i^ 
 
 >
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 
 1 
 
 1 
 I 
 
 
 
 f 
 
 
 SCHOOL OF LAW 
 LIBRARY

 
 A 
 
 TREATISE 
 
 ON" THE 
 
 Practice of tl)c (Huuvts 
 
 ■OF THE 
 
 STATE OF NEW-YORK! 
 
 ADAPTED TO THE 
 
 CODE OF PEOCEDUPiE, 
 
 AS AMENDED BY THE ACT OF APRIL 11. 1&19, AND THE RULES OF 
 THE SUPREME COURT. 
 
 TO WHICH IS ADDED, THE 
 
 PRACTICE W COURTS OF JUSTICES OF THE PEACE. 
 
 WITH AN 
 
 SlppenMi of |c5ractirQl /orm0. 
 
 BY CLAUDIUS L. MONELL, 
 
 Counsellor at Law: > 
 
 ALBANY : 
 
 GOULD, BANKS AND GOULD, 104 STATE- STEJIET. 
 
 NEW-YORK : 
 
 BANKS, GOULD AND CO., 144 NASSAU-ST. 
 
 1849.
 
 r 
 
 Entered acconlin^ to act of Conjre?s, in the ypar one thousand eig-ht hun- 
 dred and forty-nine, by Gour.D, Hanks and Guui.d, in the cleri..'s office of 
 tlie District Court of the Norliiern District of A'ew-Yorlc. 
 
 CHARLES VAN BENTHUYSEN', 
 
 PRINTER, ALB ANT.
 
 1 
 
 I 
 
 NOTE. 
 
 It was the original design of the author to have appended to this Trea- 
 tise a large number of Practical Forms ; but the length of time he has 
 necessarily bestowed upon the Practice, has abridged his opportunities 
 for preparing Forms, and he has therefore selected such subjects only, 
 and made such Forms as the changes in the Practice seemed to require. 
 Indeed, upon a careful examination of the subject, the author became 
 satisfied that to do more at this time than to adapt the Forms to the altera- 
 tions produced by the Code, would be of but little use to the profession. 
 Hence he has left out all such Forms used in the old practice as with 
 slight and verbal alterations may be made to apply to the present mode of 
 procedure. Upon a revision of the work, however, should it be at- 
 tempted, all the Forms will be embraced that can be required in prac- 
 tice.
 
 TO THE 
 
 HONORABLE IRA HARRIS, 
 
 JUSTICE OF THE SUPREME COURT, 
 
 (ll)is teatlse 
 
 ON THE PRACTICE OF THE COURTS OF THIS STATE, 
 IS BY HIS PERMISSION, 
 
 Hfspcctfullp Insfribeli bg tl)c ^utljor. 
 
 As AN EXPRESSION OF HIS GRATITUDE FOR THE INTEREST 
 
 HE HAS TAKEN IN THE PROGRESS OF THE WORK, 
 
 AND FOR THE VALUABLE SUGGESTIONS HE 
 
 HAS MADE IN ITS COMPILATION: 
 
 AND IN TESTIMONY OF THE HIGH RESPECT OF THE 
 
 AUTHOR FOR HIS EMINENT QUALITIES 
 
 AS A JUDGE AND A MAN.
 
 PREFACE. 
 
 The Constitution adopted on the ninth of August, 
 1846, required the Legislature at its first session after 
 the adoption thereof, to provide for the appointment 
 of three commissioners, whose duty it should be to 
 revise, reform, simplify and abridge the rules and 
 practice, pleadings, forms and proceedings of the 
 courts of record of this State. Art, vi, § 24, 
 
 In conformity to this requisition, the Legislatur-e 
 at its session in 1847, appointed three gentlemen of 
 the profession, (Messrs Arphaxad Loomis, Nicholas 
 Hill, Jr, and David Graham,) to discharge tlie 
 onerous and novel duty required by the Constitution. 
 These gentlemen entered upon and continued in the 
 performance of their duties for several months, 
 when one of the Commissioners (Mr. Hill) resigned 
 and Mr. David D. Field, was appointed in his place. 
 
 The result of their labors was made known to the 
 Legislature, at its session in 1848, when the Com- 
 missioners reported "a Code of Procedure," which 
 with slight alterations, was adopted late in that ses- 
 sion.
 
 yni PREFACE. 
 
 The profession were not prepared for a change so 
 radical, comprehensive and entire, and looked with 
 distrust upon the new system. That it overthrew 
 all pre-acquired knowledge of practice, was plain ; 
 and the older members of the bar, equally with the 
 younger, were at once thrown upon a wide field of 
 uncertainty and doubt, with few of the lights of 
 past experience to aid them. 
 
 That the Code was defective, not in its general 
 scope, bvit in its details, was not questioned by 
 any. Indeed, it was readily admitted, that a system 
 so novels could not be perfected, until time and ex- 
 perience had developed, and subsequent legislation 
 had supplied what was wanting to make it com- 
 plete. The experience of a few months, served to 
 disclose many of these defects, and the Legislature 
 in 1849, enacted a large body of amendments, which 
 aimed at removing many of the objectionable pro- 
 visions contained in the Code. 
 
 One of the errors of the Code, and which render- 
 ed the working of the system less pliable in the 
 hands of the courts, was the absence of any power 
 in the judges^ to prescribe rules to carry into effect 
 its provisions. This error was corrected by the 
 amendments of 1849, which required the judges to 
 meet and adopt rules for the governance of the 
 courts throughout the State. 
 
 In accordance with tliis provision, the judges as- 
 sembled in August, 1849, and adopted rules which
 
 PREFACE. IX 
 
 effectually put in motion the machinery of the 
 courts. 
 
 It is believed, that at this time, a Treatise on the 
 practice under the Code, adapted to the rules of the 
 
 Supreme Court, will not be unacceptable to the pro- 
 fession and the student. Its importance will be 
 the better appreciated, when it is remembered that 
 the " Code" is not an embodiment of the whole 
 practice, but of a part only; much that appertained 
 to the former system, being retained, with such 
 changes only as were rendered necessar}'" to make 
 both harmonize. 
 
 To bring together the whole body of the practice 
 in a simple and succinct form, would, doubtless, shed 
 some light upon the darkened path to justice, and to 
 accamplish this, has been the aim of the author. 
 How far he has been successful, he cannot be the 
 judge. 
 
 To a profession who so well understand the diffi- 
 culties he has had to encounter, the author looks 
 for every indulgence, and he will be satisfied, if in 
 any degree, he has lessened the labors or aided the 
 researches of his brethren in their investigations into 
 a new, and as yet untried practice. 
 
 Should the present work meet the immediate 
 demands of the profession, for a guide in conducting 
 a suit, it is the author's design, at no very distant 
 day, Avhen the system shall have become better un- 
 derstood, and been established upon a firm basis,
 
 X PREFACE. 
 
 unshaken by the conflict of opinion and decision, 
 to revise the present volume, and bring together in 
 a body, the entire practice of the courts of this 
 State. 
 
 Hudson, September, 1849.
 
 TABLE OF CONTENTS. 
 
 PAET I. 
 
 Of Civil Actions and Special Proceedlngs. 
 
 CHAPTER I. 
 
 Section i. Of civil actions. 
 Section ii. Of criminal actions. 
 
 CHAPTER II. 
 Of Special Proceedings. 
 
 CHAPTER III. 
 
 0/ the Parties to the Action, and herein of Proceedings zipon the 
 Death, Marriage or other BisaUUty or Transfer of Interest du- 
 ring the Pendency of the Action. 
 
 Section i. Of the party plaintiff. 
 Who must be plaintiff. 
 Married women. 
 Infants. 
 
 Several plaintiffs. 
 Misjoinder. 
 Death. 
 In actions ex delicto.
 
 Xii CONTENTS. 
 
 Section 11. Of the effectof thenonjoinder or misjoinder of plaintiffs. 
 Nonjoinder. 
 Misjoinder. 
 
 Section hi. Of the party defendant. 
 
 Who must be defendant. 
 
 Feme covert. 
 
 Husband and wife. 
 
 Remote and contingent interests. 
 
 Corporators and dormant partners. 
 
 Infants. 
 
 Actions on bills of exchange and promissory notes. 
 
 Actions ex delicto. 
 Section iv. Of the effect of nonjoinder or misjoinder of defendants. 
 
 Nonjoinder. 
 
 Misjoinder. 
 
 Determining controversy as to parties. 
 
 Section v. Of the change of parties, and herein of the effect upon 
 the action. 
 Sole plaintiff. 
 Transfer of interest. 
 Several plaintiffs or defendants. 
 Motion when made. 
 The affidavit. 
 Motion how made. 
 Who may make the motion. 
 Action how continued, after one year has elapsed. 
 
 CHAPTER IV. 
 
 Of the Place of Thial. 
 
 Section i. Of actions, which must be tried in the county where the 
 subject of the action is situated. 
 
 Section ii. Of actions, which must be tried in the county where 
 the cause or some part thereof, arose. 
 
 Section hi. Of actions which must be tried in the county in which 
 the parties or any of them reside at the commence- 
 ment of the action.
 
 CONTENTS. XIII 
 
 Section IV. Of the change of the place of trial. 
 How obtained. 
 Ground. 
 When made. 
 Staying proceedings. 
 
 CHAPTER V. 
 
 Of the, General Rules of Pleading. 
 
 Introductory remarks. 
 
 Section t. Of the pleadings, and herein of what pleadings are. 
 
 Section ii. Of What will be sufficient in a pleading. 
 
 Section III. Of the construction of pleadings, and herein of the 
 
 effect of pleadings. 
 Section iv. Of mistakes in pleadings, and herein of amendments 
 of pleading. 
 
 Upon what terms. 
 
 Affidavit.v 
 
 •Amendments of course. 
 
 Amendment of summons. 
 
 Section v. Of the different causes of action, that may be included 
 in one complaint, and herein of the misjoinder of 
 actions. 
 
 PART II. 
 
 Of the Commencement, Prosecution, and Defence of 
 
 Actions. 
 
 Introductory Remtirks. 
 
 CHAPTER i. 
 
 Of the Commencevient of the Action, and the Proceedings on the 
 part of the Plaintiff, to the Answer or Demurrer of the Defend- 
 aivt, or to, a7id including Judgment for wa7it of an Answer. 
 
 Section i. Of the mode of commencing the action.
 
 XIV CONTENTS. 
 
 Section ii. Of arrest and bail. 
 
 Obtaining the order of arrest. 
 Affidavit to obtain the order. 
 By whom to be sworn to. 
 The order when made 
 Contents of order. 
 The undertaking. 
 Arresting the defendant. 
 Giving bail. 
 Qualifications of bail. 
 Exception to bail. 
 Justifying bail. 
 Other bail. 
 
 Manner of justifying. 
 Filing undertaking. 
 Liability of sheriff. 
 Liability of bail. 
 Surrender of bail. 
 Deposit of money. 
 Vacating order of arrest. 
 
 Section III. Of the claim and delivery of personal property. 
 Affidavit to be made. 
 Affidavit what to contain. 
 The notice. 
 The undertaking. 
 Taking the property. 
 
 Defendant requiring the return of property. 
 Delivering of the property to the plaintiff. 
 Justifying sureties. 
 Claiming property. 
 Return of sheriff. 
 
 Section iv. Of the injunction. 
 
 Cases in which allowed. 
 
 Injunction when applied for. 
 
 Who may grant injunction. 
 
 The affidavit. 
 
 The security. 
 
 Filing the undertaking. 
 
 Injunction against corporations. 
 
 Application to vacate or modify order.
 
 CONTENTS. XV 
 
 Section v. Of the attachment. 
 
 Attachment when applied for. 
 
 Who may grtint the attachment. 
 
 The affidavit. 
 
 The security. 
 
 Attachment how and by whom executed. 
 
 Perishable property. 
 
 Property claimed by another. 
 
 Suits by sheriff. ~ 
 
 Satisfying judgment. 
 
 Judgment for defendant. 
 
 Motion to discharge attachment. 
 
 Filing warrant. 
 
 Section vi. Of the summons. 
 
 What the summons must contain. 
 
 Limiting time of service of. 
 Section vii. Of the complaint. 
 
 General rules. 
 
 Names of parties. 
 
 Contents of the complaint. 
 
 Subscribing the complaint. 
 
 Verifying the complaint. 
 
 Amending complaint. 
 
 Supplemental complaint. . 
 
 Filing complaint. 
 Section viii. Of the filing and service of the summons and com- 
 plaint, and of the proof of service. 
 
 When service of complaint is proper. 
 
 Mortgage and partition cases. 
 
 Service how made. 
 
 Upon corporations. 
 
 Upon minors. 
 
 Upon idiots, insane persons, and habitual drunkards. 
 
 Upon non-resident and concealed defendants. 
 
 Affidavit of the facts. 
 
 The order. 
 
 Filing. 
 
 Service out of the state. 
 
 Defendant's appearance and answer. 
 
 Service upon some, but not upon all the defendants.
 
 XVI CONTENTS. 
 
 Who may serve the summons. 
 Proof of service. 
 
 Section ix. Of the judgment upon failure to answer. 
 
 Actions arising on contracts for the recovery o' money 
 
 only. 
 Other actions. 
 
 Manner of entering judgment. 
 Judgment roll. 
 
 CHAPTER II. 
 
 Of the, Proceedings on the 'part of the Defendant, previous to Aytswer- 
 
 ing or Demurring. 
 
 Section i. Of obtaining a copy of the complaint. 
 '' Case of personal service of the summons. 
 
 In cases of other than personal service of the summons. 
 
 Section ii. Of the offer of the defendant to compromise. 
 The notice. 
 
 Acceptance of the offer. 
 Non-acceptance of the offer. 
 
 Section hi. Of the inspection of writings. 
 
 Section iv. Of procuring a copy of an account alleged in the com- 
 plaint. 
 How procured. 
 
 Consequences of not furnishing. 
 Further or more particular bill. 
 Motion to strike out irrelevant or redundant matter. 
 
 CHAPTER III. 
 
 Of the Demurrer to the Complaint, a7id herein of Frivolous De- 
 murrers. 
 
 Section i. Of the grounds of demurrer. 
 Want of jurisdiction. 
 Want of legal capacity to sue. 
 Another action pending. 
 Defect of parties.
 
 CONTENTS. XVII 
 
 Misjoinder of parties. 
 Insufficient cause of action. 
 
 Section ii. Of drawing and serving the demurrer, &c. 
 Drawing demurrer. 
 Filing and serving demurrer. 
 Enlarging time to demur. 
 Amending complaint after demurrer. 
 Of frivolous demurrers. 
 
 CHAPTER IV. 
 
 Of the Ansioer of the Defendant, and the Reply of the Plaintiff. 
 
 Introductory Remarks. 
 
 Section i. Of the answer and its incidents. 
 What to contain. 
 Verifying answer. 
 Sham answers. 
 
 Irrelevant and redundant matter in an answer. 
 Filing and serving answer. 
 Enlarging time to answer. 
 Answering amended complaint. 
 Demurring to answer. 
 
 Section ii. Of the reply and its incidents. 
 To what the plaintiff may reply. 
 Verifying reply. 
 
 Irrelevant and redundant matter in a reply. 
 Enlarging time to reply. 
 Filing and serving reply. 
 Effect of reply. 
 Effect of not replying. 
 Replying to amended answer. 
 Demurrer to reply. , 
 
 CHAPTER V. 
 
 Of the Proceedings to Trial, Verdict and Judgment, 
 
 Section i. Of the issue. 
 
 Issues of law. 
 
 Issues of fact. 
 Section ii. Of the examination of writings. 
 
 B
 
 XVIII CONTENTS. " 
 
 Section hi. Examination of witnesses de bene esse and upon com- 
 mission, and of parties before trial. 
 
 Examination on commission. 
 
 Examination de bene esse. 
 
 Examination of a party. 
 
 Examination before the trial. 
 
 The examination. 
 
 Examination at the trial. 
 
 Effect of examination of a party. 
 Skction IV. Of the preparation for trial. 
 
 Issues how tried. 
 " law. 
 " fact. 
 
 Notice of trial. 
 
 Copy pleadings. 
 
 Note of issue. 
 
 Affidavit of merits. 
 
 Notice to produce papers. 
 
 Subpoena for witness. 
 
 Subpoena ticket. 
 
 Serving subpoena. 
 
 Subpoena duces tecum. 
 
 Section v. Of inquests. 
 
 Section vi. Of the trial by the court. 
 The trial. 
 The decision. 
 Issue of law. 
 
 Section vii.Of the trial by jury. 
 Opening the case. 
 Affirmative of issue. 
 Examination of witnesses. 
 Stating defence and examining witnesses. 
 Summing up. 
 Judges charge. 
 The verdict. 
 General verdict. 
 Special verdict. 
 Filing and entering verdict. 
 Judgment. 
 Plaintiff failing to appear.
 
 CONTENTS. XIX 
 
 Sectionviii. Of trial by referees. 
 
 In what cases. 
 
 Motion for reference. 
 
 Affidavit. 
 
 Notice and service. 
 
 Affidavit to oppose. 
 
 Appointing referees. 
 
 Order. 
 
 Reference at the circuit. 
 
 Notice of reference. 
 
 Proceedings on reference. 
 
 Adjournment. 
 
 Report. 
 
 Fees of referees. 
 
 Judgment. 
 Section ix. Of the trial of issues of law. 
 
 What are issues of law. 
 
 Notice of argument. 
 
 Note of issue. 
 
 Furnishing papers. 
 
 Argument. 
 
 Decision. 
 Section x. Of the judgment, and herein of the manner of entering 
 judgment. 
 
 Judgment. 
 
 Awarding judgment. 
 
 Costs. 
 
 Manner of entering judgment. 
 
 Judgment roll. 
 
 Transcript. 
 
 Section XI. Of costs. 
 
 Plaintiff's costs. 
 
 Costs in actions on promissory notes. 
 
 Defendant's costs. 
 
 Costs in the discretion of the court. 
 
 Costs against infant plaintiff. 
 
 Costs by or against administrators and trustees. 
 
 Costs in actions by the people. 
 
 Costs against assignees. 
 
 Costs on review in special proceedings.
 
 XX CONTENTS. 
 
 Costs of putting off trial. 
 
 Costs of motions. 
 
 Amount of costs recoverable. 
 " " to the plaintiff. 
 
 '« " to the defendant. 
 
 Additional allowances. 
 
 Percentage how computed. 
 
 How ascertained. 
 
 Interest on verdict. 
 
 Costs on settlement of the action. 
 
 Clerks' fees. 
 
 Entering costs in the judgment. 
 
 Adjusting costs. 
 
 Motion to correct or set aside adjustment. 
 Section xii. Of the execution. 
 
 Division of executions. 
 
 Executions against the property of the judgment debtor. 
 
 Executions against the person. 
 
 Executions for the delivery of the possession of real or 
 personal property. 
 
 "When execution may issue. 
 
 Executions, how directed and what to contain. 
 
 Executions when returnable. 
 
 Enforcing orders or judgments other than for the pay- 
 ment of money. 
 
 CHAPTER VI. 
 
 Of Exceptions, or Case to Move for a New Trial, or lo set aside a 
 Nonsuit, Special Verdict, and Demurrer to Evidence. 
 
 Section i. Of exceptions. 
 
 Grounds of exceptions. 
 
 Suspending judgment in order to prepare exceptions. 
 
 Preparing exceptions. 
 
 Proposing amendments. 
 
 Settling exceptions. 
 
 Setting aside exceptions. 
 
 Filing exceptions. 
 
 Section ii. Case. 
 
 Suspending judgment to make case.
 
 CONTENTS. XXI 
 
 Preparing the case. 
 
 Amendments to settling and filing. 
 
 Turning case into special verdict or exceptions. 
 
 Section hi. Special verdict. 
 
 Staying proceedings. 
 Drawing special verdict. 
 Settling and filing. 
 
 Section iv. Reserving case for argument, or further consideration. 
 Reserving case for argument. 
 Reserving case for further consideration. 
 
 Section v. Case, to set aside report of referees. 
 Drawing case. 
 Staying proceedii^». 
 Settling case. 
 Filing case. 
 
 Section vi. Demurrer to evidence. 
 
 Demurrer — how drawn up. 
 Settling demurrer. 
 Filing demurrer. 
 
 CHAPTER VII. 
 
 Of Siibmitting a Controversy without Action. 
 
 Preparing case. 
 Submission. 
 Furnishing papers. 
 Judgment. 
 Judgment roll. 
 
 CHAPTER VIII. 
 
 Of Appeals to the Supreme Court from an Inferior Court. 
 
 Section i. Appeal when and hy whom taken, and from what judg- 
 ments. 
 When taken. 
 By whom. 
 
 From what judgments. 
 Cases arising in a justice's court. 
 Parties how called.
 
 XXTI CONTENTS. 
 
 Section ii. Of the proceedings to perfect the appeal. 
 
 Notice of appeal. 
 
 Service. 
 
 The undertaking. 
 
 Affidavit annexed to undertaking. 
 
 Serving copy undertaking. 
 
 Excepting to sureties. 
 
 Sureties justifying. 
 
 Other sureties. 
 
 Manner of justifying. 
 
 Filing undertaking. 
 Section in. Of transmitting judgment appealed from to the Su- 
 preme Court. 
 
 How procured. 
 
 When transmitted. 
 
 Obtaining further return. 
 Section iv. Of preparing the appeal for argument. 
 
 Preparing papers. 
 
 Printing appeal and points. 
 
 Serving appeal. 
 
 Notice of argument. 
 
 Note of issue. 
 
 Making up calendar. 
 
 Argument. 
 Section v. Of the judgment and proceedings thereon. 
 
 Decision. 
 
 Costs. 
 
 Entering judgment. . 
 
 CHAPTER IX. 
 
 Appeals to the general term of the Supreme Court, from judgments 
 
 entered under the direction of a Single Judge of the same Court. 
 Section i. Appeal when and by whom taken, and from what judg- 
 ments or orders. 
 
 When taken. 
 
 By whom. 
 
 Appeals from judgments. 
 
 Appeals from orders. 
 Section ii. Of the proceedings to perfect the appeal. 
 
 Notice of appeal. 
 
 Service.
 
 CONTENTS. XX III 
 
 The undertaking. 
 
 Affidavit annexed to undertaking. 
 
 Serving copy undertaking. 
 
 Excepting to sureties. 
 
 Sureties justifying. 
 
 Other sureties. 
 
 Manner of justifying. 
 
 Filing undertaking. 
 
 Deposit. 
 Section hi. Of preparing the appeal for argument. 
 
 Preparing papers. 
 
 Case and points. 
 
 Printing case and points. 
 
 Serving case. 
 
 Notice of argument. 
 
 Note of issue. 
 
 Making up calendar. 
 
 Argument. 
 Sectiox IV. Of the judgment and proceedings thereon. 
 
 Decision. 
 
 Costs. 
 
 Entering judgment. 
 
 Section v. Of turning a case into a special verdict or bill of excep- 
 tions. 
 Appeal thereon. 
 
 CHAPTER X. 
 
 Of Appeals from the Supreme Court to the Court of Appeals. 
 
 Section i. In what cases appeals maybe made. 
 From judgments. 
 From orders. 
 
 Within what time appeal must be made. 
 Who may bring appeal. 
 Joinder of parties. 
 Excuses for not joining. 
 Entering rule. 
 Service of rule. 
 Proceedings on default. 
 Misjoinder. 
 Against whom. 
 What attorney may bring appeal.
 
 XXIV CONTENTS. 
 
 Section ii. Of the proceedings to perfect the appeal. 
 
 Notice of appeal. 
 
 Service. 
 
 The undertaking. 
 
 Affidavit annexed to undertaking. 
 
 Serving copy undertaking. 
 
 Excepting to sureties. 
 
 Sureties justifying. 
 
 Other sureties. 
 
 Manner of justifying. 
 
 Filing undertaking. 
 Section hi. Of transmitting judgment roll or order appealed frojii, 
 to the court of appeals. 
 
 When transmitted. 
 
 Obtaining further return. 
 Section iv. Of preparing the appeal for argument. 
 
 Making case. 
 
 Printing case. 
 
 Serving case. 
 
 Notice of argument. 
 
 Note of issue. 
 
 Making up calendar. 
 
 Argument. 
 
 Submitting case on printed argument. 
 Section V. Of the judgment and remittitur, and the proceedings 
 thereon in the court below. 
 
 decision. 
 
 Remittitur. 
 
 Costs. 
 
 Execution. 
 
 PART III. 
 
 Of Proceedings in Special Cases. 
 CHAPTER I. 
 
 Gf Actions for Foreclosure of Mortgage and Sale oj Preinises. 
 
 Section i. Object of the action and how commenced. 
 Parties. 
 Plaintiff. 
 Defendant.
 
 CONTENTS. XXV 
 
 The summons. 
 
 The complaint. 
 
 Service of summons, and verification and service of 
 
 complaint. 
 Notice of object of suit. 
 Notice of pendency of suit. 
 Section ii. Proceedings upon receipt of answer of defendant, and 
 
 when no answer is put in. 
 Proceedings upon receipt of answer. 
 Proceedings when no answer is put in, or when the 
 
 answer does not deny any material fact set forth 
 
 in the complaint. 
 Application for order of reference. 
 The affidavit. 
 The order of reference. 
 
 Application for judgment of foreclosure and sale. 
 Affidavit necessary. 
 The judgment. 
 Judgment roll. 
 Sale. 
 
 Time and place of sale. 
 Notice of sale. 
 Conditions of sale. 
 Conducting the sale. 
 Deed to the purchaser. 
 Report of sale. 
 Confirming report of sale. 
 Section hi. Execution for deficiency. 
 
 CHAPTER II. 
 
 Of Actions for the Partition of Real Estate. 
 
 Parties. 
 
 The summons. 
 
 The complaint. 
 
 Verifying complaint. 
 
 Service of summons. 
 
 Notice of object of suit. 
 
 Notice of lis pendens. 
 
 Proceedings if answer is put in. 
 
 Proceedings where no answer has been put in ; or, 
 
 where the answer does not deny any material fact 
 
 set forth in the complaint.
 
 XXVI CONTENTS. 
 
 Order of reference. 
 Application for judgment. 
 
 Costs. 
 
 CHAPTER III. 
 
 Of Actions Jor a Divorce. 
 
 Parties. 
 
 The summons. 
 
 The complaint. 
 
 Verifying complaint. 
 
 Reference to take proof. 
 
 Answer. 
 
 Hearing and judgment. 
 
 Judgment. 
 
 Costs. 
 
 CHAPTER IV. 
 
 Proceedings against a Judgment Debtor, after a Return of an Ex- 
 ecution, TJjisatisfied, in Whole or in Part. 
 
 Section i. In what cases the proceedings may be instituted. 
 
 Judgment, 
 
 Return of execution. 
 
 To what county issued. 
 Section ii. Proceedings to obtain the order. 
 
 Who may grant the order. 
 
 Affidavit. 
 
 The order to appear and answer. 
 
 Order forbidding the transfer of property. 
 
 Warrant, 
 
 The aflidavit. 
 
 Issuing warrant. 
 
 The undertaking. 
 
 Service of orders. 
 Section hi. Of the examination of the debtor and witnesses. 
 
 Debtor. 
 
 Witnesses. 
 
 Certifying examination. 
 Section iv. Proceedings after examination. 
 
 Order to apply property.
 
 CONTENTS. , XXVII 
 
 Appointing receiver. 
 Powers of receiver. 
 Duty of receiver. 
 Costs. 
 Section v. Of the proceedings after the issuing and before the re- 
 turn of an execution. 
 The affidavit. 
 
 The order forbidding transfer of property. 
 Order to apply property. 
 Co5 ts. 
 
 CHAPTER V. 
 
 Of Special Motions. 
 
 Motion for judgment in cases recorded for argument. 
 
 Motion for verdicts upon special verdicts. 
 
 Motions to set aside report of referees, where only part 
 
 of the issue is reported on. 
 Preparing papers. 
 Serving papers. 
 Notice of argument. 
 Notes of issue. 
 Motions when made. 
 Staying proceedings. 
 Affidavits. 
 Notice of motion. 
 Motion. 
 
 Rule or order. ,; 
 
 Obtaining rule by default, ■ 
 
 Costs. 
 
 Costs when payable. 
 Costs how collectable. 
 Orders granted at chambers. 
 
 CAAPTER VI. 
 
 Of Appeals to the General Term, from Orders made at the Special 
 Term, or by a Single Judge. 
 
 In what cases. 
 Appeal when taken.
 
 XXVIII CONTENTS. 
 
 Notice of appeal. 
 
 Service of notice. 
 
 Papers to be used. 
 
 Notice of hearing. 
 
 Argument. 
 
 Decision. 
 
 Costs. 
 
 Costs when payable. 
 
 Costs how collectable. 
 
 CHAPTER VI. 
 
 Of the Service of Notices and other Payers in a Suit. 
 
 CHAPTER VII. 
 
 Of Procuring the jippointment of a Guardian for an Infant Party. 
 
 Plaintiff. 
 
 Defendant. 
 
 Who may be appointed. 
 
 Appointment how made. 
 
 Order. 
 
 CHAPTER VIII. 
 
 Of Judgment on Confession. 
 
 CHAPTER IX. 
 
 Proceedings against Joint Debtors, Heirs, Devises, Legatees, and 
 Tenants holding under a Judgment Debtor. 
 
 Proceedings against joint debtors. 
 
 Proceedings against heirs, devisees, orlegatees, or terre 
 
 tenants of a deceased judgment debtor. 
 The summons. 
 The aflidavit. 
 The answer. 
 Demurrer to answers.
 
 CONTENTS. XXIX 
 
 Demurrer to reply. 
 Issue. 
 
 Judgment. ^ 
 Costs. 
 Execution. 
 
 CHAPTER VIII. 
 
 Of Courts of Justices of the Peace. 
 
 Section i. Of the jurisdiction of courts of justices of the peace. 
 Section ii. Of the manner of commencing the action. 
 Section III. Of the pleadings. 
 
 The complaint. 
 
 The answer. 
 
 The demurrer. 
 
 How put in. 
 
 Judgment upon demurrer. 
 
 Where defendant does not appear and answer. 
 
 Action or defence founded upon an account. 
 
 Entering and filing pleadings. 
 Section iv. Of title to real property coming in question. 
 
 Answer of title. 
 
 The undertaking. 
 
 Discontinuance of action. 
 
 Title coming in question on the trial. 
 
 Prosecuting suit in Supreme Court. 
 
 Costs. 
 Section v. Of obtaining the particulars of an account. 
 
 Section, vi. Of variances, and herein of amendments. 
 
 Variances. 
 
 Amendments. 
 
 Terms. 
 Section VII. Of transcripts. 
 
 Section viii. Of Executions.
 
 IJNTRODUCTION. 
 
 In entering upon the preparation of a Treatise on 
 the Practice of the Courts of this State, the author 
 has not heen unconscious of the many and serious 
 difficulties that would beset his path at every step. 
 The novelty of the new practice ; the slight and 
 imperfect trial that it has been subjected to ; the 
 construction of the courts, giving to thirty-two 
 judges co-ordinate powers; the numerous decisions, 
 at war with each other ; and the few aids that past 
 experience could furnish, all admonished him of the 
 difficulties he must encounter. 
 
 The Code of Procedure is in itself a book of rules, 
 regulating the practice, pleadings and procedings, 
 in courts of record. What was formerly entrusted 
 to the several courts to prescribe, has now been 
 made the subject of legislative enactment, and is 
 thus removed beyond the power or control of the 
 judges. Much, however, of the form and ceremony 
 required to put and keep in motion the parts of a 
 judicial proceeding, is still to be regulated by the 
 courts, and hence the practitioner, who would con- 
 duct a suit, through its different stages, to a successful 
 termination, is compelled to recur to three distinct 
 sources of information. First : to the practice as it 
 existed previous to the adoption of the Code ; second: 
 to the Code itself; and third, to the rules of the 
 court. In these he will find the different parts of 
 a judicial proceeding, from its commencement to 
 its end.
 
 INTRODUCTION. XXXI 
 
 The confusion which ensues from the separation 
 of the parts, is incident to any system, and can in 
 no way be remedied, except by bringing together 
 in a body, the entire practice as it exists in all. 
 
 Much of the former practice remains untouched 
 by the Code, and must now, as formerly, be followed 
 in appropriate cases. The changes occur chiefly in 
 the construction of the courts ; in removing the 
 distinctions between law and equity, and in plead- 
 ings and the forms of proceedings. But the trial 
 of issues, the determination of questions of law or 
 fact, and the enforcement of judgments, remain 
 substantially as they existed under the fomer prac- 
 tice. The alterations in these particulars are simple, 
 and easily understood. They consist in blending 
 actions at law and suits in equity, so that each is 
 commenced, proceeded with, tried and determined 
 in the same manner. Pleadings are simplified and 
 made to conform truly to the nature of the action ; 
 and the forms of proceeding are intended, and will 
 doubtless serve to facilitate and hasten the deter- 
 mination of the controversy, upon the real and 
 substantial questions of difference between the par- 
 ties ; at the same time they afford ample protection 
 to the rights of litigants in presenting their claims 
 and defences for the adjudication of the courts. 
 
 The subject of reviewing the judgments rendered 
 by the direction of a single judge, or by inferior 
 courts, is involved in more difficulty than any other 
 branch of the practice. In this respect the Code 
 has wrought a more radical change. But the judges 
 in the construction of their rules, have met and in 
 a measure removed the difficulties and doubts which 
 previously existed. 
 
 (
 
 XXXII INTRODUCTION. 
 
 Heretofore, the foreclosure of mortgages, and the 
 partition of lands, were entrusted chiefly to courts 
 of equity; now they are made the subjects of an 
 action at law, and are conducted in all respects like 
 other actions. And the facility and expedition with 
 which such suits were determined, where no con- 
 troversy existed, continues as amply as before. 
 
 In the construction of the work, an effort has 
 been made, briefly to analize the Code and bring 
 together its different parts relating to the same sub- 
 ject matter, in such a manner, that the reader may 
 find all the provisions relating to one topic in a 
 connected form. The plan adopted is simple, and 
 the work runs through an entire judicial proceeding 
 from its commencement to its final determination 
 in the court of last resort. All the proceedings on 
 the part of the plaintiff and of the defendant, with 
 the incidents connected therewith, are stated in 
 detail, much after the manner that they usually 
 occur, in the progress of a cause. The parts of the 
 old practice which remain, are stated in connection 
 with the provisions of the Code, each being more 
 or less necessary in every step taken in the suit. 
 
 Where, however, the practice remains entirely 
 unchanged, a reference has in most cases been 
 made to one or more of the several treatises on 
 practice, now extant, as furnishing all the informa- 
 tion needed : it being the design of this work to 
 adapt the practice to the changes and not to repub- 
 lish what has been untouched by the Code. 
 
 The work is divided into three parts. The first 
 relates to " Civil actions aid special proceedings." The 
 second, to the " Commencement, prosecution and defence of 
 actions'' And the third to, ''Proceedings in sjpecial cases"
 
 PART L 
 
 The practice which prevailed in the courts of law 
 and equity in this State prior to the adoption of the 
 Code of Procedure was derived from the superior, 
 common law and equity courts of England, and 
 was founded upon ancient usage, the rules and or- 
 ders of the courts, legislative enactments and judi- 
 cial decisions. 
 
 Under the system as it existed from the founda- 
 tion of this government down to the establishment 
 of the new Code, the courts of equitable and com- 
 mon law jurisdiction, were kept distinct and sepa- 
 rate, and but few, if any of the principles and prac- 
 tices which appertained to the one, were recognized 
 as belonging to the other. 
 
 All their forms and proceedings, were as distinct 
 
 and different as their powers and jurisdictions were 
 
 separate and unlike. Each, worked in a different 
 
 sphere, and although, the end to be attained, the 
 
 enforcement or protection of rights, and the redress 
 
 or prevention of wrongs, was in the main, the same, 
 
 they proceeded through separate and dissiinilar 
 
 channels, and were governed by different rules, and 
 
 orders. 
 
 I
 
 PRELIMINARY REMARKS. 
 
 These dissimilar systems, which before were so 
 widely separated, are now- blended in one, and the 
 distinctions which heretofore existed between cau- 
 ses of action of a legal or equitable nature, and all the 
 forms of proceedings, and principles of practice, ap- 
 pertaining to the one or the other,, are abolished. 
 So that there is now but " one form of action for the 
 enforcement or protection of private rights and the 
 redress or prevention of private wrongs," and which 
 is denominated a civil action. 
 
 The proceedings, in instituting an action, and 
 conducting it through the different stages of prose- 
 cution to trial and judgment, are, in all their essen- 
 tial particulars, the same, whether the cause of the 
 action is of a legal or equitable character. The sum- 
 jnons — the complaint, the answer, demurrers and 
 reply (varied only so far as to contain a statement 
 of the facts, constituting the cause of action — the 
 nature of the relief sought, and the defence,) the 
 manner of trying the issue, the judgment and the 
 mode of enforcing it, are now the same, in what 
 was heretofore denominated an action at law and a 
 suit in equity. So that there is now one practice and 
 mode o( procedure, alike applicable to every species 
 of right, whether it be founded in the "strict rules 
 of the common law/' or based upon the more equi- 
 table principles of the "civil law.'* 
 
 And in destroying the distinctions which existed 
 between the several causes of actions, the Code of 
 Procedure, has also abolished all forms of pleading,. 
 which heretofore put and kept in motion the ma- 
 chinery of the courts So that there is no longer 
 any division or denomination of actions; and the
 
 PRELIMINARY REMARKS. 3 
 
 pleader need not examine whether he should bring 
 assumpsit or debt, trespass or trover, or whether his 
 cause of action falls within the class, ex contractu or 
 ex delicto. He is relieved from the doubts and diffi- 
 culties with which nice and subtle distinctions en- 
 veloped his path, and by a simple, concise and 
 intelligible statement of the facts constituting his 
 cause of action, is to spread before the court, his 
 complaint. And this must be done in such a 
 manno2*, as "to enable a person of ordinary under- 
 standin-r t-) kiiovv* v.diat is intended."'
 
 CHAPTER I. 
 
 OF CIVIL ACTIONS AND SPECIAL PROCEEDINGS, 
 
 SECTION I. 
 Of Civil Actions. 
 
 A civil action is defined to be " a regular judicial 
 proceeding, in which a party prosecutes another for 
 the enforcement or protection of a right, or the re- 
 dress or prevention of a wrong." {Code, § 2.) 
 
 In this general definition is embraced every spe- 
 cies of cause of action, known to the laws of the 
 land, the customs and usages of society, and the 
 principles of equity and justice, of which the courts 
 can take judicial cognizance. There must, how- 
 ever, be a party claiming, and a party resisting the 
 claim; a party prosecuting, and a party defending. 
 Therefore an action, necessarily involves the idea of 
 a right withheld, or an injury committed, and of a 
 remedy provided for the enforcement or protection 
 of the one, or for the redress or prevention of the 
 other. In the language of Sir W. Blackstone, it is 
 "the remedial instrument of justice," being the 
 machine or instrument, provided by law, and em- 
 ployed by the courts, in cases of public or private 
 injury and wrong, to enforce and protect the rights 
 of the citizen.
 
 CRIMINAL ACTIONS. > 5 
 
 SECTION II. 
 
 Of Criminal Actions. 
 
 It is not the purpose or design of this work, to 
 devote any space to the consideration of this spe- 
 cies of actions. They are of a class, distinct and 
 peculiar; having little, if any thing to do with civil 
 actions, and with which the practitioner is seldom 
 troubled. Besides, it is a subject of sufficient mag- 
 nitude to deserve a more extended notice, than 
 would comport either with the aim or design of this 
 Treatise, to give it. 
 
 Criminal actions, are such as have for their object 
 the punishment of public offences; and hence all 
 crimes, whether made so by statute, or such by the 
 common law; whether felonies or misdemeanors, 
 fall within this general definition of criminal ac- 
 tions. It will, therefore, readily be seen, that this 
 is an inappropriate place for the consideration of 
 such a subject. 
 
 When, however, a public offence is not, by statute 
 or the common law, punishable as a crime, but 
 merely made penal, it is a civil action, and as such 
 may be enforced, as in the case cf private wrongs.
 
 CHAPTER II. 
 
 OF SPECIAL PROCEEDINGS, 
 
 SECTION I. 
 
 In addition to the power conferred by law, upon 
 the courts to entertain actions between individuals, 
 and employ its functions and apply the principles 
 of equity and justice to cases where there are or 
 maybe conflicting claims and disputed rights, there 
 is another class of rights, which have received the 
 protection of the law, and over which the courts 
 have and still are authorised to exercise jurisdiction. 
 It is not strictly a common law jurisdiction, but 
 rather creations of a statute, and are denominated 
 
 Special Proceedings. 
 
 It will not be necessary, under this head, to do 
 any thing more than briefly designate the class of 
 remedies that are embraced under this form of pro- 
 ceeding. They are chiefly of an equitable or sum- 
 mary character, and not being aflected, in any con- 
 siderable degree, by the Code of Procedure; and the 
 jurisdiction over them having been heretofore vested 
 in the courts of common law and chancery, a refer- 
 ence to either of the many works on the practice of 
 those several courts will furnish the practioner and 
 the student with all the assistance he may require,
 
 SPECIAL PROCEEDINGS. 7 
 
 ^nd renders it unnecessary, that it should be em- 
 braced within the scope of this Treatise. 
 
 The special proceedings which are excepted from 
 the operation of the Code are such as relate to 
 
 " Attachments against absconding', concealed and non-resident 
 debtors." 2 Rev. Stat., p. 1. 
 
 " Custody and disposition of the estates of idiots, lunatics, persons 
 of unsound mind and drnnkards." Jbid. 
 
 ♦' Trespass on lands." Jbid, 338. 
 
 *' Proceedings to discover the death of persons, upon whose lives 
 any particular estate may depend." Ibid, 343 
 
 *' Bringing and maintaining suits by poor persons." /bid, 444. 
 
 *' Suits by and against executors and administrators, and against 
 heirs, devisees and legatees." Ibid, 447. 
 
 *' Proceedings by and against corporations and public bodies, 
 having certain corporate powers, and by and against officers 
 representing them." Ibid, 457. 
 
 ■*' Suits against sheriffs, surrogates and other officers on their official 
 bonds." Ibid, 476. 
 
 *' Actions for penalties and forfeitures; and provisions for the col- 
 lection and remission of forfeited recognizances and fines iiii- 
 posed by courts." Ibid, 480. 
 
 ■*' Proceedings for the admeasurement of dower." Ibid, 488. 
 
 *' Proceedings for the collection of demands against ships and 
 vessels." Ibid, 493. 
 
 *' Proceedings for the recovery of rent and of demised premises." 
 Ibid, oOO. 
 
 *' Summary proceedings to recover the possession of lands in cer- 
 tain cases." Ibid, -507. 
 
 *' Distraining cattle and other chattels doing damage, and of dis- 
 training in other cases " Ibid, 517. 
 
 *' Proceedings, as for contempts, to enforce civil remedies, and to 
 protect the rights of parties in civil actions " Ibid, 534. 
 
 ^' Arbitrations." Ibid, 541. 
 
 *' Foreclosure of mortgages by advertisement." Ibid, 545. 
 
 *' Proceedings for the draining of swamps, marshes and other low 
 lands." Ibid,5-iS. 
 
 *' General miscellaneous provisions concerning suits and proceed- 
 ings in civil actions." Ibid, 550. 
 
 *' Provisions for the better security of mechanics and others erect- 
 ing buildings and furnishing materials therefor, in the several 
 cities of this state, and in certain villages." Ibid, 558. 
 
 " Writs of habeas corpus and certiorari in certain cases." Ibid, 
 559.
 
 8 SPECIAL PROCEEDINGS. 
 
 All the foregoing proceedings and provisions are* 
 retained in the statute, and are not affected by the 
 provisions of the Code of Procedure, except that 
 when in consequence of any such proceeding a 
 civil action shall be brought, such action must be 
 conducted in conformity to the Code: and except 
 also where any particular provision, before enume- 
 rated, is plainly inconsistent with the Code, such 
 provision is deemed to be repealed. Code, § 471. 
 
 In addition to these excepted proceedings and 
 provisions there are others to which the Code of 
 Procedure is made to apply, such as "proceedings 
 against joint debtors, heirs, devisees, legatees, and 
 tenants, holding under judgment debtor." Code, 
 title XIII., chap. 2. " Confession of judgment without 
 action." Ibid, chap. 3 — and the like. 
 
 Special proceedings, are such as are brought be- 
 fore the court, upon petition or affidavit, in which 
 there is but one party, namely the person applying. 
 No defence is interposed, but the court take care 
 that the rights and interests of others are not affect- 
 ed. The relief sought, is granted to the one apply- 
 ing, without giving notice to any one, except where 
 the rights of another may be impaired, when the 
 court may require notice to be given.
 
 CHAPTER III. 
 
 OF THE PARTIES TO THE ACTION AND HEREIN OF 
 PROCEEDINGS UPON THE DEATH, MARRIAGE OR 
 OTHER DISABILITY, OR TRANSFER OF INTEREST 
 DURING PENDENCY OF THE ACTION. 
 
 SECTION I. 
 Of the Party Plaintiff. 
 
 Having determined upon bringing the action, the 
 first inquiry should be, in whose name the suit should 
 be brought. The rules which heretofore governed, 
 in respect to the party plaintiff, are very materially 
 changed by the Code of Procedure. Formerly in ac- 
 tions at law, the suit could generally be instituted in 
 the name of the party with whom the contract was 
 made, notwithstanding he might have parted with 
 all interest in it. And sometimes it might be brought 
 in the name of a party having no actual interest, as 
 in the case of negotiable notes and bills. In suits 
 in equity, however, the rule was different, and the 
 person made plaintiff, must have been at the time 
 of the commencement of the suit immediately in- 
 terested in the subject matter of it, and it w^as fatal 
 to the bill if filed in the name of a mere nominal 
 complainant. 
 
 We will now point out the changes produced by 
 the Code.
 
 10 OF THE PARTY PLAINTIFF. 
 
 The action must be prosecuted in the name of the 
 real party in interest, {Code, § 111,) except where the 
 action is brought by an executor or administrator, 
 or a trustee of an express trust, or where the 
 person suing is expressly authorised by statute, in 
 which cases the action may be brought, without 
 joining with the plaintiff the person or persons for 
 whose benefit the suit is prosecuted. (Code, § 113.) 
 In all other cases, the party who brings the action, 
 must at the time be the owner, either legally or 
 equitably, of the right of action sought to be en- 
 forced. The suit cannot be brought in the name of 
 a fictitious person, or of one who has no interest in 
 the subject matter of the controversy: but, as we 
 have seen, it may be by an administrator, executor, 
 or trustee of an express trust, or by a person express- 
 ly authorised by statute, such as public officers. 
 Other persons acting in a fiduciary capacity cannot 
 sue in their own names, nor can an agent or bailee, 
 unless it be to recover the possession of property un- 
 lawfully taken from him, or upon contracts made 
 by him, and in which he is beneficially interested, 
 where the law so far regards him as the owner, that 
 the suit may be brought in his name. 
 
 l^%o must be Plaintiff.]— In all cases, the plaintiff on 
 the record must, at the commencement of the suit, 
 have the right of action in himself, and it will not 
 answer if he subsequently acquire it. An executor 
 or administrator may sue in his own name for any 
 rio-ht of action accruing to him, as such — to recover 
 the assets and property of his testator or intestate ; 
 they belong to him for the purposes of paying debts, 
 legacies and distribution. A trustee of an express
 
 OF TMC PARTY PLAINTIFF. 11 
 
 trust, ill like manner, is vested with the legal estate 
 committed to his care, and is bound to preserve and 
 protect it for tlie benefit of his ward, and he is, so 
 far, the real party in interest; and may properly sue 
 to recover its possession, or a debt due on account 
 of it. But idiots, lunatics, persons of unsound mind, 
 and habitual drunkards, must sue in their own 
 names, in actions relating to personal property, and 
 it cannot be brought in the name of the committee, 
 (1 Hill Rep. 97,) the exceptions before mentioned 
 not extending to this class of persons. 
 
 Married JVomen.] — In actions where a mairied wo- 
 man is a party, her husi)and must be joined with her, 
 except where the action concerns her separate pro- 
 perty, when she may sue alone, and in actions be- 
 tween the v/ife and her husband, she may sue or be 
 sued alone. Code, § 114. 
 
 It is necessary to join the wife with the husband, 
 as a party, in those cases where the contract, which 
 is the subject of the action, was made with her be- 
 fore marriage ; 13 Wendell, 271 ; or where the cause of 
 action would necessarily survive to her. 13 Wendell, 
 271. 18 John JR. 443. Where from an injury to 
 the person of the wife, the husband suffers a con- 
 sequential damage, he may sue alone; otherwise 
 they must both join in the action. And for person- 
 al injuries !o a child, such as abduction, beating, se- 
 duction, &c , the father may sue if he can show a 
 consequent loss of service to himself, but not other- 
 wise. iChitt. PL, 70. {Ed. of 1844.) So of injuries 
 to the person of a servant. In both these cases, how- 
 ever, the child or the servant may himself sue. And 
 the right of action in the father or master, arises
 
 12 OF THE PARTY PLAINTIFF. 
 
 from the consequent loss of service, and not from 
 the injury itself 
 
 Infant.] — An infant cannot sue in his own name 
 alone, but must appear by guardian, who may be 
 appointed by the court in which the action is prose- 
 cuted, or by a judge thereof, or a county judge. The 
 manner of procuring the appointment of a guardian 
 of an infant will be treated under a separate head. 
 
 See post. 
 
 Several plaintiffs.] — It is necessary that all persons 
 having an interest in the subject of the action, and 
 in obtaining the relief demanded, should be joined 
 as plaintiffs. Code, § 117-119. Where, however, a 
 person, who should be joined as plaintiff, refuses 
 his consent to be joined, he may be made a party 
 defendant, the reasons therefor being stated in the 
 complaint. Code, § 119. 
 
 And where the subject of the action is one of a 
 common or general interest to many persons, one 
 or more of the persons interested may sue or defend 
 for the benefit of all, but it must appear, that a 
 complete determination of the subject in controversy 
 can be made without including all the persons 
 having a general or common interest therein. So, 
 if it be a case where the parties are necessarily very 
 numerous, the court may, if it appear to be imprac- 
 ticable to bring them all into court, permit the suit 
 to be prosecuted by or against one or more for the 
 benefit of the whole. Cude, § 119. Thus, where 
 there is a large number of owners of a fishery, or of 
 a parcel of land, or of a chattel, in an action in re- 
 spect to such fishery, land or chattel, it would be 
 proper to institute the action by or against one or 
 more only of the several owners, for the benefit of
 
 OF THE PARTY PLAINTIFF. 13 
 
 the whole. But it should distinctly appear in the 
 complaint, that it would be impracticable, upon the 
 score of expense to make them all parties. 
 
 Misjoinder.] — If it appear from the complaint, that 
 a person, who is united in interest with the plaintifl', 
 and who should have been joined as a plaintiff in 
 the action, is not joined, the defendant may demur 
 to the complaint, for a defect of parties plaintiff. 
 Code, § 144, sub. 4. Indeed, if the defect appear upon 
 the face of the complaint, the defendant, if he 
 wishes to take advantage of it, and cause the proper 
 persons to be brought before the court, must demur; 
 for if he answers, he will be deemed to have waived 
 the objection. Code, § 148. 
 
 It would seem to be imperative, that all persons, 
 who are united in interest, in the subject of the 
 action, should be joined as plaintiffs. The Legisla- 
 ture, in § 117 of the Code, say they ''may be joined." 
 This will be construed to mean ''7mistf' especially 
 as in the succeeding § 119, they say, they " must be 
 so joined." 
 
 Death.] — In case of the death of one of several 
 parties, who were united in interest, if the cause of 
 action, survive to the others, the survivors may sue 
 alone, 1 Chitt. PL, 19 ; but where the cause of action 
 does not survive, the representatives of the deceased 
 person must be joined as plaintiffs. 2 John. Cases, 374. 
 
 The provisions of the Code requiring all parties 
 in interest to be joined as plaintiffs, have altogether 
 changed the rules that have heretofore prevailed in 
 respect to actions of a merely legal nature. Form- 
 erly, an assignee of a personal contract or chose in 
 action, could not sue in his own name, except in 
 some cases, by the custom of merchants or express
 
 14 NONJOINDER OR MISJOINDER OF PLAINTIFFS. 
 
 statutory permission. In courts of equity, however, 
 it was necessary that the complainant should have 
 an interest in the suit, and that interest must have 
 appeared in the bill, or it was ground of objection 
 by demurrer or plea. Mitf. Eq. PL, 153-7. 
 
 Action ex delicto.] — There is a class of cases where 
 it is not proper to join persons as plaintiifs, who 
 may have a common interest in the subject matter 
 of the suit. In actions that were formerly denomi- 
 nated ex delicto — for injuries to the person, as slander, 
 battery, or false imprisonment, several persons can- 
 not sue jointly; each must bring a separate action; 
 except in cases of slander of title, and of words 
 spoken of partners in respect of their trade. 1 Chitt. 
 PL, 74. Hence, though the battery or false impri- 
 sonment, be of two or more persons at the same 
 time, they must bring separate actions — they are 
 not ' united in interest," though the cause of action 
 arose at the same time, and grew out of the same 
 trespass. The measure of damages for one might 
 be greater than for another, as one might have suf- 
 fered a greater injury than the other. 
 
 SECTION II. 
 
 Of the Effect of the Nonjoinder or Misjoinder 
 
 OF Plaintiffs. 
 
 Nonjoinder.] — As has been seen, if it appears upon 
 the face of the complaint, that a person has not 
 been joined as plaintiff, who ought to have been, 
 the defendant may demur ; that is the only way in 
 which the defendant can take advantage of the 
 omission. By § 144 of the Code it is provided, that
 
 NONJOINDER OR MISJOINDER OF PLAINTIFFS. 15 
 
 the defendant may demur to the complaint '^when 
 it shall appear on the face thereof that there is a defect 
 of parties phaintifF or defendant. If therefore it ap- 
 pears that there is a defect of parties, the only 
 course for the defendant, is to demur; for if he 
 omits to do so and answers, he will be deemed to 
 have waived the objection. § 148, Code. 
 
 If the defect, do not appear on the face of the 
 complaint, the defendant may in his answer, take 
 advantage of the objection, and set oat the reasons 
 why some other person, having an interest in the 
 subject of the action, ought to be joined with the 
 plaintiff. § 147, Code. 
 
 Misjoinder.] — The foregoing applies to a nonjoinder 
 of parties plaintiff. The same rule is applicable to 
 a misjoinder of plaintiffs. No person except the real 
 party in interest can sue. Hence, if a person having 
 no interest in the subject of the action is united 
 with the real party in interest, it is such a "defect 
 of parties" as would be ground of demurrer, if the 
 objection appear upon the face of the complaint. 
 If it do not so appear, the defendant may set it up 
 in his answer, and nonsuit the plaintiff on the 
 trial. 
 
 In like manner, where the nonjoinder of a party 
 as plaintiff, does not appear, so as to enable the de- 
 fendant to demur, the defendant having taken the 
 objection in his answer, may have a nonsuit on the 
 trial. 
 
 If the objection be not taken either by demurrer 
 or answer, the defendant will be deemed to have 
 waived his right to make the objection afterwards, 
 in any stage of the proceedings. Code, § 148. And
 
 16 OF THE PARTY DEFENDANT. 
 
 he cannot upon the trial raise the question, whether 
 the proper parties are before tlie court. 
 
 SECTION III. 
 Of the Party Defendant, 
 
 Any person may be made a defendant, who has 
 or chiims to liave an interest in the controversy, ad- 
 verse to the plaintiff; or who is a necessary party 
 to a complete determination or settlement of the 
 questions involved therein. Code^ § 118. 
 
 Care should be taken that the person who has 
 the real adverse interest, is selected as the defendant, 
 otherwise the action will fail. Aw agent is not gene- 
 rally liable, upon contracts made by him, unless he 
 fails to disclose his principal, or does not declare 
 himself to be an agent at the time of making the 
 contract. 13 John. R., 58. 15 id. 1, 3. 
 
 A feme covert cannot be sued upon a mere personal 
 contract, made by her during coverture, although 
 she live apart from her husband and have a sepa- 
 rate maintenance; the suit in such cases must be 
 against the husband alone. 
 
 In actions however, between husband and wife, 
 she may be sued alone. Code, § 114, sub. 2. 
 
 All the parties who have a common interest, ad- 
 verse to the plaintiif, must be joined as defendants, 
 or the defendants sued may demur. It is not ne- 
 cessary that the interest should be direct and im- 
 mediate, it may be remote and contingent, and if 
 it be of a nature, that it may by possibility attach 
 at a future day, the person having such possible 
 interest, must be made a defendant, if the relief
 
 OF THE PARTY DEFENDANT. 17 
 
 sought to be obtained by the action, will defeat or 
 destroy such interest, otherwise there would not be 
 " a complete determination or settlement of the 
 questions involved therein." 
 
 Among the cases of remote or contingent interest, 
 is that of dower ; which depends upon the wife's 
 survivinsr the husband — remainder interests, which 
 depend upon the termination of a previous out- 
 standing estate — assignments in trust to pay debts, the 
 interest of the assignor in the trust property, de- ' 
 pending upon there being a surplus, after perform- 
 ance of the trusts; and similar cases. Where it is 
 the design, completely to determine the rights or in 
 any way to affect the rights of others, all such as 
 have any interest or who have a right to be heard, 
 must be made defendants. 
 
 A wife cannot be sued alone, upon contracts made 
 by her dum sola. Her husband must be joined with 
 her. 15 John. R 403. 1 Chitt. PI 57. 13 Wendell 271. 
 
 When a contract is several, as well as joint, all 
 the parties to it may be sued jointly or each party 
 separately. iSaund.ld^. It being optional with the 
 plaintiff to pursue one, or all of the contracting par- 
 ties. And generally tenants in common must all be 
 sued in the same action. 
 
 Corporators and dormant 'partners need not be joined, 
 though they may be, where they have become per- 
 sonally liable. 
 
 An infant may be sued alone, but no proceeding 
 can be taken in the suit, after service of the sum- 
 mons, until a guardian has been appointed to ap- 
 pear for him. Code, § 115. As to the manner of
 
 18 OF THE PARTY DEFENDANT. 
 
 procuring the appointment of a guardian. See 
 post. 
 
 It is provided by statute (Code, § 120,) that where 
 there ate several persons, severally liable upon the 
 same obligation or instrument, including the par- 
 ties to bills of exchange and promissory notes, they 
 may all or any of them, be included in the same 
 action, at the option of the plaintiff. 
 
 As a joint judgment against all the parties to an 
 instrument is as effectual as a separate judgment 
 against each would be, it is generally advisable to 
 include all in one action, especially, as no costs, 
 other than disbursements, are allowed to the plain- 
 tiff, in more than one action, if he bring several ac- 
 tions against parties who may be joined in one. 
 Code, § 304, suh. 4. 
 
 In actions ex delicto, the general rule is, that the 
 person committing the injury, either by himself or 
 his agent, must be made defendant; the principal 
 being liable for the tortious acts of his agent, if 
 committed, in the prosecution of his business, but 
 otherwise, if the act be wilful and malicious — when 
 the agent alone is liable. The agent or servant also 
 is liable notwithstanding the principal may be. 8 
 Wend. R., 474. Browne on actions, 175, 180. 
 
 It is not necessary to join all the parties to a tor- 
 tious act, as defendants — one or more, or all, may 
 be sued jointly, or each separately. 6 John. R., 26, 
 31. Where the tort however consists of verbal 
 slander by two or more persons, a separate action 
 must be brought against each ; they cannot be sued 
 jointly. G John. R., 26, 31.
 
 NONJOINDER OR MISJOINDER OF DEFENDANTS. 19 
 
 SECTION IV. 
 
 Of the effect of the Nonjoinder or Misjoinder of 
 
 Defendants. 
 
 Nonjoinder.'] — It is essential to the proper determi- 
 nation of the subject matter of the action, that the 
 proper person or persons is made defendant, and the 
 same consequences flow from a nonjoinder of de- 
 fendants, as from a nonjoinder of plain' iffs. If, 
 therefore, a person has not been joined, as defend- 
 ant, who has an interest in the controversy; or if a 
 complete determination or settlement of the ques- 
 tions involved in the action, cannot be made, with- 
 out joining another person as defendant, it is ground 
 of objection by the defendant, who may insist upon 
 having the proper parties before the court. And 
 when the delect appears upon the face of the com- 
 plaint, the defendant may demur; indeed, if he 
 would avail himself of the objection, he must demur, 
 if the compaint itself discloses the defectiveness of 
 the parties. Code, § 148. 
 
 If, however, the objection do not appear on the 
 face of the complaint, the defendant may set it up 
 in his answer, and it will be ground of defence at 
 the trial. Code, § 147. 
 
 Misjoinder. ] — If an improper person is made a par- 
 ty defendant, that is, a person who has no interest 
 in the subject matter of the action, or who is not 
 necessary to a complete determination or settlement 
 of the questions involved, it is also ground of objec- 
 tion by the defendant. And when this appears from
 
 20 NONJOINDER OR MISJOINDER OF DEFENDANTS. 
 
 the complaint, the defendant, if he wishes to avail 
 himself of the objection must demur. Code,\ 144. 
 If it do not so appear, the defendant may set it up 
 in his answer, and prove it on the trial as defence 
 to the action. 
 
 The same general rules apply as well to misjoin- 
 ders as to nonjoinders of defendants. 
 
 If the defendant fails to take the objection to the 
 defect of parties defendant, either by demurrer or 
 answer, the objection will be deemed to be waived, 
 {Code, § 148,) and the defendant will not be permit- 
 ted afterwards to raise the question. 
 
 Determining a Controversy as to Parties.'] — "When the 
 question as to the sufficiency of the parties to the 
 action arises, either upon demurrer or answer to the 
 complaint, the court will sometimes determine the 
 controversy involved in the action, when it can be 
 done, without prejudice to the rights of others or by 
 saving their rights; thus disregarding the objection 
 complained of by the defendant. That is, the court 
 will sometimes permit the action to go on to trial 
 notwithstanding it may appear that there are other 
 parties who have some interest in the subject mat- 
 ter of the controversy, and who have not been joined 
 in the action, provided it can be done without pre- 
 judice to the rights of such parties, or where their 
 rights can be saved. The court will not always ar- 
 rest the action, and order new parties to be brought 
 in, if the subject of the action or the rights of par- 
 ties are not prejudiced or destroyed, and the suit 
 can well be determined without them. Code, § 122. 
 
 But the court may order persons not parties to the 
 action, to be brought in, when it appears that they
 
 OF THE CHANGE OF PARTIES. 21 
 
 have an interest in the subject of the suit, and that 
 a complete and final determination of the contro- 
 versy cannot be had without them, or when it ap- 
 pears that the rights of such persons may be preju- 
 diced if they are not heard. Still, the court may 
 save or reserve the interests of such persons from 
 the consequences of the action, and thus avoid the 
 necessity of summoning them in the suit. 
 
 SECTION V. 
 
 Of the Change of Parties, and herein, of the 
 
 EFFECT upon THE AcTION. 
 
 Formerly, if a sole plaintiff or defendant died he- 
 fore verdict or interlocutory judgment, the action 
 abated, and tha plaintiff or his executors or admin- 
 istrators, had to commence a new action against the 
 defendant or his executors or administrators, provi- 
 ded the cause of action survived to the representa- 
 tives. 
 
 But if the event happened after verdict, a judg- 
 ment might thereupon be perfected. 
 
 Now, however, it is provided by § 121 of the Code^ 
 that " no action shall abate by the death, marriage 
 or other disability of a party, or by the transfer of 
 any interest therein, if the cause of action survive 
 or continue." 
 
 This is an important change, and enables tlie par- 
 ty to proceed with his action, instead of commen- 
 cing a new one. 
 
 Sole Plaintiff.'] — If a sole plaintiff in the action die, 
 at any time, during the pendency of the suit, cither
 
 22 OF THE CHANGE OF PARTIES. 
 
 before or after verdict, and the cause of action sur- 
 vive, a motion must be made to the court in which 
 the suit is pending, to continue it by and in the name 
 of his executors or administrators. So if a. sole de- 
 fendant die, a like motion must be made to continue 
 the action against his executors or administrators. 
 So if SL feme sole plaintiff or defendant marry during 
 the progress of the suit, the court, upon motion, 
 will order the action to be continued by or against 
 her husband, or unite her husband, as a co-plaintiff 
 or co-defendant, with her. 
 
 As we have seen {ante p. 10) the action must be 
 commenced in the name of the real party in inte- 
 rest. Yet such party may, immediately afterwards, 
 transfer his interest to another. The action, never- 
 theless, does not abate, but may be continued by 
 the successor in interest ; for which purpose a mo- 
 tion must be made. 
 
 Transfer of interest.] — In case of any other transfer 
 of interest the action continues in the name of the 
 original party. The court, however, may allow the 
 person to whom the transfer is made to be substi- 
 tuted in the action. Code, §121. 
 
 Several plaintiff's or defendants.] — In case of the 
 death, marriage, or other disability, or the transfer 
 of any interest, by one of several plaintiffs or defend- 
 ants, if the cause of action survive to the surviving 
 plaintiffs or defendants, the court will order the suit 
 to be continued by or against the survivors, upon 
 motion for that purpose. 
 
 Upon the happening of either of the events, ren- 
 deriii"' it necessary to continue the action against 
 those who succeed to the interest of the plaintif}', a
 
 OF THE CHANGE OF PARTIES. 23 
 
 motion must be made to the court in which the 
 action is pending. 
 
 Motion, when made] — This motion must be made 
 within one year after the happening of the event, and 
 cannot be made afterwards. Code, § 121. 
 
 The affidavit.] — For this purpose an affidavit must 
 be drawn, stating the facts, rendering the change 
 necessary, and sworn to by the person who seeks to 
 continue the action. If a sole plaintiff or defendant 
 dies, his executor or administrator must make the 
 'affidavit; if one of several plaintiffs or defendants 
 dies the survivor must make the affidavit, for the 
 suit is to be continued in his name ; if the plaintiff 
 parts with his interest in the subject matter of the 
 suit, the person who succeeds to the interes*, must 
 make the affidavit. A copy of the affidavit must 
 be served on the attorney for the opposite party, 
 with a notice of motion at the special term, for an 
 order to continue the suit against the person who 
 survives the plaintiff or defendant or who succeeds to 
 his interest in the subject matter of the controversy. 
 
