis- 
 trict out of two or more adjoining towns, the town superintend- 
 ent of each of such adjoining towns, or the major part of them, 
 may form, regulate, and alter such district. (Id. sec. 44.) 
 
 No alteration of any school district, made without the consent 
 of its trustees, will take eflfect until three months after notice in 
 writing, given by the town superintendent to some one or more 
 of the trustees ; nor can any alteration or regulation of an or- 
 ganized school district be made, to take effect between the first 
 day of December in any one year, and the first day of May 
 following. (Id. sec. 4-5.) 
 
 If the town superintendent in any town requires, by notice
 
 572 OF COUNTY AND TOWN OFFICERS. 
 
 in writing, the attendance of the town superintendents of any- 
 other town or towns, at a joint meeting for the purpose of aUer- 
 ing a school district, formed from their respective towns, and a 
 major part of the town superintendents notified, refuse or neglect 
 to attend, the town superintendents attending, by a majority of 
 votes, may call a special meeting of the district for the purpose 
 of deciding on the proposed alteration ; and the decision of the 
 meeting will be as valid as if made by the town superintendents 
 of all the towns interested, but will extend no further, than to 
 dissolve the district from such towns, (Id. sec. 46.) 
 
 When there are any moneys in the hands of the officers of a 
 district tliat is or may be annulled, or belonging to the district, 
 the town superintendent of the town may demand, sue for, and 
 recover the same, in his name of office, and must apportion the 
 same equitably between the districts to which the several por- 
 tions of the annulled district may have been annexed, to be 
 held and enjoyed as district property. (Id. sec. 52.) 
 
 [For further duties of town superintendents^ vide post, chap. 
 22.) 
 
 21. Pound- Masters. 
 
 There are elected at the annual town meetings in each town, 
 as many pound-masters as the electors therein may determine. 
 (1 R. S. 387, sec. 4.) 
 
 The pound-masters of the several cities and towns of the 
 state, are required to receive and keep the beasts delivered to 
 them, in the public pound, and unless the same are replevied, 
 or discharged according to law, within six days, the pound- 
 master must sell the beasts, or so many of them as may be 
 necessary, at public vendue, giving forty-eight hour's notice of 
 the sale, by advertisement, to be fixed up at such pound, and 
 at the nearest public place. (2 R. S. G08, sec. 5.) 
 
 From the proceeds of the sale, the pound-master may retain 
 sufficient to pay the amount of his fees, and his charges for 
 keeping the beasts, and the charges of tlie sale ; and he must 
 pay to the person in)j)ounding the beasts, the damages so cer- 
 tified, with the fees of the fence viewers; and if there is any 
 surplus, the same nuist be paid to tiie owner of the beasts. If 
 no owner appear within one year after the sale, and claim such 
 surplus, the same nuist be paid to the overseers of the poor of 
 the town or city, for the use of the poor. (Id. sec. 6.)
 
 OF COUNTY AND TOWN OFFICERS. 573 
 
 22. Town Auditors. 
 
 The supervisor, town clerk, and justices of the peace, or any 
 two of the justices of the several towns in the state, constitute 
 a board of town auditors, for the purpose of auditing and allow- 
 ing the accounts of all charges and claims payable by their 
 respective towns. (1 R. S. 404, sec. 47.) The board is required 
 to meet for the purpose of auditing and allowing such accounts 
 annually, in each town, at the place of holding the last town 
 meeting, on the last Thursday preceding the annual meeting of 
 the board of supervisors of the county. (Id. sec. 48.) It is the 
 duty of the board to make annually brief abstracts of the names 
 of all persons who have presented to the said board accounts to 
 be audited, tbe amounts claimed by each of said persons, and 
 the amounts finally audited by them respectively, and to deliver 
 said abstracts to the clerk of the board of supervisors. (Laws 
 of 1847, ch. 455.) 
 
 The board must make a certificate to be signed by a majority 
 of the board, specifying the name of the person in whose name 
 the account is drawn, the nature of the demand, and the amount 
 allowed ; and cause a duplicate of said certificate to be made, 
 one of which must be delivered to the town clerk of the town, 
 to be kept on file by him for the inspection of any of the inhabi- 
 tants of the town, and the other must be delivered to the snjoer- 
 visor of the town, to be laid by him before the board of supervi- 
 sors of his county at their annual meeting. (1 R. S. 405, sec. 
 49.) 
 
 No account can be audited by any board of town auditors for 
 any services or disbursements, unless such account is made out 
 in items, and accompanied with an affidavit attached to, and to 
 be filed with such account, made by the person presenting or 
 claiming the same, that the items of such account are correct, 
 and that the disbursements and services charged therein, have 
 been in fact made or rendered, or necessary to be made or ren- 
 dered, at that session of the board ; and stating that no part 
 thereof has been paid or satisfied. (Laws of 1847, ch. 490.) 
 
 23. Commissioners of Excise. 
 
 The commissioners of excise consist of the supervisor and the 
 Justices of the Peace in each town. The supervisor and any
 
 574 OF COUNTY AND TOWN OFFICERS. 
 
 two of the Justices, are competent to act as a board ; and if the 
 office of supervisor be vacant, any three of the Justices are com- 
 petent to act. If there are not two Justices in the town, any 
 two Justices of a neighboring town may be associated by the 
 supervisor with him, and the three will constitute a board. (1 
 R. S. 852, sec. 1.) The board is required to meet on the first 
 Monday in May of each year, and on such other days as the 
 supervisor may appoint, and at such places as he may desig- 
 nate ; or, if his office is vacant, at such places as the Justices 
 may appoint. (Id. sec. 2.) 
 
 The board must keep a book of minutes of all their proceed- 
 ings, in which must be entered every resolution passed by them, 
 granting a license to any person with the sum required to be 
 paid by such person ; which minutes must be verilEied by their 
 signatures, and be filed with the town clerk within five days. 
 (Id. sec. 3.) 
 
 The board has power to grant licenses to keepers of inns and 
 taverns, being residents of their town, to sell strong and spiri- 
 tuous liquors and wines, to be drank in their houses respectively, 
 and to grocers, being such residents, a license to sell such li- 
 quors and wines in quantities less than five gallons, but not to 
 be drank in their shops, houses, out houses, yards, or gardens ; 
 and to determine the sum to be paid for a license, by each per- 
 son applying, which sum must not be less than five dollars. 
 (Sec. 4.) The licenses must be signed by the commissioners 
 granting the same ; they must not be issued until the duty fixed 
 by the board has been paid ; and when issued, they must be in 
 force, unless revoked, until the day after the first Monday in 
 May, in the succeeding year. (Sec. 5.) 
 
 No fee or reward can be taken by any board of excise, or by 
 any member thereof for any license to keep a tavern, or to sell 
 strong or spirituous liquors, or for any service required of such 
 board ; nor can any compensation be retained by any such 
 board, or by any member thereof, out of the excise money. 
 (Sec. G.) 
 
 The commissioners of excise are not authorized to grant a li- 
 cense to any person to sell strong and spirituous liquors and 
 wines to be drank in the house of the seller, in)l(^ss such person 
 proposes to keep an inn or tavern, nor unless the commissioners 
 are satisfied that the applicant is of good moral character, that 
 he is of suflicient abihiy to keep a tavern, and has the necessary
 
 OF COUNTY AND TOWN OFFICERS. 575 
 
 accommodations to eiUortnin travelers, and that a tavern is ab- 
 solutely necessary for the actual accommodation of travellers, 
 at the place where the applicant resides, or proposes to keep the 
 same ; all which must be expressly stated ia every such license. 
 (Sec. 7.) 
 
 Nor can a license be granted until the applicant has executed 
 and delivered to the su{)ervisor, or, in case of his absence, one of 
 the Justices of the town, a bond to the people of the state, in the 
 penal sum of one hundred and twenty-five dollars, with a suffi- 
 cient surety, to be approved by the board of coiimiissioners, with 
 a condition, that the applicant, during the time he keeps the inn 
 or tavern, will not sutler it to bo disorderly, or suffer any cock 
 fighting, gaming, or playing with cards or dice, or keep any billi- 
 ard table, or other gaming table within the tavern so kept by him, 
 or in any outhouse, yard, or garden belonging thereto. (Sec. 8.) 
 
 The commissioners cannot grant licenses to grocers, unless 
 they are satisfied that the applicant is of a good moral charac- 
 ter, nor until the applicant has executed a bond to the people of 
 the state, in the penal sum of one hundred and twenty-five 
 dollars, with such surety as shall be approved by the commis- 
 sioners, conditioned that, during the term for which his license 
 may be granted, he will not suffer his grocery to become disor- 
 derly ; that he will not sell, or suffer to be sold, any strong or 
 spirituous liquors or wines, to be drank in his shop, or house, or 
 in any out house, yard, or garden, appertaining thereto ; and 
 that he will not suffer any such liquor, sold by virtue of such 
 license, to be drank in his shop, or house, or in any out house, 
 yard, or garden belonging thereto, (Sec. 15.) 
 
 24. Fence Viewers. 
 
 The assessors and commissioners of highways in each town, 
 are, by virtue of their offices, fence viewers in their town. (1 
 R. S. 388, sec. 8.) 
 
 Fence viewers have power, and it is their duty, to settle dis- 
 putes concerning division fences, and floating timber, lumber, 
 &,c., within their town; to ascertain the amount of damages in 
 cases where sheep are killed or injured by dogs*; and the 
 
 * The legislature, at its last session, gave supervisors authority to make such laws 
 and regulations as they might deem necessary to prevent the injury and destruction 
 of sheep hy dogs, and to levy and enforce the collection of any tax upon dogs. (Laws, 
 1849, cl). 194)
 
 576 OF COUNTY AND TOWN OFir'ICERS. 
 
 charges to which persons keeping strays are entitled. (1 R. S. 
 401, 402, 855.) 
 
 When two or more persons have lands adjoining, each is re- 
 quired to make and maintain a just portion of the division fence, 
 unless the overseer or overseers of the adjoining land choose to 
 let such land lie open. (1 K. S. 402, sec. 30.) 
 
 "When a person chooses to let his land lie open, but afterwards 
 encloses it, he is required to refund to the owner of the adjoin- 
 in» land a just proportion of the value at that time, of any di- 
 vision fence that shall have been made by such adjoining own- 
 er • or else he must build his proportion of the division fence. 
 The value of the fence, the proportion to be paid by such per- 
 son and the proportion of the division fence to be built by him 
 in case of his enclosing his land, is to be determined by any 
 two of the fence viewers of the town. (Id. sec. 31, 32.) 
 
 CERTIFICATE OF FENCE VIEWERS, AS TO VALUE OF FENCE 
 BUILT BY AN ADJOINING OWNER. 
 
 Broome County, 'i ^^^ 
 Town of Chenango, 5 
 
 P This is to certify, that Hobart Eldredge and Richard Bogart, 
 being the owners of certain lands adjoining, in the town afore- 
 said, and the said Eldredge having, on or about the 1st day of 
 April, 1849, erected a division fence between the land belong- 
 ing to him, and that of the said Bogart, who elected to let the 
 same lie open ; and the said Bogart having recently enclosed 
 the said land belonging to him, and a dispute having arisen be- 
 tween the said parties as to the just proportion of the value of 
 the said division fence to be paid for by the said Bogart : We 
 have made due inquiry into the facts, and examined the premi- 
 ses; that the following is a correct description of the fence built 
 by the said Eldredge, as aforesaid, to wit: — [here describe the 
 fence] ; that the value of the fence, at the time of erecting the 
 same, was fifty dollars; and that the just proportion of said va- 
 lue, to be paid by the said Richard Bogart to the said llobart 
 Eldredge, is twenty dollars, and that the fees for our service 
 amount to five dollars. 
 
 Given under our hands this 1st day of July, 1849. 
 
 Morgan Lewis, ) ,, .^^^ v;„,„^,.„ 
 ' [ 1' once Viewers. 
 
 Henry Roberts, S 
 Tf (lisp!itf s arise between the owners of adjoining lands, con- 
 cerning the ))ioportioii of fence to be maintained or made by
 
 OF COUNTY AND TOWN OFFICERS. 577 
 
 either of them, such disputes are to be settled by any two of 
 tlie fence viewers of the town. (I K. S. 403, sec. 33.) 
 
 CERTIFICATE OP FENCE VIEWERS UPON HEARING DISPUTE 
 BETWEEN OWNERS OF ADJOINING LANDS. 
 
 Broome County. ) 
 
 ^ I ss. 
 Town of Chenango^ ) 
 
 This is to certify, that Alfred Merill and Edward White, be- 
 ing owners of certain lands adjoining, in the town aforesaid, and 
 a dispute having arisen between them as to the respective pro- 
 portions of a division fence, to be maintained [or " made"] by 
 them ; upon the application of the said parties, we proceeded to 
 examine the premises, and hear the allegations of the said par- 
 ties ; and that we do determine that the said division fence be 
 built in manner following : [here give description] ; that two 
 thirds of said fence is the proper proportion thereof to be built by 
 the said Alfred Merill ; and that the remaining one third is the 
 proper proportion thereof, to be built by the said Edward White ; 
 and that our fees for our service, amount to five dollars. 
 
 Given under our hands, this first day of July, 1849. 
 
 Morgan Lewis, } ^^ -t,-. 
 
 rj r> I r ence V lewers. 
 
 Henry Koberts, \ 
 
 When any of the foregoing matters are submitted to fence 
 viewers, each party must choose one ; and if either neglect, af- 
 ter eight days notice, to make such choice, the other party may 
 select both. In case of their disagreement, they must select 
 another fence viewer to act with them, and the decision of any 
 two will be final upon the parties to the dispute, and upon all 
 parties holding under them. (Id. sees. 34, 35.) The decision 
 of the fence viewers, is required to be reduced to writing. It 
 must contain a description of the fence, and of the proportion to 
 be maintained by each ; and it must be forthwith filed in the 
 ofiice of the town clerk. (Sec. 36.) 
 
 If any person liable to contribute to the erection or reparation 
 of a division fence, neglects or refuses to make and maintain 
 his proportion of such fence, or permits the same to be out of 
 repair, he cannot have and maintain any action for damages 
 incurred, but he will be liable to pay to the party injured all 
 such damages as accrue to his lands, and to the crops, fruit 
 
 37
 
 578 OF COUNTY AND TOWN OFFICERS. 
 
 trees, and shrubbery thereon, and fixtures connected with the 
 said land, to be ascertained and appraised by any two fence 
 viewers of the town, and to be recovered with costs of suit ; 
 which appraisement is required to be reduced to writing, and 
 signed by the fence viewers making it. It will, however, be 
 only fjrima facie evidence of the amount of the damages. (1 
 R. S. 453, sec. 39.) 
 
 FORM OF FENCE VIEWERS' APPRAISEMENT. 
 
 Broo7ne County, 
 Town of CJienangc 
 
 ' \ ss. 
 
 -•0. \ 
 
 Application having been made to us, by Charles Robinson, 
 the owner of land adjoining the land of Tracy Morgan, in said 
 town to ascertain and appraise certain damages incurred by the 
 said Robinson, in consequence of the neglect (" or refusal") of 
 the said Morgan to make ("or maintain") his proportion of a di- 
 vision fence between the aforesaid lands, we have proceeded to 
 examine the premises, and after due inquiry and examination 
 by us made, we do determine that the said Charles Robinson 
 has sustained damage to his land, crops, fruit trees, and shrub- 
 hexy, in consequence of the neglect ('• or refusal") of the said 
 Tracy Morgan to make (" or maintain") his proportion of such 
 division fence, as aforesaid, which said damages wq have ascer- 
 tained, and do appraise at one hundred dollars. 
 
 Given under our hands this 1st day of July, 1849. 
 
 Morgan Lewis, J Pe„ce Viewers. 
 Henry Roberts, \ 
 
 If the neglect or refusal to make or repair the fence, after a 
 request in writing, be continued for the period of one month, 
 the party injured, may make or repair the same, at the expense 
 of the party so neglecting or refusing, to bo recovered from him 
 with costs of suit. (Id. sec. 38.) 
 
 If any person who shall have made his proportion of a divi- 
 sion fence, is disposed to move his fence, and sulTer his lands to 
 lie open, he may, at any time, between the fust day of Novem- 
 ber in any year, and the first day of April following, but at no 
 other time, give ten days notice to the owner or occupant of the 
 adjoining land of his int<iitinii lo a])|)ly to llie fence viewers of 
 the town for pi^riMission to icniovc liis fence. (I R. iS. 403, 
 sr<c. 4U.j
 
 OF COUNTY AND TOWN OFFICERS. 579 
 
 FORM OF NOTICE. 
 
 To Mr. Richard St. John : 
 
 Please take notice, that I shall apply to Morgan Lewis and 
 Henry Roberts, two of the fence viewers of the town of Chenan- 
 go, on the 15th day of March, instant, for permission to remove 
 the division fence between the land occupied by you in said 
 town, and that owned and occupied by me, lying adjacent 
 thereto. 
 
 Dated March 2d, 1849. Franklin Whitney. 
 
 If at the time specified in the notice, any two fence viewers, 
 selected as aforesaid, determine that the fence may with pro- 
 priety be removed, he may then remove the same. (Id.) 
 
 determination of fence viewers that division fence 
 
 MAY BE removed. 
 
 Broome County, ) 
 Town of Ghenango. \ 
 
 This is to certify that we the undersigned, two of the fence 
 viewers of the town aforesaid, upon the application of Franklin 
 Whitney, in accordance of a notice, a copy of which is hereto 
 annexed, have examined the premises where the division fence 
 named in said notice is situate, and do determine that the same 
 may with propriety be removed. 
 
 Given under our hands this 15th day of March, 1849. 
 
 Morgan Lewis, > ^^^^^ Tmviexs. 
 Henry Koberts, S 
 
 It is provided that if any fence is removed, without notice and 
 permission as aforesaid, the party removing the same shall pay 
 to the party injured, all such damages as he may sustain there- 
 by, to be recovered with costs of suit. (Id. sec. 41.) 
 
 Whenever a division fence is injured or destroyed by floods 
 or other casualty, the person bound to make and repair such 
 fence, or any part of it, is required to make and repair the same, 
 or his just proportion thereof, within ten days after he shall be 
 required by any person interested therein. The requisition 
 must be in writing and signed by the party making it. If such 
 person refuses or neglects to make or repair his proportion of 
 such fence, for the space of ten days after such request, the par
 
 580 OF COUNTY AND TOWN OFFICERS. 
 
 ty injured may make or repair the same, at the expense of the 
 party so refusing or neglecting, to he recovered of him with 
 costs of suit. (1 R. S. 454, sec. 42, 43.) 
 
 When any distress is made of any beasts doing damage, tlie 
 person distraining is required to keep such beasts in some secure 
 place other than the public pound, until his damages are ap- 
 praised. AYithin twenty-four hours after such distress, unless 
 the same was made on a Saturday, in which case, before the 
 Tuesday morning thereafter, he must apply to two fence viewers 
 of the town to appraise the damage. (2 R. S. 607, sec. 1.) 
 
 The fence viewers must thereupon, immediately repair to the 
 place and view the damage done ; and they may take the evi- 
 dence of any competent witnesses of the facts and circumstances 
 necessary to enable them to ascertain the extent of the damages, 
 for which purpose, either of them is authorized to administer an 
 oath to every such witness. (Id. sec. 2.) 
 
 The fence viewers must ascertain and certify, under their 
 hands, the amount of the damage, with their fees for their ser- 
 vices ; and if any dispute arises touching the sufficiency of any 
 fence around the premises where the damage was done, the 
 fence viewers may examine witnesses in relation thereto, and 
 for that purpose, may administer oaths to such witnesses ; and 
 the fence viewers must determine the dispute, which decision 
 will be conclusive. (Id. sec. 2.) 
 
 FENCE viewers' CERTIFICATE WHERE CATTLE ARE DIS- 
 TRAINED DOING DAMAGE. 
 
 Broome County, ; 
 
 'J own of Clienang >j\^' ' 
 
 Whereas, application was made to us, two of the fencs viewers 
 of the said town of Chenango, county aforesaid, by William 
 {Stow, of the said town, to appraise the damages done by a brin- 
 dle heifer — [s^ive us ininute a descriplion of the aniinul as pos- 
 sible] — distrained by him doing damage on his lands : This, 
 therefore, is to certify, that we have been to the place and ascer- 
 tained the damage to amount to the sum of twenty-five dollars, 
 and that the fees for our services arc seven dollars. 
 
 And whereas, a dispute has arisen between the said William 
 iSlow of the one part, and llein-y IJrown of the other part, 
 touching the sufllciency of the fence along the bank of the Sus- 
 ([iielianna river on the premises of the said William Stow,
 
 OF COUNTY AND TOWN OFFICERS. 581 
 
 which fence has been viewed by us, and we have heard the 
 parties, and examined witnesses in relation thereto ; this, tlieve- 
 fore, is to certify, that we consider the said fence sufficient — [or 
 "insufficient."] 
 Given under our hands, this 1st day of July, 1849. 
 
 Morgan Lewis, ) 
 
 TT T? [ Fence Viewers. 
 
 Henry Koberts, ) 
 
 When the parties cannot agree as to the amount of the dam- 
 age sustained by the owner or possessor of land on which float- 
 ing timber or lumber has drifted, either of them may apply to 
 any two fence viewers of the town in which such timber or 
 lumber may be found, whose duty it is, after hearing the proofs 
 and allegations of the parties, to determine the amount of the 
 damage at the expense of the owner of the timber or lumber ; 
 and their decision will be conclusive. The fence viewers, or 
 either of them, have power to issue process for such witnesses 
 as may be desired by either party, and to administer oaths to all 
 witnesses produced before them. (1 R. S. 877, sees. 2, 3.) 
 
 The owner of any sheep or lambs, that may be killed or in- 
 jured by any dog, may apply to any two fence viewers of the 
 town, who must inquire into the matter, and view the sheep 
 injured or killed, and may examine witnesses in relation thereto, 
 for which purpose either of them have power to administer 
 oaths. If they are satisfied that the sheep or lambs were killed 
 or hurt by dogs, and in no other way, they must certify such 
 fact, the number of sheep killed or hurt, and the amount of the 
 damage sustained by the owner, together with the value of the 
 sheep killed or hurt. (1 R. S. 88.5, sec. 10.) 
 
 Tlie certificate will be presumptive evidence of the facts 
 therein contained, in any suit that may be brought by the party 
 injured against the owner or possessor of any dog, provided it 
 appears on the trial of such suit, that due notice was given to 
 the owner of the dog of the intended application to the fence 
 viewers. (Id. sec. 11.) 
 
 It is provided, that every person who shall deliver to the 
 clerk of his town a note in writing, containing the name and 
 place of abode of such person, and the age, color, and n.arks, 
 natural and artificial, of any stray, and keep any stray described 
 therein, shall, if the stray be not sooner claimed and redeemed, 
 between the first day of May and the twentieth thereafter, give
 
 682 OF COUNTY AND TOWN OFFICERS. 
 
 notice to one of the fence viewers of the town, whose duty it is 
 to ascertain, according to the best of his knowledge and judg- 
 ment, the reasonable charges of keeping such stray, a certificate 
 whereof must be given by him to the person applying for the 
 same. (1 R. S. 401, sec. 23.) 
 
 CERTIFICATE OF FENCE VIEWER WHERE STRAY HAS NOT 
 BEEN CLAIMED OR REDEEMED. 
 
 Broome County, ) 
 Town of ChenangOi \ 
 
 Notice having been given to me, the undersigned, one of the 
 fence viewers of the town aforesaid, by John Brown of said 
 town, that the following stray animals, to wit : [here name and 
 describe them,] came, on or about the 25th day of April, 1849, 
 upon the enclosed lands of the said John Brown, which strays 
 have since that time been kept by the said John Brown, and 
 now remain unclaimed and unredeemed : This, therefore, is to 
 certify, that I have ascertained, according to the best of my 
 knowledge and judgment, the reasonable charges of keeping 
 such strays, and that the same amount to the sum of fifteen 
 dollars and seventy-five cents ; and that the fees for my services 
 amount to five dollars. 
 
 Given under my hand, this 5th day of May, 1819. 
 
 Morgan Lewis, Fence Viewer. 
 
 If the person detaining a stray and the owner cannot agree 
 as to the charges to be paid, at the time of redeeming the stray, 
 such charges may be ascertained and certified by two of the 
 fence viewers of the town, to be selected by the person claiming 
 the same. (1 R. S. 401, sec. 21.) 
 
 The certificate in the last mentioned case, may be readily 
 drawn from the forms already given. 
 
 Witnesses may be examined by fence viewers on all questions 
 submitted to them ; and either of such fence viewers have power 
 to issue subpoenas for, and to administer oaths to, such witnesses. 
 (1 R. S. 404, sec. 44.) 
 
 25. Compensation of County and Toivti Officers. 
 
 1. FEES OF TIIK HIIKHII'K. 
 
 For serving process, whore there shall have been no process
 
 OF COUNTY AND TOWN OFFICERS. 583 
 
 previous thereto, fifty cents. For traveling in making any such 
 service, six cents per mile, for going only, to be computed in all 
 cases, from the court jjonse of the county : and if there are two 
 or more court houses, to be computed from that wiilch is the 
 nearest to the place where the service is made. {2 R. S. 735, 
 sec. 54.) 
 
 For taking a bond on the arrest of a defendant, or taking his 
 endorsement of appearance, or for taking a bond in any other 
 case, where he is authorized to take the same, for which no fee 
 is otherwise allowed, thirty-seven and a half cents. ([d.) 
 For a certified copy of such bond, twenty-five cents. 
 
 For a copy of any writ when demanded, or required by law, 
 nineteen cents. Returning a writ, twelve and a half cents. 
 
 For serving an attachment for the payment of money, or an 
 execution for the collection of money, or a warrant for the same 
 purpose, issued by the comptroller or any county treasurer, for 
 collecting the sum of two hundred and fifty dollars, or less, two 
 cents and five mills per dollar ; and for every dollar collected 
 more than two hundred and fifty, one cent and two and one- 
 half mills. 
 
 Advertising goods or chattels, lands or tenements, for sale on 
 any execution, two dollars ; and if the execution is stayed or 
 settled, after advertising and before sale, one dollar. 
 
 The fees allowed by law and paid by the sheriff to any prin- 
 ter for publishing an advertisement of the sale of real esiate for 
 not more than six weeks, and for continuing such advertisement 
 more than six weeks, or for publishing the postponement of any 
 such sale, and the expense of such continuance or postponement, 
 must be paid by the party requiring the same. 
 
 The fees allowed for the service of an execution, and for ad- 
 vertising thereon, must be collected by virtue of such execution, 
 in the same manner as the sum therein directed to be levied : 
 but when there are several executions against the defendant, at 
 the time of advertising his property, in the hands of the same 
 sheriff, there can be but one advertising fee charged on the 
 whole, and the sheriff must elect on which execution he will 
 receive the same. 
 
 For drawnig every certificate of sale, where the execution is 
 over two hundred and fifty dollars, in the Supreme Court, for 
 every one hundred words, twenty-five cents. For a copy of 
 the same for every one hundred words, twelve and a half
 
 584 OF COUNTY AND TOWN OFFICERS. 
 
 cents — but no charge for more than two copies. For drawing 
 the like certificate in the Supreme Court, when the sum in the 
 execution is two hundred and fifty dollars, or under, for every 
 one hundred words, eighteen cents. For copying the same, not 
 more than two copies, for every one hundred words, nine cents. 
 
 For drawing and executing a deed, pursuant to a sale of real 
 estate, one dollar, to be paid by the grantee in such deed. 
 
 Serving a writ of possession or restitution, putting any person 
 entitled into the possession of premises, and removing the tenant, 
 one dollar and twenty-five cents; and traveling fees on the 
 same, for each and every mile going, six cents. 
 
 Taking a bond for the liberties of the jail, thirty-seven and 
 a half cents. 
 
 For any person committed to jail on civil process, and for 
 every person discharged from jail on civil process, for receiving, 
 twenty-five cents ; for discharging, twenty-five cents ; to be paid 
 by the plaintiff in the process. 
 
 For summoning a jury to any court, for each cause noticed 
 for trial, or placed upon the calendar for trial, fifty cents. 
 
 Summoning a jury upon a wiit of inquiry, and returning the 
 inquisition, and attending such jury, one dollar and fifty cents. 
 
 Sumiiioning a jury in any case where it shall be necessary to 
 try the title to personal property, attending such jury, and re- 
 turning the inquisition, one dollar and fifty cents. 
 
 Summoning a foreign or special jury pursuant to a venire for 
 that purpose, and returning the panel of jurors, one dollar, twelve 
 and a half cents. 
 
 Summoning a jury pursuant to any precept or summons of 
 any officer, in any special proceeding, one dollar : attending 
 such jury when required, fifty cents. 
 
 Bringing a jirisoner up, on habeas corpus, to testify or answer 
 in any court, one dollar and fifty cents : for travelling each mile 
 with such prisoner from the jail, twelve and a half cents : for 
 attending any court with such prisoner, for each day, one dol- 
 lar, and all actual necessary expenses. 
 
 Bringing up any prisoner upon any habeas corpus, with the 
 cause of his arrest and detention, one dollar and fifty cents 
 travelling with such j)risoner, for each mile from the jail, twelve 
 and a li.ilf cents. 
 
 Attending before any officer with a prisoner for the purj)ose of 
 having liirn surrendered, in exoneration of his bail, one dollar:
 
 OF COUNTY AND TOWN OFFICERS. 585 
 
 attending to receive a prisoner so surrendered who was not com- 
 mitted at the time, and receiving such prisoner in custody, one 
 dollar. 
 
 Attending a view, for each day's attendance, one dollar and 
 eighty-seven and a half cents : for each day's going, one dollar 
 and twenty-five cents cents : for each day's returning, one dollar 
 and twenty-five cents. 
 
 Serving an attachment upon ships or vessels, or upon the pro- 
 perty of any debtor, fifty cents, with such additional compensa- 
 tion for his trouble and expenses in taking possession of and 
 preserving the property attached as the officer issuing the war- 
 rant shall certify to be reasonable. When the property so at- 
 tached is sold by the sheriff, for collecting the sum of ;|250 or 
 less, for each dollar, two and a half cents ; and for every dollar 
 collected more than two hundred and fifty, one and a quarter 
 cents: for making and returning an inventory and appraisal — 
 such compensation not exceeding one dollar per day to each of 
 the appraisers, for each day actually employed — as the officer 
 issuing the attachment shall allow: for drafting the inventory, 
 when the sum is over two hundred and fifty dollars, for every 
 hundred words, twenty-five cents : for copying the same, for 
 every hundred words, twelve and a half cents : for drafting the 
 inventory, where the property attached is of the value of $250 
 or less, for every hundred words, eighteen cents: for copying 
 the same, for every hundred words, nine cents : for advertising 
 the sale of the property attached, two dollars ; if settled before 
 sale, and after advertising, one dollar ; and the same rule as to 
 printers' fees, as upon executions. 
 
 For executing any warrant, to remove any person from lands 
 belonging to the people of this state, or to Indians, such sum as 
 the comptroller shall audit and certify to be a reasonable com- 
 pensation. 
 
 For giving notice of any general or special election to the elec- 
 tors of the different towns or wards in his county, for each town 
 or ward, one dollar; and the expenses of publishing such no- 
 tices as required by law, to be paid by the county as a part of 
 the contingent expenses thereof. 
 
 For summoning constables to attend the Supreme Court, or 
 any other court, fifty cents for each constable. 
 
 For each day's attendance upon the Supreme Court, two dol- 
 lars.
 
 586 OF COUNTY AND TOWN OFFICERS. 
 
 For mileage on every execution, for each mile going only, six 
 cents. 
 
 For every person committed to prison, thirty-seven and a half 
 cents : for every prisoner discharged from prison, thirty-seven 
 and a half cents. 
 
 For summoning a grand jury for a Court of Oyer and Ter- 
 miner, or General Sessions, ten dollars. 
 
 For serving a warrant, or performing any other duty which 
 may be performed by a constable, the same fees as are allowed 
 by law to a constable for such service. 
 
 For transporting convicts to the several state prisons and 
 houses of refuge of this state, as follows : for conveying a single 
 convict to a state prison or house of refuge, for each mile from 
 the county prison from which such convict shall be conveyed, 
 thirty-five cents : for conveying two convicts, for each mile 
 aforesaid, forty-five cents; for conveying three convicts, fifty 
 cents; for conveying four convicts, fifty-five cents; for convey- 
 ing five convicts, sixty cents ; and for all additional convicts, 
 such reasonable allowance as the comptroller may think just — 
 which allowance, with one dollar per day for the maintenance 
 of each convict whilst on the way to the state prison, but not 
 exceeding one dollar for every thirty miles travel, is in full of all 
 charges and expenses in the premises. (Laws, 1849, ch. 123.) 
 
 ' 2. COMPENSATION OF COUNTY JUDGE. 
 
 The coimty judge receives an annual salary which is fixed 
 by the board of supervisors of his county, and which can neither 
 be increased nor diminished dining his continuance in oifice. 
 (Const, art. 4, sec. 14.) He must be paid at the close of each 
 quarter. (Laws, 1847, ch. 277.) Any fees received by the 
 county judge for official services, must be paid into the county 
 treasury. 
 
 3. FEES OF COUNTY CLERK. 
 
 For searching the records in his oflice, or the records of mort- 
 gages deposited in his d/iicc, by loan officers and commissioners 
 of loans, or the dockets of jiidgiucnls : for each year, five cents : 
 (2 R. S. 729, sec. 40:) for searching and certifying the title of, 
 and incunibrances upon, real estate, (en cents for each convey- 
 ance and ineunibrance certifuul by him, instead of fees now
 
 OF COUNTY AND TOWN OFFICERS. 587 
 
 allowed by law, provided that such fees in no case amount to less 
 than fifty cents, nor more than five dollars. (Sec. 41.) 
 
 Recording conveyances of real estate, and all other instru- 
 ments which by law maybe recorded, ten cents for each folio. 
 
 Filing every certificate of the satisfaction of a mortgage, and 
 entering such satisfaction, twenty- five cents. 
 
 Entering a minute of a mortgage being foreclosed, ten cents. 
 
 Entering in a book the bond of every collector, twelve and a 
 half cents. 
 
 Searching for such bond, six cents : entering satisfaction there- 
 for, twelve and a half cents. 
 
 Receiving and filing every paper deposited with him for safe 
 keeping, three cents : searching for every such paper, on request, 
 three cents for each paper examined. 
 
 Receiving and filing the papers of any insolvent, or relating 
 to the proceedings against any absent, concealed, absconding, or 
 imprisoned debtor, twelve and a half cents in each case ; and 
 such papers are not to be charged as having been separately 
 filed : searching for such papers, six cents for each year for 
 which searches shall be made. 
 
 For determining and certifying the sufficiency of the sureties 
 of any sheriff, fifty cents. 
 
 For every report upon the title of the parties in partition, pur- 
 suant to a reference for that purpose, one dollar. 
 
 For every report respecting the incumbrances upon the estate, 
 or interest of any party in partition, pursuant to a rule or order 
 for that purpose, one dollar. 
 
 For investing the proceeds of the sale of any estate, tuider pro- 
 ceedings in partition, pursuant to the order of the court, one 
 half of one per cent upon any sum not exceeding two hundred 
 dollars, and one quarter of one per cent for any excess : for re- 
 ceiving the interest upon such investments, and paying over the 
 same to the persons entitled, one half of one per cent. 
 
 For attendance in canvassing the votes given at any election, 
 two dollars : for drawing all necessary certificates of the result 
 of such canvass, and copies thereof, three dollars: for recording 
 such certificate?, ten cents for each folio. 
 
 For making and transmitting certified copies of the returns of 
 commissioners of common schools, six cents for each folio, to be 
 paid by the county. 
 
 For giving notice to the governor of persons who have taken
 
 588 OF COUNTY AND TOWN OFFICERS. 
 
 the oaths of office, three cents for each name : for giving such 
 notice of persons who have neglected to take the oath of office, 
 or to file or renew any security within tlie time required by law 
 and of any vacancy created by any officer dying or removing 
 out of the county or place for which iie was appointed, and of 
 all other vacancies in his county, six cents for each name so re- 
 ported. 
 
 Notifying every person appointed to office, twenty-five cents; 
 and all expenses actually and necessarily incurred by liim in 
 giving any notice which the comptroller shall deem reasonable. 
 
 For searching for a bail piece, and annexing it to the recog- 
 nizance roll, twelve and a half cents. 
 
 For recording every certificate of incorporation authorized by 
 lawto be recorded, seventy-five cents. 
 
 For entering in the minutes of the court a license to keep a 
 ferry, and for a copy thereof, one dollar: for taking and entering 
 a recognizance from any person authorized to keep a ferry 
 twenty five cents. 
 
 Swearing a witness, six cents. 
 
 Entering or respiting a recognizance, twelve and a half cents. 
 
 Calling or swearing a jury, nineteen cents. 
 
 Entering a sentence in the minutes kept by him, twelve and 
 a half cents ; and the like fee for every certified copy thereof, 
 and for a transcript thereof, for the secretary of state. 
 
 Copies of records, indictments, and other proceedings, the like 
 fees as are allowed in civil cases, for copies of papers filed in his 
 office. (2 R. S. 837, sec. 6.) 
 
 The statute provides that all clerks and registers of counties 
 claiming any fees by virtue of their respective offices, shall, 
 upon being required in writing by the party liable to pay the 
 same, his agent, or attorney, and on payment of the expense 
 thereof, have their fees taxed by some officer authorized to tax 
 costs in the Supreme Court ; and either party may appeal from 
 such taxation to the Supreme Court. No clerk or register can 
 collect any fees, after having been required, as aforesaid, to have 
 the same taxed, without such taxation having been made. The 
 fee for such taxation nuist hn fifty cents. (Id. 730, sees. 42, 43, 
 and /11.) 
 
 Tin; clerk of the city and county of New York receives a sa- 
 lary of two thousand i'lva hundred dollars a year, which is in lieu 
 of all f;es, perquisites and emoluments for discharging the duties
 
 OF COUNTY AND TOWN OFFICERS. 589 
 
 of county clerk, clerk of the Court of Common Pleas, clerk of the 
 Supreme Court in law and equity, and for the performance of 
 all other duties prescribed by law, directly or indirectly, or which 
 he may perform by virtue of his office. (Laws, 1847, ch. 432, 
 sec. 3.) All the fees, perquisites and emoluments received by 
 such clerk for official services, belong to the city and county of 
 New York, and must be collected, and accounted for, and paid 
 into the treasury of said city and county. (Id. sec. 1.) 
 
 4. COMPENSATION OF SURROGATE. 
 
 When any separate officer is elected to perform the duties of 
 the office of surrogate, he is entitled to an annual salary, which 
 must be fixed by the board of supervisors, and paid at the close 
 of each quarter by the county in wfiich h^! is elected. Such 
 salary cannot be increased or diminished during his continuance 
 in office. (Laws, 1847, ch. 277, sec. 4.) All fees and perquisites 
 received by the surrogate for official services, must be paid into 
 the county treasury. (Sec. 4.) 
 
 5. FEES OF DISTRICT ATTORNEY. 
 
 For drawing every indictment actually agreed to by a grand 
 jury, including such as may be prepared by their direction, 
 though not finally agreed to by them, twenty-two cents for each 
 folio, and fifteen cents per folio for engrossing the same ; but no 
 more than tvvo counts in any indictment for the same offence 
 can be allowed and taxed, unless the presiding judge of the 
 court at which the indictment was found, or the judge of the 
 county, certify that the additional accounts are, in his opinion, 
 necessary ; and the like fees for drawing and engrossing every 
 affidavit and other proceeding, actually and necessarily prepared 
 by such district attorney, in the prosecution of any cause, and 
 for which no fee is specifically allowed ; but it will not be 
 deemed necessary, nor can any allowance be made for the draft 
 or copy of any affidavit or service of subpoena, unless it be upon 
 the actual default of a witness to attend court, and where it is 
 necessary to attach such witness to procure his attendance. 
 
 For every bench warrant, or other process, actually and ne- 
 cessarily issued, to bring a party into court, twenty-five cents ; 
 but no allowance can be made for more than one warrant on 
 any indictment, where the defendants reside in the same county,
 
 590 01*' COUNTY AND TOWN OFFICERS. 
 
 nor for a second warrant on the same indictment, unless a pre- 
 vious warrant shall have been duly returned not served, after a 
 reasonable tim.e allowed for its service. 
 
 For every subpoena actually and necessarily issued, returnable 
 before a grand jury or court, twenty-five cents, including sub- 
 poena ticket ; but no other allowance can be made for any draft 
 or copy of subpoena, or any draft or copy of subpoena ticket for 
 any witness; and no more than one subpoena and subpoena 
 ticket can be allowed for each witness subpoenaed, either before 
 the grand jury or court ; and no allowance can be made for any 
 subpoena and subpoena ticket, issued for the same witness more 
 than once, in the same cause, except when it becomes necessary 
 to subpoena the same witness before the court, after having been 
 subpoenaed before the grand jury. 
 
 For arguing every special motion actually made after notice 
 given by the district attorney, or after notice given in behalf of 
 the defendant, one dollar and twenty-five cents ; but no fees are 
 allowed for arraigning a prisoner, recognizing a witness or a 
 party, or moving on a cause for trial, or putting over a trial, or 
 opposing a motion to put over a trial, or for making or opposing 
 any other ordinary motion. 
 
 For every trial fee, four dollars — such fee not to be allowed 
 unless the trial actually takes place ; and the like fee for argu- 
 ing every motion for a new trial or demurrer, or motion in arrest 
 of judgment, or bill of exceptions, or writ of error. 
 
 For making up a record when required by order of a judge of 
 the court in which the defendant is arraigned or convicted, 
 twenty-two cents for drawing every folio, and fifteen cents per 
 folio for engrossing ; and the like compensation must be paid to 
 the district attorney by the defendant, for making up such re- 
 cord, when made at the request of the defendant; and the like 
 fees for engrossing a bill of costs. (2 R. S. 838.) 
 
 The bills of costs of the district attorney are taxed before the 
 board of supervisors of his county, by a taxing officer designa- 
 ted by the board. For the manner of, and the proceedings on 
 the taxation, the reader is referred to 2 R. S., page 839. 
 
 In some of the counties, the district attorney, in lieu of fees, 
 receives an annual salary which is fixed by the board of super- 
 visors of the county. 
 
 The district attorney of the city and county of New York re- 
 ceives for his .services an annual salary not less than two thou-
 
 OF COUNTY AND TOWN OFFICERS. 59I 
 
 sand five hundred dollars, and not exceeding three thousand 
 five hundred dollars, to be fixed and paid by the Common 
 Council of that city. (1 R. S. 438. sec. 128.) 
 
 6. FEES OF COUNTY TREASURER. 
 
 It is enacted that the several county treasurers of the state 
 shall hereafter receive for their services such compensation as 
 shall be fixed by the respective boards of supervisors of their 
 respective counties, not exceeding the half of one per cent, for 
 receiving, and the half of one per cent, -for disbursing, — and in 
 no case to exceed the sum of five hundred dollars per annum. 
 (Lavirs, 1846, ch. 189.) 
 
 7. COMPENSATION OF CORONERS. 
 
 It is enacted that the compensation to be paid to the coroners 
 of the several cities and counties of the state for holding any 
 inquest in the cases authorized by law. shall be fixed, and, to- 
 gether with all necessary incidental expenses, shall be audited 
 and allowed, by the board of supervisors of the respective coun- 
 ties, and paid in like manner as the county charges. (2 R. S. 
 840, sec. 10.) 
 
 The same fees are also allowed coroners, for services rendered 
 by them, as are allowed to sheriffs for similar services. (Id. 
 737, sec. .55.) 
 
 8. COMPENSATION OF SUPERINTENDENTS OF THE POOR. 
 
 It is provided that the county superintendents of the poor 
 shall be allowed such sum for their services as the board of su- 
 pervisors of their county shall deem reasonable. (I R. S. 784, 
 sec. 15.) 
 
 Commissioners of loans are entitled to retain for their ser- 
 vices, upon every sum not over twenty-five thousand dollars 
 committed to their charge, not over three-quarters of one per 
 cent. ; upon the further sum of twenty-five thousand dollars, or 
 less, half of one per cent. ; and where the whole sum exceeds 
 fifty thousand dollars, half of one per cent., except in the city 
 and county of New York, where it is one-quarter of one per 
 cent.
 
 592 OF COUNTY AND TOWN OFFICERS. 
 
 10. FEES OF notaries' PUBLIC. 
 
 Notaries are not allowed to receive, for the protest for uoii 
 payment of any note, or for the non acceptance or non payment 
 of any bill of exchange, check, or draft, including giving the 
 requisite notices and certificates of protest, and the affixing his 
 seal thereto, any more fee or reward than seventy-five cents. (2 
 R. S. 738, sec. 57.) 
 
 11. COMPENSATION OF SEALER OF WEIGHTS AND MEASURES. 
 
 Each sealer is entitled to receive, for sealing and marking 
 every beam, twelve and a half cents ; every measure of exten- 
 sion, twelve and a half cents per yard, but not more than 
 fifty cents for any one measure ; for sealing and marking every 
 weight, three cents ; for sealing and marking liquid and dry 
 measures, if they are less than a gallon, three cents; if of a 
 gallon or more, twelve and a half cents ; and a reasonable com- 
 pensation for making such weights and measures, conform to 
 the legal standard, (1 R. S. 779, sec. 32.) 
 
 12. COMPENSATION OF SUPERVISORS. 
 
 Each member of the board of supervisors is allowed a com- 
 pensation for his services and expenses in attending the meet- 
 ings of the board, at the rate of two dollars a day. The clerk 
 of the board is entitled to a reasonable compensation, to be fixed 
 by the board, and paid by the county. Each supervisor is en- 
 titled to receive, over and above the per diem compensation, eight 
 cents per mile for all necessary travel in the discharge of his 
 official duties, and three cents for each name (for making a copy 
 of the assignment roll of his town, and making out the tax bill, 
 to be delivered to the collector) for the first hundred names, two 
 cents per name for the second hundred names, and one cent per 
 name for each name over two hundred. But no per diem al- 
 lowance can be made to any supervisor, while employed in 
 making out such copy or tax. ( Vide Lmvs, 1849.) 
 
 13. CUMPr.N.SATION OF TOWN CLERK. 
 
 The statute ])rovides that the town clerk shall be entitled to 
 such compensation for his services as the board of supervisors 
 of his county shall allow. 
 
 Id. COMIMONHATION OF ASSESSORS. 
 
 Assessors are allowed one dollar and twenty-five cents, each, 
 for every day, while attending to the duties of their office.
 
 OF COUNTY AND TOWN OFFICERS. 593 
 
 15, FEES OP COLLECTOR. 
 
 Town collectors are allowed two per cent, fees on all volun- 
 tary payments made to them, within thirty days from the post- 
 ing of the notices requried by law in all cases where the aggre- 
 gate amount to be collected by warrants, when put into their 
 hands, shall not exceed the sum of two thousand dollars. They 
 are entitled to collect five per cent, fees for all unpaid taxes ; 
 and whenever any collector makes return to the county treasurer 
 for any unpaid taxes, he must add to the several sums so re- 
 turned by him, five per cent., which must go to the credit of the 
 county, and be collected with said unpaid taxes ; and the col- 
 lector will be entitled to receive from the county treasury, and 
 be paid by the treasurer, two per cent, as fees for all taxes so 
 returned by him. (Laws, 1847, chs. 482, 455.) 
 
 16. FEES OF CONSTABLE. 
 
 For serving a warrant or summons, twelve and a half cents : 
 for a copy of every summons delivered on request, or left at the 
 dwelling of the defendant, in his absence, nine cents : for serv- 
 ing an attachment, fifty cents : for a copy thereof, and an inven- 
 tory of the property seized, left at the last residence of the de- 
 fendant, fifty cents : for serving an execution, five cents for every 
 dollar collected to the amount of fifty dollars, and two and a 
 half cents for every dollar collected over fifty dollars : for every 
 mile, going only more than one mile, when serving a summons, 
 warrant, attachment or execution, six cents, to be computed from 
 the place of abode of the defendant, or where he shall be found, 
 to the place where the precept is returnable : for notifying a 
 plaintiff of the service of a warrant, twelve and a half cents: 
 and for going to the plaintiff's residence, or where such notice 
 was served, six cents for every mile more than one : for sum- 
 moning a jury, fifty cents. (2 R. S. 360.) 
 
 For serving a summons in special proceedings in civil cases, 
 twelve and a half cents ; mileage, for going only, six cents for 
 each mile : for advertising and selling any property, or levying 
 any fine, penalty or sum, pursuant to any warrant, the same 
 fees as are allowed for similar services on executions from Jus- 
 tices' courts : for arresting and committing any person pursuant 
 to process, fifty cents ; and mileage, for going only, six cents : 
 for any service not herein provided for, which may be rendered 
 
 38
 
 594 OF COUNTY AND TOWN OFFICERS. 
 
 by a constable, the same fees as are allowed by law to sheriffs 
 for similar services : for attending any court, pursuant to a no- 
 tice from the sheriff for that purpose, one dollar and fifty cents 
 a day in the city of New York, and one dollar and twenty-five 
 cenis a day in each of the other counties of the state ; which 
 fees are chargeable to the county, and must be paid by the 
 county treasurer, on the production of the certificate of the 
 clerk, specifying the number of days such constable shall have 
 attended. (2 R. S. 738, sec. 56.) 
 
 For serving a warrant or other process, for the arrest of any 
 person, issued by any magistrate or court, fifty cents ; and the 
 same fees for travelling to make such service as are allowed for 
 serving a warrant in civil cases : taking a defendant into cus- 
 tody on a mittimus, twelve and a half cents : conveying a per- 
 son to the magistrate or court before whom he is to be brought, 
 or to jail, twelve and a half cents, if within one mile ; and for 
 every mile more, going only, six cents : serving a subpoena, 
 twelve and a half cents for each witness, and the like mileage 
 as above provided ; but mileage can be allowed only on the 
 distance actually and necessarily travelled. (Id. 836, sec. 5.) 
 
 It is enacted that whenever a subpoena for witnesses in crim- 
 inal cases or complaints, containing one or more names, shall be 
 served by a constable or other officer, such officer shall be allowed 
 for mileage only, for the distance, going and returning, actually 
 travelled to make such service upon all the witnesses in such case 
 of complaint, and not separate mileage for each witness, unless 
 the board of supervisors, auditing accounts for such services, 
 shall deem it equitable to make a further allowance. (Id.) 
 
 The board of supervisors may allow such further compensa- 
 tion for the service of process, and the expenses and trouble 
 attending the same, as they shall deem reasonable. (Id.) 
 
 For other services in criminal cases, for which no compensa- 
 tion is specially provided by law, the constable is entitled to 
 such sum as the board of supervisors of the county shall allow. 
 (Ibid.) 
 
 17. COMI'ENSATION OP COMMISSIONEHS OF HIGHWAYS. 
 
 Commissioners of highways are allowed one dollar for every 
 day l!i;it llniy ;irc engaged in th(! discharge of their duties. (I 
 R. S. 4U8, sec. '1'.).)
 
 OF COUNTY AND TOWN OFFICERS. 595 
 
 18, COMPENSATION OF OVEUSEERS OP HIGHWAYS. 
 
 If any overseer is employed more days in executing his du- 
 ties than he is assessed to work on the highways, he is entitled 
 to seventy-five cents for every day of such excess which he may 
 retain from any fines coming into his hands. (Id. 618, sec' 13.) 
 
 19. COMPENSATION OF OVERSEERS OF THE POOR. 
 
 Overseers of the poor are entitled to one dollar a day for their 
 services, to be audited and paid as other town charges, except 
 where the service relates to county paupers, when it is to be 
 paid by the county treasurer. (Id. 408.) 
 
 20. COMPENSATION OF TOWN SUPERINTENDENT OF COMMON SCHOOLS. 
 
 The town superintendent is entitled to one dollar and twenty- 
 five cents for every day necessarily spent in the discharge of 
 his duties, to be audited and allowed as other town charges. 
 (Id.) 
 
 21. FEES OP POUND MASTER. 
 
 The pound master is allowed the following fees for his ser- 
 vices, to wit : for taking into the pound, and discharging there 
 from, every horse, ass, or mule, and all neat cattle, twelve and 
 a half cents each : for every sheep or -lamb, three cents ; and 
 for every hog, three cents. He is also entitled to reasonable 
 charges for feeding such beasts, not exceeding six cents for each 
 beast for every twenty-four hours. (1 R. S. 408. 2 Id. 608.) 
 
 22. FEES OF COMMISSIONERS CF EXCISE. 
 
 One dollar and twenty five cents are allowed to each com- 
 missioner, for one day's attendance only at the board of excise, 
 to be paid and allowed as other town charges ; and no other 
 or greater compensation can be allowed, whether any license be 
 granted or not, or whether the board be in session one day or 
 more than one. (1 R. S. 852.) 
 
 23. FENCE viewers' FEES. 
 
 A fence viewer is allowed for every mile of travel from his 
 home, to the place where strays are kept, six cents ; and twen- 
 ty-five cents for a certificate of the charge ; to be paid by the
 
 596 OF COUNTY AND TOWN OFFICERS. 
 
 owner of the strays, or the person applying for the certificate. 
 (1 R. S.401.) 
 
 For all other services required by law, fence viewers receive 
 such compensation as may be fixed by the town meetings of 
 theiB respective towns. 
 
 26. County Charges. 
 
 The statute provides that the following shall be deemed 
 county charges : (1 R. S. 439, sec. 3.) 
 
 1. The compensation of the members of the board of super- 
 visors, of their clerk, and of the county treasurer ; 
 
 2. The fees of the district attorney, and all expenses necessa- 
 rily incurred by him in criminal cases, arising within the coun- 
 ty; 
 
 3. The accounts of the criers of the several courts within the 
 county, for their attendance in criminal cases ; 
 
 4. The compensation of sheriffs for the commitment and dis- 
 charge of prisoners on criminal process, within their respective 
 counties ; 
 
 5. The compensation allowed by law to constables for attend- 
 ing courts of record, and reasonable compensation to constables 
 and other officers for executing process on persons charged with 
 criminal offences ; for services and expenses in conveying crim- 
 inals to jail ; for the service of subpoenas issued by any district 
 attorney ; and for other services in relation to criminal proceed- 
 ings, for which no specific compensation is prescribed by law ; 
 
 6. The expenses necessarily incurred in the support of per- 
 sons charged with, or convicted of crimes, and committed therefor 
 to the several jails of the county ; 
 
 7. The sums required by law to be paid to prosecutors and 
 witnesses in criminal cases ; 
 
 8. The accounts of the coioners of the county, for such ser- 
 vices as are not chargeable to the persons employing them ; 
 
 9. The moneys necessarily expended by any county officer, 
 in executing the duties of his oflice, in cases in which no speci- 
 fic compensation, for such services is provided by law ; 
 
 10. The accounts of the county clerks for services and ex- 
 penses incurred ; 
 
 11. All charges and accounts for services rendered by any 
 Justice of the I'cacc, under the laws for the relief and settlement
 
 OF COUNTY AND TOWN OFFICERS. 597 
 
 of the poor of his county, and for services in the examination of 
 felons, not otherwise provided for by law : 
 
 12. The sums necessarily expended in each county, in the 
 support of county poor houses, and of indigent persons whose 
 supjDort is chargeable to the county ; 
 
 13. The sums required to pay the bounties allowed by law 
 for the destruction of wolves and other noxious animals, and 
 chargeable to the county ; 
 
 14. The sums necessarily expended in repairing the court 
 houses and jails of the respective counties ; 
 
 15. The contingent expenses necessarily incurred, for the use 
 and benefit of a county ; 
 
 16. Every other sum directed by law to be raised for any 
 county purpose, under the direction of a board of supervisors ; 
 
 17. Accounts of sheriffs for paying the fees of clerks of coun- 
 ties, for drawing juries, for attending the drawing of grand juries, 
 and for summoning constables to attend courts. 
 
 Accounts for county charges of every description, must be 
 presented to the board of supervisors of the county, to be audited 
 by them. (1. R. S. 440, sec. 4.) 
 
 All town and county officers, and all other persons, who may 
 present to the board of supervisors accounts for their services, to 
 be audited and allowed, must, before any such account or claim, 
 can be passed upon or allowed, exhibit a just and true statement, 
 in writing, of the nature of the service performed by them. (1 
 R. S. 439, sec. 1.) 
 
 In all cases in which a specific compensation for any service, 
 is not provided by law, the officer or person presenting an ac- 
 count therefor, must also exhibit, in writing, a just and true 
 statement of the time, actually and necessarily devoted to the 
 performance of such services. (Id. sec. 2.) 
 
 27. Town Charges. 
 
 The statute declares that the following shall be deemed town 
 charges : (1 R. S. 410, sec. 2.) 
 
 1. The compensation of town officers for services rendered for 
 their respective towns ; 
 
 2. The contingent expenses necessarily incurred for the use 
 and benefit ot the town.
 
 598 OF COUNTY AND TOWN OFFICERS. 
 
 3. The moneys authorized to be raised by the vote of the town 
 meeting, for any town purpose ; 
 
 4. Every sum directed by law to be raised for any town pur- 
 pose. 
 
 Accounts for compensation of town officers, (except for 
 moneys received and disbursed, which are to be settled by the 
 board of town auditors,) are to be presented to the board of su- 
 pervisors of the county. (1 R. S. 410, sec. 3.) 
 
 The moneys necessary to defray the town charges of each 
 town, are to be levied on the taxable property in the town. (Id, 
 sec. 4.)
 
 CHAPTER XXI. 
 
 OF TOWNS AND TOWN MEETINGS. 
 
 I SHALL treat the subjects of this chapter under the following 
 heads : — 
 
 1. Tovms. 
 
 2. Town Meetings. 
 
 3. Mode of Conducting Town Meetings. 
 
 1. Towns. 
 
 Each town, as a body corporate, has capacity to sue and be 
 sued ; to purchase and hold lands within its own limits, and for 
 the use of its inhabitants, subject to the power of the legislature 
 over such limits ; to make such contracts, and to purchase and 
 hold such personal property as may be necessary to the exer- 
 cise of its corporate or administrative powers ; and to make 
 such orders for the disposition, regulation or use of its corporate 
 property, as may be deemed conducive to the interests of its 
 inhabitants. (1 R. S. 384, 385, sec. 1.) 
 
 The statute declares that no town shall possess or exercise 
 any corporate powers, except those enumerated above, unless 
 specially given by law, or unless necessary to the exercise of the 
 powers so enumerated or given. (Sec. 2.) 
 
 All acts or proceedings by or against a town in its corporate 
 capacity, must be in the name of such town ; but every con- 
 veyance of lands within the limits of such town, made in any 
 manner for the use or benefit of its inhabitants, will have the 
 same effect as if made to the town by name. (Sec. 3.) 
 
 When a town, seized of lands, is divided into two or more, or 
 when its limits are altered, the supervisors and overseers of the 
 poor in the towns interested have power to make such agree- 
 ments concerning the disposition of such lands, and the appor- 
 tionment of the proceeds, as may be equitable. If they do not 
 so agree, within six months after such alteration or division, the 
 supervisors and overseers may sell the portion of such lands 
 which lies in their own towns, and apportion the proceeds among
 
 600 OF TOWNS AND TOWN MEETINGS. 
 
 the towns interested, according to the taxable property in each 
 as it existed immediately before such division or alteration. 
 Debts owing by a town so divided or altered, must be appor- 
 tioned in the same manner as the personal property of such 
 town ; and each town must thereafter be charged with its share 
 of such debts, according to such apportionment. If the town is 
 possessed of money, rights or credits, or other personal estate, 
 they are to be apportioned in the same manner. Whenever a 
 meeting is necessary for the foregoing purposes, it may be called 
 by the supervisor of either of the towns interested, on giving 
 three days notice, stating the time and place Lhereof. (1 R. S. 
 385, 386.) 
 
 No town can be divided or altered in its bounds, nor can any 
 new town be erected, without an application to the legislature 
 by the inhabitants of the town so to be divided or altered, or of 
 the several towns out of which the new town is to be erected, 
 or some of them ; and notice in writing of such intended appli- 
 cation, subscribed by at least five persons resident and freehold- 
 ers in such town or towns, must be affixed on the outer door of 
 the house where the next town meeting is to be held in each of 
 the towns to be affected thereby, at least ten days previous to 
 the town meeting. A copy of such notice must also be read at 
 the town meeting of every town to be affected thereby, to the 
 electors there assembled, by the clerk of the town, immediately 
 before proceeding to the election of town officers. The appli- 
 cants must procure an accurate survey and map of the territory 
 described in such application, which, upon being verified by the 
 oath of the surveyor making it, is to be laid before the legisla- 
 ture ; and if any law is passed pursuant to such application, it 
 is to be filed in the office of the surveyor-general. (1 R. S. 82.) 
 
 The wards in the cities correspond, in most respects, to the 
 several towns in the counties. 
 
 2. Town Meetings. 
 
 The statute directs that tlic citizens of the several towns in 
 the state quuUfied by the constitution to vote for elective offi- 
 cers, shall annually assemble and hold town meetings in their 
 respective towns, at such place in each town as the electors 
 thereof, at their annual town meeting, shall from time to time 
 appoint. The town meetings of the several towns nnist be held 
 on some day between tlic first day of February and the first
 
 OF TOWNS AND TOWN MEETINGS. 601 
 
 day of May in each year, to be appointed from time to time by 
 the boards of supervisors of the several counties, by resolution, 
 so that the town meetings of every town in the county shall be 
 held on the same day — each board of supervisors to fix the time 
 for their respective counties, at their pleasure, within the period 
 aforesaid; which resolution, so fixing the time for said town 
 meetings, when adopted, the said boards must cause to be duly 
 published ; and the day so appointed must remain the day es- 
 tablished for said town meetings, for at least three successive 
 years, and until changed by a resolution of said boards. (1 R. 
 S. 387, sec. 2.) 
 
 Whenever, from any cause, the time of holding the annual 
 town meetings in any town is not fixed by the inhabitants in 
 the manner required by law, the next annual town meeting in 
 such town must be held on the same day, of the same week, of 
 the same month, on which the last annual town meeting of such 
 town was held ; and if no place has been fixed for such meet- 
 ing, it must be held at the place of the last annual town meet- 
 ing. (Sec. 3.) 
 
 There are chosen, at the annual town meeting in every town, 
 the following officers, vTl. : one supervisor, one town clerk, one 
 Justice of the Peace, and more, if there be any vacancies ; not 
 less than three, nor more than five assessors, one collector, two 
 overseers of the poor, three commissioners of highways, one 
 town superintendent of common schools ; not more than five 
 constables, one town sealer of weights and measures, as many 
 overseers of highways as there are road districts in the town, 
 and as many pound masters as the electors may determine. 
 (Sec. 4.) 
 
 The electors have power, at their annual town meet- 
 ing, to determine what number of assessors, constables, and 
 pound masters, shall be chosen for the ensuing year ; to direct 
 such sum to be raised in the town for the support of common 
 schools as they deem proper, not exceeding the sum required by 
 law to be raised for that purpose ; to direct the institution or de- 
 fence of suits in which the town is a party, and the sum of mo- 
 ney to be raised for that purpose ; to give general directions for 
 the exercise of their corporate powers ; to make provision and 
 allow rewards for the destruction of noxious weeds ; to establish 
 and maintain pounds in convenient places in the town ; to fix 
 the compensation of fence viewers, town superintendents of
 
 602 OF TOWNS AND TOWN MEETINGS. 
 
 common schools, and of the collector of the town ; but the law 
 provides that the collector shall not receive more than five, nor 
 less than three per cent, on the amount collected by him ; to 
 make rules and regulations in relation to fences, and to the times . 
 when cattle may be permitted to go at large on the highways ; 
 for impounding animals, &c. ; to impose penalties for the viola- 
 tion of any town ordinance, except those relating to keeping and 
 maintaining fences, not to exceed twelve dollars and fifty cents 
 for each offence ; to authorize, by vote, an additional sum not 
 exceeding two hundred and fifty dollars, to be raised for the 
 improvement of roads and bridges in their town, when, in the 
 opinion of the commissioners of highways, the sum of two hun- 
 dred and fifty dollars allowed by law is insufficient for that pur- 
 pose ; and in those counties where the towns are bound to sup- 
 port their own poor, to direct such sum to be raised therefor as 
 they may deem necessary — which, when collected, must, in the 
 counties having a county poor house, or other place for the re- 
 ception of the poor, be paid to the county treasurer, and be 
 placed by him to the credit of the town ; in the other counties, it 
 is to be paid to the overseers of the poor. (1 R. S. 387, 38S.) 
 
 If any person elected to the office of supervisor, assessor, com- 
 missioner of highways, or overseer of the poor, refuse to serve, 
 die, resign, remove out of the town, or become incapable of serv- 
 ing, it is the duty of the town clerk, within eight days after the 
 happening of such vacancy, to call a special town meeting for 
 the piu-pose of supplying the same. A special town meeting 
 may also be called whenever twelve or more persons eligible to 
 the office of supervisor, shall, by written application to the town 
 clerk, signed by them, require the same, for the purpose of rais- 
 ing money for the support of the common schools, or of the 
 poor, when it has been neglected at the annual town meeting ; 
 or for the purpose of raising money to carry on suits to which 
 the town is a party. (Id. 390, sec. 15.) 
 
 No previous notice need be given of the annual town meeting. 
 But the town clerk is required, at least eight days before the 
 holding of any special town meeting, to cause notices thereof, 
 imder his hand, to be posted at four or more of the most public 
 places in the town ; which notices must specify the time, place, 
 and purposes of such meeting. (Sec. 16.) 
 
 Every ord(;r or dircrtion, mid all rules and regulations, made 
 by any town meeting, remain in force until the same are altered
 
 OF TOWNS AND TOWN MEETINGS. 603 
 
 or repealed at some subsequent town meeting. (1 R. S. 390, 
 sec. 17.) 
 
 Whenever a town meeting is held in any town, no civil pro- 
 cess can be served in such town on any elector entitled to vote 
 therein on any day during which such town meeting is held. 
 (iSec. 18.) 
 
 3. Mode of Conducting Town Meetings. 
 
 It is the duty of the Justices of the Peace of each town to 
 attend every town meeting held therein ; and such of them as 
 are present must preside at such meeting, and see that the same 
 is orderly and regularly conducted. The officers so presiding 
 have the like authority to preserve order, to enforce obedience, 
 and to commit, for disorderly conduct, as is possessed by the 
 board of inspectors, at a general election. If there is no Justice 
 of the Peace present at the meeting, then such person as may 
 be chosen by the electors present must preside, and will possess 
 the like powers as the Justices. The town clerk last before 
 elected or appointed, must be the clerk of the town meeting, and 
 keep faithful minutes of its proceedings, in which he must enter 
 at length every order or direction, and all rules and regulations 
 made by such meeting. If the town clerk is absent, such per- 
 son as may be chosen for that purpose by the electors present 
 must act as clerk of the meeting. The meeting is to be kept 
 open only between the rising and setting of the sun ; and, if 
 necessary, it may be held two successive days, but no longer. 
 (1 R. S. 390, 391.) 
 
 All questions upon motions made at town meetings are deter- 
 mined by the voice of a majority of the electors voting, the re- 
 sult being ascertained and declared by the presiding officer. 
 When the votes are by ballot, the names of all officers voted for 
 must be on one ballot, so folded as to conceal the contents, which 
 must be delivered to the presiding officer, the clerk of the meet- 
 ing keeping a poll list on which to enter the name of every per- 
 son voting. Proclamations must be made of the opening and 
 closing of the poll, and also of each adjournment, until the elec- 
 tion is ended. (1 R. S. 391.) 
 
 At the close of the meeting, the presiding officers must pro- 
 ceed publicly to canvass the votes — which canvass, when com- 
 menced, must be continued, without adjournment or interrup- 
 tion, until the same is completed. The canvassers may, how
 
 604 OF TOWNS AND TOWN MEETINGS. 
 
 ever, determine whether the canvass of the votes shall then be 
 had, or postponed until the next day ; if they determine that 
 the canvass shall then be commenced, the same may be con- 
 tinued after sun down ; but it must be had publicly at the place 
 where the meeting was held, and the result must be read by the 
 clerk to the persons there assembled ; and such reading will be 
 held notice of the election to all persons whose names are on 
 the poll list as voters. Before the ballots are opened, they must 
 be counted and compared with the poll list. (Id. 393.) The 
 canvass being completed, a statement of the result must be en- 
 tered at length by the clerk of the meeting in the minute of its 
 proceedings. (Id.) 
 
 The clerk of every town meeting is required, within ten days 
 thereafter, to transmit to each person elected to any town office, 
 whose name shall not have been entered on the poll list as a 
 voter, a notice of his election ; and he must also transmit to the 
 county clerk the result of every town meeting at which a Jus- 
 tice of the Peace is elected, within ten days thereafter. (Id.)
 
 CHAPTER XXII. 
 
 OF SCHOOL DISTRICTS. 
 
 I SHALL treat the subjects of tliis chapter under the following 
 heads : 
 
 1. Of the Formation aful Alteration of School Districts. 
 
 2. Of the Powers of /School District Inhabitants, and of the 
 
 Choice Duties and Poiuers of School District Officers. 
 
 3. The Duty of Trustees of School Districts. 
 
 4. The Assessment and Collection of School District Taxes. 
 
 5. Of the Annual Reports of Trustees, their Duties and Lia- 
 
 hilities. 
 
 6. School District Libraries. 
 
 7. Miscellaneous Provisions connected with the foregoing 
 
 subjects. 
 
 1 . Of the Formation and Alteration of School Districts. 
 
 In the erection or alteration of a school district, the trustees of 
 the district may apply to the supervisor and the town clerk, to be 
 associated with the town superintendent ; and their action will 
 be final, unless duly appealed from. (Laws, 1847, ch. 485, 
 sec. 43.) 
 
 The compensation of the supervisor and town clerk, when 
 thus associated, will be the same as that of the town superin- 
 tendent. (Id.) 
 
 Whenever it becomes necessary or convenient, to form a dis- 
 trict out of two or more adjoining towns, the town superinten- 
 dent of such adjoining towns, or the major part of them, may 
 form, regulate and alter such district. (Sec. 44.) 
 
 No alteration of any school district made without the consent 
 of its trustees, can take effect ?mtil three months after notice, in 
 writing, given by the town superintendent to some one or more 
 of the trustees ; nor can any alteration or regulation of an organ- 
 ized school district be made to take effect between the first day 
 of December in any one year, and the first day of May follow- 
 ing. (Sec. 45.)
 
 606 OF SCHOOL DISTRICTS. 
 
 If the town superintendent in any town, requires, by notice in 
 writing the attendance of the town superintendents of any other 
 town or towns, at a joint meeting for the purpose of aUering a 
 school district formed from their respective towns, and a major 
 part of the town superintendents notified, refuse or neglect to at- 
 tend, the town superintendents attending, by a majority of votes 
 may call a special district meeting of the district for the purpose 
 of deciding on the. proposed alteration ; and the decision of the 
 meeting will be as valid as if made by the town superintendents 
 of all the towns interested. It can, however, extend no further 
 than to dissolve the district formed from such towns. (Sec. 46.) 
 When two or more districts are consolidated into one, the 
 new district succeeds to all the rights of property possessed by 
 the districts of which it is composed ; and when a district is an- 
 nulled, and portions of it are annexed to ether districts, the pro- 
 perty of the district annulled is to be sold by the town superin- 
 tendent of the town in which the school house is located, at 
 public auction, to the highest bidder, after at least five days pub- 
 lic notice posted in three or more public places in the town, one 
 of which must be within the annulled district. The proceeds 
 on the sale must be first applied so far as requisite, to the pay- 
 ment of any just debts due from the annulled district ; and the 
 residue is to be apportioned among the taxable inhabitants of 
 the district annulled, in the ratio of their several assessments 
 upon the last corrected assessment roll of the town or towns, 
 within which the district is located. (Laws 1849, ch. 382.) 
 
 When there are any moneys in the hands of the ofiicers of a 
 district that has been annulled, or belonging to such district, the 
 town superintendent of the town may demand, sue for, and re- 
 cover the same, in his name of office, and he is required to ap- 
 portion the same equitably between the districts to which the 
 several portions of the annulled district has been annexed, to be 
 held and enjoyed as district property. (Laws 1847, ch. 480, sec. 
 52.) 
 
 Whenever a school district is dissolved, by consolidation, or 
 otherwise, it is the duty of the trustees of the district to make 
 out all the necessary rate bills and tax lists, and issue their 
 warrants according to law, for the collection of all such sums of 
 money as are necessary to discharge all legal liabiUtics of the 
 district so dissolved or consolidated, and to call special meetings 
 of the legal voters of the district if it is necessary ; the money
 
 OF SCHOOL DISTRICTS. 60 7 
 
 to discharge such demands is to be raised by tax and the 
 collector to whom any such rate bill or tax list and warrant, are 
 delivered for collection, has power to execute the same in the 
 same manner, and with the like authority as though the district 
 had not been dissolved or consolidated. (Id. sec. 53.) 
 
 2. Of the Powers of School District Inhabitants, and of the 
 Choice, Duties, and Powers of School District Officers. 
 
 Whenever any school district is formed in any town it is the 
 duty of the town superintendent within twenty days thereafter, 
 to prepare a notice in writing, describing the district, and ap- 
 pointing a time and place for the first district meeting, and to 
 deliver the notice to a taxable inhabitant of the district. (Laws 
 1847, ch. 480, sec. 54. 
 
 It is the duty of such inhabitant to notify every other inhabi- 
 tant of the district, qualified to vote at district meetings, by 
 reading the notice in the hearing of such inhabitant, or, in case 
 of his absence from home, by leaving a copy, or of so much of 
 it as relates to the time and place of the meeting, at the place of 
 his abode, at least six days before the time of the meeting. (Id. 
 sec. 55.) 
 
 In case the notice is not given, or the inhabitants of a district 
 refuse or neglect to assemble or form a district meeting when 
 notified ; or in case any district, having been formed and orga- 
 nized in pursuance of the notice is afterwards dissolved, so that 
 no competent authority exists therein to call a special district 
 meeting ; the notice is to be renewed by the town superinten- 
 dent, and served in the manner above prescribed. (Sec. 56.) 
 
 Every taxable inhabitant to v/hom a notice of a district meet- 
 ing has been properly delivered for service, who refuses, or ne- 
 glects to serve the notice, for every offence forfeits the sum of 
 five dollars. (Sec. 57.) 
 
 Whenever any district meeting is called in the foregoing man- 
 ner, it is the duty of the inhabitants of the district, qualified to 
 vote at district meetings, to assemble at the time and place 
 mentioned in the notice. (Sec. 58.) 
 
 Every male person of full age, residing in any school district, 
 and entitled to hold lands in this state, who owns or hires real 
 property in the district subject to taxation for school purposes, 
 and every resident of such district, authorized to vote at town
 
 608 OP SCHOOL DISTRICTS. 
 
 meetings of the town in which such district, or part of district, 
 is situated, and who has paid any rate bill for teachers' wages 
 in such district, within one year preceding, or who owns any 
 personal property liable to be taxed for school purposes in such 
 district, exceeding fifty dollars in value, exclusive of such as is 
 exempt from execution, and no others, will be entitled to vote 
 at any school district meeting held in such district. (Sec. 59.) 
 
 If any person offering to vote at any school district meeting, is 
 challenged as unqualified by any legal voter in the district, the 
 chairman presiding at the meeting, must require the person so 
 offering to make the following declaration: " I do declare and 
 affirm, that I am an actual resident of this school district, and 
 that T am qualified to vote at this meeting." Every person 
 making the foregoing declaration, is to be permitted to vote on 
 all questions proposed at the meetings; and if any person re- 
 fuses to make the declaration, his vote must be rejected. (Sec. 
 60.) 
 
 It is provided, that every person who shall wilfully make a 
 false declaration of his right to vote at a district meeting, upon 
 being challenged, will be guilty of a misdemeanor, punishable 
 in the county jail for a term not exceeding one year, nor less 
 than six months, in the discretion of the court; and any person 
 voting at any school district meeting, without being qualified, 
 will, on conviction, be subject to a fine of ten dollars, to be 
 sued for and recovered by the trustees of the district, for its 
 use, and with costs of suit, before any Justice of the Peace. 
 (Sec. 61.) 
 
 The inhabitants entitled to vote, when lawfully assembled at 
 any district meeting, have power, by a majority of votes of those 
 present : 
 
 1. To appoint a chairman for the time being ; 
 
 2. To adjourn, from time to time, as occasion may require ; 
 
 3. To choose a district clerk, three trustees, a district collec- 
 tor, and a librarian, at their first meeting, and as often as such 
 offices, or either of them, become vacated ; 
 
 4. To designate a site for a district school iiousc ; 
 
 5. To lay such tax on the taxable inhabitants of the district, 
 as the meeting deems suflicient to purchase or lease, a suitable 
 site for a school house, and to build, hire, or purchase such 
 school house, and to ki'cp in repair and furnish the same, with 
 the necessary fuel and appendages ;
 
 OF SCHOOL DISTRICTS. C09 
 
 6. To alter, repeal, and modify their proceedings, from time 
 to time, as occasion may require ; 
 
 7. To vote a tax for the purchase of a book for the purpose 
 of recording the proceedings in their respective districts ; 
 
 8. With the consent of the town superintendent of the town, 
 to designate sites for two or more school houses for the district, 
 and lay a tax on the taxable property in the district, to purchase 
 or lease such sites, and to hire, build, or purchase such school 
 houses, and to keep in repair and furnish the same with neces- 
 sary fuel and appendages, and may also, in their discretion, lay 
 a tax, not exceeding twenty dollars in any one year, to purchase 
 maps, globes, black boards, and other school apparatus. (Laws, 
 1847, ch. 480, sec. 62.) 
 
 The trustees chosen at the first legal meeting of any school 
 district, are to be divided by lot into three classes, to be num- 
 bered one, two, and three. The term of office of the first class, 
 is one year, of the second, two, of the third, three ; and after- 
 terwards, one trustee is to be annually elected, to hold his office 
 for three years, and until a successor is duly elected or appoint- 
 ed. In case of a vacancy in the office of either of the trustees, 
 during the period for which he, or they, shall have been respec- 
 tively elected, the person or persons chosen or appointed to 
 fill Jlich vacancy, hold the ofiice only for the unexpired term. 
 (Id. sec. 63.) 
 
 Every notice of a district meeting called in pursuance of the 
 foregoing provisions, must state the purpose for which the meet- 
 ing is called. (Id. sec. 64.) 
 
 In each school district, an annual meeting is to be held at the 
 time and place previously appointed ; and at the first district 
 meeting, and at each annual meeting, the time and place of 
 holding the next annual meeting, are to be fixed. (Sec. 65.) 
 
 Whenever the time for holding annual meetings in a district 
 for the election of district officers, pass without such election 
 being held, a special meeting is to be notified by the clerk of the 
 district, to choose such officers ; and if no such notice be given 
 by him or the trustees last elected or appointed, within twenty 
 days after such time shall have passed, the town superintendent 
 or town clerk, may order any inhabitant of the district, qualified 
 to vote at district meetings, to notify such meeting, in the 
 manner provided by law, in case of the formation of a new dis- 
 trict ; and the ofiicers chosen at any such special meeting, hold 
 
 39
 
 (510 OF SCHOOL DISTRICTS. 
 
 their office, until the time for holding the next annual meeting. 
 (Sec. 66.) 
 
 When the clerk, and all the trustees of a school district, have 
 removed, or otherwise vacated their office, and where the re- 
 cords of a district have been destroyed or lost, or where the 
 trustees neglect or refuse to call meetings to choose trustees, 
 the superintendent has authority to order such meetings, and 
 the same are to be notified in the manner provided by law, in 
 case of the formation of new districts. (Sec. 67.) 
 
 When, in consequence of the loss of the records of a school 
 district, or the omission to designate the day for its annual meet- 
 ing, there is none fixed, or it cannot be ascertained, the trustees 
 of such district may appoint a day for holding the annual meet- 
 ing of the district. (Sec. 68.) 
 
 A special meeting is to be held in each district, whenever 
 called by the trustees. The proceedings of no district meeting, 
 annual or special, will be held illegal for want of a due notice 
 to all the persons qualified to vote thereat, unless it appears that 
 the omission to give such notice, was wilful and fraudulent. 
 (Sec. 69.) 
 
 No tax, to be voted by a district meeting, for building, hiring, 
 or purchasing a school house, can exceed the sum of four hun- 
 dred dollars, unless the town superintendent of the town in 
 which the school house is to be situated, certifies, in writing, his 
 opinion, that a larger sum ought to be raised, and specifies the 
 sum ; in which case, a sum, not exceeding the sum so specified, 
 is to be raised ; and, in districts composed of parts of several 
 towns, the certificates of the major part of the superintendents 
 of the towns, will be necessary for such purpose. (Sec. 70.) 
 
 Whenever a majority of all the taxable inhabitants of any 
 school district, to be ascertained by taking and recording the 
 ayes and noes of such inhabitants attending at any annual, 
 special, or adjourned school district meeting, legally called or 
 hiild, determine that a proposed sum shall be raised by in- 
 stalments; it is the duty of tiie trustees of the district to cause 
 the same to be levied, raised, and collected, in equal annual in- 
 staluH nts, in tiic same maimer, and with the like autiioriiy that 
 other school district taxes are raised, levied, and collected, and 
 to make out their tax list and warrant for the collection of such 
 instalments as tlu^y become payal)le, according to the vote of the 
 inhabitants ; but the i)aynient or collection of the last instalment
 
 OF SCHOOL DISTRICTS. ^H 
 
 cannot be extended beyond five years, from the time such vote 
 was taken ; and no vote, to levy any such tax, can be re-consi- 
 dered, except at an adjourned general or special meeting, to be 
 held within thirty days thereafter, and the same majority is 
 required for re-consideration, as is required to levy the tax. 
 (Sec. 71.) 
 