 Motion, how made.] — This motion is made like 
 other special motions, and as the subject of motions 
 is treated of by itself in another part of this work, 
 it is unnecessary to point out at this time, more par- 
 ticularly, the practice. 
 
 Who may make the mofion.] — It may sometime arise, 
 that the party or person, whose duty it is to apply 
 to the court to allow the action to be continued by 
 or against the representative or successor in interest, 
 may neglect or refuse to move. This throws upon 
 the opposite party the burthen of becoming the 
 moving party. He cannot get the suit "out of 
 court" for a want of prosecution, nor can he proceed 
 
 y
 
 24 OF THE CHANGE OF PARTIES. 
 
 with the trial. Indeed he cannot take any step 
 whatever in the suit, so long as the disability con- 
 tinues. That must be removed before the action 
 is in a condition to proceed. 
 
 After waiting a reasonable time for the party 
 whose duty it is, in the first instance, to move, if 
 he neglect, or upon application, refuse to proceed, 
 the opposite party may himself apply to the court, 
 upon an affidavit of the neglect or refusal, and ob- 
 tain an order that the action be continued. 
 
 Action, how continued after one year has elapsed.] — 
 Although a motion to continue the action can only 
 be made within one year from the time the disability 
 happens, the party may, after the expiration of a 
 year, obtain the same relief by a supplemental com- 
 plaint, {Code, § 121,) which then becomes the proper 
 course. A supplemental complaint is in effect, a 
 new complaint embracing the subject matter of the 
 first complaint, with the new parties, and the reasons 
 for continuing the action in their names. It is 
 nevertheless a continuation of the original suit.
 
 CHAPTER IV. 
 
 OF THE PLACE OF TRIAL. 
 
 Having determined who should be made the 
 party plaintiff and who the party defendant, the 
 next step preliminary to bringing the action, is to 
 ascertain the place of trial. 
 
 This formerly was called the venue, which was a 
 statement of the neighborhood or county in which the 
 facts were alleged to have occurred, and where the 
 cauee was intended to be tried. 
 
 The place of trial will depend upon the subject 
 of the action, or the residence of the parties or some 
 of them ; in other words whether the action is of a 
 local or transitory nature. 
 
 The subject therefore will be treated under sepa- 
 rate heads. 
 
 SECTION I. 
 
 Of Actions which must be Tried in the County where 
 THE Subject of the Action is Situated. 
 
 It is provided by section 123 of the Code, that 
 "Actions for the following causes, must be tried in 
 the county in which the subject of the action or 
 some part thereof is situated :" 
 
 1. For the recovery of real property, or of an estate or interest 
 therein, or for tlie determination, in any form, of such right or 
 interest, and for injuries to real property : 
 
 2. For the partition of real property : 
 
 3. For the foreclosure of a mortgage of real property : 
 
 4. For the recovery of personal property distrained for any cause.
 
 26 OF THE PLACE OF TRIAL. 
 
 Actions for the foregoing causes were always 
 local, and were triable only in the county, were the 
 subject of the action was situated, and could not be 
 tried elsewhere, without the order of the court. 
 
 The first subdivision, embraces, what were for- 
 merly denominated actions of ejectment, waste, 
 tresjDass to lands and the like. Actions for these 
 and similar causes, affecting real property or a right 
 or interest therein, must be tried in the county 
 where the lands are situa'ed. 
 
 The second and third subdivisions require, that ac- 
 tions for the partition of lands and for the foreclos- 
 ure of mortgages upon real property, should also be 
 tried in the county where the lands are situated. 
 And this, though the cause of the action, may have 
 arisen elsewhere. Hence, a mortgage made in one 
 county, upon lands in another is subject to this rule, 
 and the action must be tried in the county where 
 the land is situated, and not in the county where 
 the mortgage was made, or where the transaction 
 took place, which resulted in the execution of the 
 mortgage. See Miller vs. Hull and wife, 1 Code Rep., 
 113, 114. 
 
 The fourth subdivision, is confined to actions for 
 the recovery of personal property, which has been 
 distrained for any cause, and is similar to replevin, 
 for goods taken on a distress, which was local, by 
 the Revised Statutes. 2 Rev. Stat., 430, § 3. As 
 goods could be distrained only for the non-payment 
 of rent, it is not probable that an action for such 
 cause will be instituted, as distress for rent is now 
 abolished. Sess. Laivs 1846, 369, Chap. 274, § 2. 
 
 These provisions, requiring the action to be tried
 
 OF THE PLACE OF TRIAL. 27 
 
 in the county where the subject of the action or 
 some part thereof is situated, are subject, however, 
 to the power of the court to change the place of trial, 
 in the cases now provided for by statute. Code, § 123. 
 2 Rev. Stat., 409, § 2. For the manner of procuring 
 the change of the phrce of trial and the cases in 
 which it will be allowed, see post p. 3J. 
 
 SECTION 11. 
 
 Of Actions tvhich must be Tried in the County 
 
 WHERE THE CaUSE OR SOME PART THEREOF ArOSE. 
 
 By section 124 of the Code, it is provided that " ac- 
 tions for the following causes, must be tried in the 
 county where the cause, or some part thereof 
 arose." 
 
 1. For the recovery of a penalty or forfeiture imposed by statute. 
 
 2. Against a public officer or person, specially appointed to 
 execute his duties, for an act done by him in virtue of bis office, 
 or against a person, who by his command or in his aid, shall do 
 any thing touching the duties of such officer. 
 
 The actions enumerated in this section, were 
 made local by statute, previous to the Code. 2 Rev. 
 Stat., 395, §§ 8, 9. Ibid, 277, § 28. Ibid, 330, § 3. 
 
 The first subdivision, embraces the class of cases, 
 which fall under the denomination of actions for 
 the recovery of a penalty or forfeiture, specially im- 
 posed by some statute, and not to penalties or for- 
 feitures imposed by contract of parties. These ac- 
 tions must be tried in the county where the fact 
 occurred by which the penalty attaches or the for- 
 feiture arises. Thus a penalty of twenty-five dol- 
 lars is imposed by statute for selling liquor without
 
 28 OF THE PLACE OF TRIAL. 
 
 a license, to be recovered by the overseers of the 
 poor. Ill such a case the action must be tried in 
 the county where the liquor was sold, and cannot be 
 tried elsewhere, except by order of the court. 
 
 Where, however, the penalty or forfeiture is im- 
 posed for an offence committed on a lake, river or 
 other ."^tream of water, situated in two or more 
 counties, the action may be brought in any county 
 bordering on such lake, river or stream of water, 
 an 1 opposite the place where the offence was com- 
 mitted. {Code, § 124, suh. 1.) Thus if an offence bo 
 committed on the waters of the Hudson River, 
 where it divides two counties, or upon a stream 
 running between two counties, the action can be 
 tried in either county, at the option of the plaintiff. 
 
 Actions enumerated in the second subdivision of 
 this section, are such as are brought against any 
 public officer, for acts done by him virtute officii, and 
 extend to actions against persons, who aid the officer 
 in the performance of a duty either by or without 
 his command. In the latter cases, the person 
 against whom the action is instituted, must have 
 been eno^ao^ed in aidino^ the officer while in the dis- 
 charge of some duty imposed on the officer by lato, 
 and not to cases where the officer acts without au- 
 thority. Thus, the statute (2 Rev. Stat., 441, § 80,) 
 authorizes a Sheriff to command the power of his 
 county, to aid him in the execution of process, and 
 every male inhabitant of the county is required to 
 obey the command. If therefore an action is 
 brought against a person for an act done by him 
 while thus aiding a Sheriff, he may require the ac- 
 tion to be tried in the county, where the act com- 
 plained of was done.
 
 OF THE PLACE OF TRIAL. 29 
 
 And it has been held under the former statute, of 
 which the foregoing section of the code is nearly a 
 transcript, (2 Rev. Stat., 277, § 28,) that the statute, 
 in respect to actions against the officer, applies only 
 to affirmative acts, and not to mere omissions or 
 neglect of official duty. 13 Wend. Rep., 35, 266. 
 
 The same power is given to the court, in these 
 cases, to change the place of trial, in cases now 
 provided for by statute. For the manner of procur- 
 ing the change of place of trial, see post p. 31. 
 
 SECTION III. 
 
 Of Actions which must be Tried in the County in 
 WHICH THE Parties or any of them Reside at 
 the Commencement of the Action. 
 
 By section 125, of the Code, it is provided, that in 
 all other cases, not mentioned in sections 123 and 
 124, the action shall be tried in the county in which 
 the parties or any of them reside at the commence- 
 ment of the action. This includes all such personal 
 actions as were heretofore denominated transitory 
 actions. The rule that formerly prevailed in respect 
 to the venue in transitory actions, is changed, so far, 
 as it is now required that some one of the parties, 
 plaintiffs or defendants, must reside in the county, 
 where it is intended to try the action. It is not 
 necessary that all the parties should reside in the 
 county designated in the complaint ; it is sufficient 
 if one only reside there, and he may be a plaintilf or 
 defendant. 
 
 Where all the parties, plaintiffs as well as defend- 
 ants, are non-residents of the state, the plaintiff may
 
 30 OF THE PLACE OF TRIAL. 
 
 designate in his complaint the county in which he 
 desires the trial of the action to be had. Code, § 125. 
 But if only the plamfiff is a non-resident, the trial 
 must be had in the county where the defendant re- 
 sides. 
 
 All these rules and provisions in relation to the 
 place of trial, are subject, however, to the power of 
 the court, to change the place in cases now provided 
 by statute. As to which see post p. 31. 
 
 It is no objection to the complaint, that it desig- 
 nates an improper county for the trial of the action; 
 the only remedy for the defendant, where it appears 
 from the complaint, that the wrong county has been 
 selected, is to demand in writing, which he may do, 
 at any time before the time for answering expires, 
 that the trial be had in the proper county. Code, 
 § 126. 
 
 There may be cases where it would be more con- 
 venient to both the parties, to try a local action, in 
 a county other than that where the law requires it 
 to be tried. In such cases it may be tried in any 
 county with the consent of the defendant, which 
 consent will be presumed, if he serves his answer, 
 without serving a demand iw writing, that the trial 
 be had in the proper county. 
 
 The plaintiff, therefore, may in a strictly local ac- 
 tion, designate in his complaint an improper county 
 for the trial of the action, subject to having it changed 
 by the defendant's demand. And he may try it, in 
 such improper county if no such demand is made ; 
 and it will be valid and effectual to the same extent 
 as if it had been tried in the proper county.
 
 OF THE CHANGE OF THE PLACE OF TRIAL. 31 
 
 SECTION IV. 
 
 Of the Change of the Place of Trl\l, 
 
 The statute, limiting the trial of actions to certain 
 counties, as has been stated, confers upon the court 
 the power to change the place of trial to another 
 county than that selected by the plaintiff and men- 
 tioned in the complaint, in all those cases heretofore 
 provided for by statute. 
 
 Concerning actions which must be tried in the 
 county where the subject of the action is situated, 
 or where the cause or some part thereof arose, and 
 which are properly speaking, local actions, it is pro- 
 vided by statute (2 R. S., 409, § 2, sub. 3) that the 
 court may order the cause to be tried in some other 
 county, when it shall appear that a fair and impar- 
 tial trial cannot be had in the county which the 
 plaintiff has designated in his complaint as the 
 place of trial. This statute does not extend to, nor 
 does it authorise the change, in actions against pub- 
 lic officers, nor against persons specially appointed 
 to execute his duties, nor against persons aiding the 
 officer; as to those actions the court has not the 
 power to change the place of trial. Nor can ac- 
 tions of a local nature, such as actions relating to 
 real property or for the recovery of penalties or for- 
 feitures imposed by statute, be tried in any other 
 county than that in which the subject thereof is sit- 
 uated, or arose, unless it appear that a fair and im- 
 partial trial cannot be had therein. This being the 
 only ground upon which to move for a change.
 
 32 OF THE CHANGE OF THE PLACE OF TRIAL. 
 
 In the following actions, the place of trial may 
 be changed by the court, when it appears that a fair 
 and impartial trial cannot be had in the county, 
 designated by the plaintiff as the place of trial, viz: 
 
 1. Actions for the recoveryjOf real property, or of an estate or in- 
 terest therein, or for the determination, in any form, of such right 
 or interest, and for injuries to real property: 
 
 2. Actions for injuries to the person. 
 
 In the following actions, the place of trial may 
 be changed for the same reason, and also when the 
 court shall deem it necessary for the convenience 
 of the parties and their witnesses, viz : 
 
 Actions of slander, libel, injuries to personal property, other actions 
 for wrong's, (except for injuries to real property and to the per- 
 son) and upon contracts. 
 
 In the following actions the place of trial cannot 
 be changed, viz: 
 
 Actions against a public officer or person specially appointed to 
 execute his duties, for an act done by him in virtue of his office, 
 or against a person, who by his command or in his aid, shall do 
 any thing touching the duties of such officer. 
 
 In regard to such actions, it is provided by statute, 
 that "if it shall not appear on the trial, that the 
 cause of such action arose within the county Avhere 
 such trial is had, the jury shall be discharged, and 
 judgment of discontinuance shall be rendered 
 against the plaintiff." 2 R. S., 409, §3. 
 
 How obtained ] — A change of the place of trial is 
 obtained, by a motion to the court at a special term, 
 upon an afhdavit of the facts rendering a change 
 necessary or proper, and is conducted in all respects 
 like other special motions. 
 
 Ground.] — The most usual ground for a change of 
 the place of trial is, that a greater number of wit- 
 nesses reside in the county to which it is proposed
 
 OF THE CHANGE OF THE PLACE OF TRIAL. 33 
 
 to have the place of trial changed, than in the 
 county designated in the complaint ; and this, ordi- 
 narily, is sufficient to procure the order; it is also 
 proper to state in the affidavit that the transaction 
 which is the subject of the action occurred in the 
 county to which it is proposed to change the place 
 of trial, which will be prima facie evidence, that the 
 witnesses to it, reside there. 
 
 And it is provided by rule, (Rule 48,) that in ad- 
 dition to what has usually been stated in the affi- 
 davit, either party may state the nature of the con- 
 troversy, and show how his witnesses are material : 
 and may also show where the cause of action, or 
 defence, or both of them, arose. These facts will 
 be taken into consideration by the court, in fixing 
 the place of trial. 
 
 The largest number of witnesses will not always 
 govern, unless it clearly appear that they are neces- 
 sary and material ; for if the party seeking the order 
 to change the place of trial should swear to a hun- 
 dred and sixteen witnesses, in a case where the 
 court could see that such a number could not be 
 necessary or material, the motion would be denied, 
 though the opposite party should swear to but fifteen 
 witnesses. Wallace vs. Bond, 4 Hill Rep., 536. 
 
 If the ground, upon which the change is applied 
 
 for, be, that a fair and impartial trial cannot be had, 
 
 in the county mentioned in the complaint, the facts 
 
 upon which the belief is founded, must be stated in 
 
 the affidavit used for the motion, that the court may 
 
 judge, if there is sufficient reason for supposing a 
 
 fair and impartial trial may not be had in such 
 
 county. And a strong case must be made out, and 
 
 the facts must be such as to induce a reasonable 
 
 3
 
 34 or THE CHANGE OF THE PLACE OF TRIAL. 
 
 belief, that justice will not be done, if the place of 
 trial is retained. 
 
 A great excitement, prevailing in the county, in 
 regard to the subject matter of the action, it has 
 been held was ground for changing the place of 
 trial. 12 Wend. Rep., 203; 1 Hill Rep, 179. But the 
 mere prejudice of the community against turnpike 
 roads, is no ground for changing the place of trial, 
 in a suit by a turnpike company, for running a road 
 parallel to theirs. 3 Caines Rep., 127. 
 
 When ?nade.] — A motion to change the place of 
 trial, may be made at any time before the trial of 
 the action, either before or after answer. But gene- 
 rally, however, it is advisable to make the motion 
 before the answer is served ; for if it is delayed until 
 aher answer and the cause should be noticed for 
 trial, the defendant will have to pay the plaintiff's 
 costs of preparing for trial and perhaps the whole 
 costs of the circuit, (5 Wend. Rep., 102,) and the 
 costs of resisting the motion. 
 
 It seems, however, that in the class of actions, 
 which are local, such as actions which must be 
 tried in the county in which the subject of tiie 
 action or some part thereof is situated, {Code, § 123,) 
 or actions which must be tried in the county where 
 the cause or some part thereof arose, {Code, § 124,) 
 that if the plaintiff has designated an improper 
 county in his complaint, as the place of trial, the 
 defendant before or at the time of serving his an- 
 swer, should demand in writing that the trial be 
 had in the proper county. {Code, § 126.) And if the 
 defendant omit to do so, and serves his answer, the 
 court will not, upon an application for the purpose,
 
 OF THE CHANGE OF THE PLACE OF TRIAL. 35 
 
 grant the motion. At any rate, the defendant would 
 have to pay costs of resisting the motion. 
 
 Staying Proceedings.] — If the defendant wishes to 
 stay the proceedings of the plaintiff, in order to 
 move to change the place of trial, he must procure 
 an order from a judge of the court, or from a county 
 judge. This order is usually granted upon the 
 affidavit, to be used on the motion and endorsed 
 upon it. The order staying proceedings will not he 
 granted unless it appears from the affidavit and pa- 
 pers, that the defendant has used due diligence in 
 preparing the motion for the earliest practicable day 
 after the service of the complaint. Rule 47. The 
 judge will not grant an order to stay the plaintiff in 
 putting the cause at issue, or taking any other step 
 except giving notice and subpoenaing witnesses for 
 the trial, unless he inserts in the order a special 
 clause to that effect. Id. Hence, notwithstanding 
 the order, unless it contains such special clause, 
 the defendant must serve his answer, within the 
 usual time, and the plaintiff may reply thereto. 
 The order does not stay any of these proceedings, 
 and it only prevents the plaintiff from noticing the 
 cause for trial and subpoenaing his witnesses. 
 
 If the plaintiff can successfully resist the motion, 
 he may avoid the order staying his proceedings by 
 getting it revoked. To do this, he must present to 
 the officer who granted the order, an affidavit show- 
 ing such facts, as will entitle the plaintiff, according 
 to the settled practice of the court, to retain the 
 place of trial; and if the officer is satisfied, that the 
 motion will be, or ought to be denied, he will revoke 
 the order to stay proceedings. Rule 47. The plain-
 
 36 OF THE CHANGE OF THE PLACE OF TRIAL. 
 
 tiff must give immediate notice of such revocation 
 to the defendant's attorney. Id. 
 
 Notwithstanding, such order is revoked, the mo- 
 tion may still be made, and the plaintiff must resist 
 it in the usual way : the effect of the revocation 
 being simply to enable the plaintiff to notice the 
 cause for trial.
 
 CHAPTER V. 
 
 OF THE GENERAL -RULES OF PLEADINGS. 
 
 Among the radical changes in the s^^stem of prac- 
 tice and pleading, which the Code of Procedure has 
 produced, the most essential and absolute, is that 
 which relates to the pleadings in the action. Fic- 
 tions of all kinds are abolished and concise and in- 
 telligible language substituted ; and the whole sys- 
 tem is intended to be " simple in its construction, 
 easily understood and efficient for all the purposes 
 of justice." 
 
 SECTION I: 
 
 Of the Pleadings, and herein of what Pleadings are. 
 
 The pleadings are the written allegations of the 
 plaintiff's cause of action on the one side, and the 
 defence thereto of the defendant on the other. 
 
 There are four kinds of pleadings allowed in the 
 prosecution and defence of an action, viz : 
 
 1. The Complaint; 
 
 2. The Answer; 
 
 3. The Reply; and 
 
 4. The Demurrer. ( Code, § 156.) 
 
 These comprise all the pleadings that can be used 
 in the progress of the cause, and their object is to 
 present the facts on which the court is to pronounce 
 the law, and to reduce the issue to the real matter
 
 38 WHAT WILL BE SUFFICIENT IX A PLEADING. 
 
 in dispute. For this purpose it is provided that the 
 pleading shall contain a concise statement of the 
 facts constituting the cause of action, or defence, 
 without repetition, and in such a manner as to 
 enable a person of common understanding to know 
 what is intended. 
 
 SECTION II. 
 
 Of what will be Sufficient in a Pleading. 
 
 As the design of a pleading is to present to the 
 Court a statement of the facts constituting the 
 cause of action or defence, that the issue formed 
 may he tried, it is in general sufficient if the plead- 
 ing on the one side contain a specific averment of 
 the precise nature of the cause of action, and on the 
 other a general or specific denial thereof, or a denial 
 thereof according to information and belief, or of 
 any knowlege thereof, sufficient to form a belief. 
 Code, § 149, suh. 1. 
 
 It is not necessary to set forth in a pleading the 
 items of an account therein alleged, but the party 
 must furnish the adverse party with a copy verified 
 by his oath within ten days after a demand for that 
 purpose. Code, § 158. 
 
 So 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 allega- 
 tion however, be controverted by the adverse party, 
 the party pleading is bound to establish on the trial, 
 the facts conferring jurisdiction. Code, § 161.
 
 WHAT WILL BE SUFFICIENT IN A PLEADING. 39 
 
 So, in pleading the performance of conditions pre- 
 cedent in a contract, it is not necessary to state the 
 facts showing such performance ; but it may be 
 stated generally, that the party duly performed all 
 the conditions on his part; and if such allegation 
 be controverted, the party pleading is bound to es- 
 tablish on the trial the facts showing such perform- 
 ance. Code, § 162. 
 
 So, in pleading a private statute or any right de- 
 rived therefrom, it is sufficient to refer to such stat- 
 ute, by its title and the day of its passage, and the 
 court will thereupon take judicial notice thereof. 
 Code, § 163. 
 
 So, in an action for libel or slander, it is not ne- 
 cessary to state in the complaint, any extrinsic 
 facts, for the purpose of showing the application to 
 the plaintiff, of the defamatory matter, out of which 
 the cause of action arose. It is sufficient to state 
 generally, that the same was published or spoken 
 concerning the plaintiff; if the allegation is con- 
 troverted, the plaintiff must establish on the trial 
 that it was so published or spoken. Code, § 164. 
 
 It is not intended to do any thing more than to 
 lay down the geiieral rules of pleading, as applicable 
 to all kinds of pleading, reserving it for another part 
 of this work, to speak of each of the dilfercnt kinds 
 of pleadings in their appropriate order.
 
 40 CONSTRUCTON AND EFFECT OF PLEADINGS. 
 
 SECTION III. 
 
 Of THE Construction of Pleadings, and herein of 
 THE Effect of Pleadings. 
 
 The great reform which the Code has wrought, 
 in pleadings, being designed, as we have stated, to 
 simplify the issue to be tried, and strip the case of 
 all the perplexing questions involved in the old sys- 
 tem, the Legislature in adopting the Code, have 
 made liberal and enlightened rules for the construc- 
 tion of pleadings and the effect they are to have 
 upon the issue presented for trial. 
 
 Accordingly, it is provided, that in the construc- 
 tion of a pleading, for the purpose of determining 
 its effect, its allegations shall be liberally construed, 
 with a view to substantial justice between the par- 
 ties. Code, § 159. 
 
 The great object to be attained in the judicial 
 construction of a pleading, is, if possible, to give 
 legal effect to its statement of facts. The court, 
 will therefore, be liberal in adjudging whether it be 
 sufficient or not to apprise the adverse party of what 
 is intended, or whether the facts as alleged, consti- 
 tute a legal or equitable cause of action or defence ; 
 and the pleading will be deemed sufhcient, if the 
 party complaing of its defects, is net injured there- 
 by. The objections to it, must in all cases be sub- 
 stantial, not technical. 
 
 Notwithstanding the allegations in a pleading are 
 to be liberally construed, care must be taken that 
 they contain a sufficient statement of facts to con-
 
 MISTAKES AND AMCNDxMENTS OF PLEADINGS. 41 
 
 stitute a cause of action or defence, for the court 
 cannot supply facts, Ihoagh they can exercise a lib- 
 eral discretion, in determining the effect of those 
 that appear. The pleading therefore must be such, 
 that by a liberal and fair construction, with a view- 
 to substanlial justice between the parties, the court 
 can give effect to the allegations it contains, 
 
 SECTION IV. 
 
 Of Mistakes in Pleading, and herein of Amend- 
 ments OF Pleading. 
 
 It is provided by Section 173 of the Code, that the 
 court may at any time, in furtherance of justice, and 
 on such terms as may be proper, amend any plead- 
 ing or proceeding, by adding or striking out the 
 name of any party, or by correcting a mistake in 
 the name of a party, or a mistake in any other re- 
 spect, or by inserting other allegations material to 
 the case, or by conforming the pleading or proceed- 
 ing to the facts proved. 
 
 The power here conferred, upon the court covers 
 every case of a mistake or omission in the pleading 
 or proceeding, and the main question to be deter- 
 mined, is as to the terms upon which the amend- 
 ment may be made. The application for leave to 
 amend, is always addressed to the sound discre- 
 tion of the court. It is not strictly a right, but a 
 favor which is demanded. The costs to be paid for 
 leave to amend, are also entirely in the discretion of 
 the court. 
 
 Upon what terms.] — The terms upon which a party 
 will be allowed to amend a pleading; will depend
 
 42 MISTAKES AND AMENDMENTS OF PLEADINGS. 
 
 upon the stage, of the action, and the effect it will 
 have upon the other pleadings and proceedings in 
 the cause. If the motion be to amend the com- 
 plaint, after the cause is at issue, and a new answer 
 is thereby rendered necessary, the costs of the an- 
 swer will ordinarily be imposed as the terms of 
 granting the amendment. And if the cause has 
 been noticed for trial, and a circuit is lost, perhaps 
 the costs of the circuit will be imposed, in addition. 
 Brown Ys Babcock, i. Code Rep., 66. 
 
 So, if the defendant applies for leave to amend 
 his answer, or the plaintiff his reply, after the cause 
 is at issue, and noticed for trial, the costs of the cir- 
 cuit a id the cost of opposing the motion will be re- 
 quired to be paid, as the terms of granting the amend- 
 ment. 
 
 It is not necessary that every allegation in a plead- 
 ing should be exactly supported by the proof, on the 
 trial. Hence, no variance between the allegation 
 and the proof, will be deemed a material variance, 
 so as to require an amendment, unless it has actual- 
 ly misled the adverse party to his prejudice in main- 
 taining his action or defence upon the merits. Code, 
 § 169. And where the variance is not material, and 
 the adverse party is not prejudiced, the court will 
 direct the facts to be found according to the evi- 
 dence, without regard to the variance, or for the 
 furtherance of justice, will allow an immediate 
 amendment of the pleading to le made on the trial, 
 without costs. Code, § 170. 
 
 If, however, a party alleges that he has been 
 actually misled l)y a variance between the pleading 
 and the proof, he must satisfy the court, by ojjidavit,
 
 MISTAKES AND AMENDMENTS OF PLEADINGS. 43 
 
 in what respect and to what extent he has been 
 misled. The court will not judge from the variance 
 itself, nor determine that the party has been misled 
 from the fact that the proof does not support the 
 allegation in the pleading, but the party must prove 
 to the satisfaction of the court, that he has been 
 actually misled to his prejudice. Code, § 169. 
 
 Notwithstanding the party may have been misled 
 by a variance, the court may order the pleading to 
 be amended, upon such terms as shall be just. Code, 
 § 169. It is in the discretion of the court, however, 
 whether to grant an amendment, or non-suit the 
 plaintiff, or exclude the defence of the defendant. 
 
 There are a class of what are termed variances, 
 which is not reached by the very liberal rules, as 
 above laid down, and which cannot be remedied 
 by an amendment. Properly speaking, however, 
 they are not variances, but an entire failure of 
 proof 
 
 It is provided by § 171 of the Code, that where the 
 allegation of the cause of action or of the defence, 
 to which the proof is directed, is unproved, not in 
 some particular or particulars only, but in its entire 
 scope and meaning it will not be deemed a variance, 
 but a failure of proof. 
 
 In such cases the court is not authorised to grant 
 an amendment, but must non-suit the plaintiff or 
 overrule the defence, and give judgment accord- 
 ingly. 
 
 In order to amend there must be something to 
 amend upon, and it may be done by adding to or 
 taking from the pleading.
 
 44 MISTAKES AND AMENDMENTS OF PLEADINGS. 
 
 Thus the plaintiff will be allowed to amend his 
 complaint, by adding a new statement of facts, not 
 inconsistent with his former allegations, analogous 
 to another count, under the former practice. And 
 this will be allowed even after trial, a new trial 
 having been ordered. Burnan and Bahcock vs. Halloren, 
 1. Code Rep., 51. 
 
 So an amendment will be allowed on the trial, 
 by striking out the name of one of the defendants, 
 against whom there is no evidence. Bemis vs. Bran- 
 son and Crocker, 1. Code Rep., 27. Exs. of XeeseYS. Ful- 
 lerton, ibid 52. The costs of such defendant, however, 
 will be imposed as a condition. 3id. 
 
 So the plaintiff may amend by adding a party, 
 if it do not change substantially the cause of 
 action or defence, and it appear to be "in further- 
 ance of justice." He, however, must pay costs. 
 Butcher vs. Slack, 3 How. Pr. T. Rep., 322. Or by 
 striking out a party in a certain case. Code, § 136, 
 sub. 4. 
 
 Amendments of course.'] — There are certain amend- 
 ments which may be made of course, that is, with- 
 out motion. Thus a party may amend a pleading, 
 of course, without paying costs, and without preju- 
 dice to any proceeding already had, at any time, 
 before the period of answering it shall expire. Code, 
 § 172. 
 
 So, after a demurrer has been put in to a pleading, 
 the pleading demurred to may be amended, of 
 conrse and without costs, within twenty days there- 
 after; but the party cannot so amend more than 
 once. After that, a motion for leave to amend 
 must be made to the court. Code, § 174.
 
 OF THE JOINDER OF ACTIONS. 45 
 
 In addition to the very ample power given to the 
 court to allow amendments to be made, for the 
 "furtherance of justice" in any stage of the action, 
 upon such terms as shall be proper ; the court are 
 directed to disregard any error or defect in the plead- 
 ings or proceedings, which shall not affect the sub- 
 stantial rights of the adverse party: and it is pro- 
 vided that no judgment shall be reversed or affected 
 by reason of such error or defect. Codcy § 176. 
 
 Amendment of summons.'] — A defective summons, 
 cannot be amended of course. The court, however, 
 has the power, it being a ^'' proceedings^ in the action, 
 to grant an amendment, upon terms, in any stage 
 of the suit. The same rules apply to this amend- 
 ment by the court, as to amendments of pleadings, 
 and it will be allowed upon the same terms. Dihhlee 
 vs. Mason, 1 Code Rep., 37. 
 
 The court may also disregard any error or defect, 
 in a summons, which shall not affect the substantial 
 rights of the adverse party. The contrary, however, 
 has been held. 1 Code Rep., 37. 
 
 SECTION V. 
 
 Of the different Causes of Action that may be in- 
 cluded IN one Complaint; and herein of the Mis- 
 joinder of Actions. 
 
 The rules heretofore prevailing in respect to the 
 joinder of actions, have been full of subtle distinc- 
 tions and perplexing difficulties. The greatest care 
 and skill was required on the part of the pleader, to 
 avoid duplicity and surplusage and guard against a
 
 46 OF THE JOINDER OF ACTIONS. 
 
 misjoinder of causes of actions or of inconsistent 
 counts. 
 
 Actions that may be united in the same complaint.] — 
 Section 167 of the Code, provides, that the plaintiff 
 may unite several causes of action in the same 
 complaint, where they all arise out of, 
 
 1. Contract, express or implied. 
 
 This covers suits on specialties, (contracts under 
 seal,) as well as simple contracts, {not under seal.) 
 A claim upon a promissory note, may be united 
 with a claim upon a bond, provided the parties are 
 the same: A claim for goods, wares and merchan- 
 dise sold may be united with a claim arising under 
 a deed, provided the parties are the same, and it 
 does not require a different place of trial. Or, 
 
 2. Injuries, with or v/ithout force, to the person : 
 
 Such as assault and battery, and false imprison- 
 ment, both of which may be included in one action 
 against the same person. Or, 
 
 3. Injuries, with or without force, to property : 
 
 This includes injuries to real as well as personal 
 property, and causes of action for both may be in- 
 cluded in the same action, hence trespass on lands 
 may be united with trespass to personal property, in 
 the same action. Heretofore this could not be. Or, 
 
 4. Injuries to character : 
 
 Such as slander and libel, which may be united 
 in the same complaint. Or, 
 
 5. Claims to recover real property, with or without damages, for 
 withholding thereof, and the rents and profits thereof: 
 
 Formerly an action of ejectment, which was an 
 action for the recovery of lands, could not be united 
 with any other cause of action. The action being
 
 OF THE MISJOINDER OF ACTIONS. 47 
 
 determined in favor of the plaintiff, he had to insti- 
 tute another proceeding to recover damages for the 
 withholding, or to recover the rents and profits, 
 which was called a suggestion for mesne profits; to 
 this suggestion the defendant might plead, and the 
 issue was tried. Now all these questions are dis- 
 posed of in one action. The complaint for the re- 
 covery of the land may also include the claim for 
 damages for withholding it, or for the rents and 
 profits. Or, 
 
 6. Claims to recover personal property, with or without damag;es5 
 for the withholding thereof: 
 
 The only action heretofore, for the recovery of per- 
 sonal property, was Replevin, in which the plaintiff 
 could recover not only the property itself, but dama- 
 ges for the detention. The cause of action men- 
 tioned in the last subdivision, is like that for which 
 replevin heretofore lay. Or, 
 
 7. Claims against a trustee, by virtue of a contract or by operation 
 of law. 
 
 It must be observed, that in uniting several causes 
 of action in the same complaint, they must affect 
 all the parties to the suit, and not require different 
 places of trial. For a complaint containing one 
 cause of action against the defendant individually^ 
 and another against him, in his official capacity, would 
 be bad, if the place of trial designated in the com- 
 plaint was not the proper county for the trial of an 
 action against a public officer. So, two defendants 
 cannot be sued in the same action, upon contracts 
 made by each, but not by both. 
 
 Actions that may not he united in the same complaint.] — 
 In order to authorise the union of several causes of
 
 48 OF THE MISJOINDER OF ACTIONS. 
 
 action in the same complaint, they must belong to 
 one only of the classes which we have enumerated. 
 It would be improper to unite a cause of action 
 embraced within the first subdivision, with a cause 
 of action embraced within the second or any other 
 subdivision. For example : a cause of action on a 
 promissory note cannot be united with one for an 
 injury to the person — nor, for injury to property, 
 with injury to the person. The causes of action 
 must belong to one and cannot belong to all of the 
 classes. 
 
 In stating several causes of action in the same 
 complaint, they must be separately set out ; because, 
 the defendant may have a defence to one and not 
 to the other, so he may demur to one, and answer 
 as to the other.
 
 PART II. 
 
 OF THE COMMENCEMENT, PROSECUTION AND 
 DEFENCE OF ACTIONS. 
 
 According to the rules and practice of the courts, 
 and the provisions of the statute, as they formerly 
 existed, there were several and different modes of 
 commencing a suit. These modes differed accord- 
 ingly, as the action was of a legal or equitable na- 
 ture. In the one case, the manner was regulated 
 somewhat by the form of the action, or the charac- 
 ter of the parties : as in suits against corporations 
 and in actions of replevin, the suit was commenced 
 by summons ; but in other actions, usually by writ, 
 or by declaration. And in suits, purely of an equi- 
 table nature, the first proceeding towards bringing 
 an action, was the filing a Bill, followed by the ser- 
 vice of a subpoena, upon the defendant. Among 
 the many and radical changes effected by the Code 
 of Procedure, the manner of bringing a suit, is, pro- 
 bably the most thorough and complete. The dis- 
 tinctions, which formerly existed in this respect, 
 between actions at law and suits in equity, have 
 been entirely removed ; and now, there is but one 
 mode of commencing an action for the enforcement
 
 50 COMMENCEMENT, ETC., OF ACTIONS. 
 
 or protection of private rights, and the redress or pre- 
 vention of private wrongs. Whatever, therefore, is 
 applicable to a legal action, is necessarily so, to an 
 equitable action, and one practice must govern all 
 cases.
 
 CHAPTER I. 
 
 OF THE COMMENCEMENT OF AN ACTION, AND 
 THE PROCEEDINGS ON THE PART OF THE 
 PLAINTIFF, TO THE ANSWER OR DEMURRER 
 OF THE DEFENDANT, OR TO AND INCLUDING 
 JUDGMENT FOR WANT OF AN ANSWER. 
 
 SECTION I. 
 
 Of the Mode of Commencing an Action. 
 
 Civil actions, brought in the courts of record in 
 this state, are commenced, by the service of a sum- 
 mons. Code, § 127. 
 
 Every description of action, whether of a purely 
 equitable or legal nature, is commenced in the same 
 manner. A summons is a process, though somewhat 
 in the nature of a notice: it does not issue out cf 
 the court, but is issued by the party or his attorney. 
 It partakes much of the character of a notice, in- 
 forming the defendant that the plaintiff has com- 
 menced an action against him, and requiring him 
 to make his defence, if he has any to make. 
 
 The summons, is the first proceeding in the suit, 
 and is the only notice the defendant has, that he is 
 required to answer the complaint. For the contents 
 (f the summons and mode of service, see post.
 
 52 MODE OF COMMENCING AN ACTION. 
 
 The service of the summons, upon the defendant 
 is the commencement of the action. Code, § 99, siih. 
 1. If there be two or more defendants, the service 
 upon one, will be suflicient. Ibid. Without such 
 service the action is not deemed to be commenced. 
 
 For the purpose of saving a cause of action from 
 the operation of the statute of limitations, the suit 
 will be deemed to be commenced, although the 
 summons is not actually served upon the defendant, 
 provided it is delivered to the sheriff, or other officer 
 of the county, in which the defendants or one of 
 them usually or last resided, with an intent that it 
 shall be actually served: or if a corporation is de- 
 fendant, it must be delivered to the sheriff or other 
 officer of the count}'-, in which such corporation is 
 established by law, or where its general business is 
 transacted, or where it keeps an office for the trans- 
 action of business, with a like intent to have the 
 summons actually served upon such defendant. 
 Code, § 99, suh. 2. 
 
 Thus, in a case where the defendant is concealed 
 within the state, or has departed therefrom, so that 
 actual service cannot be made upon him, and the 
 statute of limitations is about to attach to the cause 
 of action, the consequences of the statute may be 
 avoided by delivering the summons, to the sheriff 
 or other officer of the county, where the defendant 
 usually cr last resided, with the intent to have the 
 same actually served, as soon as the same can be 
 done. The intent must be bona fide ; for the ac- 
 tion will not be deemed to be commenced by the 
 delivery alone, unless there be an intent in good
 
 OF ARREST AND BAIL. 53 
 
 faith to have the summons served upon the defend- 
 ant. 2 Wend. Rep., 234. 2 Hill Rep., 598. 
 
 For any purpose, whether to save from the opera- 
 tions of the statute of limitations, or otherwise, the 
 action is deemed to be commenced from the time 
 the complaint is verified, notwithstanding the sum- 
 mons is not immediately served upon the defendant, 
 provided, the summons or other process issued upon 
 the complaint, is actually delivered to the sheriff or 
 other officer, on the same day the complaint is veri- 
 fied, or within the next ^?;e succeeding days, and be 
 followed by the actual service thereof, on the de- 
 fendants or one of them. Code, § 99, sub. 2. It 
 seems the service may be made at any time after- 
 wards. If therefore the complaint is verified, and 
 the summons is delivered to the officer, within the 
 time prescribed, the action will be deemed com- 
 menced from the time of verifying the complaint, 
 notwithstanding the summons is not served in one, 
 two or five years afterwards. 
 
 SECTION II. 
 
 Of Arrest and Bail. 
 
 Prior to the passage of the " Act to abolish impris- 
 onment for debt, and to punish fraudulent debtors," 
 {Laws ()f ISdl , chap., 300,) a defendant might be ar- 
 rested and bail required, in most of the ibrms of 
 actions ex contractu, as of course. That act, however, 
 abolished the right of arrest, and of holding to bail, 
 in all actions founded upon contract express or im- 
 plied, except in certain specified cases. But the 
 act of 1831 did not, in general afifect actions in form
 
 54 OF ARREST AND BAIL. 
 
 ex delicto. They remained as under the Revised 
 Statutes. 
 
 It is now provided by Section 179 of the Code, that 
 a defendant may be arrested, 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 ac- 
 tion is for an injury to person or character, or for injuring, or 
 for unlawfully taking, detaining, or converting property. 
 
 This includes that class of actions which were 
 formerly denominated actions ^:e delicto, and excludes 
 actions arising upon a contract. It authorizes the 
 arrest of a defendant for any tortious act, either in 
 respect to person or property, whether the injury is 
 of a wilful nature or not. Thus, for an assault and 
 battery, slander or libel, or trespass upon property, 
 real or personal — or the unlawful taking, detention 
 or conversion of personal property, are cases in 
 which the defendant can be arrested and held to 
 bail. In other actions for torts, where the act com- 
 plained of, is not among those above mentioned, it 
 must appear that the defendant is a non-resident of 
 the state, or is about to remove from the state, Or 
 
 2. In an action for a fine or penalty, or on a promise to marry, or 
 for money received, or property embezzled or fraudulently mis- 
 applied by a public officer, or by an attorney, solicitor or coun- 
 sellor, or by an officer or agent of a corporation or banking asso- 
 ciation, in the course of his employment as such, or by any 
 factor, agent, broker or other person in a fiduciary capacity, or 
 for any misconduct or neglect in office or in a professional em- 
 ployment. 
 
 In these cases the defendant may be arre:<ted of 
 course, upon the plaintiiPs obtaining an order from 
 the judge, and it is not necessary that the defend-
 
 OF ARREST AND BAIL. 55 
 
 ant should be a non-resident, or be about to remove 
 from the state, or that the act is a wilful one, Or 
 
 3. In an action to recover the possession of personal property 
 unjustly detained, where the property or any part thereof has 
 been concealed, removed, or disp )3ed of so that it cannot be 
 found or taken by the sheriff. 
 
 This is a substitute for the proceedings in an ac- 
 tion of replevin, which authorized the arrett of the 
 defendant in cases where the property sought to be 
 replevied could not be found. Before a judge will 
 grant an order of arrest in such cases he must be 
 satisfied by proof that the property is concealed or 
 removed, or disposed of An attempt must be made 
 by the sheriff to take the property ; if he fail to find 
 it, and there is good reason to believ^e, it is removed 
 from the county of the sheriff', or is concealed so 
 that it cannot be found by the sheriff', then upon 
 proof of \\ie facts, an or.Ier may be obtained for the 
 arrest of the defendant. And the facts should be set 
 out in the affidavit upon which the application for 
 an order of arrest is founded. The judge is to be 
 satisfied, that it is a proper case for the order, and the 
 mere belief o^ the party, or of the sheriff", that the 
 property has been removed, or concealed, or dispos- 
 ed of, will not be sufficient; but the facts upon 
 which the belief is founded shouhl be stated. Or 
 
 4. Where the defendant has been g-uilty of a fraud, in contracting 
 the debt, or incurring- the obligation for which the action is 
 broug^ht, or in concealing^ or disposing of the property, for the 
 taking, detention or conversion of which the action is brought. 
 
 Heretofore, the actions embraced in this subdi- 
 vision were not bailable. Now, however, a defend- 
 ant may be arrested and held to bail, whenever it
 
 56 OF ARREST AND BAIL. 
 
 appears that he has been guilty of any of the acts 
 above enumerated. Thus, where a person in mak- 
 ing a purchase of goods on credit, or in obtaining 
 the loan of money, is guilty of a fraudulent repre- 
 sentation of facts, upon which he obtains the credit ; 
 or of a fraudulent suppression of facts, which if 
 known to the seller or lender would have prevented 
 the sale or loan ; in such cases, an order may be 
 obtained, for the arrest of the defendant. Or 
 
 5. When the defendant has removed or disposed of, his property, 
 or is about to do so, with intent to defraud his creditors : 
 
 The " act to abolish imprisonment for debt and 
 punish fraudulent debtors" authorized a warrant to 
 be issued for the arrest of a defendant, who removed 
 or disposed of his property, or was about to do so, 
 with intent to defraud his creditors ; but it could 
 not heretofore be done in an action. Now, in an 
 action upon a contract, or in any other action, an 
 order may be obtained for the arrest of a defendant, 
 in those cases mentioned in the last subdivision. 
 
 It will be seen that the right to arrest the defend- 
 ant and hold him to bail, has been extended to a 
 variety of cases in which formerly it could not be 
 done. From the specific and distinct language of 
 the Code upon this subject, the practitioner will find 
 little difficulty in satisfying himself, whether his 
 case is one, in which he can obtain an order for the 
 arrest of the defendant. He has only to bring it, 
 within one of the class of actions in which arrests 
 are allowed. In addition to the cases in which the 
 defendant can be held (o bail, as before mentioned, 
 the defendant may also be arrested in all the cases 
 provided for in the act to abolish imprisonment for
 
 OF ARREST AND BAIL. 57 
 
 debt and to panish fraudulent debtors, passed April 
 26, 1831, and in the several acts amending the 
 same. Code, § 178. 
 
 A female cannot be arrested in any action, except 
 for a wilful injury to person, character or property, 
 Thus, a female may be arrested and held to bail, for 
 a wilful slander or libel, or wilful assault and battery, 
 or a wilful trespass upon real or peri^onal property. 
 But unless the act complained of is iviJful, she can- 
 not be held to bail ; and it is not sufficient that it 
 was accompanied by force, but it must appear to 
 have been wilfully done. 
 
 Obtaining the order of arrest.'] — A defendant cannot 
 be arrested in any case without an order. This must 
 be obtained from a judge of the court in which the 
 action is brought, or it may be obtained from a 
 county judge, {Code, § 180); the latter, however, can 
 only grant the order within his county. Although 
 it would seem that a county judge of one county 
 may grant an order for the arrest of a defendant, in 
 another county. 
 
 Affidavit to obtain the order.'] — An affidavit must be 
 prepared of the facts of the case; it must contain a 
 statement of a sufficient cause of action, and must 
 be stated in plain and intelligible language, that 
 the judge maybe able to determine, that a sufficient 
 cause of action exists, and may be able to fix the 
 amount of the bail. 
 
 The affidavit need not be entitled. (Cb^c, § 403.) 
 In addition to a statement of a sufficient cause of 
 action, the affidavit must state a case bringing it 
 wilhin one of the descriptions of actions, in which 
 the defendant may be arrested. It is not enough
 
 58 OF ARREST AND BAIL. 
 
 that it be generally stated. It must " appear to the 
 judge " that it is a case authorising the arrest. The 
 facts and circumstances mast be stated; a mere belief 
 not being sufficient, {Martin v. Vandcrlip, 3 How. Pr.. 
 Rep., 265 ; Van Valkenhurgh v. Recorder of Albany, 6 
 Hill Rep., 429,) and a supplementary affidavit is not 
 afterwards allowed. Code, § 180. 
 
 By whom to he sworn to.} — The plaintiff in the action, 
 or any other person, can swear to the affidavit; he 
 must, however, be able to swear positively, to the 
 cause of action and to the facts and circumstances 
 rendering it a proper case for the order. It must be 
 sworn to before an officer authorised to administer 
 oaths in this state — the attorney, or his partner, or 
 the counsel, if authorised to administer oaths, may 
 take the oath to the affidavit. 
 
 The order, when made.] — The order may be made 
 to accompany the summons; that is, after the sum- 
 mons is made out, and beiore it is served, the order 
 can be made and then served with the summons, 
 or it may be made at any time during the progress 
 of the suit, before judgment. Code, § 183. 
 
 If none of the causes for which a defendant may 
 be arrested exist at the time of commencing the 
 action, but afterwards, and at any time during the 
 progress of the suit, before judgment, the deliendant 
 docs an act, which before the commencement of 
 the suit would have entitled the plaintiff to an order 
 for his arrest, the plaintiff may apply upon affidavit 
 of the facts and obtain an order for the defendant's 
 arrest. 
 
 Contents of ordcrl] — The order must contain a di- 
 rection to the sheriff, forthwith to arrest the defend-
 
 OF ARREST AND BAIL. 59 
 
 ant, if in his county, and hold him to bail in a sum 
 to be specified in the order, and to return the order 
 to the plaintiti^or attorney, by whom it is subscribed 
 at a time and place to be therein stated. The time 
 and place of return is to be fixed by the judge who 
 makes the order. It must be a reasonable time, 
 after the order is given to the sheriif, to enable him, 
 with proper diligence, to arrest the defendant. The 
 name of the plaintiff, if he sues in person, or of his 
 attorney, must be subscribed to or endorsed upon 
 the order, and should state his place of residence or 
 business. Code, § 183. (For the form of the order, 
 see Appendix.) The amount of the bail is to be fixed 
 by the judge who makes the order, as hereafter 
 stated. 
 
 The undertaking.] — Before the order of arrest will 
 be made the judge will require a written under- 
 taking on the part of the plaintiff, with or without 
 sureties; as he shall determine, to the effect, that if 
 the defendant recover judgment in the action, the 
 plaintiff will pay all costs that may be awarded to 
 the defendant, and all damages which he may sus- 
 tain by reason of the arrest, not exceeding the sum 
 specified in the undertaking. Code, § 182. The 
 amount for which the undertaking is given, must 
 not be less than one hundred dollars. It may be as 
 much more as the judge who grants the order of 
 arrest may require. 
 
 If the undertaking be executed by the plaintiff 
 without sureties, his affidavit must be annexed that 
 he is a resident and householder or freeholder with- 
 in the state, and worth double the sum specified in 
 the undertaking over and above all debts and lia- 
 bilities.
 
 60 OF ARREST AND BAIL. 
 
 The amount of the bail, is fixed by the judge who 
 grants the order for the arrest, and is incorporated 
 in it. Tiie amount will depend upon the cause of 
 the action. In suits to recover fines or penalties or 
 money received or property taken, or for fraudulent- 
 ly contracting the debt, the amount of bail will 
 generally be double the sum claimed or double the 
 value of the property taken, and in actions for in- 
 juries to the person or character it will be such as 
 the judge shall fix upon, in view of the nature and 
 extent of the injury complained of (For the form 
 of the undertaking, see Appendix.) 
 
 A sound discretion is to be exercised by the judge 
 in fixing the amount of bail in actions sounding in 
 damages only. And care will be taken that the 
 amount is not excessive, or beyond the power of 
 the defendant to obtain. The aggravation of the 
 act complained of, will, however, generally govern 
 the officer; and the amount of bail will be regulated 
 by the circumstances of each case. Therefore no 
 particular rule can be laid down. 
 
 Arresting the Defendant.'] — The order having been 
 obtained from the judge, it must be annexed to the 
 original affidavit upon which it is founded. The 
 proper way is, for the judge to endorse the order 
 upon the affidavit. The order and affidavit must 
 then be given to the sheriff of the county where the 
 defendant is. The sheriff must forthwith arrest the 
 defendant, and keep him in custody until discharged 
 by law. The sheriff to whom the order of arrest is 
 delivered, is bound to exercise diligence in making 
 the arrest, and if he could have done so, and the
 
 OF ARREST AND BAIL. 61 
 
 defendant escape, the sheriff would be liable to the 
 plaintifl in an action. 
 
 It seems the plaintiff may limit the time within 
 which the order must be executed. {Code, § 192.) 
 This is done, by an endorsen ent upon the order, re- 
 quiring the sheriff to arrest the defendant and make 
 return of the execution of the order to the plaintiff 
 or his attorney, within a specified number of days, 
 and the order must be executed accordingly. (For 
 form of endorsement, see Appendix.) Code, § 181, 
 185. At the time of making the arrest, the sheriff 
 must deliver to the defendant a cnpij of the order of 
 arrest and of the affidavit. 
 
 The attorney who procures the order should fur- 
 nish the sheriff with a copy of the order and affida- 
 vit to be served on the defendant. 
 
 The defendant may be discharged from the arrest 
 and from the custody of the sheriff, in either of two 
 ways. Code, § 186. 
 
 Giving Bail.] — The bail to be given by a defend- 
 ant, is a written undertaking [see Appendix,) exe- 
 cuted by two or more sufficient bail. It must 
 state their places of residence and occupations, and 
 must be to the effect, that the defendant 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. (Code, § 187.) This undertaking will an- 
 swer in every case of an arrest of the defendant, 
 except when he is arrested in an action to recover 
 the possession of personal property unjustly de- 
 tained, where the property has been c ncealed or 
 removed so that it cannot be found or taken by the
 
 62 OF ARREST AND BAIL. 
 
 sheriff. In which case the undertaking must be 
 given to tlie sheriff. It must be executed by two 
 or more sufficient sureties, and must be to tlie ef- 
 fect that they are bound in double the value of the 
 property, as stated in the affidavit of the plaintiff, 
 for the delivery thereof to the plaintiff, if such de- 
 livery be adjudged, and for the payment to him of 
 such sum as may, for any cause, be recovered 
 against the defendant. 
 
 Qualifications of Bail.] — Each of the bail must be a 
 resident and householder, or freeholder, within this 
 state. (Code, ^ 194.) They must each be worth the 
 sum specified ia the order of arrest, exclusive of the 
 property exempt from execution, but the judge or 
 justice of the peace on justification may allow more 
 than two bail to justify severally in amounts less 
 than that expressed in the order, if the whole justi- 
 fication be equivalent to that of two sufficient bail. 
 {Code, § 195.) 
 
 The qualification and nature of the bail being 
 similar to special bail in actions before the Code, 
 the decisions of the courts upon the subject may be 
 regarded as applicable. 
 
 It has been decided that the following persons 
 are disqualified from becoming bail, viz: officers of 
 the different courts ; as attorneys, (15 John. R , 535; 
 1 IVmd. II., 35; Doiigl., 467,) attorneys partners, (1 
 D. §• R., 9,) attorneys clerks, (2 East., 182,) sheriffs 
 and their officers, (20 John. R., 129,) turnkeys and 
 jailors. (2 B. §• P., 150.) 
 
 Exception to bail.] — AVithin the time limited in the 
 order for the arrest of the defendant, (if there be an 
 endorsement upon the order limiting the time for
 
 OF ARREST AND BAIL. 63 
 
 making the arrest, or if not, then within a reason- 
 able time, after the arrest is made,) the sheriff must 
 deliver to the plaintiff or his attorney, the order of 
 arre&t and affidavit, with his return endorsed there- 
 on; either that he has arrested the defendant, and 
 has him in custody or has taken from him the writ- 
 ten undertaking required by law, or that he has not 
 found the defendant in his county. Code, § 192. 
 
 If the defendant has been arrested and given the 
 undertaking, the sheriff must, at the same time de- 
 liver to the plaintiff or his attorney a certified copy 
 of the undertaking of the bail. Ibid. 
 
 Within ten days, after receiving the order and 
 copy undertaking from the sheriff, the plaintiff, if 
 he is not satisfied with the sufficiency of the bail 
 given by the defendant, must serve upon the sheriff 
 a written notice, that he does not accept the bail. 
 Code, § 192. 
 
 If he omit to do so, he will be deemed to have 
 accepted the bail and the sheriff will be exonerated 
 from liability. Code, § 192. (For the form of the 
 notice, see Appendix.) 
 
 -Justifying bail.] — On receipt of the notice of ex- 
 ception, the sheriff or the defendant must see that 
 the bail justify. Ordinarily the defendant will at- 
 tend to having the bail justify. Nevertheless, it is 
 the duty of the sheriff to see that the defendant do 
 so. The sheriff is in the first instance liable to the 
 plaintiff, if the bail omit to justify, and hence, if he 
 would exonerate himself from liability, he must see 
 that the bail justify in a proper manner, and not 
 trust entirely to the defendant's having it done. 
 For the purpose of justifying, the sheriff or defend-
 
 64 OF ARREST AND BAIL. 
 
 ant must, within ten days after receipt of the notice 
 of exception, give to the plaintiff or his attorney, 
 notice in writing of the jastificalion of the bail, 
 before a judge of the court in which the action is 
 pending, or before a county judge or a justice of the 
 peace, specifying therein the time and place when 
 and where the bail will justify, which must not be 
 less than five nor more than ten days after the service 
 of the notice. The authority given for bail to justify 
 before a county judge or a justice of the peace is 
 general. Code, § 193. Yet it would not be proper for 
 a justice of the peace or even a county judge re- 
 siding in a county other than that where the arrest 
 was made or where the bail reside, to exercise the 
 power, except in cases of necessity or where some 
 good reason is given. And it is accordingly pro- 
 vided by Rule 89 of the Supreme Court, that the 
 justification of bail must be within the county 
 where the arrest was made or where the bail reside. 
 (For form of notice, see Appendix.) 
 
 Other Bail] — Instead of causing the bail already 
 put in, to justify, the sheriff or defendant, may 
 within the same time (i. e. ten days after notice of 
 the exception,) give a written notice to the plaintiff 
 or his attorneys, ilmt other bail, (whose places of resi- 
 dence and occupation must be stated in the notice,) 
 will in like manner justify before the judge or justice. 
 This notice must state the time and place, when 
 and where, and the name of the officer before whom 
 the new bail will justify, and it must not be less than 
 live, nor more than ten days, from the receipt of the 
 exception by the sherifl^. (For form of notice, see 
 Appendix.)
 
 OF ARREST AND BAIL. 65 
 
 In case neiu bail is put in, a new undertaking must 
 be executed, in the form and to the effect prescribed 
 by law for the first undertaking. And the new bail 
 must justify in the same manner as is required in 
 the case of the first bail. Code, § 193. 
 
 Manner of justifying.'] — At the time and place men- 
 tioned in the notice, each of the bail must attend 
 before the judge or justice of the peace mentioned 
 in the notice. The officer must administer to the 
 bail an oath that he will "true answers make to all 
 questions that may be put to him touching his prop- 
 erty and sufficiency as bail in the action." The 
 plaintiff or his attorney may then examine the bail, 
 in such a manner as the judge or justice of the 
 peace may think proper, touching his sufficiency as 
 bail. Considerable latitude should be allowed in 
 the examination of the bail, the object being to as- 
 certain their sufficiency. Thus the plaintiff should 
 be permitted to enquire into the amount and situa- 
 tion of the property of the bail, and the extent and 
 nature of his indebtedness. An 1 where the property 
 of the bail consists of personal estate, or property 
 easily convertible into personal estate, the plaintiff 
 should be allowed to examine the bail as to the per- 
 manency of his residence in this state, and whether 
 he has any intention of removing elsewhere. And 
 generally, a full and particular examination should 
 be allowed, that the officer may be satisfied of the 
 sufficiency of the bail, not only at the time of the 
 justification, but during the pendency of the action, 
 and until after judgment is obtained: the object of 
 bail being to secure \\\e person of the defendant to 
 answer such process of the court as may be issued
 
 66 OF ARREST AND BAIL. 
 
 to enforce the judgment that may be rendered in 
 the action. If the plaintiff require it, the examina- 
 tion of the bail must be reduced to writing by the 
 officer, and must be subscribed by the bail. Code, 
 § 195. 
 
 If the officer find the bail sufficient, he must an- 
 nex the examination of the bail to the undertaking, 
 and endorse upon the undertaking his allowance of 
 the sufficiency of the bail. 
 
 Filing undertaking.] — After the bail have justified, 
 as before stated, the undertaking, together with the 
 examination of the bail and the endorsement of 
 allowance, must be filed with the clerk of the county, 
 mentioned in the complaint for the trial of the ac- 
 tion. 
 
 Liability of the sheriff.'] — If the bail justify, and the 
 undertaking is filed in the manner we have stated 
 the sheriff is then exonerated from liability and the 
 plaintiff must look to the bail. But if, after being 
 arrested, the defendant escape, or be rescued, or bail 
 be not given or bail do not justify, or a deposite is 
 not made in lieu of bail, the sheriff is himself liable, 
 as bail, {^Cude, § 281) and the plaintiff after he has 
 recovered judgment in the action, and issued and 
 had returned an execution unsatisfied in whole or 
 in part, may bring an action against the sheriff, in 
 the same manner that he might have done against 
 the bail, had any been put in. 
 
 The sheriff, however, may discharge himself from 
 such liability, by the giving and justification of bail 
 in the manner that is required by the defendant in 
 the first instance. In order to do this, the sheriff 
 must cause an undertaking to be executed by two 
 or more persons, in the same form and to the same
 
 OF ARREST AND BAIL. 67 
 
 effect, as in other cases of bail, who must be resi- 
 dents and householders or freeholders, within the 
 State, and each worth the arnount specified in the 
 order of arrest, exclusive of property exempt from 
 execution. A copy of the undertaking must be 
 served upon the plaintiff's attorney, with a written 
 notice specifying the time, not less than five nor 
 more than ten days thereafter, and the place Avhen 
 and where, and the name of the officer (judge of 
 the court, county judge or justice of the peace,) be- 
 fore whom the bail will justify. Such bail must 
 attend and justify in like manner as other bail. 
 Code, § 201. 
 
 If a judgment be recovered against the sheriff, 
 upon his liability as bail, and an execution thereon 
 be returned unsatisfied in whole or in part, the same 
 proceedings may be had on his official bond, to col- 
 lect the deficiency as in other cases of delinquency. 
 Code, § 202. 
 
 In case the bail taken upon the arrest do not jus- 
 tify, they are not thereby discharged from liability 
 to the sheriff He may bring an action against such 
 bail, for all damages which he may sustain by rea- 
 son of such omission. 
 
 Liability of bail.] — ^The undertaking of the bail, 
 being that the defendant shall at all times, render 
 himself amenable to the process of the court, during 
 the pendency of the action, and to such as may be 
 issued to enforce the judgment therein, or, in actions 
 to recover the possession of personal property, for 
 the delivery thereof to the plaintiff, in case such 
 delivery be adjudged, and for the payment to him, 
 of such sum as may, from any cause, be recovered 
 against the defendant, the liability of the bail at-
 
 68 OF ARREST AND BAIL. 
 
 taches upon a failure to comply with the under- 
 taking. Thus, upon the return of an execution un- 
 satisfied, or upon failure of the sheriff to arrest the 
 defendant upon an execution against his person, or 
 upon the defendant's failing to comply with any 
 other process of the court, issued to enforce the 
 judgment, the bail become liable to the plaintiff in 
 the action. Or in an action to recover the posses- 
 sion of personal propert)'-, if a return thereof be ad- 
 judged to the plaintiff, and the property be not re- 
 turned, the bail become liable. 
 
 The bail, however, can only be proceeded against 
 by action. Code, § 190. 
 
 Surrender of hail.'] — At any time before the liability 
 of the bail attaches, i. e., before a failure to comply 
 with their undertaking, they may surrender the de- 
 fendant to the sheriff of the county where he was 
 arrested, and thereby exonerate themselves from all 
 liability. And the defendant may in like manner 
 surrender hiuiself, and thus discharge the bail from 
 liability. 
 
 Jn an action, however, to recover the possession 
 of personal property, unjustly detained, when the 
 property has been concealed or removed, so that it 
 cannot be found or taken by the sheriff, if the defen- 
 dant has been arrested and put in jail, the bail can- 
 not surrender the defendant, nor can the defendant 
 surrender himself, and thereby discharge the bail 
 from liability; the bail in such a case must stand. 
 {Cole, § 188.) 
 
 In order to procure a surrender of the defendant 
 in exoneration of the bail, a copy of the undertaking 
 must be obtained from the clerk of the county where 
 it is filed, who must certify it to be a copy, and
 
 ARREST AND BAIL. 69 
 
 Avliich must be delivered to the sherifF, who must 
 take and detain the defendant in his custody thereon, 
 in the same manner as upon an order of arrest, and 
 must by a certificate in writing acknowledge the sur- 
 render of the defendant to his custody. {Code^ 188, 
 sub. 1.) For the form of the certificate see Appendix. 
 
 A copy of the undertaking with the sheriff's cer- 
 tificate of surrender, must then be presented to a 
 judge of the court or to a county judge, who will or- 
 der a notice of at least eight days to be given to the 
 plaintiff, or his attorney, of the application to exon- 
 erate the bail. (For form of certificate see Appendix.) 
 A copy of the sheriff 's certificate of surrender must be 
 served with the notice. If the judge decide that it 
 is a proper case for the exoneration of the bail, he 
 will make an order that the bail be exonerated. (For form 
 of order, see Appendix.) 
 
 The order and the papers used upon the applica- 
 tion, must be filed with the clerk of the county, 
 where the undertaking is filed, and the bail are thus 
 exonerated and discharged from liability. 
 
 Deposite of monei/.^ — The defendant at the time of 
 his arrest, but not afterwards, instead ol giving bail, 
 may deposit with the sheriff, the amount mentioned 
 in the order. Upon this being done, the sheriff must 
 give to the defendant a certificate of the deposit and 
 discharge him from custody. {Code§ 87. Forform 
 of certificate see Appmdix.) 
 
 AVithin four days after the deposite, the sherift^ 
 must pay the money to the clerk of the county de- 
 signated in the complaint for the trial of the action, 
 and take from him two certificates of such payment, 
 one of Avhich he must forthwith delivv^r (o the 
 plaintiff in the action, and the other to the defend-
 
 70 OF ARREST AND BAIL. 
 
 ant. If the sheriff neglect to pay the money to the 
 clerk within the time required, the same proceed- 
 ings may be had upon the official bond of the sheriff 
 to collect the sum deposited, as in other cases of de- 
 linquency. Code § 198. (For form of certifijate, see 
 Appendix ) 
 
 The money thus paid to the clerk, must remain 
 in his custody until there is an order or judgment 
 for its payment to the plaintiff in the action, or un- 
 til it be ordered by a judge to be refunded to the de- 
 fendant. Upon a judgment or order being obtained 
 by the plaintiff in the action for the payment of 
 money, an order must be obtained from the court in 
 which the action was pending, which will be grant- 
 ed of course, directing the clerk, to whom the money 
 was paid, to apply the same in satisfaction of the 
 order or judgment, and the clerk will apply the 
 money accordingly. If after satisfying the judg- 
 ment, any surplus remains in the hands of the clerk, 
 he must refund the same to the defendant. If at the 
 time of the arrest, the defendant make a deposit of 
 money in lieu of bail, he may, notwithstanding, at 
 any time before judgment in the action, put in bail 
 and have the money refunded to him. The bail 
 must be given and must justify in the same manner 
 as upon the arrest. Upon this being done, the judge 
 before whom the justification of the bail is had, will 
 in the order of allowance of the sufficiency of bail, 
 direct that the money deposited be refunded by the 
 sheriff or the clerk, to the defendant, and it will be 
 refunded accordingly. Code § 199. 
 