 In every case, where a district embraces a part of more than 
 one town, the town superintendents of the towns so in part em- 
 braced, upon application of the trustees of such districts, or of 
 those persons liable to pay taxes upon real property therein, 
 must proceed to inquire and determine, whether the valuation 
 of real property upon the several assessment rolls of said towns, 
 are substantially just, as compared with each other, so far as 
 such district is concerned ; and, if determined not to be so, they 
 are to determine the relative proportion of taxes that ought to be 
 assessed upon the real property of the parts of such districts, so 
 lying in diiferent towns; and the trustees of such district, are 
 thereupon to assess the proportion of any tax thereafter to be 
 raised according to the determination of the superintendents, 
 until the same are altered by the superintendents, upon like ap- 
 plication, using the assessment rolls of the several towns to 
 distribute the said proportion among the persons liable to be as- 
 sessed for the same. In cases where two superintendents are 
 unable to agree, they are to summon a superintendent from some 
 adjoining town, who must unite in such inquiry and determina- 
 tion. (Sec. 72.) 
 
 Whenever a school house has been built or purchased for a 
 district, the site of the school house cannot be changed, nor the 
 building thereon be removed, as long as the district remains 
 unaltered, unless by the consent, in writing, of the town super- 
 intendents of common schools of the town, or towns, within 
 which such district is situated, stating that, in their opinion, 
 such removal is necessary; nor then, unless a majority of all 
 the taxable inhabitants of the district, to be ascertained by tak- 
 ing and recording the ayes and noes, at a special meeting 
 called for that purpose, shall be in favor of the new site. (Sec. 
 73.) 
 
 Whenever the site of a school house has been changed, the 
 inhabitants of the district entitled to vote, lawfully assembled 
 at any district meeting, have power, by a majority of votes of 
 those present, to direct the sale of the former site or lot, and the
 
 G12 OF SCHOOL DISTRICTS. 
 
 buiklings thereon, and appurtenances, or any part thereof, at 
 such price, and upon such terms, as they may deem most ad- 
 vautageous to the district ; and any deed duly executed by the 
 trustees of the district, or a majority of them, in pursuance of 
 such direction, will be valid and etfectual to pass all the estate 
 or. interest of the school district, in the premises intended to be 
 conveyed thereby, to the grantee named in such deed ; and 
 when a credit is directed to be given upon such sale, for the consi- 
 deration mouey, or any part thereof, the trustees are authorized 
 to take, in their corporate name, such security by bond and mort- 
 oao-e, or otherwise, for the payment thereof, as they shall deem 
 best ; and to hold the same as a corporation, and account there- 
 for to their successor in office, and to the district, in the manner 
 they are now required by law to account for moneys received by 
 them; and the trustees of any such district, for the time being, 
 may, in their name of office, sue for and recover the moneys 
 due and unpaid upon any security so taken by them, or their 
 predecessors in office, with interest and cost. (Sec. 74.) 
 
 All moneys arising from any sale made in pursuance of the 
 foregoing, are to be appropriated to the payment of the expenses 
 incurred in procuring a new site, and removing or erecting a 
 school house, or either of them, so far as the application may be 
 deemed necessary. (Sec. 75.) 
 
 The clerk, trustees, collector, and librarian of each school dis- 
 trict, hold their respective offices until the annual meeting of the 
 district next following the time of their appointment. (Laws, 
 1849, ch. 382.) 
 
 In case the office of trustee is vacated, by the death, refusal 
 to serve, removal out of the district, or incapacity of any such 
 officer, and the vacancy is not supplied by a district meeting, 
 within one month thereafter, the town superintendent of the 
 town may appoint any person residing in the district, to supply 
 the vacancy. (Sec. 77.) 
 
 In case of a vacancy in the office of school district clerk, col- 
 lector, or librarian, by reason of the person chosen or appointed 
 refusing to servo, the vacancy may be supplied by appointment, 
 under the hands of tlic trustees of the district, or a majority of 
 them, and the persons so appointed hold their rcsj)ectivc offices 
 uiiiil the next .'ituiu.il meetiiig of the district, and until others 
 are ehclcd in thrir places. (Sec. 78.) 
 
 Every person duly chosen or appointed to any such office,
 
 OF SCHOOL DISTRICTS, 613 
 
 who, without sufficient cause, refuses to servo therein, forfeits 
 the sum of five dollars ; and every person so chosen or appoint- 
 ed, and not having refused to accept, who neglects to perform 
 the duties of his office, forfeits the sum of ten dollars. (Sec. 
 79.) 
 
 Any person chosen or appointed to any such office, may re- 
 sign the same, by presenting his resignation to the town super- 
 intendent of the town where such officer resides, who is autho- 
 rized, for sufficient cause shown to him, to accept the same, and 
 the acceptance of sucli resignation will be a bar to a recovery 
 of either of the foregoing penalties. The town superintendent 
 accepting the resignation, is required to give notice thereof to 
 the clerk, or to one of the trustees of the school district to which 
 the officer resigning belongs. (Sec. 80.) 
 
 It is the duty of the clerk of each school district — 
 
 1. To record the proceedings of his district in a book, to be 
 provided for that purpose by the district, and to enter therein 
 true copies of all reports made by the trustees of his district, to 
 the town superintendent ; 
 
 2. To give notice of the time and place for special district 
 meetings, when they are called by the trustees of the district, 
 to each inhabitant of the district liable to pay taxes, at least 
 five days before the meeting is held ; 
 
 3. To affix a notice, in writing, of the time and place for any 
 adjourned district meeting, when the adjournment is for a long- 
 er time than one month, in at least four of the most public places 
 of the district, at least five days before the time appointed for 
 the adjourned meeting ; 
 
 4. To give like notice of every annual district meeting; 
 
 5. To keep and preserve all records, books, and papers be- 
 longing to his office, and to deliver the same to his successor in 
 office ; and in case of his neglect or refusal so to do, he will be 
 subject to a fine not exceeding fifty dollars. 
 
 3. Of the Duty of Trustees of ^School Districts. 
 
 It is the duty of the trustees of every school district, and they 
 have power; (Laws, 1847. ch. 480, sec. 82.) 
 
 1. To call special meetings of the inhabitants of the districts 
 liable to pay taxes whenever they deem it necessary and proper; 
 
 2. To give notice of special, annual, and adjourned meetings,
 
 614 OF SCHOOL DISTRICTS. 
 
 if there is no clerk of the district, or he is absent or incapable of 
 acting; 
 
 3. To make out a tax list of every district tax voted by any 
 such meeting, containing the names of all the taxable inhabi- 
 tants residing in the district at the time of making out the list, 
 and the amount of tax payable by each inhabitant, set oif oppo- 
 site to his name ; 
 
 4. To annex to such tax list a warrant, directed to the coUec- 
 or of the district, for the collection of the sums in such list men- 
 tioned ; 
 
 5. To purchase, or lease a site for the district school house, 
 as designated by a meeting of the district, and to build, hire, or 
 purchase, keep in repair, and furnish, such school house, with 
 necessary fuel and appendages out of the funds collected and 
 paid to them for such purposes ; 
 
 6. To have the custody and safe keeping of the district school 
 house : 
 
 7. To contract with, and employ, all teachers in the districts ; 
 
 8. To pay the wages of such teachers when quahfied,by giv- 
 ing them orders on the town superintendents for the public mo- 
 ney belonging to their district so far as such moneys are suffi- 
 cient for that purpose ; and to collect the residue of such wages, 
 from all persons liable therefor ; (Laws, 1849, ch. 382.) 
 
 9. To divide the public moneys received by them, whenever 
 authorized by a vote of their district, into not exceeding ten])or- 
 tions for each year ; to assign and apply one of such portions to 
 each term during which a school is kept in the district, for the 
 payment of the teachers' wages during the term ; and to collect 
 the residue of the wages not paid, by the proportion of public 
 money allotted for that purpose, from the person liable therefor ; 
 
 10. To exempt from the payment of the wages of teachers, 
 either in part, or wholly, such indigent persons within the dis- 
 trict as they think proper, in any one quarter or term to be a 
 charge upon the district ; 
 
 11. To certify such exemptions and deliver the certificate 
 thereof, to the clerk of the district, to be kept on file in his oflice ; 
 
 12. ^J'o ascertain, by examination of the school lists kept by 
 the teacher, the number of days for which each person not so 
 exempted, is liable to pay for instruction, and the amount paya- 
 ble by each person ; 
 
 13. To make out a rate bill, containing the name of each per-
 
 OF SCHOOL DISTRICTS. 615 
 
 son liable, and tlie amount for which he is liable ; and to annex 
 to it a warrant for its collection ; 
 
 14. To deliver the rate bill, with the warrant annexed, after 
 it has been made out and signed by them, to the collector of the 
 district, who is required to execute the same in like manner with 
 the warrants directed by the trustees to the collector for the col- 
 lection of district taxes, and the collectors to whom any such rate 
 bill and warrant are delivered for collection, possess the same 
 power, are entitled to the same fees, and subject to the same re- 
 strictions and liabilities, with their bail and sureties, as is provid- 
 ed in proceedings to collect school district taxes. (Laws, 1849, 
 ch. 382.) 
 
 The trustees, after the rate bill and warrant have been made 
 out, and signed, must cause notice thereof, signed by them, to 
 be posted in their district, as directed in the case of the collec- 
 tion of district taxes. It is the duty of the trustees, or one of 
 them, or the teacher to whom the moneys in the rate bill are pay- 
 able, at any time within thirty days thereafter, to receive pay- 
 ment from any person named therein, of the sum due from such 
 person. The same proceedings are to be had to compel and 
 enforce the payment of the sums of money remaining due on 
 the rate bill after the expiration of the thirty days, as is provided 
 for the collection of district taxes. The collector to whom any 
 such rate bill and warrant are delivered for collection, possesses 
 the same power, is entitled to the same fees, and subject to the 
 same restrictions, and liabilities with their bail and sureties, as 
 is provided in proceedings to collect school district taxes. (Laws 
 1847, ch. 480, sec. 83.) 
 
 Where, by reason of the inability to collect any tax or rate 
 bill, there is a deficiency in the amount raised, the inhabitants 
 of the district, in district meeting, are to direct the raising of a 
 sufficient sum to supply the deficiency by tax, or it is to be col- 
 lected by rate bill, as the case may require. (Id. sec. 84.) 
 
 4. The Assessment and Collection of School District Taxes. 
 
 In making out a tax list, the trustees of school districts are to 
 apportion the same, on all the taxable inhabitants of the district 
 or corporation holding property therein, according to the valua- 
 tions of taxable property owned, or possessed by them, at the 
 time of making out the list, within the district, or partly within
 
 616 OF SCHOOL DISTRICTS. 
 
 the district, and partly within an adjoining district, and upon 
 all real estate lying within the boundaries of such district, the 
 owners of which are non-residents, and which is liable to taxa- 
 tion for town or county purposes, and is situated within three 
 miles of the site of the school house in the district. When, how- 
 ever, it is ascertained that the proportion of any tax upon any 
 lot, tract, or parcel, not occupied by any inhabitant, would not 
 amount to fifty cents, the trustees in their discretion may omit 
 such lot, tract, or parcel, from the tax list. (Laws, 1847, ch. 
 480, sec. 85.) 
 
 Any person working land, under a contract for a share of the 
 produce of the land, will be deemed the possessor so far as to 
 render him liable to taxation, in the district where the land is sit- 
 uated. (Id. sec. 86.) 
 
 Every person owning or holding any real property, within 
 any school district, who improves and occupies the same, by his 
 agent or servant, in respect to the liability of such property to 
 taxation is to be considered a taxable inhabitant of the district, 
 in the same manner as if he actually resided therein. (Sec. 87.) 
 
 Where any district tax, for the purpose of purchasing a site 
 for a school house, or for purchasing or building, keeping in re- 
 pair, or furnishing such school house with necessary fuel and 
 appendages, is lawfully assessed and paid by any person, on ac- 
 count of any real property whereof he is only tenant at will, 
 or for three years, or for a less period of time, such tenant may 
 charge the owner of such real estate with the amount of the tax 
 so paid by him, unless some agreement to the contrary has been 
 made by such tenant. (Sec. 88.) 
 
 When any real estate, within a district^ so liable to such tax- 
 ation is not occupied and improved by the owner, his servant or 
 agent, and is not possessed by any tenant, the trustees of any 
 district at the time of making out any tax list, or statement by 
 which any tax is imposed thereon, are required to make and in- 
 sert in such tax list, a statement and description of every such 
 lot, piece or parcel of land, so owned by non-residents, in the 
 same manner as required by law, from town assessors in making 
 out the assessment rolls of their towns. If any such lot is known 
 to belong to an incorporated company liable to taxation in such 
 district, the name of such cnnipany must be specified, and the 
 value of such lot or piece of land nmst be set down opposite to 
 5;uch description, which vahie nmst be the same that wa ; affix- 
 ed to such lot or jjiece of land in the hist assessment roll of the
 
 OF SCHOOL DISTRICTS. 617 
 
 town ; and if the same was not separately valued in such roll, 
 it must be valued in proportion to the valuation which was 
 affixed in the assessment roll to the whole tract, of which, such 
 lot or piece is a part. (Sec. 89^.) 
 
 If any tax on the real estate of a non-resident mentioned in 
 the tax list delivered to the collector, is unpaid at the time he is 
 required by law to return his warrant, he must deliver to the 
 trustees of the district, an account of the taxes so remaining due, 
 containing a description of the lots and pieces of land, upon 
 which any taxes were imposed, as the same were stated in his 
 tax list, together with the amount of the tax assessed on each, 
 and upon making oath before any Justice of the Peace, or Judge 
 of any court of record that the taxes mentioned in such account 
 remained unpaid, and that after diligent efforts he has been un- 
 ble to collect the same, he must be credited by the trustees with 
 the amount thereof. (Sec. 90.) 
 
 Whenever the trustees of any school district receive such an 
 account of unpaid taxes from any collector, they are required to 
 compare the same with the original tax list, and if found to be a 
 true transcript, they must add to such account a certificate to 
 the effect that they have compared the same with the original 
 tax list, and found it to be correct,, and immediately transmit 
 such account, with the affidavit of the collector, and their certi- 
 ficate, to the treasurer of the county. (Sec. 91.) 
 
 The county treasurer is required to pay to the trustees of the 
 school district in which the taxes were imposed, the amount re- 
 turned as unpaid, out of any moneys in the county treasury, 
 raised for contingent expenses. (Sec. 92.) 
 
 The account, affidavit, and certificate, are to be laid by the 
 county treasurer before the board of supervisors of the co :nty, 
 who must cause the amount of the unpaid taxes, with seven per 
 cent, of the amount in addition thereto, to be levied upon the 
 lands of non-residents, on which the same were imposed, and if 
 imposed upon the lands of any incorporated company, then upon 
 such company, in the same manner that the contingent charges 
 of the county are directed to be levied and collected; and when 
 collected, the same are to be returned to the county treasury to 
 reimburse the amount so advanced, with the expense of collec- 
 tion. (Sec. 93.) 
 
 Any person whose lands are included in any such account, 
 may pay the tax assessed thereon to the county treasurer, at
 
 618 OF SCHOOL DISTRICTS. 
 
 any time before the board of supervisors shall have directed the 
 same to be levied. (Sec. 94.) 
 
 The same proceedings, in all respects, are to be had for the 
 collection of the amount so directed to be raised, by the board 
 of supervisors, as are provided by law in relation to county tax- 
 es ; and upon a similar account, as in the case of county taxes, 
 of the arrears thereof uncollected, being transmitted by the 
 county treasurer to the comptroller, the same are to be paid on 
 his warrant; to the treasurer of the county advancing the same. 
 The amount so assumed by the state, is to be collected for its 
 benefit, in the manner prescribed by law in respect to the ar- 
 rears of county taxes upon the lands of non-residents ; or if any 
 part of the amount so assumed, consisted of a tax upon any in- 
 corporated company, the same proceedings may be had for its 
 collection as provided by law in respect to the county taxes as- 
 sessed upon such company. (Sec. 95.) 
 
 The valuations of taxable property are to be ascertained, so 
 far as possible, from the last assessment roll of the town ; and 
 no person is entitled to any reduction in the valuation of such 
 property, as so ascertained, unless he gives notice of his claim 
 to such reduction to the trustees of the district before the tax 
 list is made out. (Sec. 96.) 
 
 In every case where such deduction is duly claimed, and in 
 every case where the valuation of taxable property cannot be 
 ascertained from the last assessment roll of the town, the trus- 
 tees must ascertain the true value of the property to be taxed 
 from the best evidence in their power, giving notice to the per- 
 sons interested, and proceeding in the same manner as the town 
 assessors are required by law to proceed in the valuations of 
 taxable property. (Sec. 97.) 
 
 Every taxable inhabitant of a district, who shall have been 
 within four years set off from any other district, without his 
 consent, and shall, within that period, have actually paid, in 
 such other district, under a lawful assessment therein, a district 
 tax lor building a school house, is to be exempted by the trus- 
 tees of the district where he resides from the payment of any tax 
 for building a school house therein. (Sec. 98.) 
 
 Every di.strict lax is required to be assessed, and the tax list 
 made out by the trustees, and a proper warrant attached to it, 
 within thirty days after the district meeting in which the tax 
 has been voted. When there is a tax of more than one hun-
 
 OF SCHOOL DISTRICTS. G19 
 
 dred dollars, it is the duty of the trustees of the district, imme- 
 diately thereafter, to cause notices of its completion to be put up in 
 three of the most public places in the district, and so located as 
 to be most likely to give notice to the inhabitants. There must 
 be designated in the notice a convenient place in the district 
 where the trustees, or one of them, will attend from one to five 
 o'clock in the afternoon, at least once in each week, for two 
 successive weeks, on a day lo be specified in the notice, to re- 
 ceive payment of the taxes mentioned in the tax list. It is the 
 duty of the trustees, or one of them, to attend accordingly, and 
 any person may pay his taxes to such trustee at the time and 
 place designated, or at any other time and place, to any trustee 
 having the tax list and warrant, within fifteen days from the 
 first posting of the notices. (Sec. 99.) 
 
 It is the duty of the trustees, after the expiration of thirty 
 days, to deliver the tax list and warrant to the collector of the 
 district. The collector is authorized and directed, upon receiv- 
 ing his warrant, for two successive weeks to receive such taxes 
 as may be voluntarily paid to him. If the whole amount is not 
 so paid in, the collector must proceed forthwith to collect the 
 same. He is to receive for his services, on all sums paid in as 
 aforesaid, one per cent., and upon all sums collected by him 
 after the expiration of the time mentioned, five per cent. ; and in 
 case a levy and sale is necessarily made by the collector, he is 
 entitled to travelling fees at the rate of six cents a mile, to be 
 computed from the school house in the district. (Laws, 1849, 
 ch. 382.) 
 
 If, by the neglect of any collector, any school moneys are lost 
 to any school district, which might have been collected within 
 the time limited in the warrant delivered to him for their collec- 
 tion, he will forfeit to such district the full amount of the mo- 
 neys thus lost, and will be required to account for and pay over 
 the same to the trustees of the district, in the same manner as if 
 they had been collected. (Laws, 1847, ch. 480, sec. 101.) 
 
 For the recovery of all forfeitures, and of balances in the 
 hands of a collector which he has neglected to pay over, the 
 trustees of the district may sue in their name of office, and are 
 entitled to recover the same with interest and costs ; and the 
 moneys recovered are to be applied by them in the same man- 
 ner as if paid without suit. (Sec. 102.) 
 
 Any collector to whom any such tax list and warrant are de-
 
 620 OF SCHOOL DISTRICTS. 
 
 livered for collection, may execute the same in any other dis- 
 trict or town in the same county, or in any other county where 
 the district is a joint district, and composed of territory from ad- 
 joining counties, in the same manner and with the like authority 
 as in the district in Avhich the trustees issuing the warrant may 
 reside, and for the benefit of which the tax is intended to be 
 collected. The bail or sureties of any collector, given for the 
 faithful performance of his official duties, are liable for any mo- 
 neys received or collected on any such tax list and warrant, and 
 may be prosecuted for its recovery. (Sec. 103.) 
 
 It is the duty of trustees of school districts to procure for the 
 use of their district two bound blank books from time to time, 
 as becomes necessary, in one of which the accounts of all mo- 
 neys received and paid by the trustees, and a statement of all 
 moveable property belonging to the district, is to be entered at 
 large, and signed by the trustees at or before each annual meet- 
 ing in the district. In the other book, the teachers are required 
 to enter the names of the scholars attending school, and the 
 number of days they shall have respectively attended, and also 
 the days on which the school shall have been inspected by the 
 town superintendent ; which entries must be verified by the 
 oath or affirmation of the teachers, and constitute the list on 
 which rate bills are to be apportioned. The books are to be 
 preserved by the trustees as the property of the district, and 
 delivered to their successors. (Sec. 104.) 
 
 When the necesssry fuel for the school of any district is not 
 provided by means of a tax upon the inhabitants of the district, 
 or otherwise, it is the duty of the trustees of the district to pro- 
 vide the necessary fuel, and levy a tax upon the inhabitants of 
 the district to pay for the same. (Laws, 1849, ch, 382, sec. 7.) 
 
 When the trustees of any school district are required or au- 
 thorized by law, or by the vote of their district, to incur any 
 expense for the district — and when any expenses incurred by 
 them are made, by express provision of law, a charge upon 
 such district — liiey may raise the amount by tax, in the same 
 manner as if tin; defuiitc sum to be raised had been voted by 
 a district meeting ; and the same is to be collected and paid 
 over in the same manner, (liaws, 1847, ch. 480, sec. 109.) 
 
 'I'lie warrant issiK^d and anncsxed to any tax list or rate bill 
 is required to be under the hands of the trustees of the dis- 
 trict, or a majority of them. It is not necessary, however, for
 
 OF SCHOOL DISTRICTS. 02 1 
 
 the trustees to affix their seals to any such warrant. (Id. sec, 
 110.) 
 
 The warrants issued by the trustees of school districts for 
 the collection of any district tax authorized to be levied, raised 
 and collected, or for the collection of any district school rate 
 bill, have the like force and effect as warrants issued by boards 
 of supervisors of counties to collectors of taxes in towns ; and 
 the collector to whom any such warrant is delivered for collec- 
 tion, is authorized and required to collect from every person in 
 such (ax list or rate bill named, the sum therein set opposite to 
 his name, or the amount due from any person or persons speci- 
 fied therein, in the same manner that collectors are authorized to 
 collect town and coiuity charges. (Sec. 111.) 
 
 If the sum or sums of money, payable by any person named 
 in the tax list or rate bill, is not paid by him, or collected hy 
 \varrant, within the time therein limited, the trustees may re- 
 new the warrant in respect to such delinquent person ; or. in 
 case such person does not reside within their district at the 
 time of making out a tax list or rate bill, or does not reside 
 therein at the expiration of the warrant, and no goods or chat- 
 tels can be found therein upon which to levy, the trustees may 
 sue for and recover 'the same in their name of office. (Sec. 
 112.) 
 
 Whenever the trustees of any school district discover any 
 error m a tax list or rate bill made out by them, they may, 
 with the approbation and consent of the state superintendent, 
 after refunding any amount that may have been improperly 
 collected on such tax list or rate bill, if it is required, amend and 
 correct such tax list or rate bill, in conformity to law ; and 
 whenever more than one renewal of a warrant for the collec- 
 tion of any lax list or rate bill may become necessary in any 
 district, the trustees may make such further renewal, with the 
 written approbation of the town superintendent of the town in 
 which the school house of the district is located, to be endorsed 
 upon the warrant. (Sec. 113.) 
 
 If the moneys apportioned to a district by the town superin- 
 tendent have not been paid, it is the duty of the trustees to bring 
 a suit for the recovery of the same, with interest, against the 
 town superintendent in whose hands the same may be, or to 
 pursue such other remedy for the recovery thereof as is given 
 by law. (Sec. 114.)
 
 622 OF SCHOOL DISTRICTS. 
 
 5. Of the Annual Reports of Trustees, their Duties and Lia- 
 bilities. 
 
 The trustees of each school district are required, between the 
 first and fifteenth days of January in every year, to make and 
 transmit a report in writing to the town superintendent for the 
 town, dated on the first day of January, in the year when it is 
 transmitted. (Laws, 1847, ch. 480, sec. 115.) 
 
 Every such report, signed and certified by a majorit}?- of the 
 trustees making it, is to be delivered to the town superintendent. 
 The report must specify — 
 
 1. The whole time any school has been kept in their district 
 during the year ending on the day previous to the date of the 
 report, and distinguishing what portions of the time the school 
 has been kept by qualified teachers. 
 
 2. The amount of moneys received from the town superin- 
 tendent during the year, and the manner in which the moneys 
 have been expended. 
 
 3. The number of children taught in the district during the 
 year. 
 
 4. The number of children residing in the district on the last 
 day of December, previous to the making of such report, over 
 the age of five years, and under sixteen years of age, (except 
 Indian children otherwise provided for by law,) and the names 
 of the parents, or other persons, with whom such children re- 
 spectively aside, and the number of children residing with each. 
 
 5. The amount of money paid for teachers' wages, in addition 
 to the public money paid therefor, the amount of taxes levied in 
 said district for purchasing school house sites, for building, hi- 
 ring, purchasing, repairing and insuring school houses, for fuel, 
 for supplying deficicnces in raie bills, for district libraries, or for 
 any other purpose allowed by law, and such other information 
 in relation to the schools and the districts as the superintendents 
 of common schools, may, from time to time, require. (Laws of 
 1847, ch. 480, sec. 116. Laws of 1849, ch. 382, sec. 8.) 
 
 Tiic trustees of any school district may include in their annual 
 returns, the names of any children who are supported at a county 
 poor house or orphan asylum. (Laws of 1847, ch. 480, sec. 
 117.) 
 
 The antnial rrports of trust(!Os of school districts of children 
 residing in their district, is to include all over five and under
 
 OF SCHOOL DISTICTS. 623 
 
 sixteen years of age, who shall, at the date of such report, 
 actually be in the district, composing a part of the family of 
 their parents or guardians, or employers, if such parents, guar- 
 dians, or employers, reside at th(? time in such district, although 
 such residence be temporary. The report, however, cannot 
 include children belonging to the family of any person who is 
 an inhabitant of any other district in this state, in which such 
 children may, by law, be included in the reports of its trustees. 
 (Id. sec. 118.) 
 
 The trustees of school districts are not to enumerate and 
 include in their annual reports, any Indian children residing on 
 Indian reservations where schools are taught. (Sec. 119.) 
 
 All children included in the reports of the trustees of any new 
 school district, are entitled to attend the schools of such dis- 
 trict ; and whenever it is necessary for the accommodation of 
 the children in any district, the trustees may hire, temporarily, 
 any room or rooms, for the keeping of schools therein, the ex- 
 pense to be a charge upon the district. (Id. sec. 120.) 
 
 Where a school district is formed out of two or more adjoining 
 towns, it is the duty of the trustees of the district, to make and 
 transmit a report to the town superintendent for each of the 
 towns out of which the district is formed, within the same time, 
 and in the same manner, as required by sections one hundred 
 and fifteen and one hundred and sixteen ; distinguishing the 
 number of children over the age of five and under sixteen years, 
 residing in each part of a district which is in a different town 
 from the other parts, and the number of children taught, and 
 the amount of school moneys received from each part of the 
 district. (Id. sec. 121.) 
 
 Where any neighborhood is set oft" by itself, the inhabitants 
 of such separate neighborhood must annually meet and choose 
 one trustee. It is the duty of the trustee, every year, within 
 the time limited for making district reports, to make and trans- 
 mit a report in writing, bearing date on the first day of January, 
 in the year in which it is transmitted to the town superinten- 
 dent of the town from which such neighborhood is set off, 
 specifying the number of children over the age of five and under 
 sixteen years, residing in the neighborhood, the amount of 
 moneys receiA'^ed from the town superintendent, since the date 
 of the last report, and the manner in which the same has been 
 expended. (Id. sec. 122.)
 
 624 OF SCHOOL DISTRICTS. 
 
 Every trustee of a school district or separate neighborliood 
 who wilfully signs a false report to the town superintendent of 
 the town, with the intent of causing such town superintendent 
 to apportion and pay to his district or neighborhood a larger 
 sum than its just proportion of the school moneys of the town, 
 for each offence, forfeits the sum of twenty-five dollars, and is 
 also deemed guilty of a misdemeanor. (Id. sec. 123.) 
 
 All property vested in the trustees of any school district, for 
 the use of schools in the district, or which is transferred to such 
 trustees for that purpose, is to be held by them as a corporation. 
 (Id. sec. 124.) 
 
 The trustees of each school district are required, once in each 
 year, to render to the district, at its annual district meeting, a 
 just and true account in writing of all moneys received by them 
 respectively, for the use of their district ; and of the manner in 
 which the same has been expended. The account is to be 
 delivered to the district clerk, to be filed and recorded by him. 
 (Id. sec. 125.) 
 
 Any balance of such moneys which appears from such ac- 
 count to remain in the hands of the trustees, or either of them 
 at the time of rendering the account, must immediately be paid 
 to some one or more of their successors in office. (Id. sec. 126.) 
 
 Every trustee who refuses or neglects to render such account, 
 or to pay over any balance so found in his hands, will forfeit 
 for each offence, the sum of twenty-five dollars. (Id. sec. 127.) 
 
 It is the duty of his successors in office to prosecute, without 
 delay, in their name of office, for the recovery of such forfeiture. 
 The moneys recorded, are to be applied by them to the use and 
 benefits of their district schools. (Id. sec. 128.) 
 
 Such successors have the same remedies for the recovery of 
 any unpaid balance in the hands of a former trustee, or his rep- 
 resentatives, as are given to tlie town supoiintendcnt against a 
 former town superintendent and his representatives. The mo- 
 neys recovered by them, are to be applied by them to the use of 
 their district, in the same manner as if they had been paid 
 williout suit. (Id. sec. 129.) 
 
 j'lvery trustee of a school district, who, while in office; 
 neglects or refuses auniially to render an account of the moneys 
 received b/ hiin as such trustee, for each oflbnce, forfeitsthe 
 sum of twcnly-fivc dollars ; and it is the duty of tlie town su- 
 perintendent of the town in which such trustee may reside, to
 
 OF SCHOOL DISTRICTS. 625 
 
 to prosecute, without delay, in his name of office, for the reco- 
 very of such forfeiture. The moneys recovered, are to be 
 appUed by the superintendent to the use and benefit of the dis- 
 trict school of the district to which the defaulting trustee belongs. 
 (Id. sec. 130.) 
 
 The town superintendent has the 'same remedies for the reco- 
 very of any unpaid balance of moneys in the hands of such 
 delinquent trustee, in office, as are given to the town superin- 
 tendent in office against a former town superintendent. The 
 moneys recovered, are to be applied by the town superintendent 
 to the use of the district to which the same belong, and are to 
 be paid over to the trustee or trustees of such district, who are 
 not in default. (Id. sec. 131.) 
 
 The trustees of any school district, may expend in the repair 
 of the school house, a sum not exceeding ten dollars in any one 
 year, to be levied and collected by a separate tax, or added to 
 any tax authorized to be levied and collected. (Laws of 1849, 
 ch. 382, sec. 9.) 
 
 6. School District Libraries. 
 
 The taxable inhabitants of each school district in the state 
 have power, when lawfully assembled, at any district meeting, 
 to lay a tax on the district, not exceeding ten dollars in any one 
 year, for the purchase of a district library, consisting of such 
 books as they shall, in their district meeting, direct ; and such 
 further sum as they may deem necessary for the purchase of a 
 book case. The intention to propose the tax must, however, be 
 stated in the notice required to be given of the meeting. (Laws 
 of 1847, ch. 480, sec. 133.) 
 
 The clerk of the district, or such other person as the taxable in- 
 habitants may, at their annual meeting designate and appoint, 
 by a majority of votes, is to be the librarian of the district, and 
 to have the care and custody of the -library, under such regula- 
 tions as the inhabitants may adopt for his government. (Id. 
 sec. 134.) 
 
 The taxes authorized to be raised, are to be assessed and col- 
 lected in the same manner as a tax for building a school house. 
 (Id. sec. 135.) 
 
 The sum of fifty-five thousand dollars, together with an equal 
 sum to be raised in the towns, and directed to be distributed to 
 the several school districts of this state, are to continue to be 
 
 40
 
 Q2Q OF SCHOOL DISTRICTS. 
 
 applied to the purchase of books for a district hbrary ; but 
 whenever the number of volumes in the district library of any 
 district numbering over fifty children between the ages of five 
 and sixteen years, exceeds one hundred and twenty-five ; or of 
 any district numbering fifty children, or less, between the said 
 ages exceeds one hundred volumes, the inhabitants of the dis- 
 trict qualified to vote therein may, at a special or annual meet- 
 ing duly notified for that purpose, by a majority of votes, appro- 
 priate the whole, or any part of the library money belonging to 
 the district for the current year, to the purchase of maps, globes, 
 black boards, or other scientific apparatus, for the use of the 
 school. Where the district has the required number of volumes 
 in its library, and also the requisite number of maps, globes, 
 black boards, and other apparatus, such moneys, with the ap- 
 ':)robation of the state superintendent, may be applied to the 
 payment of teacher's wages. (Id. sec. 136.) 
 
 The trustees of every school district are trustees of the library 
 of the district. The property of the books and of the case and 
 other appurtenances are vested in the trustees so as to enable 
 them to maintain any action in relation to the same. It is their 
 duty to preserve the books and keep them in repair. The ex- 
 penses incurred for that purpose, may be included in any tax 
 list to be made out by them as trustees of a district, and added 
 to any tax voted by a district meeting, to be collected and paid 
 over in the same manner. The librarian of the district library 
 is subject to the directions of the trustees, in all matters relating 
 to the preservation of the books and appurtenances of the libra- 
 ry and may be removed from office by them, for wilful disobe- 
 dience of such directions, or for any wilful neglect of duty. 
 
 (Sec. 137.) 
 
 Trustees of school districts are liable to their successors for any 
 neglect or omission in relation to the care and superintendence 
 of district libraries, by which any books are lost or injured, to 
 the full amount of such loss or injury, in an action to Ijc brought 
 l)y such successors in their name of office. (Sec. 138.) 
 
 A set of general regulations respecting the preservation of 
 school district libraries, the delivery of them, by librarians and 
 trustees, to their successors in office, the use of them by the in- 
 habitants of the district, the number of vohnnes to bo taken by 
 any one person at auy one tiuie, or during any term, the jocriods 
 of their return, tiie fines and penalties that may bo imposed by
 
 OF SCHOOL DISTRICTS. 027 
 
 the trustees of such Ubraries for not returning, for losing or des- 
 troying any of the books, or for soiling, defacing, or injuring 
 them, and the conditions upon which any school district may 
 apply the library money to the payment of teachers' wages, 
 may be framed by the state superintendent. Printed copies 
 of the regulations are to be furnished to each school district of 
 the State. The regulations will be obligatory upon all persons 
 and officers having charge of such libraries, or using or possess- 
 ing any of the books. Such fines may be recovered in an ac- 
 tion in. the name of the trustees of any such library of the per- 
 son on whom they are imposed, unless such person is a minor ; 
 in which case they may be recovered of the parent or guardian 
 of the minor, unless notice, in writing, has been given by such 
 parent or guardian to the trustees of such library that they will 
 not be responsible for any books delivered such minor ; and per- 
 sons with whom such minors reside will be liable in the same 
 manner and to the same extent, in cases where the parent of the 
 minor does not reside in the district. (Sec. 139.) 
 
 Any person conceiving himself aggrieved by any acts or deci- 
 sions of any trustees of school districts, concerning district libra- 
 ries or the books therein, or use of such books, of any librarian, 
 or of any district meeting, in relation to their school library, may 
 appeal to the state superintendent, in the same manner as pro- 
 vided by law. (Sec. 140.) 
 
 The legal voters in any two or more adjoining districts, may 
 in such cases as may be approved by the town superintendent, 
 unite their library moneys and funds, as they are received or col- 
 lected, and purchase a joint library for the use of the inhabitants 
 of such districts to be selected by the trustees, or by such per- 
 sons as they designate, and to be under a librarian, to be appoint- 
 ed by them. The foregoing provisions are applicable to such 
 joint libraries, except that tlie property in them is to be deemed 
 to be vested in all the trustees, for the time being, of the districts 
 so united. In case any such district desires to divide such libra- 
 ry, the division is to be made by the trustees of the two districts 
 whose libraries are so united, and if they cannot agree, the divi- 
 sion is to be made by the town superintendent. (Sec. 141.) 
 
 Where, by reason of the non-compliance with the conditions 
 prescribed by law, the library money is withheld from any school 
 district, the same may be distributed among the districts, com- 
 plying with such conditions, or may be retained and paid subse- 
 quently, to the district from which the same was withheld, as
 
 628 OF SCHOOL DISTllICTS. 
 
 directed by the state superintendent, according to the circum- 
 stances of the case. (Sec. 142.) 
 
 The state superintendent, whenever requested by the trustees 
 of a school district, under the direction of the legal voters of 
 such district, may select a library for their use, and cause the 
 same to be delivered to th.e clerk of the county, in which such 
 district is situated, at its expense. (Sec. 143.) 
 
 7. Miscellaneous Provisions connected with the foregoing- sub- 
 jects. 
 
 Town superintendents are authorized to administer oaths in 
 all cases relating to school district affairs and controversies, but 
 are not entitled to charge any fees therefor. (Laws 1849, ch. 
 382, sec. 10.) 
 
 Every teacher is to be deemed a qualified teacher, w^ho holds 
 a certificate dated within one year, from the superintendent of 
 common schools for the town in which such teacher is employed, 
 or who has, in his prossession, a State or county certificate of 
 qualification, or a diploma from the State Normal School. (Id. 
 sec. 11.) 
 
 Every town superintendent, during his continuance in office, 
 is to be deemed a qualified teacher. (Id. sec. 9.) 
 
 Whenever any money is paid Into the treasury of the State, 
 for, or on account of, the common school fund, it is the duty of 
 the comptroller to credit the common school fund with interest 
 on the sum so paid in, at the rate of six per cent, per annum, 
 for the time the same remains in the treasury. (Sec. 13.) 
 
 Any person appointed to the office of town superintendent by 
 Justices of the Peace, is to hold his office till the first Monday of 
 November following the next annual town meeting ; and when- 
 ever the office of town superintendent becomes vacant, for any 
 cause, or before the time of the annual town meeting is held by 
 a person so appointed, the electors of the town at such town 
 meeting an; to clioose a suj)erintcndent to fill the vacancy, 
 or to supersede; such appointee, and the person so elected is to 
 cater upon the duties of tlu; olFic(!, on the first Monday of No- 
 vcmher following his election, to hold his oflice for the term of 
 two years. (Sec. 14.) 
 
 Whenever it is satisfactorily jiiovod to the state superiiilend- 
 enl, that any county or town .snpciintcndciit, or oilier .--cliool of-
 
 OF SCHOOL DISTRICTS. 629 
 
 ficer, has embezzled the pubhc money, or any money coming 
 into liis hands, for scliool purposes, or has been gnihy of the wil- 
 ful violation of any law, or neglect of any duty, or of disobey- 
 ing any decision, order, or regulation, of the department of com- 
 mon schools, the state superintendent is authorized to remove 
 such officer from such office, by an order under the seal of office 
 of the secretary of state. (Sec. 15.) 
 
 It is the duty of each county clerk, immediately after the first 
 day of August in every year, in case the town superintendent of 
 any town in his county, shall have neglected to make to him 
 his annual report, to give notice of such neglect to the clerk of 
 the town, who must immediately notify such town superintend- 
 ent for the purpose of making his report. (Laws 1847, ch. 485, 
 sec. 144.) 
 
 Town superintendents, trustees, collectors, and clubs of school 
 districts, refusing or wilfully neglecting to make any report, or 
 to perform any other duty required by law, or by regulations or 
 decisions made under the authority of any statute, severally for- 
 feit to their town, or to their district, as the case may be, for the 
 use of the common schools therein, the sum of ten dollars for 
 each neglect or refusal; the penalty to be sued for and 
 collected, by the supervisor of the town and paid over to 
 the proper offices, to be distributed for the benefit of the com- 
 mon schools in the town or district to which the penalty belongs. 
 When the share of school or library money, apportioned to any 
 town or district, or school, or any portions thereof, or any money 
 to which a town or district would have been entitled, is lost, in 
 consequence of any wilful neglect of official duty by any town 
 superintendent or trustees, or clerks of school districts, the offi- 
 cers guilty of such neglect, forfeit to the town or district, the full 
 amount, with interest, of the moneys so lost ; and they are joint- 
 ly and severally liable for the payment of such forfeiture. (Id, 
 sec. 145.) 
 
 In any suit hereafter commenced against town superintend- 
 ents, or officers of school districts, for any act performed by vir- 
 tue of, or under color of their offices, or for any refusal or omis- 
 sion to perform any duty enjoined by law, and which might have 
 been the subject of an appeal to the superintendent, no costs can 
 be allowed, to the plaintiff in cases whore the court certifies that 
 it appeared on the trial of the cause that the defendants acted 
 in good faith. This provision, however, does not extend to suits
 
 630 ^F SCHOOL DISTRICTS. 
 
 for penalties, nor to suits or proceedings to enforce the decisions 
 of the superintendent. (Sec. 146.) 
 
 A school for colored children may he established in any city or 
 town of this state with approbation of the commissioners, or town 
 superintendents of such city, or town, to be under the charge of 
 the trustees of the district in which the school is kept. In 
 places where no school districts exist, or where from any cause, 
 it may be expedient such school may be placed in charge of 
 trustees, to be appointed by the commissioners or town superin- 
 tendent of common schools of the town or city, and if there is 
 none, to be appointed by the state superintendent. Returns are 
 10 be made by the trustees of such schools to the town super- 
 intendent, at the same time, and in the same manner, as pro- 
 vided by law in relation to districts ; and they are required, par- 
 ticularly to specify, the number of colored children, over five, 
 and under sixteen years of age, attending such sthool from dif- 
 ferent districts, naming the district especially, and the num- 
 ber from each. The town superintendent is to apportion and 
 pay over to the trustees of such schools a portion of the mo- 
 ney received by them annually in the same manner as pro- 
 vided by law in respect to school districts, allowing to such 
 schools the proper proportion for each child over five, and 
 under sixteen years, who shall have been instructed in such 
 school at least four months, by a teacher duly licensed, and 
 to deduct such proportion from the amount that would have 
 been apportioned to the district to which such child belongs. 
 In his report to the state superintendent, the town superintend- 
 ent is required specially to designate the schools for colored 
 children in his town or city. (Sec. 147.) 
 
 It is provided that the state superintendent may cause to be 
 printed a sufficient number of forms of reports by trustees of 
 school districts, and town superintendents and of lists of pupils 
 attending schools, and cause them to be transmitted to the sev- 
 eral county clerks for the use of those oflicers, and of teachers 
 of schools ; and lie is to cause title second, of chapter fifteen, and 
 part first, of the Revised Statutes, to bo printed and to insert 
 therein all acts and parts of acts, which have been passed by 
 the legislature connected with the subjects of the said title, 
 whicli are now in force ; and, where any provisions of the said 
 title have been altered by suhscquent acts, such provisions are to 
 be varied so ns to make them conformable to such alteration :
 
 OF SCHOOL DISTRICTS. 631 
 
 but the original numbers of the sections are to be indicated in 
 such mode as he shall judge proper, except as herein amended 
 or altered. Copies of the said title so amended, are to be trans- 
 mitted to the town superintendent, and all other officers charg- 
 ed with the performance of any duty under its provisions, 
 with such explanations and instructions, as may be deemed 
 expedient. (Sec. 148.)
 
 APPENDIX. 
 
 THE PROVISIONS OF THE STATUTES AND THE CODE, APPLI- 
 CABLE TO JUSTICES COURTS. 
 
 1. Of the Jurisdiction of Justices' Courts. 
 
 2 Revised Statutes, 324, (Sec. 1.) Every Justice of the Peace elected in any 
 town of this state, or iippointed for any city in wjjich special courts are tiot estab- 
 lished by law, is hereby authorized to hold a court for the trial of all actions in the 
 next section enumerated, and to hear, try and determine the same, according to 
 law and equity ; and for that purpose, where no special provision is otherwise made 
 by law, such court shall be vested with all the necessary powers which are posses- 
 sed by courts of record in this state. 
 
 Code, (Sec. 53.) Justices of the Peace shall have civil jurisdiction, in the 
 foUowinir actions and no other: 
 
 1. An action arisinjr on contract for the recovery of money only, if the sum 
 claimed do not exceed one hundred dollars ; 
 
 2. An action for damages for an injury to the person, or to real property, or for 
 taking, detniidng or injuring personal property, if the damages claimed do not ex- 
 ceed one hundred dollars ; 
 
 3. An action for a penalty not exceeding one hundred dollars, given by statute ; 
 
 4. An action commenced by attachment of property, as now provided by 
 statute if the debt or damages claimed, do not exceed one hundred dollars ; 
 
 5. An action upon a bond conditioned for the payment of money, not exceeding 
 one hundred dollars, though the penalty exceed that sum, the judgment to be given 
 for the sum actually due Where the payments are to be made by inslalmeuts, 
 an action may be brought for each instalment, as it shall become due. 
 
 6. An action upon a surety bond, taken by them, though the penalty or amount 
 claimed, exceed one hundred dollars; 
 
 7. An action on a judgment rendered in a court of a Justice of the Peace, or of 
 a Justices or other inferior court in a city where such action is not prohibited by 
 section 71. 
 
 8. To take and enter judgment on the confession of a defendant where the amount 
 confessed shall not exceed two hundred and fifty dollars, in the manner prescribed 
 by article eight, title four, chapter two, of part three, of the Revised Statutes. 
 
 Code, (Sec. 54) But no Justice of the Peace shall have cognizance of a civil 
 action, 
 
 1. In which the people of this state are a party, excepting for penalties not ex- 
 ceeding one hundred dollars ; 
 
 2. JN'or where the title to real property shall come in question, as provided by 
 sections 55 to 62, both inclusive ; 
 
 3. Nor of a civil action for an assault, battery, false imprisonment, libel, slander, 
 malicious prosecution, criminal conversation, or seduction; 
 
 4. Nor of a matter of account, where the sum total of the accounts of both par- 
 ties, proved to the satisfaction of the Justice shall exceed four hundred dollars ; 
 
 5. Nor of an action against an executor, or administrator, as such. 
 
 Revised St.vtutes, (Sec. 6.) Actions cognizable before a Justice, may be brought 
 by and against all persons who sue or are sued in their own right, and by and 
 against all town and county officers in their official character ; and by executors, 
 administrators, and corporations. * 
 
 * The constitution of this state declares that "all corporations shall have the right to sue and 
 shall be subject to be sued, in all courts, in like cases as natural persons." [Vide Cons. art. 8, 
 sec. 3.]
 
 634 APPENDIX. 
 
 (Sec. 7.) If after the election of any person as a Justice of tlie Peace he shall 
 become an inn lioldcr, or tavern keeper in fact, he shall not have any power or 
 jurisdiction under the provisions of tiiis title ; but lie may i.ssue execution upon any 
 judgment actually rendered by him, before he became so disqualified. 
 
 (t?ec. 8.) No Justice of the Peace being a member of the senate or assembly, 
 or being a judge of any county court, shall be obliged to take cognizance of any 
 action or to entertain any proceedings under the provisions of this title ; but he may 
 act therein or not, at his discretion. 
 
 (Sec. 9.) Every such action shall be brought before some Justice of the towu, 
 wherein, either, 
 
 1. The plaintiffs or any one of thein reside ; or 
 
 2. Where the defendants, or any one of them reside ; or 
 
 3. Before some Justice of another town in the same county next adjoining the 
 residence of the plaintifl or defendant. 
 
 (Sec 10 ) But if a defendant has absconded from his residence, such action may 
 be brouo-lit before a Justice of the town in which such defendant or his property 
 may be ; and if the plaintiffs be all non-residents of the county, then such action 
 may be brought before any Justice of the town in wliich such plaintiffs or defen- 
 dant, may be. 
 
 2. Of Ihe cotiunenceynent of Suits and the Service and Return of Process. 
 
 Revised St.^tues, 326, (Sec. 12.) Suits may be instituted before a Justice 
 eltiier by the voluntary appearance and agreement of the parties, or by process ; 
 when by process, it shall be either a summons, a warrant, or an attachment. 
 
 (Sec. 13.) Suits shall be considered as commenced, at the times following : 
 
 1. Upon process by warrant, at the time of the arrest of the defendant : 
 
 2. Upon process by attachment or summons, on the day when the process shall 
 be delivered to the constable. But if two or more suits be commenced, by sum- 
 mons or attachment, on the same day, the suit in which the process was first ser- 
 ved, shall be deemed to have been first commenced : 
 
 3. Where the suit is instituted without process, at the time of the parties join- 
 ing issue. 
 
 (Sec. 14.) The first process against freeholders, and against inhabitants having 
 families, e-xcept as is otherwise herein after directed, shall be a summons ; but no 
 person shall be proceeded against by summons out of the county in which he 
 resides. 
 
 (Sec. 15.) A summons shall be directed to any constable of the county where the 
 Justice resides, commanding him to summon the defendant to appear before the 
 Justice who issued the same, at a time and place to be named in such summons, 
 not less than si.\, nor more than twelve days from the date of the same to answer 
 the plaintiff in the plea in the same summons to be mentioned. 
 
 (Sec. 16.) A summons shall be in all cases served at least six days before the 
 time of appearance mentioned therein : if the defendant shall be found it shall be 
 served by reading the same to the defendant, and, (if required by him) delivering 
 a copy thereof. If the defendant shall not be found it shall be served by leaving a 
 copy thereof at the defendant's last place of abode, in the presence of some one of 
 the family of .suitable ago and discretion who shall be informed of its contents. 
 
 (Sec. 17.) The constable serving a summons shall return thereupon, in writing, 
 the time and manner in which lie executed the same, and sign his name thereto. 
 
 (Sec. 18.) A Justice shall upon application, issue a warrant in the following 
 cases : 
 
 1. Where the defendant is a non-resident of tlio county. 
 
 2. Where the plaintiff is a non-resident and tenders to the Justice security for 
 the paym'-iit of any sum which may be adjudged against liim in the suit. 
 
 3. When it Khali appear to the satisfaction of the Justice, by the affidavit of the 
 applicant, or of any other vvitnes.s, tiiat the person against whom such warrant is 
 de.nired, is about to de|)art from the county with intent not to return tlureto. 
 
 4. Wh.-re the defendant is an inhabitant of the county having a family, or a 
 frecholilcr of the samo county, and it shall in like manner appear to the satisfaction 
 of the Jusiiei- that the plaintiff will be in danger of losing ins debt or demand, uu- 
 luHHHUcli warrant i)e grunted. 
 
 (Si'c. 20 ) In all canes, on application for a warrant, except where the suit shall 
 have been coinincnced by sunimoiiH, the person applying, shall, by affidavit, state 
 the facts and circum»lances witlim his knowledge, sliowing the grounds of his ap-
 
 APPENDIX. 635 
 
 plication wlicreby the Justice may the better judge of the necessity and pro- 
 priety of issLiinirsuch warrant. 
 
 (Sec. 21.) A warrant sliali be directed to any constable of the county where the 
 Jnstice issuing the same resides, and shall command such constable to take the de- 
 fendant and bring him forthwith before such Justice to answer (he plaintiff in a 
 plea in the same warrant to be mentioned ; and shall furl her require Ihe constable, 
 after he shall have arrested the defendant, to notify the plaintifi"of such arrest. 
 
 (Sec. 22.) A warrant shall be served by arresting the defendant and taking him 
 forthwith before the Justice issuing the same. If such Jusiice be, on the return 
 thereof, absent, or unable to hear or try the cause, or it shall be made to appear lo 
 Buch Justice by the affidavit of such defendant that .'^iich Justice is a material wit- 
 ness in the cause, the constable shall take the defendant before the next Justice of 
 the city or town who shall take cognizance of the cause, and proceed thereon as if 
 the warrant had been issued by him. 
 
 (Sec. 23.) Every constable serving a warrant, shall return thereupon in writing 
 the manner in which he executed the same, and the fact whether he has, or has 
 not, notilied the plaintiff. 
 
 (Sec. 26.) When a defendant shall be brought before a Justice on a warrant, he 
 shall be detained in the custody of the constable, until the Justice shall direct his 
 release. But in no case shall the defendant be detained longer than twelve hours 
 from the time he shall be brought before the Justice, unless within that time, the 
 trial of the cause shall be commenced ; or unless it shall be delayed at the instance 
 of the defendant. 
 
 (Sec. 24.) Whenever an action shall be brought to recover any penalty, imposed 
 by law for taking any rails, boards, planks, or staves, from the banks or vicinity of 
 a canal, in which a Justice is authorized to direct the detention of any canal boat, he 
 shall not endorse such direction on any warrant, unless a bond, as prescribed in the 
 next section, shall be executed and delivered to such Justice. 
 
 (Sec. 25.) Such bond shall be in (he penalty of at least one hundred dollars, with 
 one or more sureties to be approved by such Justice, conditioned that such action 
 shall be prosecuted to judgment with all convenient speed, and that if judgment 
 be rendered in favor of the defendant, the obligors will pay the costs and charges 
 whi h shall be adjudged against the plaintiff, and all damages which may ensue 
 from the detection of such boat and the cargo thereof, and the crew navigating the 
 same. 
 
 (Sec. 27.) An attachment against the property of any debtor, may be issued on 
 the application of a creditor in the manner hereinafter prescribed whenever it shall 
 satisfactorily appear to the Justice that such debtor has departed, or is about to 
 depart from the county where Ife last resided, with intent to defraud his creditors, 
 or to avoid the service of any civil process ; or that such debtor keeps himself con- 
 cealed with the like intent. 
 
 (Sec. 2S.) Such application may be made by any creditor, or by his personal re- 
 presentatives, having a demand against such debtor personally, whether liquidated 
 or not, arising upon contract, or upon a judgment rendered within this state, amount- 
 ing to one hundred dollars, or any less sum. 
 
 (Sec. 29.) Such application shall be in writing, and shall be accompanied by the 
 affidavit of the creditor, or of his agent, in which shall be specified as near as may 
 be, the sum in which the debtor is indebted, over and above all discounts, to the 
 person in whose behalf application is made, and the grounds upon which the ap- 
 plication is founded : and the facts and circumstances to establish such grounds 
 shall also be verified by the affidavits of two disinterested witnesses: and it shall 
 be the duty of the Justice, on being r'^quested so to do, to issue his subpoena, to 
 compel the attendance of any witness forthwith to make such affidavit.* 
 
 (Sec. 30.) The applicant shall execute to the defendant, and deliver to the 
 Justice, a bond with sufficient surety, to be approved by such Justice in writing 
 upon such bond, in the penalty of two hundred dollars, conditioned to pay such de- 
 fendant all damages and costs which he may sustain, by reason of the issuing 
 such attachment, if such plaintiff" fail to recover judgment thereon ; and if such 
 judgment be recovered, that such plaintiff will pay the defendant, all moneys which 
 
 ' The legislature, in 1831, passed an act dispensing with the necessity of producing two 
 witnesses to state the facts and circumstances &c. and allowed the plamtift, or any person who 
 made application for him, to make the necessary proof by his own affidavit ; so that the applicant 
 for an attachment, does not now have to produce two witnesses, his own affidavit being sufficient.
 
 636 APPENDIX. 
 
 shall be received by him, from any property levied upon by such attachment, over 
 and above the amount of sucli judgment, and interest and costs thereon. 
 
 (Sec. 31.) Every such attachment shall state the amount of the debt sworn to by 
 the applicant, andsliall command any constable of the county in whicii the Jus- 
 tice resides, to attach so much of the goods and chattels of the debtor, as will be 
 sufficient to satisfy mch debt ; and safely to keep the same, in order to satisfy any 
 judgment that may be recovered on such attachment; and to make return of his 
 proceedings thereon, to the Justice who issued ilie same, at a time therein to be 
 specified, not less than six, nor more than twelve days from the date thereof 
 
 (Sec. 3:2.) The constable to whom such attachment shall be directed and de- 
 livered, shall execute the same at least six days before the return day ; and shall 
 attach, t.ike into his custody, and safely keep, sucli part of the goods and chattels 
 of the defendant, as shall not be exempt from execution, and a.s shall be sufficient 
 to satisfy the demand of the plaintitF. He shall immediately make an inventory 
 of the property seized, and sliall leave a copy of the attachment, and of the inven- 
 tory, certified by him, at the last place of residence of the defendant; but if the 
 defendant have no place of residence in the county, where the goods and chattels 
 are attached, such copy and inventory shall be left with the person in whose pos- 
 session the said goods and chattels shall be found. 
 
 (Sec 33 ) No goods attached by a constable shall be removed by him, if a bond 
 be given and delivered to such constable., by any person with sufficient surety, to 
 be approved by the constable in a penalty double the sum stated in the aiiachment 
 to have been sworn to by the pluintitf, conditioned that such goods and chattels shall 
 be produced, to satisfy any execution that maybe issued npon any judgment which 
 shall be obtained by tlie plaintiff upon such attachment, within six months after the 
 date of such bond. 
 
 (Sec. 34.) If any person sliall claim any goods or chattels attached by a con- 
 stable, he may, after such seizure, and at anytime before execution shall have been 
 issued ui'on the jiidgment obtained ou such attachment, execute a bond to the 
 plaintiff, with sureties to be approved by the constable, or by the Justice who issued 
 the attachment, in a penalty double the value of the property attached, condition- 
 ed that in a suit to be brought on such bond, within three months from the date, 
 such claimiant will establish that he was the owner of the goods seized, at the time 
 of such seizure ; and in case of his failure to do so, that he will pay the value of 
 the goods so claimed, with interest. 
 
 (Sec. 35.) Upon either of the bonds aforesaid, being executed and delivered to the 
 constable, he shall deliver up the property seized by him, to the obligor in such 
 bond. 
 
 (Sec. 3G.) The constable serving the attachment, shall make a return thereof, 
 at the day therein named for that purpose, with all his proceedings thereon, iii 
 writing, subscribed by him, with a copy of the inventory of the goods attached, 
 certified by him, and with any bond which may have been executed and delivered 
 to him, pursuant to the foregoing provisions. 
 
 (Sec. 37.) In every suit which shall be brought upon a bond, given by the claim- 
 ant of property, pursuant to the preceding [34] section, the claimant may give in 
 evidence, in bar of a recovery, that he was the owner of the property seized, at the 
 time of such seizure. If he fail to establish such ownership, or if judgment pass 
 against him, by default, or on demurrer, the plaintitF shall recover the value of the 
 property so seized and delivered to such claimant, with interest, from the date of 
 the bond, lo bo assessed as damages. 
 
 (Sec. 38.) if the amount so recovered, exceed the amount of the plaintiff's judg- 
 ment rendered on the ati.ichment, he shall bo liable to refund such excess to the 
 defendant in such attachment. 
 
 (Sec. 3!).) If the defendant shall before judgment, s;ilisfy the claim on which 
 such atlacliMU'nt issued, anil all costs tliereuii, or alter judgment shall pay the same, 
 lie shall be entitled to maintain an aciiou ou the bond executed by such claimant, 
 in hi.s own name, in the same manner and with the like ellect as if such action 
 had been br-jught by the obligee in such bond as herein provided. 
 
 No.v I.M. .\cT. (Sec. 31) In addition to the cases in which suits may now be 
 commenced, before Justices of the Peace by attachment, any suit for the recovery 
 of any debt, or damag<n iniHing upon any contract, express or implifd, or upon any 
 judgment for fifty doll.irH or less, may be so commenced, whenever it shall satisfac- 
 lordy appear to such Justice that the defendant is about to remove from ihe county 
 any of his property, with intent to defraud liiu creditors— or has assigned, disposed
 
 APPENDIX. G37 
 
 of, secreted, or is about lo assign, dispose of, or secrete, any of Iiis proi)erty vvitli 
 the like intent, wlietlicr such a defendant be a resident of this state or not. 
 
 (See. 35.) Before any atliichment sliaii issue in siii;h case, or in ttie ca.ses provi- 
 ded for, in article second, title fourth, chapter second part tliird of the Revised 
 Statutes, tlie i)]aintift" shall, by hi.s own afiidavit, or that of some other per.-^on or 
 persons, prove to tiie satisfaction of tlie Justice, the facts and circumstances to 
 entitle liirii lo the same, and that lie has such a claim as is specified in the last pre- 
 ceding section, against the defendant, over and above all discounts which the de- 
 fendant may have against him, specifying, as near as may be, the amount of such 
 claim, or the balance thereof; and such phiintiff, or some one in his behalf, shall 
 also execute in the cases provided for, by this act, a boiid, in the penalty of at least 
 one hundred dollars, with such sureties, and upon such condition, as is required in 
 section twenty nine of said article ; and so much of said article as reqinres any other 
 or different proof for iho issuing of an attachment than that required by this sec- 
 tion, is hereby repealed. 
 
 (Sec. 36.) Every attachment issued by virtue of this act, or of the provisions 
 contained in the said record article shall be served in the manner now provided in 
 said article, except that if the defendaut can be found in the county, the copy of 
 such attachment and inventory shall be served on him personally, instead of leaving 
 the same at the place now prescribed in said article: and the return of said officer, 
 the addition to what is now required, shall state specifically whether such copy was 
 or was not, personally served upon the defendant. 
 
 (t?ec. 37.) if such attachment was issued in one of the cases provided for by this 
 act, and shall be returned personally served upon the defendant, the Justice "shall, 
 on the return day, proceed lo hear and determine the cause, in the same manner 
 as upon a summons returned personally served. 
 
 (Sec. 38.) If such attachment, was issued in one of the cases ijrovided for by this 
 act, and at the return day it shall appear by the return, that property was aitached, 
 and that a copy of such inventory and attachment was not personally served, and 
 the defendant shall not appear, the plaintill'may talie out a summons against tho 
 defendant; and if such summons shall be returned that the defendant cannot be 
 found, after diligent inquiry, or that the same has been personally served, upon the 
 defendant, then in either case, the Justice shall proceed to liear and determine the 
 cause in the same manner as upon a summons returned personally served. 
 
 (Sec. 39.) A judgment obtained before any Justice in any suit commenced, by 
 attachment, when the defendant shall not be personally served with the attach- 
 ment, or summons, and shall not appear, shall be only presumptive evidence of the 
 indebtedness in any suit that may be brought thereon, and may be expelled by the 
 defendant; and no execution issued upon such judgment, shall be levied upon any 
 other property than such as was seized under the attachment issued thereon ; nor 
 shall any defendant in such case, be barred of any set olF which he may have 
 against the plaintiff. 
 
 3. Of the Form of Civil Actions. 
 
 Code, (Sec. 69.) The distinctions between actions at law, and suits in equity, 
 and the lorms of all such actions and suits, heretofore existing, are aboli.shed ; and 
 there shall be in this state, hereafter, but one form of action for the enforcement 
 or protection of private rights, and the redress of private wrongs, which shall be 
 denominated a civil action. 
 
 (Sec. 75.) In such action tiie party complaining shall be known as ihe plaintiff, 
 and the adverse party as tho defendant. 
 
 (Sec. 71.) No action shall be brought upon a judgment rendered in any court of 
 this state, except a court of a Justice of the Peace, between the same parties, with- 
 out leave of the court for good cause shown, on notice to the adverse party ; and 
 no action on a judgment rendered by a Justice of the Peace shall be brought in the 
 same county, within five years after its rendition, except in case of his death 
 resignation, incapacity to act or removal from the county, or that the process was, 
 not personally served on the defendaut, or on all the defendants, or in case of the 
 death of some of the parties, or where the docket or record of such judirment is, 
 or shall have been lost, or destroyed. 
 
 4. The time of commp.ncing actions in general. 
 Code, (Sec 73.) The provisions contained in tho chapter of the Revised Statute
 
 638 
 
 APPENDIX. 
 
 entitled '•' of actions and the times of commencing tlicm," are repealed, and the 
 provisions of this title arc substituted in tiieir stead. This title shall not extend to 
 actions already commenced, or to cases where tho right of action has already ac- 
 crued; but the statutes now in force shall be appiicublo to such cases, according to 
 the subject of the action, and without regard to tiie form. 
 
 (Sec. 74.) Civil actions can only be commenced within the period prescribed in 
 this title, after the cause of action shall have accrued, except where in special 
 cases, a different limitation is prescribed by statute, and in the cases mentioned in 
 section 73. 
 
 (Sec. 89.) The periods prescribed in section 74, for the commencement of ac- 
 tions other than for the recovery of real property, shall be as follows : 
 
 (Sec. UU ) Within twenty years : 
 
 J. An action upon a judgment or decree of any court of the United States, or of 
 any state or territory within the United States. 
 
 2. An action upon a sealed instrument. 
 
 (Sec. 91.) Within si.^c years : 
 
 1. An action upon a contract, obligation, or liability, express or implied ; excep- 
 ting those mentioned in section 98. 
 
 2. An action upon a liability created by statute, other than a penalty or forfeit- 
 ure. 
 
 3. An action for trespass upon real property. 
 
 4. An action for taxing, detaining, or injuring any goods or chattels, including 
 actions for the specific recovery of personal properly. 
 
 5. An action for criminal conversation, or for any other injury to the person or 
 rights of another, not arising on contract, and not hereinafter enumerated. 
 
 cSec. 92.) Within three years: 
 
 1. An action against a sheriff, coroner, or constable, upon a liability incurred by 
 the doino' of an act in his official capacity, and in virtue of his office, or by the 
 omission of an official duty ; including the non-payment of money collected upon 
 an execution. But this section shall not apply to an action for an escape. 
 
 2. An action upon a statute, for a penalty or forfeiture, where the action is given 
 to the party aggrieved, or to such party and the people of this state, except where 
 the statute imposing it, prescribes a different limitation. 
 
 (Sec. 93.) Within two years: 
 
 An action upon a statute, for a forfeiture or penalty to the people of this state. 
 
 (Sec. 94.) Within one year: 
 
 An action against a sheriff or other officer, for the escape of a prisoner, arrested 
 or imprisoned on civil process. 
 
 (Sec. 9.'i ) In an action brought to recover a balance due upon a mutual, open, 
 and current account, where there have been reciprocal demands between the par- 
 tics, the cause of action shall be deemed to have accrued, from the time of the last 
 item proved in the account, on either side. 
 
 (Sec. 91J.) An action upon a statute for a penalty or forfeiture, given in whole or 
 in part to any person who will prosecute for the same, must be commenced within 
 one year after the commission of the offence ; and if the action be not commenced 
 within the year, by a private party, it may be commenced within two years there- 
 after, in behalf of tlie people of this state by tho attorney general, or district attor- 
 ney of the county where tho offence was committed. 
 
 (Sec. 98.) The limitations prescribed in this ch!ii)ter, shall apply to actions brought 
 in the name of the people of this state, or for their benefit, in the same manner as 
 to actions by private parties. 
 
 5. Grnerul Provisions ns to the lime of commencing actions. 
 
 Code, (Sec. 99.) An action shall not be docmad comnuMiced within the meaning 
 of thi8 title unless it appear, 
 
 1. That the summons, or other process therein, was duly served upon the defen- 
 dants or one of them ; or 
 
 2. 'I'lial tho siiniinons or other process was delivered with the intent that it 
 Bhouhl bi- actually served, to tiio Hherill' or other officer of tho county, in which the 
 di:fe,n(lan'.s, or ouf o( tlictn, UHually or last resided ; or if a corporation bo defen- 
 dant to till! sln-riff (ir other odiccr of the county in which S'lch corporation was es- 
 tablished by law, or where its general business was transacted, or where it kept un 
 olfice [or the transactiini of buwincfs.
 
 APPENDIX. 639 
 
 (Sec. 100.) If when the cause of action .sliall accrue against a person lie 1)6 out 
 of tlie slate, tiie action maybe coninicncecl within tlie term herein jiniiteci, after 
 his return to the slate ; and if after tlie cause of action shall have accrued, lie de- 
 part from the state, the time of his absence, shall not he part of the time limited for 
 the commencement of the action. 
 
 (Sec. 101.) If a person entitled to bring an action mentioned in the last i)rece- 
 ding chapter, excejit for a penalty or forfeiture, or against a sherifF, or other officer 
 for an escape, be, at the time the cause of action accrued, either, 
 
 1. Within the age of twenty one years ; or 
 
 2. Insane ; or 
 
 3. Imprisoned ou a criminal charge, or in execution under the sentence of a cri- 
 minal court, for a term less than his natural life ; or 
 
 4. A married woman : 
 
 The time of each disability shall not be a part of the time limited for the com- 
 mencement of the action. 
 
 (Sec. 102.) If a person entitled to bring an action die before the expiration of the 
 time limited for the commencement thereof, and the cause of action survive, an ac- 
 tion may be commenced by his representatives, after the expiration of that time, 
 and within one year from his death. If a person against whom an action may be 
 brought, die before the expiration of the time limited for the commencement there- 
 of, and the cause of action survives, an action may be comtrenccd against his ex- 
 ecutors or administrator, after the expiration of that time, and within one year after 
 the issuing of letters testamentary, or of administration. 
 
 (Sec. 10.3.) When a person shall be an alien subject, or citizen of a country at 
 war with the United Slates, the time of the continuance of the war, shall not be 
 part of the period limited for the commencement of the action. 
 
 (Sec. 104.) If an action shall be commenced within the time prescribed therefor, 
 and a judgment therein for the plaintiff, be reversed, on appeal, the plaintiff', or if 
 he die, and the cause of action survive, his heirs or representatives may commence 
 a new action within one year after the reversal. 
 
 (Sec. 10.).) When the commencement of an action shall be stayed by injunction, 
 or statutory prohibition, the time of the continuance of the injunction, or prohibi- 
 tion, shall not be part of the time limited, for the commencement of the action 
 
 (Sec. 1(16.) No person shall avail himself of a disability, unless it existed when 
 his right of action accrued. 
 
 (Sec. 107.) When two or more disabilities shall co-exist, at the time the right of 
 action accrues, the limitation shall not attach until they all be removed. 
 
 (Sec. 108.) This title shall not affect actions to enforce the payment of bills, 
 notes, or other evidences of debt, issued by monied corporations, or issued or put in 
 circulation as money. 
 
 (Sec. 109.) This title sliall not affect actions against directors or stockholders 
 of a monied corporation, or banking associations to recover a penalty or forfeiture 
 imposed, or to enforce a liability ci-eated by law ; hut such actions must be brought 
 within six years after the discovery, by the aggrieved party, of the facts u[)on 
 which the penalty or forfeiture attached, or the liability was created. 
 
 (Sec. 110.) No acknowledgment, or promise, shall be sufficient evidence of a 
 new or continuing contract, whereby .to take the case out of the operation of this 
 title, unless the same be contained in some writing, signed by the party lo be 
 chargt'd thereby ; but this section shall not alter the effect of any payment of 
 principal, or interest. 
 
 6, Of the Parlies to Civil Actions. 
 
 Code, (Sec. llJ.j Every action must be prosecuted in the name of the real party 
 in interest, except as otherwise provided in section ll.^. 
 
 (Sec. 112.) In the case of an assignment of a thing in action, the action by the 
 assignee shall be without prejudice to any set off or other defence existing at the 
 time of, or before notice of the assignment; but this section shall not apply to a 
 negoliuble promissory tiote or bill of exchange, transferred in good faith and upon 
 good consideration, before due. 
 
 (Sec. ll;j.) An executor or administrator, or trustees of an express trust, or a 
 person expressly authorized by statute, may sue without joining with him the per- 
 sons for whose benefit the suit is prosecuted.
 
 (340 APPENDIX. 
 
 (Sec 1 14.^ When a married woman is a party, lier husband must be joined with 
 her, except that 
 
 1. When the action concerns her separate property, she may sue alone : 
 
 2. When tlie action is between licrself and Jier husband, slie may sue or be sued 
 alone. 
 
 i^Sec. 117) All persons having an interest in the subject of the action, and in ob- 
 taininjf the relief demanded, may be joined as plaintiffs, except as otherwise provi- 
 ded in liiis tiile. 
 
 (Sec. 118.) Any person may bo made a defendant, who has, or claims, an in- 
 terest in the controversy adverse to the plaintiff, or who is a necessary parly to a 
 complete determination or settlement of the questions involved therein. 
 
 (Sec 119.; Of tiie parties to the action, those wlio are united in interest, must 
 be joined as plaintiffs or defendants ; but if tlie consent of any one who should have 
 been joined as plaintiff, cannot be obtained, lie may be made a defendant, the 
 reason thereof, being stated in the complaint; and wlien the question is one of a 
 common or general interest of many persons, or wlien the parties are very numer- 
 ous, and it may be impracticable to bring them all before the court, one or more 
 may sue for the benefit of the whole. 
 
 (Sec. 12U.) Persons severally liable upon the same obhgation or instrument, in- 
 cluding the party to bills of exchange and [jromissory notes, may, all or any of them, 
 be included in the same action, at the option of the plaintiff. 
 
 (Sec. 121.) No action sliall abate by the death, marriage, or other disability of a 
 party, or by the transfer of any intciest therein, if the cause of action survive or 
 continue. In case of death, marriage, or other disability of a party the court, on 
 motion, at any lime within one year thereafter, or afterwards on a supplemental 
 complaint may allow the action to be continued, by or against his representative 
 or successor in interest. In case of any other transfer of interest, the action shall 
 be continued in the name of the original party ; or the court may allow the person 
 to who(n the transfer is made to be substituted in the action. 
 
 (Sec. 122) The court may determine any controversy between the parties, be- 
 fore it, when it can be done without prejudice to the rights of others, or by saving 
 their rights ; but when a complete determination of the controversy cannot be had, 
 without ihe presence of other parties, the court shall order them to be brought in. 
 
 7. Of ihe Appearance of Parties. 
 
 2 Revised Statutes. (Sec. 48, p. 330.) Any plaintiff in a suit before a Justice, 
 e.\cept persons under twenty one years of age may appear and conduct his suit, 
 either in person or by attorney. 
 
 (Sec. 42.) Every defendant in a suit, except persons under twenty one years of 
 age, may appear and defend tlie same, in person, or by attorney ; but where a 
 warrant shall have been served on a defendant, and returned, no further proceed- 
 ings shall be had against him, until he shall have persoiiallj' appeared in court. 
 
 (Sec 45.) A party authorized to appear by attorney, may appoint any person to 
 act as such attorney ; but the constable who served either the original, or jury pro- 
 cess in the cause, shall not appear and advocate for either party at the trial, but 
 may act as attorney at any otlier stage or proceeding in the cause. 
 
 (.See. 'l(i) 'Ihe authority to appear by attorney, may be either written or verbal, 
 and shall in all cases, be jjroved, either by the attorney hnnself, or other competent 
 testimony, unless admitted by the opposite party ; and the Justice shall not permit 
 any person to appear for another, without such proof or admission. 
 
 Code, (Sec. 115) When an infant is a party, he must appear by guardian, who 
 may be ap!)oiiUed by the court, in which iho action is, prosecuted, or by a judge 
 thereof, or a county judge. 
 
 (Sec. IKi) 'I'lie guardian shall be ap|)ointed as follows; 
 
 1. When liio infant is plaintif]", upon the petition of the infant, if he be of the 
 age of fourletii years ; or if under that age, upon the petition of some other |)arty 
 to the t-uil, or of a relative or friend of the inlant. 
 
 2. When the infant is defendant, u|>on the jjelilion of the infant, if he bo of the 
 age of (onrleen jears, and a|)ply within twenty tiays after the service of the sum- 
 mon.s. If he be, undiT the ago of fourteen, or neglect so lo apply, then upon the 
 petition of any other party to the untion, or of u relative or friend of the inlant. 
 
 2 Rkvibed STAruTEB. (Sec. 47, p. '.VM.) Upon tlio return of a summons person-
 
 APPENDIX. 641 
 
 ally served, or on (lie return of an attachment duly served, the Justice shall wait 
 one iiour after the time gpecified for llie return oi such process, unless the parties 
 shall sooner appear. 
 
 8. Of Pleadings and of Set-Off. 
 
 2 Revised Statutes (Sec. 48, p. 331.) At the time of the first appearance of 
 the parties before the Justice, eitlier upon the return of process, or their voluntary 
 appearance to join issue, the pleadings of the parties shall be made, and the issue 
 joined ; and when both parties have appeared on the return of j)rocess, an issue 
 shall be joined before any adjournment shall be had, except when the defendant 
 shall refuse or neglect to plead. 
 
 Code. (Sec. 64) The following rules shall be observed in courts of Justices of 
 the Peace : 
 
 1. The pleadings in these courts are : 
 
 1. The complaint by the plaintiff. 
 
 2. The answer by the defendant. 
 
 2. The pleadings may be oral or in writing ; if oral, the substance of them, shall 
 be entered by the Justice in his docket ; if in writing, they shall be filed by him, 
 and a reference to them shall be made in the docket. 
 
 3. The complaint shall state, in a plain and direct manner, the facts constituting 
 the cause of action. 
 
 4. The answer may contain a denial of the complaint, or of any part thereof, 
 and also notice in a plain and direct manner, of any facts constituting a defence. 
 
 5. Pleadings are not required to be in any particular form, but must be such as to 
 enable a person of common understanding to know what is intended. 
 
 6. Either party may demur to a pleading of his adversary, or any part thereof, 
 when it is not sufficiently explieil to enable him to understand it, or it contains no 
 cause of action, or defence, although it be taken as true. 
 
 7. If the court deem the objection well founded, it shall order the pleading to 
 bo amended, and if the party refuse to amend, the defective pleading shall be dis- 
 regarded 
 
 8. In case a defendant does not appear and answer, the plaintiff cannot recover, 
 without proving his case. 
 
 9. In an action, or defence, founded upon an account, or an instrument for the 
 payment of money only, it shall be sufficient for the party to deliver the account 
 or instrument to the court, and to state that there is due to him thereon, from the 
 adverse party, a specified sum, which he claims to recover or set off. 
 
 10. A variance between the proof on the trial, and the allegations in a pleading, 
 shall be disregarded as immaterial, unless the court shall be satisfied that the ad- 
 verse party has been misled to his prejudice thereby. 
 
 11. The pleadings may be amended at any time before the trial, or during the 
 trial, or upon appeal, when by such amendment, substantial justice will be pro- 
 moted. If the amendment be made after the joining of the issue, and it be made 
 to appear to the satisfaction of the court, by oath, that an adjournment is necessary 
 to the adverse party, in consequence of such amendment, an adjournment shall be 
 granted. The court may also, in its discretion, require as a condition of an amend- 
 ment, the payment of costs to the adverse party, to be fixed by the court ; but no 
 amendment shall be allowed, after a witnes.s is sworn on a trial, when an adjourn- 
 ment thereby will be made necessary. 
 
 12. The court may, at the joining of issue, require either party, at the request of 
 the other, at that or some other specified time, to exhibit his account on demand, 
 or state the nature thereof, as far forth as may be in his power, and in case of his 
 default preclude him from giving evidence of such parts thereof as shall not have 
 been so exhibited or stated. 
 
 (Sec. 5j.) In every action brought in a court of justice of the peace, where the 
 title to real property shall come in question, the defendant may, either with or with- 
 out other matter of defence, set forth in his answer any matter, showing that such 
 title will come in question. Such answer shall be in writing, signed by the defen- 
 dant or his attorney, and delivered to the justice. The justice shall thereupon coun- 
 tersign the same, and deliver it to the plaintifY. 
 
 (Sec. 56.) At the time of answering, the defendant shall deliver to the justice a 
 
 41
 
 (342 APPENDIX. 
 
 written undertaking, executed by at least one sufllciejit surety, and approved by 
 the justice, to the effect that if the plaintifT shall, witiiin thirty days thereafter, 
 deposit with the justice, a sumnioiis and complaint, in an action in the Supreme 
 Court for the same cause, the defendant will, within ten ddys after such deposit, 
 aive an admission in writing of the service tiiereof. Where the defendant was ar- 
 rested in the action before the justice, the undertaking shall further provide, that he 
 will, at all times, render himself amenable to the process of the court during the 
 pendency of the action, and to such as may be issued to enforce the judgment 
 therein. In case of failure to comply with the undertaking the surety shall be liable, 
 not exceeding one hundred dollars. 
 
 (Sec. 57.) Upon the delivery of the undertaking to the justice, the action before 
 him shall be discontinued, and each party shall pay his own costs. The coats so 
 paid by either party shall be allowed to him, if he recover costs in the action to be 
 brought for the same cause in the Supreme Coiirt. If no such action be brought 
 within thirty days after the delivery of the undertaking, the defendant's costs before 
 the justice may be recovered of the plaintiff. 
 
 (Sec 58.) If the undertaking be not delivered to the justice, he shall have juris- 
 diction of the cause, and shall proceed therein; and the defendant shall be pre- 
 cluded in his defence from drawing the title in question. 
 
 (Sec. 59.) If, however, it appear on the trial, from the plaintiff''s own showing, 
 that the title to real property is in question, and such title siiall be disputed by the 
 defendant, the justice shall dismiss the action, and render judgment against the 
 plaiutitffor the costs 
 
 (Sec. bO.) When a suit before a justice shall be discontinued by the delivery of 
 an answer and undertaking, as provided in sections 55, 5G, and 57, the plaintiff may 
 prosecute an action for the same cause in the Supreme Court, and shall complain 
 lor the same cause of action only on which he relied before the justice. 
 
 (Sec. 61.) If the judgment in the Supreme Court be for the plaintiff, he shall re- 
 cover costs. If it be for the defendant, he shall recover costs; except that upon a 
 verdict, he shall pay costs to the plaintiff", unless the judge certify that the title to 
 real (iroperty came in question on the trial. 
 
 (Sec. 62.) if in an action before a ju.stiee, the plaintiff" have several causes of 
 action, to one of which the defence of title to real properly shall be interposed, and 
 as to such cause, the defendant shall answer and deliver an undertaking, as pro- 
 vided in sections 55 and 56, the justice shall discontinue the proceedings, as to that 
 cause and the plaintiff" may commence another action therefor in the Supreme 
 Court. As to the other causes of action, the justice may continue his pro- 
 ceedings. 
 