 Vacating order of arrest.'] — If the defendant has 
 been arrested in an action, in which he is not sub- 
 ject to arrest, or if the order to hold to bail is in too
 
 OF ARREST AND BAIL. 7l 
 
 large an amount, he may, at any time before the 
 bail have actually justified, move to vacate the order 
 of arrest, or reduce or mitigate the amount of the 
 bail. This is a special motion, and may be founded 
 upon the affidavit of ihe defendant, a copy of which 
 with eight days notice of the time and place of ma- 
 king the motion, must be served upon the plaintiff' s 
 attorney, and is conducted like other special motions, 
 as to which see post. (For form of notice, see Ap- 
 pendix.) 
 
 The affidavit upon which the motion is to be 
 founded, must state the facts, entitling the defend- 
 ant to an order vacating the order of arrest, or to a 
 mitigation of the amount of the bail. The motion 
 may be made without an affidavit of the defendant, 
 if the affidavit upon which the order of arrest was 
 granted, was insufficient; in which case the plain- 
 tiff cannot supply any omissions or defects by a sup- 
 plemental affidavit. If, however, the defendant 
 moves to vacate or modify the order, upon 'dw affida- 
 vit, (the plaintiff's affidavit having made out a suffi- 
 cient case for the arrest in the first instance,) the 
 plaintiff is then entitled to resist the motion upon 
 new affidavits, either of his own, or of any other per- 
 son, who may be able to swear to the facts necessary 
 to sustain the order. But it is only in the event 
 of the defendants moving on affidavit, that the 
 plaintiff will be allowed to introduce any other than 
 the one upon which the order of arrest was ob- 
 tained. 
 
 The defendant, therefore, in moving upon affida- 
 vits to vacate or modify the order of arrest, incurs 
 the hazzard of being out sworn by the plaintiff.
 
 72 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 
 
 SECTION III. 
 Of the Claim and Delivery of Personal Property 
 
 The action of replevin, as it existed before the 
 Code, was the only remedy for the recovery of per- 
 sonal property. In other actions, the value only was 
 recovered ; the thing itself could not be obtained. 
 
 Somewhat in analogy to replevin, provision is 
 made in the Code for the recovery of the possession 
 of personal property. 
 
 At the time of issuing the summons, or at any 
 time before answer, the plaintiff in an action to re- 
 cover the possession of personal property, may claim 
 the immediate delivery of the property to him. 
 Code, § 206. 
 
 The summons and complaint must be prepared 
 in the same manner as in other actions, and must 
 state a sufficient cause of action, to entitle the plain- 
 tiff to a delivery of the property; and they must be 
 served on the defendant, either before or at the time 
 the plaintiff claims of the sheriff the delivery of the 
 property. 
 
 Affidavit to be 7nade,] — In order to claim a delivery 
 of the property to the plaintiff, an affidavit must be 
 made. The sheriff is not authorized to seize per- 
 sonal property and deliver it to the plaintiff, upon 
 the complaint alone, notwithstanding the complaint 
 is verified: an affidavit must be made. The affi- 
 davit may be made by the plaintiff, or by any one 
 in his behalf, who must, however, swear positively
 
 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 73 
 
 to the facts therein contained, and not to informa- 
 tion and belief merely. 1 Hill R., 204. 
 
 Affidavit lohat to contain.^ — The aflidavit must state, 
 that the plaintiff is the owner of the property claim- 
 ed, and must particularly describe it; or, that he is 
 lawfully entitled to the possession thereof, by virtue 
 of a special property theiein, and must particularly 
 state the facts conferring the special property in the 
 plaintiff. What constitutes the title to the property, 
 cr in other words, how the plaintiff becaojc the 
 owner, need not be stated in the affidavit. It is suffi- 
 cient, if he swear that he is the owner of the pro- 
 perty, the delivery of which is sought. It is neces- 
 sary to describe the property with sufficient particu- 
 larity to enable the sheriff to identify the same. 
 Thus, one brown horse, or one mahogany bureau, 
 and the like. When the plaintiff claims the deli- 
 very of the property, by virtue of a special property 
 therein, Xhefads constituting the special property, 
 must be stated in the affidavit. There are a variety 
 of facts which confer a special property in a chattel, 
 and which authorize a plaintiff to obtain its delive- 
 ry to him. Thus, a bailee, pledgee, or mortgagee, 
 from whose possession the chattel has been taken, 
 may claim the delivery. So, a sheriff^ who has 
 levied upon personal property, has such a special 
 property in it, that he may obtain its delivery to 
 him, in an action, against an/ person, even the de- 
 fendant in the execution. In short, any interest in 
 a chattel, which carries with it the right to its pos- 
 session, is sufficient to enable a person to claim its 
 delivery, as against a wrong doer. 
 
 2. The affidavit must state that the property is 
 wrongfully detained by the defendant. In respect
 
 74 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 
 
 to the wrongful detention of the property by the de- 
 fendant, it is sufficient to state in the affidavit that 
 "it is wrongfully detained," and it is not necessary 
 to specify in what it consists. That is to be proved 
 upon the trial. As to what constitutes a wrongful 
 detention, it will be found generally, that the person 
 who has the possession, without the right to the 
 possession, is guilty of a wrongful detention, as 
 against the person, who has the right. Thus, a bai- 
 lor of goods may be said wrongfully to detain them 
 from the bailee, who has the right to the possession; 
 so, with a pledgor or mortgai^or, as against the 
 pledgee or mortgagee. So, where a fraud is com- 
 mitted in the purchase of goods, no title passes to 
 the purchaser, and the vendor may claim the deliv- 
 ery, and allege that they are wrongfully detained. 
 23 Wend. Rep. 372, 3 Hill Rep, 348. So, if an o i cer 
 having an execution against A., levy upon goods of 
 B., in A.'s possession, it would be a wrongful taking 
 and detention. 15 Wend. Rep. 631. In short, an ac- 
 tion to recover the possession of personal property, 
 lies in all cases, where formally, trespass de bonis as- 
 portaiis, could be maintained. 1 Wend. Rep. 109. 3, 
 Hill, 576. 
 
 3. The affidavit must show the alleged cause of 
 the detention of the property, according to the best 
 knowledge, information or belief of the plaintiff. 
 It was not formerly necessary to state, in the affi- 
 davit, the alleged cause of detention. This, how- 
 ever, is now required, and the plaintiff must set 
 forth in his affidavit, the cause or pretence for the 
 detention. Thus, that the defendant claims to be 
 the owner of the property, or to have a special in-
 
 CLAIM AND DELIVERY OF PERSOX.IL PROPERTY. 75 
 
 terest therein, entitling liim to the possession as a 
 pledgee, bailee, mortgagee, or that he is an innkeep- 
 er, and claims to hold it by virtue of his lien there- 
 on and the like. The cause of the detention may 
 be stated upon the knowledge of the plaintiff, or 
 according to his best information and belief 
 
 4. The affidavit must state that the property has 
 not been taken for any tax, assessment or fine, pur- 
 suant to a statute ; or seized under an execution or 
 attachment against the property of the plaintiff; or 
 if so seized, that it is, by statute exempt from such 
 seizure. An action for the delivery of personal pro- 
 perty cannot be maintained, by the defendant in an 
 execution except to recover exempt property, even 
 though the execution was improperly issued. So, 
 if a warrant for the collection of a tax, assessment 
 or fine, is levied upon personal property, the action 
 cannot be maintained by the person against whom 
 the tax, assessment or fine is levied, even though 
 the warrant was irregular. 7, Wend. Rep. 478. And 
 it must appear, affirmatively, in the affidavit, that the 
 property has not been levied upon under an execu- 
 tion, or seized under an attachment, except the 
 property be exempt from levy and sale or seizure, 
 and that it has not been levied upon under a war- 
 rant for the collection of a tax, assessment or fine, 
 pursuant to statute. 
 
 5. The affidavit mu.^t also state the actual value 
 of the property. 
 
 It is necessary that the actual value of the pro- 
 perty should be stated in the affidavit. The object 
 of this ib to determine the amount of the security 
 which the plaintiff must give before he can obtain
 
 76 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 
 
 a delivery of the property. The amount thus sta- 
 ted in the affidavit may control the amount of the 
 recovery, for should the defendant require a return 
 of tiie property to him, {as post p.) the value of the 
 property as sworn to by the plaintiff, would gene- 
 rally be the amount he would be entitled to recov- 
 er, in case he recovered at all. 
 
 If the affidavit be defective, the court will allow 
 it to be amended. 1 Hill R., 204. 
 
 The notice.] — The affidavit being prepared, the 
 plaintiff's attorney must endorse upon it, a notice 
 requiring the sheriff of the county, where the pro- 
 perty is, to take the same from the defendant and 
 deliver it to the plaintiff. (For form of notice, see 
 Appendix.) Code, § 208. 
 
 The undertaking.] — Upon delivering the affidavit 
 and notice to the sherilT, a written undertaking 
 must be drawn up and executed by one or more 
 sufficient sureties, and approved of by the sheriff, 
 and delivered to him. The approval of the sheriff 
 must be endorsed upon the undertaking and sub- 
 scribed by the sheriff. Burns v. Robins, 1 Code Rep'r, 
 62. It need not be executed by the plaintiff. It 
 must be to the effect that the sureties are bound, in 
 double the value of the property, as stated in the 
 affidavit, for the prosecution of the action, for the re- 
 turn of the property to the defendant, if return thereof 
 be adJLigded, and for the payment to him of such 
 sum as may, for any cause, be recovered against 
 the plaintiff". Code, § 209. 
 
 The undertaking, after the justification of the 
 sureties, must be delivered to the defendant. Code, 
 § 423. (For form of undertaking, see Appendix.)
 
 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 77 
 
 Taking the property.'] — The affidavit, notice and 
 undertaking is tlien delivered to the sheriff, with a 
 copy of each to be served on the defendant. The 
 sheriff must fortliwith take the property describ- 
 ed in the affidavit, if it be in the possession of the 
 defendant or his agent, and retain it in his custody. 
 If the property be concealed in a building or en- 
 closure, the sheriff may publicly demand its delivery. 
 If it be not delivered, he may cause the building or 
 enclosure to be broken open, and take the property 
 into his possession; and if necessary, he may call 
 to his aid the power of his county. The sheriff, 
 having taken the property, must, without delay, 
 serve on the defendant a copy of the affidavit, no- 
 tice and undertaking, by delivering the same to him 
 personally, if he can be found, or to his agen', from 
 whose possession the property was taken; if neither 
 the defendant or the agent can be found, tiien by 
 leaving them at the usual place of abode of either, 
 with some person of suitable age and discretion. 
 {Code, § 209.) When the sheriff has taken the pro- 
 perty into his custody, he must keep it in a secure 
 place, and deliver it to the party entitled thereto. 
 His fees and the necessary expenses for keeping the 
 property, must, however, first be paid, by such party. 
 Code, §215. 
 
 Defendant requinng return of property.] — If the de- 
 fendant desire to retain the possession of the pro- 
 perty, he may at any time before it is delivered by 
 the sheriff to the plaintift^, provided he has not ex- 
 cepted to the sureties of the plaintiff, require it to be 
 returned to him, for which purpose he must give 
 the sheriff a written undertaking, executed by two or
 
 78 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 
 
 more sureties, to the effect that they are bound in 
 double the value of the property, as stated in the 
 affidavit of the plaintiff, for the delivery thereof to 
 the plaintiff, if such delivery be adjudged, and for 
 the payment to him of such sura as may, for any 
 cause, be recovered against the defendant. Imme- 
 diately upon executing and delivering the under- 
 taking to the sheriff, the defendant must give a writ- 
 ten notice to the plaintiff's attorney, of not less than 
 two nor more than six days, that the sureties, in the 
 undertaking, will justify before a judge or justice 
 of the peace. 
 
 The qualifications of the sureties and their justifi- 
 cation, is the same as that of bail given upon the 
 arrest of a defendant. (See ante p. 63-65.) Upon the 
 justification of the sureties, the sheriff must deliver the 
 property to the defendant. The undertaking of the 
 defendant, where the sureties have justified, must 
 be delivered by the sheriff to the plaintiff in action. 
 Code, § 423. 
 
 The sheriff is responsible for the defendant's sure- 
 ties until they justify, or until justification is com- 
 pleted, or is expressly waived, by the plaintiff; and 
 he may retain the property in his hands, as a secu- 
 rity, until the sureties justify ; and if such sureties, 
 or others in their stead, do not justify at the time 
 and place mentioned in the notice, the sheriff must 
 deliver the property to the plaintiff. 
 
 Delivery of the property to the plaintiff.'] — If the de- 
 fendant do not give the undertakinij^ and notice of 
 justification, within three days after the sheriff has 
 taken the property into his custody, and served upon 
 the defendant notice thereof, the sheriff must deliver
 
 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 79 
 
 it to the plaintiff, unless the property is claimed by- 
 some person other than the defendant or his agent. 
 
 See post. 
 
 Justifying sureties] — If the defendant does not de- 
 sire to retain the possession of the property taken, 
 he may within three days after service upon him of 
 a copy of the affidavit, notice and undertaking, give 
 a written notice to the sheriff that he excepts to the 
 sufficiency of the sureties. If he fail to do so, he 
 waives all objection to them. By excepting to the 
 sufficiency of the sureties, the defendant waives the 
 right to demand a return of the property to himself. 
 The defendant having given notice of his excep- 
 tion to the sureties, they must justify upon like no- 
 tice, in the same manner, and before the same offi- 
 cers, as in cases of bail on the arrest, (as to Avhich 
 see ante p. 63.) 
 
 The sheriff is responsible for the sufficiency of the 
 sureties, until the objection to them is either waived, 
 by the defendant's failing to except within the three 
 days, or until they justify, or new sureties are sub- 
 stituted and justify; when the sheriff 's responsibility 
 ceases. Code, § 212. 
 
 Claiming property j — Any person except the defen- 
 dant or his agent, may claim the property of the 
 sheriff. For which purpose he must make an affi- 
 davit, setting out his title thereto, and his right to 
 the possession thereof. The affidavit must state par- 
 ticularly the grounds of such right and title. The 
 original affidavit must be served upon the sheriff. 
 Code § 216. 
 
 Upon receiving such affidavit, the sheriff must 
 give notii'c of the claim to the plaintiff or his attor-
 
 80 CLAIM AND DELIVERY OF PERSONAL PROPERTY. 
 
 ney, who must then indemnify the sheriff against 
 such claim. (For form of notice, see Appendix) 
 
 The indemriit3^to be given to the sheriff, is an un- 
 dertaking executed by two sufficient sureties, which 
 nmst be accompanied by their affidavit, that tliey are 
 each worth double the value of the property, as sta- 
 ted in the affidavit of the plaintiff, and are freehold- 
 ers and householders of the county. (For form of 
 indemnity see Appendix.) 
 
 If the plaintiff gives the sheriff a bond of indem- 
 nity, the sheriff is bound to deliver the property to 
 the plaintiff, notwithstanding such claiin. It can- 
 not in such a case be delivered to the claimant. The 
 sheriff has the right to retain the property in his pos- 
 session a reasonable time, to demand the indemni- 
 ty of the plaintiff. 
 
 Return of sheriff.] — After the sheriff has delivered 
 the property, he mu^t make his return of his proceed- 
 ings and within twenty days after taking the proper- 
 ty, file the same with the affidavit and notice, with 
 the clerk of the county in which the action is pend- 
 ing. Code, § 217. 
 
 If the sheriff fails to make his return within the 
 time required, the party entitled to have the return 
 made, may serve on the sheriff a notice to make 
 such return, within ten days thereafter, or show 
 cause at a special term of the court to be designated 
 in the notice, why an attachment should not issue 
 against him. Rule 6. Upon the sheriff's failing to 
 show cause, an order may be issued that an attach- 
 ment issue against him, and it maybe issued accor- 
 dingly. The attachment must be directed to, and 
 is executed by the coroner of the county.
 
 OF THE INJUNCTION. 81 
 
 SECTION IV. 
 
 Of the Injunction. 
 
 The Court of Chancery, as constituted under the 
 former Constitution, was empowered to employ its 
 process in restraining the defendant from the com- 
 mission or continuance of an act prejudicial to the 
 rights of the co;rplainant. This process was called 
 an injunction, and was a writ or process of the Court. 
 
 The Code has abolished the writ of injunction, and 
 an injunction by order is substituted therefor. 
 
 Cases in which allowed.] — The cases in which an in- 
 junction by order is allowed, are those in which some 
 right or interest of the plaintiif may be impaired or 
 injured, or destroyed by the act or proceedings on 
 the part of the defendant during the litigation. Thus 
 in an action to restrain a nuisance, the court will 
 grant the injunction, if it appear that the continu- 
 ance of the nuisance would endanger health, or be 
 productive of immediate injury or irreparable mis- 
 chief So in an action between partners, for the 
 dissolution and settlement of the partnership con- 
 cerns, if it appear that the defendant is fraudulently 
 disposing of the partnership property, he will be re- 
 strained. And generally, where the commission or 
 continuance of an act will produce an injury to the 
 plaintiff; or where during the litigation, the defend- 
 ant does or threatens, or is about to do, or suffers, 
 or procures some act to be done, in violation of the 
 plaintiff's rights, respecting the subject of the action 
 
 and tending to render the judgment ineffectual; the 
 
 6
 
 82 OF THE INJUNCTION. 
 
 court in such cases, will grant to the plaintiff an or- 
 der to restrain such acts. There is another class of 
 cases, where an injunction is authorised, which did 
 not allow of it before the Code. It is now provided 
 {Code ' 219,) that where during the pendency of the 
 action, it shall appear that the defendant threatens 
 or is about to remove, or dispose of his property with 
 intent to defraud his creditors, a temporary injunc- 
 tion may be granted to restrain such removal or dis- 
 position, 
 
 This is a substitute for the former proceeding by 
 attachment under the act to "abolish imprisonment 
 for debt," where in similar cases, a warrant might 
 be issued for the arrest of the defendant. 
 
 Injunction when applied for.'\ — The application for 
 an injunction may be made at the commencement 
 of the action, or at any time afterwards, before 
 judgment is actually rendered. In cases where the 
 injunction is proper, it is advisable to apply for it at 
 the time the summons is issued, when no notice of 
 the application need be given to the defendant, un- 
 less the court or judge to whom the application is 
 made, deem it proper, that the defendant, or any of 
 the defendants, should be heard, before granting it. 
 If the injunction is not applied for until after the 
 defendant has answered the complaint, the plaintiff 
 must give notice to the defendant of the time and 
 place of the application, and the name of the court 
 or officer to whom it will be made. This notice is 
 like other notices for a special motion, and must be 
 accompanied by copies of the affidavits and papers 
 upon which it is founded. 
 
 In case the court or judge deem it proper that the
 
 OF THE INJUNCTION. 83 
 
 defendant should be heard upon the application, he 
 will make an order, requiring the defendant to show 
 cause, at a specified time and place, why the injunc- 
 tion should not be granted. A copy of this order 
 must be served on the defendant, with a copy of 
 the affidavit upon which the injunction is applied 
 for. Until the time for shewing cause, and until the 
 decision upon the application, the judge will grant 
 an injunction, to restrain the defendant from the 
 commission or continuance of the acts complained 
 of. Code, § 223. And where the injuntion is applied 
 for after answer, when, as has been stated, a notice 
 of the motion is necessary, the judge will allow a 
 temporary injunction to restrain the defendant un- 
 til the motion is decided. Code, § 221. The tempo- 
 rary injunction is granted upon the application of 
 the plaintiff, without notice to the defendant. 
 
 Who may grant the injunction.]^ — The order may be 
 made by the court in which the action is pending, 
 or by a judge of such court, or by a county judge. 
 Code, § 218. If made by a judge of the court, or by 
 a county judge, it becomes the order of the court, 
 and may be enforced as such. 
 
 Upon what injunction granted.] — Where the object of 
 the injunction is to restrain the defendant from the 
 commission or continuance of some act, the com- 
 mission or continuance of which, during the litiga- 
 tion, would produce injury to the plaintiff, and these 
 facts appear by the complaint, the order may be 
 granted upon the complaint alone, without an affi- 
 davit ; in which case it would seem, that the com- 
 plaint should contain a prayer for the injunction. 
 Hovey v. McCrea, 4 How. Pr. Rep., 31. Thus, where 
 the action is for the foreclosure of a mortgage, and
 
 84 OF THE INJUNCTION. 
 
 the complaint states that the defendant is commit- 
 ting waste upon the mortgaged premises, and thus 
 rendering the security inadequate, the judge or the 
 court will grant a temporary injunction upon the 
 complaint alone to restrain such act. So, where the 
 action is by one partner against his copartner, to 
 obtain a dissolution of the copartnership and a set- 
 tlement of the copartnership business, and the com- 
 plaint alleges, that the defendant is fraudulently 
 disposing of the copartnership property, an injunc- 
 tion will be allowed, enjoining the defendant from 
 disposing of the property. If the injunction is ap- 
 plied for on the complaint alone, the complaint 
 must be verified. When the act complained of 
 occurs after the suit is commenced, the complaint 
 may be amended, and an affidavit of the fac's may 
 be made upon which the injunction will be granted. 
 
 Where, during the pendency of the action, the 
 defendant does or threatens, or is about to do, or 
 procures, or suffers some act to be done in violation 
 of the plaintiff's rights respecting the subject of the 
 action, and tending to render the judgment ineffect- 
 ual, the injunction can only be allowed upon an 
 affidavit, setting forth the facts. So, where, during 
 the pendency of the action, the defendant threatens, 
 or is about to remove or dispose of his property, with 
 intent to defraud his creditors, the facts must be 
 made to appear to the court or judge by aflidavit. 
 
 The affidavit.'] — Where the application for the in- 
 junction is made during the pendency of the action, 
 an affidavit, as has been stated, is necessary. It 
 must appear to the court or officer to whom the ap- 
 plication for an injunction is made, that the plaintiff 
 is entitled to the relief demanded For this purpose,
 
 OF THE INJUNCTION. 85 
 
 an affidavit must be drawn, stating^ the facts con- 
 stituting the grounds cf complaint from which the 
 court or officer is to decide upon the propriety or 
 necessity of restraining the defendant. This affida- 
 vit may bo made by the plaintiff or by any person 
 on his behalf The court or judge must be satisfied 
 that sufficient grounds exist for granting the order, 
 and therefore the fads constituting the complaint 
 siiould be sworn to positively and not upon inform- 
 ation and belief merely. Thus, where the ground 
 of the application is that the defendant threatens, 
 or is about to remove or dispose of his property with 
 intent to defraud his creditors, the facts and circum- 
 stances upon which the belief of such intent exists, 
 must be stated in the affidavit. Comfort v. Gillespie, 
 13 Wend. E., 404. The affidavit need not be enti- 
 tled. A copy must in all cases be served on the 
 defendant with the injunction. Code, § 220. 
 
 The complaint in the action, may be used upon 
 the application, in addition to the affidavit. 
 
 A supplementary affidavit will not afterwards be 
 allowed, to oppose a motion by the defendant to 
 vacate or modify the injunction, unless the defend- 
 ant moves upon affidavits. See post. 
 
 The security.] — Where no provision is made by 
 statute, as to the security to be given, upon allow- 
 ing an injunction, the court or judge v.ho makes 
 the order shall require a written undertaking on the 
 part of the plaintiff, which may be with or without 
 sureties, in the discretion of the court or officer, and 
 must be to the effect that the plaintiff will pay to 
 the defendant, or to the party enjoined, such dama- 
 ges, not exceeding the amount fixed by the court 
 or judge, as he may sustain by reason of the injunc-
 
 86 OF THE INJUNCTION. 
 
 tion, if the court shall finally decide that the plain- 
 tiff was not entitled thereto. (For form of under- 
 taking, see Appendix,) 
 
 In order to fix the amount of the undertaking, 
 the court or judge may direct a reference to ascer- 
 tain the damages, or may examine witnesses or 
 arrive at the amount in any other way that he may 
 direct. 
 
 If the undertaking is made by the plaintiff with- 
 out sureties he should justify, by an affidavit endor- 
 sed upon the undertaking, that he is a householder 
 or freeholder in this state, and is worth the 
 amount mentioned in the undertaking over and 
 above all debts and liabilities, and if sureties are 
 given, they should in like manner justify. See 
 Rules Sup, Ct. 76. Carroll v. Sand, 10 Paige 298. 
 
 The execution of the undertaking by the plain- 
 tiff and the sureties should be acknowledged or proved 
 in the same manner as is required by statute, to 
 have conveyances of real estate acknowledged or 
 proved to entitle them to be recorded. Beech v. 
 Southworth, et al. 1 Code Rep. 99, Rule 76. 
 
 Filing the undertaking.] The undertaking to be 
 executed upon granting an injunction, must be filed 
 by the court or judge who makes the order, with 
 the clerk of the county, designated in the com- 
 plaint as the place of trial. Code, § 423. 
 
 Injunction against corporations.] An application for 
 an injunction to suspend the general and ordinary 
 business of a corpor ition can only be made to the 
 court or a judge of the court A county judge has 
 not power to make the order. 
 
 Notice of the application, must be given, of at 
 least eight days, to the proper officers of the corpo- 
 
 \
 
 OF THE iNJUxNCTION. 87 
 
 ration, of the time and place of the motion, and 
 the name of the court or judge, before whom the 
 motion will be made. A copy of the affidavit upon 
 which the motion is founded, must be served with 
 the notice. No notice of the application, however, is 
 necessary, if the people of this state are the party 
 who make the application, nor when the action or 
 proceeding is instituted to enforce the liability of 
 stockholders in corporations ahd associations for 
 banking purposes, after the first day of January, one 
 thousand eight hundred and fifty, as such proceed- 
 ings are or shall be provided by law. Nor is any 
 notice necessary, if the plaintiff, at the time he ap- 
 plies for the injunction, gives security ; which he 
 may do and take the order without apprizing the 
 defendants. 
 
 The security to be given in such cases, is a writ- 
 ten undertaking, executed by two sufficient sureties, 
 to be approved of by the court or judge, to the effect 
 that the plaintiff will pay all damages, not exceed- 
 ing the sum to be mentioned in the undertaking, 
 which such corporation may sustain, by reason of 
 the injunction, if the court shall finally decide that 
 the plaintiff was not entitled thereto. (For form of 
 undertaking, see Appendix.) 
 
 The manner of fixing the amount of the under- 
 taking may be by a reference, or in such way as the 
 court or judge may direct. 
 
 The approval of the judge must be endorsed upon 
 the undertaking. The sureties must justify in the 
 same manner as in cases of injunction against in- 
 dividuals, (see ante p. 86) and must in like manner be 
 proved and acknowledged and filed in the office of 
 the clerk of the county where the trial is to be had.
 
 88 OF THE INJUNCTION. 
 
 Application to vacate or modify order.'] If the in- 
 junction has been granted by a judge, without no- 
 tice to the defendant, he may, at any time before 
 the trial of the action, move to vacate or modify it. 
 
 This motion must be made to the court, in which 
 the action is pending, at a special term, and it can- 
 not be made to a judge at chambers, nor to a county 
 judge, notwithstanding the order may have been 
 granted out of court, by a judge of the court, or a 
 county judge. A notice of eight days must be given 
 to the plaintiff. (For form of notice, see Appe?idix.) 
 
 If the complaint or affidavit upon which the in- 
 junction was allowed, is defective, in substance; 
 that is, does not state a sufficient cause of action, 
 or make out a case entitling the plaintiff to an order 
 restraining the defendant, the defendant may move 
 upon the complaint, or upon the complaint and affi- 
 davit only, to vacate or modify the injunction. This 
 is always the proper course when it can be success- 
 fully done, for if the defendant moves upon his an- 
 swer, or upon affidavits, the plaintiff has the right, 
 in addition to the complaint and affidavit on which 
 the injunction was granted, to oppose the motion, 
 by other affidavits and proofs, to make out a case 
 entitling him to the continuance of the injunction. 
 
 The affidavit or answer ( f the defendant, upon 
 which he moves to vacate or modify the injunction, 
 must positively deny the equity of the complaint, 
 and of the facts alleged as constituting the right to 
 the continuance of the order. A denial upon infor- 
 mation and belief merely is not sufficient. 
 
 It is not a matter of course, to vacate the order 
 upon a denial by the defendant. The granting or 
 continuance of an injunction rests in the sound dis-
 
 OF THE ATTACHMENT. 89 
 
 cretion of the court. It will be governed by the na- 
 ture of the case, and the facts disclosed, and from 
 them determine the motion. The court may, how- 
 ever, modify the injunction in any respect. Code, 
 § 225. 
 
 SECT] ON V. 
 Of the Attachment. 
 
 Among the pr visional remedies provided by law 
 for the collection of debts, or the enforcement of 
 private rights, none are more important, summary 
 and useful, than " attachments against foreign cor- 
 porations, and absconding, concealed and non-resi- 
 dent debtors." And although the several statutes 
 un !er which this proceeding is authorized are ex- 
 plicit as to the manner of suin out the attachment, 
 a more particular detail of the practice under them, 
 may be useful. 
 
 The provisions of the Revised Statutes, concern- 
 ing attachments against absconding, concealed and 
 non-resident debtors," (2 Rev. Stat., p. 3,) as we have 
 before seen, {ante p. 1,) are not abrogated by the 
 Code of Procedure. All the remedies provided by 
 that article of the Revised Statutes, may be pursued 
 in appropriate cases. In addition, it is provided by 
 Section 227 of the Code, that the property of a corpo- 
 ration created by or under, the laws of another state 
 or government, or country, or of a defendant who is 
 n; t a resident of this state, or who has absconded 
 or concealed himself, may be attached, as a security 
 for the satisfaction of such judgme.it as the plaintiff 
 may recover. 
 
 Attachment when applied for .'] — In order to lay the
 
 90 OF THE ATTACHMENT. 
 
 foundation for the attachment, a summons and com- 
 plaint must be prepared as in other actions for the 
 recovery of money. The complaint must contain a 
 statement of a cause of action for the recovery of 
 money onlij, as attachments are allowed for no other 
 causes of action The attachment may be obtain- 
 ed at the time of issuing the summons or at any 
 time afterwards, when the cases arise, which au- 
 thorise the issuing of the warrant. If, therefore, 
 during the pendency of the suit, the defendant ab- 
 sconds with intent to defeat the satisfaction of the 
 judgm.ent, or does any act for which an attachment 
 against his property might in the first instance have 
 been issued, the plaintiff may obtain the warrant in 
 the same manner as at the time of issuing the sum- 
 mons. Code § 227. 
 
 Who may grant the attachment^ — The warrant of at- 
 tachment can only be issued by the authority of a 
 judge of the court in which the action is pending, 
 or of a county judge. Code § 228. 
 
 The application, therefore, must be made to one 
 of these officers for an order allowing the warrant 
 to issue, otherwise it would be irregular, and the offi- 
 cers and all concerned in executing it, would be 
 trespassers. 
 
 The affidavit.]— k warrant of attachment cannot 
 be allowed upon the complaint alone ; it is not usual, 
 nor would it be proper to state in the complaint the 
 grounds upon which the attachment is applied for. 
 An affidavit, therefore must be prepared. It need not 
 be made by the plaintiff, but may be made by any 
 person who can swear positively to the facts neces- 
 sary to be stated in the affidavit. A statement ol 
 facts upon information and belief merely, is not
 
 OF THE ATTACHMENT. 91 
 
 sufficient, and the facts and circumstances must be de- 
 tailed in the affidavit, that the officer may judge 
 whether it is a proper case for the allowance of the 
 warrant. Ex parte Robinso?i, 21 Wend. Rep. 072. The 
 affidavit must state that a cause of action exists 
 against the defendant, and the nature thereof, and 
 it would seem, that it must be an action arising on 
 contract, express or implied, It must also state the 
 amount of the claim, and that the defendant is either 
 a foreign corporation, or not a resident of this state, 
 or has departed therefrom with intent to defraud his 
 creditors or to avoid the service of a summons, or 
 keep? himself concealed in this state, with a like 
 intent of avoiding the service of a summons. The 
 affidavit need not be entitled. 
 
 The security.'] — Before issuing the warrant of at- 
 tachment, the judge, to whom the application is 
 made, must require a written undertaking, on the 
 part of the plaintiff, with sufficient surety, to the ef- 
 fect that if the defendant recover judgment, the 
 plaintiff will pay all costs that may be awarded to 
 the defendant, and all damages which he may sus- 
 tain, by reason of the attachment, not exceedinffthe 
 sum specified in the undertaking, which must be at 
 least two hundred and fifty dollars, and as much 
 more as the judge may require. 
 
 The judge must fix the amount of the security, 
 which he may do by a reference, or in any other 
 way, ascertain the value of the property intended to 
 be attached. The undertaking should be in at least 
 double the value of the property, and must, in all 
 cases, be in the sum of not less than two hundred 
 and fifty dollars. The undertaking must be acknow- 
 ledged in the same manner as undertakings required
 
 92 OF THE ATTACHMENT. 
 
 upon the order to restrain the defendant, and must 
 be approved by the judge. The sureties should jus- 
 tify as in other cases, by an endorsement of an affi- 
 davit upon the undertaking", that they are house- 
 holders or freeholders of this State, and worth dou- 
 ble the amount mentioned in the undertaking, over 
 and above all debts and liabilities. 
 
 The undertaking, after the attachment is exe- 
 cuted, must be filed with the clerk of the county, 
 designated in the complaint for the trial of the ac- 
 tion. (For form of undertaking, see Appendix.) 
 
 Attachment, how and by whom executed. — The sheriff 
 of the county in which the property to be attached 
 may be, is the only olhcer who can execute the at- 
 tachment, and it must be directed to him by his 
 name and official title. (See form, Appendix.) Se- 
 veral warrants may be issued at the same time to 
 the sheriff of different counties, to attach the pro- 
 perty of the defendant in those counties. The war- 
 rant requires the sheriff to attach and safely keep 
 all the proper y of the defendant within his county. 
 
 Upon receiving the warrant of attachment, the 
 sheriff must proceed to attach all the real and per- 
 sonal estate of the defendant in his county. He 
 must take into his custody all money and bank 
 notes, all books of account, vouchers and papers re- 
 lating to the property, debts, credits, and effects of 
 the defendant, and all evidences of title to his real 
 estate. 1 R. S. 766, § 7. 
 
 The sheriff is required, upon seizing the property, 
 with the assistance of two appraisers, to make an 
 inventory of the property, stating the estimated value 
 of the several articles of personal property, and
 
 OF THE ATTACHMENT. 93 
 
 stating such of them as are perishable. The inven- 
 tory must he signed by the sheriff and appraisers, 
 and returned within ten days after the seizure of 
 the property, to the judge who allowed the attach- 
 ment. 
 
 Perishable property.] — If any goods seized under an 
 attachment, except vessels, be perishable, the sheriff 
 is required to sell them under an order of the judge 
 who allowed the attachment, and retain the pro- 
 ceeds after deducting the expenses of the sale, to be 
 certified by such judge. Code, § 233. 
 
 Property claimed by another., — If any of the goods 
 seized under the attachment, as the property of the 
 delendant, are claimed by any other person as his 
 property, the sheriff is required to summon a jury 
 to try such claim, as in case of a levy under an ex- 
 ecution. 1. R. S. 767, § 10. 
 
 If the jury find the goods to be the property of 
 the claimant, the sheriff must forthwith deliver them 
 to the claimant, unless the plaintiff shall by an un- 
 dertaking, with sufficient sureties, indemnify the 
 sheriff for the detention of such goods; in which 
 case the sheriff is required to detain the goods. (For 
 form of undertaking, see Appendix.) 
 
 Suits by sheriff.] — The sheriff may, by the order of 
 the judge or the court, institute legal proceedings in 
 his own name, or in the name of the defendant, as 
 may be necessary, for the purpose of collecting and 
 receiving into his possession all debts, credits and 
 effects of the defendant, and may discontinue the 
 same at such times and on such terms as the court 
 or judge may direct. Such suits may also be prose- 
 cuted by the defendant, upon giving to the sheriff 
 an undertaking with two sufficient sureties, to in-
 
 94 OF THE ATTACHMENT. 
 
 demnify the sheriff. Such sureties must, when re- 
 quired by the sheriff, justify by making an affidavit 
 that they are each householders and worth double 
 the penalty of the bond, over and above all de- 
 mands and liabilities. Code, § 238. 
 
 Satisfijirig judgment.] — Upon a recovery of a judg- 
 ment by the plaintiff, the sheriff is required to satis- 
 fy the same out of the property attached, if sufficient 
 for that purpose. 
 
 1. By paying over to the plaintiff the proceeds of all sales of perish- 
 able property, and of any vessel, or share or interest in any 
 \essel, sold by him, or of any debts or credits collected by him, 
 or so much as shall be necessary for ihat purpose. 
 
 2. If any balance remain due, and an execution shall have been 
 issued on such judgment, he shall proceed to sell under such 
 execution so much of the attached property, real or personal, 
 (except notes and other evidences of debts, and bonds, as men- 
 tioned in the fourth subdivision, post,) as may be necessary to 
 satisfy the balance, if enough for that purpose shall remain in 
 his hands; and in case of the sale of any rights or shares in the 
 stock of a corporation or association, the sheriff shall execute 
 to the purchaser a certificate of sale thereof, and the purchaser 
 shall thereupon have all the riglits and privileges, in respect 
 thereto, which were had by such defendant. 
 
 3. If any of the attached property belonging to the defendant, shall 
 have passed out of the hands of the sheriff witliout having been 
 sold or converted into money, such sheriff shall repossess him- 
 self of the same, and for that purpose, shall have all the authori- 
 ty which he had to seize the same under the attachment; and 
 any person nho shall wilfully conceal or withhold such property 
 from the sheriff, shall be liable to double damages, at the suit of 
 the party injured. 
 
 4. Until the judgment against the defendant shall be paid, the 
 sheriff may proceed to collect the notes, and other evidences of 
 debt, and the debts that may have been seized or attaciied under 
 the warrant of attachment, and to prosecute any bond he may 
 have taken in the course of such proceedings, and apply the pro- 
 ceeds thereof to the payment of the judgment. 
 
 When the judgment, and all costs of the proceedings shall have 
 been paid, the sheriff, upon reasonable demand, shall deliver 
 over to liie defendant the residue of the attached property, or the 
 proceeds thereof.
 
 OF THE ATTACHMENT. 95 
 
 Judgment for defendant.] — ^If the defendant recover 
 judgrricnt against the plaintiff, .n the action, any 
 bond or undertaking, taken by the sheriff, except 
 such as are given by a pUiintiff to authorize the 
 brino^ing- of suits in the stead of the sheriff, an I all 
 proce^^ds of sal'^s and mo: eys, collected by him, and 
 all the property attached, remaining in his hands 
 sha'l be delivered by him to the defen 'ant or his 
 agent on request, and the warr nt discharged, and 
 the property releas :d therefrom. 
 
 Motion to discharge attachment.] — The defendant 
 after he has appeared in the action, that is, after he 
 shall have given notice of appear.u:ce or answered 
 the complaint, may apply for an order to discharge 
 the attachment. 
 
 The applicati n may be n]ade to the conrt in 
 which the action is pending, or to the judge who 
 issned the altichment; it cannot I'e ira'e to 
 another judge nor to a county judge, a;:d must be 
 upon notice of at lerst eight days to the plaintiff. 
 
 Upon making the application, the defendant must 
 deliver to the court or judge, a written undertaking, 
 executed by at least two sureties, who must be 
 residents and freeholders in this slate, and who must 
 be app- oved of by the court or judge, to the effect 
 that the sureties will on demand pay to the plaintiff 
 the amount of the judgment that may be recovered 
 against the defendant, in the action, not exi'eeding 
 the sum specified in the undertaking, which must 
 be at least double the amount claimed by the plain- 
 tiff in his complaint. (For form of undertaking, see 
 Appendix.) 
 
 Filing luarrant.] — When the attachment is fully
 
 96 OF THE SUMMONS. 
 
 executed or discharged, the sherifl^must make return 
 of his proceedings under it, and file the same with 
 the clerk of the county in which the action is 
 pending. 
 
 If the sheriff fails to make his return as required, 
 the party entitled to have such return made, may 
 serve on the sheriff a notice to make and file his 
 return, within ten days thereafter, or show cause at 
 a special term of the court, to be designated in the 
 notice, why an attachment should not be issued 
 . against him. And upon his failing to show cause 
 or file his return, the court may order an attachment 
 to be issued against him, and an attachment will 
 be issued accordingly. 
 
 SECTION VI. 
 
 Of the Summons. 
 
 The summons which is required to be served, as 
 the commencement of the action, is not unlike, in 
 its purport and effect, a notice to plead, which un- 
 der the former practice, was endorsed upon the de- 
 claration. It is intended to apprise the defendant 
 of the action, and notify him, that if he designs to 
 defend the suit, he must serve his answer in a par- 
 ticular way, and within a given time, or judgment 
 will be entered against him. 
 
 What the summons must contain.] — The summons 
 should le directed to the defendant and subscribed 
 by the plamtiff, if he designs to prosecute the action 
 in person, otherwise it should be subscribed by his 
 attorney. It must contain a notice requiring the de- 
 fendant to answer the complaint and serve a copy
 
 OF THE SUMMONS. 97 
 
 of his answer, upon the plaintiff or his attorney, 
 whose name is subscribed to the summons, at some 
 place within this state to be specified in tiie sum- 
 mons, usually the office of the attorney, mentioning^ 
 the number of the street, and city or village, where 
 the attorney resides, and where there is a post office, 
 within twenty days after the service of the summons 
 exclusive of the day of service. If the action be one 
 arising on contract for the payment of money only, 
 a notice must also be inserted in the summons, that 
 if the defendant fail to answer the complaint, the 
 plaintiff will take judgment for a snm specified there- 
 in, which must be the amount claimed by the plain- 
 tiff to be due upon the contract. 
 
 And in all other actions it mast contain a notice 
 that if the defendant fail to answer the complaint, 
 the plaintiff will apply to the court, for the relief de- 
 manded in the complaint. It is not necessary to 
 name any time or place in the summons at which 
 the application for relief will be made, but general- 
 ly, that the plaintiff will apply to the court. 
 
 The application in such cases, for the relief de- 
 manded, can be made on any motion day, at any 
 special term held in the district embracing the coun- 
 ty in which the action is triable, or in a county ad- 
 joining that in which it is triable ; it may also be 
 made at any circuit court in the county where the 
 action is triable. It cannot, however, be made at a 
 circuit court in any other county. Ruledl. 
 
 If the action be to recover the price of goods sold 
 and delivered, or work done, the summons should 
 state that if the defendant fail to answer, the plain- 
 tiff will take judgment for the amount claimed, and 
 
 7
 
 98 OF THE SUMMONS. 
 
 it is improper to slate that the plaintiff will apply to 
 the court for the relief demanded. Dibblee v. Ma 
 son I, Code Rep. 37. 
 
 Thus, inactions for the recovery of money arising 
 on contract, express or implied, when the amount 
 claimed is easy of liquidation, and no discretion is 
 to be exercised in arriving at the amount, the sum- 
 mons should be in this form. 
 
 But in actions where the damages to be recovered 
 are uncertain and are to be assessed by a jury or re- 
 ferees, or where the relief demanded is of a special 
 nature, such as the foreclosure and sale of mortga- 
 ged premises, or the partition of lands, the summons 
 mu^t be in the other form, that is, that the court 
 will be applied to for the relief demanded. 
 
 Thus in an action for an assault and battery, tres- 
 pass to the person or pro; erty, slander a id the like, 
 the summons should be in this form. 
 
 It is not necessary in any case to serv^e the com- 
 plaint on the defendants in the first instance, but the 
 summons may be served without the complaint, in 
 which case a notice should be contained in the sum- 
 mons, of the place where the complaint will be filed, 
 {Code § 130) and in cases of publication of the sum- 
 mons against an absent defendant, the complaint 
 must be first liled in the proper county, and the sum- 
 mons must contain a notice of the time and place 
 of filing the complaint. (For the forms of the differ- 
 en: kinds of summons, see Appendix.) Codc\ 135, 
 sub. 6. 
 
 Limiiim^ time of service'] — If the plaintiff desires to 
 have the summons speedily served, he may endorse 
 upon the summons a direction to the sheriff to serve
 
 OF THE COMPLAIM. 99 
 
 it within a specified time. In which case the sher- 
 iff is bound to serve the summons accordingly, 
 {Code § 133) and in detault of his doing so, the plain- 
 tiff may serve him with a notice requiring such ser- 
 vice to be made in ten days thereafter, or show 
 cause, at a special term, therein specified, why an 
 attachment should not issue against him. Rule 6. 
 
 SECTION VII. 
 Of the Complaint 
 
 It must not be supposed that because pleadings in 
 actions have been abridged, and all forms abolished, 
 that therefore very little or any skill or judgment is 
 necessary in framing a complaint or answer; on the 
 contrary, the tendency and effect of this change is 
 to throw every pleader upon his own resources, with 
 but little aid from former guides or precedents. 
 
 The complaint is the most important pleading on 
 the part of the plaintiff. It is the foundation of the 
 suit, and all the subsequent pleadings depend upon 
 it. It must contain the grounds on which the 
 plaintiff demands his moneys, goods, chatties, or 
 lands. It must state such facts as, when proved or 
 admitted to be true, will show the plaintiff has not 
 only the right and title to recover, but also that he 
 had that right when he commenced his action. 
 
 General rules. \ — In drawing a complaint, the plain- 
 tiff must not only state his facts, but must bring in- 
 to view the law by which they are to be decided ; 
 in other words, tliey must be such as in the law 
 constitutes a good cause of action. In the language 
 of Mr. Justice Buller, " it is one pf the first princi-
 
 100 OF THE COMPLAINT. 
 
 pies of pleading, that you have only occasion to 
 state facts, which must he done for the purpose of in- 
 forming the court, whose duty it is to declare the 
 law arising on these facts, and to apprise the oppo- 
 site party of what is meant to be proved, in order 
 to give him an opportunity to traverse it." 
 
 Matters of substance are the chief elements of 
 pleading, and anything that is material or essential 
 10 the plaintiff's demand, or the defendant's dis- 
 charge must he alleged. The proof must be con- 
 fined to the allegations, and hence the verdict and 
 judgment must be consistent with the allegations in 
 the pleadings. 
 
 In stating the cause of action, it is not necessary 
 to use any particular form of words, nor to state 
 anything as inducement to the cause of the action. 
 And so of matters apparent to the court, and which 
 appear from a necessary implication. It is not al- 
 ways necessary to state title in the plaintiff to the 
 thing sought to be recovered possession, as against a 
 wrong doer, or a stranger is enough. 
 
 Although the facts which constitute the cause of 
 action must be stated, it is not necessary, and ordi- 
 narily-it is improper to state the evidence to prove the 
 facts. Thus, in an action upon a promissory note, 
 the plaintiff liiust state his title to the note, as, that 
 he is the lawful owner of the note, but he need not 
 state how he obtained title; that must be proved on 
 the trial. Or, in a suit against an endorser, it must 
 be stated that the note was presented, payment de- 
 manded, and notice of the presentment and" non- 
 payment given to the endorser, but the manner of 
 presenting, demanding, and giving notice need not 
 be. Or in an action to recover the possession of real
 
 OF THE COMPLALNT. 101 
 
 property, the plaintiff's title must be stated, as, that 
 he is the owner in fee of the lands, but it need not 
 be averred that he claims as grantee, devisee, or heir 
 at law. He must prove his ownership on the trial, 
 by the production of his deed, or will, or show his 
 inheritance. Yet the plaintiff may aver the precise 
 facts which he expects to prove, and sometimes, it 
 is important to do so, where he desires an admission 
 fro n the defendant of a fact difficult to prove. Thus 
 he may state that A. B. made his will and devised 
 the premises in question to the plaintiff, or that the 
 father of the plaintiff died intestate, seized of the 
 premises, leaving the plaintiff his only or one of his 
 heirs at law, or that the premises were conveyed to 
 the plaintiff by deed, stating the conveyance. By 
 this means the defendant must in his answer admit 
 ( r deny the facts, and much of the proof may be 
 obtained by the defendanfs admission. But see 
 Floyd Y. Deorhorn, 2 Code Rep. 17. 
 
 Conciseness as well as clearness, is essential in 
 stating the cause of action. The facts should be 
 stated in the order in which they will be proved. 
 Thus the plaintiff's title to the lands should be sta- 
 ted before the wrongful or unlawful possession of 
 the defendant is averred; or, the tortious act of the 
 defendant before the consequent injury to the plain- 
 tiff. 
 
 It has already been stated what causes of action 
 may be joined in the same complaint. A?iie p. 45. 
 Care should be taken in stating the cause of action, 
 that there be no misjoinder. Hence, it would be 
 improper to state the warranty of a horse, and the 
 breach thereof, which is a contract, and fraud or 
 deceit in the sale, which is a tort, or an injury to
 
 102 OF THE COMPLAINT. 
 
 the person and an injury to property, or any 
 causes of action which may not be joined in the same 
 complaint. 
 
 It is always, best, though not always necessary, 
 for the plaintiff to state his case according to the 
 operation in law, that is, that he state his case as 
 it is in law, and not as the mere words and 
 letters are. To do this, it is not only necessary to 
 get his facts right and fully to examine the mean- 
 ino- of words, but the operation of law on the 
 words and facts. 
 
 The rule is, that the plaintiff must complain ac- 
 cording^ to his case, and state his contract, record or 
 injury, as the law understands it, that the court ir.ay 
 be able to give legal effect to the contract. 
 
 Time is not always necessary to be stated with 
 accuracy in the complaint, as in an action for a 
 tort any time within the limitation of such actions 
 may be stated ; so, of the place, except where the 
 action is of a local nature ; but both time and 
 place, as well as the description of the thing de- 
 manded should be stated with reasonable certainty 
 so that the jury may understand it, and if the de- 
 fendant is sued again for the same thing, he may 
 be able to show without trouble and vexation, that 
 he has been before sued for the same cause of ac- 
 tion. 
 
 In local actions it must be stated where the tand 
 is or where the act was done for which the action 
 is brought. 
 
 So, when the plaintiff's right of action depends 
 upon a condition precedent, he must aver and prove 
 the condition to be performed before he sues, 
 whether by himself or his agent, unless prevented
 
 OF THE (OMPLAINT. 103 
 
 or rendered unnecessary by the act of the defend- 
 ant. 
 
 In actions on contracts, the plaintiff after stating 
 the contract, must aver, according to the facts and 
 the rules of law, how the defendant has broken it. 
 Thus, in a contract to pay money, a good breach is 
 that he did not pay, and generally the breach of a 
 covenant or contract may be assigned in the words 
 of it. 
 
 So, notice to the defendant must sometimes be 
 stated. As, where a thing is to be done by the 
 plaintiff or an event is to happen to him, before the 
 cause of action arises, notice must be stated to have 
 been given to the defendant 
 
 Notliing more should be stated in the complaint 
 than is necessary to exhibit to the court the nature 
 of the cause of action; redundant and irrelevant 
 matter, or what was formerly called surplusage, will 
 be stricken out on motion to the court. Code, § 160, 
 
 Names of patties.] — The party complaining is known 
 as the plaintiff, and the adverse party as the defendant ; 
 and it is sufficient after entitling the cause with the 
 names of the parties, to speak of them afterwards 
 as plaintiff or defendant. Code, § 70. 
 
 Contents of the complaint.'] — The complaint must 
 contain the title of the cause, that is, the names of 
 the plaintiff and defendant, and the name of the 
 court in which the action is brought, and the name 
 of the county in which the plaintiff desires the ac- 
 tion to be tried. This of course will depend uoon 
 the nature of the action, whether local or transitory. 
 (As to which, see ante p. 31.) Code, § 142, siih. 1. 
 
 It must also contain a statement of the /at/^ con- 
 stituting the cause of action, in ordinary and con-
 
 104 OF THE COMPLAINT. 
 
 cise language, without repetition, and in such a 
 manner as to enable a person of common under- 
 standing to know what is intended. Code, § 142, 
 sub. 2. 
 
 The particularity with which these facts must be 
 stated, will depend upon the nature of the action, 
 whether it be of a legal or equitable character, and 
 nothing more than general rules can be laid down 
 to guide in the construction of the complaint. It 
 is simply necessary that the facts should constitute 
 a cause of action In an action upon an account, 
 it is not necessary to set out the items of the ac- 
 count in the complaint, but it is sufficient if it be 
 stated generally that the defendant is indebted to the 
 plaintiff on account for goods, wares and merchan- 
 dise sold and delivered to him, or for work, labor 
 and services done and performed, or for money lent 
 and advanced, without giving the particular items 
 of the account, a way being provided for the de- 
 fendant to obtain the items if he desires them. Code, 
 §158. And see post. 
 
 The complaint must also contain a demand of the 
 relief to which the plaintiff supposes himself en- 
 titled. This will vary according to the nature of 
 the action. If the recovery of money is demanded, 
 the amount must be stated ; and if the plaintiff seeks 
 relief according to the principles of equity, he must 
 so state it, and demand the particular relief sought, 
 that the court may render the appropriate judgment 
 and make tlie proper order. Thus, in an action for 
 the foreclosure of a mortgage, the complaint should 
 demand the payment of the amount due, a sale of 
 the mortgaged premises, and that the defendant
 
 OF THE COMPLAINT. 105 
 
 and all others be barred and foreclosed of all equity 
 of redemption. And where the plaintiff seeks to 
 restrain the defendant, durinj^ the pendency of the 
 action, from the commission or continuance of some 
 act, and to obtain an injunction therefor, it is neces- 
 sary that the complaint should contain a demand 
 for such injunction. Hovcy v. M'Crm, 4 How. Pr. 
 Rtp., 31. 
 
 It is provided by rule, {Rule 68,) that in actions for 
 the purpose of obtaining divorces on the ground of 
 adultery, whether the husband or wife is plaintiff, 
 the plaintiff must positively aver that the adultery 
 charged in the complaint was committed without 
 his consent, connivance, privity, or procurement ; 
 that five years have not elapsed, since he discover- 
 ed the fact that such adidtery had been committed; 
 and that he has not voluntarily cohabited with the 
 defendant since the discovery of such adultery. 
 And where, at the time of the offence charged, the 
 defendant was married to or was living with the 
 adulterer, in open or notorious adultery, the plaintiff 
 must also aver, that five years have not elapsed, 
 since the commencement of such adulterous inter- 
 course was discovered by him. 
 
 So, in an action to avoid a conveyance for fraud, 
 or for any other reason, the relief asked in must be 
 that the conveyance be set aside and cancelled, or for 
 the specific performance of a contract for the sale of 
 lands, that the vendor or his heirs convey the pre- 
 mises, or for the recovery of personal property, that 
 it be delivered to the plaintiff. 
 
 In these and similar cases, the specific relief de- 
 manded must be stated in the comf)laint.
 
 106 OF THE COMPLAINT. 
 
 Subscribing complaint.'] — The complaint must be 
 .•subscribed by the plaintiff, if he sues in person, or 
 by his attorney If this is omitted it would be an 
 irregularity and the court would set it aside, or 
 mi^-ht allow it to be amended. 
 
 Verifying the complaint.] — The plaintiff may verify 
 the complaint, or not as he chooses. The verifica- 
 tion is by an affidavit, annexed to the complaint, 
 that the complaint is true of his own knowledge, 
 except as to the raatlers which are therein stated to 
 be on his information or belief, and as to those 
 matters he believes it to be true. 
 
 There is, however, one case in which the plaintiff 
 must verify his complaint, viz., where it is intended 
 to save a cause of action from the operation of the 
 statute of limitations. In such case, unless the 
 summons can be delivered to the sheriff on the day 
 it is issued, if it is designed to commence the suit 
 on such day, the complaint must be verified. To 
 illustrate : the statute of limitations will attach to- 
 morrow, and hence, to save it, the suit must be 
 commenced tr-day. Now, if the plaintiff can get 
 his summons in the hands of the sheriff to-da,y, it 
 is enough, and the complaint need not be verified : 
 but, if from any cause, the summons cannot be de- 
 livered to the sherift' to-day, the plaintift^ may, by 
 verifying his complaint, save the statute, provided 
 he within the next five succeeding days, deliver the 
 summons to the sh^^riff, and it be thereafter actually 
 served. Code, § 99, sub. 2. 
 
 Another case, in which it is proper to verify the 
 complaint, is in an action to obtain a divorce, on 
 the ground of adultery, where it is provided by rule
 
 OF THE COMPLAINT. 107 
 
 that the complaint must be verified, or an affidavit 
 of the facts furnished on the reference Rule 68. 
 
 Generally, the affidavit must be made by the 
 plaintiff, but it may, in certain cases, be made by 
 his attorney or by any other person. Thus, if the 
 party is absent from the county Avhere the attorney 
 resides, or from some cause is unable to verify it, 
 or where the facts are within the knowledge of his 
 attorney, or of the person verifying the same. 
 
 If the affidavit is made by the a'torney, or by a 
 person other than the plaintiff, it must state the 
 grounds of his knowledge or belief on the subject, 
 and the reasons why it is not made by the plaintiff. 
 Thus, where the attorney verified the answer, 
 and swore to information furnished him by the 
 defendant, and from his representatiyns, he believed 
 the answer to be true, it was held sufficient. Dixwell 
 V. Wordsworth, 2 Code R' p., 1. It would be well in 
 cases of attorney's verifying a pleading and swear- 
 ing to information derived from the party, to add, 
 that he believes such information to be true. The 
 sufficiency of the grounds and the reason, is for the 
 cotirts to determine. It is, however, no ground of 
 demurrer. Webb v. Clark, 2 Code Rpp., 16. When a 
 corporation is a party, the verification maybe made 
 by any officer thereof 
 
 The plaintiff need not, as has been said, verify 
 his complaint except in the cases which have been 
 stated, and the only effect of omitting to do so, is 
 to waive the oath to the answer. And in cases 
 where the plaintiff does not desire the defendant's 
 answer to be under oath, he may avoid it by omit- 
 ting to verify the complaint. If the complaint,
 
 108 OF THE COMPLAINT. 
 
 however, is verified, then the answer and reply must 
 also be verified in the same manner. 
 
 Amending complaint.^ — We have before noticed the 
 cases in which amendn ents are allowed, by the 
 Code. Antep. 41. 
 
 Ail the provisions there referred to, apply to 
 amendments of the complaint. The amendments 
 which maybe made of course, that is, without mo- 
 tion to the court, must be made within twenty days 
 after the service of the demurrer or answer, and 
 before the plaintiff has replied; otherwise he must 
 make a special motion to the court for leave to 
 amend. And a copy of the amended complaint 
 must be served on the defendant or his attorney, if 
 he has appeared by one. The defendant has the 
 same time to answer or demur to the amended 
 complaint that he had in the first instance to the 
 original complaint, that is tw^enty days. 
 
 It has been decided in the N. Y. Superior Court, 
 that Avhere two of the defendants demurred to the 
 complaint, and the other defendant suffered judg- 
 ment for want of an answer, and the plaintift^ after- 
 wards amended his complaint, that it was necessary 
 to serve the amended complaint upon the defendant 
 who had suffered judgment as well as upon the de- 
 fendants who had demurred. People ex. rel. Ru?nsey 
 v. Woods Sf ors. 2 Code Rep., 18. 
 
 Supplemaital complaint.'] — If facts arise after the 
 complaint has been served, or after answer or reply 
 has been put in, the plaintiff may bring it before 
 the court, by a supplemental complaint. This is 
 authorized only in cases where new facts arise, and 
 they must occur after the complaint has been
 
 OF THE COMPLAINT. 109 
 
 served. For if they have occurred before the c m- 
 plaint is made out, they must be brought in by 
 amending the complaint ; not by a supplemental 
 complaint. 
 
 A supplemental complaint, cannot be put in as 
 of course, it can only be done upon the order of 
 the court, for which purpose a motion must be made 
 upon an affidavit of the facts rendering the supple- 
 ment necessary. The court may impose the pay- 
 ment of such costs as shall be just, as a condition of 
 allowing the supplemental complaint to be made. 
 Code, § 177. 
 
 Filing complaint. 1 — It is not absolutely necessary to 
 file the complaint, though it is always best to do 
 so, immediately after the summons has been served 
 on the defendant. If it be not filed within ten 
 days after it is served, the defendant, upon an affi- 
 davit of the omission, may have an order of course 
 from a judge of the court in which the action is 
 pending requiring the complaint to be filed within 
 a time to be specified in the order, and if the plain- 
 tiff neglect to file it within such time, he will be 
 deemed to have abandoned his complaint. Code, 
 § 416. 
 
 The complaint must be filed in the office of the 
 clerk of the county designated in the complaint for 
 the trial of the action, and must in all cases be filed 
 before judgment is entered in the action. 
 
 And in cases where the summons is served by 
 publication, the complaint must be filed in the 
 proper county before the order for publication is 
 made. Code, § 135, sub. 6. 
 
 If the complaint contains more than two folio, it
 
 110 FILING AND SERVING SUMMONS AND COMPLAINT. 
 
 is the duty of the attorney to distinctly number and 
 maik eacli folio in the margin thereof, and all co- 
 pies either for the parties or the court must be num- 
 ber :d or marked in th ; margin, so as to conform to 
 the original draft. Rvh 44. 
 
 SECTION VIII. 
 
 Of the Filing and Service of the Summons and Com- 
 plaint, AND OF the Proof of Sevice. 
 
 The summons must in all cases be served upon 
 the defendant, either personally or by publication. 
 Not so, however with the complaint. There are 
 cases in which the complaint need not be served at 
 all. 
 
 The service of the summons is usually accompa- 
 nied by a copy of the complaint, that being proper, 
 though not necessary, to avoid the delay of a de- 
 mand by the defendant, and in cases where it is 
 thus deemed advisable to serve the copy com- 
 plaint, it is proper to annex it to the summons, and 
 have them served on the defendant at the same 
 time, and in practice, this will generally be done. 
 
 When service of the complaint is proper. '\ — As has been 
 stated, a copy of the complaint need not be served 
 upon the defendant, with the summons; but ordi- 
 narily, except in mortgage cases, it is best to serve 
 the copy complaint with the summons, as other- 
 wise the defendant may gain Xen days additional 
 time, by waiting ten days after the service of the 
 summons and then demanding a copy of the com- 
 plaint, and thus has twenty days after its service on 
 him to serve his answer, as post.
 
 FILING AND SERVING SUMMONS AND COMPLAINT. 1 I 1 
 
 The summons and copy of the complaint, if serv- 
 ed, must be personally served upon the defendant. 
 This is necessary to give jurisdiction to the court, 
 and a judgment would be erroneous without such 
 service. 
 
 Where the complaint is not served with the sum- 
 mons, it must state where the complaint will be 
 hied. If the defendant.s, or either of them, desire 
 to know what he is sued for, or design to defend the 
 action, he may, within ten days after the service of 
 the summons upon him, serve upon the plaintiff's 
 attorney a notice in writing, demanding a copy of 
 the complaint. In this notice, the defendant must 
 specify some place within this State, for the service 
 of the complaint upon him The plaintift^nust serve 
 a copy of the complaint upon the defendant accord- 
 ingly, from which time the defendant has twenty 
 days to demur or answer, as in other cases. If, 
 however, two or mo/e defendants in such a case ap- 
 pear by one attorney, only one copy of the com- 
 plaint need be served. Code, § 130. 
 
 In mortgage and partition cases.^ — In case the plain- 
 tiff makes no personal claim against a defendant in 
 an action for the foreclosure of a mortgage or the par- 
 tition of lands, such as defendants who are mere 
 judgment creditors, or junior incumbrancers, a copy 
 of the complaint need not be served upon such de- 
 fendant. But at the time of the service of the sum- 
 mons, the plaintiff must delivej to such defendant 
 a notice, subscribed by the plaintiff or his attorney, 
 setting forth the general object of the action, with a 
 brief description of the property affected by it, and 
 that no personal claim is made against him. If a
 
 112 SERVLNfG SUMMONS AND COMPLAINT. 
 
 defendant upon whom a summons and notice in an 
 action for the foreclosure of a mortgage or the par- 
 tition of lands is served desire to defend, he may de- 
 mand in writing a copy of the complaint, at any 
 time before the time for answering expires ; in which 
 case a copy must be served, and such defendant 
 must answer within the time specified for that pur- 
 pose in the summons, and is not allowed twenty 
 days from the time of the service of the complaint. 
 
 Service, how made.] — The service of the summons 
 and complaint, when served, must be made as fol- 
 lows : 
 
 Upon corporations.'] — By delivering a copy of the 
 summons and complaint to the president or other 
 head of the corporation, or to the secretary or cashier, 
 or managing agent thereof 
 
 Upon minors.] — If the minor is over the age of four- 
 teen years, by delivering such copy to such minor 
 personally — and if under the age of fourteen, by de- 
 livering the same to such minor personally, and also 
 delivering a copy to the father or mother or guar- 
 dian, or if there be none within this state, then by 
 delivering the same to any person, having the care 
 and control of such minor, or with whom he resides, 
 or in whose service he shall be employed. 
 
 Upon idiots, insane persons and habitual drunkards.] — 
 If the defendant be a person judicially declared to 
 be of unsound mind, or incapable of conducting his 
 own affairs, in consequence of habitual drunkenness, 
 and for whom a committee has been appointed, the 
 copy of the summons and complaint must be deliv- 
 ered to such defendant and to his committee per-
 
 SERVING SUMMONS AND COMPLAINT. 1 I 3 
 
 sonally. In all other cases the service must be by- 
 delivering the copy to the defendant personally. 
 
 Upon non-resident or concealed defendant.] — Where the 
 defendant upon whom the service is to be made, is 
 a non-resident of this state or cannot, after due dili- 
 gence, be found within the state, the court in Avhich 
 the action is pending, or a judge thereof, or a county 
 judge, may order the summons to be served by a 
 publication of the summons, in lieu of personal ser- 
 vice. Code, § 135, sub. 3. 
 