 2 Reviser Statutes. (Sec. 51, p. 352.) In the following cases, and under the 
 following circumstances, a defendant may set off" demands which he has against 
 the plaintiff". 
 
 1. It ninsl be a demand arising upon judgment, or upon contract, express or im- 
 plied, whether such contract be written or unwritten, sealed or without seal ; and if 
 it be founded upon a bond or other contract having a penalty, the sum equitably 
 due by virtue of its condition, only, shall be set off". 
 
 2. It must bo due to bin) in his own right, either as being the original creditor or 
 payee, or as being the assignee or owner of the demand. 
 
 3. It must be a demand for real estate sold, or for per.sonal property sold, or for 
 money paid, or services done ; or if it be not such a demand, the amount must be 
 liquidated, or be capable of being ascertained by calculation. 
 
 4. It niu.st have existed at the time of the commencement of the suit, and must 
 then have belonged to the defendant. 
 
 5. It can be allowed only in actions founded upon demands which could ihem- 
 Belves be the subject of set oil", according to law. 
 
 fi. If there be several defendants, the demand sot oft' must be due to all of them 
 jointly. 
 
 7. It must bo a demand existing against the ])laintiff in the action, unless the suit 
 be brought in the name of a plaintiff" who has no real interest in the contract upon 
 whi'li the unit is fi,uiidi-il ; in which case no set off" of u demand against the plaintiff 
 shall b(! allowed, unless as In-reinarier specified. 
 
 8. If the action be founded upon a contract (other than a negotiable promissory 
 note or bill of exchange) which has b.'un a.ssigued by the plaintiff', a demand exist- 
 ing against such [thuiitilV, or any as.signee of such contract, at the time of the as-
 
 APPENDIX. G43 
 
 Bigument thereof, and belongincr to tlie defendant in good faitli, before notice of 
 such assignment, may be set oti' to the amount of tiie [)l;iin(iff's debt, if tiic de- 
 mand Lie such as might have been set oil' against such plaiutifl", or such assignee, 
 while the contract belonged to him. 
 
 9. If the action be upon a negotiable promissory note, or bill of exchange, whicli 
 has been assigned to the plaintifi' afler ii became due, a set-ofT to the amount of the 
 plaintitT's debt may be made of a demand existing against any person or persons 
 who shall have assigned or transferred such note or bill after it became due, if the 
 demand be such as might have been set off against the assignor, while the note or 
 bill belonged to him. 
 
 10. If the plaintiff be a trustee for any other, or if the suit be in the name of a 
 plaintitl'who has no real interest in the contract upon which the suit is founded, so 
 much of a demand existing against those whom the plaintiff rejiresents, or for 
 whose benefit the action is brought, may be set off, as will satisfy the plaintiff's 
 debt, if the same might have been set off in an action brought by those beneficially 
 interested. 
 
 11. But if such action be brought by tlie assignee of an insolvent, imprisoned, 
 absent, concealed, or absconding debtor, no set-off shall be allowed of any debt, un- 
 less in the cases provided in the fifth chapter of the second part of the Revised 
 Statutes. 
 
 (Sec. 53.) To entitle a defendant to a set-cff, he must plead or give notice of the 
 same, specifying the nature of his claim, with reasonable certainly, at the time of 
 joining issue on a question of fact upon the merits of the cause. 
 
 (Sec. 53.) If the amount of the set-off duly established be equal to the plaintiff's 
 debt, judgment shall be entered for the defendant, with costs; if it be less than 
 the plaintiff 's debt, the plaintiff shall have judgment for the residue only, with 
 costs. If it be more than the plaintifi''s debt, and the balance found due to the de- 
 fendant from the plaintiff in the action be one hundred dollars or under, judgment 
 sliall be rendered for the defendtint for the amount thereof, with costs ; and execu- 
 tion shall bo awarded as upon a judgment in a suit brought by him ; but no such 
 judgment shall be rendered against the plaintiff when the contract, which is the 
 subject of the suit, shall have been assigned before the commencement of such suit, 
 nor for any balance due from any other person than the plaintiff in the action. 
 
 (Sec 54.) If the balance found due to the defendant exceed one hundred dol- 
 lars, the Justice shall set oft' so much of the defendant's demand against the jilain- 
 tiff's debt as will be sufficient to satisfy it, if required to do so by the defendant, and 
 shall render judgment for the defendant for his costs; but if the defendant shall 
 not require such set-off, the Justice shall enter judgment of discontinuance for the 
 defendant, with costs ; and the defendant may thereafter sue for and recover his 
 demand in any court having cognizance thereof. 
 
 (Sec. 55.) If, upon the trial of a cause, it shall appear that the amount of the 
 plaintiff's claim, together with the demands set off by the defendant, according to 
 the preceding provisions, exceed fuur hundred dollars, judgment of discontinuance 
 shall be rendered against the plainlitT, with costs. 
 
 (Sec. 56.) In suits brought by executors or administrators, the defendant may 
 set off demands existing again.st their testators or intestates, and belonging to the 
 defendant, at the time of their death, in the same manner as if the action had been 
 brought by, and in the name of the deceased. 
 
 (Sec. 57.) Whenever a set-off is estahlishcd in a suit brought by executors or ad- 
 ministrators, the judgment shall be against them in their representative character, 
 and shall be evidence of a debt established, to be paid in the course of administra- 
 tion ; but execution shall not issue thereon, until directed by the surrogate, who 
 granted letters testamentary or of administration. 
 
 (Sec. 58.) If a defendant neglect to plead, or give notice of any set-off, which, 
 according to the preceding provisions, might have been allowed to him, on tlie trial 
 of the cause, he shall be forever thereafter precluded from maintaining any action 
 to recover the same, or any part thereof. And if the demand, which might have 
 been set off, consisted of a negotiable note or bill of exchange, no action shall be 
 maintained thereon by any person who may derive title thereto, from or through 
 the defendant. 
 
 (Sec. 5:L But the last preceding section shall not extend to the following cases : 
 
 1. When the set-off shall be one hundred dollars more than the judgment which 
 the plaintiff shall have recovered. 
 
 2. When the set-off consisted of a judgment in favor of the defendant, or belong-
 
 544 APPENDIX. 
 
 ing to him, rendered before llie commencement of the suit in which the same might 
 have been set off. 
 
 3. Wlien a set-ofF shall have been claimed by him, and a balance exceeding one 
 hundred dollars shall have been found in his favor, the defendant may maintain an 
 action for such part of his demand as was not allowed to him as a set-oli' 
 
 4. When the suit was commenced against the defendant by attachment, and he 
 did not personally appear in such suit. 
 
 5. Claims foi unliquidate<l damages which could not be set off on the trial of tlie 
 cause, according to the preceding provisions. 
 
 6. Claims in suit in any other court at the time of the commencement of the 
 suit before the Justice. 
 
 9. Of Adjournments. 
 
 2 Revised Statutes, 335. (Sec. 68) At the time of the return of eith.er a sum- 
 mons or attachment, or of joining issue without process, a Justice may, in his dis- 
 cretion, and with or without the consent of parlies, adjourn the cause not exceeding 
 eight days. 
 
 (^ec 69.) A Justice shall in no case adjourn a cause commenced by warrant, on 
 his own motion ; nor shall lie exercise that right in a suit commenced by summons 
 or attachment at any other time than on the return of such sumnions or attach- 
 ment. 
 
 (Sec. 70.) At the time of the return of a summons or attachment, or the join- 
 incr of issue without process, the Justice shall, on the application of the plaintiiF, 
 adjourn the cause to some time to be fixed by the Justice, not exceeding eight days 
 thereafter. But such adjournment shall not be granted, unless the |)lairitifF or his 
 attorney shall, if required by the defendant, make oath that he cannot, for want of 
 some material testimony or witness safely to proceed to trial. 
 
 (.-^cc. 71.) No adjournment of a cause commenced by warrant, issued at the suit 
 of a non-resident plainiitF, shall be allowed, unless in the following cases: 
 
 J. On the consent of the parties; or 
 
 2. On the application of the defendant, supported by his oath, that lie has a 
 good defence to the action, and that he is not ready to proceed to the trial thereof; 
 and in such case it shall not be granted, unless the defendant will consent that any 
 witness on the part of the plaintifT, who shall be then attending, may be then ex- 
 amined on oath by such Justice, his testimony reduced to writing, certified by the 
 Justice, and left with him to be read on the trial of the cause ; or 
 
 3. On the application of the plaintiff, supported by his oath, that on account of 
 the absence of some material witness or testimony, he cannot then safely proceed 
 to the trial of the cause. 
 
 (Sec. 72.) If a cause commenced by warrant be adjourned upon the application 
 of the defendant, he shall continue, during the time of iidjournment, in the custody 
 of the constable, unless he shall give the security hereinafter directed to be given 
 in cases of adjournment. 
 
 (Sec. 7.<.) If such cause be adjourned on the consent of both parties, or if it be 
 adjourned on the application of the plaintifT, the defendant shall be discharged from 
 custody; but the cause shall not be discontinued by such discharge ; and at the 
 adjourned day the same proceedings shall be had as on the return of a summons 
 personally served. 
 
 (Sec. 74.) Tiie first adjournment of a cause commenced by warrant shall be to 
 a day not less than three, nor more than twelve days thereafter, unless the parties 
 and Justice shall otherwise agree. 
 
 (Sec. 75) In all cases, (other than where the suit sliall have been commenced 
 by warrai.t, at the suit of a non-resident ]daintilT',) the cause shall be adjourned on 
 the application of (lie defendant, on his complying with the following requisitions: 
 
 1. 'liie application must he made at liio lime of joining issue. 
 
 2. If n qiiired hy the plaii.lill" (jr the Jusiicc, the (K leiuiant shall make oath that 
 he cannot safi ly iirocced to trial, lor the want of some material testimony or wit- 
 ness, to be !pi cificd hy him. 
 
 3. If required by the plaintilV, he siiall give security, as hereinafter directed. 
 Such adjournment shall be for such reasonable time as will enable tiie defendant 
 
 to procure such lehlimony or witness, wol exceeding ninety days. 
 
 (Sec 7(J.) In nil ca.seH, a deferdant shall also bo entitled to a further adjourn- 
 ment, upon giving security, if required, as is directed in the next succeeding sec-
 
 APPENDIX. G45 
 
 tiou, ami upon jiroving, by lii-i own oath, or otlicrwise, to the satisfaction of tiie Jus- 
 tice, liiat lie cannot safely proceed to trial for the want of some material testimony 
 or witness, and that he has used due diligence to ohtain such tesiimony or witness. 
 
 (Sec. 77 ; Tlie security requireci by any of the preceding sections to be given 
 by a defendant, shall be a bond, in the penalty of one hundred dollars, to the plaiii- 
 tifFin the action, with such surety as the Justice sshall approve, conditioned that in 
 case judjrinent shall be given against such defendant, at the adjourned day, or at 
 anytime thereafter, and execution be issued against his person, he will render him- 
 self, upon such executon, before the return thereof; or in default thereof, that he 
 or his surety will pay the judgment so recovered, with interest ; but if any bond 
 shall have been given upon any prior adjournment, it shall not be necessary to ex- 
 ecute a new bond upon u subsequent adjournment, unless such bond be required 
 by the Justice, or by the bail of such defendant in such prior bond. 
 
 (Sec. 78.) In any suit brought upon such bond, the plaintiff shall not be entitled 
 to recover, unless he shows an execution upon a judgment obtained in tlie suit in 
 which such adjournment vi'as had, duly issued within ten days after the time when, 
 by law, the same could be issued against the person of the del'endant, and a return 
 thereon that such defendant could not be found. 
 
 (Sec. 79 ) No adjournment shall be allowed without the agreement of the par- 
 lies to a time beyond ninety days from the joining of the issue in the suit. 
 
 (Sec. bO.) No adjournment shall be allowed in any case to a party applying 
 therefor, who shall have seen the account or demand of the opposite party, unless 
 such applicant, if required, shall exhibit his account or demand, or state the nature 
 thereof, as far forth as may be in his power, to tlie satisfaction of the Justice. 
 
 10. Of Compelling tTie Attendance of Witnesses. 
 
 2 Revised Statutes, 337. (Sec. 81.) Aisy Justice of the Peace may issue sub- 
 poenas to compel the attendance of witnesses to give evidence on any trial depend- 
 ing before himself, or any other Justice. Such subpoena shall be valid to compel 
 the attendance of a witness being in the same county where the cause is to be 
 tried, or being in an adjoining county ; and in no other case. 
 
 (Sec. 82 ) A Justice shall not issue any subpoena to compel the attendance of 
 witnesses before another Justice in any suit, unless the person applying shall prove, 
 by his own oath, or the oath of some other person, that such suit is actually de- 
 pending before such other Justice. 
 
 (Sec 83 ) A subpoena may be served either by a constable or any other person ; 
 and it shall be served by reading the same, or stating the contents to the witness, 
 and by paying or tendering the fees allowed by law for one day's attendance of 
 such w tness 
 
 (Sec. 84.) Whenever it shall appear, to the satisfaction of the Justice, by proof 
 made before him, that any person duly subpoenaed to appear before him in any 
 cause, shill have refused or neglected, without just cause, to attend as a witness, 
 in conformity to such subpoena, and the party in whose behalf such witness shall 
 have been subpoenaed shall make oath that the testimony of such witness is ma- 
 terial, the Justice shall have power to issue an attachment to compel the attend- 
 ance of such witness. [The proof required to obtain an attachment for a vi'itness 
 in any suit before a Justice of the Peace, by section eighty-three of chapter second, 
 part third, of the Revised Statutes, may be made by the affidavit of the party in 
 the suit applying for such attachment, or by other competent testimony, to the 
 satisfaction of the Justice before whom such suit is pending.] 
 
 (Sec. 85 ) Every such attachment shall be executed in the same manner as a 
 warrant ; and the fees of the officers for issuing and serving the same shall be paid 
 by the person against whom the same shall have been issued, unless he shall show 
 reasonable cause, to the satisfaction of the Justice, for his omission to attend ; in 
 which case, the party requiring such attachment shall pay all costs of such attach- 
 ment, and the service of the .same. 
 
 (Sec. 86.) Every person duly subpcenaed as a witness, who shall not appear, or 
 appearing, shall refuse to testify, shill forfeit, for the use of the poor of the town, 
 for every such non-appearance or refusal, (unless some reasonable cause or excuse 
 shall be shown, on his oath, or the oath of some other person,) such fine, not less 
 than sixty-two cents, nor more than ten dollars, as the Justice before whom prose- 
 cution therefor shall be had, shall think reasonable to impose.
 
 646 APPENDIX. 
 
 (Sec. 87.) Such fine may be imposed by the Justice, if the witness be present, 
 and iiave an opportunity of being heard against the imposition thereof. 
 
 (Sec. b8.) The Justice imposing any fine shall make up and enter in his docket 
 a minute of the conviction, and of the cause thereof, and the same shall be deemed 
 a judgment, in all respects, at the suit of the overseers of the poor of the town. 
 
 (Sec. b9.) Upon the impo.-ition of such fine, and in default of payment thereof, 
 with costs, the Justice slmll forthwith issue an execution to any constable of the 
 county, directing him to levy such fine, with costs, of the goods and chattels of the 
 delinquent, — and for want thereof, to take and convey him to the jail of the county, 
 there to remain until he shall pay such fine and costs ; and the keeper of such jail 
 is hereby required to keep such delinquent in close custody in such jail, until the 
 fine and costs be paid ; but such imprisonment shall not exceed thirty days. 
 
 (Sec. 90.) When the money shall be collected on such execution, the constable 
 shall return the same to the Justice, and such Justice shall pay over the amount of 
 the fine impo.-ed to the overseers of the poor of the town, for the use of the poor. 
 
 (Sec 91.) Every person subpoenaed, as aforesaid, and neglecting or refusing to 
 appear or testify, shall also be liable to the party in whose behalf he shall have 
 been subpoenaed, for all damages which such party shall sustain by reason of such 
 non appearance or refusal. 
 
 11. Examination of Witnesses. 
 
 Code. (Sec. 398.) No person ofiered as a witness shall be excluded by reason of 
 his interest in the event of the action. 
 
 (Sec 399.) The last section shall not apply to a parly to the action, nor to any 
 person for whose immediate benefit it is prosecuted or defended, nor to any assignor 
 of a thing in action, assigned for the purpose of making him a witness. 
 
 12. Examination of Parties. 
 
 Code. (.Sec. 390.) A party to an action may be examined as a witness, at the 
 instance of the adverse party, or of any one of several adverse parties, and for that 
 purpose may be compelled in the same manner, and subject to the same rules of 
 examination as any other witness to testify, eitlier at the trial or conditionally, or 
 upon commission. 
 
 (Sec. 391.) The examination, instead of being !iad at the trial, as provided in the 
 last section, may be had at any time before the trial, at the option of the party 
 claiming it, before a judge of the court or a county judge, on a previous notice to 
 the parly to be examined, and any other adverse party, of at least five days, un- 
 less, for good cause shown, the judge order otherwise. But the party to be exam- 
 ined shall not be compelled to attend in any other county than that of his residence, 
 or where he may be served with a summons for his attendance. 
 
 (Sec. 392.) The party to be examined, as in the last section provided, may be 
 com[)elled to attend in the same manner as a witness who is to be examined condi- 
 tionally ; and the examination shall be taken and filed by the judge in like man- 
 lier, and may bo read by either party on the trial. 
 
 (Sec. 3.93.) The examination of the party, thus taken, may be rebutted by ad- 
 verse testimony. 
 
 (Sec. 394.) If a party refuse to attend and testify, as in the last four sections 
 provided, he may be punished as for a conteinptj and his complaint, answer, or re- 
 ply, may be stricken out. 
 
 (Sec. 39.5 ) A party examined by an adverse ])arty, as in this chapter provided, 
 may be examined on his own behalf in res|iect to any matter [lertiiieut to the 
 JBBUO. But if he testify to any new matter not responsive to the inquiries put to 
 liim by the adverse party, or necessary to explain or qualify his aiiwers thereto, or 
 discharge, wIk^ii his aiiswcr.s would charge himself, such adverse party may offer 
 himself as a witness on his own behalf in respect to such new matter, and shall be 
 80 received. 
 
 (See 39fi.) A person for whose immediate bciicfil the action i.f [irosocuted or de- 
 fended, though tiol a party to the action, may be examined as a witness in the samo 
 manner, and Hubject to the samo rules of examination as if he were named as a 
 
 ^Sec. 397.) A party may bo examined on behalf of his co-plaintiff, or a co-de- 
 feudunt ; but the examiiialiuii thus taken Mhall not bo used on behalf of the party
 
 APPENDIX. 647 
 
 examined. And wlienever, in the case mentioned in sections ."iOO and 391, one of 
 several ()lainliffs or defenduntH, wlio are joint contractors, or are united in interest, 
 is examined by tlie adverse party, the other of snch plaintiffs or defendants may 
 offer themselves as witnesses to the same cause of action or defence, and shall be 
 so received. 
 
 13. Admission or Inf>pecf.ion of Writings-'^' 
 
 Code. (Sec. 388.) Either party may exhibit to the other, or to his attorney, at 
 any time before the trial, any paper material to the action, and request an adiiiis- 
 fion in writing of its jjenuineness. If the adverse party, or his attorney, fail to 
 give the admission within four days after the request ; and if the party exhibiting 
 the paper be afterwards put to expense in order to prove its genuineness, and the 
 same be finally proved or adaiitied on the trial, snch expense, to be ascertained at 
 the trial, shall bo paid by the [larty refusing the admission, unle.ss it appear, to the 
 satisfaction of the court, that there were good reasons for the refusal. The court 
 before wliich an action is pending, or a judge or Justice thereof, may, in their dis- 
 cretion, and u|)on due notice, order either party to give to the other, within a spe- 
 cified time, an inspection and copy, or permission to take a copy, of any books, 
 papers, and documents in his possession or under his control, containing evidence 
 relating to the merits of the action, or the defence therein. If compliance with the 
 order be refused, the court, on motion, may exclude the paper from being given 
 in evidence, or punish the party refusing, or both.* 
 
 14. Of the Trial of Issues of Fact, and the Incidents thereto. 
 
 Code (Sec. 248.) Issues arise upon the pleadings when a fact or conclusion of 
 law is maintained by the one party, and controverted by the other. They are of 
 two kinds: 
 
 1. Of law ; and 
 
 2. Of fact. 
 
 (Sec. 332.) A trial is the judicial examination of the issues between the parties, 
 whether they be issues of law or of fact. 
 
 2 Revised Statutes, 339. (Sec. 92.) Whenever issue shall have been joined in a 
 suit, before a Justice, if no jury shall have been demanded by cither party, the Justice 
 shall proceed to try snch issue, to hear the proofs and allegations of the parties, and 
 to determine the same, according to law and equity, as the very right of the case 
 may appear. 
 
 (Sec. 93.) Whenever a defendant, wlio has been personally served with a sum- 
 mons, or who shall have procured an adjournment without having joined issue, 
 shall neglect to appear and join issue, the Justice sliall proceed to hear the proofs 
 and allegations of tlie plainlifF, and determine the same, as above prescribed. 
 
 (Sec. 94.) After issue joined, and before the Justice shall proceed to an investi- 
 gation of the merits of the cause, by an examination of a witness, or the hearing 
 of any other testimony, either of the parties, or the attorney of either of them, 
 may demand of the Justice that the cau.se be tried by a jury. 
 
 (Sec. 95.) Upon the demand of a trial by jury, the Justice shall issue a venire 
 directed to any constable of the county wherein the cause is to be tried, command- 
 ing him to summon twelve good and lawful men, in the town where such Justice 
 resides, qualified to serve as jurors, and not exempt from serving on juries in courts 
 of record, who shall be in no wise of kin to the plaintiff or defendant, nor interested 
 in snch suit, to appear before snch Justice at a time and place to be named therein, 
 to make a jury for the trial of the action between the parties named in such 
 venire. 
 
 (Sec. 9G.) The parties may agree upon any number of jurors less than six, to 
 try the cause ; and the Justice shall direct, in the venire, the summoning of so 
 many juror.s as shall be double the number so agreed upon. 
 
 (Sec. 97.) If the action in which such issue shall be joined be between two 
 towns, the venire shall direct the constable to summon twelve good and lawful men 
 
 ' It will be perceived that this and the next preceding title are mainly applicable to courts of 
 record.
 
 648 APPENDIX. 
 
 of the comity, qualified and not exfmpt, and not interested, as herein before pro- 
 vided, to make a jury for tlie trial of sucli action. 
 
 (Sec 98.) The Justice issuinfr a venire sliail deliver, or cause the same to be de- 
 livered, to some constable of the county disinterebted between the parties, and 
 against whom no reasonable objection shall have been made by either party. 
 
 (Sec. 99.) The constable to whom any veniie shall be delivered, shall exe- 
 cute the same fairly and impartially, and shall not summon any person whom 
 he has reason to believe biassed or prejudiced for or against either of the parties. 
 He shall summon the jurors personally, and shall make a list of the persons sum- 
 moned, which he sliall certify and annex to the venire, and return to the Justice. 
 
 (Sec. 100.) At the trial of the cause, the names of the persons so returned, and 
 who shall appear, shall be respectively written on several and distinct pieces of pa- 
 per as nearly of one size as may be ; and the constable, in the presence of the Jus- 
 tice, shall roll up or fold such pieces of paper, as nearly as may be, in the same 
 manner, and put them together in a box or some convenient thing. 
 
 (Sec. 101) The Justice shall then draw out six (or such number as the parties 
 may have agreed upon) of such papers, one after another; and if any of the per- 
 sons whose names shall be so drawn shall be challenged and set aside, then such 
 further number shall be drawn as will make up the number required, after all legal 
 causes of challenge allowed by the Justice. The persons so drawn, appearing and 
 approved as iiidiflerent. shall compose the jury to try the cause. 
 
 (Sec. 102.) If a sufficient number of competent jurors shall not be drawn, the 
 Justice may supply the deficiency by directing the constable to summon any of the 
 bystanders or others who may be competent, and against whom no cause of chal- 
 lenge shall appear, to act as jurors in the cause. 
 
 (Sec. 103.) If the constable, to whom the venire shall have been delivered, do 
 not return the same as thereby required, or if a full jury shall not be obtained 
 in the manner declared in the preceding sections, the Justice shall issue a new 
 venire. 
 
 (Sec. 104 ) To each juror the Justice shall administer an oath or affirmation, 
 
 well and truly|to try the matter in difference between , plaintiff, and , 
 
 defendant, and, unless discharged by the Justice, a true verdict give, according to 
 evidence. 
 
 (Sec. 105.) After the jury shall be duly sworn, they shall sit together, and hear 
 the proofs and allegations of the parties, which shall be delivered publicly in their 
 presence. 
 
 (Sec. 106.) No ex jxirte affidavit of any person shall be allowed or given in evi- 
 dence on any trial, either with or without a jury, unless the parties agree to allow 
 the same. 
 
 (Sec. 107.) A party in the suit, or having an interest in the verdict, may be a 
 witness to prove the death or absence, beyond the reach of a subpoena of the Jus- 
 tice, of a subscribing witness to, or the loss of any instrument which shall come in 
 question on the trial, in order to introduce other proof of the execution or contents 
 of such instrument, — but in no other case, without the consent of the parlies. 
 
 (Sec. 108.) If a witness, on being produced, shall be objected to as incompetent, 
 such objection shall be tried and determined by the Justice. Evidence may be 
 given in support of, or against such objection, as in other cases ; or the proposed 
 witness may be examined on oath by the party objecting, — and if so examined, no 
 other testimony shall be received from either party as to the competency of such 
 witness. 
 
 (Sec. 109.) Every per.son offered as a witness, before any testimony be given by 
 him, shall be duly sworn or affirmed, that the evidence he shall give relating to the 
 
 matter in difference between , plaintiff, and , defendant, shall be the 
 
 truth, the whole truth, and nothing but the truth. 
 
 (.Sec. 110) After hearing the proofs and allegations, the jury shall be kept to- 
 gether in some convenient place, under the charge of a constable, until they all 
 agree upon tlieir verdict; and for that purpose, the Justice shall administer to such 
 constable the following oath : " Yon swear, in the presence of Almighty (Jod, that 
 you will, to the utmost of your ability, keep the [jcrsons sworn tis jurors on this 
 trial together, in sonie private and convenient |/lac?, without any meat or drink, 
 except sncli »» hIiuII be ordered by me ; that yon will not suiler any cominunica- 
 tion, firally or otherwise, to be niiido to tbein ; that you will not communicate 
 with thorn yourself, orally or oiherwise, imicss by my order, or to ask them whether 
 they have agreed on their verdict, inilil they shall be discharged ; and that you
 
 APPENDIX. 649 
 
 will not, before lliey rentier llieir verdict, communicate to any person the state of 
 their deliberations or the verdict they have agreed on." 
 
 (Sec. 111.) When the jurors have agreed on their verdict, they shall deliver the 
 same to the Justice publicly, who sh.ill enter it in his docket. Previous to receiv- 
 ino- it, the Justice s'all call the plaintiff. If he be absent, and iio one appear for 
 him, the verdict shall not be received. 
 
 (Sec. 112) Whenever a Justice shall be satisfied that a jury, sworn in any cause 
 before him, cannot agree on their verdict, after having been out a reasonable time, 
 he may discharge them, and shall issue a new venire, returnable within forty-eight 
 hours, unless the parties shall have consented that the Justice may render judg- 
 ment on the evidence already before him, which, in such cases, he may do. 
 
 (Sec. 113.) Every person who sliall be duly summoned as a juror, and shall not 
 appear, nor render a reasonable excuse for his default — or appearing, shall refuse to 
 serve — shall be .subject to the same fine ; (o be pro.secuted for, and collected, with 
 costs, in the same manner, and applied to the same use as hereinbefore provided in 
 respect to a person subpoenaed as a witness, and not appearing, — or appearing, and 
 refusing to testify. 
 
 15. Of Judgments, and filing Transcripts thereof 
 
 Code. (Sec. 24.5.) A judgment is the final determination of the rights of the 
 parties in the action. 
 
 2 Revised Statutes, 341. (Sec 114.) A Justice of the Peace may enter a judg- 
 ment, by confession of the defendant, in any case where the debt or damages con- 
 fessed shall not exceed two hundred and fifty dollars, with such stay of execution 
 as may be agreed by the parties interested in such judgment. 
 
 (Sec 115.) No confession shall be taken, or judgment rendered thereon, unless 
 the following requisites be complied with : 
 
 1. The defendant must personally appear before the Justice. 
 
 9. The confession shall be in writing, signed by the defendant, and filed with the 
 Justice. 
 
 3. If the judgment be confessed for a sum exceeding fifty dollars, the confession 
 shall be accompanied by the affidavit of the defendant and plaintiff, stating that 
 such defendant is honestly and justly indebted to the plaintiff in the sum named in 
 such affidavit, over and above all just demands which he has against him, and that 
 such confession is not made or taken with a view to defraud any creditor. 
 
 (Sec. 116.) Every judgment confessed without a compliance with the provisions 
 of the last preceding section, shall be void as against all persons, except a pur- 
 chaser, in good faith, of any goods or chattels, lands or tenements, under such judg- 
 ment, and except the defendant making such confession. 
 
 (Sec. 117.) Any judge of the county may, on the application of any creditor 
 of the person against whom any jud^jment shall have been recovered, upon con- 
 fession, or otherwise, that shall be a lien on tht^'real estate of the defendant, upon 
 sufficient cause shown by affidavit that such judgment was obtained fraudulently, 
 with intent to defraud creditors, grant an order to stay all proceedings on taich 
 judgments, until the further order of the county court; and that court shall have 
 the like power to inquire into the consideration of such judgment, and to set aside 
 the same, or to make any other order in the premises, as if the judgment had been 
 originally rendered in that court. 
 
 (Sec. 118) If an execution shall have been issued on such judgment, and the 
 judgment be established, the officer having such execution may proceed thereon to 
 collect the amount of such judgment in the same manner as if the proceedings had 
 not been stayed, and within such time as the court shall direct. 
 
 (Sec. 118.) If, previous to joining issue in any cause, (except where the defend- 
 ant shall have been arrested by warrant,) the defendant shall make affidavit that 
 the Justice before whom the same is pending is a material witness for such defend- 
 ant, without whose testimony he cannot safely proceed to the trial, judgment of 
 discontinuance shall be entered, but without costs, against either party. 
 
 (Sec. 120.) Judgment of nonsuit, with costs, shall be rendered against a plain- 
 tiff prosecuting a suit before a Justice of the Peace, in the following cases : 
 
 1. If he discontinue or withdraw his action. 
 
 2. If he fail to appear on the return of any process, within one hour after the 
 same was returnable.
 
 650 APPENDIX. 
 
 3. If, after an adjournment, he fail to appear within one liour after the time to 
 which the atljouinment shall have been made. 
 
 4. If he become nonsuited on the trial. 
 
 5. If he shall not appear on the coming in of the jury to lieur their verdict. 
 (Sec. 121.) Judgment for the defendant, with cost.', .'•hall be rendered whenever 
 
 a trial has been had, and it be found by verdict, or by the decision of the Justice, 
 that the plaintiff has no cause of action against the defendant. 
 
 (Sec. 122. ) If, upon the trial of the cause, or upon an ex parte hearing, in those 
 cases where it may be had upon the defendants failing to appear, a sum, in debt or 
 damages, shall be found in favor of the plaintiff, then judgment shall be rendered 
 against the defendant for such debt or damages, and the costs. 
 
 'Sec 123.) If process shall have issued against two or more persons jointly 
 indebted, and shall have been personally served upon either of the defendants, the 
 defendant who may have been served with process shall answer to the plaintiff; 
 and the judgment in such case, if rendered in favor of the plaintiff, shall be against 
 all the defendants in the same manner as if all had been served with proce.ss ; but 
 execution shall issue only in the manner hereinafter directed. 
 
 (Sec. 124 ) Such judgment shall be conclusive evidence of the liability of the 
 defendant who was personally served with process in the suit, or who appeared 
 therein ; but against every other defendant, it shall be evidence only of the extent 
 of the plaintiff's demand after the liability of such defendant shall have been esta- 
 blished by other evidence. 
 
 (Sec. 125.) In cases where the plaintiffshall be nonsuited, discontinue, or with- 
 draw his action, and where judgment shall be confessed, and in all cases where a 
 verdict shall be rendered, or the tefendant shall be in custody at the time of the 
 hearing of the cause, the Justice shall forthwith render judgment, and enter the 
 same in his docket. In all other cases, he shall render judgment, and enter the 
 same in his docket, within four days after the cause shall have been submitted to 
 hiin for his final decision. 
 
 (Sec. 12G.) When a balance shall be found in favor of a party, either by the ver- 
 dict of a jury, or upon a hearing before the justice, exceeding the sum for which 
 the justice is authorized to give judgment, such party may remit, and release the 
 excess, and may take judgment for the residue. 
 
 (Sec. 127.) Whenever a judgment shall be rendered by a justice against any 
 party, unless herein otherwise provided, it shall be with the costs of the suit. But 
 the whole amount of all the items of such costs, except charges for the attendance 
 of witnesses from another county, shall not, in any case, exceed five dollars. 
 
 Code (Sec. 63.) A justice of the peace, on the demand of a party in whose 
 favor he shall have rendered a judgment, shall give a transcript thereof, which may 
 be filed and docketed in the othce of the clerk of the county, where the judgment 
 was rendered. The time of the receipt of the transcript by tlie clerk, shall he noted 
 thereon, and entered in the docket ; and, from that time, the judgment shall be a 
 judgment of the county court. A certified transcript of such judgment may be filed 
 and docketed in the clerk's office of any other county, and with the like effect in 
 every respect as in the county where the judgment was rendered; except that it 
 shall be a lien only from the time of filing and docketing the transcript. IJut no 
 such judgment for a less sum than twenty-five dollars, exclusive of costs, hereafter 
 docketed, shall be a lien upon, or enforced against real property. 
 
 IG. Of Executions. 
 
 2 Revised Stati;tks, 315. (Sec. 133.) Upon any judgment being rendered 
 before a ju.sticc, ho shall issue execution at the time and m the manner hereinafter 
 prescribed. 
 
 (Sec. VM.) It .shall Ix- directed to any constable wilhiu the same county, and 
 Bhall command him to levy the debt or damages, and costs, of the goods and chattels 
 of the person against whom the same shall be issued, (excepting such goiuls and 
 chatlelH as are by law exeni|iled from execution,) and to bring the money at a cer- 
 tain lime and ])lacu therein to be mentioned, before such ju.stice, to render to the 
 parly wlio recovered the same ; and if execution bo isHUed against a male person, 
 it Hliall command the couKt.ililo that if no goods or chattels can be found, or not 
 Bulficient to satisfy sueli execution, to take the body of the person against whom
 
 APPENDIX. 651 
 
 the execution sliall be issued, and convoy him to (lie common jail of the county, 
 there to reniuin until such execution shall be satisfied and |)aid. 
 
 (Sec. 141 ) When a judgment shall be obtained against joint debtors, upon pro- 
 cess which was not served upon all the defendants, execution may bo issued in form 
 against all ; but the justice shall indorse thereon the names of sucii of the defen- 
 dants wlio did not appear in ihe suit, as were not served with process of warrant, 
 summons, or attachment. 
 
 (Sec. 142.) Such execution shall not be served upon the persons of the defendants 
 whose names are so indorsed thereon ; nor shall it be levied on the sole properly of 
 any such defendant ; but it maybe collected of the personal property of any such 
 defendant, owned by him as a partner of the other defendants appearing or served 
 with process, or with any of thein. 
 
 Code. (Sec. G4.) Execution may be issued on a judgment heretofore or hereafter 
 rendered in a justice's court, at any time within five years after the rendition thereof, 
 and shall be returnable sixty days from the date of the same. 
 
 If the judgment be docketed vi'itli the county clerk, the execution shall be issued 
 by him to the sheriff of the county, and have the same eflect, and be executed in 
 the same manner as other executions and judgments of the county court, except as 
 provided in section G.3. 
 
 2 Revised Statutes, 346. (Sec. 143 ) Whenever any recovery shall be had 
 before a justice of the peace for any penally or forfeiture incurred by violating any 
 provision contained in the ninth title of the twentieth chapter of the first part of the 
 Revised Statutes, which is entitled, " Of Excise, and the regulation of taverns and 
 groceries ;" or for any penalty or forfeiture incurred by violating any provision con- 
 tained in the eleventh title of the same chapter, relating to fisheries, execution shall 
 issue thereon immediately, and the justice shall indorse upon such execution, the 
 cause for which such judgment was rendered ; and in case no goods or chattels can 
 be found to satisfy such execution, the constable having the same shall commit 
 such defendant to the jail of the county, and shall deliver to the keeper thereof a 
 certified copy of such execution and indorsement ; by virtue of which, such keeper 
 shall detain such defendant for a period not exceeding sixty days, without allowing 
 him the benefit of the liberties of such jail. 
 
 (Sec. 145.) If any execution be not satisfied, it may, from time to time, be re- 
 newed by the justice issuing the same, by an indorsement thereon to that effect, 
 signed by him, and dated when the same shall be made. If any part of such exe- 
 cution has been sati;;fied the indorsement of renewal shall express the sum due on 
 the execution. 
 
 (Sec 147.) If an execution be returned unsatisfied, in whole or in part, a further 
 execution for the amount remaining due may be issued. 
 
 (Sec. 148.) The constable after taking goods and chattels into his custody by 
 virtue of an execution, shall indorse thereon the time of levying the same, and im- 
 mediately give public notice by advertisement, signed by himself, and put up at 
 three public places in the city or town where such goods and chattels shall be taken, 
 of the time and place within such city or town, when and where, they will be ex- 
 posed to sale. Such notice shall describe the goods and chattels taken, and shall be 
 put up at least five days before the time appointed for the sale. 
 
 (Sec. 149.) At the time and place so appointed, if the goods and chattels be pre- 
 sent, and pointed out to the inspection and examination of the bidders, the constable 
 shall expose them to sale, at vendue, to the highest bidder. He shall return the ex- 
 ecution and pay tlie debt or damages, and costs levied, to the justice who isssued 
 the same, returning the overplus, if any, to the person against whom the execution 
 issued. 
 
 (Sec. 150.) No constable, or other officer, shall, directly or indirectly, purchase 
 any goods or chattels at any sale made by him upon execution ; but any such pur- 
 chase shall be absolutely void. 
 
 (Sec. 151.) For want of goods and chattels whereon to levy, the constable shall, 
 in the cases authorized by law, if the execution require it, take the body of the per- 
 son against whom the execution shall have issued, and convey him to the common 
 jail of the city or county, the keeper whereof is hereby required to keep such per- 
 son in safe custody in jail, until the debt, or damages, and costs shall be paid, or he 
 be thence discharged by due course of law.
 
 652 APPENDIX. 
 
 (Sec. 159.) No female shall be arrested or imprisoned, upon any execution is.sued 
 from a justice's court. 
 
 (Sec. 160 ) If a constable neglect to return an execution within five days after 
 the re! urn day thereof, the party in who.se favor the same was is^sued, may maintain 
 •in action a;^ainst such constable, and shall recover therein the amount of the exe- 
 cution, with interest from the time of the rendition of the judgment upon whicii the 
 same v^as issued ; and if a judg-inent be obtained in such suit against the constable, 
 execution shall immediately issue thereon. 
 
 (Sec. 161.) A constable shall not be liable under the preceding section, for not 
 serving and returning an execution upon which the defendant's exemj)tion shall 
 have been indorsed, if he duly collect and return the money payable by instalments, 
 or return the execution as to person or property, not found. 
 
 (Sec 162.) A constable shall not levy upon or sell any property, or imprison a 
 defendant, upon any execution, after the time limited therein for its return ; unless 
 such execution shall have been renewed. Nor shall any constable do any act under 
 a renewed execution after the expiration of the time or times for which the same 
 may have been renewed. 
 
 (Sec. 163.) The last section shall not apply to executions upon which proceedings 
 are stayed by an indorsement of the defendant's exemption, on the payment of 
 monthly instalments ; but such execution maybe collected as herein before pro- 
 vided. 
 
 (Sec. 164.) If moneys be collected by a constable upon an execution, and not 
 paid over by him according to law, an action may be maintained by the party en- 
 titled to such money in his own name, upon the instrument of security given by 
 such constable and his sureties, pursuant to the provisions of the second article of 
 the third title of the eleventh chapter of the first part of the Revised IStatutes ; and 
 in such suit the amount so collected, with interest from the time of collection, 
 shall be recovered. Execution simll be immediately issued upon the judgment in 
 such suit 
 
 (Sec. 165.) Whenever a transcript of a judgment in a Justices' Court shall have 
 been filed and docketed by the clerk of the county, all executions thereon shall be 
 issued by such clerk, under the seal of the court of the county ; and the power and 
 authority of the Justice, in respect to such judgment, shall cease. 
 
 (Sec. 170) The following property, when owned by any person being a house- 
 holder, shall be exempt from levy and sale under any execution ; and such articles 
 thereof as are moveable, shall continue so exempt, while the family of such jjcrson, 
 or any of them, may bo removing from one place of residence to another. 
 
 1. .All spinning wheels, weaving looms, and stoves put up or kept for use by the 
 family. 
 
 2. The family bible, family pictures, and school books, used by or in the family 
 of such person ; ami books not exceeding in value fifty dollars, which arc kept and 
 used as part of the family library. 
 
 .3. A seat or pew occupied by such person or his family in any house or place of 
 public worship. 
 
 4. All sheep to the number of ten, with their fleeces, and the yarn, or cloth man- 
 ufactured from the satne ; one cow, two swine, tke nece-ssary food for them ; all 
 necessary pork, beef, fi.sh, flour and vegetables actually provided for family use, 
 and necessary fuel for the use of the family, for sixty days. 
 
 5. All necessary wearing appurel, beds, bedsteads and bedding for such person 
 andjii-s family; arms and accoutrements required by law to be kejit by such per- 
 son ; necessary cooking utensils; one table, six chairs, six knives and forks, six 
 plate.s, six tea cups and saucers, one sugar dish, one milk pot. one tea pot and six 
 spoon.s, one crane and its appendages, one pair of andirons, and a shovel and tongs. 
 
 6. 'I"he tools and im|»leineiitH of any mechanic necessary to the carrying on of 
 his trade: hut the amount thereof shall not exceed twenty-five dollars in value. 
 
 In addition to the artich's now exempt by law from distress for rent, or levy 
 or sale under execution, there shall be exempted from such distress, and levy 
 and Hale, necessary household furniture, and working tools and team, owned by any 
 person buing a liou.teliolder, or having a fimily for which he jirovides, to the value 
 of not exceeding one hundred and fifiy dollar.s, |)rovidi(l that such exemption shall 
 not extend to any execution issu'-d on a demand for the jiinrhasc money of such 
 furniture, or IooIh, or team, or articles now ciiunieiated by law. [Laws, lb42, p. 
 193, sec. 1.]
 
 APPENDIX. 653 
 
 17. Of Appeals. 
 
 Code. (Sec. 323.) Wrils of error in civil actions, as they have heretofore existed, 
 are abolished, and the only mode of reviewing a judgment or order, in a civil ac- 
 tion, shall ho that prescribed by this title. 
 
 (Sec. 3:2().) The party appealing shall be known as the appellant, and the ad- 
 verse party as the respondent. But the title of the action shall not be changed in 
 consequence of the ajjpeal. 
 
 (Sec. 351.) All statutes now in force providing for the review of judgments in 
 civil cases rendered by courts of Justices of the Peace, by the Marine Court of the 
 city of New York, by the Justices' courts in the city of New York, by the Muni- 
 cipal Court of the city of lirooklyn, and by the Justices' courts of cities, and regu- 
 lating the practice in relation to such review, are rc|)ealed ; and hereafter, the only 
 mode of reviewing such judgments shall be an appeal, as prescribed by this 
 chapter. 
 
 t^Sec. 352.) When the judgment shall have been rendered by the Marine Court 
 of the city of New York, or by a Justice's court in that city, the appeal .shall be 
 to the Court of Common Pleas for the city and county of New York ; and when 
 rendered by any of the other courts enumerated in the last section, to the county 
 court of the county where the judgment was rendered. 
 
 (Sec. 353 ) The appellant shall, within twenty days after the judgment, make, 
 or cause to be made, an affidavit, stating the substance of the testimony and pro- 
 ceedings before the court below, and the grounds upon wliich the a])peal is founded. 
 
 (Sec. 354.) A copy of the atTidavit, and a notice of appeal, shall, within the 
 same time, be served on the Justice and on the respondent, if he be a resident of 
 the city or county, personally, or by leaving it at his residence with some person of 
 suitable age and discretion — or, if he be not a resident, on the attorney or agent, if 
 any, wiio is a resident of such city or county, who appeared for him on the trial. 
 
 (See. 355.) if the appellant desire a stay of execution of the judgment, he shall 
 give security as provided in the next_section. 
 
 (Sec. 35(5.) 'I'lie security shall be a written undertaking, executed by one or 
 more sufficient sureties, approved by the county judge, or by the court below, to 
 the etTect that if judgment be rendered against the appellant, and execution thereon 
 be returned unsatislied in whole or in part, the sureties will pay the amount unsat- 
 isfied. 
 
 (Sec. 357.) The delivery of the undertaking to the court below, shall stay the 
 issuing of execution ; or, if it has been issued, the service of a copy of the under- 
 taking, certified by the court below, upon the officer holding the execution, shall 
 stay further proceedings thereon. 
 
 (Sec 35y.) Where, by reason of the death of a Justice of the Peace, or his re- 
 moval from the county, or any other cause, the undertaliing on the appeal cannot 
 be delivered to him, it shall be filed with the clerk of the appellate court, and no- 
 tice thereof given to the respondent, or his attorney or agent, as provided in section 
 three hundred and fifty-four, it shall thereupon have the same effect as il delivered 
 to the Justice. 
 
 (Sec. 359.) When the affidavit and notice of appeal shall have been served, the 
 respondent may supply or correct material omissions or misstatements therein, by 
 an affidavit on his part, a copy of which shall be served on the Justice, and also 
 the attorney, if any, who prosecutes the appeal, or, if there be none, on the appel- 
 lant, within ten days after receiving notice of the appeal. 
 
 (Sec. 3G0.) The court below shall thereupon, after ten days, and within thirty 
 days after service of the notice of appeal, make a return to the appellate court of 
 the testimony, proceedings and judgments, and file the same, with the affidavits, in 
 the appellate court — and may be compelled to do so by attachment. But no Jus- 
 tice of the Peace shall be bound to make a return, unless the fee prescribed by the 
 last section of this chapter be paid on service of the notice of appeal. 
 
 (Sec. 3Gl.) When a Justice of the Peace, by whom a judgment appealed from 
 was rendered, shall have gone out of office before a return is ordered, he shall nev- 
 ertheless make a return in the same manner, and with the like etFect as if lie were 
 still in office. 
 
 (Sec. 302.) If the return be defective, the appellate court may direct a further 
 or amended return as often as may be necessary, and may compel a compliance 
 with its order by attachment.
 
 654 APPENDIX. 
 
 (Sec. 3fi3.) If a Justice of llie Peace, whose judgment is appealed from, shall 
 die, become insane, or remove from the state, the appellate court may examine wit- 
 nesses oil oath, to the facts and circuniistances of the trial or judgment, and deter- 
 mine the appeal, as if the facts had been returned by the Justice. If he shall 
 have removed to another county within the state, the appellate court may compel 
 him to make the return, as if he were still within the county where the judgment 
 was rendered. 
 
 (Sec. 364.) If a return he made, the appeal may be brought to a hearing at a 
 general term of the appellate court, upon a notice by either party of not less than 
 eicrht days. It shall be placed upon the calendar, and continue thereon without 
 further notice, until finally di.<posed of; but if neither party bring it to a hearing 
 before the end of the second term, the court shall dismiss the appeal, nnless it con- 
 tinue the same by special order for cause shown. 
 
 (Sec 365.) The appeal shall be heard on the original papers ; and no copy 
 thereof need be furnislied for the use of the court. 
 
 (Sec 366.) Upon the hearing of the appeal, the appellate court shall give judg- 
 ment according to the justice of the case, without regard to technical errors or de- 
 fects which do not atfect the merits. In giving judgment, the court may affirm or 
 reverse the judgment of the court below, in whole or in part, and as to any or all 
 the parties, and for errors of law or fact. 
 
 (Sec. 367.) To every judgment upon an appeal, there shall be annexed the affi- 
 davits or return on which it was heard, which shall be filed with the clerk of the 
 court, and shall constitute the judgment roll. 
 
 (Sec. 368 ) If the judgment be affirmed, costs shall be awarded to the respond- 
 ent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed 
 in part, the costs, or such part as to the court shall seem just, may be awarded to 
 either party. 
 
 (Sec. 369.) If the judgment below, or any part thereof, be collected, and be af- 
 terwards reversed, the appellate court shall order ihe amount collected to be re- 
 turned, with interest, from the time of collection. The order may be obtained 
 upon proof of the facts, made at or after the hearing, upon a previous notice of six 
 days. 
 
 (Sec. 370.) If, upon an appeal, a recovery be had by one party, and costs be 
 awarded to the other, the appellate court shall set off the one against the other, 
 and render judgment for the balance. 
 
 (.Sec. 371.) 'i'he following fees and costs, and no other, except fees of officers, 
 shall be allowed on appeal : 
 
 To the appellant on reversal, fifteen dollars. 
 
 To the respnndent on affirmance, twelve dollars. 
 
 To a Justice of the Peace, for his return, one dollar. 
 
 If the judgment ap|)ealed from be reversed in part, and affirmed as to the resi- 
 due, the amount of costs allowed to either party shall be such sum as the appel- 
 late court may award, not exceeding ten dollars. 
 
 If the appeal be dismissed for want of prosecution, as provided by section ^64, 
 no costs shall be allowed to either party. 
 
 18. Of Ihe Fees of Officers, and of Witnesses and Jurors. [2 R. S.] 
 To ihe Justice. 
 
 For a summons, nine cents ; when judgment shall bo rendered against the de- 
 fendant, no more than two suumions and the service of the two summons shall be 
 iiicludc.-d in the costs of such judgment. 
 
 l-'or a warrant, twelve and a half cents. 
 
 For an attachment or execution, nineteen cents. 
 
 For every adjournment, except such as shall bo made by the Justice without the 
 motion of cither party, nine cents. 
 
 For a Kubporna, six cents. 
 
 For admini.stering any oath, six cents. 
 
 For (iling every p.ipc-r rcrinircil to be filed with him, three cents ; but no fee shall 
 be allowed for (iling any wnttm (lcclarali(Mi, plea, or otiier written pleading, or for 
 filing any process issued in any cause. 
 
 For a venire, ninclccMi cents. 
 
 For swearing u juryj twelve and a half cents.
 
 APPENDIX. 655 
 
 For piiterinrr a judgment, twenty-five cents. 
 
 For every Loud, or otlier wiitt,f n security, directed to be iHkeu by any of the pro- 
 visions of tiiis title, if dr;ifted by tlio Justice, twcntyfivo cents;. 
 
 For making a return, uj)on an appeal, seventy-five cents.* 
 
 For every order for a commissinn to examine witnesses, attending, settling, and 
 certifying interrogatories to be annexed to a commission, fifty cents. 
 
 To one or more commissioners, for taking and returning testimony in tlie whole, 
 one dollar. 
 
 For every subpoena or oath, six cents. 
 
 The following items may also be taxed in cases where a commission is issued. 
 
 For serving subpoenas and attendance of witnesses before the commissioners, the 
 same fees as are allowed by law in Justices' conrts. 
 
 For postage for sending and returning commission, with testimony, not to exceed 
 one dollar. 
 
 To Witnesses. 
 
 From the same county sub[iGBnaed and attending, twelve and a half cents ; from 
 any other place than the same county, twenty-five cents for every day's actual 
 attendance. 
 
 To Constables. 
 
 For serving a warrant or summons, twelve and a iialf cents. 
 
 For a copy of every summons delivered on request, or left at the dwelling of the 
 defendant in his absence, nine cents. 
 
 For serving an attachment, fifty cents; for a copy thereof, and an inventory of 
 the property seized, left at the last residence of the defendant, fifty cents. 
 
 For serving an execution, five cents for every dollar collected to the amount of 
 fifty dollars, and two and a half cents for every dollar collected, over fifty dollars. 
 ' For every mile going only, more than one mile, when serving a summons, war- 
 rant, attachment, or execution, si.x cents ; to be computed from the pi, ice of abode 
 of the defendant, or where he shall ba found, to the place where the precept is re- 
 returnable. 
 
 For notifying a plaintiff of the service of a warrant, twelve and a half cents ; and 
 for going to the plaintilF's residence, or where such notice was served, six cents for 
 every mile more than one : summoning a jury, fifty cents. 
 
 To Jurors. 
 
 For attending to serve as such, though not sworn, six cents each. 
 
 For attending and trying a cause, twelve and a half cents each. 
 
 To each juror sworn before any officer in any special proceeding allowed by law ; 
 or before any sherifF upon any writ of inquiry, or to try any claim to personal pro- 
 perty, twelve and a half cents. 
 
 Fees of Justices of the Peace, in proceedings before them, not provided for in the 
 Act relating to the Justices' Court. 
 
 For a warrant for the apprehension of any person charged with any violation of 
 the laws concerning the internal police of the state, or with being the father of a 
 bastard, nineteen cents. 
 
 Endorsing any such warrant, issued from another county, twelve and a half 
 cents. 
 
 Summons for any offence relating to the internal police of the state, or in case 
 of any special proceeding to recover the possession of land, or otherwise, twenty- 
 five cents. 
 
 Drawing, signing, and depositing with the clerk of the county, a record of con- 
 viction, tliirty-seven and a half cents. 
 
 An execution upon any conviction before him, nineteen cents. 
 
 It has been seen, tliat the Code allows the Justice, for hi.s return, one dollar.
 
 656 APPENDIX. 
 
 Drawing, copyincr, and certifying a bond or recognizance, and filing the same 
 with the county clerk, twenty-five cents. 
 
 Warrant of commitment for any cause, nineteen cents. 
 
 Every subpoena, six cents ; 
 
 For a precepi to summon a jury, thirty seven and a half cents. 
 
 Swearing any jury, twenty-five cents. 
 
 Hearing the matter concerning which a jury is summoned, fifty cents. 
 
 Receiving and entering their verdict, twelve and a half cents. 
 
 For takino- and certifying the acknowledgment of any instrument v\'hich is re- 
 quired to be acknowledged before a Justice, twenty-five cents ; every additional 
 person, twelve and a half cents. 
 
 Every oath, six cents. 
 
 For a view of premises alleged to have been deserted, fifty cents. 
 
 Constables' Fees in the foregoing special proceedings. 
 
 Serving summons, twelve and a half cents. 
 
 Serving a warrant, nineteen cents. 
 
 Mileage for going, only, for each mile, six cents. 
 
 Summoning and swearing appraisers, and taking the appraisement, fifty cents ; 
 and twenty-five cents to each of the appraisers. 
 
 Levying any fine, penally, or sum, pursuant to any warrant, the same fees as 
 are allowed for similar services on execntions from Justices' Courts. 
 
 Arresting and committing any person, pursuant to process, fifty cents ; and mile- 
 age, for going only, six cents. 
 
 And for any services not herein provided for, which may be rendered by a con- 
 stable, the same fees as arc allowed by law to sheriff's for similar services ; among 
 which are the following : 
 
 Putting any person entitled, into the possession of premises, and removing the te- 
 nant, one dollar and twenty-five cents ; and the same travelling fees as upon an 
 execution. 
 
 Summoning a jury to try the title to any personal property, attending such jury, 
 &c., one dollar and fifty cents. 
 
 Summoning a jury pursuant to any precept or summons of any officer, in any 
 special proceeding, one dollar ; and for attending such jury, when required, fifty 
 cents. 
 
 19. General Provisions concerning Justices' Courts, and Proceedings therein 
 
 2 Revised Statutes, 30:2. (^Sec. 238.) All process sued by a Justice of the 
 Peace shall be eigiied by him, and may be under seal or without seal. 
 
 (,.Sec. 239.) Every summons, warrant, attachment, and execution issued by a 
 Justice of llie Peace, shall be entirely filled up, and shall have no blank, either in 
 the date, or otherwise, at the time of its delivery to an officer to be executed. 
 Every such process which shall be issued and delivered to an officer to be execut- 
 ed, contrary to the foregoing provision, shall be void. 
 
 (Sec. 240.) No constable shall ask or receive any money, or valuable thing 
 from a defendant, or any other person, as a consideration, reward, or inducement, 
 for omitting to arrest any defendant, or to carry him before any Justice ; or for de- 
 laying to take any party to prison ; or for postponing the sale of any property under 
 any execution ; or for omitting or delaying the execution of any duty pertaining 
 to his office. 
 
 (Sec. 241.) No Justice of the Peace or constable, shall, directly, or indirectly, 
 buy, or be int'^restcd in buying, any bond, note, or other demand, or cause of ac- 
 tion, for the purpose of commencing any suit thereon before a Justice; nor shall 
 any Ju^ticn or constable, either before, or after suit brought, lend or advance, or 
 agree to lend or advance, or procure to be lent or advanced, any money or otlier val- 
 uable thing to any person, in consideration of, or as a reward for, or inducement to, 
 the placing, or having |)laced in the hands of such Justice or constable, any debt, 
 demand, or caii.se of action whatever, for prosecution or collection. 
 
 (Sec. 212) Every Justice or constahio oirending against either of the provisions 
 of the three last sections, shall bi; deemed guiliy of a misdemeanor, and on convic- 
 tion shall be subject to line, or imprisonment, or both, in the discretion of the court. 
 Every such conviction, Hhall operate as a forfeiture of the office of the Justice, or 
 coiiHtabIc, Bu convicted.
 
 APPENDIX 657 
 
 (Sec. 243.) The defendant, in any suit to be brought in any action of debt, 
 covenant, or assumpsit,* in:iy give notice willi liis plea, in addition to any other 
 mutter of defence, that on the trial of tlie cause, he will insist and prove that Iho 
 demand on which such action is founded, has been bought and sold, or received for 
 prosecution, contrary to law, without setting forth any other j);irticulars. 
 
 (Sec. 244.) 'I'Jie defendant, in any such suit, may serve a notice on the plaintiff 
 two days before the trial, requiring him to appear personally on such trial to be ex- 
 amined ; and it shall b? the duty of the plaintiff to attend such trial for that pur- 
 pose ; and in case of such attendance, he shall be entitled to the like fees as are 
 allowed by law to witnesses ; but the plaintiff shall not be so summoned, nor re- 
 quired to attend the trial to give evidence as aforesaid, except from the same county, 
 or the county next adjoining that in which tiie cause is tried. 
 
 (Sec. 245.) In case such plaintifl' .shall not attend such trial, he shall, in proof of 
 the due service of such notice, be nonsuited in such action, unless such failure 
 to attend, shall be accounted for, to the satisfaction of the couri ; in which 
 case, the court may postpone the trial, on the plaintiff paying the costs of prepar- 
 ing for the trial. And if such plaintiff .shall not attend at the time, to which the 
 trial shall be postponed, he shall be nonsuited. 
 
 (Sec. 246.) On the trial of the cause in which such noticeshall have been given, 
 if the defendant shall require it, the plaintitf and his attorney and any other perfcoii 
 who may be interested iu the recovery in s uch cause, shall be examined on oath, 
 touching thematter set forth in such notice. 
 
 (Sec. 247.) If any such plaintiff so required to be examined, or if any person 
 interested in the recovery of the suit, shall refuse to answer on oath, such que.stions 
 as shall be pertinent to show a violation of tlie provisions of this article ; or if on 
 such examination, it shall appear that the cause of action on which such suit is 
 founded, has been brought or procured, contrary to the true interest of the provi- 
 sions of this aiticle, the plaintiff in such action shall be nonsuited. 
 
 (Sec. 248) No evidence derived I'rom the examination of any such plaintiff, 
 or other person shall be admitted in proof in any criminal prosecution against the 
 party so examined, for violating any of the provisions of this article. 
 
 (Sec. 249.) Every Justice of the Peace shall keep a book, iu which he shall 
 enter, 
 
 1. The title of all causes commenced before him : 
 
 2. The time when the first process was issued against the defendant, and the 
 particular process issued. 
 
 3. The time when the parties appeared before him, either without process or 
 upon the return of process. 
 
 4. Where the pleadings are made orally a concise statement of the declaration 
 of the plaintiff, the plea of the defendant, the further pleadings of the parties, if 
 any, and the issue joined. 
 
 5. Every adjournment, stating on whose motion, and to what time and place. 
 
 6. The issuing of a venire, stating at whose request, and the time and place of its 
 return. 
 
 7. The time when a trial was had ; the names of the jurors returned summoned 
 who did not appear, and the fines imposed on them, if any. 
 
 8. The names of the jurors who appeared, and of the jurors who were sworn ; 
 the names of the witnesses sworn at the request of either party, stating at whose 
 request ; the objections, if any, made to the competency of a witness, and the de- 
 cision thereon. 
 
 9. The verdict of the jury, and when received. 
 
 10. The judgment rendered by the Justice, and the time of rendering the same. 
 
 11. The time of issuing execution, and the name of the officer to whom deliv- 
 ered ; and if issued upon the application of any party, before the time when the 
 same should regularly issue, such fact shall be noted, and the nature of the proof 
 given. 
 
 12. The return of every execution, and when made ; and every renewal of au 
 execution made by him, with the date of such renewal. 
 
 13. The fact of his having given a transcript of the judgment to be filed in the 
 clerk's office, and the time when the same was given. 
 
 ' It must be borne in mind that the Code abolishes forms of action. 
 
 42
 
 658 
 
 APPENDIX. 
 
 14. The fact of an appeal having been made from any judgment rendered by 
 him, and the time when made. 
 
 (Sec. 950.) 'i lie several items in the preceding section enumerated sliall be en- 
 tered r.nder the title of such cause to vvhicli tliey respectively relate ; and in addi- 
 tion thereto, tlie Justice may enter any other proceeding had before him in such 
 cause wiiich he shall think it useful to enter in such book. 
 
 (Sec. 251.) Whenever it shall become necessary, in an action before a Justice of 
 the Peace, to give evidence of a judoment. or other proceeding had belore him, 
 the docket of such judgment or other proceeding, or a transcript thereof, certified 
 by him, shall be good evidence thereof before such Justice. 
 
 (Sec. 252) A transcrijit from the docket of any Justice of the Peace, of any 
 iudgment had before liini ; of the proceedings in the cause previous to such judg- 
 ment • of the execution issued tiiereon, if any ; and of the return to such execu- 
 tion, if any; when subscribed by such justice, and verified in the manner pre- 
 scribed in the next succeeding section, shall be evidence to prove the facts stated in 
 such transcript. 
 
 (Sec. 253. J To entitle such transcript to be read in evidence, except before the 
 same Justice, there siiall be attached thereto, or endorsed thereon, a certificate of 
 the clerk of the county in which such Justice resides, under the seal of the court 
 of sue!) county, specifying that tlie person subscribing such transcript was, at the 
 date of tlie judgment therein mentioned, a Justice of the Peace of such county. 
 
 (Sec. 254 ) The proceedings in any cause had before a Justice may also be 
 proved by the oath of the Justice. In case of his death or absence, they may be 
 proved by producing the original minutes of such proceedings, entered in a book 
 kept by such Justice, accompanied by proof of his handwriting; or they may be 
 proved by jiroducing copies of such minutes, sworn to by a competent witness, as 
 liaving been compared by him with the original entries, with proof that such en- 
 tries were in the handwriting of the Justice. 
 
 (Sec. 255.) Whenever it sliall be necessary to make use of an affidavit in any 
 proceedings had before a Justice of the Peace, such Justice shall have power to ad- 
 minister an oath to the party making such affidavit. 
 
 (Sec. 256.) Every Justice shall carefully file and preserve all affidavits and pa- 
 pers delivered to him to be filed in any cause- 
 
 (Sec. 257.) Whenever an issue of fact shall Iiave been joined in any action or 
 suit before a Justice of the Peace, and it shall appear, on the application of either 
 party, thai any witness not residing within the county where said suit is pending, 
 or the county adjoining, is material in the prosecution or defence of such action or 
 suit, the said Justice may award a commission to one or more competent persons, 
 authorizing them, or any one of them, to exaniine such witness on oath, upon the 
 interrogatories settled by the said Justice, and certified by iiis approbation entered 
 or endorsed tiiereon, or by the written agreement or assent of the parties annexed 
 to sucli commission ; to take and certify the depo.^itions of such vv'itness, and to re- 
 turn the same, according to the directions given with such commission, — in which 
 commission both parties may unite. 
 
 (Sec. 25H.) Such commission may be granted, at the instance of either party, by 
 such Justice of the Peace at any time, upon proof that due notice of such applica- 
 tion for such commission has been served on the adverse party at least six days be- 
 fore the lime of making such application ; but the issuing of such commission shall 
 not postpone the trial beyond the time now aulhoiized by law. 
 
 (Sec. 25'J.j Tiie commission shall be executed and returned, as is prescribed by 
 statuie when a commission issues out of a court of record, and the deposition and 
 testimony taken in piusuance thereof, sliall be received on the trial as testimony 
 in the cause, with the like effect as if such witness were personally examined at 
 such trial. 
 
 (Sec. 2<)1 ) When the commission is executed in this state, the commissioners 
 Bhall liiive the same power to issue subia-nus, swear witnesses, and compel their 
 attendance, as Justices of the Peace have. 
 
 (Sec. 2()2 ) W'luufver a judgment shall be rendered by a Justice of the Peace, 
 oji delaiill, and in the absence of the party against whom the same is rendered, it 
 shall be the duly of such Justice, on the demand of any person interested therein, 
 to give to such person ;i transcript of Buch judgment, together with a copy of the 
 procesH, pleadings and prooi.s In the cause, when sinli pleadings and proofs are re- 
 duced to wiiting, or thi^ siih.^lance thereof, when not reduci'd to willing, or such 
 urlH o^ bucii process, pleading.s and pniol's, as niiiy be reipiired, on his being paid
 
 APPENDIX. (359 
 
 therefor twenty-five cents for such transcript, and six cents a folio for the residue 
 thereof. 
 
 (Sec. 263.'! Every Justice shall keep an alphabetical index of ail judffmenls en- 
 tered in his docket book, in the course of any judicial proceedings iiad before him. 
 In such index shall be inserted the names of iho parties to such judirment, and the 
 page of his docket book where such judgment is entered. 
 
 (Sec. 264.) In case any Justice shall remove out of the town in which he v/as 
 elected, before or after his term of ollice e.xpires, he shall deposit with the town 
 clerk of such town, all the books and papers in the custody of such Justice, rela- 
 ting to any cause or matter which shall have been heard by him, or relating to any 
 proceeding or cause which shall have been commenced before him. 
 
 (Sec. 2t)5.) Whenever any Justice shall be removed from office, lie shall, within 
 ten days after receiving notice of such removal, and upon the demand of the town 
 clerk, deliver to such clerk all the bt)oks and papers in the custody of such Justice 
 relating to any cause or matter which shall have been heard by him, or relating to 
 any proceeding or caus3 which shall have been commenced before him. 
 
 (Sec. 2GG.) In every book delivered by any Justice to the town clerk pursuant to 
 the foregoing provisions, in which he shall have kept the docket of any judorments. 
 he shall enter a certificate, to be subscribed by him, stating that the judgments en- 
 tered in such book were duly rendered as therein stated, and that the amounts ap- 
 pearing by such book, to be due on such judgments respectively, have not been 
 paid to his knowledge. 
 
 (Sec. 267.) In case any Justice shall die, or his office shall, in any way become 
 vacant, and any books or papers belonging to such Justice in his official capacity 
 shall come to the hands of any person, the town clerk may demand and receive 
 such books and papers from the person having the same in his possession. 
 
 (Sec. 268.) If any books or papers, required by the preceding sections to be de- 
 livered to the town clerk, be withheld, tiie like proceedings may be had to compel 
 the delivery of the same as are provided in the fifth article of the sixth title of the 
 fifth chapter of tlie first part of the Revised Statutes. 
 
 (Sec. 269.) The entries contained in the book of minutes kept by any Justice, 
 and by him delivered to the clerk, shall, in all cases, be presumptive evidence of 
 the facts stated in such entries, but may be repelled by contrary proof. 
 
 (Sec. 270 ) Any Justice before whom any judgments shall have been entered, 
 and whose term of olfice shall have expired, may issue or renew executions on any 
 such judgment, at any time within six months after the expiration of his said 
 office. But in case such Ju-tice shall be re-elected, and shall duly qualify, on be- 
 ing so re-elected, such Justice may issue executions on any judgment entered by 
 him, before his term of office shall have so expired, within the time prescribed by 
 section one hundred and forty-three of article nine, of title four, of chapter two. 
 of part three of the Revised Statutes. 
 
 (Sec. 271.) If any money shall have been collected for any parly by a Justice 
 of the Peace in his official capacity, and he shall have neglected or refused, within 
 a reasonable time after demand, to pay over the same, such neglect or refusal shall 
 be deemed a misdemeanor, and, on conviction thereof, such Justice shall forfeit his 
 office. 
 
 (Sec. 272.) Whenever an appeal shall be duly brought and served upon a Jus- 
 tice, after he shall have gone out of office, upon a judgment rendered by him whilst 
 in office, such Justice shall make return to such appeal, in like manner and with 
 the like effi^ct as if such appeal had been served whilst he was in office. 
 
 (Sec. 273 ) If an appeal be made upon a judgment rendered by a Justice who 
 shall die, bcconie insane, remove out of the state, or abscond, so that a return can- 
 not be compelled, the court to which such appeal shall be n)ade may receive the 
 affidavits of witnesses and of the parties to the facts and circumstances of the pro- 
 ceedings, and of the judgment upon which the appeal is made ; and shall proceed 
 thereon in the same manner as if such facts had been returned by the Justice be- 
 fore whom the judgment was rendered 
 
 (Sec. 275.) If a Justice, before whom a judgment shall have been rendered, shall 
 die, become insane, remove out of the state, or abscond, so that the affidavit, allow- 
 ance of appeal, and bond, required by law to be served on such Justice, cannot be 
 served, the appellant may file such affidavit, allowance and bond, with the county 
 clerk, who shall be authorized to approve the sureties in such bond in the same 
 manner as such Justice might have done. 
 
 (Sec. 276.) Upon serving a notice of the filing of such affidavit, allowance ana
 
 660 
 
 APPENDIX. 
 
 bond, with the county clerk, upon the appellee within the time allowed by law for 
 making an appeal, in all res^pects, as if the same had been served on sucli Justice. 
 (tiec. 277.) If a Justice, after having rendered judfiinent in any cause, shall die, 
 become insane, remove out of the state, absconti, or oliierwise vacate his office, be- 
 fore issuing execution on such judgment, an action may be maintained thereon, in 
 which ihe'originul docket of such judgmtnl kept by such Justice shall be presump- 
 tive evidence of the facts therein stated, but it shall be liable to be lepelled by con- 
 trary jiroof. 
 
 (Sec. 278.) If a Justice, before whom a judgment shall have been rendered, shall 
 remove out of the county, the court of tlie county, upon proof of the facts, may, 
 by jnand/mtis, compel a return to an appeal brought upon su( h judgment. 
 
 (Sec. 279.) If, in any action upon the judgment of a Justice, it be established 
 that the docket of a Justice has been lost or destroyed, or that It cannot be pro- 
 duced, after reasonable etTorts to obtain the same, other proof of the fact of a judg- 
 ment iiaving been renaered, maybe given, and may be repelled as other facts. 
 
 (Sec. 280.) If any constable shall have collected any money on execution, and 
 a recovery therefor shall have been had, against iiis sureties, upon a complaint 
 thereof being made to any three Justices of the same town, they shall summon 
 such constable to appear before them to show cause why he should not be removed 
 from his office. 
 
 (Sec. 281 ) If such complaint be established to the satisfaction of such Justices, 
 or of any two of them, after a hearing of the parties, or after the refusal or neglect 
 of the constable to appear upon such summons, they shall, by an instrument under 
 their hands, remove such constable from his office, assigning therein the reason of 
 such removal, and shall file the same in the ofike of the town clerk, who shall 
 forthwith cause a certified copy thereof to be served on such constable. 
 
 (Sec. 282.) Upon the service of a copy of such instrument, certified by the town 
 clerk, on t'le constable named therein, such constable shall cease to have any power 
 or anihority as such, and his office shall be deemed vacant. 
 
 (Sec. ubS.) Every Justice who shall issue any process authorized by this title, 
 excepting a venire, whenever he shall judge it expedient, on the request of a party, 
 may, by "written authority endorsed on such process, empower any proper person 
 being of lawful age, and not a party in interest in the .suit, to execute the same. 
 
 (Sec. 284.) The person so empowered shall thereupon possess all the authority 
 of a constable in relation to the execution of such process, and shall be subject to 
 the same obligations, but shall not receive any fee or reward for his services therein- 
 ^,- L-c. 285.) Every constable to whom process shall be directed and delivered, 
 agreeably to the provisions of this title, shall execute the same in person, and shall 
 not act bv deputy in any case. 
 
 (Sec. 28G) in the following cases, and in no other, a Justice of the Peace may 
 punish, as for a criminal contempt, persons guilty of the following acts: 
 
 1. Disorderly, contemptuous, or insolent behavior towards such Justice, while en- 
 gaged in the trial of a cause, or in the rendering of any judgment, or in any judi- 
 cial proceedings which shall tend to interrupt such proceedings, or to impair the 
 respect due to his authority. 
 
 y. Any breach of the peace, noise, or other disturbance, tending to interrupt the 
 official proceedings of a Justice. 
 
 3. Resistance, willully offered by any person, in the presence of a Justice, to the 
 execution of any lawful order or process, made or issued by him. 
 
 (Sec 287 ) I'unislimcnt lor contempt in the foregoing eases may be by fine not 
 exceeding twenty-five dollars, or by inii)risoninent in the county jail not exceeding 
 fise days, or both, in the discretion of the Justice. liul no person shall remain 
 imprisoned, for the non-payment of such fine, more than ten days. 
 
 (Sec. UtiH.) No person shall be punLshed for a contempt before a Justice until an 
 opportunity shall iiavo been given him to bo heard in his defence. And for that 
 purpose H JuBtico may issue a warrant to bring the offender before him. 
 
 (.Sec. 2Hy.; Lipun convicting any person ot contem|)t, the Justice shall make up 
 a ncord of such conviction, staling therein the parucular circumstances of the 
 offence, and the judgment rendered thereon ; which shall bo subscribed by him, 
 and (lied in Ihe ollici- of the county cleik within ten days alter its date. 
 
 (Sec. 2iil).) 'I'lie warrant of coinmilmenl for any contempt shall set forth the 
 parlicuiar circurriHlanceB of liie offence, or it shall be void. 
 
 (Sec. 2'JI.) VV lien a wilnoHs, attending before any Justice in any cause, shall 
 rcfuso Lo be aworn, in any form prescribed by law, or to answer any pertinent or
 
 APPENDIX. 661 
 
 pro)ier question, and llie party at wliose instance lie attended siiali make oath that 
 the teslinioiiy of such witness is so far material, tiiat witiiout it he cannot safely 
 proceed in tlie trial of such cause, such Justice may,, by warrant, commit such wit- 
 ness to the jail of the county. 
 
 (Sec. 2i)2 ) Such warrant shall specify the cause for which the same is issued, 
 and if it be for refusing to answer any question, such question shall be specified 
 therein ; and such witness siiail be closely confined, pursuant to such warrant, un- 
 til he submit to be sworn, or to answer, as the case may be. 
 
 (Sec. 293.) The Justice shall thereupon adjourn such cause, at the request of 
 the parly in wliose favor such witness attended, from time to time, until such wit- 
 ness shall testify in the cause, or be dead or iufane. 
 
 (Sec. 294.) When the name of any defendant shall not be known to the plain- 
 tiff, he may be described in the summons or warrant by a fictitious name ; and if a 
 plea in abatement be interposed by such defendant, the Justice before whom the 
 suit is pending shall amend the proceedings according to the truth of the liiatter, 
 and shall thereafter proceed therein in like manner as if the defendant had been 
 sued by his right name. 
 
 (Sec. 297.; Any constable to whom any execution shall have been issued and 
 delivered, and whose term of office shall expire before the time within which the 
 collection or return of such execution is required by law, shall and may proceed, in 
 all masters relative to said execution, in the same manner as if the term of office 
 of such constable had not expired. 
 
 (Sec. 298.) Such constable and his bail shall be liable for any neglect of duty, 
 and for moneys collected upon such execution, in the same manner, and to the 
 same extent, as if the term of office of such constable had not expired 
 
 (Sec 299.) Any written authority to appear by attorney in a Justice's contt may 
 be acknowledged before any judge of the county courts. Justice of tiie Peace, or 
 commissioner of deeds ; and such authority, purporting to have been so acknow- 
 ledged, shall be received as prima facie evidence of such authorit)' in any Justice's 
 court in this state. 
 
 (Sec. 3U0 ; The fee for such acknowledgment, shall be twenty five cents, and 
 the officer shall not take the same, unless he shall know the person making it ; and 
 the certificate of such acknowledgment shall state that the officer knows such person. 
 
 (^See. 301.) No execution issued or any judgment rendered by any Justice of 
 the Peace, upon any demand arising on contract, express ol implied, or upon 
 any other judgment founded upon contract, whether issued by such Justice, 
 or by th.e clerk of the county, shall contain a clause authorizing an arrest or im- 
 prisonment of ilie person against whom the same shall issue, unless it shall be prov- 
 ed by the affidavit of the person in whose favor each execution shall issue, or tliat of 
 some other person, to the satisfaction of such cleik or Justice, either, 
 
 1. Tliat such judgment was for the recovery of collected money by any public offi- 
 cer ; or 
 
 2. For offiL-ial misconduct or neglect of duty ; or 
 
 3. For damages for misconduct or neglect in any professional employment. 
 (Sec. 302.) No warrant shall issue against a defendant in any case, in which, 
 
 by the provisions of the last preceeding section, an execution on the judgment re- 
 covered, could not be issued against his body ; and whenever a warrant in such case 
 shall issue the like affidavit shall bo required, as for the issuing of an execution, by 
 the provisions of said section. 
 
 (Sec. 303.) Whenever, by the provisions of the last preceding section, no war- 
 rant can issue, and the plaintifFshall be a non-resident of the county, and shall give 
 the like proof of the fact, and tender to the Justice the security now required by law 
 to entitle him to a warrant, the Justice shall issue a summons, which may be made 
 returnable not less than two, nor more than four days from the date thereof, and 
 shall be served at least two days before the time of appearance mentioned therein ; 
 and if the same shall be returned personally served the same proceedings shall be 
 had, and no longer adjournment granted than in case of a warrant as the instance 
 of a non-res dent plaiii'iifi. 
 
 (Sec. 304.) Wlienever, by the provisions of the thirtieth section of this act, no 
 warrant can issue, and tlie defendant shall reside out of the county, he shall be 
 proceeded against by summons or attachment, returnable not less than two, nor 
 more than four days, from the date thereof, which shall be served at least two days 
 before the time of appearance mentioned therein ; and if such delendant be pro- 
 ceeded against otherwise, the Justice shall have no jurisdiction of the cause.
 
 662 APPENDIX. 
 
 (Sec. 305.) In addition to the cases in wl)icli suiis may now be commenced before 
 Justices of the Peace by attachment, any suit for the recovery of any debt or dam- 
 ag^es arising from any contract, express or implied, or upon any judgment for one hun- 
 dred dollars or less, may be so commenced whenever it siiall satisfactorily appear to 
 said justice that the defendant is about to remove from the county any of hisprcprrty 
 with intent to defraud iiis creditor, or has assigned, disposed of. or secrete, or is about 
 to assign, dispose of, or secrete any of his property, with the like intent, whethersuch 
 defendant be aresident of thisstate or not. 
 
 (Sec. 306.) Before any attachment shall issue in such case, or in tlie case pro- 
 vided for in article second, title third, cliapter second, part third of the revit^cd sta- 
 tutes, the plaintiff shall, by his own affidavii, or that of some other person, or per- 
 sons, prove to the satisfaclion of the Justice, the facts and circumstances to entitle 
 him to the same, and that he has such a claim as is specified, in the last preceding 
 section against the defendant, over and above all discounts, whicli the defendant 
 may have against him, specifying, as near as may be, the amount of such claim, 
 or the balance thereof; and such plaintiff', or some one in his behalf, shall also exe- 
 cute, in the cases provided for by this act, a bond in the penalty of at least one 
 hundred dollars, with such sureties, and upon such condition as is required in sec- 
 tion 29th of said article ; and so much of said article as requires any other, or dif- 
 ferent proof for the issuing of an attachmeut than that required by this section is 
 liereby repealed. 
 
 (Sec. 307.) Every attachment issued by virtue of this act, or of the provisions 
 contained in the said second article, shall be served in the manner now provided in 
 said article, except that if the defendant can he found in the county, the copy of 
 such attachment and inventory, shall be served upon him personally, instead of 
 leaving the same at the place now prescribed in said article ; and the return of said 
 officer in addition to what is now required shall state specifically whether such 
 copy was, or was not, personally served, upon the defendant. 
 
 (Sec. 308.) If such attachment was issued in one of the cases provided for by 
 this act, and shall be returned personally served upon the defendant, the Justice 
 shall, on the return day, proceed to hear and determine the cause in the same man- 
 ner as upon a summons returned personally served. 
 
 (Sec. 309 ) If such attachment was issued in one of the cases provided for by 
 this act, and at the return day it shall appear by the return that property was at- 
 tached, and that a copy of such inventory and attachment was not personally 
 served, and the defendant shall not appear, the plaintiff" may take out a summons 
 against the defendant ; and if such summons shall be returned that the defendant 
 cannot be found, after diligent inquiry, or thnt the same has been personally served 
 upon the defendant, then, in either case, the Justice shall proceed to hear and de- 
 termine the cause in the same manner as upon a summons returned personally 
 served. 
 