 Affidavit of the facts.] — To procure the order for 
 publication, an affidavit must be drawn, stating the 
 non-residence of the defendant, or that the defend- 
 ant cannot, after due diligence, be found within the 
 state. The affidavit must show conclusively that 
 the defendant is a non-resident, or that an effort has 
 been made to serve the summons. Mere informa- 
 tion and belief of non-residence, or that the defend- 
 ant cannot be found, is not enough. The court or 
 judge must be satisfied by the facts disclosed in the 
 affidavit, that it is a proper case for publication. 
 The affidavit must also state the cause of action, 
 that the court or judge may know that a sufficient 
 cause of action exists against the defendant. And 
 in actions relating to real property, it must appear 
 from the affidavit that the defendant is a necessary 
 party to the action. If the residence of the defend- 
 ant is not known, and cannot with reasonable dili- 
 gence be ascertained, that fact should aho be stated 
 in the affidavit. 
 
 The affidavit should also state that the complaint 
 has been filed in the proper county, as that must be 
 
 8
 
 114 SERVING SUMMONS AND COMPLAINT. 
 
 done before the order for piibUcation can be made. 
 Code, § 135. 
 
 When these facts appear, the court or judge is 
 authorized to make an order that the i^ervice be 
 made by the publication of the summons, in the 
 following cases. Code, § 135. 
 
 (1.) Where the defendant is a foreign corporation: 
 
 (2) Where the defendant, being a resident of this 
 state, has departed therefrom with intent to defraud 
 his creditors, or avoid the service of a summons, or 
 keeps himself coneealed therein, with the like in- 
 tent, and the action arises out of contract or the non- 
 feasance or mis- feasance complained of, is a breach 
 of contract: 
 
 (3.) Where hens a non-resident, but has property 
 therein, and the action is on a contract : 
 
 (4.) AVhere the subject of the action is real pro- 
 perty in this state and the defendant has or claims 
 alienor interest actual or contingent therein, or the 
 relief demanded consists wholly or partly in ex- 
 cluding the defendant from any interest therein: 
 
 (5.) Where the action is founded on a mortgage 
 upon property in this state, and the defendant is, 
 by reason of an instrument executed by him, charge- 
 able with the debt for which the mortgage is secu- 
 rity: 
 
 (G.) Where the action is for divorce, in the cases 
 
 provided by law. 
 
 The orc/er.]— The order must direct the summons 
 to be published in at least two newspapers, of which 
 the state paper should be one, though it need not 
 be; the other, such as shall be designated by the 
 court or judge as most likely to give notice to the
 
 SERVING SUMMONS AND COMPLAINT. 115 
 
 person to be served. The complaint need not be 
 published. Anonymous, 3 How. Pr. R., 293. The 
 order must require the summons to be published for 
 such length of time as the judge shall deem reason- 
 able, but in no case, shall it be less than once in 
 each week for six weeks. 
 
 The order must further direct that a copy of the 
 summons and complaint be forthwith deposited in 
 the post office, directed to the person to be served, 
 at his place of residence. If, however, it appears 
 from the affidavit that the residence of the defend- 
 ant is not known to the plaintifi, and cannot, with 
 reasonable diligence, be ascertained by him, this 
 part of the order may be omitted. 
 
 Filing.] — The order and affidavit upon which it is 
 founded, should be filed with the clerk of the county 
 designated in the complaint for the trial of the 
 action. The publication of the summons and de- 
 posit in the post office may then be made pursuant 
 to the order. 
 
 The summons in cases of publication must state 
 the time when and the place where the complaint 
 is filed. 
 
 Service out of the state.] — Notwithstanding the order 
 for publication, the plaintiff may still make a per- 
 sonal service upon the defendant, either in or out of 
 the state, and such service is equivalent to publica- 
 tion and deposit in the post office. 
 
 In such cases, however, the complaint need not 
 be served, the service of the summons alone is suffi- 
 cient. The defendant has the same time to appear 
 and answer as in case of publication. Code, § 135, 
 sub. 6.
 
 116 SERVING SUMMONS AND COMPLAINT. 
 
 Defendant's appearance and answer.] — If the defend- 
 ant is apprised of the commencement of the action, 
 either by receipt of the summons, or by seeing the 
 publication, he must apply to the clerk of the coun- 
 ty, designated in the summons as the place where 
 the complaint is filed, for a copy of the complaint, 
 and must serve hi:i answer upon the plaintiff's attor- 
 ney within twenty days f om the time limited for 
 the publication of the summons. If, however, the 
 summons is not served on, nor received by the de- 
 fendant through the post office, he or his represen- 
 tatives may apply to the court in which the action 
 is pending, at any time before judgment is actually 
 entered, for liberty to defend the action, and he will 
 be allowed to do so, without the payment of any 
 costs, if he show a sufficient reason for not answer- 
 ing in season, and that he has a valid defence on 
 the merits, to the action. The defendant may in 
 like manner apply to the court, within one year 
 after he has received notice of the judgment, but 
 not after the expiration of seven years from its ren- 
 dition, for liberty to defend the action ; and the 
 court may allow him to do so, upon such terms as 
 are just. And if upon being allowed to defend, his 
 defence is successful, and the judgment, or any part, 
 has been collected, or otherwise enforced, such res- 
 titution may be compelled as the court may direct. 
 
 In cases where the service is made by publication, 
 the service is complete at the expiration of the time 
 mentioned in the order for publication. If the de- 
 fendant do not appear within that time and answer 
 or demur, the plaintiff may, at the expiration of 
 twenty days thereafter, enter judgment.
 
 SERVING SUxMMONS AND COMPLAINT. 117 
 
 The defendant has twenty days after the expira- 
 tion of the time for publication, to serve his answer, 
 and hence judgment cannot be entered for failure to 
 answer, until after twenty days from the expiration 
 of the publication. 
 
 Service upon some, but not upon all the defendants.] — 
 In cases where the plaintiff gives notice in his sum- 
 mons that he will apply to the court for the relief 
 demanded in his complaint, and he wishes a joint 
 judgmenf against all the defendants, he must pro- 
 cure the service of the summons on all, before he 
 applies to the court for his relief. 
 
 If the action be against two or more defendants, 
 who are jointly indebted upon a contract, and the 
 summons and complaint has been served upon one 
 or more, but not upon all of them, the plaintiff may 
 proceed against the defendant served, without 
 serving upon the others. The judgment in such 
 a case will be in form against all the defend- 
 ants, as joint contractors, but it can only be collect- 
 ed from \hejoi?it property of all, or the individual 
 property of those served. {2 R.S. 247, § 122, 123. 
 Code § 136, sub. 1.) The execution in such case must 
 direct the sherifi^to collect the judgment according- 
 ly. (2 R. S. 250, § 141,142. Laws 1833, chap. 271, § 3.) 
 
 In actions against defendants severally liable, as 
 makers and endorsers of promissory notes, draw- 
 ers, acceptors, and endorsers of bills of exchange, 
 the plaintiff may proceed against such as have been 
 served, without waiting to serve en all. This wa? 
 what under the former practice, was called severing 
 the action. 
 
 In like manner, if all the defendants are served
 
 118 SERVING SUMMONS AND COMPLAINT 
 
 and soiTie answer and others do not, the phiintifF 
 may, if the defendants are severally, but not if they 
 are jointly liable, proceed to judgment against 
 such as do not answer, and to trial against such as 
 do answer. 
 
 And if the defendants are severally liable, and the 
 summons has not been served on all, the plaintiff 
 may amend his complaint, by striking out the names 
 of such of the defendants as have not been served, 
 and proceed against the defendants served. 
 
 Who may serve the summons.'] — The summons and 
 complaint may be served by the sheriff of the coun- 
 ty where the defendant may be found, or by any 
 person, not a party to the action. The plaintiff can- 
 not, nor can one of several plaintiffs make the 
 service. The plaintiff or his attorney, who issues 
 the summons, may fix the time, within which the 
 service must be made. This is done by an endorse- 
 ment on the summons, and the service must be 
 made accordingly. The sheriff or person who makes 
 the service is required to return the original sum- 
 mons with the proof of the service to the plaintiff's 
 attorney, or to the plaintiff if he prosecute in person, 
 with all reasonable diligence. 
 
 In case the service is made by the sheriff, if he 
 omit to make the return within the time limited, or 
 within a reasonable time, if there be no limitation, 
 he may be proceeded against by attachment as for 
 a contempt of court. (10 Wend. JR. 572. Laws 1833, 
 chap. 271, § 2. Rule 6.) 
 
 Of proof of serviced] — If the service is made by the 
 sheriff, or other public officer, his official certificate 
 in writing must be made of the time and manner of
 
 SERVING SUMMONS AND COMPLAINT. 119 
 
 service j or if it be made by a person other than the 
 sheriff or pubUc officer, an affidavit is necessary. 
 The certificate and affidavit must state the precise 
 time of the service, and that it was made upon the 
 defendant personally. It must also state the place 
 where the service was made, that is, the town or 
 city. The particular house need not be stated ; the 
 object being to show that the service was made 
 Avithin the state or the bailwick or county of the 
 sheriff. In addition to this, if the summons is served 
 by a person other th in the sheriff, the affidavit must 
 also state, that the person making the service, knew 
 the person served to be the person mentioned and 
 described in the summons, as defendant therein, and 
 also state, whether he left with the defendant such 
 copy, as well as delivered it to him. Rule 90. 
 
 If the service be made by publication the affida- 
 vit of the printer or his foreman, or his principal 
 clerk, of the several newspapers, in which the sum- 
 mons was published, must be made, showing the 
 publication; and also an affidavit of the person 
 who deposited a copy of the summons in the post 
 office, as required by the order of publication, if so 
 required. These affidavits must state the time 
 when the publication commenced, and when end- 
 ed, and the time when the copy summons Avas de- 
 posited in the post office, with the name of the post 
 office, and where the same was directed to the de- 
 fendant. 
 
 The written admission of the defendant will be 
 sufficient proof of the service, without any certifi- 
 cate or affidavit. Code, \ 138.
 
 120 JUDGMENT UPON FAILURE TO ANSWER. 
 
 SECTION IX. 
 
 Of the Judgment upon Failure to answer. 
 
 Under the former practice, if the defendant did 
 not plead to the declaration within the time prescri- 
 bed, the plaintiff entered his default and signed 
 judgment, according to the nature of his claim or 
 relief demanded. 
 
 A similar practice now prevails under the Code 
 There are, however, some variations rendered ne- 
 cessary by the change of the system, and in blend- 
 ing actions of a legal and equitable nature into one. 
 Defaults are altogether abolished. 
 
 A judgment is the final determination of the 
 rights of the parties in the action, and by the de- 
 fendant's failing to answer the complaint, he ad- 
 mits the cause of action as laid, and the case is in 
 a condition to be finally determined. Code, § 245. 
 
 As judgments generally are treated of in another 
 part of this work, the present section will be con- 
 fined to those that may be entered for want of an 
 answer only. 
 
 Actions arising on contract for the recovery of money 
 only.] If the action be founded upon a contract, 
 express or implied, for the recovery of money only, 
 and the defendant has failed to serve an answer or 
 demurrer, the plaintiff may, after the expiration of 
 the time limited for the answer, enter a judgment 
 for the amount mentioned in the summons with in- 
 terest and costs, but it cannot exceed such an 
 amount. Code, § 275. 
 
 In cases where an assessment is required, as here-
 
 JUDGMENT UPON FAILURE TO ANSWER. 121 
 
 after stated, and the defendant has served notice of 
 appearance, either in person or by attorney, upon 
 the plaintiff's attorney, at any time before the peri- 
 od for answering has expired, a notice of five d.iys 
 must be served on such defendant or his attorney, 
 stating the time and place where, and the name of 
 the clerk by whom the assessment v/ill be made. 
 No notice is necessary unless the defendant has ap- 
 peared. Code, § 246, sub. 1. 
 
 In actions where the service of the summons and 
 complaint is not personal, as in the case of publica- 
 tion against a defendant, who is a non-resident or 
 cannot be found, the plaintiff at the time he applies 
 for the judgment or relief demanded in his com- 
 plaint, must furnish proof of his demand to the 
 court, and in case the defendant is a non-resident, 
 the court must examine the plaintiff or his agent, 
 on oath, as to any payments that have been made 
 to the plaintiff, or to any one to his use on account 
 of his demand. The court may, for the purpose 
 of taking this proof, order a reference, and upon 
 the coining in of the report of the refei-ees, direct 
 the proper judgment to be entered. The court may 
 also in its discretion, require the plaintiff to file sa- 
 tisfactory security to abide the order of the court, 
 touching the restitution of any estate or effects 
 which may be directed by the jutigment to be trans- 
 ferred or delivered, or the restitution of any money 
 that may be collected, under or 'by virtue of such 
 judgment, in case the defendant or his representa- 
 tives shall apply and be admitted afterwards to de- 
 fend the action. Code, §246, sub. 3. 
 
 It seems that even in actions founded upon con- 
 tracts, either express or implied, and the summons
 
 122 JUDGMENT UPON FAILURE TO ANSWER. 
 
 has not been personally seved, the plaintiff cannot 
 enter judgment, as of course, but must make an 
 application to the court for judgment. It is other- 
 wise when the sunimons has been personally served. 
 Cod.e, \ 246, sub. 3. 
 
 Ill other actions^ — If the action be one not founded 
 upon contract for the payment of money only, and 
 the defendant has in like manner failed to answer, 
 the plaintiff may, in like manner, apply to the court 
 on any motion day in any special term, in the judi- 
 cial district embracing the county designated in the 
 complaint for the trial of the action, or in an ad- 
 joining county, or at any circuit court held in such 
 county, {Rule 91) for the judgment or relief he may 
 be entitled to. In case the defendant has served 
 notice of appearance or retainer, {Ride 7) either in 
 person or by attorney, a notice of eight days must be 
 served on him, of the time and place where the ap- 
 plication for the judgment or relief demanded in 
 the complaint will be made. The defendant is not 
 entitled to any notice unles she has appeared. Code, 
 §246, sub. 2. 
 
 In many cases it is necessary to furnish further 
 evidence than is contained in the complaint, before 
 the court can direct the judgment to be entered, as 
 where damages are claimed for the withholding of 
 money in an action for the recovery of money only, 
 or for the withholding of real or personal property, 
 or where an account must be taken, or the exami- 
 nation of a long account is involved, or any case 
 where further proof is necessary to enable the court 
 to give judgment, or to carry the judgment into ef- 
 fect, the court instead of taking the proof, may in
 
 JUDGMENT UPON FAILURE TO ANSWER. 12C 
 
 its discretion order a reference for that purpose, tc 
 some person free irorn all exception, to be namec 
 by the plaintiff; or may direct a writ of inquiry t( 
 issue to the sheriff, or order the damages to be as 
 sessed by a jury. 
 
 In these cases the proper order is entered and the 
 plaintiff proceeds to give his proof before the re- 
 feree or jury, and after obtaining the report or ver- 
 dict, he is in a condition to enter judgment ; which 
 he may do without further motion to the court, or 
 notice to the defendant. If o notice of the reference 
 or of executing the writ of inquiry, need be given 
 to the defendant. 
 
 Manner of entering judgment.^ — An affidavit must be 
 drawn that no answer has been received, and the 
 affidavit, summons and complaint, with the proof of 
 service, must be filed with the clerk of the county 
 designated in the complaint for the place of trial, 
 together with the report of the referee or clerk, or 
 verdict of the jury, if any, and a copy of the judg- 
 ment. 
 
 If the complaint has not been verified, and the ac- 
 tion is on an instrument for the payment of money 
 only, such as a promissory note, bill of exchange, 
 check, bond, and the like, the plaintiff before he en- 
 ters judgment, must produce the instrument to the 
 clerk, who will assess the amount due thereon, make 
 a report and file the s;ime. 
 
 In other actions, where it is necessary to ascer- 
 tain by ah assessment, the amount for which to en- 
 ter judgment, and where the complaint has not been 
 verified, the clerk may assess and ascertain the 
 amount which the plaintiff is entitled to recover, by
 
 124 JUDGMENT UPON FAILURE TO ANSWER. 
 
 an exaaiination of the plaintiff under oath, or by 
 such other legal and competent proof, as the plain- 
 tiff may furnish. Thus in an action for goods sold 
 and delivered, the clerk may examine the plaintiff's 
 clerk as to the sale and delivery, and the value of 
 the goods sold. As we have seen in all cases of as- 
 sessment by the clerk, if the defendant has appear- 
 ed, he is entitled to five days' notice, of the time 
 and place of the assessment. 
 
 The judgment is a brief statement of the amount 
 mentioned in the summons, and the interest thereon 
 to the time of entering judgment, orof the relief de- 
 manded, with the amount of costs and disburse- 
 ments to which the plaintiff is entitled bylaw. The 
 judgment or relief, cannot be greater than that de- 
 manded in the complaint. Code § 275. 
 
 If the defendant has appeared, a copy of the costs 
 and disbursements, which the plaintiff claims to 
 have inserted in the judgment, must be served on 
 the defendant's attorney with two days' notice of the 
 time and place, when and where, and the name of 
 the clerk to whom the plaintiff will apply to have his 
 costs ioserted in the entry of judgment. 
 
 The disbursements must be stated in detail and 
 verified by affidavit, which must be filed. 
 
 Judgment roll.] — Upon entering the judgment, the 
 clerk must immediately attach together the sum- 
 mons, complaint or copies thereof, the proof of ser- 
 vice, and the affidavit that no answer has been re- 
 ceived, the report of the referee, and the verdict of 
 the jury, if any, and a copy of the judgment, and file 
 them in his office. This becomes the judgment roll. 
 For the manner of entering judgment and the 
 judgment roll, see post.
 
 CHAPTER IT. 
 
 OF THE PROCEEDINGS ON THE PART OF THE 
 DEFENDANT PREVIOUS TO ANSWERING OR 
 DEMURRING. . 
 
 The defendant having been served with the sum- 
 mons, or with the summons and complaint, and 
 employed an attorney to conduct his defence, the 
 first step for tlie attorney to take is to ascertain 
 whether the defence goes to the whole, or to a part 
 only of the action ; for it frequently happens that 
 the plaintiff claims too much, and the defendant is 
 willing to admit a part, but wishes to contest the re- 
 sidue. Hence, it becomes important to determine, 
 before answering, how much of the plaintiff's claim 
 the defendant must admit to be due, and how much 
 he denies the justness of. For if the plaintiff reco- 
 vers fifty dollars or more, he recovers the costs of 
 the suit, and he may demand a hundred dollars in 
 his complaint, when in truth only fifty is due to him. 
 
 SECTION I. 
 
 Of Obtaining a Copy of the Complaint. 
 
 As has been stated, the plaintiff is not required to 
 serve a copy of the complaint upon the defendant 
 in the first instance, but he may omit to do so, sub- 
 ject to the right of the defendant afterwards to de- 
 mand the service of a copy on him. The summons
 
 126 OBTAINING COPY OF COMPLAINT. 
 
 is all that is required to be served in order to com- 
 mence the action. 
 
 Case rf personal service of the summons.] — Within ten 
 days after the service of the summons on the de- 
 fendant, he or his attorney may serve a written de- 
 mand or notice upon the plaintiff's attorney, requir- 
 ing the service on him of a copy of the complaint. 
 T. e demand or notice must state some place, Avith- 
 in the state, where the copy complaint may be serv- 
 ed. Although the Code is silent upon the subject, 
 yet it would seem from analogy to other parts of 
 the Code, that the place designated in the notice or 
 demand, should be a place where there is a post 
 office, and where papers can be served by mail. 
 Upon receiving such demand or notice, the plaintiff 
 is bound to serve a copy of the complaint upon the 
 defendant or his attornf'y. The defendant has twenty 
 days after the service of the copy complaint to an- 
 swer or demur thereto. In case of several defend- 
 ants appearing by one attorney, only one copy of 
 the complaint need be served on such attorney. 
 
 In case of other than personal service of the summons ] — 
 In cases where the service of the summons is not 
 personal, as when the service is made by a publica- 
 tion thereof, as in the case of a defendant who can- 
 not be found, or who is a non-resident, it is required, 
 as has been stated, that the summons should state 
 that the complaint has been filed, and the time and 
 place of filing. In such cases, the defendant's at- 
 torney must procure a copy of the complaint from 
 the clerk with whom it is filed, and answer it within 
 the time required by law. The plaintiff is not bound 
 to furnish the defendant's attorney with a copy of 
 the complaint.
 
 COMPROMISE OF ACTIONS. 127 
 
 SECTION II. 
 
 Offer of the Defendant to Compromise the Whole 
 OR A Part of the Action. 
 
 Under the former practice, if the defendant was 
 satisfied that he was indebted to the plaintiff, though 
 not to the amount claimed in the declaration, he 
 might, (except in actions for general or unliquidated 
 damages) pay into court, the sum he conceived to be 
 due, and leave the plaintiff to proceed in the action 
 at his peril. 
 
 The practice in such cases has been changed by 
 the Code, and an offer to let judgment he entered for a 
 specified sum, is substituted for paying money into 
 court. 
 
 In actions arising on contract, the defendant may 
 at any time before judgment offer to allow judgment 
 to be taken against him for such sum as he con- 
 ceived to be due to the plaintiff, or for such relief as 
 he is willing to admit the plaintiff is entitled to. It 
 is usually best to make this offer as early in the suit 
 as possible ; as the time has an important effect upon 
 the costs of the suit, if the plaintiff accepts the offer. 
 Code § 385. 
 
 The notice ] — The offer is made by giving a written 
 notice to the plaintiff's attorney, stating that the de- 
 fendant will allow judgment to be entered against 
 him for the sum, or to the effect therein specified. 
 If the action be on a contract for the payment of 
 money only, the notice must specify the precise 
 sum for whi 'h the judgment may be taken. Or if 
 it be for the recovery of something other than money
 
 128 INSPECTION OF WRITINGS. 
 
 or for some relief, other than the payment of money, 
 the notice must state specifically for what, and to 
 what extent the judgment may be entered. The 
 notice may be signed by the defendant or his at- 
 torney. 
 
 Acceptance of offer.] — If the plaintiff concludes to 
 accept the offer, he must, within ten days from the 
 receipt of notice of the offer, serve upon the defend- 
 ant or his attorney, a written notice of his accept- 
 ance thereof; and may thereupon file the summons, 
 complaint and offer, with an affidavit of the service 
 of notice of acceptance, and the clerk will enter 
 judgment accordingly. The papers must be filed 
 with the clerk of the county, designated in the com- 
 plaint as the place of trial of the action. The judg- 
 ment is entered, as in cases of judgment for want of 
 an answer. 
 
 Non-acceptance of offer.] — If the plaintiff omit to 
 give notice of his acceptance of the defendant's 
 offer, within ten days from the receipt thereof, the 
 offer will be deemed to be withdrawn, and the plain- 
 tiff is not permitted to give it in evidence, and if he 
 fail to obtain a more favorable judgment than the 
 defendant offered to allow him to take, he will be 
 subjected to the payment of the defendant's costs 
 of the action, from the time the offer was made. 
 Code, § 3 87. 
 
 SECTION III. 
 
 Of the Inspection of Writings. 
 
 In some cases, before the defendant's answer can 
 be drawn, it may be necessary to obtain the inypec-
 
 INSPECTION OF WRITINGS. 129 
 
 tion of a paper, or book, or writing, in the possession 
 of the plaintiff, or under his control. Thus, in an 
 action upon a special contract, the defendant may 
 desire to see the contract, before putting in his 
 answer. For this purpose, the court in which the 
 action is pending, or a judge thereof, may order the 
 plaintiff to give to the defendant an inspection and 
 copy, or permit him to inspect and take a copy of 
 such paper, books, or writing. Code, § 388. 
 
 Under this provision it has been decided that the 
 court has the power to compel the discovery of 
 papers in the possession of the adverse party, even 
 though they are papers upon which the adverse par- 
 ty relies to make out his cause of action or defence. 
 The object of the exercise of such power being to 
 prevent a surprise on the trial. In Mss. 
 
 A petition must be prepared and sworn to by the 
 defendant, or some one in his behalf, stating that 
 such paper, book, or writing, is in the possession or 
 .under the control of the plaintiff, and contains evi- 
 dence relating to the merits of the defence, or of 
 the action. Enough must appear from the petition 
 to satisfy the judge that the paper, book or writing 
 is material to the defence or the action, for the court 
 will not compel the plaintiff to exhibit a paper not 
 connected with the subject of the action, nor where 
 the object is delay. Hooker and others vs. Matthews and 
 another, 1 Code Rep., 108. 
 
 A copy of the petition and notice of the motion, 
 must be served on the plaintiff's attorney. The mo- 
 tion is made like the special motions, and must be 
 on a notice of at least eight days. If the motion is 
 granted, an order must be entered in accordance
 
 130 PROCURING COPY OF ACCOUNT. 
 
 with the notice, and a copy served upon the plain- 
 tilT's attorney. 
 
 If compliance with the order is refused, the de- 
 fendant may apply to the court, upon notice and 
 affidavit of the refusal, and obtain an order exclu- 
 ding the paper fiom being given in evidence on the 
 trial, or to punish the party refusing, or both. This 
 motion is made like other special motions, upon 
 like notice. A copy of the affidavit of the refusal 
 to comply with the order, must be served with the 
 notice. 
 
 The provisions of the Revised Statutes in relation 
 to the production and discovery of books, papers 
 and documents, (2 R. S., 199, § 21), and the rules 
 of the Supreme Court upon that subject, are still in 
 force, and unrepealed by the Code. Rules 8, 9, 10 
 and 11. 
 
 It is deemed unnecessary, however, to state the 
 practice in proceedings under the Revised Statutes, 
 to obtain a discovery, the present books of practice 
 being sufficient for that purpose. 
 
 SECTION IV. 
 
 Of Procuring a Copy of an Account, alleged in the 
 
 Complaint. 
 
 It has been before stated, {ante p. 104,) that in an 
 action upon an account of any kind, either for goods, 
 wares and merchandize sold, or work, labor and ser- 
 vices done, the plaintiff need not set forth in his 
 complaint the items of his account, but may state 
 generally, that the defendant is indebted upon an 
 account for goods, &c., sold, or work, &c., done.
 
 PROCURING COPY OF ACCOUNT. 131 
 
 In such cases, the defendant, either before he 
 answers the complaint, or at any time afterwards, 
 before trial, may procure a copy of the account. 
 Code, § 158. 
 
 How procured,] — A notice must be drawn, and 
 served on the plaintiff's attorney, requiring him 
 within ten days thereafter to deliver to the defend- 
 an's attorney a copy of the account alleged in the 
 complaint, verified by the oath of the plaintiff, his 
 agent or attorney, to the effect, that he believes it 
 to be true. 
 
 This notice does not operate as a stay of the plain- 
 tiff's proceedings, and care should be taken that 
 the time to answer does not expire. If it is likely 
 to, and the defendant desires to obtain a copy of 
 the account before answering, he must get the time 
 extended. The time may be extended by a judge 
 of the court or by a county judge. 
 
 Consequences of not furnishing copy account^ — If the 
 plaintiff, after having received the notice demand- 
 ing a copy of the account, neglect or refuse to fur- 
 nish it to the defendant, within the time limited, 
 he is precluded from giving evidence thereof on the 
 trial. He may, however, afterwards obtain leave 
 to furnish it, by motion to the court, upon such 
 terms as shall be just. Code, § 158. 
 
 Further or more particular bill.] — If the copy of the 
 account or bill of particulars, furnished by the 
 plaintiff is incorrect or insufficient, as being too 
 general or otherwise, the defendant may apply to 
 the court or to a judge thereof or to a county judge, 
 for an order to compel the plaintiff to furnish a fur- 
 ther or more particular bill ; and the plaintiff is
 
 132 STRIKING OUT IRRELEVANT MATTER. 
 
 obliged to furnish it in pursuance of the order, or 
 be precluded from giving evidence upon the triaL 
 And so, if a second or third insufficient bill is fur- 
 nished. Code, § 158. 
 
 It would seem, that if a second or third insuffi- 
 cient bill is furnished, the defendant may apply to 
 the court in which the action is pending, at a spe- 
 cial term thereof, for an order precluding the plain- 
 tiff from giving evidence of his account on the trial. 
 For this purpose, an affidavit must be made of the 
 fact of the non-ccmpliance of the plaintiff with the 
 order to furnish a further or more particular bill, 
 and a copy, with a notice of the motion must be 
 served upon the plaintiff's attorney. 
 
 If the court is satisfied, that the plaintiff has 
 failed to comply with the order, and no reason- 
 able excuse is furnished therefor, order will be 
 made that the plaintiff be precluded from giving 
 any evidence of his account, on the trial of the 
 action. A copy of this order must be served upon 
 the plaintiff's attorney, and upon the production on 
 the trial, of the original order, and proof of its ser- 
 vice, the plaintiff will not be permitted to prove his 
 account. 
 
 Motion to strike out irrelevant matter. 1 — Before ans- 
 wering or demurring, the defendant's attorney 
 should see, if the complaint contains any irrelevant 
 or redundant matter, to the end that he may pro- 
 cure it to be stricken out. This is done by a special 
 motion to the court upon notice to the plaintiff's 
 attorney. It is now provided by rule that a motion 
 to strike out redundant or irrelevant matter in a 
 pl'iading must be made before the answer or demur-
 
 STRIKING OUT IRRELEVANT MATTER. 133 
 
 rer is put in and within twenty days after service of 
 the pleading containing the irrelevant or redun- 
 dant matter; and it cannot be made afterwards. 
 Rule 43.
 
 CHAPTER III. 
 
 OF THE DEMURRER TO THE COMPLAINT, AND' 
 HEREIN OF FRIVOLOUS DEMURRERS. 
 
 In determining npon the mode of defence to the 
 action, the defendant's attorney must first consider 
 whether npon the face of the complaint, assuming 
 the facts as stated to be true, there is sufficient in 
 law, for the plaintiff to obtain the redness or relief 
 he seeks. For, if there be some defect in substance 
 falling within any of the particulars hereafter stated', 
 the defendant is entitled to demur to the complaint. 
 
 A demurrer is defined lo be a declaration on the 
 part of the one demurring that he will *' go no fur- 
 ther," because the other has not shewn sufficient 
 matter against him, to call upon him to answer. 
 
 Formerly, there were two kinds of demurrer, gene- 
 ral and special, and they might be made to defects 
 either in substance or form. But of late, general de- 
 murrers have been discountenanced by the courts, 
 and defects in substance, only, in general, have been 
 allowed as grounds of demurrer. So that if the 
 party demurring succeeded upon general demurrer, 
 he could recover no costs, and the other party might 
 amend as of course. 
 
 By the provisions of the Code, general demurrers, 
 are prohibited, and now the only ones allowed must 
 be special.
 
 DEMURRER TO THE COMPLAINT. 135 
 
 The distinction between a general and special 
 demurrer, was this, that the former objected to the 
 pleading generally, as not being sufficient in law for 
 the plaintiff to have or maintain his action, without 
 specifying any particular defect ; the latter, pointed 
 out, the objection particularly, so that the plaintiff 
 was apprised of the defect. 
 
 All demurrers being now made special by law, 
 great care should be observed, that the grounds of 
 objection are distinctly stated; for the complaint 
 will not be adjudged bad, for any other causes than 
 those stated in the demurrer. 
 
 Formerly, there was a large number of grounds of 
 objection to a pleading which might be taken ad- 
 vantage of by demurrer. Thus, a misjoinder of 
 counts, or in assigning several breaches, some of 
 which were good and others bad, and the like, were 
 causes of demurrer. 
 
 Now however, the grounds of objection are re- 
 duced to six, and unless the defect or objection is 
 embraced within one of these the defendant cannot 
 demur. 
 
 They are as follows: Code, § 144. 
 
 1. That the court has no jurisdiction of the per- 
 son of the defendant, or the subject of the action : 
 
 2. That the plaintiff has not 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 de- 
 fendant : 
 
 5. That several causes of action have been im- 
 properly united: 
 
 6. That the complaint does not state facts suffi- 
 cient to constitute a cause of action.
 
 136 GROUNDS OF DEMURRER. 
 
 With the exception of the ^r^^ and .s/jrifA grounds of 
 demurrer, the defendant waives all objection or right 
 to object, if he does not demur, and therefore the 
 only way of taking advantage is by demurrer. 
 
 SECTION I. 
 
 Of the Grounds of Demurrer. 
 
 Want of jurisdiction.] — The objection of want of ju- 
 risdiction of the court over the person of the defend- 
 ant, or the subject of the action, must be apparent 
 upon the face of the complaint, otherwise the de- 
 fendant must set it up in his answer; he cannot de- 
 mur. 
 
 A brief statement of some of the cases and persons 
 over which the Supreme Court cannot exercise ju- 
 risdiction, will suffice to inform the reader and put 
 him upon the track, to investigate farther. 
 
 The State courts can exercise no control over the 
 federal courts ; that is, the courts of the United States. 
 Neither the State Legislatures, or their courts have 
 the power to annul the judgments or determine the 
 extent of the jurisdiction of the courts of the Un- 
 ion. This was attempted by the Legislature of Penn- 
 sylvania, and was declared to be inoperative and 
 void by the Supreme Court of the United States in 
 the case of the United States vs. Peters, 5 Cranch R. 115. 
 Nor can a state court enjoin a judgment of the Cir- 
 cuit Court of the United States, or stay proceedings 
 under it. McKein vs. Voorhies, 7 Cranch, 279. A state 
 court cannot interfere with seizures of property made 
 by revenue officers, under the laws of the United 
 States, or interrupt, by process of replevin, injunc-
 
 GROUNDS OF DEMURRER. 137 
 
 tion or otherwise, the exercise of the authority of 
 the federal officers. Slocumb v. Mahcrry, 2 Uhcaton, 1. 
 The official conduct of an officer of the governtnent 
 of the United States, can only be controlled by the 
 power that created him. 
 
 And hence the State courts have no jurisdiction 
 over acts done by him in his official capacity. Mc- 
 Chmijv. Silliman, 6 Wheat on^ 598. 
 
 Want of legal capacity to sue?^ — k feme covert has not 
 in general legal capacity to sue; she must join her 
 husband, except when the action respects her sepa- 
 rate property, or the suit is against her husband. 
 So an infant must sue by guardian ; a mere agent or 
 servant cannot in general sue, nor the committee of 
 a lunatic or habitual drunkard. If in these and sim- 
 ilar cases, the legal incapacity to sue in the partic- 
 ular Liction, appears from the complaint, the defend- 
 ant may for this cause demur. 
 
 Another action pending.]— It is scarcely probable that 
 this ground of demurrer will ever appear upon the 
 face of the complaint, and if the defence is, the pen- 
 dency of another action for the same cause, the de- 
 fendant will ordinarily have to assert it in his an- 
 swer. If, however, it does appear from the com- 
 plaint, the defendant may demur. The action al- 
 ready pending must in general be, between the same 
 parties, and for the very same and identical cause. 
 There are, however, exceptions to this rule, as where 
 separate actions for the same single act of trespass, 
 are brought against several defendants, the one last 
 served may avail himself of the pendency of the ac- 
 tion against the first. 1 Camph. 60 ,61. So a recovery 
 against one of several parties to a joint tort, frequent-
 
 138 GROUNDS OF DEMURRER. 
 
 ly precludes the plaintiff from proceeding against 
 any other party not included in the action. Warren 
 V. Bailei,', 4 Taunt. 87, 88. 
 
 Defect of parties.] — It not unfrequently happens, 
 that there is a defect of parties, plaintiff or defend- 
 ant, apparent upon the face of the complaint. This 
 defect may appear in a variety of ways. As, that 
 the plaintiff has joined some one with him, as a 
 co-plaintiff, who ought not to have been; or that he 
 has omitted to join another with him as plaintiff, 
 who ought to be joined ; or that there are too many 
 or too few defendants. In such cases, the com- 
 plaint is demurrable. As to the non-joinder or mis- 
 joinder of parties, see ante p 14 and 19. 
 
 Misjoinder of actions.] — We have before seen the dif- 
 ferent causes of action that may and may not be join- 
 ed, {ante p .45.) If the complaint shews that several 
 causes of action have been improperly united, as a 
 claim to recover real property and a claim to recover 
 personal property; for injuries to the person and in- 
 juries to the property, and the like, the defendant 
 may demur. 
 
 Insufficient cause of action.] — The most common 
 ground of demurrer, is that the complaint does not 
 state facts sufficient to constitute a cause of action. 
 In other words, that admitting all to be true as stated 
 by the plaintiff in his complaint, he is not entitled 
 to the relief or redress he demands. In stating the 
 facts which constitute the cause of action, enough 
 must appear, from which the court can determine, 
 whether, supposing them to be true, the plaintiff 
 ought to recover. As, in an action by the endorsee 
 of a promisory note against the maker, the plaintiff
 
 DRAWING AND SERVING THE DEMURRER. 139 
 
 must shew title in himself, either by averring the 
 endorsement, or that he is the lawful holder and 
 owner of the note. So, where presentment to the 
 maker and notice to the endorser is necessary to 
 charge the endorser, it must be alleged in the com- 
 plaint, in a suit against the endorser. If it therefore 
 appear upon the face of the complaint, that there is 
 not a good cause of action, the defendant may de- 
 mur. By omitting to do so, he does not lose the right 
 to raise the objection afterwards on the trial or ap- 
 peal, notwithstanding he may have answered the 
 complaint. Code, § 148. 
 
 SECTION II. 
 
 Of Drawing and Serving the Demurrer. 
 
 Having determined upon the ground of demur- 
 rer, the next step is to draw the demurrer. 
 
 Drawing demurrer.] — As all demurrers are required 
 to be special, it is necessary that the grounds of ob- 
 jection should be distinctly specified: {Code § 145,) 
 as where, upon the face of the complaint it appears, 
 there is a misjoinder of plaintiffs, the demurrer 
 must state in what the misjoinder consists; as that 
 A. B. who is named as one of the plaintiffs, has 
 no interest in the action, or should sue alone. Or 
 where several causes of action are improperly uni- 
 ted,, the demurrer must state the iiiisjoinder; as, 
 that one of the causes of action is upon a contract, 
 and another for injuries to the person; or, where 
 the facts set forth in the complaint do not consti- 
 tute a cause of action, the demurrer must state 
 what facts are lacking, as that no title is shown in
 
 140 DRAWING AND SERVING THE DEMURRER. 
 
 the plaintiff to the promissory note; or, that the 
 note has been presented for payment and notice of 
 the non-payment given; or that the note is not due; 
 or that there has been no breach of the contract ; 
 or that the plaintiff has not performed a condition 
 precedent ; or that there was no consideration. 
 
 It is not enough that the demurrer states gene- 
 rally " that there is a defect of parties," or that 
 ''several causes of action have been improperly 
 united," or " that the complaint does not state facts 
 sufficient to constitute a cause of action ;" (a) but 
 
 (a) See contra, Sicift and another v. De Witt. 1 Code Rep. 25» This case de- 
 cides, that to state in a demurrer "that the complaint does not state facts suf- 
 ficient to constitute a cause of action, is a sufficient specification of the 
 grounds of objection." From the correctness of this decision, we with defer- 
 ence must dissent. The best test of the sufficiency of a demurrer, is to recur 
 to the old practice. A general demurrer alleged ♦< that the declaration and the 
 matters therein contained, in manner and form as therein stated, are not sufl5- 
 cient in law for the plaintiff to have or maintain his action against the defend- 
 ant." That was a ground of demurrer, and it was sufficient in a general de- 
 murrer. But this cl 'ss of demurrers had almost gone out of practice, for the 
 court had required by rule, (Supreme Co-art rule 82) that the demurrer should 
 " hriejhj but plainly specify the objections," and if the pleading was adjudged bad 
 for any cause not so specified, no costs could be recovered, and the pleading 
 might be amended of course. The object of requiring the demurrer to be 
 special, was to pint out to the adverse party the particular defect or objection, 
 to prevent a surprise and enable him to amend. Formerly, a defect in form 
 was ground of demurrer ; now, it must be a defect in substance only. The policy 
 of the Code is to remove all technical obstructions in the path of justice, and 
 dispose of cases upon their merits alone; hence large powers are given to the 
 courts to allow amendments, and disregard defects in pleadings. And in view of 
 this, it requires demurrers to be special., and a general demurrer is not allowed 
 in any case. Now, the language of the sixth ground of objection, is nothing 
 more than what was contained in a general demurrer, and it can scarcely be 
 said that, to merely transcribe the words, is so distinctly specifying the grounds 
 of objection, as is required by the spirit of the Code and the intention of the 
 Legislature. The same intention is manifest in requiring the anstrer of the 
 defendant to state any new matter constituting a defence, and a general or spe- 
 cijic denial of such parts of the complaint as are controverted. It cannot be 
 pretended that an answer of the " general issue " would be such a general or 
 specific denial. The Code has annexed a penalty, to such demurrers as do not 
 distinctly specify the objections, and they may be disregarded, and it was clearly 
 the intention of the Legislature, to require demurrers to be so distinct and spe^ 
 cial that the adverse party might know what the objection was ; and who could 
 tell from such a general objection, what the particular gouad is.
 
 DRAWING AND SERVING THE DEMURRER. 141 
 
 it must state wherein the defect consists, otherwise 
 it would be a general, not a special demurrer. 
 
 If the demurrer do not distinctly specify the 
 grounds of objection, it may be disregarded, in which 
 case the plaintiff proceeds to enter judgment in the 
 same manner as if no answer was put in. 
 
 The defendant is not obliged to demur to the 
 whole complaint; he may demur to any one or 
 more of the alleged causes of action, stated there- 
 in. As where two causes of action are united in 
 the same comp:aint, one of which is sufficiently 
 stated, and the other not, the defendant may de- 
 mur as to one, and answer as to the other. Code, 
 §151. 
 
 Demurrers need not be verified in any case. 
 
 If the demurrer exceeds two folio in length, it is 
 the duty of the attorney, to distinctly number and 
 mark each folio on the margin thereof, and all co- 
 pies either for the parties or court, must be nuixi- 
 bered or marked in the margin, so as to conform to 
 the oriirinal draft. Rule 43. 
 
 Filing and serving deinurrer.] — The demurrer should 
 be filed with the clerk of the county where the ac- 
 tion is to be tried, ft is not absolutely necessary 
 to file the demurrer, but it mny be compelled in the 
 same manner that the complaint may be. S e ante 
 
 It is admitted, in the opinion of the learned judge, tliat to state that the par- 
 ty demurs for a defect of partien, would be insufficient, and yet we can per- 
 ceive no difiference between that and any other ground of objection permitted 
 by the Code; and if insufficient in one case it must be in all. There are six 
 causes of demurier allowed; they are distinctly and clearly ^defined; there 
 can be no difficulty in understanding them, and yet the Legislature say in the 
 next section, that the grounds of objection shall be distinctly specified. What 
 can this mean except that the demurrer must state v'herein the pleading is de- 
 fective. This point was raised before Mr. Justice Watson, at the Columbia 
 special term, who held that a demurrer of this kind was insufficient. The 
 case is not reported. But see Grant v. Lasher^ 2 Code Rep, 2.
 
 142 AMENDING COMPLAINT AFTER DEMURRER. 
 
 p. 109. A copy of the demurrer must be served upon 
 the plaintiff's attorney within twenty days from the 
 service of the complaint upon the defendant, unless 
 the time has been extended. 
 
 Enlarging time to demur.] — If the time allowed, (i. 
 e. the twenty days,) is not sufficient for the defend- 
 ant's attorney to prepare and serve the demurrer, he 
 should apply to a judge of the court in which the 
 action is pending, or to a county judge, and obtain 
 an order enlarging the time. {Cade, ^ 405.) For this 
 purpose an affidavit must be prepared stating the 
 reasons for requiring more time, and a copy thereof 
 must be served, with a copy of the order upon the 
 plaintiff's attorney. The original affidavit may be 
 served, or a copy, at the option of the defendant's 
 attorney. The plaintiff may disregard the order, if 
 the affidavit or a copy thereof, is not served with 
 the copy order. 
 
 Amending complaint after demurrer.] — If the plain- 
 tiff's attorney conceives that the demurrer is well 
 taken ; that is, that his complaint is defective, he 
 may amend it of course, without costs, within 
 twenty days after receipt of the demurrer. A copy 
 of the amended complaint must be served upon the 
 defendant or upon his attorney. It is not necessary 
 to serve a new summons. The defendant has twen- 
 ty days from the receipt of the amended complaint, 
 to demur to it again or to answer it, as the case may 
 be: and if he fails to do so, the i^laintiff upon filing 
 with the clerk of the cc unty in which the action is 
 pending, an all" davit of the service, and that no an- 
 swer or demurrer has been received, may obtain 
 judgment in the same manner, as is provided in
 
 FRIVOLOUS DEMURRER. l43 
 
 cases of judgment for want of an answer. See ante 
 p. 120. If however it is necessary to make a special 
 application to the court, before judgment can be en- 
 tered, as it is in all cases, except actions arising on 
 contract for the payment of money only, the plain- 
 tiff must serve upon the defendant a written notice, 
 of at least eight days, specifying the time and place 
 where he will apply for judgment. For form of no- 
 tice, see Appendix. 
 
 Frivolous demurrer] — If the demurrer served by the 
 defendant is clearly without foundation and inter- 
 posed merely for delay, the plaintiff rnay apply to a 
 judge of the court, for judgment on account of the 
 frivolousness of {he denmrrer. {Code, § 247.) This ap- 
 plication may be made to the judge in or out of 
 court, but it cannot be made to a county judge. 
 
 A notice of the motion must be served upon the 
 defendant's attorney, at least five days, before the 
 time specified for making the motion, stating the 
 time and place where, and the name of the judge be- 
 fore whom the motion will be made, and the grounds 
 for moving. (For form of notice, see Appendix.) The 
 motion is founded upon the complaint and demur- 
 rer. No other papers are necessary 
 
 At the time and place mentioned in the notice, the 
 plaintiff's attorney or counsel must attend and 
 make the motion. If no opposition is made ; or, if 
 the defendant's attorney do not appear, and proof of 
 the service of the notice is furnished ; or, if the 
 judge is satisfied that the demurrer is frivolous, he 
 will make an order overruling the demurrer, and 
 directing judgment to be entered for the plaintiff. 
 
 The plaintiff then enters judgment in the same 
 manner as on a failure to answer. See ante p. 120.
 
 CHAPTER IV. 
 
 OF THE ANSWER OF THE DEFENDANT AND THE 
 REPLY OF THE PLAINTIFF. 
 
 The attorney for the defendant having determined 
 not to demur to the coir.plaint, or the complaint 
 having been amended, or the demurrer having been 
 overruled, the next step for the defendant, is to con- 
 clude upon the answer to be put in. 
 
 In abolishing the forms of pleading, the different 
 kinds of pleas, as heretofore denominated, are in 
 like manner abolished, and instead of the general 
 issue and notice, or general issue and special pleas, 
 but one plea is allowed and that is called a n answer. 
 
 The student, by recurring to the late practice of 
 the Suprem.e Court, wi'l observe that very great dif- 
 ficulties existed in determining what could and what 
 could not be given in evidence under the general 
 issue, either with or without a notice, and what 
 matters had to be specially pleaded. And hence, 
 special pleading had become, from the difficulties, 
 with which it was surrounded, one of the most in- 
 tricate and important branches of legal study. Thus 
 in the action of assumpsit, under the plea of non- 
 assumpsit, which was the general issue, most matters 
 of defence, existing at the time of the formiition of 
 the contract, or subsequently arising, and which 
 shew it to have been originally void, or to have been 
 afterwards avoided or discharged; as the statute of
 
 ANSWER AND ITS INCIDENTS. 145 
 
 gaming, usury, infancy, release, payment, failure 
 of consideration and the like, could be given in evi- 
 dence under this plea, while the statute of limita- 
 tions and tender, had to be specially pleaded. 
 
 But in the Court of Chancery, different rules pre- 
 vailed, and none of the distinctions which existed 
 in courts of law, could arise to embarrass the plead- 
 er. As the billy in the former court, was required to 
 state the grounds for the relief sought and the facts 
 and circumstances constituting the equitable cause 
 of action, so the answer was required to deny or tra- 
 verse these facts, or admitting them, set up some 
 new matter of defence. 
 
 In analogy to this pleading in the old Court of 
 Chancery, the Code has required the defendant to 
 answer the compl.dnt. 
 
 SECTION I. 
 
 Of the Answer and its Incidents. 
 
 The object of the answer, is two fold. First, to 
 controvert the case stated by the plaintiff in his com- 
 plaint, and second, to set up any new matter of de- 
 fence, upon which the defendant may rely. 
 
 Thus the defendant may deny all or any of the 
 facts stated in the complaint : cr he may confess or 
 admit them to be true and avoid them by some new 
 matter constituting a defence. 
 
 What to contain.'] — The answer must contain a gen- 
 eral or specific denial of each allegation in the com- 
 plaint, controverted by the defendant, or a denial 
 thereof according to his information and belief, or 
 
 10
 
 146 ANSWER AND ITS INCIDENTS. 
 
 of any knowledge thereof sufficient to forma belief. 
 Code, § 149, fuh. 1. 
 
 If the defendant intends to deny the facts stated 
 in the complaint, and rest his defence upon his abil- 
 ity to disprove them, or upon the inability of the 
 plaintiff to prove them as alleged, he must do so dis- 
 tinctly ; and the denicil must refer directly to the 
 allegation intended to be controverted. As, that he 
 did not make the promissory note mentioned in the 
 complaint, or that he is not guilty of the injury to 
 the person or the property stated in the complaint, 
 or that the plaintiff is not seized of the real property, 
 and the like. 
 
 Or where the facts stated in the complaint are not 
 within the personal knowledge of the defendant, he 
 may deny that they are true, according to his infor- 
 mation and belief. 
 
 Another mode of avoiding the consequence^ of an 
 admission of the truth of the facts alleged in the 
 complaint, where the defendant is ignorant of the 
 truth thereof, is to aver that he has not sufficient 
 knowledge of such facts to form a belief 
 
 In each of these cases, the onus prohandi is cast up- 
 on the plaintiff of sustaining his allegations by proof. 
 And in the case of a general or specific denial, or a 
 denial upon information and belief, the defendant 
 may disprove the facts, and show, in opposition to 
 the plaintiff's evidence, that they did not exist. But 
 an averment simply that the defendant has not suf- 
 ficient knowledge of the facts to form a belief, with- 
 out a denial of their existence, leaves the proof 
 wholly with the plaintiff, and the defendant cannot 
 introduce evidence on the trial to disprove them. 
 
 Thus, if the defendant denies expressly, or upon
 
 ANSWER AND ITS INCIDENTS. 147 
 
 information and belief that he committed the injury 
 complained of; or that the plaintiff is the owner or 
 seized of the land, although the harden is thrown 
 upon the plaintiff to make out his case by proof, yet 
 the defendant may introduce evidence to show that 
 he did not commit the injury, or that the plaintiff is 
 not seized of the land. But if the defendant alleges 
 that he has not sullicient knowledge whether the 
 plaintiff is seized, to form a belief, he leaves the 
 case with the plaintiff to show his seizin, and is es- 
 topped from examining witnesses on his side to dis- 
 prove it. 
 
 As we have seen, the defendant may admit and 
 avoid any of the facts stated in the complaint. The 
 avoidance consists in setting up some new matter, 
 not contained in the complaint, and which consti- 
 tutes a defence to the action. Thus, the defendant 
 may admit that he made the note, but aver that he 
 has paid it, or that it is usurious, or that he was an 
 infant, or that the cause of the plaintiff 's action has 
 not accrued within six years next before the com- 
 mencement of the suit, or any other matter, not sta- 
 ted in the complaint, which goes to show that the 
 plaintiff ought not to sustain the action. 
 
 In stating the new matter in an answer, it must 
 be done in ordinary language; that is, without any 
 particular form, without repetition, and in such a 
 manner as to enable a person of common under- 
 standing to know what is intended. Code § 149 suh 2. 
 
 The defendant is not restricted to one defence 
 only, but may set up as many in his answer as he 
 has. In doing so, however, they must be separately 
 stated, and must refer to the causes of action, which
 
 148 ANSWER AND ITS INCIDENTS. 
 
 they are intended to answer, in such a manner, that 
 they may be intelligibly distinguished. Code § 150. 
 
 The same rules which govern the complaint as to 
 the manner of stating the cause of action, apply to 
 the mode of stating the defence, and it is sufficient 
 to refer to that subject, ante j). 99. 
 
 In an action against the endorser of a promissory 
 note, an answer, that as to the presentment and 
 non-payment of the note, the defendant had not 
 sufficient knowledge to form a belief, was held suf- 
 ficient to raise an issue as to the presentment of the 
 note. Dickinson v. Kimball, 1. Code Rep. 49. But an 
 answer, to a complaint upon a promissory note, 
 " that the defendant is not indebted in manner and 
 form, as in the complaint is alleged," was held ta 
 be insufficient, as being a conclusion of law upon 
 the facts alleged in the complaint, and not a state- 
 ment of a new fact. It is simply the old plea of nil 
 debit, and takes no issue upon anything stated in the 
 complaint. Pierson et al, v. Cooley et al., 1 Code Rep. 91. 
 Beers Sf Clark v. Squire et al., ibid. 84. 
 
 As we have seen, {anfe 141,) the defendant may de- 
 mur to part of the complaint, an J answer another 
 part. 
 
 It is necessary that the answer should controvert 
 every material allegation in the complaint, that it is 
 intended to controvert, fur if it do not, such alle- 
 gations will be trken as true, and the defendant will 
 not be permitted to disprove them on the trial. But 
 by answering them, he is not concluded from insist- 
 ing on the trial that the facts stated in the com- 
 plaint are not sufficient to constitute a cause of 
 action. Code, § 148.
 
 ANSWER AND ITS INCIDENTS. 149 
 
 If the action be upon a contract, the defenda it, 
 when he serves his answer upon the pUiintifF, may 
 also give a written notice to the plaintiff, containing 
 an offer, that if the defendant fail in his defence to 
 the action, the damages which the plaintiff may be 
 entitled to recover, may be assessed at a sum to 
 be specified in the notice. The plaintiff, having re- 
 ceived the notice, may, when he notices the cause 
 for trial, or at anytime before, give notice in writing 
 to the defendant's attorney, that he accepts the 
 offer. In case the verdict upon the trial be for 
 the plaintiff, and he shall have accepted the offer, 
 the damages shall be assessed at the sum specified 
 in the offer of the defendant. Code, § 383. 
 
 If the plaintiff does not accept the offer, by giv- 
 ing notice of his acceptance, as above stated, he 
 must prove his damages on the trial, in the same 
 manner as if the offer had not been made, and the 
 plaintiff cannot give the offer in evidence. Bat he 
 is not restricted in his recovery to the amount speci- 
 fied in the offer-, he may receive a larger sum, in 
 which case he will be entitled to recover the costs 
 of the action. If, however, his recovery do not ex- 
 ceed the amount specified in the offer of the de- 
 fendant, the defendant will recover the expenses in- 
 curred by him in consequence of any necessary pre- 
 paration for, or in making a defence in respect to 
 the question of damages. In such a case, the ex- 
 penses, to which the defendant is entitled, must be 
 ascertained at the trial. 
 
 Verifying answer.'] — If the complaint is verified, then 
 it is necessary to verify the answer; otherwise net, 
 The mode of verifying the answer, when necessary, 
 is the same as the manner of verifying the com-
 
 150 ANSWER AND ITS INCIDENTS. 
 
 plaint — as to which, see ante p. 106. The defendant 
 may verify his answer, notwithstanding the com- 
 plaint is not, and the effect of it will be, not to 
 make it evidence, but to compel the plaintiff to 
 verify his reply, if one is put in. 
 
 Sham answers. '\ — If the answer served by the de- 
 fendant be clearly frivolous, that is, raising no issue 
 oilaw or o^ fact, and be put in merely for delay, the 
 proper course is to make a motion to the court in which 
 the action is pending, to have it stricken out. Codey 
 §§ 152, 247. 
 
 It must be a plain case of a sham or a frivolous 
 answer, or the court will refuse to strike it out, 
 leaving the plaintifl to demur. Code, § 152. 
 
 An affidavit must be made of the receipt of the an- 
 swer, and a copy, with notice of the motion, must 
 be served upon the defendant's attorney, at least ^lye 
 days before the time specified for making the motion, 
 stating in the notice, the time and place, and court 
 before whom the motion will be made. Code § 247. 
 
 This motion may be made to the court in which 
 the action is pending at any of its special terms, as 
 in case of other motions, or may be made before a 
 jud:;e at chambers. 
 
 If the court or officer is satisfied that the answer 
 is a sham one, he will make an order striking it out, 
 and the plaintiff may enter judgment in the action, 
 as upon fiiilure to answer. 
 
 If the answer contains more X\\m\two folios, the 
 defendant's attorney must distinctly number and 
 mark each folio in the margin thereof, and all copies, 
 either for the parties or the court, must be number- 
 ed or marked in the margin, so as to conform to the 
 original draft. Rule 44. '
 
 ANSWER AND ITS INCIDENTS. 151 
 
 Irrelevant and redundant matter in an answer.] — If the 
 answer contain matter redundant or irrelevant to the 
 issue intended to be raised by the complaint, the 
 plaintiff may apply to the court, to have it stricken 
 out. The motion for this purpose must be made like 
 the motion to strike out a sham or frivolous answer, 
 {Code 160,) and must be made within twenty days 
 after the service of the answer. Rule 43. 
 
 In cases of sham answers, it seems that the plain- 
 tiff does not, b}'- replying, lose the right to move af- 
 terward, to have it stricken out. Stokes v. Hager, 1 
 Code Rep. 84. 
 
 So, if the allegations in the answer of new mat- 
 ter, are so indefinite or uncertain that the precise na- 
 ture of the defence is not apparent, the court, upon 
 the motion of the plaintiff, which is conducted like 
 other special motions, may require the ansv/er to be 
 made definite and certain by amendment. Code 160. 
 But this motion must be made within twenty days 
 after the answer is served. Rule 43. 
 
 Filing and serving answer.] — The answer having 
 been drawn and verified, when a verification of it is 
 proper or necessary, it should be filed in the office of 
 the clerk where the action is p nding, although, it 
 is not alsolutely necessary to file it in the first in- 
 stance. If the filing is omitted, it may be compel- 
 led by the plaintiff, in the same manner that the fi- 
 ling of the complaint may be enforced, as to which 
 see ante p. 109. A copy of the answer must then be 
 served upon the plaintiff's attorney, within twenty 
 days from the service of the summons and complaint, 
 unless the time has been enlarged. 
 
 Enlarging time to answer.] — If the time allowed, (i. e.. 
 the twenty days) is not sufficient for the defendant's
 
 152 ANSWER AND ITS INCIDENTS. 
 
 attorney to prepare and serve the answer, he should 
 apply to a judge of the court in which the action is 
 pending, or to a county judge, and obtain an order 
 enlarging the time. Code § 405. For this purpose 
 an affidavit must be prepared, stating the reasons for 
 requiring more time, Tate the affidavit to the judge 
 and get the order, serve the original affidavit or a 
 copy of it, with a copy of the order upon the plain- 
 tiff's attorney. The plaintiff's attorney, may disre- 
 gard the order if the original or a copy of the affida- 
 vit is not served. 
 
 Answering the amended complaint^ — As we have seen 
 {ante p. 108) the plaintiff, if he conceives it necessary, 
 may, after he receives the answer, amend his com- 
 plaint. If he do so, a copy of the amended answer 
 is served upon the defendant's attorney. The de- 
 fendant must then put in a demurrer or answer, in 
 the same manner that he would to the original 
 complaint, and it must be served within the same 
 time that is allowed to answer or demur to the first 
 complaint. 
 
 Demurrer to answer^ — The plaintiff's attorney hav- 
 ing received the answer of the defendant, he should 
 first examine it to see if the defence set up, is a 
 valid one in law, and whether the facts stated are 
 sufficient to sustain the defence, supposing them to 
 be true. Thus, if in an action by the endorsee of a 
 negotiable bill of exchange or promissory note, 
 agrainst the drawer or maker, the defendant should 
 set up that he had a set-off to the amount of the 
 bill or note against the payee, without averring that 
 the bill or note was transferred to the plaintiff after 
 maturity, that would be an invalid defence. 
 
 In cases o^ insufficiency of the defence as stated in
 
 THE REPLY AND ITS INCIDENTS. 153 
 
 the answer, the plaintiff may demur, but he cannot 
 demur for any other reason. Code, § 153. 
 
 The grounds of the demurrer must be distinctly 
 stated, with as much precision and clearness, as is 
 required in demurrers to a complaint. 
 
 The plaintiff may demur to part of the defences, 
 where there are several set up in the answer and 
 reply to the residue. 
 
 The plaintiff is obliged to demur to the answer if 
 he wishes to object to it as being insufficient, for by 
 not demurring he waives the right to object to the 
 insufficiency of the defence set up, on the trial of 
 the cause, as an issue of law can only be raised 
 upon a demurrer. Code, § 249, sub. 1. 
 
 SECTION II. 
 
 Of the Eeply, axd its Incidents. 
 
 If the plaintiff concludes not to demur to the new 
 matter set up in the answer, or to only one of the 
 defences, and he is not willing to admit that the 
 facts stated are tru/e, he must reply. 
 
 To what the plaintiff may reply] — If the answer con- 
 tain new matter, that is, matter not contained in 
 the complaint, and which if true would constitute 
 a good defence to the action, the plaintiff must re- 
 ply to it. Thus, if in an action of trespass for taking 
 personal property, the defendant should answer that 
 it was taken by virtue of a chattel mortgage given 
 by the plaintiff to the defendant, the plaintiff would 
 be bound to reply, either denying the fact of the 
 existence of the mortgage or averring something by 
 way of avoidance of it ; as, that it had been paid :
 
 154 VERIFYING REPLY. 
 
 or, if in an action to recover real propert)^ as the 
 heir at law, the defendant should claim in his ans- 
 wer that the ancestor left a will, and he holds by 
 virtue of a devise to him in the will, the plaintiflf 
 must reply, for this would be new matter; so, in an 
 action upon a promissory note, the defendant sets 
 up payment; or, infancy; or, usury; or, the statute 
 of limitations, the plaintiff must reply. But if the 
 answer simply negatives the allegations contained in 
 the complaint; that is, denies them, then no reply 
 is necessary. As where the answer alleges that the 
 defendant did not make the note, or did not commit 
 the trespass, or did not publish the libel, mentioned 
 in the complaint. In these, and similar cases, an 
 issue is formed and no reply is necessary. 
 
 Verifying reply.] — The same rules prevail in regard 
 to verifying the reply, that exist in regard to the 
 answer. If the preceding pleading is verified, then 
 it becomes necessary to verify the reply. This is 
 done in the same manner that the complaint is 
 verified, as to which see ante p. 106. 
 
 The plain' iff may verify the reply, notwithstand- 
 ing the preceding pleading is not, but as the reply 
 is the last pleading of fact that is allowed in an 
 action, nothing would be gained by verifying it, in 
 cases where it is not rendered necessary by the pre- 
 ceding pleadings. 
 
 Irrelevant and redundant matter in a reply.] — The 
 same rules exist in regard to irrelevant and redun- 
 dant matter in a reply, that prevail in regard to an- 
 swers. 
 
 The plaintiff in his reply, must negative the al- 
 legations of new matter contained in the answer.
 
 ENLARGING TIME TO REPLY. 155 
 
 He must deny generally or particularly each alle- 
 gation intended to be controverted by him : or 
 aver that he has not sufficient knowledge or informa- 
 tion thereof to form a belief; or, he may admit the 
 truth of the allegations and allege any new matter 
 in avoidance of them. But the allegation of new 
 matter must not be inconsistent with the complaint. 
 In alleging new matter, in avoidance of the an- 
 swer or of any defence set up therein, it must be 
 done in the same manner as is required in respect 
 to stating the cause of action in the complaint or 
 the defence in an answer, that is, it must be stated 
 "in ordinary and concise language, without repeti- 
 tion, and in such a manner as to enable a person of 
 common understanding to know what it intended." 
 Code, §153. 
 
 If, however, the reply contain any irrelevant or 
 redundant matter, the defendant may apply to the 
 court or a judge thereof, by motion, upon notice to 
 the plaintiff, to have such matter stricken out of 
 the reply ; or if the allegations are indistinct and 
 uncertain, he may in like manner apply to have 
 them made distinct and certain, or if they be in- 
 sufficient in law to avoid the defence, the defendant 
 may demur. 
 
 The motion above mentioned is conducted like 
 other special motions, but must be made within 
 twenty days from the time of its service. Rule 43. 
 Enlarging time to reply.'] — As the reply must be 
 served within twenty days from the time the an- 
 swer is received, the plaintiff,' if there be not time 
 to do so, may get the time extended in like man- 
 ner as the time to answer may be, as to which see 
 ante p. 151.
 
 156 EFFECT OF REPLY. 
 
 If the reply contains more than two folio, the at* 
 torney must distinctly number and mark each fo- 
 lio in the margin thereof; and all copies either for 
 the parties or the court, must be numbered or mark- 
 ed in the margin, so as to conform to the original 
 draft. Rule 44. 
 
 Filing and serving reply.'] — The reply having been 
 drawn and verified, Avhen a verification of it is pro- 
 per or necessary, it should be filed in the office of 
 the clerk of the county where the action is pend- 
 ing. As, in the case of the complaint and answer, 
 it is not absolutely necessary to file the reply, if 
 omitted the filing may be enforced, in the same 
 way that the filing of the complaint may be en- 
 forced, as to which see ante p. 109. 
 
 Effect of reply.'] — The reply being the last pleading 
 of fact y that is allowed, it is intended that thereby 
 the issue between the plaintiff" and the defendant 
 will be complete. And ordinarily it will be so ; and 
 the issue thus made is to be tried by a jury, or by 
 the court without a jury, or by a reference. But it 
 may be, that the plaintiff", in his reply, has alleged 
 some new fact, not inconsistent with the complaint, 
 in avoidance of one or more of the defences inter- 
 posed by the defendant, and which the defendant 
 wishes to con' rove rt. 
 
 Under the former practice, the pleading did not 
 terminate, until the last pleading took issue with 
 the immediately preceding one, by a simple denial. 
 Hence to the reply there was a rejoirider, to that a 
 rebutter, and to that a surrebutter. But now, in anal- 
 ogy to the practice of the late court of chancery, 
 the pleadings end with the reply, and the defendant
 
 EFFECT OF NOT REPLYING. 157 
 
 cannot controvert, by a pleading, any new matter of 
 fact, set lip in the reply. 
 
 The defendant, however, is not concluded, by 
 any new matter alleged in the reply. But on the 
 trial, he may countervail it by proof, either in direct 
 denial or by way of avoidance. Code, § 168. 
 
 Effect of not rephjing.]—U new matter constituting 
 a defence, be set up in the answer, the plaintiff, if 
 he do not demur to it, must reply; for if he fail to 
 do so, the defendant may apply to the court or to a 
 judge thereof, for such judgment as he may be en- 
 titled to upon the complaint and answer ; for the 
 effect of not replying is to admit the allegations 
 contained in the answer, to be true. Code, § 154. 
 
 For this purpose a notice for the motion must be 
 served upon the plaintiff's attorney at least ten days 
 before the time specified for making the motion, 
 stating the time and place and the name of the 
 court before which the motion will be made. The 
 object of the motion must be stated in the notice, 
 namely, that it is for judgment for the defendant 
 upon the complaint and answer, for want of a re- 
 ply. 
 
 If the court is satisfied that the defendant is en- 
 titled to a judgment, an order may be entered 
 accordingly, and the defendant may enter such 
 judgment as he is entitled to, or if it be necessary, 
 a writ of inquiry of damages may be ordered, and 
 the defendant's damages are assessed by a j^iry as 
 in other cases. 
 
 Replying to amended answer?^ — The defendant after 
 receiving the reply is allowed to amend his answer, 
 (see ante p. 44) which he must do within tAventy 
 days, and serve a copy upon the plaintiff's attorney.
 
 158 DEMURRER TO REPLY. 
 
 If he do so, the plaintiff may demur or answer 
 anew, in the same manner that he could to the first 
 answer. The demurrer or reply must be served 
 within the same time and in the same manner, that 
 is required in the demurrer or reply to the first an- 
 swer. 
 
 Demuirer to reply ^ — The reply of the plaintiff hav- 
 ing been put in, the defendant's attorney should ex- 
 amine it, in order to see if the allegations of new 
 matter contained in it are sufficient in point of law, to 
 enable the plaintiff to sustain his action. For al- 
 though the defendant may not controvert the facts 
 alleged in the reply, hy pleading a fact, yet, if such facts 
 do not in law avoid the defence interposed by the 
 defendant, he may demur. Thus, in an action for 
 the recovery of real property, by the heir at law, 
 claiming it by inheritance, the defendant answers, 
 that the plaintiff's ancestor made a will, by which 
 he devised the premises to the defendant, and the 
 plaintiff replies, admitting that his ancestor made an 
 instrument purporting to be a will, but that such 
 instrument is void, not having the necessary num- 
 ber of attesting witnesses, to wit, only two witnesses. 
 In such a case, it being a question of law merely, 
 the defendant may demur to the reply, by which he 
 admits that the will has but two attesting witnesses, 
 but insisting that two are all the law requires. 
 
 The defendant can only demur to the reply for in 
 sufficiency, {Code, § 153,) and he may demur to a part 
 or the whole of it. He is obliged to demur, if he 
 intends to object to the reply as being insufficient ; 
 for by not demurring, he waives all right to object 
 to the insufficiency of the allegations in the reply, 
 on the trial.
 
 DEMURRER TO REPLY. 159 
 
 The grounds of the demurrer to the reply, like the 
 grounds of demurrer to any other pleading, must, 
 in like manner, be clearly and distinctly specified, 
 and it may be set aside as frivolous, upon motion, 
 as to which see ante p. 143.
 
 CHAPTER V. 
 
 [NGS TO TR] 
 JUDGMENT. 
 
 OF THE PROCEEDINGS TO TRIAL, VERDICT AND 
 
 SECTION II. 
 
 Of the Issue. 
 
 The pleadings in the action having terminated 
 either by a demurrer or by a reply, so tliat there is 
 an issue of law or of fact, or both, to be tried, for 
 the purpose of settling the questions involved in the 
 action, the first step to be taken is to determine the 
 manner in which the issue is to be disposed of 
 
 In order to determine the manner of disposing of 
 the case, it will be necessary to look into the plead- 
 ings to ascertain what the issue is, whether of law 
 or of fact. Issues arise only upon the pleadings ; 
 for as we have before seen, the object of the plead- 
 ings being to bring before the court the precise na- 
 ture of the plaintiff's claim, and of the defendant's 
 defence thereto. 
 
 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- Code, § 248. 
 
 1. Of law; and, 
 
 2. Of fact. 
 
 As the issue of law, if one arises, must ordinarily
 
 THE ISSUE. 161 
 
 be disposed of, before the issue of fact, it will be 
 proper to speak of the former issue first. 
 
 Issues of law.] — An issue of law arises, upon a de- 
 murrer to the complaint, answer or reply, or to some 
 part thereof. There may be a case where issues of 
 law and of fact both arise, as where there is a de- 
 murrer to a part of the complaint, and an answer 
 to the residue. Here the demurrer raises a question 
 or issue of law, and the answer a question or issue 
 of fact. In such a case they cannot be tried at the 
 same time, but the demurrer should be first dis- 
 posed of 
 
 There are other cases, besides demurrers, where 
 issues of law may arise, as where the complaint 
 does not state facts sufficient to constitute a cause of 
 action, or where the court has no jurisdiction of the 
 person of the defendant or the subject of the action; 
 in these cases, as we have seen, the party may de- 
 mur, or he may take advantage of the objection 
 upon the trial. In the latter case it is an issue of 
 law, and is generally tried at the same time with 
 the issue of fact. 
 
 The court has the power to direct the issue of fact 
 to be first disposed of, and in some cases will do so, 
 for the convenience of the parties. Thus the court 
 will direct, in some cases, that the damages in the 
 action be assessed, reserving the question of law to 
 be afterwards determined. Code, § 251. 
 
 Issues of fad.] — Issues of fact arise, whenever a 
 material allegation in the complaint is controverted 
 by the answer, or where new matter, by way of de- 
 fence, is set up in the answer, and controverted by 
 the reply, or where new matter, not inconsistent 
 
 with the complaint, is set up in the reply. If, how- 
 
 11
 
 162 EXAMINATION ON COMMISSION. 
 
 ever, the new matter set np in the reply is demurred 
 to as insufficient, then as to that, an issue of law 
 and not of fact is formed. 
 
 As we have seen, in general, the issue of fact is 
 not to be tried, until after the demurrer or the issue 
 of law is tried. But the court may order them to 
 be tried at the same time. 
 
 SECTION TI. 
 
 Of the Examination of Writings. 
 
 In order to avoid the expense of proving a paper 
 material to the action, it is provided, {Code, § 388,) 
 that either party may exhibit to the other, or to his 
 attorney, at any time before the trial, any paper ma- 
 terial to the action, and request an admission in 
 writing, of its genuineness. If the adverse party, or 
 his attorney, fail to give that 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 prov- 
 ed or admitted on the trial, such expense, to be as- 
 certained at the trial, shall be paid by the party 
 refusing the admission ; unless it appear, to the sat- 
 isfaction of the court, that there were good reasons 
 for the refusal. 
 
 SECTION III. 
 
 Examination of AVitnesses de bene esse and upon 
 Commission, and of Parties, before the Trial. 
 
 Examination on commission.^ — In case a witness, 
 whose testimony may be deemed material, reside
 
 tXAMINATION DE BENE ESSE. 163 
 
 'out of the state, either party desiring to ohtain his 
 testimony, may apply to the court in which the ac- 
 tion is pending, or to a judge thereof, for a commis- 
 sion, to be directed to one or more competent per- 
 sons to take the testimony of such witness on oath, 
 upon interrogatories to be annexed to the commis- 
 sion. 
 
 The application for a commission cannot be made 
 until after the answer is put in, but it should be 
 made the earliest opportunity after the issue is join- 
 ed, for if it is delayed the court or judge to whom 
 the motion is made, may not stay the trial to have 
 the commission returned. 2 Rev. Stat., 315, § 19. 
 
 As the practice upon the subject of issuing and 
 returning the commission and its incidents, are not 
 affected or in any way altered by the Code, it is un- 
 necessary to do more than to refer to the books of 
 practice in the late Supreme Court, for a guide. 
 
 Examination de bene esse.] — Where a witness whose 
 testimony is important on either side, is about to 
 leave the state, either not to return at all, or not to 
 return in season to be examined on the trial : or if 
 a witness is so sick or infirm, as to render it impro- 
 bable that he will be ab*le to appear on the trial, 
 either party, desiring to obtain the testimony of 
 such witness, may apply to the court in which the 
 action is pending, or to a judge thereof, for permis- 
 sion to take the testimony of such witness, de bene 
 esse, that is, conditionally; to be used only in case 
 the personal attendance of such witness cannot be 
 procured on the trial. 
 
 This motion may be made at any time, after the 
 action is commenced. 2 Rev. Stat., 312, § J, 2.
 
 164 EXAMINATION OF A PARTY. 
 
 The practice of obtaining the order for the exami- 
 nation of a witness de bene esse, and the manner of 
 taking the testimony, is the same as before the pas- 
 sage of the Code of Procedure. 
 
 Examination of a party.] — The right to examine a 
 party to the action, as a witness against himself, was 
 never allowable before the act of 1847. Sess. Laws 
 1847, p. 630. It is now incorporated in the Code. 
 
 Heretofore, when it was important to compel the 
 adverse party to disclose facts, necessary to sustain 
 the action or the defence, it could be obtained only 
 by a bill of discovery, filed in the Court of Chancery 
 in aid of the prosecution or defence of the action at 
 laAv. In such a case, a bill might be filed, praying 
 for a discovery upon oath from the adverse party of 
 the facts alleged in the bill, to be within the person- 
 al knowledge of such adverse party, and an answer 
 under oath could be required. Upon the trial of the 
 action at law, the answer could be read in evi- 
 dence. 
 
 No bill can now be filed, or action instituted to 
 obtain a discovery under oath, in aid of the prose- 
 cution or defence of another action. Code § 389. 
 
 Instead, however, of a Bill of discovery, as form- 
 erly used, the examination of the party either be- 
 fore or at the trial is now allowed. 
 
 For this purpose it is provided {Code § 390,) that 
 " 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.'' 
 
 If the adverse party, whom it is desired to exam- 
 ine reside out of the state, his testimony can only be 
 procured upon a commission. The commission is pro
 
 EXAMINATION OF A PARTY. 165 
 
 'cure-d, as in other cases of non-resident witnesses, 
 and the proceedings under it are in all respects the 
 same. Brocklej/Y. Stanton, 1 Code Rep. 12S. 
 
 The examination oi^ a party is conducted in the 
 same manner, and is subject to the same rule, as in 
 the case of any other witness. The party seeking 
 the examination of the adverse party, goes through 
 with the examination, and then he may be exam- 
 ined in his own behalf, in respect to any matter 
 pertinent to the issue, that is, he may be examined 
 upon a matter which the party calling him has not 
 gone into, provided it be pertinent to the subject of 
 the action and the issue formed between the parties. 
 In like mariner as other witnesses, he may be cross- 
 examined by his own attorney or counsel, as to the 
 m^atter of his direct examination. 
 
 If, however, in testifying to any new matter, his 
 answers are not responsive to the inquiries put to 
 him, by the party calling him ; that is, if it be upon 
 a new subject, not gone into by such party; or, if 
 his answers are not necessary to explain or qualify 
 his direct examination, then the party calling him, 
 may offer himself as a witness on his own behalf, 
 and may be examined in respect to such new mat- 
 ter. Thus, if the defendant calls the plaintiff as a 
 witness in an action arising on contract, to prove 
 that the promise was not made within six years 
 next before the commencement of the suit, the 
 plaintiff's attorney or counsel may cross examine 
 him, as to such fact, and then may prove by him 
 that the defendant made a new promise within the 
 six years. This would be new matter, and the de- 
 fendant would be authorised to offer himself on his 
 own behalf, and be examined as to the new promise.
 
 166 EXAMINATION BEFORE THE TRIAL, 
 
 In case of two or more plaintiffs or defendants, 
 if one of the plaintiffs desires to examine his co- 
 plaintiff, or one of the defendants desires to exam- 
 ine his co-defendant, he may do so. The examina- 
 tion is conducted in the same manner as other wit- 
 nesses, and the same rules govern. But such ex- 
 amination or evidence, cannot be used on behalf of 
 the party examined. And where there are several 
 plaintiffs or defendants who are joint contractors or 
 are united in interest, and only one of such plaintiffs 
 or defendants is examined at the instance of the ad- 
 verse party, the remaining co-plaintiffs or co-defend- 
 ants may be examined in their own behalf to the 
 same cause of action or defence. Code, § 397. Thus, 
 in an action brought by co-partners, who are united 
 in interest, and one of the co-partner plaintiffs is ex- 
 amined as a witness by the defendant, the other co- 
 partner plaintiffs may offer themselves as witnesses 
 and be examined in respect to the cause of action, 
 for which the suit is brought. 
 
 So, a person for whose immediate benefit the ac- 
 tion is prosecuted or defended, though not a party 
 to the action, may be examined as a witness, in the 
 same manner, and subject to the same rules of ex- 
 amination, as if he were named as a party. 
 
 Examination before the trial] — If the party whose 
 examination as a witness is sought to be had, reside 
 out of the state, it can, as we have seen, {ante p. 164) 
 only be had upon a commission issued in the ordin- 
 ary way. If such party reside in some county other 
 than that in which the trial is to be had, he cannot 
 be examined before the trial in any other county, 
 than that of his residence, or where he may be at 
 the time he is summoned to appear. Thus, if the
 
 THE EXAMINATION. 167 
 
 action is to be tried in Greene county, and the party 
 to be examined, resides in Schoharie county, he 
 cannot be compelled to attend and be examined in 
 Greene. If, however, he can be found in Greene 
 county, he may then be summoned to appear before 
 the judge in that county, and submit to his exami- 
 nation. Code, § 391. 
 
 If the party wishes the examination before the 
 trial, he must give a notice in writing to the adverse 
 party of at least ^iye days before the time specified in 
 the notice for the examination to take place, requir- 
 ing such adverse party to appear before a judo-e of 
 the court in which the action is pending, or bef re 
 a county judge, and submit to an examination. The 
 notice must state the time and place and name of 
 the judge before whom the examination will be had. 
 
 This notice must be served upon the party and it 
 is not sufficient to serve it upon his attorney. And 
 where there are several adverse parties, the notice 
 must be served upon all, notwithstanding it is the 
 intention to examine only one. (For form of notice 
 see Appendix.) 
 
 As has been before stated, the party to be exa- 
 mined, cannot be required to attend before a iudo-e 
 out of the county of his residence or where he may 
 be at the time the notice is served upon him. 
 
 The examination.^ — The examination of a party be- 
 fore trial, is to be conducted in all respects as the 
 examination of a witness de bene esse. It should be 
 reduced to writing by the judge, and carefully read 
 over to the party, who then must subscribe it. The 
 judge or officer who takes the examination, should 
 certify to it, and deliver it to the attorney of the 
 party who applied for the examination, and direct it
 
 163 THE EXAMINATION. 
 
 to be filed in the proper county. The examination 
 thvTS taken, subscribed and certified, should be filed 
 with the clerk of the county where the action is 
 pending, within ten days afterwards. 2 Rev. Stat. 
 313, §6. 
 
 The testimony of the party thus taken, may be 
 read as evidence on the trial, notwithstanding he 
 may be present. It does not prevent, however, his 
 being examined at the trial, if the adverse party de- 
 sire to examine him. But the adverse party cannot 
 do both ; that is he cannot read his testimony taken 
 before the judge, and examine him at the trial. His 
 examination before the judge being taken condition- 
 ally {Code § 390) it cannot be used for any purpose, 
 if he is examined at the trial. 
 
 Examination at the trial. 1 — The attendance of the 
 party for the purpose of testifying at the trial, is 
 compelled in the same manner as other witnesses. 
 For which purpose, a s,ummons to testify is served 
 upon him, and his fees for attendance and travel 
 should be paid. If the party reftise to attend and 
 testify, either at the trial or before the judge, he 
 may be punished as for a contempt, and upon proof 
 of the service of the notice or summons, the court 
 or judge will grant an order to arrest and bring be- 
 fore the court or judge such party, who may be 
 punished by fine, or imprisonment in the county 
 jail, in the discretion of the court or judge. 2 Rev. 
 Stat., 278, §§ 10, 11; id 400, §§ 43, 47. 
 
 Effect of examination of party.] — The testimony of a 
 party, whether taken before a judge, or at the trial, 
 is not conclusive upon the party who obtained the 
 examination, but like other testimony, it may be
 
 PREPARATION FOR TRIAL. 169 
 
 rebutted by adverse testimony. And the examining 
 party will be allowed, on the trial, to disprove the 
 evidence of the party he has examined, in the same 
 manner that he may disprove the testimony of a 
 witness called by himself, although he will not be 
 permitted to impeach the credibility of the party 
 he has examined. Cudc^ § o93. 
 
 By the provisions of the Code, the examination of 
 a party, as a witness in the action, at the instance 
 of the adverse party, is placed upon an equal foot- 
 ing with the examination of ordinary witnesses; 
 and it may in general be said, that with the excep- 
 tions which have been above stated, all the rules 
 that have heretofore prevailed in respect to the ex- 
 amination of ordinary witnesses, are made to apply 
 to examinations of parties. As that is a subject 
 more properly belonging to a treatise on evidence, 
 than to a work on practice, any further notice of it 
 here, can well be dispensed with. 
 
 SECTION IV. 
 Of the Preparation for Trial. 
 
 As has been seen, all issues must be tried by the 
 court, or by a jury, or by a reference. If the issue 
 be one of law, it must be tried by the court; if of 
 fact, it may be tried by the court without a jury, or 
 by a jury, or by a reference. 
 
 These different modes of trial will be subsequent- 
 ly noticed, under separate heads. 
 
 Issues how tried.] — If the action be for the recov'ery 
 of money only, or for the recovery of specific real 
 or personal property, and there is an issue of fact
 
 170 NOTICE OF TRIAL. 
 
 formed by the pleadings, it must be tried by a jury, 
 unless a jury trial is waived, which may be done, 
 in the manner hereafter stated under the head of 
 " Trial by the court without a jury." See post. 
 The class of actions which must thus be tried by a 
 jury, unless a jury trial is waived, are such as arise 
 upon contracts, express or implied, for the payment 
 of money only, and actions sounding in damages, 
 for torts, such as trespass to property or to the per- 
 son, libel, slander, malicious prosecution, and the 
 like, and actions for the recovery of real or personal 
 property. 
 
 All other issues, whether of law or fact, are triable 
 by the court without a jury. The court may, how- 
 ever, order the whole issue, or any part of it, or any 
 specific question of fact involved therein, to be tried 
 by a jury, or may order it to be referred. Code, § 254. 
 
 All issues, whether of law or fact, and whether 
 triable by the court or by a jury, must be tried be- 
 fore a single judge. Issues of fact are to be tried at 
 the circuit court, and issues of law are to be tried at 
 the special term only. Rule 31. 
 
 TRIAL OF ISSUES OF FACT. 
 
 Notice of trial] — Having determined where the 
 issue is to be tried, i. e., at what circuit court, the 
 next step to be taken, is to prepare the notice of 
 trial. Either party may notice the cause for trial. 
 The notice must specify the lime and place of the 
 trial: it must, like all other notices, be in writing, 
 and subscribed by the attorney for the party giving 
 the notice. In the notice served by the plaintiff's 
 attorney, if he thinks the defence has been put in
 
 COPY PLEADINGS. 171 
 
 merely for delay, he may insert in his notice of trial, 
 whr;n there is an issu? of fact formed by the plead- 
 ings, a notice that an inquest will be taken, which 
 gives him the right to take the cause .out of its or- 
 der on the calendar, and obtain a verdict in a sum- 
 mary way. Jones vs. Russell, 1 Code Rep., 113. 
 
 The defendant may always prevent an inquest, by 
 filing an affidavit of merits. Rule 1 2. 
 
 If the action be against two or more defendants, 
 and some have not answered, the notice should ex- 
 press the plaintiff's intention to have the damages 
 assessed by the jury who try the issue against such 
 defendants as have not answered. The notice nust 
 be served at least fen days before the first day of the 
 sittino- of the court, when the issue is to be tried. 
 In computing the time, the first day is to be inclu- 
 ded, and the last or tenth day excluded; so that a 
 notice served on the first, for the eleventh day of the 
 month will be sufficient. If the attornies for the re- 
 spective parties reside in different places, between 
 which there is a mail communication, the service 
 of the notice may be made by mail, in which case 
 it must be double the usual time, i. e. tiventy days, to 
 •ba compnted as above. As to the particular mode 
 of service, see post. 
 
 Copy pleadings.'] — It is the duty of the plaintifl''s 
 attorney to furnish the court, at the commence- 
 ment of the court, or at the commencement of the 
 trial, with a copy of the pleadings in the action. 
 For this purpose, he must prepare a copy of the sum- 
 mons, complaint, answer and reply, if any have been 
 put in, together with a copy of the offer made by the 
 defendant, if it shall have been accepted by the plain-
 
 172 AFFIDAVIT OF MERITS. 
 
 tiff, and hand them to the clerk of the court, at or 
 before the commencement of the trial. 
 
 Note of iiiBue.\ — Either party having noticed the 
 cause for trial, may prepare and deliver to the clerk 
 of the county, where the trial is to take place, a note 
 of the issue. This must be served upon the clerk at 
 least four days before the first day of the sitting of 
 the court. It m.ust contain the title of the cause, i. e. 
 the names of the plaintiff and defendant, and the 
 names of their respective attornies, and the time 
 when the last pleading was served or received. 
 Code § 250. 
 
 Affidavit of merits. 1 — If the notice of trial served by 
 the plaintiff", expresses an intention to take an in- 
 quest, and the defendant wishes to prevent it, his at- 
 torney must prepare an affidavit of merits. In gene- 
 ral, this affidavit must be made by the defendant 
 himself, though in case of his absence it may be 
 made by his attorney or counsel. 1 How. Pr. Rep, 
 62; 2 Id. 124. But in this case it should contain a 
 sufficient excuse for not being made by the defend- 
 ant. The affidavit is, that the defendant has fully 
 and fairly stated the case to his counsel, naming 
 him, and specifying his place of residence, and that 
 he has a good and substantial defence on the merits 
 as he is advised by his counsel, after such statement 
 and verily believes to be taie. Rule 39. 
 
 The affidavit having been drawn and sworn to, 
 should be filed with the clerk of the county where 
 the trial is to be had, and a copy served on the plain- 
 tiff's attorney. 
 
 Notice to produce papers.'] — When a paper is in the 
 posset-sion of the opposite party, which it is deemed 
 necessary to use on the trial of the cause, a notice
 
 SUBPCENA OF WITNESSES. 173 
 
 should be prepared and served on the attorney for 
 the opposite party, requiring- liim to produce such 
 paper on the trial, or that parol or secondary evidence 
 of its contents will be given. The notice should de- 
 scribe the paper, with sufficient certainty and par- 
 ticularity to enable the party to know what is inten- 
 ded. 
 
 The notice shovild be served a reasonable time be- 
 fore the trial, to enable the party to bring it into 
 court; what is a reasonable time, is a question rest- 
 ing in the discretion of the judge. 
 
 Subp(2nafor ivitnesses.] — The subpoena, or as it may 
 more properly be called, the summons, to compel the 
 attendance of witnesses, in a process issued out of 
 the court in which the action is pending, requiring the 
 persons named in it to appear at the circuit court on 
 a certain day specified, to testify in the action, under 
 a penalty therein mentioned, in case of disobedience. 
 It is tested in the name of the presiding justice of 
 the district, or of one of the justices of the court, 
 subscribed by the clerk of the county where the 
 cause is to be tried, and by the attorney for the par- 
 ty who issues it, and should be sealed. It will how- 
 ever be sufficient Avithout a seal. 
 
 SubpcEJia ticket.] — Make out a ticket, containing the 
 substance of the subpoena, subscribe it with the 
 name of the attorney who issues the subpoena, and 
 direct it to the witness. There must be a separate 
 ticket for each witness. One subpoena, however, 
 will be sufficient for several witnesses. 
 
 Serving subpoena.] — The subpoena is served in the 
 following manner : the original subpoena, under the 
 seal of the court, must be exhibited to the witness,
 
 174 SUBPOENA DUCES TECUM. 
 
 aiid a ticket containing its substance, must be de* 
 livered to him at the same time, and the fees, al- 
 lowed by law, for travelling to and returning from 
 the place where he is requi.ed to attend, together 
 with the fees for one day's attendance, must be paid 
 or tendered at the time of service. 2 Rev. Stat., 321, 
 § 54. The subpoena should be served a reasonable 
 time before the session of the court. The witness 
 is entitled to a reasonable time for travel, availing 
 himself of the ordinary modes of conveyance. He 
 cannot limit his travelling to thirty miles a day, nor 
 can he be required to travel on Sundays. 13 Wen- 
 dell, 49. 
 
 A party, whom it is designed to examine as a 
 witness at the trial, must be subpoenaed iii the same 
 manner as other witnesses, or he will not be re- 
 quired to attend. Code, § 390. 
 
 Subpczfia duces tecu?n.] — If the witness have in his 
 possession any deeds or writings, which it may be 
 necessary to produce on the trial, the subpoena for 
 such witness must contain a clause, commanding 
 such witness to bring the papers with him, and 
 produce them on the trial. 
 
 The deed or writing to be produced, must be de- 
 scribed with sufficient certainty to enable the wit- 
 ness to know what is intended. 
 
 SECTION V. 
 
 Of Inquests. 
 
 If the cause has been noticed for trial as an in- 
 quest, and the defendant does not file and serve a 
 sufficient affidavit of merits, on or before the first
 
 TRIAL BY THE COURT. 175 
 
 day of the circuit, the cause may be tried as an in- 
 quest, out of its orJer on the calendar. To prevent 
 an inquest at the circuit, as we have seen, ante p. 
 172, an affidavit of merits must be served. Upon 
 an inquest, the defendant is precluded from making 
 a defence, in the ordinary manner. Rule 12. 
 
 An inquest may be taken on any day after the first 
 day of the circuit, immediately after the opening of 
 the court, {Rule 12,) but not after the trial of a liti- 
 gated cause has commenced. 9 Wendell, 451. 
 
 Judgment is perfected upon an inquest, in the 
 same manner as upon a common verdict. As to 
 which see post. 
 
 A plaintiff, who has regularly obtained an in- 
 quest, is not bound to waive it, on the application 
 of the defendant, but may put him to his motion to 
 set it aside. 12 Wendell, 1 98. 
 
 Upon an inquest, the defendant has a right to ap- 
 pear, and cross-examine the plaintiff's witness; but 
 he cannot prove a defence by them, nor examine 
 witnesses on his own behalf He may, however, 
 object to the plaintiff's evidence, and except to the 
 judge's opinion as in ordinary cases. So, the plain- 
 tiff may be non-suited if he fail to make out his case. 
 
 SECTION VI. 
 
 Of the Trial by the Court. 
 
 The power to try issues of fact without a jury, 
 was conferred upon the judge or officer holding the 
 court, by the act of 1847. Scss. Laws 1847, p. 345, 
 § 80. The same power has since been continued by
 
 176 TRIAL BY THE COURT. 
 
 the Code. Code, § 266. It is now provided that trial 
 by jury may be waived by the several parties to an 
 issue of fact, in any action. The action, however, 
 must be one arising on contract, otherwise a jury 
 cannot be waived without the consent of the court. 
 Hence, in actions to recover damages, which do not 
 grow out of a contract, express or implied, such as 
 actions for assault and battery, slander, trespass, and 
 the like, a jury trial cannot be waived, without the 
 consent of the court. 
 
 In the cases above piovided, a jury may be waiv- 
 ed in the following manner: 
 
 1. By failing to appear at the trial. Where a 
 cause is called in its regular order on the calendar, 
 and the defendant fails to appear, the action may 
 be tried by the court, without a jury. But it is only 
 in cases of the regular call of a cause, that a jury 
 may be waived. Therefore, in inquests, when the 
 cause is taken out of its order on the calendar, a 
 jury must be empannelled in the usual manner. 
 Dickinson vs. Kimball, 1 Code Rep., 83. And the mere 
 failure of the defendant to appear, does not authorize 
 the waiving of a jury. Ibid. 
 
 2. By written consent, in person or by attorney, 
 filed with the clerk. 
 
 3. By oral consent in open court, entered in the 
 minutes. 
 
 The trial'] — The trial before the court, without a 
 a jury, is conducted, in all respects, in the same 
 manner as trials by a jury. The counsel for the 
 party who holds the affirmative of the issue, opens 
 the case, and introduces his evidence; the adverse 
 party then examines'his witnesses, and the case is
 
 THE DECISION. 177 
 
 submitted to the judge. As to the manner of trying 
 jury eauses, see post. 
 
 The decision.'] — The judge or justice who tries the 
 issue of fact without a jury, must give his decision 
 within twenty days after the adjournment of the 
 court, at which the trial took place. Code, § 267. 
 The decision must be in writing, and subscribed by 
 the judge or justice who tried the cause. The de- 
 cision is in form like the report of a referee. It is 
 not necessary to state the facts found, nor the con- 
 clusions of law upon them, but simply the result to 
 which the judge has arrived upon the whole case. 
 Thus, that the plaintiff is entitled to recover from 
 the defendant the sum of five hundred dollars ; or, 
 that the plaintiff is entitled to recover the possession 
 of the real or personal property, mentioned in the 
 complaint; or that he finds in favor of the defend- 
 ant, and the like. But the facts established by the 
 evidence, on the trial, or the conclusion of law upon 
 them, need not be stated in the deci??ion. 
 
 The decision must not only be made, but must 
 also be filed with the clerk of the county where the 
 action was tried, within twenty days after the court 
 at which the trial took place. No judicial construc- 
 tion has been given to the section of the Code di- 
 recting the decision of the judge to be made and 
 filed wilhin twenty days after the adjournment of 
 the court, at which the trial took place, but it is pre- 
 sumed that it will be construed to be directory mere- 
 ly, and that a decision made after twenty days, will 
 under peculiar circumstances, and when a good ex- 
 cuse is furnished, be upheld as regular.
 
 178 TRIAL BY JURY. 
 
 Issues of laiv.] — As has been seen, {ante p. 169) issues 
 of law, are in all cases to be tried by the court, 
 without a jury. In such cases if the decision of 
 the judge is in favor of the plaintiff, judgment is en- 
 tered theroen, in the same manner as upon failure 
 to answer the complaint. See ante, p. 120. If the de- 
 cision be for the defendant, judgment is entered ac- 
 cordingly, unless the taking of an account or the 
 proof of some fact is necessary to enable the court 
 to complete the judgment ; as, where in actions to 
 recover the possession of personal property, and the 
 property has been delivered to the plaintiff, the de- 
 fendant, if he succeeds is entitled to recover dama- 
 ges for the taking and detention of the property. In 
 such case the court would require proof of the 
 damages, before it could complete its judgment. Or, 
 where the defendant has been restrained from doing 
 some act, by which he has sustained damage. In 
 these and similar cases the court may order a refe- 
 rence, or that a writ of inquiry be issued to ascer- 
 tain and assess the damages of the defendant. And 
 upon the filing of the report of the referee, or inqui- 
 sition of the sheriff, a judgment for such damages, 
 with the costs and disbursements to which the de- 
 fendant is entitled, may be entered. As to trial of 
 issues of law, see post. 
 
 SECTION VII. 
 
 Of the Trial by Jury. 
 
 Either party having noticed the cause for trial, 
 and put it upon the calendar, may bring the issue 
 to trial.
 
 TRIAL BY JURY. 179 
 
 The jury are drawn in the usual manner. They 
 may be challenged by either party for cause or fa- 
 vor, and in addition, either party may exclude two 
 of the persons drawn, by a peremptory challenge. 
 Sess. Laws 1847, chap. 134, § 1. The challenges of 
 the jurors must be made before the trial is com- 
 menced, and it will be too late after verdict. 1 
 How. Pr Rep. 1 75. 
 
 Opening the case.] — It is necessary, at the com- 
 mencement of the trial, to determine which party 
 holds the affirmative of the issue ; that is, which 
 party has the right to open and close the case. 
 This can only be determined from the pleadings. 
 Ordinarily, the plaintiff, holds the affirmative, but 
 not unfrequently, the defendant may. Thus, in an 
 action upon a promissory note, the defendant in his 
 answer, sets up payment, or usury, or the statute of 
 limitations, or infancy, or any other defence which 
 goes in avoidance of the action, and the plaintiff 
 replies, simply taking issue thereupon, without al- 
 leging any thing in avoidance of such defence. In 
 such a case, the defendant holds the affirmative of 
 the issue, the sole question of fact to be tried, being 
 the payment, or usury, or statute of limitations, or 
 infancy, and he has the right to open and close the 
 case. So, where, in an action for the breach of a 
 covenant, the defendant by his answer, admits the 
 breach, and alleges that the coven nnt was broken, 
 in consequence of some act of the plaintiff or other- 
 wise, and the plaintiff takes i.-sue thereupon, the 
 defendant will be entitled to the affirmative. So, 
 generally, whichever party, under the pleadings,
 
 180 EXAMINATION OF WITNESSES'. 
 
 has the burden of proving the issue, holds the affir- 
 mative^ 
 
 The cause is opened, by stating the case, and the 
 facts the party expects to prove, to the jury. It is 
 proper, also, to state the defence, or facts, that will 
 be proved on the other side, so far as the counsel 
 is acquainted with such defence or facts, and the 
 evidence that will be introduced to disprove them. 
 
 Examination of ivitnesses.] — Having opened the case 
 to the jury, the party who holds the affirmative,, 
 proceeds to examine his witnesses, who must be 
 sworn. The opposite party, however, may object to 
 the incompetency of a witness, and this objection, 
 ordinarily, should be made before the witness is 
 sworn in chief, that is to testify in the cause. The 
 grounds of objection to the competency of a witness, 
 have been, latterly, very much abridged Thus, no 
 person is rendered incompetent to be a witness on 
 account of his opinions on matters of religious belief. 
 Con. ofN. York, (1846,) Art. 1, § 3. So, no person 
 offi3red as a witness, shall be excluded by reason of 
 his interest in the event of the action. Code, § 398. 
 This, however, does not authorize a party to the 
 action, nor any person for whose immediate benefit 
 it is prosecuted or defended, nor any assignor of a 
 thing in action assigned for the purpose of making 
 him a witness, to be examined in his own behalf, 
 unless he is called by the opposite party. But, a 
 person convicted of perjury or subornation of per- 
 jury, cannot thereafter be received as a witness to 
 be sworn in any matter or cause whatever, until 
 the judgment against him be reversed. 2 Rev. Stat., 
 CBl, §§ 1, 4. It seems, however, that a pardon would
 
 STATING DEFENCE AND EXAMINING WITNESSES. 181 
 
 restore the competency of such person. Mailer of 
 Detning, 10 /. R., 232; People vs. James 2 Cat. R., 57. 
 So, persons sentenced upon a conviction for felony, 
 are incompetent to testify in any cause, unless par- 
 doned by the governor, or legislature. 2 Rev. Stut.y 
 701, § 23 ; 5 Htll R., 260. But a conviction for other 
 offences does not disqualify. 2 R. S., 701, § 23. 
 
 As we liave seen, the parties to the action may 
 also be examined. Ante p. 164. 
 
 The manner and extent of the examination of 
 witnesses is regulated by the discretion of the judge. 
 The judge, however, has no right to reject evidence 
 offered by the party, which is pertinent to the issue. 
 Regularly, the party who begins must exhaust all 
 his testimony, in support of the issue on his side, 
 before the opposite testimony has been heard, and 
 can introduce no evidence afterwards except in re- 
 ply. 1 Hill R. 300; 2 Id. 286; 20 Wend. 226. This 
 rule may be departed from by the judge, in his dis- 
 cretion ; but the party cannot claim it as a matter of 
 right. 4 Hill, 202. 
 
 Stating defence and examining witnesses.] — The plain- 
 tiff having gone through his evidence and rested 
 his case, the defendant's counsel, if he be of opinion 
 that the plaintiff has failed to make out his case, 
 may move for a non suit. So, if there be a variance 
 between the proof and the complaint, he may move 
 for a non-suit. But a variance to authorise a non- 
 suit, must not be in some particular or particulars 
 only, but the allegation to which the proof is direct- 
 ed must be unpoved in its entire scope and mean- 
 ing. Code, § 171. 
 
 If the motion for a non-suit is denied, the defend-
 
 182 SUMMING UP. 
 
 ant's counsel proceeds to open and state to the jury 
 the matter of the defence, and the evidence, if any, 
 which he will adduce in support of it; and he may 
 comment on the case and evidence of the plaintiff. 
 Witnesses are then examined, in the same manner 
 as on the part of the plaintiff. After the defendant 
 has rested his case, the plaintiff has the right to give 
 evidence, in reply, and thus to contradict, modify 
 and explain, or in any way vary the evidence of the 
 defendant. Beyond this he cannot go, without the 
 permission of the judge. 5 Hill, 288. 
 
 Only one counsel can examine or cross-examine 
 a witness, on either side. Rule 13. 
 
 Summing up.] — The testimony on hoth sides being 
 closed, the counsel proceed to sum up the cause to 
 the jury. The party who holds the affirmative of 
 the issue, has the right to close the summing up. 
 Only one counsel on each side is allowed to sum 
 up the cause to the jury, unless the justice holding 
 the circuit shall otherwise order. Rule 13. 
 
 Judge's charge.]— The counsel on both sides having 
 summed up the cause to the jury, the justice pro- 
 eeeds to give his charge to the jury, upon the ques- 
 tions of law in the cause. He explains to them the 
 nature of the issue and of the defence, recapitulates 
 the evidence, and directs the jury on the points of 
 law arising on the evidence. 
 
 The verdict.]— The jury having been charged by 
 the court, are to make up and render their verdict. 
 Verdicts are of two kinds, 
 
 1. General, and 
 
 2. Special. Code, § 260. 
 
 A general verdict, is that by which the jury pro-
 
 THE VERDICT. 183. 
 
 noiince generally upon all or any of the issues, either 
 in favor of the plaintiff or defendant. Thus, that 
 they find in favor of the plaintiff, for two hundred 
 dollars damages, or that they find in favor of the 
 defendant. 
 
 A special verdict, is that by which the jury find the 
 facts only, leaving the judgment to the court. 
 
 Instead of finding a general verdict, which the 
 jury may always do, except in certain cases, which 
 will be hereafter stated, and thus take upon them- 
 selves to judge of both the law and the fact, they 
 may find the facts specially, leaving to the court 
 the application of the law to the facts thus found. 
 
 A special verdict, cannot be found, except in 
 actions for the recovery of money only or specific 
 real property, or where the court shall direct a spe- 
 cial verdict to be found. 
 
 In actions for the recovery of specific personal 
 property, if the property has not been delivered to 
 the plaintiff, or the defendant, by his answer, claims 
 a return thereof, the jury must assess the value of 
 the property, if their verdict be in favor of the plain- 
 tiff, or if they find in favor of the defendant, and 
 that he is entitled to a return thereof The jury 
 may at the same time, assess the damages, if any 
 are claimed in the complaint or answer, which the 
 prevailing party has sustained, by reason of the 
 detention or taking and withholding such property. 
 Code, §2G1. 
 
 Where a verdict is found for the plaintiff, in an 
 action for the recovery of money only, the jury must 
 also assess the amount of the recovery. Code, § 262. 
 
 Where the jury find a special verdict, it must be
 
 184 FILING AND ENTERING VERDICT. 
 
 reduced to writing and must specifically find the 
 facts to be as stated in the verdict. The jury may 
 also, under the instructions of the justice, render a 
 general verdict, and also a special verdict upon 
 particular questions of fact. 
 
 Where a special finding of facts is inconsistent 
 with the general verdict, the former will control the 
 latter, and the court will give judgment accordingly. 
 Code, § 262. 
 
 Filing and entering verdict.'] — A general verdict is 
 rendered orally by the jury and is entered by the 
 clerk of the court in the minutes. A special ver- 
 dict is in writing, and must be filed with the clerk 
 and entered upon the minutes. Upon receiving the 
 verdict the court directs an entry to be made in the 
 minutes, specifying the time and place of the trial, 
 the names of the jurors and witnesses, the verdict, 
 and either the judgment to be rendered thereon, or 
 an order that the case be reserved for argument or 
 further consideration. Code, § 264. As to reserving 
 the case for argument or further consideration, see 
 
 post. 
 
 Judgment.'] — Judgment is then entered in conform- 
 ity to the verdict. As to the manner of entering 
 judgment see post. The judgment becomes final af- 
 ter four days, unless the court or judge thereof order 
 the case to be reserved for argument or further con- 
 sideration, or grant a stay of proceedings. 
 
 Plaintiff failing to appear.'] — Formerly, if the plaintiff 
 neglected to bring on the trial of the cause, the de- 
 fendant had to wait until the next special term of 
 the court, and then move for judgment, as in the 
 case of non-suit. Now, however, the defendant, as 
 well as the plaintiff may notice the cause and move
 
 PLAINTIFF FAILING TO APPEAR. 185 
 
 the trial at the circuit. If tlie plaintiff do not ap- 
 pear, or do not bring on the trial, the defendant may 
 proceed with the case, unless the court, for good 
 cause, shall otherwise direct. The defendant may- 
 take a dismissal of the complaint, or he may exam- 
 ine his witnesses, and where he is entitled to re- 
 cover damages or have the return of personal pro- 
 perty or both, he may take a verdict, and have a 
 judgment accordingly. Code § 258. Rule 23. 
 
 In addition to this, if the plaintiff fails to notice 
 the cause for tiial, or having noticed it fails to bring 
 the same to trial, the defendant may move for the 
 dismissal of the complaint with costs. Rule 23. In 
 order to make this motion, it is not necessary that 
 the defendant should not have noticed the cause, 
 but he may move for such dismissal, notwithstand- 
 ing he shall have noticed the cause for trial. 
 
 This motion must be made at a special term, and 
 is founded upon an affidavit, setting forth that an is- 
 sue of fact has been joined in the action; that a cir- 
 cuit court has been held in the county in which the 
 action is pending, and that the plaintiff has failed to 
 notice the cause for trial, or has failed to bring the 
 same to trial. Rule 23. 
 
 The plaintiff, however, may at any time, either 
 before notice of the motion or afterwards, give to the 
 defendant's attorney, a stipulation to try the cause 
 at the next circuit, and offer to pay the costs to which 
 the defendant is entitled up to the time of tendering 
 the stipulation. Rule 22. The plaintiff cannot so 
 stipulate more than once. lb. 
 
 The plaintiff may show in opposition to the mo- 
 tion, that his neglect to bring the action to trial was 
 not unreasonable, in which case the court will per-
 
 186 TRIAL BY REFEREES. 
 
 mit him on payment of costs, to bring the cause to 
 trial at the next circuit court, where the same is tri- 
 able. Id. The plaintiff, it seems may also show 
 that the action could not have been tried at the cir- 
 cuit, as that issues of older dates were not reached 
 in the regular call of the calendar, or that the judge 
 refused to try the cause, and the like. 
 
 SECTION VIII. 
 
 Of Trial by Referees. 
 
 The right to try causes by referees, has been ex- 
 tended to every case, whether the issue be one of 
 law or fact. Formerly references were confined to 
 actions of assumpsit, where the trial of the cause 
 would require the examination of a long account on 
 either side. Now however, all or any of the issues 
 in any action, whether of law or of fact, or both, 
 may be referred upon the written consent of the 
 parties. Code § 270. 
 
 In lohat cases ] — The court in which the action is 
 pending, has the power, without the consent of the 
 parties, upon the application of either, or of its own 
 motion, to direct a reference in the following cases. 
 
 1. Where the trial of an issue of fact, shall require 
 the examination of a long account on either side, in 
 which case the referees may be directed to hear and 
 decide the whole issue, or to report upon any speci- 
 fic questions of fact involved therein. 
 
 It has been decided in regard to a reference un- 
 der this head, that it is confined to cases of accoimts 
 existing between the parties, and does not reach a 
 case of many items of damage. C /////, 372. A refe-
 
 TRIAL B\^ REFEREES. 187, 
 
 rence will be ordered where there are but four items 
 of an account. 10 Wendell, 577. But where a de- 
 fendant stipulated to admit the plaintiff's cause of 
 action as to all his bill of particulars, except the ex- 
 ecution and delivery of a promissory note, the court 
 refused to refer the cause, although the bill of par- 
 ticulars contained a large number of items. Aful- 
 lin V. Kelly, 3 Hoio. Pr. Rep. 12. So, where it 
 appears that substantial questions of law will arise 
 on the trial, although the plaintiff shows that it will 
 require the examination of a long account on his 
 part. Ives v. Vandewater, 3 How. Pr. Rep. 168. 
 A reference will also be ordered, 
 
 2. Where the taking of an account is necessary 
 for the information of the court, before judgment, 
 or for carrying a judgment or order into effect. 
 
 In this case, the reference is usually made be- 
 fore judgment: thus, in an action for the foreclo- 
 sure of a mortgage, an order of reference is proper 
 to ascertain the amount due to the plaintiff, to en- 
 able the court to make the appropriate judgment. 
 
 3. Where a question of fact, other than upon the 
 pleadings, shall arise, upon motion or otherwise, in 
 any stage of the action. 
 
 The court are authorized to refer a conflicting 
 question of fact arising upon a special motion. 
 Thus, where material facts in the affidavits of the 
 moving party are denied by the opposing party, the 
 court may refuse to determine the question, and 
 may order a reference. So, in a summary proceed- 
 ing, the court may order a question of fact to be 
 tried by reference. 
 
 Actions for torts are not referrible, without the
 
 188 MOTION FOR REFERENCE. 
 
 consent of the parties; and in all cases, when a 
 consent is necessary, it must be in writing, and filed 
 with the clerk of the county where the action is 
 pending. 
 
 Motion for reference.'] — The motion for a reference 
 is non-enumerated, and must be made at one of the 
 special terms of the court held in the district em- 
 bracing the county in which the action is pending, 
 or in an adjoining county, and is founded upon an 
 affidavit of the party wishing the reference. 
 
 Affidavit.'] — The affidavit should state the nature of 
 the issue and the time when it was joined, and that 
 the trial of the action will require the examination 
 of a long account, either on the one side or on both 
 sides. It seems, the affidavit must be made by the 
 party himself, and not by the attorney, unless a 
 sufficient excuse is shown for the omission. 4 Hill, 
 548. 
 
 Notice and service.] — A copy of the affidavit, with a 
 notice of the motion, must be served on the oppo- 
 site party, eight days before the first day of the 
 special term, at which it is designed to make the 
 motion. The notice should contain the names of 
 the persons proposed as referees. It is usual to 
 name three, but it will be sufficient if one is named, 
 as the court is now authorized, without the consent 
 of the parties, to appoint one or three referees. 
 Code, § 273. 
 
 Affidavit to oppose.] — In opposition to the motion to 
 refer, it may be shown by affidavit, that questions 
 of law will arise upon the trial of the cause. And 
 if it clearly appear that substantial questions of law- 
 will arise, the motion will be denied. 1 How. Pr.
 
 APPOINTING REFEREES. 189 
 
 7?., 168. The questions of law that will arise, must 
 be stated in the affidavit, that the court may be able 
 to judge whether they are material or difficult, or 
 will necessarily arise. It is not enough that the affi- 
 davit states that questions of law will arise, with- 
 out stating what those questions are. And the court 
 must be satisfied they will be questions of real diffi- 
 culty, otherwise they will grant the motion. 5 Cow., 
 \ 423, 
 
 Appointing referees.] — The party opposing the refer- 
 ence, has the right to object to the referee or referees 
 named in the notice. But if no objection is made, 
 the person or persons so named, will be appointed 
 of course. In case the parties disagree, the court 
 will, either upon the nomination of the parties, or of 
 its own motion, appoint one or three referees, who 
 are free f om exception, and who reside in the 
 county where the action is pending. Code, § 273. 
 In case the parties nominate, it is usual, where three 
 referees are to be appointed, for each to name one, 
 and the court to appoint the third. In case of disa- 
 greement, and only one referee is to be selected, the 
 court makes the appointment of its own motion. 
 
 Objection may be made to referees, that they are 
 related to the parties, or some of them, or have 
 formed and expressed an opinion, in respect to the 
 subject matter of the action, or have some interest 
 therein ; and generally, the same objections may be 
 made to a referee, that may be made to a juror. 
 
 Order.] — If the motion is granted, draw up the or- 
 der, and have it entered with the clerk of the coun- 
 ty where the action is triable, for which purpose, if 
 the motion is made in a county other than that in
 
 190 PROCEEDINGS ON REFERENCE. 
 
 which the action is pending, get the order certified 
 by the clerk and have the order entered in the 
 proper county. Serve a copy of the order on the 
 opposite attorney. It has been held, however, that 
 such service is not necessary. 1 How. Pr. IL 193. 
 
 Reference at the circuit.] — If the cause is noticed for 
 trial, an application for a reference, may also be 
 made to the justi -e holding the circuit, (2 Eev. Stat.., 
 305, § 42,) who may order the cause to he referred, 
 with the like effect, as if made at a special term. 
 No notice of the application for a reference at ^he 
 circuit need be given, but the usual affidavit must 
 be made. The justice holding the circuit, may also, 
 of his own motion, refer causes at the circuit, when 
 in his opinion the trial will require the examination 
 of a long account. 
 
 Notice of reference.] — Either party may notice the 
 cause for hearing before the referees ; for which 
 purpose, a notice often days must be served speci- 
 fying the time and place of the hearing. Previous, 
 however, to giving the notice, the party wishing to 
 bring on the hearing, should procure from the 
 referee or referees, or a majority of them, an ap- 
 pointment of the time and place of hearing. A copy 
 of the appointment should be served with the no- 
 tice of hearing. 
 
 Proceedings on reference.] — All the referees must 
 meet together at the time and place designated, and 
 must be sworn well and faithfully to hear and ex- 
 amine the cause, and make a just and true report 
 therein, according to the best of their understanding. 
 The oath may be administered b}'- any officer au- 
 thoriz d to take affidavits lo be read in the Supreme
 
 PROCEEDINGS ON REFERENCE. 191 
 
 Court. All the referees must hear the proofs and 
 allegations of the parties, but a report of two will be 
 valid. 2 R. S., 306, § 47. And if any of the referees 
 refuse to appear the court may compel them to do 
 so, (2 R. S., 306, § 47,) by order requiring them to 
 appear or shew cause, why an attachment should 
 not issue against them. 1 Wendell, li. 2 John. R., 260. 
 
 Either party giving the notice, may bring on the 
 liearing before the referees. Code, § 258. If there- 
 fore, the plaintiff omits to appear or proceed with 
 the reference, the defendant, having noticed the 
 hearing, may proceed with the case, and have a re- 
 port generally in his favor^ that there is nothing due 
 from him to the plaintiff, or may examine his wit- 
 nesses, and have a report in his favor, for such sum 
 as shall be found to be due from the plaintif!" to the 
 defendant. Code, § 258. 
 
 Formerly, a notice to the plaintiff to bring on the 
 hearing, was necessary, and in default, the defend- 
 ant could move fcr judgment as in the case of non- 
 suit. Now, however, the defendant may, as has 
 been stated, notice the cause forbearing, and obtain 
 a report, although the plaintiff neglects to notice or 
 bring on the hearing. 
 
 If, however, the plaintiff omits to notice the cause 
 for hearing, before the referees, or if having noticed 
 it, fail to proceed with the trial, the defendant may 
 move for a dismissal of the complaint, with costs. 
 Rule 23. The defendant may make this motion, 
 although he may have himself noticed the reference 
 for hearing. The motion, under these circumstances, 
 is made at the special term, upon an affidavit of 
 the facts, setting forth that an issue has been join-
 
 192 ADJOURNMENT. 
 
 ed ill the action, and that the plaintiff has neglected 
 to bring the cause to trial before the referees. Rule 
 23. The plaintiff, however, may at any time, either 
 before or after notice of motion, give to the defend- 
 ant's attorney a stipulation to try the cause, and 
 offer to pay the costs to which the defendant is en- 
 titled np to the time of tendering the stipulation. 
 Rule 22. The plaintiff cannot so stipulate more than 
 once. Id. The plaintiff may show that the neglect 
 to try is not unreasonable, and that will be a good 
 answer to the motion. Rule 22. 
 
 The plaintiff nuist furnish the referees with a 
 copy of the summons and pleadings and the offer of 
 the defendant, if any shall have been made. 
 
 The same rules in respect to the trial of the refer- 
 ence, and the examination of witnesses, are to be 
 observed, as on the trial of a cause before a jury. 
 See ante p. 178. The plaintiff may submit to a non- 
 suit or be non-suited by the referees, in like manner 
 as upon a trial at the circuit, at any time before the 
 cause has been finally submitted to the referees, for 
 their decision. In which case the referees report 
 the fact that the plaintiff submitted to a non-suit, 
 or was non-suited, as the case may be, and judgment 
 may thereupon be perfected by the defendant. Rule 
 2-5. The witnesses may be sworn by either of the 
 referees. 
 
 Adjournment.] — The referees have power to adjourn 
 the hearing from time to time, upon the application 
 of either party, and good cause shown. 2 R. S., 305, 
 § 44. So, they may adjourn, on their own motion, 
 without the consent of the parties. 
 
 In order to adjourn, all the referees must meet,
 
 REPORT. 193 
 
 (7 Wendell, 534; 22 lb., 637) ; and Avhere the hearing 
 is adjourned upon the application of a party, the 
 referees may impose as a condition of granting the 
 adjournment, the payment to the opposite [ arty of 
 a sum, not exceeding ten dollars, besides the fees of 
 witnesses, {Code, § 314,) and may require the same 
 to be paid forthwith or allow the reference to pro- 
 ceed. 5 Hill, 375. 
 
 Report] — The referees, after having heard and 
 -examined the case, are bound to proceed and make 
 up their report, in a reasonable time, or they may 
 be compelled to do so, by a rule of the court requir- 
 ing them to report or show cause why a i attach- 
 ment should not be issued against them. 2 R. S.^ 
 S06, § 48. 
 
 The report is in the nature of the decision of the 
 court, or the verdict of a jury, and where it is upon 
 the whole issue, it will stand as the decision of the 
 court. Code, § 272. It is not necessary that the re- 
 ferees should find the facts established by the proof, 
 or the conclusions of law thereupon, but simply the 
 amount "due" to the plaintiff or defendant, as the 
 case may be. Where, however, the referees are 
 directed to report upon any specific question of fact 
 involved in the cause, they must make a special 
 report of such fact with their finding thereupon. It 
 is not necessary, in such case, to report the evidence^ 
 but simply the fact or facts, established by the evi- 
 dence. As, that the plaintiff proved on the hearing 
 that A. B. died on the first of March, 1845, intestate 
 the owner of the premises mentioned in the com- 
 plaint, leaving him surviving, the plaintiff, and C. 
 and D., his children, and only heirs at law, who 
 
 «eaxh tliere by, became seized of one equal undivided 
 
 13
 
 194 FEES OF REFEREES. 
 
 third part of said premises, in fee simple : or, that 
 the defendant made the promissory note or contract 
 mentioned in the complaint, and the like. But the 
 evidence proving such facts, need not be stated in 
 the report. 
 
 The report of the referees, where it is upon the 
 whole issue, may be excepted to, and reviewed in 
 the same manner, as the decision of the court;^ 
 where the issue is tried by the court, without a jury, 
 may be ; or the court may grant a rehearing. Codey 
 § 272. See post. Rule 24. 
 
 The report must be signed by at least hvo of the 
 referees- 2 Rev. Stat., 306, § 47. The report, when 
 signed, should be delivered to the attorney for the 
 prevailing party, and by him filed with (he clerk of 
 the county where the action is pending. Rule 3. 
 
 Fees of referees.^ — Each referee is entitled to three 
 dollars a day for every day spent in the business of 
 the reference. They are not entitled to any further 
 sum for expenses: but the parties may agree in 
 writing, upon any other rate of compensation, not 
 less, however, than three dollars a day to each re- 
 feree. Code, § 313. 
 
 Judgment.] — Upon filing the report, where it is 
 made on the whole issue, the prevailing party may 
 immediately enter up judgment for the amount re- 
 ported to be due, with the costs and disbursements 
 to which he is entitled by law: or, if the report be 
 that there is nothing due from the defendant to the 
 plaintilT, the judgment will be for the costs and dis- 
 bursements only. It is not necessary to serve a 
 copy of the report on the opposite party, previous to 
 entering judgment; such party having ten days,.
 
 NOTICE OF ARGUMENT. 195 
 
 after notice of the judgment to make a case to set 
 aside the report. Code, §§ 272, 268. Nor, is it neces- 
 sary to procure the order of a judge to enter judg- 
 ment. Renoidl v. Harris, 1 Code Rep., 125. Rule 24. 
 As to the manner of entering judgment, see post. 
 
 SECTION IX. 
 
 Of the Trial of Issues of Law. 
 
 As has been stated, issues of law mu'r^t in all cases 
 be tried by a single judge, without a jury. Ante p. 169. 
 Such issues may arise either, 
 
 1. Upon demurrer to a complaint, answer, or re- 
 ply; or, 
 
 2. Upon the allegations in the complaint, not con- 
 troverted by the answer, or of the answer not con- 
 troverted by the reply: 
 
 And they can arise in no other way. 
 
 It is provided by rule, {Rule 31,) that issues of 
 law, as provided for by the Code, and demurrers to^ 
 pleadings, or any part thereof, must be noticed for 
 and heard at a special term. Where the special 
 terms are held at the same time and place with the 
 circuits, the practice will be the same, in bringing 
 on the trial of issues of law, as it is in trials of 
 issues of fact. But, in those districts where the 
 special terms are held at different times and places 
 from the circuits, a different practice must prevail. 
 In such cases, the practice is as follows: 
 
 Notice of argument.] — A notice of the argument of 
 the issue, must be served upon the opposite attorney 
 at least fen days before the first day of the term. 
 Code, § 256.
 
 196 NOTE OF ISSUE. 
 
 The notice must be for the first day of the term, 
 Ei her party may give the notice. 
 
 Note of issue] — Four days before the conimence- 
 ment of the term, a note of the issue must be sent 
 to the clerk, containing the names of the parties 
 and of the respective attorneys, and the time when 
 the last pleading was served. The cause is there- 
 upon entered upon the calendar, according to the 
 date o^ the issue. 
 
 Furnishing papers] — The papers to be furnished on 
 the argument of the issue, is a copy of the plead- 
 ings, when the question arises on the pleadings, or 
 on any part thereof; or, where the question arises 
 upon demurrer, such parts only of the pleadings as 
 relate to the question. Rule 31. 
 
 It is the duty of the plaintiff, to furnish the 
 papers, where the issue arises upon the pleadings, 
 and of the party demurring, when the issue arises 
 on demurrer. Id. 
 
 The party whose duty it is to furnish the papers, 
 must serve a copy on the opposite attorney, at least 
 eight days before the time the issue may be noticed 
 for argument. If he neglect to do so, the opposite 
 party may make an affidavit and notice of motion, 
 that the cause be struck from the calendar, (which- 
 ever party may have noticed it for argument,) and 
 that judgment be rendered in his favor. 
 
 Argument.^ — Upon the argument of the issue, the 
 party demurring, where the issue arises upon de- 
 murrer, or the plaintiff where it arises upon the 
 complaint and answer, or reply, opens and closes 
 the argument, and the opposite party replies; only 
 one counsel can be heard on either side. Rule 14.
 
 JUDGMENT AND MANNER OF ENTERING. 197 
 
 Decision] — The decision upon the issue is entered 
 by the clerk in the minutes of the court, and judg- 
 ment entered accordingly. If the term is held in 
 a county other than that in which the action is tri- 
 able, the rule or order entered by the clerk must be 
 certified to the proper county. 
 
 SECTION X. 
 
 Of THE Judgment and herein of the Manner of 
 
 Entering Judgment. 
 
 Judgment^ — The judgment is the final determina- 
 tion of the rights of the parties in the action. Code, 
 § 245. We have before considered the judgments 
 upon failure to answer, {ante p. 120) and it remains 
 to consider judgments upon trials where the defend- 
 ant has appeared and answered. There is but one 
 kind of judgment, and that is the final judgment. 
 Formerly there were interlocutor 2/ as well as final 
 judgments. 
 
 Aroarding judgment.] — A judgment upon an issue 
 of law is pronounced or delivered by the judge or 
 court, at the time of deciding the issue. But where 
 a verdict is rendered by a jury, or a report is made 
 by referees, upon the tria! of an issue of fact, there 
 is no actual award of judgment, any farther than 
 that the clerk enters the judgment in conformity to 
 the verdict or report, {Rule 24,) by the implied di- 
 rection of the justice or referees; the direction to 
 do so being implied sufficiently from the fact that 
 the verdict or report is received and entered by the 
 clerk in the presence of the justice, or by the writ- 
 ten direction of the referees. B-.^sides, courts of re-
 
 198 AWARDING JUDGMENT 
 
 cord are always open for the entering up of judg- 
 
 ments. 
 
 Judgment may be given for or against one or 
 
 more of several plaintiffs, and for or against one or 
 more of several defendants, and it may determine 
 the ultimate rights of the parties on each side, as 
 between themselves. Code, < 274. And in an ac- 
 tion against several defendants, the court may, in 
 its discretion, render judgment against one or more 
 of them, leaving the action to proceed against the 
 others, whenever a several judgment may be pro- 
 per. Ibid. Thus, in an action against the makers 
 and endorsers of a promissory note or bill of ex- 
 change, judgment may be rendered against one, 
 and the suit proceeded with against the others; 
 and so, in all cases where the liability is several and 
 not joint. But in cases of joint contracts or liabil- 
 ity, judgment must be entered against all, and there 
 can be no severance. 
 
 The court may dismiss the complaint and render 
 judgment with costs in favor of one or more defend- 
 ants, in case of unreasonable neglect on the part of 
 the plaintiff to serve the summons on other defend- 
 ants, or to proceed in the cause against the defend- 
 ant or defendants served. Code, § 274. This, how- 
 ever, can only be done in actions against persons 
 sued as joint contractors, for in other actions, it 
 seems, that the defendant served has the right to 
 notice the cause and proceed with the trial, and 
 need not wait for the plaintiff, or he may move to 
 dismiss the complaint. Rule 2^, and see ante p. 184. 
 But in actions against persons jointly'linble, one of 
 the defendants served cannot proceed with the
 
 AWARDING JUDGMENT. 199 
 
 •cause, in default of the plaintiff's moving therein, un- 
 less the plaintiff unreasonably neglect to serve the 
 summons on the other defendants, or to proceed in 
 the cause against such as are served. 
 
 In awarding judgment, the court are not confined 
 to the relief demanded in the complaint, except in 
 cases* where no answer has been put in ; but the 
 court may grant the plaintiff any relief consistent 
 with the case made by the complaint and embraced 
 within the issue. Code, § 275. 
 
 In actions for the recovery of the possession of 
 personal property, the judgment for the plaintiff 
 may be for the possession or for the recovery of pos- 
 session, or for the vakie thereof, in case a delivery 
 cannot be had, and for damages for the detention. 
 If the property have been delivered to the plaintiff, 
 and the defendant claims or desires a return thereof, 
 the judgment may be for such return : but if a re- 
 turn cannot be had, then the judgment may be for 
 the value thereof, and also for damages for takin"- 
 and withholding the same. Code, §278. The value 
 of the property, where a delivery cannot be had, and 
 the damages for the taking and detention, must be 
 found by the jury or referees. The rate or measure 
 of damages which a party may receive, in any ac- 
 tion, is the same as that which heretofore existed. 
 Code, § 276. 
 
 Costs. \ — The costs and disbursements which the 
 prevailing party is entitled to recover, must be in- 
 serted in the entry of judgment ; for which purpose 
 the sum of the charges for costs, and the items of 
 disbursements and the fees of officers must be made 
 out, and a copy served on the attorney for the op-
 
 200 MANNER OF ENTERING JUDGMENT, 
 
 posite party, with a notice of at least two daySy 
 that such prevailing party will apply to the clerk to 
 insert in the entry of judgment, such sum of the 
 charges for costs, and such items of disbursements 
 and fees of officers, as are allowed by law. Such 
 notice must be in writing, must specify the time 
 and place, when and where, and name of the clerk 
 to whom such application will be made, and must 
 be served in the same manner as other notices. See 
 post. Code, § oil. The disbursements must be 
 stated in detail, and must be verified by affidavit^ 
 which must be filed. A copy of the affidavit, how- 
 ever, need not be served on the opposing party. 
 
 At the time and place mentioned in the notice, 
 the attorney for the prevailing party must appear, 
 and submit the charges and disbursements to the 
 clerk for allowance, whose duty it is to pass upon 
 the items, and allow or disallow such as are or 
 are not authorized by law. The opposing party 
 may appear on such application, and object to all 
 or any of such items, and the clerk must decide 
 such objections. As to costs generally, and what are 
 allowable and the like, see j905* ^. 203. 
 
 The costs and disbursements having been allow- 
 ed by the clerk, they are to be inserted by him in 
 the entry of the judgment. 
 
 Manner of entering judgment.'] — The clerk keeps 
 among the records of the court, a book for the entry 
 of judgments, which is called the "judgment book." 
 Code, §279. The judgment consists of a brief state- 
 ment of the relief granted by the court, or other de- 
 termination of the action; the.se must be clearly 
 s])ecified. Code, § 280. This will conform, of course,
 
 JUDGiMENT ROLL. 201 
 
 to each particular case, and w'lW be varied accor- 
 dingly. Thus, that the plaintiff recover from the 
 defendant, the sum of five hundred dollars for his 
 damages, and forty-five dollars for his costs and dis- 
 bursements; or, that the personal property men- 
 tioned in the complaint be delivered to the plaintiff, 
 and that he recover from the defendant the sum of 
 one hundred dollars by the jury assessed for his da- 
 mages, for the detention of such personal property, 
 and also the sum of fifty dollars for his costs and 
 disbursements. The judgment must in all cases 
 follow the verdict of the jury or repcrt of referees, 
 where it is upon a question of fact, or the decision 
 of the court, where it is upon a question of law ; 
 but as the verdict, report or decision, as well as all 
 the pleadings and proceedings in the action are 
 annexed to and form part of the judgment roll, it 
 is unnecessary to recite any part of them in the 
 entry of judgment. For forms of different kinds of 
 judgments, see Appendix. 
 