 (Sec. 310) A judgment obtained before any Justice in any suit commenced by 
 attachment, when the defendant shall not be personally served with the altrtch- 
 jncnt or Bummons, and shall not appear, shall be only presumptive evidence of in- 
 debtedness in any suit that may be brouglit thereon, and may be repelled by the 
 defendant; and no execution issued upon such judgment shall be levied upon any 
 other property than such as was seized under the attachment issued thereon ; nor 
 shall any defendant, in such case, be barred of any set-off" which ho may have 
 against the plaint iff. 
 
 (Sec. 311.) A defendant against whose body, by Ihc j)rovisions of this act, an 
 execution cannot be issued from a Justice's court, shall not be required, in order to 
 obtain an arljournment of a cause, to give a bond with the condition now required 
 bylaw, but instead thereof, the condition of such bond shall be that no part of his 
 properly linblo to be taken on execution shall be removed, secreted, assigned, or in 
 any way dis|)ose(i of, except the necessary support of himself and family, until the 
 plainiKF'H demand shall be satisfied, or until iho expiration of ten days after such 
 plaintiff' Hhall be entitled to have an execution issuc(l on the judgment obtained in 
 such CJjuse, if he shall obtain such judgment ; and if the condition of such bond 
 be broken, and an execution on such jiulguicnt bo returned unsiiisfied in whole, or 
 in [larl, the phiintiir. in an aetion on such boiul, shall bo entitled to recover the 
 amount due, on such ju(lgmei\t.
 
 INDEX 
 
 ACCOUNT, 
 
 what subsisting;, where aRcounts have been settled, 8. 
 
 definition of matters of. 39. 
 
 how matters of, arise, 39. 
 
 unliquidated, interest not recoverable on, 44. 
 
 when parly required to exhibit, 91. 
 
 when presented to board of supervisors, must be numbered, 51'.. 
 
 of board of supervisors, required to be made out in items, 513. 
 ACKNOWLEDGMENT, 
 
 of instruments, may be taken by justice, 153. 
 
 justice required to know the party making, 152. 
 
 forms of, 152, 153, 154, 155, 156, 157. 
 ACTIONS, 
 
 how commenced, 52. 
 
 when deemed commenced, 52. 
 
 cause of, how staled, 54. 
 
 in whose name prosecuted, 5. 
 
 when plainiitTmay discontinue or withdraw, 191. 
 
 how brought by town and county officers, 5. 
 
 how brouujht against county and town, 6. 
 
 before what justice brought, 7. 
 
 but one form of, — how denominated, 9. 
 
 how stated in process and pleadings, 9. 
 
 what cognizable by justices' court, 9, 10. 
 
 when may be brought by vendor, against a person not interested in pro- 
 perty sold, 25. 
 
 when will not lie on a parol warranty, 27. 
 
 separate, how brought on the condition of a bond, 28. 
 
 what necessary to sustain, when two concurrent acts are stipulated, 12. 
 
 to sustain for money paid, what necessary to appear, 39, 40. 
 
 to sustain for money had and received, what necessary to appear, 40. 
 
 money paid by mistake, or paid on a contract wiiich has been rescinded, 
 recoverable by, 40. 
 
 will lie to recover money paid, where consideration of payment fills, 40. 
 
 will lie to recover money paid, when payment obtained fraudulently, 41. 
 
 money paid upon an illegal contract cannot be recovered by, 41. 
 
 to sustain for money hid and received, what necessary, 41. 
 
 to support for goods sold and delivered, what necessary, 41. 
 
 when will lie for work and labor, 41. 
 
 when may be maintained by servant, although he quit his employer's ser- 
 vice, 42. 
 
 infant entitled to, for part performance of an entire contract, 42. 
 
 when sustained for use and occupation, 43. 
 
 to sustain for direct injury to personal property, what necessary, 45. 
 
 when may be sustained for injury to property in lawful possession 
 wrong-doer, 45.
 
 664 INDEX. 
 
 ACT]O^S—cnn(ime'l. 
 
 where immediaie act done by co-operation of several, may be joint or 
 
 several, 45. 
 who may maintain, for direct injury to real property, 45. 
 person entering on land of another, wiihout permission, liable to, 46. 
 person enteritig house of another, without permission, liable to, 46. 
 person liable to, if he enter house with permission, and guilty of rude 
 
 conduct, 46. 
 "when will lie for injury to land, 46. 
 when will lie for damages done by beasts, 46. 
 
 in action against two or more defendants when one may be a witness, 47. 
 when will lie for indirect injuries, 47. 
 when maintained against sheriffs and constables, 47. 
 ground of action for injuries to person, as husband, parent, or master, 48. 
 when will lie for injury to personal property, not committed with force, 48. 
 when will lie against inn keeper, 48. 
 will lie against attorneys, for what, 48. 
 when brought for deceit, 48. 
 
 in action to recover price of article sold, what defendant may show, 48. 
 when will lie for indirect injuries to real properly, 49. 
 for penally or forfeiture, where brought, 50. 
 actions not cognizable by justices of ihe peace, 50. 
 
 to recover penalties imposed by bye-laws of cities, towns and villages, 51. 
 when party revoking power of arbitrators, liable to, 261. 
 within what time to be commenced against a constable or his sureties, 
 
 541. 
 when may be maintained against a constable, 226, 543. 
 what necessary to maintain where two concurrent acts are stipulated, 12. 
 of what county judge may take cognizance, 481, 482, 483. 
 how brought by and against commissioners of highways, 550, 551. 
 lies against parly, who wrongfully sues out execution which he knows 
 
 has been satisfied, 212.) 
 lies for obstruction or injury received on a highway, 418, 419. 
 in what cases brought upon a judgment, 99. 
 in suing on a judgment when deemed commenced, 99. 
 in suinji on a running account, when deemed commenced, 99, 100. 
 ADJOURNMENT, 
 
 on motion of justice, 109. 
 
 when justice may adjourn, 109. 
 
 justice can, in no case, adjourn on his own motion a cause commenced by 
 
 warrant, 109. 
 when justice may adjourn to different place, without consent of parties, 
 
 109, 110. 
 justice cannot adjourn, by sending a note, 110. 
 on moti(m of plaintiff, 110. 
 when plainlilf entitled to, 110. 
 for what lime had. 110. 
 
 how cause commenced by warrant, adjourned by plaintifl', 110. 
 adjournment upon short summons. 111. 
 on motion of defendant, 111. 
 wltat deleniiant re(|uirod to do to obtain. 111. 
 wliat lime allowed defenrlant on, 112. 
 liow defendant may obl;iin, in cause commenced by warrant, at suit of 
 
 non-rcbidenl plainlifl', 113. 
 when (Icfcnd.inl must remain in custody during, 113. 
 wlial defendant rf'niiired to do to obtain second adjournment, 114. 
 when justice rcipiiied to adjourn, 115. 
 
 parly wishmg adjournnieni must exhibit his account or demand, 115. 
 parties may agree n|)oti, 115. 
 wiiat binding agreement lo, 115.
 
 INDEX. 665 
 
 ADJOURNMENT— con/n/«eJ. 
 
 effect of illegal adjournment, 115. 
 
 how irregular adjournment waived, 116. 
 
 not to exceed ninety days, 116. 
 AMOUNT IN CONTROVERSY, 
 
 when not to exceed one i)undred dollars, 8. 
 
 what may be recovered before justice on surety bond, 7. 
 
 how reduced to justices' jurisdiction, 8. 
 ANSWER, 
 
 of wliat to consist, 88. 
 
 how grounds of defence stated in, 88, 89. 
 APPEAL, 
 
 to what court taken, 228. 
 
 names of parlies appealing, 228. 
 
 when and how made, 228, 229. 
 
 how appellant may stay execution, 230, 231. 
 
 justices' return on, 231, 232, 233. 
 
 proceedings and costs in appellate court, 233, 234. 
 APPEARANCE, 
 
 suits instituted by voluntary, 52. 
 
 when parties must appear, 75. 
 
 how parties are to appear, 76. 
 
 appearance by attorney, 77. 
 
 appearance by guardian, 77, 78. 
 
 at first appearance of parties, issue to be joined, 83. 
 APPRENTICES, 
 
 definition of, 274. 
 
 relation, how created, 275. 
 
 master must provide medical attendance for, 275. 
 
 master entitled to wages of, 275. 
 
 when justices of the peace required to aid in binding, 275. 
 
 when infant may bind himself, 275. 
 
 infant, how bound by overseers of the poor, 276. 
 
 foreign infant, how bound, 278. 
 
 contract of apprenticeship of foreign infant, how assigned, 278. 
 
 service of, how enforced, 279, 280. 
 
 proceedings where money paid with apprentice, 285, 286. 
 
 assignment of contract of, 287. 
 
 penalty for selling liquor to, 372. 
 ARBITRATION, 
 
 definition of, 257. 
 
 who may submit controversy to, 257. 
 
 respecting what property submission made, 258. 
 
 duty of arbitrators, 258, 259. 
 
 oath how administered to arbitrators, 258. 
 
 oath how administered to witnesses, 259. 
 
 ■when submission to arbitrators must be in writing, 260. 
 
 forms requisite, in submitting or deciding by arbitration, before a justice, 
 260. 
 
 how powers of arbitrators revoked, 261. 
 
 when party revoking liable to an action, 261. 
 
 when submission contained in the condition of a bond, how obligee may 
 prosecute, 262. 
 
 within what time award must be made, 262. 
 
 what are the essential requisites of an award, 262. 
 
 effect of submission and award, 264, 265. 
 
 parties to, may waive oath of arbitrators, 265. 
 
 award, how confirmed, 265. 
 
 award, how vacated, 265, 266. 
 
 application to vacate or modify award, how made, 266.
 
 666 INDEX. 
 
 ARBITRATION— conZmwe^. 
 
 when court may vacate an award, 266. 
 judgment, how rendered on an award, 266. 
 what record of judgment must state, 266, 267, 
 force and effect of record, 267. 
 proceedings on appeal to an award, 267. 
 when judgment on an award enforced by rule of court, 267. 
 when payment of costs enforced by rule of court, 267. 
 party may appeal from order vacaiinjT award, 267. 
 proceedings where order reversed. 268. 
 advantages of arbitration, 268. 
 ARREST, 
 
 what amounts to, 71. _ 
 
 who privileged from, 74. 
 in cause of action not arising on contract, 54. 
 upon warrant, how made, 60. 
 
 remedy of party, when void for want of jurisdiction of court, 72. 
 ASSESSORS, 
 
 three in each town, 523. 
 one elected annually for three vears, 523. 
 penalty for refusing to serve, 523. 
 Quakers exempt from serving, 523. 
 fence-viewers by virtue of their offices, 523. 
 powers and duties of, 524, 528. 
 penalty for refusing to perform duties, 528. 
 
 when neglect to perform duties, by whom duties performed, 529. 
 names of refusing or neglecting to perform duties, to be transmitted to 
 the comptroller, 529. 
 
 duties of, in relation to taxes on dogs, 538, 539. 
 
 compensation of, 592. 
 ASSIGNMENT, 
 
 definition of, 392. 
 
 difference between, and a lease, 392, 393. 
 
 of goods, chattels, or things in action, when void, 20. 
 
 how far change of possession necessary to validity of, 21. 
 
 liability of assignee, 393. 
 ATTACHMENT, 
 
 process by, when proper, 61. 
 
 what must state, 61. 
 
 upon what demand must be, for the issuing of, 61. 
 
 demand must be against debtor personally, 61. 
 
 when allowed by statute, 61. 
 
 by whom application for, made, 62. 
 
 how application for, made, 62. 
 
 with what accompanied, 62. 
 
 what to be stated in affidavit for, 62. 
 
 what security required before issuing, 64. 
 
 long attachment, 65. 
 
 short attachment. 65. 
 
 when short attachment applicable, 66. 
 
 service of, 66. 
 
 how goods attached may bo prevented from being removed, 66. 
 
 how person claiming property in goods attached may obtain possession of 
 tliem, 67, 68. 
 
 when constable must take goods altaclicd into his possession, 68. 
 
 conslablo'.s return on, 09, 70. 
 
 wh(;n summons must issue upon icluiii of, 70. 
 
 when justice auiliorized to proceed in the absence of the defendant, 70. 
 
 lien upon goods taken by, 71. 
 
 upon return of, justice inay amend, 73.
 
 INDEX. G67 
 
 ATT AC li M El<iT—cnnlhiued. 
 
 proof to obtain aijainst witness, what, 120. 
 
 against witness, how executed, 22. 
 AWARD, 
 
 essential requisites of, 262. 
 
 within what time to be made, 262. 
 
 effect of, 264, 265. 
 
 how confirmed, 265. 
 
 how vacated, 265, 266. 
 
 application to vacate or modify, how made, 266. 
 
 when court may vacate, 266. 
 
 judgtnent how rendered on, 266. 
 
 proceedings on appeal to, 267. 
 
 when judgment on, enforced by rule of court, 267. 
 
 party may appeal from order vacating, 267. 
 
 B 
 
 BASTARDS, 
 
 definition of, 313. 
 
 how and where mother and child supported, 313, 314. 
 
 proceedings to ascertain father, and compel him to support child, 315, 
 
 316, 317, 318, 319, 320. 
 appeal, how made by reputed father from order of justices' 322. 
 when reputed father discharged, and when committed, 322. 
 how reputed father kept during examination, 323. 
 when reputed father released from custody, 323. 
 when reputed father non-resident of county, how arrested, 324. 
 proceedings where father a non-resident, 324, 325, 326. 
 proceedings where mother refuses to disclose the name of the father, 327. 
 proceedings where mother has property, 308, 329, 330. 
 proceedings where mother refuses to appear before a justice or justices, 
 
 330, 331. 
 
 proceedings where father or mother of child, runs away leaving property, 
 
 331, 333. 
 
 how amount ordered to b& paid, by fatber or mother, diminished, 332, 
 
 333. 
 compromise when, and what, 333, 334. 
 BEGGARS AND VAGRANTS, 
 how defined, 299. 
 
 duty of constable, or other peace officer, respecting, 299. 
 how proceeded against, 299, 300. 
 
 requisites of record of conviction against, 301, 302, 303, 304. 
 what done with, when committed, 304. 
 may be searched, and properly found upon them applied to their support, 
 
 while in confinement, 306. 
 child found begging, how committed, 306. 
 proceedings where vagrant discovered with his face painted or covered, 
 
 307, 308. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES, 
 definition of, 29. 
 need not be dated, 29. 
 how maker's name subscribed to, 29. 
 what ought to specify, 29. 
 must be for the payment of money, 29. 
 how the money payable, 30. 
 amount must be fixed, 30. 
 who the holder, 30. 
 kinds of, 30.
 
 668 INDEX. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES— conlmued. 
 most important cliaracterisiic of, 30. 
 what requisite to make negotiable, 30. 
 how negotiable, 30. 
 
 what meant by notes not negotiable, 30. 
 words " value received," not necessary in, 30. 
 what note imports, 30. 
 how made payable, 30. 
 when payable, if no time mentioned, 30, 31. 
 time of payment not to be altered by parol, 3L 
 how time computed, 31. 
 what meant by days of grace, 31. 
 maker, payee, endorser, and endorsee, 31. 
 when maker liable, 31. 
 
 when demand necessary, as between holder and maker, 31. 
 how maker may defend himself against holder, 31. 
 to what maker liable, 31. 
 interest, how computed, 31. 
 when interest computed from date, 32. 
 when note made in one place payable in another, 32. 
 how interest on recoverable, 32. 
 what the engagement of the endorser, 32. 
 how far endorser liable, 32. 
 how far maker liable, 32. 
 when demand of payment must be made, 32. 
 demand how made, 32. 
 separate written agreement not to demand payment of note until after 
 
 due, not part of note, 31. 
 consideration not necessary to validity of, after it has been negotiated, 
 
 and passed into the hands of an innocent endorsee, 11. 
 proof of, 159. 
 when demand of payment to be made on the day preceding the third day 
 
 of grace, 33. 
 how far custom, or usage, controls demand and notice, 33. 
 when days of grace are not allowed, 33. 
 
 where note is payable on demand, when payment to be demanded, 33. 
 what steps necessary to hold endorser, 33. 
 when endorser dead, upon whom notice served, 34. 
 to whom holder sliould give notice, and who liable, 34. 
 what will excuse the want of regular notice, 34. 
 whom a holder may charge by notice, 34. 
 how the usual notice rendered unnecessary, 34. 
 against whom holder may enforce payment, 34. 
 wliat will discharge endorsers, 35. 
 when consideration of note may be inquired into, 35. 
 how negotiable paper may be transferred by agent so as to bind 
 
 owner, 35. 
 kinds of endorsement, 36. 
 endorsements in blank, 36. 
 
 how blank endorsement converted into special, 36. 
 
 how boldiir of note may transfer it by enilorsemeuL without being liable, 30. 
 when note transferalile by mere delivery, 36. 
 endorsement in full, 36. 
 
 what interest an endorsement in full transfers, 36. 
 restrictive (indorsonicni, 36, 37. 
 
 how note may be endorsed so as to exempt endorser from liability, 37. 
 how far endorser ixiund by a blank note or check, 37. 
 rights of the holder of negotiable ])aper, [)ayable to bearer, or endorsed 
 
 in bhink, 37. 
 who m;iy sue on note where there arc several endorsers, 37.
 
 INDEX 669 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES— conlinued. 
 
 proceedings wliere nole is lost, 38. 
 
 burthen ol' proof lies on defendanl to show lost note negotiable, 39. 
 BOND, 
 
 definition of, 28. 
 
 who may bind themselves by, 28. 
 
 what will vitiate, 28. 
 
 how must be sealed, 65. 
 
 for what amount may be sued on in justices' court, 7. 
 
 in what cases a justice has no jurisdiction m an action on, 28. 
 
 how the oblifjor of a bond may be discharged, 2'J. 
 BOOKS OF ACCOUNT, 
 
 how originated, 162. 
 
 what necessary to render evidence, 162. 
 
 how proved, when party has clerk, 162. 
 
 how proved, when j)arty has no clerk, 162. 
 
 when evidence as original entries, 163. 
 
 rules in reference to, 163, 164. 
 BOOKS AND PAPERS, 
 
 of justice, to be deposited with the town clerk, 255. 
 
 c 
 
 CHALLENGE, 
 
 kinds of, 168. 
 
 to the array what, 168. 
 
 causes of principal challenge to the array, 168, 169. 
 
 causes of challenge to the array for favor, 169. 
 
 to the polls what, 169. 
 
 causes of principal challenge to the polls, 169. 
 
 causes of challenge to the polls for favor, 170. 
 
 justice cannot, on his own motion, challenge and set aside the whole 
 panel, 170. 
 
 principal challenges to the array, or to the polls, how tried, 170. 
 
 challenges to the array, or polls, for favor, how tried, 170, 171. 
 COLLECTOR, 
 
 to be chosen annually at town meeting, 529. 
 
 required to give security, 529. 
 
 must file security, 530. 
 
 upon what, security of a lien, 530. 
 
 the not giving security deemed a refusal to serve, 530. 
 
 by whom assessment roll delivered to collector, 530. 
 
 duties of, in collecting taxes, 532, 535. 
 
 when appointed by supervisor and justices, 535. 
 
 proceedings where collector refuses to pay over money, 536, 537. 
 
 losses sustained by default of, how chargeable, 538. 
 
 duties of, in relation to taxes on dogs, 539. 
 
 I G p 3 Q\ f) 1} 3 
 
 COMMlSsioN TO EXAMINE WITNESSES, 
 when allowed, 125. 
 in whose behalf issued, 125. 
 what proof required to obtain, 126. 
 power of commissioner to issue subpoenas, 127. 
 interrogatories what, 127. 
 general interrogatory what, 127. 
 
 how parties to signify their agreement upon interrogatories, 128. 
 interrogatories how settled, where parties cannot agree upon them, 128. 
 to whom commission directed, 128. 
 how executed, 128, 129.
 
 670 INDEX. 
 
 COMMISSION TO EXAMINE WITNESSES— cotilinued 
 
 when depositions cannot be read, 130. 
 
 weight of testimony taken by virtue of, 130. 
 COMMISSIONERS OF EXCISE, 
 
 board of, how constituted, 573. 
 
 when and where required to meet, 574. 
 
 powers and duties of, 574. 
 
 can take no fee or reward, for licenses, 574, 
 
 when authorized to grant licenses, 574, 575. 
 
 TP PS or 595 
 COMMISSIONERS OF HIGHWAYS, 
 
 how determined whether one or three chosen, 544 
 
 when three chosen, how divided, 545. 
 
 how long holds office in case of vacancy, 545. 
 
 how a town may have two or only one, 545. 
 
 must take the oath of office, 545, 546. 
 
 must give security, 546. 
 
 penalty for refusing to serve, 547. 
 
 powers and duties of, 547, 548, 549, 550, 551. 
 
 actions how brought by and against, 550, 551. 
 
 duty of successor, 551. 
 
 compensation of, 524. 
 COMMISSIONER OF LOANS, 
 
 how appointed, and for what time, 499. 
 
 duties of, 500. 
 
 what security required from, 500. 
 
 who to judge of sufficiency of security, 500. 
 
 for what cause removed, 500, 501. 
 
 compensation of, 591. 
 
 powers of, 501, 502, 503, 504, 505. 
 COxMPLAINT, 
 
 of what to consist, 85. 
 
 how made when verbal, 86. 
 CONSIDERATION, 
 
 necessary to a contract, 11. 
 
 trilling one sufficient, 11. 
 
 as regards bills of exchange and promissory notes, 11. 
 
 mutual promise adequate, 11. 
 
 must arise at the instance or request of defendant, 12. 
 
 subsisting legal obligation sufficient, 12. 
 
 moral obligation not sufficient, 13. 
 
 what requisite in any consideration, 13. 
 
 nominal or illegal, may be obj'ected to even by guilty parly, 13. 
 CONSTABLES, 
 
 five to be chosen in each town, at the annual town meeting, 539, 540. 
 
 required to give security, 540. 
 
 bond of to be filed in the ollice of the town clerk, 541. 
 
 copy of bond, certified by town clerk, what evidence of, 541. 
 
 what deemed in a refusal to serve, 541. 
 
 within vviiai time actions against, or against their sureties, to be com- 
 menced, 226, 541. 
 
 duties of, in serving executions, where their term of office has expired, 
 541. 
 
 wlien to be deemed guilty of a misdemeanor, 541, 542. 
 
 when removful by justices of the peace, 542. 
 
 to be buiiuiioiicd by .shcrilTto attend courts, and penalty for not attending, 
 512. 
 
 required to serve i)rocos3 in person, 512, 513. 
 
 when acli(m may be maintained against, 543. 
 
 proceedings against for neglect of duty, 513, 544.
 
 INDEX, 07 1 
 
 CONST AB LE Q—coiilinued. 
 
 when subject to fine and imprisonment, 544. 
 
 forfeit ilieir office, when, 514. 
 
 witiiin what time required to execute a bond, 225. 
 
 what cannot object in reference to security, 225. 
 
 cannot avoid liability by deliverin<r execution to another officer, 225, 226. 
 
 action lies against for neglecting to return execution within five days, 
 
 226. 
 action lies against for neglectinsz to pay over money collected, 226. 
 responsibility of, and of sureties, 226. 
 
 within what time action to be brought against for escape, 226. 
 in action against for an escape, what would constitute a good defence, 227. 
 when may take defendant's note, or other security, for debt, 227. 
 when protected in service of process, void for want of jurisdiction in the 
 
 court, 72. 
 liable to what when receive money for neglect of duty, 73. 
 process how executed by, 73. 
 
 must search for goods and chattels within reasonable time, 215. 
 when not liable for neglecting to proceed under execution, 215. 
 manner of making levy, 21(5. 
 
 when required to call a jury to try the title of goods levied on, 219. 
 sale of may be adjourned, 222. 
 if term of office expire, may still proceed, 222. 
 fees of, 593, 594. 
 CONTEMPTS, 
 
 power of courts in cases of, 235. 
 when justices of the peace may punish for, 235, 236. 
 punisiuiient for, and when and how enforced, 236, 237, 238, 239. 
 CONTRACT, 
 
 definition of, 10. 
 how divided, 10. 
 what constitutes a specialty, 10. 
 
 distinction between parol contracts, and contracts under seal, 10. 
 parol contracts, how divided, 10. 
 express contracts, 10. 
 implied contracts, 10. 
 
 distinction between executed and executory contracts, 11. 
 consideration essential, 11. 
 
 rule as to consideration with regard to bills of exchange and promissory 
 notes, 1 1. 
 
 where two concurrent acts are stipulated, what necessary to maintain an 
 action, 12. 
 
 when a party may sue without averring performance, 12. 
 
 contract of partneship need not be in writing, 17. 
 
 what sufficient proof of the valid execution of sale, 20. 
 
 when goods discovered to be unsound, what will rescind sale, 25. 
 
 what each party to a contract, as a general rule, is obliged to do, 25. 
 
 what always intended in a contract i'or the sale and delivery of goods at 
 a future day, where there is no selection or setting apart, at the time, 
 of particular articles, 26. 
 
 when part of an entire contract illegal and void, the whole void, 43, 
 
 contracts draw interest from time of money falling due, 44. 
 
 contracts of infants, 91. 
 
 what acts of infant necessary to confirm voidable contract, 91. 
 
 contract of infant with adult voidable as to infant, binding as to adult, 92. 
 
 who can avoid infant's voidable contract, 92. 
 
 how far the law will relieve an infant on his contract, 92. 
 
 contract for necessaries binding upon infant, 93. 
 
 how lar infant bound by contract for necessaries, 93. 
 
 who cannot make a valid contract, 94.
 
 672 INDEX. 
 
 CONTR kCT—conlinued. 
 
 when contract of alien with citizen valid, 94. 
 
 one indivisible contract, not to be made llie foundation of several suits, 8. 
 CORONERS, 
 
 number of, 492. 
 
 ho'/V often elected, 493. 
 
 must reside where, 494. 
 
 powers and duties of, 492, 493, 494. 
 
 compensation of, 494. 
 
 how removed, 494. 
 
 fees of, 591. 
 CORPORATIONS, 
 
 may sue as well as be sued, before justice, 6. 
 
 how process issued against, and how served, 6. 
 STS, 
 
 definition of, 201. 
 
 what only difficulty concerning, 201, 202. 
 
 when each party pays his own, 202. 
 
 what to be included in judtrment, 202. 
 
 when may be double, 202, 203. 
 
 fees of officers, witnesses, and jurors, 203, 204, 205, 207 207. 
 COUN'J'Y, 
 
 charges of, 596. 597. 
 COUNTY CLERK, 
 
 how elected, 483. 
 
 duties of, 483. 
 
 seal of, deemed seal of county, 484. 
 
 required to appoint a deputy, 484. 
 
 when deputy may act for cleric, 484. 
 
 neither clerk, nor deputy, can practice in the court of which they are 
 clerks, 484. 
 
 durintr what hours must keep office open, 484. 
 
 how removed, 484. 
 
 when deputy required to perform all the duties of, 484, 585. 
 
 fees of, 58fi, .'■iS7, 588. 
 COUNTY JUDGE, 
 
 to be elected, 480. 
 
 term of office, 480. 
 
 duties of, 480. 
 
 how paid, 480. 
 
 not to practice in the court of which he is a member, 481. 
 
 when disqualified from acting, cause transferred, 481. 
 
 how removed, 481. 
 
 wlien local officer to discharge duty of, and of surrogate, 481, 487. 
 
 of what actions he may take cognizance, 481, 482, 483. 
 
 compensation of, 580. 
 COUNTY TREASURER, 
 
 how elected, 4G8. 
 
 term of office, 468. 
 
 duly of, 489. 
 
 powers of, 489, 490. 
 
 when power of, superseded, 
 
 when to prosecute district attorney, 491. 
 
 what Mcciirity to be friven by, 491. 
 
 coinpens.UioM of, 491. 
 
 empowered lo cullccl fees, 051. 
 
 fees of, 591.
 
 INDEX. 673 
 
 1) 
 
 DAMAGES, 
 
 definition of, 198. 
 
 amount of, how determined, 198. 
 
 on contract, how estimated, 798, 199. 
 
 in actions for wrongs, how estimated, 199, 200. 
 
 plaintiff can recover no more than he claims, 200. 
 
 if verdict exceed amount claimed, plaintiff may remit the excess, 201. 
 
 must have arisen before commencement of suit, 201. 
 
 in case of several defendants, 201. 
 DEMAND, 
 
 how reduced to justices' jurisdiction, 8. 
 
 parties may divide large, into any number of small, and confess judgment 
 therefor, 8. 
 DEMURRER, 
 
 definition of, 89. 
 
 when parties inay demur, 89. 
 DESTKUCTION OF WOLVES, 
 
 when state bounty for, allowed, 374. 
 
 proceedings in obtaining bounty, 374, 375, 376. 
 
 penalty for Justice or other officer, wilfully giving a false certifieate, 376. 
 DISORDERLY PERSONS, 
 
 who deemed, 308, 309. 
 
 proceedinge in prosecution of, 309, 310, 311, 312, 313. 
 DISTRICT ATTORNEY, 
 
 one for each county, 487. 
 
 how often elected, 487. 
 
 duty of, 487, 
 
 when partner of, cannot act, 488. 
 
 not to act in certain cases under a penalty, 488. 
 
 how removed, 488. 
 
 fees of 590. 
 DISTURBANCE OF RELIGIOUS MEETINGS, 
 
 what acts constitute offence, 352, 353. 
 
 penalty for, 352. 
 
 who may apprehend offender, 353. 
 
 when offender may be brought before justice by verbal order, 354. 
 
 when offender may demand a jury, 354. 
 
 how justice must proceed to inquire into, 355. 
 
 when offender required to give security, 350. 
 
 when offender to be committed to jail, 357. 
 
 within what time justice required to iile a certificate of conviction witk 
 the county clerk, 358. 
 DOCKET, 
 
 form of, 252, 253, 254. 
 
 what justice must note in, 1, 251, 252. 
 
 evidence of what, 149. 
 
 transcript from, when evidence, 149. 
 
 transcript from, may be made and certified, by justice, after expiration 
 of his office, 149. 
 
 when lost, or destroyed, how judgment proved, 150. 
 
 justice omitting to note judgment in, will work a discontinuance, 191. 
 
 verdict of jury, to be entered by justice in, 186. 
 
 E 
 
 EVIDENCE, 
 
 definition of, 136. 
 nature of, 136. 
 
 43
 
 574 INDEX. 
 
 EVIDENCE — continued. 
 
 kinds of, 136. 
 
 must be confined to points in issue, 137. 
 
 substance of issue, only, need be proved, 137, 
 
 parly holding the affirmative has the burthen of proof, 137. 
 
 when a negative must be proved, 137. 
 
 best the nature of the case will admit, required, 137, 138. 
 
 most satisfactory proof of which the fact capable, not necessary, 138. 
 
 hearsay not admissible. 138. 
 
 letters written by third persons not admissible, 139. 
 
 when what a person said at the time of doing an act, evidence, 139. 
 
 when delarations of third persons deceased, evidence, 139. 
 
 how many witnesses required to prove a fact, 140. 
 
 when pjirty may testify in his own behalf, 140. 
 
 declarations of party against himself, how regarded, 140. 
 
 statement of agent evidence against principal, 140, 141. 
 
 when confessions of party not best proof, 141. 
 
 when admission of one of several joint plaintiffs or defendants, binds 
 all, 141. 
 
 admissions or concessions made when compromise pending, not evidence, 
 141. 
 
 justice can only decide on legal evidence, 142. 
 
 what proof permitted on loss of instrument, 145. 
 
 when defendant may be a witness for his co-defendant, 145. 
 
 counsel or attorney not permitted to disclose confidential communica- 
 tions, 145. 
 
 secrets of clients not to be disclosed, 145. 
 
 facts respecting which an attorney may be examined, 145, 146. 
 
 an agent, clerk, or student at law, not to testify to what, 140. 
 
 minister of the gospel not to disclose confessions made to him, 146. 
 
 physician not to disclose information acquired in attending patient, 146. 
 
 how evidence divided, 146. 
 
 public writings of record, 147. 
 
 public writings not of record, 147. 
 
 private writings how divided, 147. 
 
 acts of legislature, public and private, how proved, 147. 
 
 Revised Statutes, how proved, 147. 
 
 what essential to entitle statute to be read in evidence, 147. 
 
 record of Justices' Court when disputed, how proved, 148. 
 
 copies of records, how proved, 148. 
 
 proceedings in courts of law, not being records, how proved, 148. 
 
 judge's order, how proved, 148. 
 
 affidavits made in other states how authenticated, 148. 
 
 proceedings under insolvent laws how proved, 148, 149. 
 
 proceedings in Surrogate's Courts how proved, 149. 
 
 justices' docket evidence of what, 149. 
 
 transcripts from docket, when evidence, 149. 
 
 when parol evidence admissible, to show what facts were submitted to 
 court and jury, 150. 
 
 when docket lost or destroyed, how judgment proved, 150. 
 
 wiien jiisiico dead or absent, how ])rocee(lings before him piroved, 150. 
 
 transcripts from iIk; dockets of justices in other states, how governed, 150. 
 
 proceedings of notaries public, how proved, 150. 
 
 acts of cor])oration of city, how proved, 150. 
 
 shcritl 's sales of real estate, how proved, 151. 
 
 papers in iho official custody of clerks of courts, how proved, 151. 
 
 conveyances concerning real estate, how proved, 151. 
 
 proof of wills, 151. 
 
 j)roof of written instruments in general, 151. 
 
 when and how proof of conveyance contested, 152.
 
 INDEX. 675 
 
 EVIDE NC E— co/i^mwet/. 
 
 acknowledifiueiit of instruments may be taken by justice, 152. 
 justice must know the party makina: the acknowledgment, 152. 
 forms of acknowledgments, 152, 153, 154, 155, 15G, 157. 
 acknowledgment or proof, before one who styles himself a judge or other 
 
 officer, prima facie evidence of what, 157. 
 where an instrument has not been acknowledged and certified, executioa 
 
 how proved, 158. 
 proof of a deed or instrument under seal to which there is a subscribing 
 
 witness, 158. 
 proof of deed to which there is a subscribing witness, executed by third 
 
 person not party to suit, 158. 
 proof of handwriting of party, 158, 159. 
 seal only presumptive evidence of consideration, 159. 
 proof of bills of exchange and promissory notes, 159. 
 when the production of writings in proof not to be dispensed with, 159. 
 receipt, although drawn in absolute terms, and expressed to be in full, not 
 
 conclusive, 161. 
 parol evidence may be given of receipt, without accounting for absence 
 
 of writmg, 161. 
 of what parol evidence may be given, as regards a written simple con- 
 tract, 161. 
 transcript of iudgtnent prima facie evidence that justice had jurisdiction, 
 198. 
 EXCISE, 
 
 who commissioners of, 364. 
 
 duties of commissioners of, 364. 
 
 when commissioners of required to meet, 364. 
 
 powers of commissioners of, 364, 365. 
 
 commissioner's book of minutes, how kept, 365. 
 
 license only granted to residents of towns for which board formed, 365. 
 
 license to be in writing, 365. 
 
 no fee or reward to be taken for license, 365. 
 
 what security required before granting license, 366. 
 
 upon what conditions license granted, 365, 366. 
 
 licenses to keep taverns to be granted with certain restrictions, 367. 
 
 when license granted to a grocer, 369. 
 
 what necessary to insert in grocer's license, 370. 
 
 book of minutes of commissioners of, 371. 
 
 commissioners of, to do any valid act, to be organized as a board, 371. 
 
 license a personal trust, 371. 
 
 licenses expire on a given day, 371. 
 
 fee of commissioners of, for drawing any bond, 371. 
 
 penalty for violating excise, 371, 372. 
 
 penally for selling liquor to apprentice or servant, 372. 
 
 penally for taking from apprentice or servant clothing, in payment for 
 
 liquor, 372. 
 penally for selling strong drinks to pauper, 372. 
 proceedings by court of sessions against one who has violated the e.^cise, 
 
 EXECUriON, 
 
 definition of, 208. 
 
 by whom issued, 208. 
 
 statement of, 208. 
 
 must be entirely filled up and dated, 208. 
 
 within what time returnable, 208. 
 
 may be issued immediately, 209. 
 
 when direction to collect interest, to be endorsed on, 210, 211. 
 
 how issued when the judgment is against joint debtors, 212. 
 
 when action lies against party for issuing, 212.
 
 676 
 
 INDEX. 
 
 ■E.XEC'UTIO'N— continued. 
 
 when may be renewed, or a new one issued, 212, 213. 
 
 what justice nnust do to renew, 212, 213. 
 
 what would authorize the renewal of, in the justice, 213. 
 
 when it may be renewed, though sufficient properly has been levied on, 
 
 213. 
 within what time a justice, whose term of office has expired, may issue 
 
 or renew an execution, 213. 
 when further execution issued, 213. 
 proof required to issue further execution, 214. 
 form of further execution, 214. 
 when clause for arrest to be inserted in, 214. 
 when person taken in execution against his body dies, what further exe- 
 
 dution may be issued, 214. 
 endorsement on, when issued for a violation of the statute relative to 
 
 excise, 214. 
 by whom served, 215. 
 who justice may ereipower to serve, 215. 
 endorsement to be made on by constable, 215. 
 when to be levied, 216. 
 
 what property liable to be taken on, 216, 217. 
 in serving, what officer may break open, 217. 
 what property exempt from, 218. 
 when goods bound by, 218. 
 when execution takes preference, 218, 219. 
 impediments in the way of, 219. 
 endorsement to be made on, 220. 
 notice of sale under, how given, 221. 
 sale under, how conducted, 221, 222. 
 against person, cannot issue until when, 222, 223. 
 how issued where transcript of judgment is filed, 223. 
 how issued, after lapse of five years, 224. 
 
 when possession of another's goods, exposes them to execution, 22. 
 personal properly, after forfeiture, liable on, against mortgagee, 23. 
 EXECUTOKS AND ADMlNlbTRATOUS, 
 
 may sue, but cannot be sued, before a justice, 6. 
 
 may sue, without joining with them the persons for whose benefit the 
 
 suit is i)rosecuted, 5. 
 when judgment against, evidence of a debt established, to be paid in the 
 
 course of administration, 6. 
 
 FENCE VIEWERS, 
 
 duties of, in relation to division fences, 577, 578, 579, 580. 
 
 duties of, in relation to cattle, 580. 
 
 duties of, in relation to floating timber, 581. 
 
 duties of, in relation to sheep or lambs, 581. 
 
 duties of, relative to strays, 581, 582. 
 
 fees of, .5115. .096. 
 FORMER RK(;oVKRY, 
 
 bar to a subsequent suit, 101. 
 
 where demand submitted to jury, perpetual bar, 105. 
 
 recovery upon part of an entire demand, bars the whole, 105. 
 
 what rnubt be proved to make it a bar, 105. 
 
 ERAIII), 
 
 what presumptive evidence of, on sale, assignment, or mortgage of per- 
 sonal property, 21.
 
 INDEX. 677 
 
 FRAUD — continued. 
 
 how question of, may arise otherwise than between mortgagees and 
 creditors, 22. 
 
 GUARDIAN, 
 
 for infant plaintiff, 77, 78. 
 for infant defendant, 78. 
 
 G 
 
 H 
 
 HABITUAL DRUNKARDS, 
 
 when overseers of the poor required to designate, and forbid the sale of 
 liquor to, 342, 343. 
 
 what a person, or the agent or member of the family of a person, forfeits 
 by selling liquor to, 343. 
 
 how fact of drunkenness contested, 344, 345, 346, 347. 
 HAWKERS AND PEDLARS, 
 
 must obtain lincense, 376. 
 
 penalty for traveling without license, 376. 
 
 penally for refusing to produce license, 376. 
 
 what facts are to be established to ronvict offender, 378. 
 
 when offender committed to jail, 378. 
 
 proceedings where offence is traveling or trading without license, 379, 
 380. 
 
 penalty to whom paid, 380. 
 
 within what time prosecution to be had, 380. 
 HIGHWAYS, 
 
 definition of, 417. 
 
 right of owner of adjacent soil to, 417, 418. 
 
 persons meeting on required to turn to the right, 418. 
 
 what meant by centre of, 418. 
 
 when action lies for obstruction, or injuries received on, 418, 419. 
 
 when action lies against master for act of his servant, on, 419, 420. 
 
 person assessed Jo work on, may appear how, 420. 
 
 penalty for not appearing to work on, or furnishing team, 420, 421. 
 
 proceedings to recover penalty, 421, 422, 423, 424. 
 
 penalty for obstructing, 424. 
 
 proceedings where encroached upon by fences, 424, 425, 426, 427. 
 
 penalty for running horses on, 442. 
 
 penalty for leaving horses unfastened on, 442. 
 
 INFANT, 
 
 who, 91. 
 
 what contracts of void, and what voidable, 91. 
 
 intention of the law in relation to, 92. 
 
 guardian appointed for, 77, 78, 79. 
 
 may have money independently of his father, and sue for the same, 92. 
 
 may maintain an action for part performance of an entire contract, 42. 
 
 may bind himself apprentice, 93. 
 
 liable for wrongs, 93. 
 
 infancy a personal privilege, 94. 
 INJURIES, 
 
 indirect, how occasioned, 47. 
 
 what may be the subject of an action, 44.
 