 Judgment roll.] — Immediately upon pe: footing the 
 entry of judgment in the judgment book, a judgment 
 roll is to be made up and filed with the clerk where 
 the judgment is entered, unless the proceedings are 
 stayed, for the purpose of making a case or excep- 
 tions. The roll may be prepared by the attorney for 
 the prevailing party, or by the clerk. The roll con- 
 sists of the original summons and all the pleadings 
 in the action ; that is, the complaint, answer, reply 
 and demurrers, if any, or copies of such pleadings, 
 a copy of the entry of judgment, the verdict of the 
 jury, a report of referees, or decision of the court, 
 the offer of the defendant, if any shall have been
 
 202 TRANSCRIPTS. 
 
 made in the action, case or exception, if any shall 
 have been settled and filed; and all orders relating 
 to a change of parties, or in any way involving the 
 merits, and necessarily affecting the judgment. 
 These different papers must all be attached together, 
 and they form the. judgment roll. As to making 
 and settling a case or exceptions, see post. 
 
 In case the judgment is for the defendant, if the 
 plaintiff shall not have filed the summons with proof 
 of the service, and the pleadings on bis part, the 
 defendant may substitute the copies served on him, 
 in making up the judgment roll, or he may apply to 
 a judge of the court, for an order requiring the plain- 
 tiif forthwith to file such papers. Code^ § 281. 
 
 Transcript?^ — Upon a judgment directing in whole 
 or in part the payment of money, the judgment roll 
 having been filed, the judgment may be docketed 
 with the clerk of the county where it was rendered, 
 and also with the clerk of any other county. For 
 which purpose, a transcript of tlie original docket 
 must be procured from the clerk of the county 
 where the judgment is entered. The transcript con- 
 tains tlie name of the court, the title of the cause, 
 the amount of the judgment, the time when dock- 
 eted, and the name of the attorney. Upon filing 
 such transcript with the clerk of any county, the 
 judgment may be docketed therein. From the time 
 of docketing such judgment in any county, it is a 
 lien u[on any real property therein belonging to the 
 party against whom the judgment is rendered.
 
 OF COSTS. 203 
 
 SECTION XI. 
 
 Of Costs. 
 
 All statutes establishing^ or regulating the costs or 
 fees of attorneys, solicitors and counsel, in civil 
 actions, and all rales and provisions of law, hereto- 
 fore existing, restricting or controlling the right of 
 a party to agree with an attorney, solicitor or coun- 
 sel, for his compensation, are, by section 303 of the 
 Code, repealed. 
 
 Formerly, what was denominated the "fee bill," 
 which established and regulated the costs and fees 
 of attorneys, solicitors and counsel, was created by 
 statute, and contained the different items which the 
 attorney, solicitor and counsel of the prevailing 
 party was entitled to recover in the judgment. 
 These costs were made out in detail in pursuance 
 of such fee bill, and taxed by one of the officers of 
 the court. 
 
 This "fee bill' has from time to time undergone 
 various modifications, changes and alterations, by 
 the Legislature, and been the subject of much com- 
 plaint by suitors and persons who have had the 
 misfortune to be in the wrong in a law suit. Hap- 
 pily, however, for tlie lawyer, who was supposed to 
 have reaped the benefit of these laws, and who, 
 therefore, was the cause of so much special legisla- 
 tion, the "fee bill" has been abolished, and instead 
 of costs and counsel fees, there may now be allowed 
 to the prevailing party, upon the judgment, certain 
 .sums, by way of indemnity, for his expenses in the action. 
 Code, § 303. 
 
 Vw
 
 204 plaintiff's costs. 
 
 These allowances are, however, termed costs. 
 Plaintiff's costs^ — Costs are allowed, of course, to 
 the plaintiff upon a recovery, in the following cases. 
 
 Code, § 304. 
 
 1. In an action for the recovery of real property, 
 or where a claim of title to real property arises on 
 the pleadings, or is certified by the court, to have 
 come in question on the trial. 
 
 The plaintiff in these cases is entitled to recover 
 costs without reference to the amount of the recov- 
 ery. And therefore if he recover six cents he will 
 be entitled to costs. In actions for the recovery of 
 real property, such as were formerly denominated 
 " ejectments," there will be no difficulty in deter- 
 mining the right to recover costs, as in all such ac- 
 tions, if the plaintiff^ succeeds in obtaining a judg- 
 ment, he is entitled to his costs. But, where the 
 claim of title to real property arises on the piead- 
 inffs, or where title comes in question on the trial, 
 it will be sometimes difficult to determine whether 
 the plaintiff is entitled to costs. In such cases, the 
 iustice or referees who tried the action can, alone, 
 decide the question. Where the claim arises on 
 the pleadings, they must be looked into, to ascertain 
 that fact, and where it arises on the trial, it is to be 
 judged of, from the evidence and proceedings in the 
 cause. To raise a question of title, either upon the 
 pleadings or upon the trial, it must be a title that is 
 disputed by the opposite party; for an admitted or 
 conceded title cannot come in question. Therefore, 
 where in an action for a trespass, the defendant ad- 
 mitted the trespass, but claimed a right of way, 
 which the plaintitl* denied, the claim of title would
 
 plaintiff's costs. 205 
 
 arise upon the pleadings, and that would be the 
 question to try. But where the defendant claimed 
 a license to the locus in quo, title would not arise, the 
 license being the question to try. 1 Coiven, 568. So, 
 in trespass on uncultivated lands, of which the 
 plaintiff had no actual occupation, and consequently 
 was bound to sheAV a constructive possession, by 
 shewing title, even though the defendant on the 
 trial admitted the plaintiff's title, it was held, under 
 the old statute, which is similar to the present, that 
 title came in question, and that the plaintiff recov- 
 ering any damages was entitled to costs. S Cowen, 
 115. It is not necessary tliat the title claimed 
 should be derived from a deed or grant, but where 
 it is claimed by adverse possession or prescription, 
 it involves the question of title. 3 Cowen, 382. 
 
 It is required also, that the claim of title, whether 
 it arises upon the pleadings or on the trial, should 
 hQ necessary, oihQxwise the plaintiff will not be enti- 
 tled to recover costs. Thus, in an action for a tres- 
 pass upon enclosed and cultivated lands, j/o^i'e^s/oyi 
 being sufficient to maintain the action, title thereto 
 need not be shewn. So, where lands were unen- 
 closed and unimproved for any purpose, except that 
 on it, there were two buildings used as a black- 
 smith's shop and store house; in an action for tres- 
 pass for taking and carrying away stones therefrom, 
 it was held, that title did not come in question, al- 
 though the plaintiff offered to shew title, and which 
 was not done because admitted by the defendant. 7 
 Wendell, 495. 
 
 In order to recover costs in these cases, whether 
 the claim of title arises upon the pleadings or comes
 
 206 plaintiff's costs. 
 
 in question on the trial of the action, a certificate 
 to that effect must be granted by the justice or ref- 
 erees, who tried the cause. Upon the production of 
 such certificate to the clerk, he will allow the plain- 
 tiff costs in the entry of judgment. But without 
 such certificate, the clerk is not authorized to allow 
 to the plaintiff any costs, unless he recover fifty dol- 
 lars or more. It seems that such certificate when 
 granted is not reviewable, and is therefore final. It 
 is an crder, and not included among the orders 
 made by a single judge, from which an appeal may 
 be taken to the general term. Code, § 849. 
 
 Costs are also allowed of course to the plaintiff 
 upon a recovery, 
 
 2. In an action to recover the possession of per- 
 sonal property. 
 
 In this action, however, the costs are restricted to 
 the amount of the recovery, and the plaintiff can re- 
 cover no more costs than damages, unless he recov- 
 ers fifty dollars or more, or unless the damages, to- 
 gether with the value of the property amounts to 
 fifty dollars. Such value must be determined by 
 the jury, court or referee, by whom the action is 
 tried. 
 
 There is a dis'.inction between costs and disl>icrse- 
 ments, and therefore in every case where the prevail- 
 ing party recovers any costs, he is entitled to recover 
 his necessary disbursements also. 
 
 Section 311 of the Code provides that "the clerk 
 shall insert in the entry of judgment, on the appli- 
 cation of the prevailing party, upon two days' no- 
 tice to the other, the sum of the charges for costs, 
 and the necessary disbursemcn's allowed by law."
 
 plaintiff's costs. 207 
 
 It is not necessary that the prevailing party should 
 recover full costs, to entitle him to his clishurse- 
 ments; but if he recover any costs, he is allowed his 
 disbursements in addition. Thus, in an action to 
 recover the possession of personal property, if he re- 
 cover but ten dollars, he can recover but ten dollars 
 costs; but he may, in addition, recover his disburse- 
 ments. In the old "fee bill," no such distinction 
 was made between costs and disbursements. Taylor 
 vs. Gardner, 4 How. Pr. R. 69. 
 
 So, costs are allowed of course to a plaintiff upon 
 a recovery. 
 
 3. In actions in which the people of this state 
 are a party, excepting for penalties not exceeding 
 one hundred dollars. 
 
 In actions, originally commenced in a court of 
 a justice of the peace, where a defence of title was 
 made, or where title came in question on the trial. 
 
 In actions upon accounts, where the sum total of 
 the accounts of both parties exceed four hundred 
 dollars. 
 
 In actions for an assault, battery, false imprison- 
 ment, libel, slander, malicious prosecution, criminal 
 conversation and seduction; and 
 
 In actions against executors and administrators, 
 as such. 
 
 The foregoing actions cannot be tried by a justice 
 of the peace, and hence the plaintiff upon a re- 
 covery, is allowed costs of course; and he will be 
 entitled to his full costs and disbursements, in all 
 such cases, except, that in actions for assault, bat- 
 tery, false imprisonment, libel, slander, malicious 
 prosecution, criminal conversation or seduction, if 
 the plaintiff recovers less than fifty dollars damages,
 
 208 , PROMISSORY NOTES, ETC. 
 
 he can recover no more costs than damages. He 
 will, however, be entitled to recover his disburse- 
 ments in addition. See 4 Hoiv. Pr. R. 67. 
 
 In all actions for the recovery of money, where 
 the plaintiff recovers fifty dollars or more, he is en- 
 titled to full costs, and his disbursements. 
 
 Promissory notes, S^c] — Where several actions are 
 brought on one bond, recognizance, promissory note, 
 bill of exchange, or other instrument in writing, or 
 in any other case, for the same cause of action, 
 against several parties who might have been joined 
 as defendants in the same action, no costs, other 
 than disbursements, will be allowed to the plain- 
 tiff in more than one of such actions. Cide, § 304. 
 Thus, in an action upon a promissory note, a joint 
 suit against the makers and endorsers is authorized. 
 Code, § 120. If, in such a case, several suits are 
 brought, the plaintiff can recover costs in only onQ 
 of such suits, and his disbursements in the others. 
 The plaintifi' may elect in whicdi of such :-uits he 
 will take the costs and in which he will take the 
 disbursements. 
 
 If, at the time of commencing a suit against the 
 parties to a bill, note, or other instrument, some of 
 such parties are out of the state, or are secreted 
 within the state, separate suits may afterwards be 
 instituted against such parties, and the plaintiff will 
 be entitled to recover his costs and disbursements 
 therein. 
 
 Dc.fmdani's costs.'] — In the several actions which 
 have been spoken of, costs will be allowed of course 
 to the defendant, unless the plaintiff is entitled to 
 costs therein. Code, § 305. In other words, in all
 
 ^COSTS IN THE DISCRETION OF THE COURT. 209 
 
 such actions, if the plaintiff fails to recover suffi- 
 <;ient damages to entitle him to costs, he will have 
 to pay costs to the defendant, who may have them 
 allowed to him in the judgment. 
 
 Costs in the discretion of the Court.] — In all actions, 
 other than those which have been mentioned, the 
 costs are entirely in the discretion of the court, who 
 may grant or refuse them, as shall be just and equi- 
 table between the parties. So, where there are sev- 
 em\ defendants, not united in interest, who make 
 separate defences, by separate answers, and the 
 plaintiff fails to recover judgment against all, it is 
 -discretionary with the court, to award costs or not, 
 to such defendants as have judgment in their favor 
 or to any of them. Code, § 306. 
 
 There are cases, however in which both plaintiff 
 and defendants in the same action will be entitled to 
 costs. Thus, in actions for the partition of lands ; 
 or, actions in relation to a trust estate, wheie the 
 plaintiff fails, and the like. In these cases, both 
 parties are entitled to costs, to be paid out of the 
 property or estate. 
 
 Cast^ against infant plaintiff.] — Where the costs of an 
 action are adjudged against an infant plaintiff, his 
 guardian, by whom he appeared and prosecuted the 
 action is liable to pay them. And where judgment 
 for such costs has been entered, the payment thereof 
 may be enforced by an attachment against the guar- 
 dian. Code, § 316. 
 
 Costs by or against -adminisfraf or s and trustees.] — Ordi- 
 narily, executors and administrators, who necessa- 
 rily prosecute or defend actions in regard to the es- 
 tate they represent, are not personally liable to pay 
 
 14
 
 210 COSTS AGAINST EXECUTORS AND ADMINISTRATOKS^.- 
 
 costs to the prevailing adverse party. So, trustees- 
 ofan express trust, and persons expressly authorized 
 by statute, are in like manner, usually exempt from 
 the payment of costs personally. But in all such 
 cases, the prevailing party is allowed his costs, and 
 they are chargeable Uj^on, and may be collected out 
 of the estate, fund or party represented. There are 
 eases, however, where the court may direct the 
 costs to be paid personally by the executor, admin- 
 istrator, trustee or other person, as where they have 
 been guilty of mismanagement or bad faith in pros- 
 ecuting or defending the action. Code, § 317. 
 
 In regard to executors and administrators, it is 
 provided by § 317 of the Code, that costs shall not be 
 allowed against them, in cases where they are now 
 exempted therefrom by § 41 of title 3, chap. 6, part 
 2, of Rev. Stat. 2 Rev. Stat. 90 
 
 The Revised Statutes provide that in suits against 
 executors or administrators, no costs shall be reco- 
 vered against them; nor shall any costs be recov- 
 ered against them to be levied of their property or 
 of the property of the deceased, unless it appear 
 that the demand on wh:ch the action was found- 
 ed was presented within six months from the 
 first publication of the notice to creditors, and was 
 unreasonably resisted or neglected, or that tlie de- 
 fendant refused to refer the same, pursuant to a 
 previous section ; in which cases the court may di- 
 rect such costs to be levied of the property of the 
 defendants, or of the deceased, as shall be just,, 
 having reference to the facts that appeared on the 
 trial. Such facts are to be certified by the judge 
 before whom the trial was had.
 
 COSTS IN ACTIONS BY THE PEOPLE. 
 
 211 
 
 Under this statute it has been decided, that costs 
 will not be allowed against executors, on the ground 
 that they omitted to give the requisite notice for 
 creditors to exhibit their claims, if the suit was 
 brought before the time for giving the notice had 
 arrived. 6 Hill 386. Nor, where a claim was pre- 
 sented to one of several executors, which he dispu- 
 ted, but declined to refer, saying he wished to con- 
 sult his co-executors before doing so, and the cre- 
 ditor, without waiting a reasonable time for that 
 purpose, commenced a suit. Ibid. 
 
 So, if the executor omits to give the notice to 
 creditors required by law, costs will be collectable 
 out of the estate of the deceased. 22 Wendell, 571. 
 
 In suits against executors the plaintiff cannot 
 enter judgment for costs without fiist obtaining 
 leave from the court. 6 Hill, 386. And so, in ac- 
 tions prosecuted or defended by trustees of an 
 express trust, or a person expressly authorized by 
 statute, the leave of the court must be obtained, 
 before a judgment for costs can be entered. Such 
 leave may be given at the trial, or upon a motion 
 subsequently made for that purpose. 
 
 Costs in actions hy the people.] — In actions prosecuted 
 in the name of the people of this state, for the re- 
 covery of money or property, or to establish a right 
 or claim for the benefit of any county, city, town, 
 village, corporation or person, if the costs of the 
 action are awarded against the plaintiff, they are 
 not recoverable from the people, but the county, 
 city, town, village, corporation or person, for whose 
 benefit such action was prosecutcjd, will be liable 
 for such costs. Code, § 320. But in civil actions
 
 212 COSTS AGAINST ASSIGNEES. 
 
 prosecuted in the name of the people of this state, 
 by an officer duly authorized for that purpose, the 
 people are liable for costs in the same cases, and to 
 the same extent, as private parties. If a private 
 person is joined with the people as plaintiff, he is 
 liable in the first instance for the defendant's costs^ 
 which cannc/t be recovered from the people, till 
 after an execution has hr.en issued against the pri- 
 vate party, and returned unsatisfied. Code, § 319. 
 
 Costs against assignees ] — If a plaintiff, after having 
 commenced a suit, assign to a third person, not a 
 party to the action, the subject matter of the suit, 
 such assignee will be liable in the same manner, as 
 if he was a party. And so, when a person not a 
 party to the suit, becomes the owner of the cause 
 of action, otherwise than by assignment, such person 
 will be liable for the costs of the suit. Code, § 321. 
 
 Costs on review in special proceedings.] — Where the 
 decision of a court of inferior jurisdiction in a spe- 
 cial proceeding, (as it may be in cases provided by 
 law, as in cases of summary proceedings to recover 
 the possession of lands when a common law certi- 
 orari lies to review the proceedings, and in similar 
 cases,) is brought into the Supreme Court for review. 
 Such proceeding for the purposes of costs is deemed 
 an action at issue, on a question of law, from the 
 time the same is brought into the Supreme Court, 
 and the costs thereon are awarded and collected in 
 such manner as the court may direct, according to 
 the nature of the case. The rate of costs that would 
 be recoverable in such cases, are the same as in 
 issues of law, a? demurrers, in the Supreme Court, 
 and not tiie costs on appeal to the Supreme Court.
 
 AMOUNT OF COSTS. 213 
 
 Costs of putting off trial] — Upon an applicntion to 
 put off the trial of a cause, either to a court or re- 
 ferees, the court or referees, have the power to im- 
 pose as a condition of granting the postponement, 
 the payment of a sum not exceeding ten dollars, 
 besides the fees of witnesses. Code, § 314. 
 
 Costs of motions.] — The costs of making or resisting 
 motions are entirely in the discretion of the court; 
 when allowed, however, they cannot exceed the 
 sum of ten dollars. 
 
 AMOUNT OF COSTS RECOVERABLE. 
 
 1. To the plaintiff . — In cases where the plaintiff is 
 entitled to recover costs, they are as follows: 
 
 If the action be one where judgment upon failure 
 to answer, may be had without application to the 
 court, and no answer or demurrer is put in, seven 
 dollars, and the necessary disbursements allowed by 
 law. If the action be one, where judgment upon 
 failure to answer can only be taken on application 
 to the court, and no answer or demurrer is put in, 
 twelve dollars, besides the disbursements. 
 
 In actions where an issue is joined, by the service 
 of an answer or demurrer, the plaintiff's costs are as 
 follows : 
 
 For all proceedings before notice of trial, if the 
 action be one where judgment upon failure to an- 
 swer, might have been had without application to 
 the court, seven dollars;, if the action be one where 
 judgment could only be taken on application to the 
 court, tivelve dollars. 
 
 For all subsequent proceedings before trial, seven 
 dollars. 
 
 For the trial of an issue cf]aw, fifteen dollars. 
 
 For the trial of an issue oi^ i^act, fifteen dollars.
 
 214 COSTS UPON APPEAL. 
 
 For the trial of an issue of fact and of law, when 
 tried at the same time, twenty dollars. 
 
 2. To the defendant. — For all proceedings before no- 
 tice of trial, five dollars. 
 
 For all subsequent proceedings before trial, seven 
 dollars. 
 
 For the trial of an issue of law or fact, tivelve dol- 
 lars. 
 
 For the trial of an issue of law and fact, when 
 tried at the same time, fifteen dollars. 
 
 To either party on appeal to the Court of Appeals, 
 before argument, twenty-five dollars ; for the argument, 
 fifty dollars, besides the disbursements. 
 
 To either party on an appeal to the Supreme Court, 
 from ?i judgment of a single judge of the same court, 
 or of an inferior court, before argument, fifteen dol- 
 lars; for argument, thirty dollars, besides disburse- 
 ments. («) Livingston v. Miller, 4 How. Pr. R. 42; Wil- 
 son V. Allen, Id. 54. 
 
 (a) The sixth sub. §:W7 of the Code, is as follows: " To either party on ap- 
 peal, excepting to the Court of Appeals, before argument, fifteen dollars; for 
 argument, thirty dollars; hut this provision shall not apphjto appeals in caes uther 
 than those mentioned in section 349." Section 34'J relates to appeals from order* 
 made by a single judge of the same court. If section 307 is to be read literally, 
 no costs are recoverable upon appeals h-om judgments in the Supreme Court, or 
 of inferior 'ourts, and the large sum of forty-five dollars, besides disbursements, 
 are given upon appeals from orders. That the Legislature intended directly 
 the reverse of this, we think cannot soberly be doubted. There is every rea- 
 son in favor of giving these conts in cases of appeals from judgments, and 
 against giving them in appeals from orders. This section has not, except in 
 one or two cases, received a judicial construction, and those cases are not re- 
 l)or(eil; but they are understood to be in favor of applying the costs to apjieals 
 from judgments, and not from orders. In the construction of a statute, the in- 
 tentii,n of the law makers is to control. In the language of Thompson, J. (Peo- 
 ple V. Utica Ins. Co. 15 John. Rep. 380,) "Such construction ought to be put 
 ujion a statute as may best answer the intention which the makers had in view. 
 And this intention is sometimes to be collected from the cause or necessity of 
 making tlie statute, and sometimes from other circumstances; and whenever 
 such intention can be iliscovered, it ought to be followed with reason and dis- 
 cretion in the construction of the statute, although such construction seem con- 
 trary to the Utter of the statute. Where any words are obscure or doubtful, the
 
 COSTS UPON APPEAL. 215 
 
 "Oosts on appeals from orders made by a single 
 judge of the same court, are in the discretion of the 
 court. Savage §- Cowen v. Darroto, 4 Hoiv Pr. R. 74. 
 
 inteniion of the Legislature is to be resorted to, in order to find the meaning 
 of tlie words. A thing which is within the intention of tlie makers of the 
 statute, is as much within the statute as if it were within the letter; and a 
 thing which is within tiie letter of the statute, is not xvithin ti.e statute, unless it 
 be uitliin the intention of the makers.'" 
 
 Now, applying tliis rule of construction to the statute under consideration, 
 the only difficulty that will be presented, is to discover the intention of the Le- 
 gislature. There are various ways of ascertaining what the law makers in- 
 tended, either or all of which may be resorted to, to aid in the construction. 
 The language used, the preamble, other parts of the same statute, the neces- 
 sity which produced it, and other circumstances, may be called in, to aid in ar- 
 riving at the intention. The letter of the law is its bodij, the intention of the 
 Legislature is its spirit; and its spirit must control, although it be inconsis- 
 tent with its letter. By section 304, it is provided that the plaintifT shall be 
 allowed costs of course upon a recovery in the cases eniimerated in that sec- 
 tion, which incluiles almost every species of case. 
 
 I3y section 305, it is provided that the defendant shall be allowed costs of 
 course, in all cases unless the plaintiff is allowed costs therein. Thus, the plain- 
 tiffor defendant, is allowed costs, of course, that is absolutely, ii every case. 
 These sections give to the parties, costs, not only for the trial, but also upon ap- 
 peal, so that ujion any construction one of the parties upon an appeal from a 
 judgment of a single judge to the Supreme Court, is entitled to costs, and 
 the only tioubt there can be, is, as to the amount of those costs. Section 307 
 prescribes the amount of costs which the party is entitled to, when allowed to 
 himatall. These different sections are in immediate connection with each 
 otTier, and should be all taken together in giving a construction to any part of 
 them. It is certainly unreasonable to suppose, tliat after absolutely giving 
 costs to the party, as well upon appeal as in other cases, the legislature intend- 
 ed in the same connection to say, that such party should not have costs, yet 
 they do suij so. By section 30(j, w^hen a new trial is granted, or when a judg- 
 ment is affirmed in part and reversed in part, the costs are in the discretion of 
 the court. Why put them in the discretion of the court if they intended to give 
 no costs upon appeal? For tlic only manner in which questions can be pre- 
 sented for review to the Supreme Court, is by appeal, and they cannot grant or 
 refuse a new trial or affirm or reverse a judgment, except it comes before them 
 upon appeal. If, therefore, section 307, sub. 6, is to receive a literal con truc- 
 tion, the court may in the exercise of their discretion, give costs, in direct and 
 most palpable opposition to it. In addition to this, in all appeal cases, security 
 for costs on the appeal must be given when by the literal rea ling of the section 
 under consideration, no costs are allowed. It is fair to presume, that, the leg- 
 islators have made a mista.e and have written in the words "other than those" 
 when they intended to leave them out. So that it would read, "but this pro- 
 vision shall not apply to appeals in cases mentioned in section 349," thus ex- 
 cluding from its operation appeals from orders. If, therefore, it is evident 
 that such was the intention of the legislature, and that they have made a mis- 
 take,in using words which convey a different meaning, has the court, in giving 
 a construction to the statute, the right to strike out tvords to carry into effect
 
 216 ADDITIONAL ALLOWANCES. 
 
 To either party, for every circuit or term, at which 
 the cause is necessarily on the calendar, and not 
 reached or is postponed, excluding that at which it 
 is tried or heard, ten dollars. AVhen a cause is re- 
 ferred at the circuit, the prevailing party is entitled 
 to ten dollars costs of the circuit, to be included as 
 part of his costs, in the judgment. Benton v. Sheldon 
 and others, 1 Code Rep. 134. 
 
 Additional alloivances.} — In addition to the items of 
 costs, tO; which the prevailing party is entitled, as 
 has been before stated, the court has the power, in 
 certain cases, to grant an extra allowance. Thus, 
 if the action be for the recovery of money, or of 
 real or personal property, the court may, if the ac- 
 tion is difficult or extraordinary, and a trial has been 
 had, make an allowance of not more than ten per 
 cent, on the recovery or claim, for any amount not 
 exceeding five hundred dollars; and not more than 
 five per cent for any additional amount. Code, § 308. 
 
 Under this section, it has been decided that the 
 percentage will not be allowed merely on account 
 of a defence being interposed for delay. Hall vs. 
 Prentice, 1 Code Rep., 81. 
 
 a plain. and manifest intention? The courts liave frequently changed words in a 
 atatute in order to give effect to tlie intent of the law makers. Thus they have 
 construed "may" to mean "must," (1 Pef. 64.) and "void" to mean "voidable." 
 13 Mass. 515; 6 Pick. 483. So in wills, "or" to mean "and," (6 John. Rep 54.) 
 thus changing^ the language employed by tlie legislature or testator. This i% 
 upon the principle that it is necessary, in order to give full effect to the inten~ 
 tion. And the court will enlarge or restrain the language of a statute, if the- 
 spirit of the act re(iuire it. 14 Ma^s. 88, 92. 1 Pick. 248, 458. 1 Mass. 3S3. Nor 
 is it necessary that the words of the statute, themselves should be ambiguous. 
 1, Pick, 248. It is sutTicicnt that they do not express the intention and mean- 
 ing of the law makers. In looking, therefore, at the statute under considera- 
 tion, and applying these rules of construction to it, we must necessarily arrive 
 at the conclusion, that costs upon appeals to the Supreme Court, from judg- 
 ments entered under the direction of a single judge, and judgments of inferior 
 courts, arc recoverable, notwithstanding section 307 of the Code literaUi/ dis- 
 allows them. The abo\ e note was printed before the author saw the case cited 
 in the text. •
 
 PERCENTAGE HOW COMPUTED. 217 
 
 Parker J. puts it upon the ground that the case is 
 neither difficult nor extraordinary. 'I'he defendant had 
 answered, but did not appear at the trial, and an 
 inquest was taken. This and similar decisions were 
 made before the Code was amended. It is now 
 provided that such allowance or percentage may be 
 made in any case, where the prosecution or defence 
 has been unreasonably or unfairly conducted. Codcy 
 § 308. 
 
 A defence interposed merely for delay, would 
 doubtless be regarded as unreasonable ; and if the 
 court are satisfied that such was the object, they 
 will allow the percentage. The question, however, 
 has not been decided, {a) 
 
 Such allowances may likewise be made, upon the 
 recovery of judgment in an action for the partition 
 of real property, or for the foreclosure of a mortgage, 
 or in which a warrant of attachment has been 
 issued, or for the construction of a will or other in- 
 strument in writing, and in proceedings to compel 
 the determination of claims to real property. In 
 these cases, the allowance is of course, in the dis- 
 cretion of the court, and it is not necessary that the 
 case should be difficult or extraordinary, or that the 
 prosecution or defence should have been unreason- 
 ably or unfairly conducted. 
 
 Per centage how computed.] — The amount upon which 
 the per centage is to be computed, is as follows: Code 
 § 309, sub. 1, 2. 
 
 If the plaintiff recovers judgment, it must be upon 
 the amount of money, or value of the property re- 
 covered, or claimed, or attached, or affected by the 
 
 (a) Since the work has been in press, this point has been decided. See IVil- 
 lard V. Andrews, 4 How. Pr. R. 65.
 
 213 INTEREST ON VERDICT. 
 
 construction of the will, or sought to be partitioned, 
 or the amount due upon the mortgage in an action 
 for foreclosure. 
 
 If the defendant recover judgment, it must be up- 
 on the amount of money, or the value of the proper- 
 ty claimed by the plaintiff, or attached, or affected 
 by the construction of the will, or of the defendant's 
 interest in the property sought to be partitioned, or 
 the amount claimed in an action for foreclosure of a 
 mortgage. Code, § 309, sub. 2. 
 
 How asctrtai?ied.] — The amount or value upon which 
 the per centage is to be computed, must be deter- 
 mined by the jury, court or referees, by whom the 
 action is tried, or judgment rendered, or by the com- 
 missioners appointed to make partition. 
 
 The order for the extra allowance, should be made 
 by the judge before whom the action is tried, or the 
 judgment rendered Rule 86. Sackel v. Ball, 4 How, 
 Pr,R. 71. 
 
 In actions tried by referees however, the cowi, not 
 the referees, can make the allowance. As in this 
 case the application must necessarily be to the court 
 at a special term. Tile referees who try the cause 
 however, are better able to determine whether the 
 case be one in which the allowance ought to be 
 made, than a judge who derives his knowledge} of 
 the facts from the papers used upon the motion, and 
 their certificates will have great weight upon the 
 motion. 
 
 Interest on verdict.] — When the judgment is for the 
 recovery of money, interest from the time of the 
 verdict or report, until judgment is finally entered, 
 must be computed by the clerk, and added to the 
 costs of the party entitled thereto.
 
 clerks' fees. 219 
 
 Costs on settlement of the action.]— Vpon a settlement 
 of the action, at any time before judgment, tlie 
 plaintiff is entitled to the costs, at the rate before 
 stated, up lo tie time of the settlement. Thus in 
 an acticn upon a promissory note, if settled before 
 answer put in, the plaintiff will be entitled to seven 
 dollars, and in actions where an application to the 
 court would be necessary, he will be entitled to 
 twelve dollars. Rockefeller v. Weiderwax, 2 Code Rrp , 3. 
 
 Clerks' fees.] — The clerk of the county where the 
 trial is had, who is also clerk of the court, is enti- 
 tled to receive on every trial, from the party bring- 
 ing it on, the sum of one dollar; and for entering a 
 judgment, fifty cents, except when the clerk is a 
 salaried officer, and in such cases, the clerk's fees 
 for entering judgment is one dollar. 
 
 When a judgment is docketed in a county, other 
 than that in which it is originally entered, by the 
 filing of a transcript, the clerk is entitled to a fee of 
 six cents. 
 
 The clerk is not entitled to a trial fee, unless the 
 cause is actually tried It being on the calendar 
 and referred, does not entitle the clerk to a trial fee. 
 Benton Y. Sheldon, 1 Cade Rep., 134. 
 
 Entering costs in the judgment.] — It is the duty of the 
 clerk to insert in the entry of judgment, on the ap- 
 plication of the prevailing party, upon two days' 
 no ice to the other, the sum of the charges for costs, 
 and the necessary disbursements and fees of officers 
 allowed by law, including the compensation of r.^f- 
 erees, and the expense of printing the papers upon an 
 appeal. 
 
 Adjusting costs ^ — Formerly the costs to which the
 
 220 CORRECT OR SET ASIDE ADJUSTMENT OF COSTS. 
 
 party was entitled were taxed by one of the officers 
 of the court, and after such taxation, were inserted 
 in the judgment record. A similar duty now de- 
 volves upon the clerk of the county, v/here the judg- 
 ment roll is to be filed, who is required to settle 
 and adjust the costs, upon the application of the 
 party entitled to them. If an objection is made to 
 any of the items of the costs or disbursements, it is 
 the duty of the clerk to determine such objection, 
 and allow or disallow the item objected to. The 
 objections must be specifically taken, and if the 
 clerk requires any evidence to enable him to deter- 
 mine the objection it must be furnished to him, by 
 affidavit or other proof 
 
 Motion to correct or set aside adjustment of costs.'] — If 
 either party is dissatisfied with the adjustment of 
 the costs by the clerk, he may move the court to 
 correct or set it aside. Whipple y. U illiams, 4 How. Pr. 
 Rep., 28 ; Livingston v. Miller, Id. 42. This is con- 
 ducted, in all respects, like other special motions. 
 An affidavit must be made of the proceedings be- 
 fore the clerk, and it being in the nature of a review 
 of the decisions of the clerk, the same objection and 
 affidavits made and used before the clerk only, can 
 be used upon the motion to correct or set aside. 
 
 Upon the motion the court may refer it back to 
 the clerk for readjustment, or may make the correc- 
 tions without such reference. In either case the 
 order should be that the amount deducted from the 
 costs, be deducted from the judgment and execu- 
 tion.
 
 THE EXECUTION. 221 
 
 SECTION XII. 
 
 Of the Execution. 
 
 An execution is tlie process issued by the attorney 
 to enforce the judgment. Formerly, an execution 
 issued out of the court, was under seal, tested in the 
 name of the chief justice or first judge, and was 
 subscribed by the clerk. AH these formalities are 
 now dispensed with, and the execution is a simple 
 direction to the sheriflf or other officer, requiring him 
 to collect the judgment or deliver the real or per- 
 sonal property, according as the judgment is. 
 
 Division of Executions.'] — As the execution is the 
 process used for the enforcement of the judgment, 
 it must of course pursue the tenor of the judgment 
 strictly, and it will necessarily assume different 
 forms, according to the nature of the action and of 
 the recovery. 
 
 There are three kinds of executions: one against 
 the property of the judgment debtor, another against 
 his person, and the third for the delivery of the pos- 
 session of real or personal property, or such delivery 
 with damages for Avithholding the same. 
 
 These will be noticed separately. 
 
 Executions against the property of the judg?ne?it debtor.] 
 — In all cases where a general judgment is render- 
 ed, for the recovery of money, in favor of the one 
 parly or the other, an execution against the proper- 
 ty of the judgment debtor may be issued to collect 
 the judgment. This execution is proper in all cases, 
 except where the judgment is for the delivery of 
 the possession of real or personal property. An ex-
 
 222 EXECUTIONS AGAlNSr THE PERSON. 
 
 edition against the pirson of the judgment debtor 
 can in no case be issued, until after the return of 
 an execution against his property, unsatisfied in 
 whole or in part. 
 
 Tlie execution against the property requires the 
 officer to satisfy the judgment out of the personal 
 property of the judgment debtor, and if sufficient 
 personal property cannot be found, then to satisfy 
 the same out of the real property belonging to such 
 judgment debtor, on the day when the judgment 
 was docketed in the county, to which the execution 
 is issued, or at any time thereafter. Code, § 289, suh. 1. 
 If the judgment be against real or personal proper- 
 ty in the hands of personal representatives, heirs, 
 devisees, legatees, tenants of real property or trus- 
 tees, the execution must require the sheriff to sa- 
 tisfy the judgment out of such property. Code, § 289, 
 suh. 2. The execution against the property of the 
 judgment debtor, generally, may be issued to the 
 sheriff of any county where the judgment is dock- 
 eted. Code, § 287. So executions may be issued at 
 the same time to different counties. Id. 
 
 Executions against th?. pp.rson ] — Upon the recovery 
 of a judgment in any of the cases in which a de- 
 fendant may be arrested and held to bail, pursuant 
 to §§ 179, 181, of the Code, (see ante, p. 53) and the 
 return of an execution against the property of the 
 judgment debtor, unsatisfied in whole or in part, an 
 execution against the person may be issued. It re- 
 quires the sheriff to arrest the judgment debtor, and 
 commit him to the jail of the county until he shall 
 pay the judgment, or be discharged according to 
 law. Code, § 289, sub. 3. It is sufficient for the pur-
 
 EXECUTIONS. 223 
 
 pose of charging the bail, if the execution against 
 the person is issued to the countj^ where the action 
 was tried, or designated in tlie complaint for the 
 trial thereof. 
 
 Executions for the delivery of the possession of real or 
 personal property.] — If the judgment be for the de- 
 livery of the possession of real or personal property, 
 the execution must require the sheriff to deliver the 
 possession thereof to the person entitled to it. It 
 must particularly describe it, so that the officer may 
 be able to make delivery of the right property. If 
 the judgment be also for costs and damages, or 
 costs and rents and profits as it may be in actions 
 for the recovery of either real or personal property, 
 the execution should at the same time require the 
 sheriff to satisfy such cotts, damages or rents out of 
 the personal property of the party against whom the 
 judgment vi^as rendered. And if a delivery of the 
 property cannot be had, then the execution should 
 also require the sheriff to satisfy the value of the 
 property for which the judgment was recovered. 
 Such value must be specified in the execution. 
 And if sufficient personal property cannot be found, 
 then to satisfy such damages, costs, rent and value, 
 out of the real property, belonging to the person 
 against wliom the judgment was rendered, belong- 
 ing to him on the day when the judgment was 
 docketed or at any time thereafter. In these re- 
 spects it is deemed an execution against the proper- 
 ty. Code, § 289. 
 
 When execution may issue.] — An execution for the 
 enforcement of a judgment may be issued at any 
 time within five years after the entry of judgment.
 
 224 EXECUTION'S. 
 
 Consequently, immediately upon docketing the ju<lg- 
 ment, the party in whose favor it is rendered may 
 issue execution. Code, § 283. After the lapse of five 
 years, however, from the entry of judgment, an ex- 
 ecution can issue only by leave of the court. For 
 which purpose a motion must be made, on notice 
 to the adverse party. The motion is made in the 
 same manner, and upon like notice as in other special 
 motions. As to which see post. The party moving 
 for such leave must establish by his own oath or 
 other proof, that the judgment or some part thereof, 
 remains unsatisfied and due. The motion or appli- 
 cation for leave to issue execution after five years, 
 must be made to the court in which the judgment 
 was rendered, except where it was rendered in a 
 court of a justice of the peace or in a justices' or 
 other inferior court of a city and docketed in the 
 office of the clerk of the county, in which case the 
 motion must be made in the county court of the 
 county where the judgment was rendered. In the 
 city and county of New- York, however, the motion 
 must be made to the court of common pleas, of that 
 city and county. 
 
 Execution, how directed and what to contain. ^^ — The 
 execution must be directed to the sheriff of the 
 county, or, in case he is a party, or interested in 
 the judgment, \o the coroners of the county. It 
 must be subscribed by the party issuing it, or by 
 his attorney, if he have one, and must intelligibly 
 refer to the judgment, stating the court, the county 
 where the judgment roll or transcript is filed, the 
 names of tlie parties, the amount of the judgment, 
 if it be for money, and the amount actually due 
 thereon, and the time of docketing in the county
 
 EXECUTIONS. 225 
 
 to which the execution is issued, and must require 
 the officer to satisfy the judgment, or deliver the 
 property, according as the judgment is. Code, § 289. 
 
 Execution, ivhen returnable.^ — The execution is re- 
 turnable within sixty days after its receipt by the 
 officer, and must, within that time, be returned by 
 the officer to the clerk of the county with whom 
 the record of judgment is filed. The sheriff has all 
 the time within the sixty days to make the execu- 
 tion. And a return cannot be enforced until the 
 sixty days have elapsed. The sheriff, however, 
 may return it at any time, even one day after the 
 receipt of it. Messenger y. Fisk, 1 Code Rep., 106, and 
 see proceedings supplemental to execution, post. 
 
 Where the judgment dors not require the payment of 
 money or delivery of property. '\ — "Where the judgment 
 requires the performance of some act, other than the 
 payment of money or the delivery of real or per- 
 sonal property, a certified copy of the judgment 
 must be served on the party against whom it is 
 given, or upon the person or officer who is required 
 by the judgment or by law to obey or perform the 
 same. His obedience thereto, in case such party 
 or person or officer refuse, may be enforced by the 
 court, as for a contempt Code, § 285. 
 
 And in case the sheriff does not return the 
 
 execution within the time limited for that purpose, 
 
 a notice may be served on him, requiring him to 
 
 return the execution, within ten days thereafter, or 
 
 shew cause, at a special term to be mentioned in 
 
 the notice, why an attachment should not issue 
 
 against him. Rule 6. 
 
 15
 
 CHAPTER VI. 
 
 OF EXCEPTIONS, OR CASE TO MOVE FOR NEW TRI- 
 AL, OR SET ASIDE NON-SUIT, SPECIAL VERDICT 
 AND DEMURRER TO EVIDENCE. 
 
 The practice of this court as it existed previous to 
 the adoption of the Code of Procedure, authorized 
 either party, desiring to review the decisions of the 
 circuit judge, in admitting or rejecting evidence, in 
 non-suiting the plaintiff or overruling the defence, 
 and in applications for judgment upon special ver- 
 dicts, and demurrer to evidence, to make a bill of 
 exceptions or case, and present it to the court in 
 banco for its judgment. 
 
 In these cases, the proceedings were stayed upon 
 the verdict, and no judgment could be entered un- 
 til the decision of the court. 
 
 The Code is silent upon the subject of the practice 
 of making, settling and arguing a case or excep- 
 tions, except that in trials by the court, where a ju- 
 ry is waived, the case is to be settled according to the 
 existing p actice. But as there is nothing in the ex- 
 isting practice, in respect to making and settling a 
 case or exceptions generally, inconsistent with the 
 provisions of I ho Code, the manner is regulated by 
 the rules and practice of the court as now adopted. 
 Rules 15 and 18. 
 
 The mode of bringing the exceptions or case be- 
 fore the court for review, is, however, essentially 
 changed as will be noticed hereafter.
 
 GRCfUNDS OF EXCEPTIONS. 227 
 
 SECTION I. 
 
 Of Exceptions. 
 
 Exceptions may now as formerly, be taken to any 
 •decision of the judgo, or of referees, whether the 
 cause is tried by a jury, or by the judge without a 
 
 jury- 
 
 Grounds of exceptions.'] — If upon the trial of the 
 
 cause, the judge or referees, either in the charge of 
 the judge to the jury, or in admitting improper tes- 
 timony, or in rejecting legal and competent evidence 
 or in refusing to, or in non-suiting the plaintiff, and 
 generally, in deciding any question of law raised on 
 the tri \\, make a mistake in the law, the counsel on 
 either side may except to such decision. The decis- 
 ion, however must be upon some point of law, ari- 
 sing upon a fact not denied, in which either party is 
 overruled by the court ; (1. Cowen, G22;) or for non- 
 suiting or refusing to non-suit the plaintiff; (6 Coiv- 
 en, 484;) or to notice material testimony, or rejecting 
 proper evidence; (2 Cowen, 479;) or to charge upon a 
 question of law, provided his attention is called to it, 
 but not otherwise; (6 Wend. 268; 8 Wend. Ill; 13 
 Wend. 41;) or for charging erroneously upon a ques- 
 tion of law: but an exception will not lie where 
 there is no error in point of law in the charge, al- 
 though the comments of the judge upon the evi- 
 dence, strongly indicate an opinion adverse to the 
 party against whom the verdict is rendered. 12 
 Wend. 299; 11 Wend. 18; 14 Wend. Ill ; 3 Barh. S. C. 
 419. But a charge upon an immaterial point of law, 
 though erroneous, is no ground for an exception, uu-
 
 228 GROUNDS OF EXCEPTIONS. 
 
 less the court find that the case might have been af- 
 fected by the charge, injuriously to the party. S 
 Wend. 418 ; 1 1 Wend. 83. So where the judge erred 
 in non-suiting the plaintiff, if upon other grounds 
 the action could not be maintained, the court will 
 not grant a new trial. 8 Wend. 494. So, where the 
 judge erroneously refuses to non-suit the plaintiff, a 
 new trial will be denied, if cither party subsequent- 
 ly supplies the delect by evidence. 2 Wend. 56 \; 7 
 iVend. 377 : 2 Hill 205. Exceptions will not lie, for 
 a misdirection of the judge as to a matter of fact. 
 J 4 Johns. R. 304. Nor, is it the proper remedy where 
 the jury find a verdict against evidence. 1 Wend. 
 418; lA Johns. R. 304. Nor are matters resting in 
 the discretion of the judge, as for refusing to open 
 the case to let in more testimony, where the testimo- 
 ny has been closed, (2 Hill 248.) or, to postpone the 
 trial (3 Hill 432) or, to suspend the trial until the 
 party could subpoena a witness (4 Hill 119) or for 
 disregarding a variance on the trial (3 Hill 159.) 
 In such cases, the proper course is by motion to set 
 aside the verdict and judgment. 
 
 Exceptions may be taken by either party, and 
 even the party succeeding on the trial may prose- 
 cute the exceptions taken by him, for the purpose of 
 reversing his own judgment, as when he recovers 
 less damages than he is entitled to. 1 Coweny 240, 
 253 
 
 The exceptions mu.st be taken at the trial, and at 
 the time the decision crmplained of is made. When 
 the exception is to the charge of the judge, it may 
 be made at any time before the jury have delivered 
 their verdict. 2 R. S. 422, § 73. 7 Wend. 31. The 
 exceptions must be reduced to writing at the time ; 
 usually a brief memorandum is made on the minutes
 
 SUSPENDING JUDGMENT. 229 
 
 idF the court and counsel, and the exception after- 
 wards drawn out at length. 
 
 Suspending judgment in order to prepare exceptions.] — 
 Prior to the Code, if a party desired to make a bill 
 of exceptions, he procured an order staying proceed- 
 ings upon the verdict for such length of lime as was 
 required to prepare the bill and have it settled, and 
 then obtained an other order, staying proceedings 
 until the argument and decision of the bill. In that 
 case no judgment could be entered until the decision 
 upon the bill of exceptions. Now, however, a judg- 
 ment must be entered, before the exceptions can be 
 heard. Hence, it is provided, (Code, § 265,) that 
 judgment, in conformity to the verdict, shall be en- 
 tered by the clerk, which shall be final after the ex- 
 piration of four days, unless the court, or a judge 
 thereof, order the cause to be reserved for argument 
 or further consideration, or grant a stay of proceed- 
 ings. If, therefore, a party desires to present his ex- 
 ceptions, taken at the trial, to the court for review, 
 he must, m cases of trial by a jury, procure from a 
 judge of the court, an order suspending the entering 
 of judgment, or in other words staying the proceed- 
 ings upon the verdict, until the bill of exceptions i« 
 settled and filed Math the clerk. As the bill of ex- 
 ceptions when settled and filed, forms a part of the 
 judgment roll, it must be filed before the judgment roll 
 is made up by the clerk. When the action is tried 
 by the court, a jury having been waived, the order 
 must b?, suspending the making up of the judgment 
 roll, or in other words, suspending the proceedings 
 upon the judgment, until the bill of exceptions is 
 settled and filed. 
 
 There is this difference between a trial by a jury,
 
 230 SUSPENDING JUDGMENT. 
 
 and a trial by the court, without a jury. In the 
 former case, the proceedings on the verdict must be 
 suspended in order to make the bill of exceptions, 
 and in the latter, the proceedings on the judgment are 
 suspended, for the like purpose. In such case, the 
 judge gives his decision in writing, within twenty 
 days after the court, at which the trial took place, 
 and upon filing the decision, judgment is entered, 
 without notice to the adverse party. A party de- 
 siring a review upon the evidence, either of ques- 
 tions of law or fact, may within tm days after no- 
 tice of the judgment, make a case or bill of exceptions. 
 In all cases of trial by a jury, the party has four 
 days, without an order, to get his exceptions settled 
 and filed. Thes ) four days are intermediate, be- 
 tween the entering of judgment and the making up 
 ajid filing the judgment roll, and if the exceptions 
 can be settled and filed within that time, no order 
 to suspend the judgment or judgment roll is neces- 
 sary. Livingston v. Miller, 1 Code Rep. 117. But when 
 more time is required, the proceedings must be 
 stayed, as has been stated. The decisions of a sin- 
 gle judge upon the law of the case, and any excep- 
 tions taken to his decision, on the trial of a cause, 
 can only be reviewed by the general term vpon an 
 appeal. Hence a bill of exceptions must be made 
 and settled, and filed with the clerk ; judgment in 
 conformity to (he verdict is then entered, and the 
 judgment roll made up and filed. The judgment 
 roll includes the bill of exceptions. Cude2'$>\, sub. .2. 
 The party then appeals, which carries up to the ge- 
 neral term the judgment roll, {Code, § 328,) and the 
 case is heard upon (he bill of exceptions, as incor- 
 porated in the judgment roll.
 
 BILL OF EXCEPTIONS. 231 
 
 Preparing bill of exceptions.] — It is not necessary 
 to prepare the bill of exceptions at the trial, {Rule 1 8,) 
 but the entering of judgment having been suspended, 
 proceed to prepare the bill in the proper form, set- 
 ting forth the evidence offered on the trial, the ob- 
 jections of counsel, the decision of the judge and 
 the exception thereto : or the charge of the judge 
 and the exceptions taken, as the case may be, con- 
 cluding with the verdict of the jury or of the court, 
 where the case is tried without a jury. Properly, 
 the bill of exceptions should contain no more of the 
 evidence than is necessary to present the questions 
 of law raised on the trial. Code, § 268, Rule 27. 
 And it is the duty of the justice, upon the settle- 
 ment of the bill, to strike out of the same all the 
 evidence and other matters which are not necessa- 
 rily inserted. Rule 27. 4 Hill, 119. 1 How. Pr. 
 Rep., 226. 2 Id., 102. When the exception is to the 
 charge of the judge, and the charge embraces 
 several points of law, the exception must, in 
 general, specify the particular points in respect to 
 which the error is alleged. 23 Wendell, 316. And 
 the bill of exceptions must show on its face, that 
 the exceptions were taken on the trial. 5 Hill, 511, 
 The bill being drawn, it must be folioed, and each 
 line of the folios numbered, and in the copy served 
 upon the opposite attorney, the folios and lines must 
 correspond with the draft. Rule 15. A copy must 
 then be served within ten days after the trial or 
 notice of the judgment, upon the attorney for the 
 adverse party. Rule 15. The bill of exceptions and 
 copy must be endorsed, with the title of the cause, 
 putting the plaintiff's name first, and '' proposed 
 bill of exceptions." The bill of exceptions need
 
 232 StTTLING EXCEPTIONS. 
 
 not contain the pleadings, as they are included in 
 the judgment roll, of which the bill, after it is set- 
 tled and filed, forms a part. 
 
 Proposing amendments,'] — If the party upon whom 
 the proposed bill of exceptions is served is dissatis- 
 fied with the manner in which it is drawn up, or 
 finds it incorrect, or if anything which ought to be in 
 has been omitted, he may propose amendments there- 
 to. For this purpose, the amendments are drawn 
 up, specifying therein the alterations or additions 
 which it is claimed should be made. Thus, " after 
 word ' one' in line 7, of folio 9, insert as follow;^," 
 or "at end of line 5, in folio 16, add as follows," or 
 " strike out all after word ' as' in line 8 of folio 25, 
 to and including word 'event' in line 11 of same 
 folio," and the like. The amendments being pre- 
 pared, shoul ! be engrossed, and a copy served upon 
 the attorney of the party proposing the bill of ex- 
 ceptions. Unless the time for proposing amend- 
 ments has been enlarged, they must be served with- 
 in ten days from the time of receiving the proposed 
 bill of exceptions The time for proposing amend- 
 ments may be enlarged by one of the justices of the 
 court, or by a county judge. Code §405. 
 
 Settling exceptions.'] — If the party who proposed the 
 bill of exceptions is not willing to adopt the amend- 
 ments served on him by the opposite party, he must 
 within four days after the receipt of the amendments, 
 give notice to the other party to appear before the 
 justice who tried the cause, within a convenient 
 time, to have the bill and amendments settled. The 
 time for settling the exceptions and amendments 
 must be specified in the notice and must not be less
 
 SETTING ASIDE BILL OF EXCEPTIONS. 233 
 
 than four^ nor more than twenty days after the ser- 
 vice of the notice. Rules 15 and i8. 
 
 The parties have the right to be heard by counsel 
 before the justice, and the justice will amend and 
 correct the exceptions according to the facts. He 
 may correct his charge, even although the parties 
 have agreed upon it, and he may, also, insert such 
 proof as goes to waive the exception. 7 Cowen, 364. 
 
 The exceptions having been settled by the justice, 
 have them engrossed ami folioed, and get the justice 
 to sign and seal it; and this he may be compelled 
 to do by mandamus, if the exceptions state the facts 
 truly. 2 Rev. Stat., 422, §75. 6 Wend. 132. 
 
 Se'ting aside settlement of bill of exceptions. — If the bill of 
 exceptions is improperly settled, the party objecting 
 may move to set it aside. (:0 Wendell, 2.54.) This is 
 conducted like other special motions, and must be 
 upon affidavits of the errors or defects complained 
 of. The court, if it is satisfied the bill of excep- 
 tions is improperly settled, may correct it or refer it 
 back to the justice who tried the cause, to be review- 
 ed and corrected. 5 Wendell, 132. 7 Id. 471. 
 
 Filing exceptions.] — The bill of exceptions having 
 been signed and sealed by the justice, must be filed 
 with the clerk of the county where the action was 
 tried, within ten days after it is sealed by the judge, 
 or it will be deemed abandoned. Ride 19. 
 
 Upon being filed, the case is in a condition to have 
 the judgment entered and judgment roll made up 
 and filed. The bill of exceptions is annexed to and 
 forms a part of the judgment roll. It will be per- 
 ceived by those familiar with the late practice of 
 reviewing cases upon bills of exceptions, that the
 
 234 CASE. 
 
 mode of preparing and settling the bill is essential- 
 ly unaltered. It is only in the bringing the bill to 
 argument, that the Code has made any change. 
 The bill having been settled, must, as has been 
 stated, be filed, and the judgment is entered upon 
 the verdict, or if the judgment has already been en- 
 tered, as in cases of trial by the court, then the 
 judgment roll is made up, which includes the bill 
 of exceptions as settled. Then the party appeals 
 from the judgment, and the appeal carries up the 
 judgment roll. This is the manner in which the 
 bill of exceptions is now heard. The appeal, as will 
 hereafter be seen, stays all proceedings upon the 
 judgment. 
 
 SECTION IT. 
 
 Case. 
 
 Another mode of reviewing the decisions of the 
 judge made upon the trial, is by a case, containing 
 all the evidence and proceedings which transpired 
 upon the tri d. All the questions which can arise, 
 upon a bill of exceptions, may also be raised upon 
 a case. There are also questions which cannot be 
 raised by bill of exceptions, which may be upon a 
 case. Thus, a motion for a new trial may be made 
 upon a case, on the ground that the verdict is 
 against the weight of evidence. 8 Cowen 406 ; 14 
 John. R. 304; Wend. 418. And the court will look 
 into the whole case, to see if there is sufficient evi- 
 dence to sustain the verdict. Id. So, when relief 
 against the verdict is sought on the ground of the 
 excessiveness of the damages, or the smallness of 
 the damages, the proper course is to make a case.
 
 PREPARING THE CASE. 235 
 
 Suspending judgment roll to make a case.'\ — As in the 
 case of preparing a bill of exceptions, if the party 
 who ('esires to make a case, cannot get it made and 
 setlled within the time limited for that purpose, 
 that is, within ten days after notice of the judg- 
 ment, he must obtain an order from the justice who 
 tried the cause, or from one of the justices of the 
 court, or from a county judge, {Code, § 405,) sus- 
 pending the entering of judgment, in case the cause 
 was tried by a jury, or of the judgment roll in case 
 the cause was tried by the court without a jury. 
 This becomes necessary, as the case must be settled 
 and filed with the clerk, before the judgment roll is 
 made up. It is then annexed to and forms a part 
 of the judgment roll. Code, § 281, sub. 2. See 
 a7ite p. 229. 
 
 Preparing the easel — The case must be drawn up, 
 and should contain all the evidence and proceedings 
 that transpired on the trial. It should also contain 
 all the exceptions taken to the decision or charge of 
 the judge. In point of form, the case should set 
 forth, in the same manner as a special verdict, for 
 which it is for some purposes a substitute, the facts 
 with the evidence of them, as proved on the trial: 
 And where the question is, not what is the law 
 arising on the facts proved at the trial, but as to the 
 sufficiency or effect of the testimony offered to prove 
 the facts, then the evidence itself must all be stated. 
 The case need not contain the pleadings, as these 
 are a part of the judgment roll, to which the case, 
 after settlement and filing, is annexed. 
 
 Amendments to settling and filing case.l — Amendments 
 are proposed by the opposite party within the same
 
 236 TURNING CASE INTO BILL OF EXCEPTIONS. 
 
 time, and the case is settled in the same manner, 
 and upon the like notice, as in the case of bills of 
 exceptions, and in like manner, after it is settled, 
 signed and sealed, must be filed with the clerk of 
 the county where the judgment is to be entered, to 
 the end that it may be annexed to the judgment 
 roll. See ante p. 231 Rule 19. 
 
 Tumi g case into special verdict or bill of exceptio?is.\ — 
 Unless the case is turned into a special verdict or 
 bill of exceptions, the defeated party cannot go to 
 the court of dernier resort, (i. e. to the Court of Ap- 
 peals,) that court refusing to entertain any cause that 
 comes up upon a case made at the circuit. Livingston 
 V. Radcliff, 3 Hoiu, Pr. R , 417. Hence, if it is desir- 
 ed to put the case in a situation to go, if necessary, 
 to the court of dernier resort, the right must be re- 
 served at the trial of n aking the case with liberty 
 to either party to turn the same into a special ver-, 
 diet or bill of exceptions, whenever it becomes ne- 
 cessai^y to do so, in order to go to the Court of Ap-*» 
 peals. If the right is not reserved at the trial, it 
 will not afterwards be allowed. 2 Hall, 24S ; 3 
 Cotoen,S5S; 1 How Pr. Rep., 42. Nor will leave be 
 granted to turn a case into a special verdict or bill 
 of exceptions, and enter it on the judgment roll, for^ 
 the purpose of reviewing, upon appeal, a decision at 
 the circuit, sustained at the general lerra, where the'' 
 party instead of liaving a bill of exceptions duly 
 signed and sealed, makes up a case, and proceeds to 
 the argument thereof 22 Wendell, 561. And so, al- 
 though the decision was duly excepted to. Id. The 
 stipulation should be inserted in the case. 
 
 Where a case is made, reserving the right to turn
 
 SPECIAL VERDICT. 237 
 
 it into a bill of exceptions, the poiritsof law decided 
 by the co rt must be distinctly stated on the case, 
 substantially in the same form as is required in ex- 
 ceptions. And when a case is made with leave to 
 either party to turn it into a special verdict, all dis- 
 puted facts must be found by the jury. Rule 17 ; 22 
 Wendell, 561; 4 Hill, 171; 5 Hill, 634. As to man- 
 ner of turning a case into a special verdict or bill of 
 exceptions, see pout. 
 
 SECTION III. 
 
 Special Verdict. 
 
 As has been stated {ante p. 182,) the jury may in 
 their discretion, in actions for the recovery of mo- 
 ney only, or specific real property, render a general 
 or special verdict ; and in all other cases the court 
 may direct the jury to find a special verdict in wri- 
 ting upon all or any of the issues. The special ver- 
 dict when thus found by the jury must be in writing 
 and filed with the clerk. The special verdict is not, 
 however drawn up in form at the circuit, but a brief 
 minute of the facts found by the jury only, is drawn 
 up and filed with the clerk. Upon receiving the 
 verdict, it is the duty of the clerk to enter judgment 
 in conformity to the verdict, which will be final af- 
 ter the expiration of four days unless a judge or the 
 court order the case to be reserved for argument or 
 further consideration, or grant a stay of proceed- 
 ings. 
 
 Staying Proceedings.] — In order to draw up the 
 special verdict, a stay of proceedings upon the 
 judgment, ordinarily, will be required; for in this
 
 238 DRAWING SPECIAL VERDICT. 
 
 case, as in cases of bills of exceptions or cases 
 made, the special verdict must be settled and filed 
 and annexed to the judgment roll. Then an appeal 
 may be taken from the judgment to the general 
 term, which carries up the judgment roll with th-e 
 special verdict annexed to it. In order, therefore, 
 to have the special verdict drawn up in form, pro- 
 cure, from a judge of the court, an order suspend- 
 ing or staying proceedings upon the judgment, to 
 enable you to draw up the special verdict ; have it 
 settled and filed with the clerk of the county 
 where the judgment was entered. Serve a copy of 
 this order on the opposite attorney. 
 
 Draiving special verdict. 1 — Ihe special verdict 
 must in all cases be drawn up by the party in 
 whose favor the verdict was taken. The verdict 
 must state the facts proved at the trial, and not the 
 evidence given to prove these facts. 4 Hill, 171. 
 5 Id., 634. The verdict must not state any excep- 
 tions taken on the trial to the competency of wit- 
 nesses or the admissibility of evidence; those being 
 available only in bills of exceptions or case. 8 
 Wend., 480. The names of the witnesses sworn 
 on the trial should not appear in the verdict, nor 
 should deeds be set out in it, in hcRc verba, but 
 merely the substance of them stated, unless the 
 question in dispute rests upon their construction, 
 A negative need not be found in a special verdict, 
 unless it be necessary to show that some matter 
 therein mentioned does not come within a particu- 
 lar exception. 
 
 After drawing up the special verdict in form, it 
 must be engrossed, folioed, and lined in the same 
 manner as cases or bills of exceptions. A copy
 
 DRAWING SPECIAL VERDICT. 239 
 
 must be served upon the opposite attorney ; amend- 
 ments may be proposed and served, and notice 
 given of settlement before the judge who tried the 
 cause, within the same time, and subject to the 
 same regulations, as are made with respect to cases 
 and bills of exceptions. After the special verdict 
 is settled, signed, and sealed by the judge, it must 
 be filed with the clerk of the county where the 
 judgment is entered, that it may be attached to the 
 judgment roll. It must be filed within ten days 
 after it is sealed by the judge, or it will be deemed 
 to be abandoned. Rule 19. 
 
 The practice of drawing up a special verdict, and 
 annexing it to the judgment roll, after it is settled 
 and filed, is the same as in cases of bills of excep- 
 tions and cases, to move to set aside a verdict or 
 nonsuit. There is however no analogy between 
 this practice and the former practice of taking a ver- 
 dict subject to the opinion of the court, or a motion 
 for judgment upon a special verdict. Now a judg- 
 ment is entered and an appeal taken from the judg- 
 ment. But it is ilpprehended then? is nothing in the 
 Code that forbids the review of a special verdict, in 
 the first instance, upon an appeal, though a motion 
 for judgment upon the verdict must of course be first 
 made to a single judge. Hence, when the jury find 
 a special verdict, a notice for judgment upon it must 
 be made at a special term, but the judge before 
 whom the trial was had may permit the judgment to 
 be entered upon the verdict, without a motion, and 
 then the party wishing to review, may afterwards, 
 have the special verdict drawn up, settled and filed, 
 and appeal from the judgment. Thus the case is 
 heard upon the special verdict. The judge however
 
 240 RESERVING CASE FOR ARGUMENT. 
 
 may direct the party to move for judgment, upon the 
 special facts as found by the jury, (as to which see 
 post, titk% "of special motions,") and such motion 
 must be made at the special term. 
 
 SECTION IV. 
 
 Reserving Case for Argument or Further Considera- 
 tion. 
 
 It formerly was the practice in some cases to take 
 a general verdict at the circuit, su' ject to the opin- 
 ion of the Supreme Court, upon which a case was 
 made, and the Supreme Court, pronounced judgment 
 for or against the plaintiff, upon the case. As how- 
 ever, the case cannot now be heard by the Supreme 
 Couit, at the general term, except upon appeal, and 
 as appeals can only be made from judgments, the 
 practice of taking a general verdict subject to the 
 opinion of the court, is abrogated. 
 
 As a substitute for such practice, in actions tried 
 by a jury, the judge, upon receiving the verdict, may 
 reserve the case for argument or further considera- 
 tion. In cases tried by the judge without a jury, 
 the decision is to be made within twenty days after 
 the adjournment of the court, at which the trial was 
 had. Code § 267. This time was doubtless given to 
 enable the judge fully to examine the facts and law 
 of the case, and direct the proper judgment to be 
 entered. But when the action is tried by a jury, 
 their verdict upon the facts, is rendered, and judg- 
 ment must thereupon be entered, under the direC' 
 tion of the judge, and in diflTicult or doubtful cases, 
 no time is given to the judge to examine the law to 
 ascertain what judgment upon the facts should be
 
 RESERVING CASE FOR ARGUMENT. 241 
 
 rendered, unless he reserved the case for argument 
 or further consideration. 
 
 Hence, in actions tried by a jury, the judge may, 
 where in his opinion there is difficulty in the case, 
 or doubt as to the judgment to be entered upon the 
 verdict, reserve the case for argument or further con- 
 sideration. Code, § 265. 
 
 Reserving case for argument.'] — The object of reserv- 
 ing the case for argument or further consideration, 
 is to enable the judge to pronounce or direct the 
 proper judgment. It is not, therefore, in the nature 
 of a case made or bill of exceptions, for no decision 
 has as yet been made, to which an exception could 
 be taken. No case or exceptions is drawn up, un- 
 less so expressly directed by the judge, {Rule 31) but 
 the argument of counsel is made upon the minutes 
 of the trial kept by the coansel and by the judge 
 who tried the cause. The argument of a case thus 
 reserved, is made at a special term, and is brought 
 on like a motion upon notice to the adverse party. 
 {Rule 31.) If a case is directed to be prepared, it 
 must be drawn up and settled in the same manner 
 as cases to set aside a verdict or non-suit. But 
 when no case is directed to be made, the motion 
 may be made upon the minutes of the trial, or upon 
 affidavits, of what transpired upon the trial, {a) 
 
 (a) In the absence of any rule or decision on the subject, the profession may 
 be embarrassed in settling upon the practice under §§ 264 and 265, of the Code. 
 The impressions of the author, upon a careful examination of the question, are 
 that the Legislature intended that a case reserved for farther consideration, 
 was for the convenience of tlie judge bufore whom the trial was had, and under 
 whose direction the judgment is to be entered. That upon the rendering of 
 the verdict by the jury, if the judge had doubt as to the juilgment, to be entered 
 upon the facts as found; whether upon such facts it should be for the plaintiff or 
 defendant, he might reserve it, (that is, not at once direct the judgment,) for 
 further consideration, and if he chose he might hear counsel. Cn the trial of 
 aa issue of fact by a jury, the judge cannot in the hurry of the circuit, give to 
 
 16
 
 242 RESERVING CASE FOR ARGUMENT. 
 
 The propriety of this practice, in difficult or doubt- 
 ful cases, will readily be seen, when it is remem- 
 bered that the only way now provided to review a 
 verdict of a jury or decision of a judge, is by ap- 
 peal, and that the appeal is from the judgment 
 which must be entered before the appeal is taken ; 
 and that in taking the appeal security must be given, 
 covering the judgment and the damages and costs 
 on the appeal. This casts a heavy burthen upon 
 the appealing party, and in authorising the case to 
 be reserved for argument or futher consideration, 
 the intention of the Legislature was, doubtless, to 
 give to the parties the benefit of a deliberate and 
 well considered opinion of the judge under whose 
 direction the judgment is to be entered. Formerly, 
 in reviewing the decisions of the circuit judge, no 
 
 any question a deliberate examination, and his judgment must of necessity be 
 his first impressions; hence when a jury is waived, time is allowed him for 
 reflection and examination. But in a jury trial, he must decide off-hand, unless 
 he reserves the case for argument or further consideration. It is not reserved 
 upon the motion of either party, as is supposed by the judges in their rules, 
 (Rule 31,) but by the judge on his own motion, for his ou-n consideration. The 
 judges have made a rule, requiring a case thus reserved to be heard at a special 
 term, (Rule 31,) but have given no directions as to the manner of bringing it 
 up or presenting the questions. The author supposes, that the judges have 
 failed to catch the meaning of the Legislature, and that it was the intention of 
 the law makers, that such cases should be heard in an informal manner, before 
 the judge who held the circuit, on some future day, after he had discharged the 
 jury, and that he might or not hear argument of counsel as he chose. The 
 difficulfy now presented is as to the manner of getting the case before the spe. 
 cial term, unless the judge directs a case to be made. If no case is made, the 
 profession are left in the dark as to the mode of presenting the questions and 
 making the motion at the special term, where ordinarily a different judge will 
 preside. The most convenient practice, therefore, will be to draw up and 
 agree to or have settled in the ordinary way a case, containing such of the facts 
 found by the jury as are necessary to present the questions. It will be seen 
 that in those cases, there is no disputed question of fact, but the verdict is found 
 upon admitted facts. In this respect it is analogous to taking a verdict subject 
 to the opinion of the court, under the old practice, where the facts were never 
 in dispute and the sole question was as to the application of the law upon the 
 facts. Hence it will not be difficult to make a case for the purpose of making 
 the motion at the special term.
 
 liESERVING CASE FOR CONSIDERATION. 243 
 
 security was required, nor was any judgment entered 
 until the decision of the court in banco ; and hence 
 there was no particular consequence, whether the 
 verdict was for the plaintiff or defendant, and gene- 
 rally, a verdict was directed for the-plaintiff, and the 
 defendant made a bill of exceptions; thus present- 
 ing the questions involved in the case, for the judg- 
 ment of the court in banco. 
 
 Reserving the case for further consideration.'] — In like 
 manner, if the judge is in doubt as to the judgment 
 that should be entered, upon the facts as found by 
 the jur ,-, he may reserve the case for further con- 
 sideralion. And even after having heard the coun- 
 sel of the parties, the judge may still reserve the 
 case for examination and consideration. 
 
 Having decided what judgment should be render- 
 ed upon the facts as found, the judge will direct 
 the clerk to enter judgment accordingly, or he may 
 grant a stay of proceedings, until the party desiring 
 to review such decision, has had a case or bill of 
 exceptions made, settled and filed, as in other cases. 
 Upon the expiration of such stay of proceedings, 
 the judgment, as directed by the judge, is entered, 
 the judgment roll made up and fi.led, and the party 
 may appeal. As to the manner of bringing on the 
 motion of a case reserved for argument or further 
 consideration, see post under title " Of Special Mo- 
 tions."
 
 24 1: CASE TO SET ASIDE REPORT OF REFEREE^.. 
 
 SECTION V. 
 Case to set aside Report of Referees. 
 
 As has been stated, the report of referees, is to 
 stand as the decision of the court; (Ante p. 193. 
 Code §272;) and the judgment is entered thereon in 
 the same manner as if the action had been tried by 
 the court ; and the decision of the referees, may be 
 excepted to and reviewed in the same manner. 
 
 Drawing case.] — In order to review the decison of 
 the referees (where the whole issue has been report- 
 ed upon) upon any question of law passed upon by 
 them upon the hearing of the reference, or to move 
 to set aside their report upon the merits, that is, as 
 being against the weight of evidence, a case must 
 be drawn and served on the opposite attorney; 
 amendments proposed and served, and notice given 
 of settlement before the referees, within the same 
 times, and under the same regulations as are made 
 with respect to bills of exceptions or cases, to review 
 the decisions of a single judge. Rule 24. The party 
 desiring to review the report of referees, upon the 
 evidence appearing on the trial, either of the ques- 
 tions of fact or of law, may at any time within ten 
 days after notice of the judgment, make a case con- 
 taining so much of the evidence as may be material 
 to the question to be raised. Code ^268, 272. 
 
 Staling Proceedings.] — As in cascsof bills of excep- 
 tions or cases to review the decisions of a single 
 judge, the party desiring to review the report of re- 
 ferees, must get his case settled and filed, so that it 
 may be attached to the judgment roll, and then ap-
 
 SETTLING CASE. 245 
 
 peal from the judgment, which, as we have seen, car- 
 ries up to the general term the judgment roll, includ- 
 ing the case as settled and filed. Such case can only 
 be heard on appeal at the general term. Rvle 24. 
 As the case cannot, in general, be settled and filed 
 within the ten days allowed for that purpose, a stay 
 of proceedings must be obtained for the purpose of 
 having the case settled and filed. Such stay may 
 be granted by a ju^^tice of the Supreme Court, but 
 not by a county judge. {Code § 401.) A stay of pro- 
 ceedings for a longer time than twenty days, cannot 
 be grarited by a judge out of court, except upon pre- 
 vious notice to the adverse party. Code § 401. 
 
 Settling case.] — The case is settled by the referees, 
 in the same manner that bills of exceptions or a case, 
 or special verdict is settled by a judge. The parties 
 in like manner have the right to be heard by coun- 
 sel upon the settlement of the case. Where more 
 than one claim or demand was in controversy before 
 them, the referees must add a statement shewing 
 what claims and demands, and what sums in parti- 
 cular were allowed to each party. 
 
 Filing Case.] — The case having been settled by 
 the referees, must be engrossed, and signed and 
 sealed by them, and filed with the clerk, with 
 whom the judgment is entered, within ten days 
 after it is settled, or it will be deemed to be aban- 
 doned. Rule 19. It is then attached to the judg- 
 ment roll. For mode of reviewing the report of 
 referees, where only a part of the issue is reported 
 on, see post, under title "of Special Motions."
 
 246 DEMURRER TO EVIDENCE. 
 
 SECTION VI. 
 
 Demurrer to Evidence. 
 
 A demurrer to evidence is similar to a demurrer 
 to a pleading. The party declares that he is not 
 bound to proceed any farther, because the evidence 
 offered on the other side is not sufficient to main- 
 tain the issue. The office of a demurrer is to refer 
 to the court, the law arising upon the facts. 1 Hilly 
 471, note (a). In practice, however, demurrers to 
 evidence are seldom resorted to, as the effect of a 
 demurrer may be obtained by a special verdict, or 
 special case. 
 
 If the opposite party join in demurrer, the jury 
 are, in general, discharged from giving any verdict, 
 though they may assess the damages conditionally. 
 
 The demurrer to evidence is made orally by coun- 
 sel as the evidence is produced by the opposite 
 party. If the court overrules the demurrer, or re- 
 fuses to receive it, the proper course is to except to 
 the decision, and afterwards make a bill of excep- 
 tions. If however the demurrer is decided to be 
 well taken, the jury will be at once discharged. 
 
 Demurrer, ho2v drawn up-l — The demurrer to evi- 
 dence is drawn up and served upon the opposite 
 attorney, amendments proposed, and served, and 
 notice given of settlement within the same time and 
 under the same regulations, as are made with re- 
 spect to bills of exceptions or cases to review the 
 decisions of a single judge. 
 
 If a stay of proceedings upon the judgment is ne- 
 nessary to draw up and have the demurrer settled
 
 FILING DEMURRER. 247 
 
 and filed, it must be obtained from a judge of the 
 court. 
 
 Filing demurrer.'] — The demurrer having been set- 
 tled, signed and sealed by the judge, it must be 
 filed with the clerk, with whom the judgment is 
 entered, and attached to the judgment roll, within 
 the same time that is required in respect to cases. 
 Rule 19.
 
 CHAPTEH VH. 
 
 OF SUBMITTING A CONTROVERSY WITHOUT ACTION. 
 
 The Code has provided a cheap and expeditious 
 mode of determining a controversy concerning the 
 law of a case, between parties, without resorting to 
 an action. The controversy however, must be real, 
 and the facts upon which the questions of differ- 
 ence arise must be conceded and without dispute. 
 The courts will not determine a disputed or con- 
 flicting question of facts ; but will only adjudge the 
 law, upon the facts as agreed on between the par- 
 ties. 
 
 This mode of determining a question of law, 
 where the facts are conceded, will be found both 
 convenient and cheap in a variety of cases. Thus, 
 in cases of application to the court by executors for 
 the construction of a will or other instrument, which 
 heretofore could only be obtained by a bill in the 
 Court of Chancery ; or by trustees, for the construc- 
 tion of a power or trust; and in all cases where the 
 facts are agreed upon, and the dispute is in respect 
 to the law, the parties may avoid the expense and 
 delay of an action, and obtain the same result, by 
 the expeditious and economical method pointed out 
 in the Code. Code,^ 132. 
 
 Drawing Case.] — In order to present the questions 
 of law for the adjudication of the court, a case must
 
 SUBMISSION. 249 
 
 be drawn up, containing the facts upon which the 
 controversy depends, to which mast be annexed the 
 affidavit of the parties, that the CLntroversy is real, 
 and that the proceeding is conducted in good faith. 
 
 Submission.] — There must be annexed to tire case 
 as prepared, a written submission of the questions 
 in dispute to the court for its adjudication. This 
 submission must be subscribed by both parties. 
 
 No attorneys are necessary, as the case is submit- 
 ted by the parties in person. The argument of it, 
 however, will ordinarily be by counsel. 
 
 The case and submission having been drawn up 
 and signed, it must be printed, and furnished by the 
 plaintiff, in like manner as upon an appeal to the 
 Supreme Court. Rule 32. See post. 
 
 Points in like manner must be prepared and print- 
 ed. The cause is put upon the calendar, and the 
 argnment moved and conducted in the same 
 manner as upon appeals from judgments. 
 
 If the party whose duty it is to furnish the printed 
 case, fail to do so, at the proper time, that is, at or 
 before noticing the case for argument, the other 
 party may in like manner as in appeal cases, move 
 to strike the cause from the calendar and for judg- 
 ment in his favor. 
 
 Either party may notice the cause for argument, 
 by a notice of at least eight days. 
 
 The case is heard at the general term of the court, 
 and cannot be heard at the special term. Rule 32, 
 33. 
 
 Judgment.'] — The judgment upon the decision of 
 the case is entered in the judgment book, in like 
 manner as in other cases, but without costs for any
 
 250 JUDGMENT. 
 
 proceeding prior to notice of trial. But the costs 
 subsequent to the notice of trial are to be inserted 
 for the Jparty entitled thereto, in the entry of 
 judgment the same as in actions. The case, the 
 submission, and a copy of the judgment, constitute 
 the judgment roll. 
 
 The judgment may be enforced in the same man- 
 ner, as if it had been rendered in an action, and 
 may in like manner be appealed from to the Court 
 of Appeals. 
 
 For a more full detail of the practice after the 
 case and submission is prepared, see jpost, under 
 title " of appeals to the general term from judgments 
 entered by the direction of a single judge."
 
 CHAPTER Vlll. 
 
 OF APPEALS TO THE SUPREME COURT, FROM AN 
 
 INFERIOR COURT. 
 
 It is provided by the Code (§ 18) that at least four 
 general terms of the Supreme Court shall be held 
 annually in each judicial district, and as many 
 more as the judges may from time to time appoint. 
 These terms are held by at least three of the judges, 
 and it requires a concurrence of a majority of the 
 judges holding the court, to pronounce a judgment. 
 §19. 
 
 The Supreme Court, when sitting in general term, 
 exercises appellate powers only, in reviewing the 
 judgments and decisions of inferior courts, or of 
 judgments or orders rendered or made under the 
 direction of a single judge of the same court, it 
 also, has appellate power to restrain inferior courts 
 within the limits of their jurisdiction, by writs of 
 prohibition and mandamus; and to review the pro- 
 ceedings of certain courts and officers, invested with 
 special jurisdiction, by certiorari. Graham on Jurisd.j 
 232. 
 
 At the general term, therefore, this court will only 
 exercise its revisory powers in correcting the errors, 
 abuses and mistakes of inferior and subordinate 
 tribunals, and of single judges of the same court. 
 
 The manner of bringing a decision or judgment
 
 552 APPEALS FROM JlDGMENTS OF INFERIOR COURTS. 
 
 from an inferior court into the Supreme court, for 
 review, will now be pointed out. 
 
 It is provided that an appeal may be taken to the 
 Supreme Court from a judgment rendered by a 
 county, or by a mayor's court or recorder's court of 
 a cily. Code^ § 344. 
 
 The appeal in such cases, is a substitute for the 
 writ of error, which brought up the record from the 
 common pleas or mayor's court, and was reviewed 
 in the Supreme Court. 
 
 SECTION I. 
 
 Appeal when and by whom Taken, and from what 
 
 Judgment. 
 
 When taken,] — An appeal from a judgment of a 
 €oimty court, or mayor's or recorder's court of a cily, 
 may be taken at any time within two years after 
 the judgment appealed from was rendered ; and the 
 two years will be taken from the time the judgment 
 was actually entered, and not from the time the 
 decision was made. Code, §§ 33 I, 344. 
 
 Bi/ whom. — An appeal from a judgment may be 
 taken by the party against whom the judgment was 
 rendered, and in some cases a party may appeal 
 from a judgment in his own favor. It is presumed 
 that the provisions of law, (2 Rlv. Stat., 592, §2) 
 in respect to the parties by whom and against whom 
 writs of er or may be brought, the joinder of parties, 
 and the proceedings on the death or marriage of 
 parties, will all ap[)Iy to appeals, brought under the 
 Code, as to which see post under head of " Appeuh 
 to the CiMrt of Appeals'^
 
 APPEALS FROM JUDGMENTS OF INFERIOR COURTS. 253 
 
 From what judgments.']— Ihe only judgments of in- 
 ferior courts that can be br )ught into this court for 
 review upon appeal, a e final judgments. No inter- 
 locutory proceeding in a cause, or decision which 
 only partially determines the rights of the parties or 
 the subject of the controversy, is the subject of ap- 
 peal. 
 
 Cases arising in a justice's court.'] — In order to appeal 
 from the judgment of a county court in a case ari- 
 sing in a justice's court, it is necessary to procure a 
 certificate, that it is a proper case to be presented to 
 the Supreme Court. For this purpose, the party de- 
 siring to bring the appeal must within thirty days 
 after he has received notice of the judgment, pre- 
 sent to a judge of this court (i. e. Supreme Court) the 
 return of the justice, or a copv thereof, with the de- 
 cision of the county court, and obtain from such 
 judge a certificate that he has examined the case, 
 and in his opinion an appeal to the Supreme Court 
 should be allowed. 
 
 In order to restrict the time within which this 
 certificate must be obtained, a written notice of the 
 judgment having been entered, must be served on 
 the party against whom it is entered. A verbal or 
 constructive notice is not sufficient, it being pro- 
 vided that all notices shall be in writing. Code^ 
 § 408. And even, if the party was present when 
 the judgment was entered, it will not be deemed a 
 notice within the meaning of the law; and so it 
 was decided by Harris, /., in a case not reported. 
 But if the certificate of a judge is not procured 
 within such time, after notice of the judgment has 
 been duly given, the right to appeal will be lost, 
 the court having no power to extend the time for
 
 254 PROCEEDINGS TO PERFECT APPEAL. 
 
 granting the certiticate. The act of 1836 (Sess. 
 Laws 1836, p. 794, §2) required, in cases of writs 
 of error brought upon a judgment of a court of 
 common pleas in a cause arising in a justice's 
 court, that a certificate should be procured, within 
 thirty days from the time of filing the record, from 
 the judge who presided at the trial, that the cause 
 was a proper one to be carried to the Supreme 
 Court. Under this statute it was decided (22 Wen- 
 dell, 627) that the court could grant no relief what- 
 ever, if the certificate was not procured within the 
 thirty days. The provision in the Code in respect 
 to procuring a certificate of a judge is substantially 
 the same as the act of 1836, except that the party 
 must have notice of the judgment, in order to limit 
 the time. 
 
 Parties, how called.] — The party appealing is known 
 as the appellant, and the adverse party as the re- 
 spondent, but the plaintift^'s name must always be 
 placed first in the title, thus : A. B., appellant or 
 respondent, against C. D., appellant or respondent. 
 
 SECTION 11. 
 
 Of the Proceedings to Perfect the Appeal. 
 
 Notice of appeal] — A party wishing to appeal, must 
 prepare a notice, stating that he appeals from the 
 judgment, or from some specified part thereof The 
 judgment appealed from, must be described with 
 accuracy and certainty; and if the whole judgment 
 is not appealed from, but the party intends to review 
 only a part of it, he must specify accurately the part 
 or portion of the judgment appealed from. For form 
 of notice, see Appendix.
 
 UNDERTAKING. 255 
 
 Service.] — The notice of appeal must be served on 
 the adverse party, or it may be served upon his at- 
 torney, if the judgment appealed from, was entered 
 by an attorney. It must also be served on the clerk 
 with whom the judgment was entered. This notice 
 may be served like other notices in actions: as to 
 which, see post. It need not be a personal 
 service, but may he by mail, or otherwise, as in the 
 case of other notices. 
 
 The undertaking.] — To render the appeal effectual 
 for anj'' purpose, a written undertaking must be ex- 
 ecuted on the part of the appellant, by at least two 
 sureties, to the effect that the appellant will pay all 
 costs and damages which may be awarded against 
 him on the appeal, not exceeding two hundred and 
 fifty dollars. Or, the appellant may deposit with the 
 clerk with whom the judgment appealed from was 
 entered, the sum of two hundred and fifty dollars, 
 to abide the event of the appeal. 
 
 This undertaking or deposit, or both, may be 
 waived by the written consent on the part of the 
 respondent. Code, § 334. 
 
 The undertaking above mentioned will be suffi- 
 cient to perfect the appeal in all cases where a 
 stay of execution upon the judgment is not desired; 
 or where the judgment appealed from does not di- 
 rect the payment of money, or some act or thing to 
 be done by the party against whom the judgment 
 is made. 
 
 If, however, the appeal be from a judgment direct- 
 ing the payment of money, it will not stay the exe- 
 cution of the judgment, unless in addition to the un- 
 dertaking to pay costs, {see Langli/ and Langly, v.
 
 256 UNDERTAKING. 
 
 Warner, 1 Com Rep. 60n,) a written undertaking be 
 executed on the part of the appellant, by at least two 
 sureties, to the effect that if the judgment appealed 
 from, or any part thereof be affirmed, the appellant, 
 will pay the amount, directed to be paid by the judg- 
 ment; or the part of such amount, as to which the 
 judgment shall be affirmed, if it be affirmed only in 
 part, and all damages which shall be awarded 
 against the appellant, upon the appeal. Code § 335. 
 
 Both the undertakings may be embraced in one, 
 and it is not necessary that they should be separate. 
 
 If the judgment appealed from direct the assign- 
 ment or delivery of documents or personal property, 
 the execution of the judgment will not be stayed by 
 the appeal, unless (in addition to giving the under- 
 taking to pay costs,) the things required to be as- 
 signed or delivered, be brought into court, or placed 
 in the custody of such officer or receiver, as the 
 court shall direct, or unless an undertaking be en- 
 tered into, on the part of the appellant, by at least 
 two sureties, and in such amount as the court or 
 judge thereof or county judge shall direct, to the 
 effect that the appellant will obey the order of the 
 appellate court, upon the appeal. Code § 336. 
 
 If the judgment appealed from direct the execu- 
 tion of a conveyance or other instrument, the exe- 
 cution of the judgment will not be stayed by the 
 appeal until the instrument shall have been ex- 
 ecuted, and deposited with the clerk, with whom 
 the judgment is entered, to abide the judgment of 
 the appellate court. Code, § 337. 
 
 If the judgment appealed from direct the sale or 
 delivery of possession of personal property, the ex- 
 ecution of the judgment will not be stayed, unless
 
 UNDERTAKING. 
 
 257 
 
 a written undertaking be executed on the part of 
 the appellant, with two sureties, to the effect that 
 during the possession of such property by the appel 
 lant, he will not commit, or suiTer to be committed, 
 any waste thereon, and that if the judgment be 
 affirmed, he will pay the value of the use and oc- 
 cupation of the property from the time of the ap- 
 peal until ihe delivery of possession thereof, pursu- 
 ant to the judgment, not exceeding a sum to be 
 fixed by a judge of the court, by which the judg- 
 ment was rendered, and which must be specified in 
 the undertaking. 
 
 When the judgment is for the sale of mortgaged 
 premises, and the payment of a deficiency arising 
 upon the sale, the undertakin j;; must also provide for 
 the payment of such deficiency. Code, 338. 
 
 In all cases of appeal there must be an underta- 
 king to pay costs, in addition to any or either of the 
 other undertakings as above mentior.ed. Langieij and 
 Langley vs. Warner, 1 Com. Rep. 606. But all un- 
 dertakings required to make the appeal effectual, or 
 to suspend the execution of the judgment appealed 
 from, may be embraced in one instrument, and they 
 need not be separate. They may, however, be in 
 separate instruments, at the option of the appellant. 
 Code, § 340. 
 
 It is not necessary for the appellant to execute 
 the undertaking. It will be sufficient, if it is 
 executed by two sureties, without the appellant. 
 
 The undertaking need not be approved. It is 
 required by rule {Rule 76) that the undertaking shall 
 be duly proved or acknowledged, in the same man- 
 ner as prescribed by law for the proof or acknow- 
 
 17
 
 258 UiVDERTAKING. 
 
 ledgment of deeds of real property, before the same 
 shall be received or filed. 
 
 la cases of appeal, not provided for in sections 
 335, 336, 337, 338, and 339 of the Code, the per- 
 fecting an appeal, by giving an undertaking, on the 
 part of the appellant, executed by at least two 
 sureties, to the effect that the appellant will pay 
 all costs and damages which may be awarded 
 against him on the appeal, not exceeding two hun- 
 dred and fifty dollars; or by depositing that sum 
 with the clerk with v/hom the judgment was en- 
 tered, to abide the event of the appeal, will stay all 
 proceedings in the court below,, upon the judgment 
 appealed from ; except that where it directs the 
 sale of perishable property, the court below may 
 order the property to be sold, and the proceeds 
 thereof to be deposited or invested, to abide the 
 judgment of the appellate court. Code, § 342. 
 
 Where a sum, to be inserted in the undertaking, 
 is to be fixed by a judge, as in the case of an appeal 
 from a judgment, directing the sale or delivery of 
 possession of real property, the judge may ascertain 
 the same by a reference, or by an affidavit, or other- 
 wise. 
 
 Upon the appeal being perfected, that is, upon 
 the service of the notice of appeal and the execu- 
 tion of the appropriate undertaking, as provided by 
 law, it stays all further proceedings in the court 
 below, upon the judgment appealed from, or upon 
 the matter embraced therein; but the court below 
 may proceed rrpon any other matter included in the 
 action, and not affected by the judgment appealed 
 from. C(de, § 339.
 
 AFFIDAVIT ANNEXED TO UNDERTAKING. 259 
 
 a- 
 
 o 
 
 JIffidavit annexed to nndertaki7ig.]— The undertakin 
 must be accompanied by an affidavit of the sureties 
 that they are each worth double the amount speci- 
 fied therein, otherwise the undertaking will be of no 
 effect, {Code § 341,) and the appeal will not stay the 
 proceedings in the court below, upon the judgment 
 appealed. And it would seem that the sureties must 
 be householders or freeholders in this state, as they 
 are required to justify upon exception in the same 
 manner as bail taken upon the arrest of a defendant- 
 It is unnecessary, however, to state in the affidavit, 
 that the sureties are householders or freeholders. 
 But it will be sufficient if they swear that they are 
 each worth double the amount specified in the un- 
 dertaking. 
 
 Serving copy undertaking^ — At the time of serving 
 the notice of appeal, a copy of the undertaking, in- 
 cluding the names and residence of the sureties, 
 must also be served on the adverse party, unless the 
 appellant makes a deposit of money instead of exe- 
 cuting an undertaking for the payment of costs. 
 The copy undertaking is served in the same manner 
 as notice and other papers in the action, and may 
 be upon the adverse party or upon his attorney, if 
 he have one. 
 
 Excepting to sureties.'] — Within fen days after re- 
 ceiving notice of the appeal, and a copy of the un- 
 dertaking, the respondent, if he is not satisfied with 
 the sufficiency of the sureties, may except thereto. 
 For this purpose he must serve upon the appellant's 
 attorney, a written notice that he excepts to the suf- 
 ficiency of the sureties. If the respondent omits to 
 give this notice, until after ten days from the receipt
 
 260 SURETIES JOSTIFYING. 
 
 of the copy undertaking and notice of appeal, he 
 will waive his right to require the sureties to jus- 
 tify. 
 
 Svreties justifying.] — The appellant's attorney, hav- 
 ing received notice of exception to the sufficiency 
 of the sureties, he must see that they justify, and if 
 he fail to do so, and other sureties are not put in, 
 the appeal will be regarded as if no undertaking had 
 been given. Code,§o41. Within ten days next sue- 
 ceeding the receipt of notice of exception, the sure- 
 ties must justify before a judge of the court below, 
 or before a county judge. For this purpose, a notice 
 must be served on the respondent's attorney, at least 
 five days before the time specified therein when the 
 sureties will justify, stating the time, place, and 
 name of the judge before whom the sureties will 
 justify. 
 
 Sureties, in an undertaking given upon an appeal, 
 cannot justify before a justice of the peace, as in 
 case of bail given upon the arrest of a defendant. 
 Code, § 341. 
 
 Other sureties.] — Instead of causing the sureties al- 
 ready given to justify, the appellant may, within the 
 same time, (i. e. ten days after notice of the excep- 
 tion,) give a written notice to the respondent's at- 
 torney, that other sureties (whose places of residence 
 and occupation must be stated in the notice) will in 
 like manner justify before the judge. The notice 
 must specify the time, place, and name of the judge, 
 before whom the new sureties will justify, and must 
 be served at least five days before the time men- 
 tioned in the notice. 
 
 In case the new sureties justify, a new under-
 
 MANJ^R OF JUSTIFYING. 261 
 
 takinsT must be executed, in the form nnd to the 
 effect prescribed by law for the first undertaking; 
 and the new sureties must justify in the same man- 
 ner as is required in the case of the first sureties. 
 
 Manner of just if 7jing.]— At the time and place spe- 
 cified in the notice, each of the sureties must at- 
 tend before the judge, who must administer to the 
 sureties an oath, that they will truly answer all 
 questions that may be put to them touching their 
 property and sufficiency as sureties. The respond- 
 ent's attorney may tlien examine the sureties in such 
 manner as the judge may think proper. If required 
 by the respondent's attorne)'', the examination of 
 the sureties must be reduced to writing by the judge, 
 and subscribed by the sureties. 
 
 If the judge finds the sureties sufficient, he must 
 annex their examination (if the same shall have 
 been reduced to writing) to the undertaking, and 
 endorse upon the undertaking an allowance of the 
 sufficiency of the sureties. 
 
 The qualifications of sureties and the manner of 
 justifying, is the same as in case of bail taken on 
 arrest. Code, § 341. 
 
 Filing U7idertaking.] — The undertaking must be filed 
 with the clerk, with whom the judgment appealed 
 from was entered. Code, § 343. 
 
 Deposile.] — If no stay of execution is required, the 
 appellant instead of giving the undertaking, may 
 deposite with the clerk with whom the judgment 
 appealed from is entered, the sum of two hundred 
 and fifty dollars, to abide the event of the appeal. 
 {Code, §334.) In this case notice of the deposite 
 must be given to the opposite party. Code, § 340.
 
 2C2 TRANSMITTING JUDGMENT APPEALED FROM. 
 
 SECTION III. 
 
 Of Transmitting Judgment Appealed from to the 
 
 Supreme Court. 
 
 How procured.] — Having perfected the appeal by 
 the service of the notice of appeal and a copy of the 
 undertaking, the judgment appealed from must he 
 sent into the Supreme Court. The appellant must 
 pro?ure from the clerk with whom the judgment 
 appealed from is entered, a certified copy of the 
 notice of appeal and judgment roll. The clerk's 
 fees for making the copy and certifying it, must be 
 paid by the appellant, and the clerk is not bound to 
 make the copy without the payment of his fees. 
 It is the duty of the clerk to transmit the copy, no- 
 tice and judment roll, into the Supreme Court ; but 
 in practice, it is usual for the attorney of the appel- 
 lant to receive it from the clerk, when duly certified, 
 and attend to filing it in the proper office. The re- 
 turn of the clerk, (which is the certified copy of the 
 notice and judgment roll,) must be made and filed 
 within a reasonable time after the appeal is per- 
 fected, or a motion may be made to dismiss the 
 
 appeal. 
 
 When transmitted.] — The appellant must procure the 
 proper return to be made and filed with the clerk of 
 the Supreme Court, within a reasonable time after 
 the appeal is perfected. If the appellant fail to do 
 so, he will be deemed to have abandoned the ap- 
 peal; and the respondent may, upon an affidavit 
 showing when the appeal was perfected, and a cer- 
 tificate of the clerk of the Supreme Court that no
 
 TRANSMITTING JUDGMENT APPEALED FROM. 203 
 
 return has been filed, move at a special term, on 
 notice to the adverse party, for an order dismissing 
 the appeal, for want of prosecution. 
 
 This order is entered with the clerk of the Su- 
 preme Court. 
 
 The time for making the return may be enlarged 
 by the court on the motion, upon sufficient cause 
 shown. 
 
 With respect to the manner of making the return, 
 it mny be observed, that it is more a matter of form 
 than substance, except when the appeal is from a 
 judgment of a mayor's or recorder's court of a city. 
 As now constituted, the clerks of the several coun- 
 ties are ex officio clerks of the Supreme Court, and 
 of the county courts of their respective counties. 
 Hence, in appeals from judgments of county courts, 
 the return is certifid by the clerk, as clerks of the 
 county court, and filed by the same person, as clerk 
 of the Suprerne Court. In reality, it never goes out 
 of his office, but is simply sent from one court into 
 another, of both which courts the same officer is 
 clerk. In appeals, however, from mayors' and re- 
 corders' courts of cities, there is an actual transmis- 
 sion of the return from one court to the other, there 
 being distinct and diffi^rent clerks and officers for 
 each. 
 
 And thus, if an appeal be taken from a judo-- 
 ment of the county court of Oneida county to the 
 Supreme Court, the return of the clerk is certified 
 by him as clerk of the county court, and immedi- 
 ately filed by him as clerk of the Supreme Court ; 
 the papers and proceedings of the two courts being 
 kept in the same office. Where the appeal, however,
 
 264 PREPARING THE APPEAL FOR ARGUMENT. 
 
 is from a judgment of a mayor's or recorder's court 
 of a city, the return is transmitted by tlie clerk of 
 such court to the clerk of the county, and by him 
 filed in the Supreme Court. 
 
 The return must be filed in the oflice of the clerk 
 of the county where the judgment appealed from 
 was rendered. 
 
 Obtaining further return ] — Tf the return made by 
 the clerk of the court below, is defective or errone- 
 ous, either party may apply to one of the judges of the 
 Supreme Court, for an order requiring the clerk to 
 make a further return without delay. The applica- 
 tion for this order must be founded upon an affida- 
 vit specifying particularly the defects or errors in 
 the return already made, and is made ex parte, no 
 notice to the adverse party being required. The 
 order should also specify particularly the defects or 
 errors in the first return, and must be served upon 
 the clerk. 
 
 SECTION IV. 
 
 Of Preparing the Appeal for Argument. 
 
 Having procured the return of the clerk to be 
 made and filed, the next proceeding is to prepare 
 the appeal for argument. 
 
 Preparing papers.] — The appeal is to be heard upon 
 the return of the clerk of the court below; a case 
 must therefore be prepared, consisting of the return 
 of the clerk, i. e. the notice of the appeal and judg- 
 ment roll, and the reasons of the court below for its 
 judgment, if any shall have been given in writing. 
 The case must also contain a statement of the time
 
 PRINTING APPEAL AND POINTS. 265 
 
 of the commencement of the suit, and of the service 
 of the respective pleadings, the names of the origi- 
 nal parties in full, the change of parties, if any has 
 taken place, pending the eoit, and a very brief his- 
 tory of the proceedings in the cause ; and also an 
 abstract of the pleadings not exceeding one-sixth of 
 the number of folios contained in the original plead- 
 ings. Rule 32. The points intended to be relied on, 
 in argument, with reference to the authorities in 
 snpport of the same must also be prepared. In 
 cases where it is necessary for the court to go 
 into an extended examination of evidence, each 
 party nmst briefly state upon his printed points, the 
 leadino^ facts which he deems established, with a 
 reference to the folios where the evidence of such 
 facts may be fonnd. Rule 34. It is the duty of the 
 appellant in all cases to prepare the papers upon 
 which the appeal is to be heard, and furnish the 
 necessary copies tliereof, and the respondent has no 
 right to make them up. Rule 32. 
 
 Printing appeal and points.'] — The case and points, 
 and all other papers furnished the court, and the 
 opposite party in calendar causes, must be printed 
 on white v/riting paper, with a margin on the outer 
 edge of the leaf not less than one and a half inch 
 wide. The printed page, exclusive of any marginal 
 note or reference, must bo seven inches long, and 
 three and a half inches wide. The case must be 
 folioed, numbering from the commencement to the 
 end, and must be printed on the outer margin. 
 Rule 33. 
 
 Serving appeal.]— At or before noticing the appeal fcr 
 argument,the appellant must serve on the attorney for
 
 266 NOTICE OF ARGUMENT. 
 
 the respondent, //iree printed copies of the case. If the 
 appellant fails to serve the copies at such time, the re- 
 spondent having noticed the appeal for argument, 
 may put the cause on the calendar, and move upon 
 an affidavit of the facts and of the neglect of the ap- 
 pellant to serve the case, and upon notice to the ap- 
 pellant for the earliest practicahle day in term for 
 hearing non-enumerated motions, that the cause be 
 stricken from the calendar, and that judgment be 
 rendered in his favor. Rule 32. 
 
 The court in which the motion is made, to strike 
 the cause from the calendar, may, upon sufficient 
 cause shown, grant relief, upon such terms as shall 
 be just. 
 
 Notice of argument.'] — Either party may notice the 
 appeal for argument. The notice must be served 
 eight days before the first day of the term at which 
 it is intended to bring on the argument, and must 
 specify the time and place when and where the ap- 
 peal will be heard. The appeal can only be heard 
 in the judicial district embracing the county in which 
 the judgment appealed from is entered, or in a coun- 
 ty adjoining such county, though not in the same 
 district. Thus an appeal from a judgment entered 
 in Ulster county which is in the third judicial district, 
 may be heard at a general term of the court, in 
 Dutchess county, which is in the ^eco?^^/ judicial dis- 
 trict. But such appeal cannot be heard in an ad- 
 joining district, unless the court for such district is 
 held in an adjoining county. 
 
 The cause may be noticed as soon as the printed 
 case is ready to be served. 
 
 Note of issue] — The party noticing the appeal for
 
 NOTE OF ISSUE. 267 
 
 argument, must, eight days before the first day of 
 the term, furnish to the clerk of the court, where 
 the appeal is to be heard, a note of the issue. This 
 is a brief note of the title of the cause, the nature of 
 the question, the date of the issue, and the names of 
 the attornies for the respective parties, {a.) 
 
 Making vp culmdar.'] — The calendar is made up by 
 the clerk, in duplicate, for the use of the court and 
 bar. The causes are arranged upon the calendar in 
 the order of the dates of the issues, commencing 
 with the oldest issues. 
 
 Argument.'] —When the appeal is reached on the 
 calendar and called on for argument, the appellant 
 must furnish a printed copy of the appeal papers to 
 each of the justices holding the court. Each party 
 must at the same time, furnish to each of the jus- 
 tices and to each other, a printed copy of his points. 
 The counsel for the appellant opens the argument ; 
 the counsel for the respondent replies, and the coun- 
 sel for the appellant closes the argument. But one 
 counsel will be heard on each side, unless there are 
 several parties, represented by different attorneys 
 and counsel, and unless the court shall otherwise 
 order ; and the counsel who opens the argument 
 and the one who closes it, must be the same. 
 Rule 14. 
 
 a. There is difBculty in determining the date of the issue, in appeals from infe- 
 rior courts, inasmuch as no rule has been made upon the subject by the court, 
 and the old rules are wholly inapplicable. In cases oi writs of error to in- 
 ferior courts, the date of the issue was the time the joinder in error was put in, 
 now there is no joinder in error, but an appeal ; and section 256 of the Code re- 
 lates to trials and not to appeals, besides it would be difficult to ascertain when 
 the last pleading was put in, in cases arising in a justice's court, and such are 
 chiefly the cases that come up from a county court. It would seem most consis- 
 tent with the nature of the case to take the^/i;ig of the return of the clerk as the 
 date of the issue, there being an identity in the practice of appeals from the 
 Supreme Court to the Court of Appeals, and appeals from inferior courts to the 
 Supreme Court. Such is the rule of the Court of Appeals. RuU Ct. of Ap. 8.
 
 2'68 ARGUMENT. 
 
 Either party having noticed the appeal for argu- 
 ment and put it on the calendar, may if the other 
 party does not appear to argue, move for and take, 
 upon furnishing proof of the service of the notice of 
 argument, such judgment as he is entitled to, either 
 of affirmance or reversal of the judgment of the 
 court below. Rule 28. Where a default is thus taken, 
 it is the duty of the counsel who moves, to endorse 
 upon the papers his name, {Rnle 29,) the object of 
 that being to enable the counsel of the adverse party 
 to give him notice of an application to the court to 
 open the default, it being the almost invariable prac- 
 tice of the court, to open defaults thus taken, pro- 
 vided the counsel who took it is at the place where 
 the court is sitting, and has notice of the applica- 
 tion to open the default. The court may, however, 
 require, as a condition of opening the default that 
 the cause be heard at the same term. 
 
 SECTION V. 
 Of the Judgment and Proceedings thereon. 
 
 Decision ] — The decisions of the court are usually 
 made at the end of each term, when they are hand- 
 ed in to the clerk and entered by him in the min- 
 utes. Till' decision in appeal cases, is to reverse, 
 atlirm or modify the judgment appealed from, in 
 the respect mentioned in the notice of appeal. A 
 concurrence of a majority of the justices holding 
 the court, is necessary to pronounce judgment. 
 
 In deciding the appeal, the court may leverse, 
 affirm or n odify the judgment appealed from, as to 
 any or all of the parties interested. They may also,
 
 OF JUDGMENT AND PROCEEDINGS. 269 
 
 if necessary, order a new trial. Code^ § 330. In ap- 
 peals, however, from judgments of inferior courts, 
 the decision of this court will usually be, bimply 
 affirming or reversing the judgment of the court be- 
 low. 
 
 There are, however, cases in which the court may 
 send the cause back for a new trial, which was 
 formerly denominated awarding a i^raere denovo. The 
 appeal from judgments of inferior courts, as has been 
 stated, is a substitute for the writ of error, under the 
 old practice, and the powers of the appellate court 
 are now the same as were formerly possessed by 
 the Supreme Court upon writs of error. The coun- 
 ty courts as at present constituted, have no general 
 or original jurisdiction, except in special cases con- 
 ferred by law ; and hence the judgments brought 
 into this court for review, will be chiefly such as 
 were rendered in actions arising in justices' courts. 
 In such cases the judgment of the Supreme Court, 
 upon the appeal will be simply affirming or revers- 
 ing the judgment of the county court. But in ac- 
 tions for the foreclosure of mortgages or the parti- 
 tion of lands, or such other actions as county courts 
 have power to try, the Supreme Court upon appeal 
 from judgments rendered therein, may affirm, re- 
 verse or modify the same, or grant a new trial. 
 
 In some cases the court will not only reverse the 
 judgment of the inferior court, but will go further, 
 and render such judgment as the court below ought 
 to have rendered (2 Hill, 391, 393): thus, they will 
 affirm or reverse the judgment of the justice, as the 
 case may be, in addition to reversing the judgment 
 of the county court.
 
 270 ENTERING JUDGMENT. 
 
 Costs] — Having obtained the decisioh of the court, 
 the next step is to make out a bill of the costs and 
 disbursements to which the prevailing party is en- 
 titled. As to which see ante p. 214. This must be 
 adjusted by the clerk of the court upon a two days' 
 notice to the opposite attorney, and inserted by the 
 clerk in the entry of judgment 
 
 Entering judgment.'] — The court having decided the 
 appeal, the clerk must enter the proper judgment. 
 If the cause is decided in a county other than that 
 in wliich the judgment appealed from is filed, the 
 prevailing party must obtain from the clerk of the 
 court, where the decision was made, a certified copy 
 of the rule or order entered in the minutes, which 
 must be filed in the office of the clerk where the 
 judgment roll appealed from is filed. A copy should 
 also be served upon the opposite attorney. In en- 
 tering the judgment, if the judgment of the court 
 below is affirmed, the prevailing party is entitled to 
 interest upon such judgment, by way of damages. 
 The judgment, therefore, lo be entered, is for the 
 amount of the judgment appealed from, with inte- 
 rest upon such amount, together with the costs and 
 disbursements allowed by law. The interest is 
 computed or assessed by the clerk. 
 
 The proceedings are not remitted to the court 
 below, but the judgment upon the appeal is enforced 
 in this court, in the same manner as other judg- 
 ments. 
 
 The judgment upon appeal, must be entered in 
 the county where the judgment appealed from was 
 entered. Code, § 347.
 
 CHAPTER IX. 
 
 APPEALS TO THE GENERAL TERM OF THE SU- 
 PREME COURT, FROM JUDGMENTS ENTERED 
 UNDER THE DIRECTION OF A SINGLE JUDGE 
 OF THE SAME COURT. 
 
 The only manner in which the decisions and 
 proceedings of the judge and jury, upon the trial 
 of a cause, can be reviewed, is upon an appeal 
 from the judgment. In this respect the practice is 
 changed ; and in reviewing the judgments entered 
 under the direction of a single judge of the same 
 court, the general term of this court acts in its 
 appellate capacity only. Formerly, where a case, or 
 bill of exceptions, or special verdict, 6r the like was 
 made, with a view of moving to set aside a verdict 
 or non-suit, for error of the judge, it was first argued 
 before the circuit judge, for which purpose a stay of 
 proceedings was granted until the argument and 
 decision of the circuit judge; or, by direction of 
 the circuit judge, the case might go directly to the 
 Supreme Court, without being first argued before 
 the circuit judge. In either case, however, the 
 entry of judgment was stayed until the decision of 
 the court upon the case, or bill of exceptions, or 
 special verdict, and the like. 
 
 The practice now, however, is essentially differ- 
 ent. As has been seen, {ante,) the case, bill of ex-
 
 272 APPEALS, WHEN AND BY WHOM TAKEN. 
 
 ceptions, or special verdict is settled, and filed with 
 the clerk of the county, with whom the judgment 
 is entered, and by him attached to the judgment 
 roll. Having done this, the party wishing to review 
 is in a condition to appeal, {Livingston v. Miller, 
 1 Code Rep. 117,) and then must take the necessary 
 steps to get his case before the court by appealing 
 from the judgment, and the appeal carries up the 
 judgment roll, which contains all that is required to 
 present the questions to the court for review. 
 
 SECTION I. 
 
 Appeal when and by whom Taken, and from what 
 Judgments or Orders. 
 
 When taken.^ — An appeal from a judgment in the 
 Supreme Court, entered under the direction of a 
 single judge, or upon the report of referees, must be 
 taken within thirty days after written notice of the 
 judgment shall have been received by the party in- 
 tending to appeal. So that the only way of limit- 
 ing the time for bringing the appeal, is by giving to 
 the party against whom the judgment is entered, a 
 written notice of the entering of the same. Code, § 
 332. 
 
 By whom.] — The appeal may be taken by the par- 
 ty against whom the judgment was rendered, and 
 in some cases, a party may appeal from a judgment 
 in his own favor; as, where he recovers less da- 
 mages than he is entitled to. The provision of law 
 (2 Rev. Stat. 592, § 2,) in respect to the parties by 
 and against whom writs of error may be brought, 
 the joinder of parties, and the proceedings on the
 
 APPEALS FROM JUD«i*i^NTS. 273 
 
 death or marriage of parties, it is presumed will all 
 apply to appeals brought under the Code, there 
 beino- nothiiiff in such law inconsistent with the 
 provisions of the Code. But see post p. 289, under 
 head of "Appeals to the Court of Appeals." 
 
 Appeals from judgments.'] — The judgments, as has 
 been seen, are such as are entered under the direc- 
 tion of a single judge, or upon the report of referees. 
 Code, § 278. They must be judgments entered upon 
 the direction of a single judge in the Supreme 
 Court or in the Superior Court of the city of 
 New- York, or the Court of Common Pleas of the 
 city and county of New-York. Hence, judgments 
 of county courts, or mayors' or recorders' courts 
 of cities, are not included among the judgments 
 from which an appeal may be taken to the general 
 term, as provided by the Code, § 348. See ante p. 251. 
 
 Appeals from orders.] — In the same manner that 
 appeals from judgments may be taken, and within 
 the same time, an appeal may also be taken from 
 an order made by a single judge of the same court, 
 and such order may thereupon be reviewed in the 
 following cases : 
 
 1. When the order grants or refuses a provisional 
 remedy : 
 
 2. When it involves the merits of the action, or 
 some part thereof: 
 
 3. When the order decides a question of practice 
 which in effect determines the action, without a 
 trial, or precludes an appeal : 
 
 4. When the order is made upon a summary 
 application in an action after judgment, and aifects 
 a substantial right. 
 
 18
 
 274 NOTICE OF APPEAL. 
 
 In addition to these orders, an appeal may also 
 be taken to the freneral term, from an order made 
 out of court upon notice. This includes such orders 
 as may be made by a judge at chambers; such as 
 orders for injunctions, attachments and the like. 
 But the order to be an appealable one, must be one 
 of the several orders above mentioned. 
 
 Before an order made out of court, can be appeal- 
 ed from, it must first be entered with the clerk of 
 the county in which ihe action is triable or pend- 
 ing. For this purpose the party affected by the 
 order and who wishes to appeal may require the 
 order to be entered with the clerk, and may get the 
 direction of the judge who made the order, requiring 
 it to be filed. 
 
 As it will be more appropriate to treat of appeals 
 from orders in connection with " Motions," the fur- 
 ther consideration of the subject will here be omit- 
 ted. But see post. 
 
 SECTION II. 
 
 Of the Proceedings to Perfect the Appeal. 
 
 Notice of Appeal.} — A party wishing to appeal, must 
 prepare a notice stating that he appeals from the 
 judgment, or from some specified part thereof, to 
 the general term. The judgment appealed from 
 must be described with accuracy and certainty, and 
 if the whole judgment is not appealed from, but the 
 party i .tends to review only a part of it, he must 
 specify accurately the part or portion of the judg- 
 ment appealed from. For form of notice, see Ap- 
 pendix. 
 
 Service.']— T\\G notice of appeal must be served on
 
 THE UNDERTAKING. 275 
 
 the adverse party, or it may be served upon his at- 
 torney, if the judgment appealed from, was entered 
 by a.n attorney. It must also be served on the clerk 
 with whom the judgment was entered. This notice 
 may be served like other notices in actions, as to 
 which see post. It need not be a personal service, 
 but may be by mail or otherwise, as in the case of 
 other notices. 
 
 The undertaking.'] — To render the appeal effectual 
 for any purpose, a written undertaking must be ex- 
 ecuted on the part of the appellant, by at least two 
 sureties, to the effect that the appellant will pay all 
 costs and damages, which may be awarded against 
 him on the appeal, not exceeding two hundred and 
 fifty dollars. Or the appellant may deposite with 
 the clerk, with whom the judgment appealed from 
 was entered, the sum of two hundred and fifty dol- 
 lars, to abide the event of the appeal. Cod,e, § 834. 
 
 This undertaking or deposite or both may be 
 waived by the written consent on the part of the 
 respondent. Code., \ 334. 
 
 The undertaking above mentioned, will be suffi- 
 cient to perfect the appeal in all cases where a stay 
 of execution upon the judgment is not desired ; or 
 where the judgment appealed from does not direct 
 the payment of money, or some act or thing to be 
 done by the party against whom the judgment is 
 made. 
 
 If, however, the appeal be from a judgment di- 
 recting the payment of money, it will not stay the 
 execution of the judgment, unless, in addition to 
 the undertaking to pay costs, (see Langley %■ Langley 
 V. Warner, 1 Com. Rep. 606,) a written undertaking
 
 276 THE UNDERTAKING. 
 
 be executed on the part of the appellant, by at leaitt 
 two sureties, to the effect that if the judgment ap- 
 pealed from, or any part thereof, be affirmed, the ap- 
 pellant will pay the amount directed to be paid by 
 the judgment, or the part of such amount, as to^ 
 which the judgment shall be affirmed, if it be affirm- 
 ed only in part, and all damages whicth shall be 
 awarded against the appellant, upon the appeal.. 
 Code, § 335. 
 
 Both the undertakings may be embraced in one, 
 and it is not necessary that they should be separate^ 
 If the judgment appealed from direct the assign- 
 ment or delivery of documents or personal property^ 
 the execution of the judgment will not be stayed 
 by the appeal, unless (in addition to giving the un- 
 dertaking to pay costs,) the things required to be as- 
 signed or delivered be brought into cout, or placed). 
 in the custody of such officer or receiver, as the 
 court shall direct, or unless an undertakinoi' be en- 
 tered into on the part of the appellant, by at least 
 two sureties, and in such amount as the court or 
 judge thereof, or county judge shall direct, to the 
 effect that the appellant will obey the order of the 
 appellate court, upon the appeal. Code, 336: 
 
 If the judgment appealed from direct the execu- 
 tion of a conveyance, or other instrument, the exe- 
 cution of the judgment will not be stayed by the 
 appeal, until the instrument shall have been execu- 
 ted, and deposited with the clerk, with whom the 
 judgment is entered, to abide the judgment of the 
 appellate court. Code, §337. 
 
 If the judgment appealed from, direct the sale or 
 delivery of possession of personal property, the exe- 
 cution of the judgment will not be stayed, unless a
 
 THE UNDERTAKING. 277 
 
 written undertaking be executed on the part of the 
 appellant, with two sureties, to the effect that du- 
 ring the possession of such property by the appellant 
 he will not commit or suffer to be committed any 
 waste thereon, and that if the judgment be affirmed, 
 he will pay the value of the use and occupation of 
 the firoperty, from the time of the appeal, until the 
 delivery of possession thereof, pursuant to the judg- 
 ment, not exceeding a sum to be fixed by a judge of 
 the court, by which the judgment was rendered, and 
 which must be specified in the undertaking. 
 
 When the judgment is for the sale of mortgaged 
 premises, and the payment of a deficiency arising 
 upon the sale, the undertakmg must also provide for 
 the payment of such deficiency. Code ^ 338. 
 
 In all cases of appeal, there must be an underta- 
 king Xo pay costs, in addition to any or either of the 
 other undertakings above mentioned. Langly and 
 Lankly vs. Warner, I Com. Rep. 600. But all the un- 
 dertakings required to make the appeal effectual or 
 to suspend the execution of judgment appealed from 
 may be embraced in one instrument and they need 
 not be separated. They may, however, be in sepa- 
 rate instruments, at the option of the appellant. 
 Code § 340. 
 
 It is not necessary for the appellant to execute 
 the undertaking. It will be sufficient if it is exe- 
 cuted by two sureties, without the appellant. 
 
 The undertaking need not be approved. It is re- 
 quired by rule {Ride 76,) that the undertaking shall 
 be duly proved or acknowledged in the manner 
 prescribed by law for the proof or acknowledgment 
 of deeds of real property, before the same shall be 
 ^•eceiv^ed or filed. In cases of appeal not provided
 
 278 THE UNDERTAKING, 
 
 for in sections 335, 336, 337 and 338, of the Code,, 
 the perfecting an appeal, by giving an undertaking, 
 on the part of the appelhint, executed by at least 
 two sureties, to the effect that the appellant will 
 pay all costs and damages which may be award- 
 ed against him on the appeal, not exceeding two- 
 hundred and fifty dollars; or by depositing that sum 
 with the clerk, with whom the judgment was en- 
 tered, to abide the event of the appeal, will stay all 
 proceedings upon the judgment appealed from, ex- 
 cept that where it directs the sale of perishable 
 property, the court may order the property to be 
 sold, and the proceeds thereof to be deposited or 
 invested, to abide the judgment of the appellate 
 court. Code, § 342. 
 
 Where a sum to be inserted in the undertaking 
 is to be fixed by a judge, as in the case of an ap- 
 peal from a judgment, directing the sale or delivery 
 of possession of real property, the judge may ascer- 
 tain the same by a reference, or by an affidavit, or 
 otherwise. 
 
 Upon the appeal being perfected, that is upon the 
 service of the notice of appeal and the execution 
 of the appropriate undertaking, as provided by law, 
 it stays all further proceedings upon the judgment 
 appealed from, or upon the matter embraced there- 
 in ; but the court may proceed upon any other 
 matter included in the action, and not affected by 
 the judgment appealed from. Code, § 339. 
 
 Affidavit annexed to undertaking ] — The undertaking 
 must be accompanied by an affidavit of the sureties, 
 that they are each worth double the amount speci- 
 fied therein, otherwise the undertaking will be of no
 
 THE UNDERTAKING. 279 
 
 effect, {Code § 341,) and the appeal will not stay the 
 proceedings upon the judgment appealed. And it 
 would seem that the sureties must be householders 
 or freeholders of this state, as they are required to 
 justify upon exception in the same manner as bail 
 taken upon the arrest of a defendant. It is unne- 
 cessary, however, to state in the afiidavit that the 
 sureties are householders or freeholders. But it will 
 be sufficient if they swear that they are each worth 
 double the amount specified in the undertaking. 
 
 Serving copy undertaki?ig.] — At the time of serving 
 the notice of appeal, a copy of the undertaking, in- 
 cludinsr the names and residence of the sureties, 
 must also be served on the adverse party, unless the 
 appellant makes a deposit of money instead of exe- 
 cuting an undertaking for the payment of costs. 
 The copy undertaking is served in the same man- 
 ner as notices and other papers in the action, and 
 may be upon the adverse party or upon his attorney 
 if he have one. It is well to serve also a copy of 
 the affidavit of the sureties, though it need not be. 
 Code 340. 
 
 Excepting to sureties,] — Within ten days after re- 
 ceiving notice of the appeal, and a copy of the un- 
 dertaking, the respondent, if he is not satisfied with 
 the sufficiency of the sureties, may except thereto. 
 For this purpose he must serve upon the appellant's 
 attorney, a written notice that he excepts to the suf- 
 ficiency of the sureties. If the respondent omits to 
 gve this notice, until after ten days from the receipt 
 of the copy underktaing and notice of appeal, he 
 will waive his right to require the sureties to justify. 
 Sureties justifying.] — The appellant's attorney hav- 
 ing received notice of exception to the sufficien-
 
 280 OTHER SURETIES. 
 
 cy of the sureties, he must see that they justify, and 
 if they fail to do so, and other sureties are not put 
 in, the appeal will be regarded as if no undertaking 
 had been given. Code, \ 341. Within ten days next 
 succeeding the receipt of notice of exception, the 
 sureties must justify before a judge of the court, or 
 before a county judge. For this purpose, a notice 
 must be served on the respondent's attorney, at 
 least ^ue days before the time specified therein when 
 the sureties will justify, stating the time, place, and 
 name of the judge before whom the sureties will 
 
 justify. 
 
 Sureties, in an undertaking given upon an appeal, 
 cannot justify before a justice of the peace, as in 
 cas5 of bail given upon the arrest of a defendant. 
 Code,^ 3 41. 
 
 Olher sureties.] — Instead of causing the sureties 
 already given to justify, the appellant may, within 
 the same time, (i. e. ten days after the notice of the 
 exception,) give a written notice to the respondent's 
 attorney, that other sureties, (whose places of resi- 
 dence and occupation must be stated in the notice,) 
 will in like manner justify before the judge. The 
 notice must specify the time, place, and name of 
 the judge before whom the new sureties will justify, 
 and must be served at least five days before the time 
 mentioned in the notice. 
 
 In case the new sureties justify, a new undertak- 
 ing must be executed, in the form and to the effect 
 prescribed by law for the first undertaking, and the 
 new sureties must justify in the same ir,anner as is 
 required in the case of the fir.:t sureties. 
 
 Manner of justifying.] — At the time and place spe-
 
 FILING UNDERTAKING. 281 
 
 cified in the notice, each of the sureties must attend 
 before the judge, who must administer to the sure- 
 ties an oath, that they will truly answer all ques- 
 tions that may be put to them touching their pro- 
 perty and sufficiency as sureties. The respondent's 
 attorney may then examine the sureties in such 
 manner as the judge may think proper. If required 
 by the respondent's attorney, the examination of the 
 sureties must be leduced to writing by the judge, 
 and subscribed by the sureties. If the judge finds 
 the sureties sufficient, he must annex their exami- 
 nation (if the same shall have been reduced to writ- 
 ing) to the undertaking, and endorse upon the un- 
 dertaking an allowance of the sufficiency of the 
 sureties. 
 
 The qualifications of sureties and the manner of 
 justifying, is the same as in case of bail taken on 
 arrest. Cude, § 341. 
 
 Filing undertaking.^^ — The undertaking mast be filed 
 with the clerk, with whom the judgment appealed 
 from was entered. Code, § 343. 
 
 Dcposite.] — If no stay of execution is required, the 
 appellant instead of giving the undertaking, may 
 deposite with the clerk with whom the judgment 
 appealed from is entered, the sum of two hundred 
 and fifty dollars, to abide the event of the appeal. 
 {Code, § 334.) In this case notice of the deposite must 
 be given to the opposite party. Code, § 340.
 
 282 PREPARING APPEAL FOR ARGUMENT. 
 
 SECTION III. 
 
 Of Preparing the Appeal for Argument. 
 
 The appellant having perfected his appea;, the 
 next step is to prepare the appeal for argument. 
 
 Preparing papers ] — An appeal from a judgment 
 entered in the Supreme Court, is to be heard upon 
 the judgment roll and the notice of appeal It is 
 not necessary to obtain the return of the clerk, as in 
 the case of an appeal from a judgment of an infe- 
 rior court, but the cause remains in the same court, 
 and the appellate court has access to and control 
 over the records in the office of the clerk. There is, 
 therefore, no transcript necessary. But the appel- 
 lant must procure from the clerk a copy of the judg- 
 ment roll; which, however, need not be certified. 
 A case must then be prepared by the appellant, con- 
 sisting of the judgment roll and notice of appeal. 
 
 The case must also contain a statement of the 
 time of the commencement of the suit, and of the 
 service of the respective pleadings; the names of 
 the orighial parties in full; the change of parties, 
 if any has taken place, pending the suit, and a very 
 brief history of the proceedings in the cause; and 
 also an abstract of the pleadings, not exceeding one- 
 sixth of the number of folios contained in the origi- 
 nal pleadings. Rule 32. 
 
 The points intended to be relied on in argument, 
 with a reference to the authorities in support of the 
 same, must also be prepared. 
 
 In cases where it is necessary for the court to go
 
 PRINTING CASE AND POIMTS. 283^ 
 
 into an extended examination of evidence, each 
 party must state upon his points the leading facts 
 which he deems established, with a reference to 
 the folios where the evidence of such facts may be 
 found. Rule 34. 
 
 It is the duty of the appellant, in all cases, to 
 prepare the case {Ride 32,) upon which the appeal is 
 to be heard, and furnish the necessary copies there- 
 of, and the respondent has no right to make it up. 
 
 Printing case and points.'] — The case and points, and 
 all other papers to be furnished to the court, in cal- 
 endar causes, must be printed on white writing 
 paper, with a margin on the outer edge of the leaf, 
 not less than one and a half inch wide. The print- 
 ed page, exclusive of any marginal reference, must 
 be seven inches long and three and a half inches 
 wide. The folio, numbering from the commence- 
 ment to the end of the case, must be printed on the 
 outer margin. Rule 33. 
 
 Serving case.] — At or before noticing the appeal for 
 argument, the appellant must serve on the attorney 
 for the respondent three printed copies of the case. 
 If the appellant fails to serve the copies at such time, 
 the respondent, having noticed the appeal for argu- 
 ment, may put the cause on the calendar, and move 
 upon an affidavit of the facts, and of the neglect of 
 the appellant to serve the case, and upon notice to 
 the appellant, for the earliest practicable day in term 
 for hearing non-enumerated motions, that the cause 
 be stricken from the calendar, and that judgment 
 be rendered in his favor. Rule 32. 
 
 The court, in which the motion is made to strike 
 the cause from the calendar, may upon sufficient
 
 ^84 NOTICE OF ARGUMENT. 
 
 €ause shovvn, grant relief upon such terms as shall 
 be just. 
 
 Notice, of argument.^ — The appeal may be noticed 
 for argument by either party. The notice must be 
 served eight days before the first day of the term at 
 which it is intended to bring on the argument, and 
 must specify the time and place when and where 
 the appeal will be heard. The appeal can only be 
 heard in the judicial district embracing the county 
 in which the judgment appealed from is entered, or 
 in a county adjoining the one where the judgment 
 is entered, and must be heard at a general term. 
 The appeal may be noticed for argument as soon as 
 the appeal is perfected. Sufficient time, however, 
 should be given to have the appeal printed, and that 
 there has not been sufficient time to have it printed 
 will be a good answer to a motion to strike the cause 
 from the calendar. 
 
 Note of issue. — The party noticing the appeal for 
 argument must, eight days before the first day of the 
 term at which it is intended to bring on the argu- 
 ment, furnish the clerk of the court, where the 
 appeal is to be heard, with a note of the issue. This 
 is a brief note of the title of the cause, the nature 
 of the question, the date of the issue, and the names 
 cf the attorneys for the respective parties. The date 
 of the issue in appeals, bringing up cases or bills of 
 exceptions, will be the day when the verdict in the 
 cause was taken, non-suit granted or report made. 
 {Old rules of Svp. Ct. 52.) No new rule upon the sub- 
 ject has been made, and the old rule must govern. 
 Rule 92. 
 
 Matiing up calendar.] — The calendar of causes for 
 argument at the general term, is made up by the
 
 ARGUMENT. 285 
 
 clerk in duplicate, one for the u^e of the court, and 
 one for the use of the bar. The causes are arranged 
 on the calendar in the order of the dates of the is- 
 sues, commencing with the oldest dates. 
 
 Argument.'] — AVhen the appeal is reached on the 
 calendar and called on for argument, the appeUant 
 must furnish a printed copy of the case, to each of 
 the justices holding the court. Each party must 
 furnish at the same time, to each of the justices 
 and to each other, a printed copy of his points. The 
 counsel for the appellant opens the argument; the 
 counsel for the respondent replies, and the counsel 
 for the appellant closes the argument. Only one 
 counsel on each side will be heard, unless the court 
 otherwise direct. Rule 14. 
 
 Either party having noticed the appeal for argu- 
 ment and put it on the calendar, may, if the other 
 party does not appear to argue, move ibr and take, 
 upon furnishing proof of the service of the notice of 
 argument, such judgment as he claims to be entitled 
 to ; either of affirmance or reversal, or an order for 
 a new trial, as the case may be. Rule 28. 
 
 AVhere a default is thus taken, it is the duty of the 
 counsel who moves, to endorse upon the papers his 
 name. Rule 29. The object of this being to en- 
 able the opposite party, to give him notice of an ap- 
 plication to the court to open the default; its being 
 the almost invariable practice of the court to open 
 defaults thus taken, provided the counsel who took 
 the default is at the place where the court is sitting 
 and has notice of the application. The court will, 
 however, usually require, as a condition of the open- 
 ing of the default, that the cause be argued at the 
 same term^
 
 286 JUDGMENT AND PROCEEDINGS THEREON. 
 
 SECTION IV. 
 Of the Judgment and Proceedings thereon. 
 
 Decision.] — The decisions of the court at the gen- 
 eral term, are usually made at the end of the term, 
 when they are handed to the clerk of the court, and 
 entered by him in the minutes. The decision upon 
 the appeal is either to reverse or affirm, or modify 
 the judgment appealed from, and they may grant a 
 new trial. Code § 330. But the court will not mod- 
 ify the judgment appealed from excep: in the respect 
 mentioned in the notice of appeal. A concurrence 
 of a majority of the justices holding the court, are 
 necessary to pronounce a judgment. Code § 19. 
 
 Costs.] — Having obtained the decision of the court, 
 the next step is to make out a bill of the costs and 
 disbursements to which the prevailing party is enti- 
 tled, as to which see ante p. 203. The costs must be 
 adjusted by the clerk of the court, upon a two days 
 notice to the opposite party, and inserted by the clerk 
 in the entry of judgment. 
 