 678 INDEX. 
 
 IN JVRIES— continued. 
 
 how occasioned, 44. 
 
 of what justice has no jurisdiction, 44. 
 
 how direct, committed to personal property, 45. 
 
 indirect, to real property, when subject of action, 49. 
 INNS, 
 
 licenses to keep, to be granted with certain restrictions, 367. 
 
 within what time keeper of required to put up a sign, 368. 
 
 who keeper of may, and may not, trust, 368. 
 INTEREST, 
 
 rate of, 43. 
 
 how month considered for purpose of calculating, 44. 
 
 parties may agree upon less than legal rate, 44. 
 
 where no rate agreed upon, what rate may be demanded, 44. 
 
 how calculated, 44. 
 
 recoverable on contracts from time money is due, 44. 
 
 not recoverable on uncertain demands, unless by agreement, 44. 
 
 not recoverable on open running^account, 44. 
 
 JUDGMENT, 
 
 definition of, nature, and kinds of, 188. 
 
 for what amount justice may take and enter, on confession of defendant, 
 
 8, 193. 
 when enforced by rule of court, 267. 
 how rendered on an award, 266. 
 what record of, on an award, must state, 266, 267. 
 when void against a vendor, 22. 
 of what evidence, when rendered against a number of defendants, part 
 
 of whom only are served with process, 71. 
 when rendered without process or appearance, void, 71. 
 what rendered a;jainst plaintiff, if he fails to appear within an hour after 
 
 the joining of issue, or an adjournment, 73. 
 judgment of discontinuance, 188. 
 when judgment of discontinuance entered on account of justice being a 
 
 witness, 189. 
 when judgment of discontinuance rendered for the defendant with costs, 
 
 190. 
 when judgment of discontinuance rendered, and each party pay their 
 
 own costs, 190. 
 what will amount to a discontinuance, 190. 
 justice omitting to note judgment in docket, will work a discontinuance, 
 
 191. 
 when judgment of nonsuit rendered, 191, 192. 
 when judgment of nonsuit to be entered by reason of no appearance of 
 
 plaintin. 192. 
 if plaiiitifT does not appear when verdict given, or does not answer when 
 
 called, what judgment, 192. 
 in ontcring jud;>meiit on confession, plaintiff need not appear, 193. 
 how the afliiJavit recjiiired by statute may be avoided, 193, 194. 
 amount confessed must be certain, 194. 
 what conff.'ssion sliould state, 194. 
 what alli<lavii must stale, 194. 
 what justice must render as a general rule, 195. 
 wlieti tnu-l retid(!r forthwith, 1!)5. 
 
 no such thing in jubticos' court as judginonl by default, 195, 196. 
 when to be rendered for tlio defendant, and when for the plaintiff, with 
 
 costs, 196.
 
 INDEX. 679 
 
 JUDG MENT— continued. 
 
 when party may remit and release an excess, and take judgment for the 
 
 resiHue, 196. 
 how rendered, where several defendants are sued jointly, some of whom 
 
 are not served with process, 196. 
 not to exceed five dollars, 196. 
 when transcript of a lien on real property, 197. 
 transcript of", how obtained, 197. 
 
 when transcript of, must be given to defendant, 197, 198. 
 transcript of may be made, after the expiration of the justice's office, 198. 
 mandamus lies against justice refusing to give transcript of, 198. 
 transcript of deprives justice of further control over, 198. 
 how rendered when process is issued against two or more persoas jointly 
 
 indebted, 71. 
 JURISDICTION, 
 
 of Justices' Courts limited, 1. 
 
 consequences of proceeding without, 2. 
 
 when want of in justice may be shown, 4. 
 
 consequence to justice of proceeding without, 4. 
 
 consequence where the justice has jurisdiction, but errs in the exercise 
 
 of it, 4. 
 how far justice liable when there is not a total want of, 4. 
 of what persons justice has jurisdiction, 7. 
 to what amount justice has jurisdiction, though the plaintiff states his 
 
 demand at more than one hundred dollars, 8. 
 how amount reduced to justices' jurisdiction, 8. 
 justice has not jurisdiction of direct injury lo person, 44. 
 when penalty sued for, goes to the town of justice, in what cases he has 
 
 jurisdiction, 3. 
 of justice over penalties given by statute, 50. 
 JURY, 
 
 party must demand, 130. 
 
 when demand made, 130, 131. 
 
 what will be such an investigation of the merits of the case as to preclude 
 
 the calling, 131. 
 how many jurors the parties may have by agreement^ 131. 
 qualifications of jurors, 131. 
 
 what persons ought not to be summoned on, 131, 132. 
 when juror may be excused, 132. 
 from what place summoned, 132. 
 
 from what place summoned when suit between two towns, 132. 
 how summoned, 132. 
 what meant by a venire, 133. 
 to whom venire delivered, 133. 
 
 how objection made against constables serving venire, 133, 134. 
 manner of executing venire, 134. 
 how juror punished for default in appearing, 134. 
 what evidence of default of juror, 134. 
 
 how trial by jury may be waived after the issuing of venire, 135. 
 when party has a right lo insist upon trial by jury, 135. 
 what justice must do, before proceeding to draw, 167. 
 how jury obtained, 167, 168. 
 objection to jurors, what called, 168. 
 jurors how sworn, 171. 
 oath lo be administered to, 185. 
 who sworn to attend, 185. 
 
 must be kept together until they agree on their verdict, 185. 
 to what extent justice may confer with, 186. 
 what conduct of, will cause judgment to be set aside, 186.
 
 680 INDEX. 
 
 JURY — continued. 
 
 when they have agreed on their verdict, verdict to be entered by justice 
 in his docket, 186. 
 
 verdict of, how given, 186, 187. 
 
 when may bring in their verdict on Sunday, 187. 
 
 when and how, they may correct their verdict, 187. 
 
 must be discharged when they cannot agree, 187. 
 
 proceedings against, 241, 24-2, 243, 244. 
 
 law in relation to, in New York, 461, 462, 463, 464, 465, 466, 467. 
 JUSTICES' COURTS, 
 
 not of record and of limited jurisdiction, 1. 
 
 confined to authority given them by statute, 1. 
 
 consequences of proceeding without jurisdiction, 2. 
 
 actions cognizable by, 9. 
 JUSTICES' COURT OF NEW YORK, 
 
 into how many judicial districts, city divided, 459. 
 
 justice elected in each district, 459. 
 
 justice how elected and how paid, 459, 
 
 clerk of, how appointed, 459. 
 
 duties of clerk, and how paid, 459, 460. 
 
 in what districts actions tried, 460. 
 
 absence of justice will not abate suit, 460. 
 
 case how tried, when new trial ordered, 460. 
 
 when justices' successor may issue or renew executions, 461. 
 
 what evidence of proceedings, 461. 
 
 death of justice will not abate any process, suit or judgment, 461. 
 
 jurisdiction of, 461. 
 
 appeal from, 461. 
 JUSTICES' COURTS IN BROOKLYN, 
 
 into how many districts city divided, 467. 
 
 two justices of, to be elected every four years, 467. 
 
 jurisdiction of, 467. 
 
 appeals from, to what court, 407. 
 
 vacancy in office of justice, how supplied, 467. 
 
 municipal court of Brooklyn, repealed, 467, 468. 
 JUSTICES' COURT OF ALBANY, 
 
 five justices of, to be elected every four years, 468. 
 
 justices of, how elected, 468. 
 
 three justices to be designated for, 469. 
 
 when justices to enter upon the discharge of their duties, 468, 469. 
 
 powers and duties of, when created and defined, 469. 
 
 analogy of jurisdiction to that of justices in towns, 469. 
 
 when one justice of, may try and render final judgment, 469, 470. 
 
 power of, to suspend, or totally exclude attorney, 470. 
 
 may exact from non-residents a depiisit as security, 470. 
 
 constable how remcjvcd by justices of, 470. 
 
 vacancy in the office of constable, how supplied by, 470. 
 
 justices of, how paid, 470, 471. 
 
 who clerk of, 471. 
 
 duty of clerk of, 471. 
 JUSTICES' COURT OF TROY, 
 
 three justices and clerk of, to be elected, 471. 
 
 how and for what term (o hold office, 471. 
 
 how often rc-eleclod, 471. 
 
 vacancy in ili<; office of justice or clerk, how su{)plicd, 471, 472. 
 
 authority of justices, 472. 
 
 jurisdiction of, 472. 
 
 fees and cosIh duo to, bow aued for and recovered, 472, 473. 
 JUSTICE.^' COURI' OK HUDSON, 
 
 justices of elected and designated, 473.
 
 INDEX. 681 
 
 JUSTICES' COURT OF HUDSON— con^mweJ. 
 
 vacancy in office of justice of, how supplied, 473. 
 
 clerk of, how appointed, 473. 
 
 authority and jurisdiction of, 473, 474. 
 JUSTICES' COURTS OF CITIES, 
 
 application of code to, 474. 
 JUSTICES OF THE PEACE, 
 
 how appointed in reign of Edward Third, 2. 
 
 how appointed in this slaie under the constitution of 1777, 2. 
 
 Jaws in relation to, of 1801, 1813, and 1818, 2. 
 
 so far as relates to their place of business, town officers, 2. 
 
 must reside in the town for which they ate chosen, 2. 
 
 cannot try a cause in any other town, 2. 
 
 may issue process any where in the county, 2. 
 
 subpoena only process in civil suits to be operative out of their county, 2. 
 
 office not vacated in consequence of the increase or diminution of their 
 territorial jurisdiction, 3. 
 
 number of, in each town, 3. 
 
 manner of election and term of office, 3. 
 
 how removed, 3. 
 
 becoming tavern keeper after election, lose jurisdiction, 3. 
 
 interest in amount recovered disqualifies, 3. 
 
 cannot try an action to recover a penalty given to the town in which they 
 reside, excepting where the penalty is given to the town directly in its 
 corporate capacity, 3. 
 
 what relationship of parties to justice, disqualifies him, 4. 
 
 how far the forming an opinion of the matter in controversy disquali- 
 fies the justice, 4. 
 
 absence of, on return or adjourned day, operates as a discontinuance of 
 the suit, 75. 
 
 how must decide case, 165. 
 
 when may dismiss case, with costs to the plaintiff, without hearing de- 
 fendant's proof, 167. 
 
 decisions upon questions of fact by, when absolute, 178. 
 
 discretion of, as to the order in which proof shall be received, 178. 
 
 discretion of, in admitting testimony, 179. 
 
 discretion of, in re-examining witnesses, 179, 180. 
 
 LANDLORD AND TENANT, 
 
 when relation exists, 385. 
 
 nature of lease, 385. 
 
 how lease created, 385. 
 
 tenant's right to underlet, 386. 
 
 verbal agreement not to vary written lease, 386. 
 
 leases in city of New York, 386. 
 
 agreement for a lease not to commence within a year, must be in writing, 
 386. 
 
 contract between, how effected, 386, 387, 388. 
 
 lease must be certain as to time, 389. 
 
 tenancy at will and at sufferance, 389. 
 
 when tenant is deemed to occupy from year to year, 390. 
 
 what notice must be given to put an end to tenancy at will or at suffer- 
 ance, 390. 
 
 notice to end tenancy how served, 390. 
 
 when landlord may re-enter, 390. 
 
 how far landlord bound by covenant of quiet enjoyment, 390. 
 
 tenant excused from paying rent when evicted, 391.
 
 682 INDEX. 
 
 LANDLORD AND TEN A'NT— continued. 
 
 to what extent tenant bound to repair, 391, 3i)2. 
 
 what tenant may remove from premises, 392. 
 
 when landlord sells properly, privileges of purchaser, 392. 
 
 proceedinors to remove tenant at will, or at sufferance, 394, 395, 396, 397, 
 398, 399, 400. 
 
 when relation between, deemed cancelled, 401. 
 
 when proceedings against tenant stayed, 401, 407. '' 
 
 notice to pay rent, how served, 403. 
 
 how tenant may controvert affidavit of landlord, 403, 404. 
 
 proceedings in removing tenant, 401, 405, 406, 407, 408. 
 
 landlord may recover rent of tenant removed, 406. 
 
 how proceedings in removal of tenant, appealed, 408, 409. 
 
 proceedings where premises are deserted by tenant, 40J, 410. 
 
 proceedings in cases of forcible entry and detainer 410,411,412,413, 
 414,415,416. 
 LEASE, 
 
 nature of, 385. 
 
 how created, 385. 
 
 verbal agreement not to vary written, 386. 
 
 in city of New York, 386. 
 
 agreement for, not to commence within a year, must be in writing, 386. 
 
 must be certain as to time, 389. 
 
 purchaser of property has all the benefits of, 392. 
 
 difference between, and an assignment, 392, 393. 
 
 how assigned, 393. 
 LUNATICS, 
 
 may be confined, 334. 
 
 who required to confine and maintain, 334. 
 
 how confined, 334, 335, 336. 
 
 within what time to be sent to asylum, 336. 
 
 what evidence required as to insanity, 337. 
 
 what will warrant admission of, into asylum, 337. 
 
 when lunatic may appeal from order to send liim to asylum, 337, 338. 
 
 proceedings where justices refuse to make an order for confinement, 338. 
 
 what superintendent of asylum required to do, 338. 
 
 rule as to the admission of indigent insane patients into asylum, 338, 339, 
 340, 341. 
 
 who required to support patient in asylum, 342. 
 
 M 
 
 MARINE COURT, 
 
 number of judges of, 447. 
 
 judges of, how elected, 447. 
 
 clerk i)f, how appointed, 447. 
 
 vacancies of judges or clerk, how supplied, 447. 
 
 when judges and clerk of, to account for fees, 447. 
 
 when required to be open, 448. 
 
 duty of clerk of. 448. 
 
 wehn application made to, for process, 448. 
 
 process of, how tested and signed, 448. 
 
 power of constable in serving process, 448. 
 
 labors and duties required of each judge, 448. 
 
 confessiim of defendant, by whom taken out of court, 449. 
 
 what deemed legal evidence of the pri)ceedings of, 449. 
 
 jurisdiction of, in kcf^jiing the peace, 449. 
 
 jurisdiction of, in taking adid.ivit-s, 419. 
 
 judgc.4 of, how removed, 449, 450.
 
 INDEX 683 
 
 MARINE C0\] RT—conlinued. 
 
 clerk of, by whom suspended, 450. 
 
 when clerk of, removed, whom the mayor of the city to designate to sup- 
 ply his place, 450. 
 
 civil jurisdiction of, 450, 451. 
 
 marine jurisdiction of, 451, 452. 
 
 fees allowed in, 452, 453, 454, 455. 
 
 pleadings in, 458, 459. 
 
 appeal from, 459. 
 
 power of, in naturalizing foreigners, 455. 
 MASTER AND SERVANT, 
 
 relation of rests on contract, 269. 
 
 what implied, as between, 269, 270. 
 
 when performance of work by servant condition precedent to wages, 
 270, 271. 
 
 when servant loses his right to wages for the time he has served, 271, 
 272. 
 
 when servant may be dismissed by master before the expiration of his 
 term of service, 272. 
 
 when servant dismissed, what will prevent his recovering waaes, 272. 
 
 when servant may recover wages pro rata, without any express contract, 
 272. 
 
 when master bound by act of servant, 272, 273. 
 
 when master and servant both liable, 273, 274. 
 
 when master liable for fraud of servant, 274. 
 
 master not bound to provide medical attendance for servant, 274. 
 
 servant not entitled to wages when discharged for misconduct, 42. 
 
 when master abuses servant, the latter may recover for services, or re- 
 cover damages for breach of agreement, 42. 
 
 what treatment of master will justify the servant's leaving his employ, 
 42, 43. 
 
 proceedings where servant guilty of misdemeanor, 280, 281, 282, 283. 
 
 proceedings where master guiltv of cruelty to servant, 284, 285. 
 MORTGAGE, 
 
 how far change of possession necessary to validity of, 21. 
 
 what necessary to validity of, as against creditors and subsequent pur- 
 chasers and mortgagees in good faiih, 22. 
 
 how and where filed, 23. 
 
 how often the filing of to be renewed, 23. 
 
 how far the renewal necessary, 23. 
 
 at what time the title of the mortgagee becomes absolute, 23. 
 
 distinction between mortgage and pledge, 23. 
 
 when mortgage debt becomes absolute at law, 23, 24. 
 
 the filing, or renewing, not necessary as between parlies, 23. 
 
 N 
 
 NATURALIZATION, 
 
 power of Marine Court in, 455. 
 
 terms upon which an alien can be naturalized, 455, 456, 457. 
 
 proceedings in, 457, 458. 
 NOTARIES PUBLIC, 
 
 how appointed, and for how long, 505. 
 
 where to reside, 505. 
 
 may perform duties any where in the state, 505. 
 
 number appointed, 505. 
 
 duties of, 505. 506. 
 
 what evidence of presentment, or payment, of bill or note, 506. 
 
 in case of death or insanity of, what evidence of acts, 506.
 
 684 INDEX 
 
 NOTARIES PUBLIC— continued. 
 how far liable. 506. 
 fees of, 592. 
 
 o 
 
 OBSERVANCE OF SUNDAY, 
 
 what acts constitute violation of, 358, 359. 
 
 penalty for violating-, 359. 
 
 what statute prohibits from exposing to sale on Sunday, 359. 
 
 what inn keeper's prohibited from selling on Sunday, and under what 
 penalty, 359. 
 
 prosecution how instituted, 359. 
 
 how justice is to proceed to inquire into the facts, 360. 
 
 what done when the offender does not pay penalty and costs, 361. 
 
 proceedings to enforce forfeiture for exposing goods for sale on Sunday, 
 362, 363. 
 
 what certificate of conviction must state, and within what time filed, 363. 
 
 law ill relation to transacting business of court on Sunday, 363. 
 
 privilege of person who keeps Saturday, 363, 364. 
 OFFICERS, 
 
 fees of county officers to be paid before services performed, 508. 
 
 person to be eligible to town office must be elector of town, 508. 
 
 what town officers chosen by ballot, 508. 
 
 power and duties of justices of the peace in appointing town officers, 
 508, 509. 
 
 how long town officers hold their offices, 510. 
 OVERSEERS OF HIGHWAYS, 
 
 number chosen, 551. 
 
 penalty for refusing to serve, 551. 
 
 where refuses to serve, how successor appointed, 551, 552. 
 
 penalty for neglect of duty, 552, 553, 554. 
 
 powers and duties of, 552, 553, 554. 
 
 compensation of, 595. 
 OVERSEE KS OF THE POOR, 
 
 number chosen, 555. 
 
 powers and duties of, 556, 557, 559, 560. 
 
 compensation of, 595. 
 
 PARTIES, 
 
 who must be to action, 5. 
 
 cannot confer jurisdiction by their own acts, 2. 
 
 when town ami county officers parlies to action, 5. 
 
 who must be plaintifl's, 5. 
 
 wlio may be made party defendant, 5. 
 
 who iimst be joined as plaintiffs or defendants, 6. 
 
 when party, who should have been joined as plaintiff, may be made a 
 
 defendant, 6. 
 what parlies to bills of exchange and promissory notes included in same 
 
 action, 6. 
 when married woman a party, how she must sue, 6. 
 the filing or renewing mortgage not necessary, as between p;irties, 23. 
 parties may institute suits by voluntary appearance and agreement, 52. 
 when parlies may demur, 89. 
 
 when rigiii of (lariies, ri'spcclively, to address justice or jury, 185. 
 wliicli parly buiiis up first, 185.
 
 INDEX. 685 
 
 PARTNERSHIP, 
 
 definition of, 15. 
 
 to legal partnership what essential, 16. 
 between whom it may exist, 16. 
 the two leading principles of, 16. 
 what constitules a valid partnership, 16. 
 
 when it may exist as to others, ihongh not as between the parties, 17. 
 what constitutes between parlies, 17. 
 
 obligation of partnership engagement implied in the acts of the parties, 17. 
 how far members of liable for debts of firm, 17. 
 how far acts of individual members bind firm. 17. 
 
 how a person may receive part of the profits of business, without be- 
 coming a responsible partner, 17. 
 how a limited formed, 18. 
 steps requisite in forming limited, 18. 
 who may transact the business of" limited, 18. 
 how far special partner may act, 18. 
 under what name limited partnership conducted, 18. 
 what necessary where formed for purposes of transportation, 18, 19. 
 PENALTY, 
 
 given by statute, how sued for, 49. 
 PLEADING, 
 
 definition of, 80. 
 
 general aim of, 80. 
 
 what must be staled in, 80. 
 
 matter presumed to lie more within the knowledge of the other party, 
 
 need not be stated in, 81. 
 when facts constitute condition precedent, must be stated, 81. 
 fact need not be stated when law presumes it, 81. 
 facts must be stated in with certainly, 81. 
 in construction of facts, every thing taken most strongly against the 
 
 party pleading, 81. 
 construction of, liberal, 82. 
 in pleading performance of condition precedent, not necessary to state 
 
 facts showing such performance, 82. 
 in pleading judgment not necessary to state facts conferring jurisdiction, 
 
 82. 
 in pleading private statute, sufficient to refer to its title and day of pas- 
 sage, 82. 
 general issue permitted, 82. 
 
 how far defendant entitled to plead after expiration of the hour, 83. 
 
 hovY far defendant entitled to plead at adjourned day, 83. 
 
 pleadings verbal or written, 84. 
 
 when verbal, must be entered in justice's docket, 1, 84. 
 
 when written, must be filed by justice, 1, 84. 
 
 how made, when verbal, 84. 
 
 first step in, 85. 
 
 of what complaint should consist, 85. 
 
 how complaint made when verbal, 86. 
 
 complaint not to join different causes of action, 86. 
 
 when same causes of action joined, 86. 
 
 time and place, when matter of form, need not be stated, 86. 
 
 time and place, when material, must be set forth, 86. 
 
 when a request must be stated, 87. 
 
 how far a variance will affect plaintiff's right to recover, 87.3 
 
 of what answer shall consist, 88. 
 
 how grounds of defence stated in answer, 88, 89. 
 
 definition of demurrer, 89. 
 
 when parties may demur, 89.
 
 INDEX. 
 
 fLEATil'^G— continued. . , ^ , , , • , • , ^ 
 
 when plainuff ignorant of name of defendant, how designated in plead- 
 ing, 90. 
 justice required to disregard errors in pleading which do not affect the 
 
 substantial rights of the adverse party, 90. 
 when pleadings may be amended, 91. 
 POOR, 
 
 how relieved, 288. 
 
 how relieved when requiring only temporary assistance, or cannot be re- 
 moved, 289, 
 how relieved in counties where there is no poor house, 290. 
 when have legal settlement, 291. 
 when have no legal settlement in county, 291. 
 when unable to work, who bound to support, 292. 
 relief of, how compelled, 292, 293. 
 in what order, relatives liable to support, 294. 
 when relatives only required to contribute a portion towards support of, 
 
 294. 
 payment of costs and expenses, and obedience to order of maintenance, 
 
 how enforced, 294. 
 proceedintJS where father or mother abscond, leaving family chargeable to 
 
 public for support, 295, 296, 297, 298. 
 with what powers county superintendents vested in countie-s that support 
 their own poor, 299. 
 POUND MASTERS, 
 
 number elected in each town, 572. 
 duties of, 572. 
 
 proceeds of impounding beasts, how applied, 572. 
 fees of, 595. 
 PROCESS, 
 
 definition of, 52. 
 
 effect of stating cause of action in, for more than one hundred dollars, 8. 
 
 when issued against two or more persons jointly indebted, how judgment 
 
 rendered, 71. 
 executed by officer not having authority, void, 71. 
 when constable protected in service of, when void for want of jurisdiction 
 
 in court, 72. 
 issued or filled up on Sunday, void, 72. 
 
 must be filled up at the lime of its delivery to the officer, 72. 
 when authority given by justice to alter, void, and when valid, 72. 
 irregularity in, how waived, 73. 
 who justice may empower to execute, and how, 73. 
 richts and liabilities of officer in executing, 74. 
 PROFANE CURSING AND SWEARING, 
 penalty for, 347. 
 
 when prosecution for maybe instituted, 347. 
 PUBLIC STAGES, 
 
 penalty for keeping drunken driver, 441. 
 
 when driver must be discharged, 441. 
 
 penalty for not discharging driver, 441. 
 
 how far owners of, liable, 442. 
 
 duties of proprietors of, wiih regard to unclaimed baggage, 442, 443. 
 
 liabilities of proprietors of, as common carriers, 444, 445. 
 
 a 
 
 QUESTION OF TITLIO, 
 
 justice no jurisdiction of, 100. 
 
 how defendanl can avail iiimsclf of, 100, 107, 108.
 
 INDEX. 687 
 
 QUESTIONS OF TITLE— conlinued. 
 
 where suit discontinued before justice, on plea of, how prosecuted in 
 
 higher court, 108. 
 what clone when several causes of actioPj to one of which only plea of, 
 
 interposed, 108. 
 
 R 
 
 ROADS, 
 
 public or private, not to be laid out without consent of owner, 427. 
 must be certified to be necessary by twelve reputable freeholders, 427. 
 proceedings in laying out public roads, 427, 428, 429, 430, 431, 432. 
 appeal to decision of commissioners laying out road, how taken in first 
 
 instance, 433, 434, 435, 436. 
 in assessing damages for laying nut, by whom costs paid, 436, 437. 
 damages for laying out, how assessed, 437. 
 fees in re-assessing damages, 437. 
 
 s 
 
 SALE, 
 
 when void as against creditors, 20. 
 
 what necessary to render valid, where the price of goods, chattels, or 
 things in action is fifty dollars or more, 20. 
 
 what will render note or memorandum of, valid, 20. 
 
 what deemed memorandum of, at auction, 20. 
 
 how far change of possession necessary to validity of, 21. 
 
 when sale under execution void, 22. 
 
 what implied in every sale of personal property, 24. 
 
 when seller warrants the title, 24. 
 
 when party buys at his peril, 24. 
 
 distinction between responsibility of seller as to title, and as to quality of 
 things sold, 24. 
 
 when representation of soundness will not render seller liable, 24. 
 
 by accepting an inferior article, the purchaser waives his right to demand 
 a reduction of price, 25. 
 
 what purchaser should do when he discovers goods unsound, 25. 
 
 of what seller would be guilty in deceiving the buyer, even as to open de- 
 fects, 25. 
 
 when action will lie against a third party for false representation to seller, 
 25. 
 
 in executory agreements to sell indeterminate things, what sufficient to 
 defeat sale, 27. 
 
 what amounts to evidence of sale by sample, 27. 
 SEALER OF WEIGHTS AND Mb:A«URE6, 
 
 one for every town and county, 507. 
 
 how appointed, 507. 
 
 duties of, 507, 508. 
 
 compensation of, 592. 
 SET OFF, 
 
 when may be pleaded, 101. 
 
 how governed, 101. 
 
 what necessary to constitute, 102. 
 
 when subject of, must exist, 102. 
 
 rule of, where there are several defendants, 102. 
 
 rule of, where claim founded on contract is assigned, 102, 103. 
 
 rule of, as regards promissory notes and bills of exchange, 103, 
 
 when defendant precluded from pleading, 103.
 
 688 INDEX. 
 
 SET OFF— continued. 
 
 how pleaded in suits brought by executors and administrators, 104. 
 
 what must be amount of claim and set oti' to bar jurisdiction, 104. 
 SCHOOL DISTRICT, 
 , what necessary to appear, for money to be paid to, 566. 
 
 state superintendent may direct an apportionment to, 566, 567. 
 
 who may form, regulate or alter, 571. 
 
 alteration of, when to take effect, 570. 
 SCHOOL DISTRICT, 
 
 may expend certain sum in repair of school house, 625. 
 
 sum how raised, 6Q5. 
 
 regulations concerning libraries of, 625, 626, 627, 628. 
 
 trustees of, how divided, 609. 
 
 what notice of meeting, must state, 609. 
 
 meeting of, when held, 609. 
 
 regulations of meeting of, 609, 610. 
 
 taxes of, how assessed, 611. 
 
 site of school house how changed, 611. 
 
 when site of former school house changed, site how sold, 611, 612. 
 
 certain officers of, to hold their offices until next annual meeting after ap- 
 pointment, 612. 
 
 vacancy in offices, how supplied, 612. 
 
 penally for officers of, refusing to serve, 613, 
 
 how officer of, may resign, 613. 
 
 duty of clerk of, 613. 
 
 duty of trustees of, 613, 614, 615. 
 
 assessment and collection of taxes of, 615, 616, 617, 618, 619, 620, 621. 
 
 annual reports of trustees of their duties and liabilities, 622, 623, 624. 
 
 formation and alteration of, 605, 606, 607. 
 
 of the powers of inhabitants of, and of the choice duties, and powers of 
 officers of, 607, 608, 609. 
 SHERIFF, 
 
 how and when elected, 476. 
 
 can hold no other office, and ineligible the next three years, 476. 
 
 required to give security, 476. 
 
 what oath required to be taken by his sureties, 467. 
 
 when required to renew security, 477, 478. 
 
 wlien under sheriff appointed, 478. 
 
 when vacancy occurs in office of, who to perform the duties, 478. 
 
 who liable for default of under sheriff, 478. 
 
 can appoint as many depuiies as he pleases, 478. 
 
 persons deputed by sheriff or under sheriff, by writing, 478. 
 
 oath required to be taken by sheriff, under sheriff, or deputy, 478. 
 
 within wliat time oath of, must be taken and deposited in clerk's office, 
 479. 
 
 penalty for omitting to take oath, and give required security, 479. 
 
 duties of, 479. 
 
 must reside in county for which elected, 479. 
 
 duty with regard to keeping office open, 479. 
 
 how removed, 479. 
 
 vacancy in office of, how supplied, 479. 
 
 fees of, 5H2, 583, 584, 585, 586. 
 STATUTE OF LIMITATIONS, 
 
 within what time an action upon a Fcaled instrument, or on a judgment 
 or decree of any court in tiio United States, or of any court of any 
 Btate or territory, to be cnnmienced, 98. 
 
 what actions coiiiineiiccd williin six years, 98. 
 
 what actions coniniciiccd witiiin liiiee years, 99. 
 
 v\ii;it actions coiiimeiiccii within two years, 99. 
 
 actions commenced williin one year, 99.
 
 INDEX. 689 
 
 STATUTE OF LIMITATIONS— conhnwerf. 
 
 within what time an action may be commenced against non-resident of 
 
 state, 100. 
 what disabilities will not be part of the time limited for commencement 
 
 of action, 100. 
 when plaintiff an alien subject, the time of the continuance of the war, 
 
 not a part of the time limited for commencing action, 100. 
 where judgment for plaintiff reversed on appeal, within what time new 
 
 action commenced, 100. 
 rule when commencement of action stayed by injunction, 100. 
 when a person can avail himself of a disability, 100. 
 how acknowledgment, or new promise, revived, 101. 
 SUBPCENA, 
 
 definition and nature of, 117. 
 how served, 119. 
 
 how witness punished for disobeying, 120. 
 fine what, and how imposed, 122, 123. 
 to whose use fine paid, 124, 125. 
 SUITS, 
 
 when abated by death, 256. 
 SUMMONS, 
 
 definition of, 53. 
 
 statement of cause of action in, 53. 
 effect of non-imprisonment act on, 63, 54. 
 how served, 54. 
 
 time of service and return, 54. 
 definition of long summons, 54. 
 short summons, 54. 
 when long summons used, 54. 
 
 when non-resident plaintiff entitled to short summons, 54. 
 ste[)s taken by non-resident plaintiff to obtain short summons, 55, 56. 
 when short summons may issue of course, 56. 
 
 justice may sign blank summons, to be filled up under his presence and 
 control, 72. 
 SUPERINTENDENTS OF THE POOR, 
 
 number elected in each county, and how often, 495. 
 
 security to be given by, 495. 
 
 powers and duties of, 495, 496. 
 
 support of poor not to be charged to county without their sanction, 497. 
 
 decisions of, in relation to support of poor, how entered and filed, 498. 
 
 when to render to county treasurer a statement of the sums charged to 
 
 the several towns, 498, 499. 
 required to present an estimate each year lo board of supervisors, of the 
 
 sum necessary for support of county poor, 499. 
 how liable, 499. 
 
 have power to institute proceedings to ascertain the father of a bastard, 499. 
 compensation of, 591. 
 SUPERVISOR, 
 
 power and duty of, 510, 511. 
 how special meeting of called, 512. 
 meetings of, how held, 512. 
 duty of clerk of, 512. 
 
 accounts presented to, must he numbered, 512. 
 
 account of moneys collected to be transmitted by, lo county treasurer, 532. 
 accounts of to be made out in items, 513. 
 legislative powers of board of, 514, 515, 516, 517. 
 penaty for refusing to perform duties, 518. 
 compensation of, 592. 
 SLRETY FOR THE PEACE, 
 
 definition and proceedings in, 243, 244, 245, 246, 247. 
 
 44
 
 690 INDEX. 
 
 SURROGATE, 
 
 when to be elected, 485. 
 power of, 485, 486. 
 security given by, 486. 
 
 when not permitted to act as such, or as attorney, 486. 
 when county judge to act as surrogate, 486. 
 how paid, 487. 
 
 local officers elected to act for, how paid, 487. 
 compensation of, 589. 
 SWAMPS AND MARSHES, 
 
 proceedings in draining, 380, 381, 382, 383. 
 
 T 
 
 TENDER, 
 
 consequences of regular tender and refusal of goods, where the articles 
 will subject the party tendering to a charge in order to keep them, 97. 
 
 when debtor discharged by tender, 97. 
 
 duty of buyer where seller refuses to accept articles sold, 97. 
 
 in tendering specific articles, what must be done, 97 
 
 where any act remains to be done by purchaser, to prepare goods for de- 
 livery, the property in them does not pass, 97. 
 
 where no place is designated, articles sold to be delivered at the place 
 where they are at tiie time of the sale, 98. 
 
 obligor's duty, where contract to deliver specific articles, 98. 
 
 when defendant may make, 95. 
 
 effect of, 95. 
 
 effect of paying money into court instead of making tender, 95. 
 
 made by agent, good, 96. 
 
 what lawful tender, 96. 
 
 what constitutes a good tender, 96. 
 
 what necessary with regard to the amount of the sum tendered, 96. 
 TOWNS, 
 
 empowered to make rules for ascertaining sufficiency of fences, 46. 
 
 nature and powers of, 599, 600. 
 
 charges of, 596, 597. 
 
 meetings of, how organized, 600, 601, 602, 603. 
 
 mode of conducting meetings of, 603, 604. 
 
 school for colored children may be established in, 630. 
 TOWN AUDITORS, 
 
 who constitute board of, 573. 
 
 when and where required to meet, 573. 
 
 duties of, 573. 
 
 what necessary before an account can be audited, 573. 
 TOWN CLERK, 
 
 required to take the oath of office, 518. 
 
 powers and duties of, 518, 519, 520, 521, 522, 523. 
 
 copies of papers filed in office of, and transcripts from the book of records, 
 certified by him, will be evidence, 518. 
 
 compensation of, 592. 
 TOWN SUPKIUN PENDENTS OF COMMON SCHOOLS, 
 
 when created, 561. 
 
 how elected, 501. 
 
 when ofiice of deemed vacant, 564. 
 
 vacancy in office of, how filled, 564. 
 
 required to give security, 5(>4. 
 
 wlien to enter ii()()n dmics of, 5f)1. 
 
 what offices disipialified from holding, 561. 
 
 when rcfiuircd to return school moneys to the county treasurer, 567. 
 
 duties of, 505, 507, 508, 569, 570, 571.
 
 INDEX. 691 
 
 TOWN SUPERINTENDENTS, &c.— continued. 
 
 penalty for neglect of duty, 568. 
 
 penalty how applied, 569. 
 
 when successor of may bring sujt, 50!). 
 
 powers and privileges of, 570. 
 
 compensation of, 570. 
 
 inspector of common schools in his town, 570. 
 
 decision of special meeting of, how far valid, 572. 
 
 may demand and sue for certain moneys, 572. 
 
 moneys recovered by, against defaulting trustee, to be applied to the use 
 and benefit of district school, 625. 
 
 remedy of, to recover unpaid balance in hands of delinquent trustee, 625. 
 
 compensation of, 595. 
 
 may administer oaths in certain cases, 628. 
 
 how to hold office, when appointed by justices of the peace, 628. 
 
 how removed, 628, 629. 
 
 when neglect to make annual report, what done, 629. 
 TRIAL, 
 
 definition of, 165. 
 
 first step in preparation of, 117. 
 
 when to be had before justice alone, 165. 
 
 what will assist justice at, 165, 166. 
 
 of what trial before justice alone often consists, 166. 
 
 when plaintiff may withdraw suit, 167. 
 
 defendant's not appearing to answer, not considered an admission of 
 plaintiff's demand, 167. 
 
 when trial by jury held, 167. 
 
 who to open and state case, 171, 172. 
 
 what party opening case to state, 172. 
 
 how trial by jury waived, after the issuing of venire, 135. 
 TRUSTEES OF GOSPEL AND SCHOOL LOTS, 
 
 abolished, 563. 
 
 by whom office of exercised, 563, 564. 
 
 w 
 
 WARRANT, 
 
 definition of,' 56. 
 
 effect of non-imprisonment act upon, 57. 
 in what cases applicable, 57. 
 what proof indispensable to the issuing of, 58. 
 non-resident plaintiflfto obtain, must give security, 60. 
 what security required, 60. 
 constable's return upon, 60. 
 defendant how arrested upon, 60. 
 
 when justice who issued warrant absent, before whom cause tried, 61. 
 how long defendant can be detained on, 76. 
 to be annexed to assessment roll, must contain what, 530, 531. 
 WARRANTY, 
 
 what implies warrant of title, 24. 
 
 what warranty in any sale of personal property, 24. 
 
 when seller warrants the title, 24. 
 
 distinction between implied warranty as to title, and as to quality of goods 
 
 sold, 24. 
 when representation of soundness does not amount to, 24. 
 false assertion of value, when matter of opinion, does not amount to, 24, 
 may sue in case of breach of, without returning goods, 25. 
 what necessary to constitute, 26. 
 
 measure of damages upon the breach of warranty of a horse, 26. 
 warranty in executory agreements to sell undeterminate things, 27. 
 
 1
 
 692 INDEX, 
 
 WARRANTY— cowhnwe^. 
 
 when articles sold by sample, how far warranted, 27. 
 
 in what cases an obljoration implied without any express stipnlation, 27. 
 
 when an action will not lie on a parol warranty, 27. 
 WEIGHTS AND MEASURES, 
 
 law in relation lo, 248, 249, 250. 
 WITNESS, 
 
 how procured, 117, 118. 
 
 how punished for disobeying subpoena, 120. 
 
 to what liable for disobedience, 122. 
 
 method of examination of, 172, 173. 
 
 leading questions to, not permitted, 173. 
 
 when party may put leading questions to, 173. 
 
 who must swear witness on trial before justice, 166. 
 
 mode of swearing witness, 166. 
 
 what objection must be to, 142. 
 
 who cannot be, 142. 
 
 reason for excluding husband and wife, 142. 
 
 justice before whom cause is tried cannot be, 142. 
 
 person not prevented by religious belief, 142. 
 
 objections to competency of, what, 142. 
 
 when children cannot be, 142. 
 
 persons who have not the use of reason, excluded, 143. 
 
 when deaf and dumb persons may give evidence by signs, 143. 
 
 person intoxicated ought not to testify, 143. 
 
 felons not competent, 143. 
 
 cannot be compelled to criminate himself, 143. 
 
 interest does not exclude, 143. Vide Code, 398. 
 
 proof given, to impair credit of, 144. 
 
 how objection made to competency of, 144. 
 
 when party to suit competent, 144. 
 
 what party in interest may prove, 144, 145. 
 
 when general character of subscribing witness who are dead, may be 
 inquired into, 177. 
 
 party cannot discredit his own witness, 177. 
 
 when party may disprove facts stated by his own witness, 177. 
 
 when party may impeach his own witness, 177. 
 
 when party may give evidence of the good character of his witness, 177, 
 178. 
 
 proceedings against, 239, 240. 
 
 when parly nov eniiiled to benefit of testimony when witness dies after be- 
 ing examined, 173, 174. 
 
 may cross-examine in every stage of cause, 174. 
 
 when may be repeatedly exanjined, 174. 
 
 what question cannot be compelled to answer, 174. 
 
 what use can be made by witness of entry or memorandum of an occur- 
 rence, 174. 
 
 when opinion of, evidence, 175. 
 
 liow impeached, 175, 170. 
 
 mode of examining into general character of, 176. 
 
 of weighing testimony of, ISO. 
 
 testimony of, when reconciled, 160, 181, 
 
 when witnesses swear to facts directly contradictory, how preponderance 
 of testimony decided, 181, 182. 
 
 credit of, adVuMed by rciationsiiip, 182. 
 
 what adds to or detracts from, credit of, 182, 183. 
 
 how interest allects credibility o(", 18;}. 
 
 what will liavo weight in coiiiirming testimony of, 183. 
 
 probability of story lo be regarded in weighing testimony of, 183. 
 
 manner in which witness relates story to bo taken into account, 184.
 
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