 Entering judgment.] — The court having decided the 
 appeal, the clerk must enter the proper judgment. 
 If the cause is decided in a county other than that 
 in which the judgment roll is filed, the prevailing 
 party must obtain from the clerk where the decision 
 is made, a certified copy of the rule or order entered 
 in the minutes, which with the costs and disburse- 
 ments and the judgment thereon should be attach- 
 ed together and filed in the office of the clerk in 
 which the judgment was filed, and the judgment 
 docketed. The judgment is a brief statement of the
 
 TURNING CASE INTO BILL OF EXCEPTIONS. 287 
 
 appeal, and the decision thereon, and the judgment 
 of the court, which is, that the judj^ment appealed 
 from is reversed, or affirmed or modified in the par- 
 ticulars stated, and that tlii^ suceessful party recover 
 his costs and disbursements. Wliere the appellate 
 court grant a new trial, no judgment is necessary, 
 unless costs on the appeal are awarded, when the 
 judgment will be for costs. A copy of the rule or 
 order entered upon the decision of the court should 
 in all cases be served upon the opposite party. 
 
 SECTION V. 
 
 Of TURNING A Case into a Special Verdict or Bill 
 
 OF Exceptions. 
 
 The object of turning a case into a special ver- 
 dict or bill of exceptions, is to enable the party to 
 appeal from the judgment of the general term to 
 the Court of Appeals. Where a case is made and not 
 a bill of exceptions or special verdict, and no right 
 is reserved at the trial to turn it into one or the oth- 
 er, the Court of Appeals will refuse to hear it upon 
 appeal or otherwise. Livingston v. Raddiff", 3 Hoiv. 
 Pr. R. All. Hence, as has been stated, {ante p. 236) 
 a party wishing to reserve the right to go to the (^ourt 
 of Appeals, should at the trial procure from the oppo- 
 site party a stipulation, giving him the right to turn the 
 case into a special verdict or bill of exceptions. 
 
 The practice of turning a case into a special ver- 
 dict or bill of exceptions, is regulated by rule, and 
 is as follows: Within thirty days after notice of the 
 decision of the case, the party intending to appeal 
 must prepare the special verdict or bill of excep- 
 tions in form, and serve a copy on the opposite par-
 
 288 OF EXCEPTIONS. 
 
 ty. Rule 20. The special verdict or bill of excep- 
 tions must be drawn up in the same form as though 
 the exceptions had been taken at the trial, stating 
 only the facts established by the evidence, and not 
 the evidence itself 5 Hill, 579. No notice need be 
 taken of the case, or of the stipulation. Id. The 
 bill of exceptions must be signed by the judge who 
 tried the cause, as in ord nary cases, or it may be 
 settled by any one of the justices of the Supreme 
 Court. Rule 20. 
 
 The party on whom the special verdict or bill of 
 exceptions is served, may propose amendments 
 thereto within twenty days. Rule 20. And if no 
 amendments are proposed, and served within such 
 time, the verdict or bill of exceptions as proposed, 
 will be deemed to be assented to. Rule 21. If the 
 amendments are not assented to by the parties pro- 
 posing the special verdict or bill of exceptions, they 
 must be settled by one of the justices of this court, 
 on a notice to the opposite party within ten days 
 after the service of the amendments. Rule 20. 
 
 After the special verdict or bill of exceptions is 
 settled, it must be signed by the judge, and filed in 
 the office of the clerk of the court where the judg- 
 ment of the court is entered, and annexed to the 
 judgment roll. Rule 19. 
 
 If the special verdict or bill of exceptions is not 
 served within the thirty days, the prevailing party 
 will be at liberty to proceed as though no special 
 verdict or bill of exceptions had been taken. Rule 21. 
 
 Jppcall — Either party, after the special verdict or 
 bill of exceptions is filed, may appeal from the de- 
 cision of the Supreme Couit to the Court of Appeals. 
 S>eepo.st,p. 289.
 
 CHAPTER X. 
 
 OF APPEALS FROM THE SUPREME COURT TO THE 
 COURT OF APPEALS. 
 
 SECTION I. 
 
 In what cases Appeals may be made. 
 
 The Court of Appeals, as at present constituted, 
 possesses an appeUate jurisdiction only. It has pow- 
 er only to review the judgments of inferior courts. 
 
 Appeals can only be taken from actual determina- 
 tions made at a general term by the Supreme Court, 
 or by the superior court of the city of New York, 
 or of the court of common pleas of the city and 
 county of New York, in the following cases: 
 
 1. In a judgment in an action commenced there- 
 in, or brought there from another court; and upon 
 the appeal from such judgment to review any inter- 
 mediate order involving the merits, and necessarily 
 affecting the judgment. 
 
 2. In a final order affecting a substantial right, 
 made in a special proceeding, or upon a summary 
 application in an action after judgment. (Code, § 11, 
 subs. 1,2) 
 
 The first subdivision embraces appeals from judg- 
 ments in actions. The judgment appealed from 
 must be one pronounced at a general term of the 
 
 19
 
 290 IN WHAT CASES APPEALS MAY BE MADE. 
 
 Supreme Court, superior court, or court of common 
 pleas of the city of New York, and must finally 
 determine the action. 
 
 A judgment entered under the direction of a 
 single justice of the Supreme Court cannot be ap- 
 pealed into the Court of Appeals. It must first go 
 to the general term Grade v. Freeland and others, 
 1 Com. Rep., 228. Hence, no appeal lies to this 
 court from an order of the Supreme Court granting 
 a new trial upon a case or bill of exceptions, where 
 the decision was made after the Code of Procedure 
 took effect. Tilly v. Philips, 1 Com. Rep., 610. 
 Otherwise, where the Supreme Court deny a new 
 trial, this being a final determination of the action. 
 Ibid. So, no appeal lies to review an interlocutory- 
 order of the Supreme Court dissolving a temporary 
 injunction. Selden v. Vermilya, 1 Com. Rep., 534. Van 
 De Water v. Kelsey, 3 How. Pr. Rep., 338. Nor from 
 any order, the granting or refusing of which rested 
 in the discretion of the inferior court. Sherman and 
 others v. Felt and others, 3 How. Pr. Rep., 425. So, 
 generally, appeals will not lie upon mere questions 
 of costs. Sherman and Bachcldor v. Daggett and Green, 
 3 How. Pr. Rep , 426. 
 
 The Court of Appeals will not entertain an appeal 
 from a decision of the Supreme Court, upon a case 
 made at the circuit. There must be a special ver- 
 dict found or exceptions taken at the trial. Living- 
 ston V. Radcliff, 3 How. Pr. Rep., 417 ; li right v. Doug- 
 lass, ibid, 418; Sturgis v. Merry, ibid, 418; King v. 
 Dennis, ibid, 419. (a.) 
 
 (a.) In the case of Liii'igslonv. linddiff above cited, the Court of Appeals 
 doubtless intended to distinguish between a cnic and bi/Z of exceptions, as they 
 existed under tlie former practice. But as the term " Bill of Exceptions" ia
 
 APPEALS FROM ORDERS. 291 
 
 Where exceptions are taken at the trial, the party- 
 taking them may make a " case" incorporating in it 
 the exceptions, and it may be called case or excep- 
 tions. Code, § 281, suh. 2, 
 
 So, it would seem, this court will not entertain 
 ^n appeal from a judgment of the Supreme Court 
 reversing a judgment of a county court for error ap- 
 pearing in the bill of exceptions. Fargo v. Brown, 3 
 How. Pr. Rep., 294. 
 
 So an order, decree or judgment of the Supreme 
 Court, which contained a provision for a reference 
 of certain matters, and that all further questions and 
 directions be reserved until the coming in of the re- 
 port of the referee, was held not to be an appeala- 
 ble order, decree or judgment, and that it was not 
 such a final determination as was contemplated by 
 § 11 of the Code. Harris v. Clark, 4 How. Pr. R., 78. 
 
 Judgments, however, of the Supreme Court in 
 cases arising in a justice's court, cannot be reviewed 
 upon appeal, in the Court of Appeals. Code, §11. 
 The judgment of the Supreme Court in such cases 
 is final. 
 
 Orders'] — The orders from which appeals are al- 
 lowed, must be such as are final, and affect a sub- 
 
 ao longer used in the Code, and " case'' being substituted, {Code, §268,) the 
 courts could not have intended to deny the right of ajipeal upon a decision of the 
 Supreme Court, upon a "case" made under the Code. It will be seen that, 
 though exceptions to a decision on a matter of law arising upon the trial may 
 be taken as formerly, the party taking them must present them for review upon 
 -"a ca e, con'aininn, so much of ti.e ei'idence o« may be material to the question to be 
 raised." Code, § 268. This, under the former practice would be a bill of ex- 
 ceptions, and not a case. It is not difficult to distinguish between a case and 
 •exceptions, and although the legislature have used the term " case" as appli- 
 cable to exceptions, the Court of Appeals may review a decision of the Su- 
 preme Court upon a "case," where the case contains exceptions to a decision 
 on a matter of law arising upon the trial. If the decision of the Court of Ap- 
 peals is to receive a literal construction, it would soon be out of business, as 
 ^cisions of the circuit judge can only be reviewed upon a "case," so called.
 
 292 APPEALS FROM ORDERS. 
 
 stantial right, and are made in a special proceeding 
 or upon a summary application in an action after 
 judgment. 
 
 Tiie numerous class of orders, commonly denom- 
 inated " interlocutory orders," and which are chiefly 
 confined to the practice of the court, and are in aid 
 of the proceedings in the action, are not the subject 
 of review in this court Hence, no appeal lies, from 
 an order of the Supreme Court, granting or refusing 
 to grant an injunction, or from an order to hold a 
 defendant to bail, and the like. The order appealed 
 from, must be one, made at a general term of the 
 Supreme Court ; an order made at a special term or 
 by a single judge, at chambers or otherwise, being 
 not appealable. So, with orders the granting or re- 
 fusing of which are discretionary with the court, 
 cannot be reviewed upon appeal. Sherman y. Felt, 3^ 
 Howard's Pr. Rep. 42G. Vanderwater v. Kelsey, 1 Com. 
 Rep. 533. See 4 How. Pr. R. 78. 
 
 It is necessary that the order appealed from should 
 affect a substantial right, otherw^ise the court Vvill not 
 entertain it. Hence, an order granting or refusing 
 to grant a permanent injunction, is an appealable 
 order. Such orders, however, are not ordinarily 
 granted until judgment in the action, when it in 
 fact becomes a judgment. Usually, injunctions be- 
 fore trial and judgment are temporary, to continue 
 until the determination of the action. From such 
 orders, as we have seen, an appeal does not lie. 
 Selden v. Vermihja, 1 Com. Rrp., 534. 
 
 The order must be made in a special proceeding, 
 or upon a summary application in an action after 
 judgment.
 
 ^«^ITHIN WHAT TIME APPEAL MUST BE MADE. 293 
 
 Within ivhat time appeal must he mode.} — An appeal 
 to the Court of Appeals, must in all cases, whether 
 from a judgment or from an order, be madt? within 
 two years after the judgment or order is made and 
 entered, or the party prosecuting tlie appeal Avill 
 loose all right, and the appeal will be dismissed. 
 Code, § 331. The Revised Statutes (2 R. S,, 493, 
 § 21) in restricting the time for bringing a writ of 
 error upon a judgment or final determination of a 
 couit of law, to two yeare, after rendering of such 
 judgment, or final determination, has made the fol- 
 lowing exceptions, viz: where the person against 
 whom such judgment or determination is made, is 
 at the time, either (I) within the age of twenty-one 
 years; or (2) insane; or (3) imprisoned on any 
 criminal charge, or in execution upon some convic- 
 tion of a criminal offence, for any term less than 
 for life; or (4) a married woman: the time during 
 which such disability continued, was not to be 
 deemed any portion of the time limited for bringing 
 a writ of error; but such person might bring such 
 writ, after the time so limited, and within two 
 years after such disability was removed. Ibid, § 22. 
 Again, by settion 23 of the same statute, it was 
 provided, that if the person entitled to bring such 
 writ should die during the continuance of any dis- 
 ability Specified in section 22, his heirs, devisees, ex- 
 ecutors or administrators, entitled by law to prose- 
 cute such writ, might bring the same, after the time 
 limited for that purpose, and within two years after 
 such death. But the existence of any disability did 
 not authorise the bringing the writ, after the expira- 
 tion of five years from the time of rendering the 
 judgment.
 
 294 WHO MAY BRING THE APPEAL. 
 
 It has not been decided in the Court of Appeals, 
 whether this statute respecting writs of error, is to 
 apply to appeals. By the very precise language of 
 the Code, {sec. 331,) it would seem, that appeals 
 must, in all cases, be brought within two years from 
 the time of rendering the judgment, whether the 
 disability provided for in the Revised Statutes, ex- 
 isted or not. Yet it is believed, that the court will 
 decide that the Revised Statutes, in respect to such 
 disabilities, continues in force, notwithstanding 
 writs of error have been abolished. 
 
 Who may bring the appeal.'] — The appeal may be 
 brought by the party against whom the judgment 
 complained of was rendered. In casa of his death, 
 by his executors or administrators, if the judgment 
 was to recover any debt, or damages only, or to re- 
 cover any interest in lands, declared by law to be 
 personal assets; in case of the death of such party, 
 if the judgment was for the recovery of real estate, 
 or the possession thereof, or the title to real estate 
 was determined thereby, the appeal must be brought 
 by the heirs or devisees of such deceased party, to 
 whom such estate was devised or descended, or 
 might have descended. 
 
 An appeal may be brought by any person, having 
 an estr.te in reversion or remainder, in any real pro- 
 perty which shall have been recovered, or the pos- 
 session of which shall have been recovered, in any 
 action relating to property, brought against any te- 
 nant for life, or for years, in which action such per- 
 son was not a party ; and such appeal may be brought 
 within the time prescribed by law, by such person, 
 ns well during the life time of such tenant, as after 
 his death. 2 Rev. Stat. 490 § 2.
 
 JOINDER OF PARTIES. 295 
 
 Appeals, as now authorised by the Code of Proce- 
 dure, are a substitute for writs of error, in actions at 
 law, and appeals in chancery, as they existed under 
 the former practice. Hence, as the provisions of the 
 Revised Statutes in respect to the persons who may 
 prosecute the writ of error, are not inconsistent with 
 the provisions of the Code, they apply to appeals 
 brought under the Code. 
 
 Appeals may also be brought by a party in whose 
 favor a judgment may have been rendered, upon 
 which no execution shall have been issued, and 
 which shall not have been in any way satisfied, in 
 whole or in part \ and after his death, by his per- 
 sonal representatives, heirs, or devisees. 2. R. S. 
 491, § 3. 
 
 Also, by the attorney-general, in behalf of the peo- 
 ple of this state. Id. § 4. 
 
 Also, by husband and wife, on a judgment, re- 
 covered against the wife dum sola, or during mar- 
 riage. Id. § 5. 
 
 Also, b/ the survivors of several persons against 
 whom judgment has been obtained. Id. ^6. 
 
 Joifider of parties.] — Where there are several per- 
 sons against whom a judgment shall have been re- 
 covered, and entitled to bring an appeal, living at 
 the time of bringing vsuch appeal, they must all join 
 in the appeal, (except in appeals on judgments in 
 proceedings for partition,) and if any are omitted 
 the appeal will be dismissed, unless one or more of 
 such persons be allowed to proceed separately, by 
 the court into which the appeal is brought. 2 R. S. 
 491, §7. 
 
 Excuses for not joining.] — To th? allegation of there 
 being other persons living who ought to join in
 
 296 SERVICE OF RULE. 
 
 such appeal, if it be established or admitted, the 
 party bringing the appeal may answer by due proof 
 on affidavit, that any of such persons not joined are 
 either incapable of consenting to join in s::ch ap- 
 peal, by reason of insanity or imbecility of mind, 
 or that their consent could not be obtained, by rea- 
 son of their being absent out of the state ; and if 
 the court shall be satisfied of the truth of such an- 
 swer, such party shall be allowed to prosecute such 
 appeal, without joining such persons, in the same 
 manner as if they were joined. {Id. § 8.) The party 
 prosecuting the appeal may also answer, that appli- 
 cation has been made to any person not joined in 
 such appeal, to join therein, and that they have re- 
 fused. In such case, the court shall stay farther 
 proceedings on such appeal, and on the motion to 
 dismiss the same, until a rule to join in the appeal 
 shall have been duly served upon the persons so re- 
 fusing. Id. § 9. 
 
 Entering rule.] — A rule must thereupon be entered, 
 directing the persons so refusing, to join in such ap- 
 peal in such court, within such time as shall be 
 prescribed therein, and there join in such appeal, 
 and in the proceedings thereon, or be forever pre- 
 cluded from bringing another appeal on the same 
 judgment. Id. § 10. 
 
 Service of rule.] — A copy of such rule must be 
 served on the persons named therein, at least ten 
 days previous to the time of appearance therein 
 specified, by delivering the same personally to them, 
 if they can be found; and upon such of them as 
 cannot be found, by leaving the same at their last 
 place of residence respectively, with some person 
 of proper age. Id. § 11.
 
 MISJOINDER. 297 
 
 Proceedings on default.] — If any person named in 
 such rule do not appear by the time therein specifi- 
 ed, and join in sucii appeal, upon due proof of the 
 service of such rule, the default of such person shall 
 be entered, and he shall thereby be forever preclu- 
 ded from bringing any appeal on the same judg- 
 ment. And the case shall proceed in the same 
 manner as if sucli person had been named in such 
 appeal, and in the proceedings thereon. Id. 492, 
 § 13. 
 
 Misjoinder.'] — Not only must all proper parties join 
 in bringing an appeal, but no one must unite, who 
 has not been prejudiced by the judgment. This was 
 decided in a case of a writ of error, (17 Wen, Rep., 
 434,) and it may be regarded as the rule in respect 
 to appeals. 
 
 Against whom] — Appeals must be brought against 
 the same person who was a party to the judgment 
 on which it is brought ; or in case of his death, 
 either, (I) if such judgment was for the recovery of 
 any debt or damages only, against his executors or 
 administrators; or, (2) if the judgment was for the 
 recovery of any interest in lands declared by law to 
 be personal assets, against the executors or admin- 
 istrators of such deceased party; or if such interest 
 have been conveyed by the deceased, previous to 
 bringing the appeal, then against the actual occu- 
 pants thereof under such conveyance. (3.) If such 
 judgment was for the recovery of real estate, or the 
 pos:iession thereof, or in any action by which the 
 title to real estate was determined, the appeal must 
 be brought against the heirs of such person to whom 
 such real estate descended, or against the devisees of
 
 298 PROCEEDINGS TO PERFECT APPEAL. 
 
 £Uch estate; or if conveyed by the deceased, previ- 
 ous to bringing the appeal, then against the actual 
 occupants thereof, claiming under such conveyance. 
 2 R S, 492, § 19. 
 
 What attorney may bring appeal.] — The attorneys and 
 guardians ad litem of the respective parties, in the 
 court below, shall be deemed the attorneys and guar- 
 dians of the same parties respectively, in the Court 
 of Appeals, until others shall be retained or appoint- 
 ed, and notice thereof shall be served on the adverse 
 party. Rule 4 of Court of Appeals. The appeal there- 
 fore may be brought by the same or anew attorney. 
 
 SECTION 11. 
 
 Of the Proceedings to Perfect the Appeal. 
 
 Notice of appeal.] — A party wishing to appeal, must 
 prepare a notice stating that he appeals from the 
 judgment or order, or from some specified part there- 
 of. The judgment or order appealed from must be 
 described with accuracy and certainty, and if the 
 whole judgment or order is not appealed from, but 
 the party intends to review only a part of it, he must 
 specify accurately the part or portion of the judg- 
 ment or order appealed from. (For form of notice 
 ■ see Appe?i(]ix.) 
 
 Service.] — The notice of appeal must be served on 
 the adverse party, or it may be served upon his at- 
 torney, if the judgment or order appealed from, was 
 entered by an attorney. It must also be served on 
 the clerk with whom the judgment or order was en- 
 tered. This notice may be served like other notices 
 in actions, as to which see post. It need not be a
 
 THE UNDERTAKING. 299 
 
 personal service, but may be by mail, or otherwise 
 as in the case of other notices. 
 
 The undertaking^ — To render the appeal eifectual 
 for any purpose, a Avritten undertaking must be 
 executed on the part of the appellant, by at least 
 two sureties, to the effect that the appellant will 
 pay all costs and damages which may be awarded 
 against him on the appeal, not exceeding .two hun- 
 dred and fifty dollars. Or the appellant may de- 
 posite with the clerk, with whom the judgment or 
 order appealed from was entered, the sum of two 
 hundred and fifty dollars, to abide the event of the 
 appeal. 
 
 This iindertaking or deposite, or both, may be 
 waived by the written consent on the part of the 
 respondent. {Code, § 334.) 
 
 The undertaking above mentioned will be suffi- 
 cient to perfect the appeal in all cases where a stay 
 of execution upon the judgment is not desired ; or 
 where the judgment appealed from does not direct 
 the payment of money, or some act or thing to be 
 done by the party against whom the judgment or 
 order is made. If, however, the appeal be from a 
 judgment directing the payment of money, it will 
 not stay the execution of the judgment, unless, in 
 addition to the undertaking to pay costs, {see Langley 
 Land Langley v. Warner, 1 Com. Rpp., 606) a written 
 undertaking be executed on the part of the appel- 
 lant, by at least two sureties, to the effect that if 
 the. judgment appealed from, or any part thereof, 
 be affirmed, the appellant will pay the amount 
 directed to be paid by the judgment, or the part of 
 such amount as to which the judgment shall be 
 affirmed, if it be affirmed only in part, and all
 
 n 
 
 00 THE UNDERTAKING. 
 
 damages which shall be awarded against the ap» 
 peJlant, upon the appeal. {Code, § 335.) 
 
 Both the undertakings may be 'embraced in one, 
 and it is not necessary that they should be separate. 
 
 If the judgment appealed from direct the assign- 
 ment or delivery of documents or personal property, 
 the execution of the judgment will not be stayed 
 by the appeal, unless (in addition to giving the 
 undertaking to pay costs) the things required to be 
 assigned or delivered, be brought into court, or pla- 
 ced in the custody of such officer or receiver as the 
 court shall direct, or unless an undertaking be en- 
 tered into on the part of the appellant, by at least 
 two sureties, and in such amount as the court or 
 judge thereof, or county judge shall direct, to the 
 effect that the appellant will obey the order of the 
 appellate court upon the appeal. Code, §336. 
 
 If the judgment appealed from direct the execu- 
 tion of a conveyance or other instrument, the exe- 
 cution of the judgment will not be stayed by the 
 appeal, until the instrument shall have been execu- 
 ted, and deposited with the clerk, with whom the 
 judgment is entered, to abide the judgment of the 
 appellate court. Code, §337. 
 
 If the judgment appealed from direct the sale or 
 delivery of possession of real property, the execu- 
 tion of the judgment will not be stayed, unless a 
 written undertaking be executed on the part of the 
 appellant, with two sureties, to the effect that durii?g 
 th(» possession of such property by the appellant, he 
 will not commit, or suffer to be cori;mitted, any 
 waste thereon, and that if the judgment be affirm- 
 ed, he will pay the value of the use and occupation
 
 THE UNDERTAKING. 301 
 
 of the property, from the time of the appeal until 
 the delivery of ppssession thereof, pursuant to the 
 judgment, not exceeding a sum to be fixed by a 
 judge of the ccurt, by which the judgment was 
 rendered, and which mnst be specified in the un- 
 dertaking. When the judgment is for the s le of 
 mortgaged premises, and the payment of a defi- 
 ciency arising upon the sale, the undertaking must 
 also provide for the payment of such deficiency. 
 Code, § 338. 
 
 In all cases of appeal, there must be an undertaking 
 iopay costs, in addition to any or either of the other 
 undertakings, as above mentioned. Langley and Lang- 
 ley vs. Warner, 1 Com. Rep. 606. But all the under- 
 takings required to make the appeal effectual, or to 
 suspend the execution of the judgment appealed 
 from, may be embraced in one instrument, and they 
 need not be separate. They may, however, be in 
 sepLirate instruments, at the option of the appellant. 
 Code, § 340. 
 
 It is not necessary for the appellant to execute the 
 undertaking. It will be sufficient if it is executed 
 by two sureties, without the appellant. 
 
 The undertaking need not be approved. 
 
 In cases of appeal not provided for in sections 
 335, 336, 337, 338 and 339, of the Code, the perfect- 
 ing an appeal by giving an undertaking, on the part 
 of the appellant, executed by at least two sureties, 
 to the effect that the appellant will pay all costs and 
 damages which may be awarded against him on the 
 appeal, not exceeding two hundred and fifty dol- 
 lars; or by depositing that sum with the clerk 
 with whom the judgment or onler was entered, to
 
 302 THE UNDERTAKING. 
 
 abide the event of the appeal, will stay all proceed- 
 ings in the court below, upon the judgment appeal- 
 ed from, except that where it directs the sale of 
 perishable property, the court below may order the 
 property to be sold, and the proceeds thereof to be 
 deposited or invested, to abide the judgment of the 
 appellate court Code, § 342. 
 
 Where a sum to be inserted in the undertaking, 
 is to be fixed by a judge, as in the case of an appeal 
 from a judgn ent, directing the sale or delivery of 
 possession of real property, the judge may ascertain 
 the same by a reference, or by an affidavit, or other- 
 wise. 
 
 Upon the appeal being perfected, that is, upon 
 the service of the notice of appeal and the execu- 
 tion of the appropriate undertaking, as provided by 
 law, it stays all further proceedings in the court be- 
 low, upon the judgment appealed from, or upon the 
 matter embraced therein; but the court below may 
 proceed upon any other matter included in the ac- 
 tion, and not affected by the judgment appealed 
 from. Code, § 339. (For form of undertaking, see 
 Appendix) 
 
 Ajjidav it annexed to undertaking.] — The undertaking 
 must be accompanied by an affidavit of the sureties, 
 that they are each worth double the amount spe- 
 cified therein, otherwise the undertaking will be of 
 no effect, {Code § 341,) and the appeal will not stay 
 the proceedings in the court below, upon the judg- 
 ment appealed. And it would seem that the sureties 
 must be householders or freeholders in this state, as 
 they are required to justify upon exception in the 
 same manner as bail taken upon the arrest of a de-
 
 SERVING COPY UNDERTAKING. 303 
 
 fendant. It is unnecessary, however, to state in the 
 affidavit, that the sureties are householders or free- 
 holders. But it will be sufficient if tfiey swear that 
 that they are each worth double the amount speci- 
 fied in the undertaking-. 
 
 Serving copy undertaking.'] — At the time of serving 
 the notice of appeal, a copy of the undertaking, in- 
 cludins: the names and residence of the sureties, 
 must also be served on the adverse party, unless the 
 appellant makes a deposite of money instead of ex- 
 ecuting and undertaking for the payment of costs. 
 The copy undertaking is served in the same man- 
 ner as notices and other papers in the action, and 
 may be upon the adverse party or upon his attorney 
 if he have one. 
 
 Excepting to sureties.] — Within ten days after receiv- 
 ing notice of the appeal and a copy of the underta- 
 king, the respondent, if he is not satisfied with the 
 sufficiency of the sureties, may except thereto. For 
 this purpose he must serve upon the appellant's at- 
 torney, a Avritten notice that he excepts to the suffi- 
 ciency of the sureties. If the -respondent omits to 
 give this notice, until after ten days from the re- 
 ceipt of the copy undertaking and notice of appeal, 
 he will waive his right to require the sureties to 
 justify. 
 
 Sureties justifying.] — The appellant's attorney, hav- 
 ing received notice of exception to the sufficiency 
 of the sureties, he must see that they justify, and if 
 he fail to do so, and other sureties are not put in, 
 the appeal will be regarded as if no undertaking had 
 been given. Cb£/e§34l. Within ten days, next suc- 
 ceeding the receipt of notice of exception, the sure- 
 ties must justify before a judge of the court below, or
 
 304 OTHER SURETIES. 
 
 before a county judge. For this purpose a notice 
 must be served on the respondent's attorney, at least 
 five days before the time specified therein when the 
 sureties will justify, stating the time, place and name 
 of the judge before whom the sureties will justify. 
 
 Sureties in an undertaking given upon an appeal, 
 cannot justify before a justice of the peace, as in case 
 of bail given upon the arrest of a defendant. Code 
 § 341. 
 
 Other sureties.'] — Instead of causing the sureties al- 
 ready given to justify, the appellant may within the 
 same time, (i. e. ten days after notice of the excep- 
 tion,) give a written notice to the respondent's at- 
 torney, that oi/^er sureties, (whose places of residence 
 and occupation must be stated in the notice,) will 
 in like manner justify before the judge. The notice 
 must specify the time, place, and name of the judge 
 before whom the new sureties will justify, and must 
 be served at least ^ye days before the time mention- 
 ed in the notice, 
 
 In case the new sureties justify, a new undertak- 
 ing must be executed, in the form and to the effect 
 prescribed by law for the first undertaking, and the 
 new sureties must justify in the same manner as is 
 required in the case of tlie first sureties. ^ 
 
 Marnier of justifying.] — At the time and place spec- 
 ified in the notice, each of the sureties must attend 
 before the judge, who must administer to the sure- 
 ties an oath that they will truly answer all questions 
 that may be put to them touching their property 
 and sufficiency as sureties. The respondent's 
 attorney may then examine the sureties in such 
 manner as the judge may think proper. If required 
 by the respondent's attorney, the examination of
 
 TRANSMITTING JUDGMENT ROLL. 805 
 
 the sureties must be reduced to writing by the 
 judge, and subscribed by the sureties. 
 
 If the judge finds the sureties sufficient, he must 
 annex their examination, (if the same shall have 
 been reduced to writing,) to the undertaking, and 
 endorse upon the undertaking an allowance of the 
 sufficiency of the sureties. 
 
 The qualification of sureties and the manner of 
 justifying is the same as in case of bail taken on ar- 
 rest. Code, § 341. 
 
 Filing undertaking^ — The undertaking must be fil- 
 ed with the clerk, with whom the judgment or order 
 appealed from was entered. Code, § 343. 
 
 SECTION III. 
 
 Of Transmitting Judgment Roll, or Order Ap- 
 pealed FROM, to the Court of Appeals. 
 
 Upon the appeal being perfected, by the service of 
 the notice of appeal and a copy of the undertaking, 
 the judgment roll or order must be transmitted to 
 the Court of Appeals. The clerk of the court where 
 the judgment or order appealed from is entered, is 
 required, upon the application and at the expense 
 of the appellant, forthwith to transmit to the appel- 
 late court, a certified copy of the notice of appeal 
 and of the judgment roll. Code § 328. In case of an 
 appeal from a judgment, the return of the clerk 
 need consist of nothing more than a certified copy 
 of the notice of appeal and of the judgment roll. 
 Court of Appeals, Rule 1 . Where the appeal is from 
 an order, the return of the clerk must consist of a 
 •certified copy of the notice of appeal of the order 
 
 20
 
 306 OBTAINING FURTHER RETURN. 
 
 appealed from, and of the papers on which the court 
 below acted in making the order. Id. 
 
 When transmitted^ — The appellant must cause the 
 proper return to be made and filed with the clerk of 
 the Court of Appeals, within twenty days after the 
 appeal is perfected. Rule 2. If the appellant fail 
 to do so, he will be deemed to have waived the ap- 
 peal, and the respondent may file an affidavit, show- 
 ing when the appeal was perfected, and a certificate 
 of the clerk of the Court of Appeals, that no return 
 has been filed, and enter an order of course, without 
 notice to the appellant, dismissing the appeal with 
 costs, for want of prosecution. This order is entered 
 with the clerk of the Court of Appeals. Rule 2. 
 
 Upon the appeal being dismissed, the court below 
 may proceed, as though there had been no appeal. 
 Id. 
 
 The time for making the return, however, may be 
 enlarged by the Court of Appeals, or by either of 
 the judges thereof, upon sufficient cause being 
 shown. Rule C. of Ap. 18. 
 
 Obtaining further return.] — If the return made by the 
 clerk of the court below, is defective, either party may 
 apply to one of the judges of the Court of Appeals for 
 an order that the clerk make a further return, with- 
 out delay. The application for this order must be 
 founded on an affidavit, specifying the delects in the 
 return already made, and is made ex parte, no notice 
 of the application to the adverse party being neces- 
 sary. 
 
 The order should also state the defects in the first 
 return, and must be served upon the clerk of the 
 court below.
 
 MAKING CASE. 307 
 
 SECTION IV. 
 Of Preparing the Appeal for Argument. 
 
 Making case.] — Afler the return of the clerk has 
 been filed, a case must b.; prepared by the appel- 
 lant, and printed for the use of the court. The case 
 must consist of a copy of the return of the clerk, 
 and the reasons of the court below for its judgment, 
 if the same can be procured. Rule 5. If the case is 
 voluminous, an index of the pleadings, exhibits, 
 depositions and other principal matters must be 
 added. Id. The points intended to be relied on, in 
 argument, with reference to the authorities in sup- 
 port of the same must also be prepared and printed. 
 In cases where it is necessary for the court to go 
 into an extended examination of evidence, each 
 party must briefly state upon his printed points the 
 leading facts which he deems established, with a 
 reference to the folios where the evidence of such 
 facts may be found. Rule 10. It is the duty of the 
 appellant in all cases to make up the case, and fur- 
 nish the copies, and the respondent has no right to 
 make it up. 
 
 Printing case.] — The case and points, and all other 
 papers furnished to the court in calendar causes, 
 m.ust be printed on white writing paper, with a mar- 
 gin on the outer edge of the leaf, not less than one 
 and a half inch wide. The printed pnge exclusive 
 of any marginal note or reference, must be seven 
 inches long, and three and a half inches wide. The 
 case must be folioed, numbering from the com-
 
 308 SERVING CASE. 
 
 mencement to the end of the case. The numbers 
 of the folios must be printed on the outer margin of 
 the case. Rule 6. 
 
 Serving case.] — Within forty days after the appeal 
 is perfected, the appellant must serve three copies 
 of the printed case, on the attorney for the respon- 
 dent. If he fail to do so, he will be deemed to have 
 waived the appeal. And the respondent on filing 
 an affidavit proving the default, may enter an order 
 with the clerk, dismissing the appeal for want of 
 prosecution with costs. Rule 7. The time for serv- 
 ing the printed case may be enlarged by a judge of 
 the Court of Appeals, upon an ex parte application, 
 upon an affidavit stating the reasons therefor. Rule 
 18. Upon the appeal being dismissed for the non- 
 service of the printed case, the court below may 
 proceed .upon the judgment appealed from, as 
 though there had been no appeal. 
 
 Notice of argument.] — Either party may give to the 
 other notice of the argument of the appeal. This 
 notice must be served eight days before the first day 
 of the term at which it is intended to bring on the 
 argument, and must specify the time and place 
 when and where the appeal will be heard. The 
 appeal may be noticed for argument, as soon as the 
 case is printed and served, for any term of the court 
 wherever held. It is not confined to the judicial 
 district in which the action originated. Rule 8. 
 
 Note of issue] — The party noticing the appeal for 
 argument, must furnish to the clerk of the court a 
 copy of the notice of argument, specifying in it the 
 judicial district in which the cause originated. It 
 must be famished eight days before the first day of 
 the term. Rule 8.
 
 ARGUMENT. 309 
 
 flaking up calendar.'] — The calendar of appeals for 
 argument is made up by the clerk of the court, and 
 printed. The causes are arranged in the order in 
 which the returns are filed, specifying the judicial 
 district in which the causes originated respectively. 
 
 The calendar is printed in the same manner as 
 cases and points are directed to be printed. 
 
 Argument.'] — When the cause is reached on the 
 calendar and called on for argument, the appellant 
 must furnish a printed copy of the case to each of 
 the judges of the court, and must deliver five other 
 copies to the clerk of the court. Each party must 
 at the same time furnish to each of the judges a 
 printed copy of the points on which he intends to 
 rely, with a reference to the authorities which he 
 intends to cite ; and must also deliver five other co- 
 pies to the clerk of the court, and three copies to 
 the counsel of the adverse party. If the reasons of 
 the court below for its judgment are not annexed to 
 the cases delivered to the court, the cause will not 
 be heard, unless it appear by affidavit that applica- 
 tion has been made for such reasons, and that the 
 same could not be procured. 3 Hill^ 630. 
 
 The counsel for the appellant opens the argument; 
 the counsel for the respondent replies, and the coun- 
 sel for the appellant closes: Only one counsel will 
 be heard on each side, unless the court otherwise 
 direct. Rule 1 1 . 
 
 The court will not hear an extended discussion 
 upon any mere question of fact. Rule 10. 
 
 An ex parte argument either for affirmance or rever- 
 sal, will not be heard. But the party who has no- 
 ticed the cause and placed it on the calendar for
 
 310 ARGUMENT. 
 
 argument, may take judgement of affirmance or re- 
 versal, as the case may be, if the other party ne- 
 glects to appear and argue the cause, or neglects to 
 furnish to the court and deliver to the clerk the 
 printed copies of the case and points. Rule 11. 
 
 But where a decree or order is affirmed or revers- 
 ed by the default of either party, the remittitur will 
 not be sent to the court below, (unless the court shall 
 otherwise direct,) until ten days after notice of the 
 affirmance or reversal shall have been served on the 
 attorney of the party in default. And an affidavit 
 or the written admission of the attorney on whom 
 such notice was served, of the service, must be fur- 
 nished to the clerk, before he is authorized to send 
 the remittitur to the court below. Rule 17. 
 
 A judgment of allirmance or reversal granted by 
 default, may be set aside, and the default opened by 
 the court, on motion, and sufficient excuse shown, 
 at any time before the remittitur is actually sent 
 down to the court below. And a judge of the court 
 may grant a stay of proceedings to enable the party 
 to make the motion. Rule 18. 
 
 The motion is founded on affidavit, and at least 
 eight days notice to the adverse party. 
 
 The motion days in this court, are the morning 
 of the firbt day of any term, and the morning of 
 each following Tuesday and Friday, during the term, 
 before taking up the calendar. Motions cannot be 
 made at any other times. 
 
 Cases may be submitted to the court on printed 
 arguments. The same number must be furnished 
 to the judges and delivered to the clerk, as of the 
 case and points. Rule 14.
 
 TUDGMENT AND REMITTITUR. -311 
 
 SECTION V. 
 
 Of the Judgment and Remittitur, and the Proceed- 
 ings THEREON IN THE CoURT BELOW. 
 
 Decision.] — The decision of the court is to reverse, 
 affirm, or modify the judgment or order appealed 
 from, in whole or in part. Code, § 12. The con- 
 currence of five judges is necessary to pronounce a 
 judgment. If five do not concur, the judgment or 
 order appealed from is affirmed, unless the court 
 order a re-hearing. Such a mere formal affirmance, 
 although it leaves the law of the Supreme Court 
 undisturhed, cannot be considered ag settling the 
 law in this court, except so far as it relates to the 
 particular case in which the decision is made. Per 
 Walworth, Chancellor, 5 Wend Rep 372. 
 
 Remittitur J] — After the decision of the court has 
 been pronounced, it is remitted to the court below, 
 to be enforced according to law. The remittitur 
 contains a copy of the judgment of the court, and 
 the return made by the clerk of the court below. 
 It is usually drawn by the clerk, and is required to 
 be signed and sealed by him. Rule 16. 
 
 The remittitur may be filed at any time in term 
 or vacation. It is sent to, and must be filed in, the 
 office of the clerk, when the judgment or order 
 appealed from was entered. 
 
 Where a decree or order is affirmed or reversed 
 by the default of either party, the remittitur will not 
 be sent to the court below, unless the court otherwise 
 direct until ten days after notice of the affirmance 
 or reversal, has been served on the attorney of the
 
 312 COSTS, 
 
 party in default. Rule 17. And in such a case, 
 before the remittitur will be sent down, the service 
 of the notice must be proved to the clerk, by affi- 
 davit, or the written admission of the attorney on 
 whom it was served. 
 
 (7o5l5]_Where the judgment appealed from is 
 affirmed in part and reversed in part, or where a new 
 trial is granted, the costs of the appeal are in the 
 discretion of the court. It is usual in this court not 
 to allow costs where a new trial is granted. 
 
 When costs are allowed, either by law or are given 
 by the court, they are as follows : 
 
 To the prevailing party, before argument, twenty- 
 five dollars; for argument, fifty dollars; for every 
 term of the court at which the cause is necessarily 
 on the calendar, and not reached, or postponed, ex- 
 cluding that at which it is heard, ten dollars. In 
 addition to these items of costs, the prevailing party 
 is allowed the necessary disbursements and fees of 
 officers. The disbursements must be stated in de- 
 tail, and must be verified by affidavit, which must 
 be filed. Two days notice of the application to the 
 clerk, to insert in the entry of judgment the sum of 
 tlie charges for costs, and necessary disbursements 
 and fees of officers, must be given to the adverse 
 party. The costs are certified by the clerk, and in- 
 serted by him in the entry of judgment. 
 
 Judgment is thereupon entered in the Supreme 
 Court, in accordance with the decision of this court. 
 The entry of judgment with the remittitur must be 
 annexed to the judgment roll, and the whole be- 
 comes one record of the Supreme Court. For form 
 of judgment upon remittitur, see Appendix.
 
 EXECUTION. 21 S 
 
 Execution.] — The party who has the judgment in 
 this court, if it be final, may, immediately after 
 filing the remittitur, and entry of judgment there- 
 upon in the Supreme Court, issue an executicn to 
 collect or enforce the same. 
 
 The execution recites the judgment in the Supreme 
 Court appealed from, and also the decision and 
 judgment of this court, and directs the sheriff' or 
 other officer to satisfy the amount of the judgment 
 appealed from, and also the costs and damages 
 awarded by this court upon the appeal, out of the 
 property of the adverse party, as in ordinary cases. 
 
 For form of execution, see Appendix.
 
 PART III. 
 
 OF PROCEEDINGS IN SPECIAL CASES. 
 
 CHAPTER I. 
 
 OF ACTION FOR FORECLOSURE OF MORTGAGE AND 
 
 SALE OF PREMISES. 
 
 Previous to the adoption of the Constitution of 
 1846, the Court of Ciiancery possessed the sole 
 power of decreeing the foreclosure of a mortgage and 
 a sale of the mortgaged premises. A court of law 
 had no jurisdiction in such cases, and the only 
 modes of obtaining satisfaction of a mortgage by 
 the sale of the mortgaged premises, was by a bill in 
 chancery, or a foreclosure under the statute. 
 
 But in the abolition of the Court of Chancery, the 
 powers which had been exercised by the Chancellor, 
 were transferred to the justices of the Supreme 
 Court, and in some instances to the county judges. 
 
 The Code of Procedure destroys all distinctions 
 between actions at law and suits in equity, {Code, § 
 69,) and hence there is now but one form of action.
 
 gl6 OBJECT OF ACTION. 
 
 SECTION I. 
 
 Object of the Action, and how commenced. 
 
 The object of instituting an action, for the fore- 
 closure of a mortgage, is to obtain a judgment of 
 sale of the mortgaged premises, and a foreclosure 
 of the equity of redemption of the mortgagor, and 
 of all junior incumbrancers by way of mortgage, 
 judgment, or otherwise. The statute (2 Riv. Stat. 
 191, § 157, Orig. § 151,) authorises the court, in ac- 
 tions for the foreclosure and satisfaction of a mort- 
 gage, to decree or direct the sale of the mortgaged 
 premises, or as much as may be sufficient to dis- 
 charge the amount due on the mortgage, and the 
 costs of the suit. 
 
 The action for the foreclosure of a mortgage, is 
 commenced like all other actions by the service of 
 a summons. All the rules which appertain to other 
 actions, in respect to the form of the summons, man- 
 ner of service and proceedings to judgment, are ap- 
 plicable to suits for the foreclosure of a mortgage. 
 
 Parties^ — The plaintiff, as in other actions, must 
 be the real party in interest and if he is not, it will, 
 if it appear from the complaint, be ground of demur- 
 rer; otherwise the defendant may take advantage of 
 the defect by answer. The mortgagee of the mort- 
 gage, or the assignee thereof, will in general be the 
 proper plaintiff And Avhere there is an assignment 
 of a part of the mortgage both the mortgagee and 
 assignee must be plaintiffs; so, if the mortgagee is 
 dead, his personal representatives must be plaintiffs, 
 inasmuch as the mortgage is assets in their hands,
 
 THE PARTIES. 317 
 
 and for purposes of paying debts, legacies or distri- 
 bution, belongs to them. 
 
 The defendant in such suit, must be the person who 
 has the adverse interest, {Code § 118) and whose 
 rights and interest are to be affected by the suit. 
 Hence, the mortgagor, and all persons who have an 
 incumbrance upon the mortgaged premises, by way 
 of mortgage or judgment, are necessary parties, de- 
 fendants. It is not necessary to make senior incum- 
 brancers defendants, though they may be, where it 
 is intended to satisfy by a sale all the liens upon the 
 mortgaged premises. If the mortgagor is dead, his 
 heir must be a party to the action ; and where it is 
 intended to change his estate for the deficiency, it 
 is proper to make his representative a party also. So, 
 the purchaser of the mortgaged premises is a neces- 
 sary party, as he becomes by the purchase, the own- 
 er of the equity of redemption. And in some cases 
 the purchaser may become liable for the deficiency, 
 where the proceeds of the sale of the premises are 
 insufficient to pay the debt and costs : as, where such 
 purchaser has assumed to pay the mortgage, as a 
 part of the consideration of the purchase. 9 Paige, 
 446; 10 Id. 595. 
 
 In general, the rules that heretofore prevailed in 
 the Court of Chancery in respect to the parties to a 
 bill for the foreclosure of a mortgage, will apply to 
 an action instituted for the same purpose, under the 
 Code. And the reader is referred to the excellent 
 treatise of Mr. Barbour, upon the practice of the 
 Court of Chancery, for a full digest of the rules in 
 that court upon the subject. And see ante p. 9, Sfc. 
 
 It has been held that in an action against husband
 
 318 THE COMPLAINT. 
 
 and wife, for the foreclosure of a mortgage executed 
 by both, though upon lands conveyed to the wife, 
 there was no misjoinder of defendants, although the 
 mortgage was given for the consideration money, 
 and the husband had no interest therein. Conde v. 
 Shpphard, 4 How. Pr. R., 75. The husband stood in 
 the relation of surety for the deficiency, and might 
 be charged in the judgment. 
 
 The summons.'] — The summons is in the ordinary 
 form required, where an application for the relief 
 demanded is necessary to be made to the court; 
 hence, it must contain a notice to the defendant 
 that upon his failure to answer the complaint, the 
 plaintiff will apply to the court for the relief de- 
 manded in the complaint. It is improper to state 
 in the summons that the plaintiff will take judg- 
 ment, for no judgment in an action for the fore- 
 closure of a mortgage can be taken, except upon a 
 special application to the court. Rule 49. 
 
 The co?nplaint.] — The complaint in an action for 
 the foreclosure of a mortgage must like other actions 
 contain a statement of the plaintiff's cause of action 
 against the defendants, (see a?ite p. 99,) together 
 with a demand of the relief, to which the plaintiff 
 supposes himself entitled. Ordinarily, it will be 
 sufficient to state in the complaint, the making of 
 the mortgage, its date and amount, when and where 
 recorded, and a brief description of the premises. 
 If a bond has been given with the mortgage, it ^ 
 should also be briefly set out in the complaint. If 
 junior mortgagees or grantees, or junior judgment 
 creditors are made parties, as they must be, in order 
 to foreclose their equity of redemption, it should be
 
 THE COMPLAINT. 319 
 
 stated that the interest of such defendants, is junior 
 and subordinate to that of the plaintiff. And it will, 
 in general, be sufficient to aver that such defend- 
 ants have or claim to have, some interest in the 
 mortgaged premises by mortgage, judgment or 
 otherwise, but which the plaintiff alleges is junior 
 and subordinate to the mortgage and claim of the 
 plaintiff. The facts constituting the cause of action 
 and not the evidence of the facts should be stated. 
 Floyd V. Dearborn, 2 Code Rep., 17. Hence, it would 
 be improper to set out the mortgage or bond, at 
 length in the complaint ; and it will be enough if it 
 state that A. B., one of the defendants, mortgaged 
 the premises on the day mentioned in the mortgage, 
 to secure the payment of the sum of money therein 
 mentioned, with a brief description of the premises, 
 and that there is due to the plaintiff, for principal 
 and interest upon the mortgage, the sum claimed. 
 
 The general rules, in respect to the statement of 
 the cause of action, heretofore laid down in regard 
 to actions generally, (ante p. 99,) apply to actions 
 for the foreclosure of a mortgage, and all that is 
 necessary, is to state "the facts constituting the 
 cause of action, in ordinary and concise language, 
 without repetition, and in such a manner as to en- 
 able a person of common understanding to know 
 what is intended." 
 
 The 7'elief to which the plaintiff supposes himself 
 entitled, must also be stated in the complaint. Or- 
 dinarily, the relief demanded by the plaintiff, will 
 be for the payment of the mortgage debt, that the 
 defendants and all persons claiming under them, 
 subsequent to the commencement of the suit, may
 
 320 THE COMPLAINT. 
 
 be barred and foreclosed of all right, claim, lien and 
 equity of redemption in the mortgaged premises ; 
 and that the premises may be sold upon the judgment 
 of the court, that the monies arising from the sale, 
 may be applied in payment of the amount due on 
 the bond and mortgage, with interest to the time of 
 payment, and the costs and expenses of the suit, as 
 far as the proceeds of the sale will go ; and that the 
 defendant who is personally liable for the debt, may 
 be adjudged to pay the deficiency which may re- 
 main. 
 
 The whole relief to which the plaintiff conceives 
 himself to be entitled, must be stated in the com- 
 plaint, for if the defendant does not answer the 
 complaint, the court has no power to give the plain- 
 tiff any other or further relief, than that which he 
 has demanded in the complaint. Code §275. There- 
 fore, the precise judgment which the plaintiff de- 
 sires, should be claimed in the complaint. So, where 
 for any purpose, it is contemplated to move for an 
 injunction, a prayer for that purpose should be con- 
 tained in the complaint, {Hovey v. McCrea, 4 How. 
 Pr. Rep. 31,) otherwise the court will not restrain 
 the defendant unless the facts rendering such res- 
 traint necessary, arise after the suit has been com- 
 menced, when the injunction may be granted upon 
 affidavit. Code § 219. (a) 
 
 (ii) The author does not approve of the decision in Hovey \. McCrea, The 
 learned judge doubtless was governed by tlic practice in the late Court of 
 Chancery, which required a prayer for the injunction, and also the subpoena to 
 be contained in tlic bill. Rut tliat was a mere regulation of the court. So, a 
 ne exeat could not be issued unless there was a prayer for it in the bill, except 
 upon petition subsequently presented. By the Code (§219) an injunction may 
 be allowed, " where it shall apj)car by the complaint that the plaintiff is enti- 
 tled to the relief demanded, and su"h relief consists in restraining the defendant."
 
 THE COMPLAINT. 321 
 
 Service of summons and verification and service of com- 
 plaint.}— In respect to the service of the summons, 
 and the verification and service of the complaint, 
 the same rules prevail as in other actions, (as to 
 which see ante p. 106-110,) there being no distinction 
 between actions for the foreclosure of a mortgage 
 and other actions. 
 
 Notice of object of suit.]— In case there are defend- 
 ants, against whom the plaintiff makes no personal 
 claim, such as subsequent purchasers, mortgagees 
 of the premises and judgment creditors, the plain- 
 tiff may deliver to such defendants, with the sum- 
 mons, a notice of the object of the suit. This no- 
 tice must be subscribed by the plaintiff or his attor- 
 ney, and must set forth the general object of the 
 action, with a brief description of the mortgaged 
 premises, and that the plaintiff makes no personal 
 claim against such defendants. Tlie notice should 
 state the amount claimed to be due upon the mort- 
 gage, its date, and the time and place of recording, 
 if the same has been recorded. In case of the ser- 
 vice of such a notice, no copy of the complaint need 
 be served upon such defendant, unless within the 
 time for answering he shall in writing demand the 
 same. Code § 130. 
 
 If a defendant upon whom such notice shall have 
 been served, unreasonably defends the action, he 
 will be liable to pay costs to the plaintiff. {Code, 
 § 131.) It would seem, however, that if the plain- 
 
 If, therefore, the case stated by the plaintiff in his complaint is one in which 
 he is entitled to restrain the defendant, an injunction may be allowed without a 
 prayer for it. The prayer is matter of/orm, and all forms are abolisheil by the 
 Code. There can be no objection, however, to insert a prayer for an injunction, 
 in the complaint, as part of the relief demanded. 
 
 21
 
 322 NOTICE OF LIS PENDENS. 
 
 tiff omits to serve on the defendant, agaiast whom 
 no personal claim is made, a notice of the object of 
 the suit, such defendant would have the right to 
 appear and claim costs, to be paid by the plaintiff 
 personally, in the discretion of the court 9 Paige, 
 230. 
 
 Notice of lis pendens] — At the time of commencing 
 the action, the plaintiff must file in the office of the 
 clerk of the county, a notice of the pendency of the 
 suit. The object of this notice is to apprize all sub- 
 sequent purchasers or incumbrancers of the mort- 
 gaged premises, of the existence and pendency of 
 the action. And, hence, it is provided by statute, 
 that from the time of filing such notice, it shall be 
 constructive notice of the pendency of the action, 
 to all purchasers or incumbrancers of the property 
 affected thereby. Code, § 132. 
 
 The notice must contain the names of the parties, 
 the object of the action, the date of the mortgage, 
 the time and place of recording, with a brief de- 
 scription of the mortgaged premises. 
 
 If the plaintiff omits to file such notice, he cannot 
 obtain a judgment of foreclosure and sale of the 
 mortgaged premises, it being provided that such no- 
 tice must be filed twenty days before the judgment 
 {Code § 132) and proof of the filing must be furnish- 
 ed to the court upon the trial or upon the applica- 
 tion for judgment, where no answer has been put in. 
 Rule 49. The notice of the pendency of the action 
 may be filed at any time provided it be at least twen- 
 ty days before the judgment is obtained.
 
 PROCEEDINGS UPON RECEIPT OF ANSWER. 323 
 
 SECTION II. 
 
 Proceedings tpon Receipt of Answer of Defendant, 
 
 AND WHEN NO AnSWER IS PUT IN. 
 
 The action having been commenced by the 
 service of the summons, as in other cases, and the 
 service of the notice of the object of the suit upon 
 such of the defendants as no personal claim is iTiade 
 against, and filing the notice of the pendency of the 
 suit, the plaintiff has done all that is required until 
 he receives the answer of the defendant, or the 
 defendant fails to answer. 
 
 Proceedings upon receipt of anstver.] — The defendant, 
 or any of the defendants, may demur to the com- 
 plaint, as in other actions, and for the same causes; 
 (see ante, p. 134) or, if he has a defence to the action, 
 may put in an answer to the complaint. In these 
 respects, there is no difference between an action 
 for the foreclosure of a mortgage and any other 
 action. A defendant may procure a copy of the 
 complaint, in the same manner as in other actions. 
 See ante, p^ 1 25. If an answer is served by a defend- 
 ant, denying any material fact in the complaint, 
 the same proceedings are had to try such issue, as 
 in other actions. It is only in default of an answer 
 that the practice in procuring a judgment is differ- 
 ent, in this action, from what it is in other actions. 
 
 Proceedings where no answer is put in, or where the 
 answer does not deny any material fact set forth in the 
 complaint. 'l — If no answer is put in by the defendant, 
 or the right of the plaintiff, as stated in the com- 
 plaint, is admitted by the answer, the plaintiff may
 
 324 APPLICATION FOR ORDER OF REFERENCF. 
 
 apply for an order of reference to some suitable and 
 proper person, to compute the amount due to the 
 plaintiff. Rule 49. 
 
 Application for order of reference.'\ — It will be recol- 
 lected that the summons contains a notice to the 
 defendant, that if he fails to answer the complaint 
 within the time specified, an application will be 
 made to the court for the relief demanded. In or- 
 de •, therefore, to inform the court what amount to 
 render judgment for, a reference is necessary to 
 compute and ascertain such amount. Hence, upon 
 the expiration of the time limited for the defendant 
 to answer, the plaintiff must, if no answer has been 
 put in, or no answer denying any material fact al- 
 leged in the complaint, apply to the court for an 
 order of reference. Rule 49. 
 
 The application for the order may be made at a 
 special term, in the district embracing the county 
 where the mortgaged premises are situated, or in a 
 county adjoining that in which such premises are 
 situated. 
 
 Where the defendant has appeared in the action 
 before the time for answering has expired, he is en- 
 titled to a notice of eight days of the time and phice 
 of the application for the order of reference. Code, § 
 246, sub. 2. 
 
 The affidavit.] — The plaintiff when he applies for 
 the order of reference, must furnish proof to the 
 court by affidavit or otherwise, of the service of the 
 summons upon the defendant, and that no answer 
 has been put in, or no answer denying any material 
 fact alleged in the complaint. It must also appear, 
 whether any of the defendants are infants and have
 
 ORDER OF REFERENCE. 825 
 
 put in a general answer by their guardian; and 
 whether any of the defendants are absentees; and, 
 whether the whnle amount of the mortgage is due, 
 for the purpose of having the proper direction in- 
 serted in the order. 
 
 Upon furnishing proofs of these facts, the court 
 will direct a reference to some suitable person as 
 referee, to compute the amount due to the plaintiff. 
 Rule 49. 
 
 The order of reference.'] — The order must direct the 
 person named as referee, to compute the amount 
 due to the plaintiff upon the bond and mortgage 
 mentioned in the complaint. If there are defend- 
 ants who are prior incumbrancers of the mortgaged 
 premises, the order must also direct the referee to 
 compute the amount due to such defendants ; and, 
 if the whole amount secured by the mortgage is 
 not due, the order must require the referee to exam- 
 ine and report whether the mortgaged premises can 
 be sold in parcels. If any of the defendants are in- 
 fants, and have put in a general answer, by their 
 guardian ; or, if any oi the defendants are absentees, 
 the order of reference, must also direct the referee, 
 to take proof of the facts and circumstances stated 
 in the complaint, and to examine the plaintiff on 
 oath, as to any payments which have been made. 
 Rule 49. Code, § 246, suh. 2. 
 
 Upon entering the order of reference, a certified 
 copy should be procured from the clerk, and de- 
 livered to the referee, who will proceed to execute 
 the order, and report thereon, accordingly. 
 
 Application for judgment of foreclosure and sale. '-^ 
 The plaintiff having obtained the report of the refe- 
 ree upon all the subjects embraced in the order of re-
 
 326 AFFIDAVIT NECESSARY. 
 
 ference, is in condition to move the court for the 
 proper judgment. This motion may be made at any 
 special term of the court, in the district embracing 
 the county in which the mortgaged premises are sit- 
 uated. If the defendant has appeared in the action 
 before the time for answering has expired, he is en- 
 titled to notice of the application for judgment. 
 
 Affidavit necessary.] — At the time of applying for 
 judgment of foreclosure and sale, the plaintiff nmst 
 furnish proof to the court, by affidavit, or by the cer- 
 tificate of the clerk of the county where the mortga- 
 ged premises are situated, that the notice of the 
 pendency of the suit, in the form prescribed by sec- 
 tion 132 of the Code, has been filed with such clerk,^ 
 at least twenty days previous to such application for 
 judgment. The affidavit must also state, whether 
 any of the defendants, who have not answered the 
 complaint, are absentees, that the court may see 
 that the referee has reported upon the subjects re- 
 quired in such cases. Rule 49. 
 
 Upon reading such affidavit, together with the re- 
 port of the referee, the plaintiff will be entitled to 
 a judgment of foreclosure and sale of the mort- 
 gaged premises. 
 
 If the motion or application for the judgment is 
 made in a county other than that in which the 
 mortgaged premises are situated, the rule or order 
 for judgment must be certified by the clerk of the 
 court, where the motion is made, and filed in the 
 office of the clerk of the county where the premises 
 are situated. 
 
 The judgment.'] — The manner of entering judgment 
 is the same a^ in other actions. The statement of
 
 THE JUDGMENT. 327 
 
 the judgment is a brief history of the proceedings, 
 and a judgment of the court for the amount of prin- 
 cipal and interest reported to be due, with the costs 
 and disbursements to M^iich the plaintiff is entitled, 
 to be inserted therein, and a direction to sell the 
 mortgaged premises. It is provided by rule {Rule 50) 
 that in every judgment for the sale of mortgaged 
 premises, the description and particular boundaries 
 of the prcperty to be sold, so far at least as the same 
 can be ascertained from the mortgage, shall be in- 
 serted. And unless otherwise specially ordered by 
 the court, the judgment must direct that the mort- 
 gaged premises, or so much thereof as may be suffi- 
 cient to raise the amount due to the plaintiff, for 
 principal, and interest and costs, and which may be 
 sold separately, without material injury to the par- 
 ties interested, be sold by or under the direction of 
 the sherift^ of the county, or of a referee, to be there- 
 in named, and that the plaintiff or any other party 
 may become a purchaser on such sale; that the 
 sheriff or referee execute a deed to the purchaser; 
 that out of the proceeds of the sale he pay to the 
 plaintiff or his attorney the amount of his debt, in- 
 terest and costs, or so much as the purchase money 
 will pay of the same, and that he take the receipt 
 of the plaintiff or his attorney, for the amount so 
 paid, and file the same with his report of sale, and 
 that the purchaser on such sale be let into the pos- 
 session of the premises on production of the sheriff's 
 or referee's deed, and a certified copy of the order 
 confirming the report of sale after the same has be- 
 come absolute. Rule 50. 
 It seems, also, that the judgment may contain a
 
 328 JUDGMENT ROLL. 
 
 provision to collect the balance of the mortgage debt 
 that may remain unsatisfied, after a sale of the pre- 
 mises, and that the proper execution therefor 
 against other property of the mortgagor, may be is- 
 sued accordingly. 2 Rev. Stat. § 152. 
 
 The judgment is entered with the clerk, and must 
 contain the amount of costs and disbursements to 
 which the plaintiff is entitled, and which must be 
 allowed and adjusted by the clerk, by whom the en- 
 try of judgment is made. It is the duty of the at- 
 torney who draws up the judgment, to distinctly 
 number and mark each folio in the margin thereof 
 Rule 44. 
 
 Judgment roll] — Upon entering the judgment, the 
 clerk is required, as in other actions to make up and 
 file, in his office, a judgment roll. This consists of 
 the summons, and complaint or copies thereof, proof 
 of service, and the affidavit that no answer has been 
 put in, the report of the referee, and a copy of the 
 judgment. Code § 281, sub. 1. But see ante p. 201. 
 
 Sale ] — For the purpose of making the sale under 
 a judgment of -foreclosure, a certified copy of the 
 judgment must be procured from the clerk, and deliv- 
 ered to the sheriff' or referee, by whom the sale is to 
 be made, who proceeds therein in the manner pre- 
 scribed by law. Code § 285. It is provided by rule 
 {Rule 53,) that where the premises to be sold consist 
 of several distinct lots or parcels, which can be sold 
 separately, without diminishing the value thereof on 
 such sale, it is the duty of the sheriff or referee to 
 sell the same in separate lots or parcels, unless oth- 
 erwise specially directed by the court. If, however, 
 the sheriff or referee is satisfied that the proper- 
 ty will produce a greater price if sold together, than
 
 NOTICE OF SALE. 329 
 
 it will in separate lots or parcels, he may sell it to- 
 gether, unless otherwise directed in the judgment. 
 
 Time and place of sale. — The time and place of sale 
 of mortgaged premises under a judgment, is usually 
 in the discretion of the sheriff or referee, except that 
 it must be in the county where the premises, or the 
 principal part of them, are situated , and except in 
 the city of New- York, where the sale must be at the 
 Merchants' Exchange, unless otherwise specially di- 
 rected in the judgment. The time of the sale must 
 be between the hours of nine o'clock in the morn- 
 ing and the setting of the sun. 2 R, S. 369, § 36. 
 Except in the city of New- York, where it must be 
 between the hours of twelve o'clock at noon and 
 three in the afternoon. Rule 54. The sale must in 
 all cases be at public vendue. 2 R. S. 869, § 36, 
 
 Notice of sale.] — The sheriff or referee to Avhom is 
 delivered the copy of the judgment, must give no- 
 tice of the time and place of the sale, in the man- 
 ner required by law. 
 
 The provisions of the statute respecting sales, are 
 as follows: 2 R. S. 369, §§34, 35. 
 
 The time and place of the sale shall be publicly 
 advertised previously, for six weeks successively, as 
 follows : 
 
 1. A written or printed notice thereof shall be 
 fastened up in three public places in the town where 
 such real estate shall be sold, and if such sale be in 
 a town different from that in which the premises to 
 be sold are situated, then such notice shall also be 
 fastened up in three public places of the town in 
 which the premises are situated. 
 
 2. A copy of such notice shall be printed once in
 
 830 CONDITIONS OF SALE. 
 
 each Aveek in a newspaper of such county, if there 
 be one. 
 
 3. If there be no newspaper printed in such coun- 
 ty, and the premises to be sold are not occupied by 
 any person against whom the judgment is entered, 
 or by some person holding the same as tenant or 
 purchaser under such person, then such notice shall 
 be published in the state paper, once in each week. 
 
 Where the lands lie in any of the cities of this 
 state, in which a daily paper is printed, except 
 where a different notice is required by law, or by 
 the order of the cou-t, the notice of sale must be 
 printed in one or more of the daily papers of that 
 city for three weeks immediately previous to the 
 tin:e of sale, at least twice in each week. Rule 54. 
 
 In the notice of sale, the real estate to be sold 
 must be described with common certainty, by set- 
 ting forth the name of the township or tract, and 
 number of the lot, if there be any, and if there be 
 none, by some other appropriate description. 2 Rev. 
 Stat., 369, § 35. 
 
 Conditions of sale.] — The attorney for the plaintiff 
 should prepare a statement of the conditions of the 
 sale. 
 
 This is usually annexed to the notice of sale, 
 and therefore need not describe the nature and 
 situation of the property ; but it should specify the 
 terms and conditions of the sale, time of payment 
 of the purchase money, time when the deed will 
 be delivered, whether there is to be any deduction 
 for taxes and assessments, and such other conditions 
 as it is intended to annex to the sale, that the pur- 
 chaser may be apprized of them. 
 
 Conducting sale]— We have before adverted to the
 
 DEED TO THE PURCHASER. 331 
 
 manner of conducting the sale ; it is to be between 
 certain hours in the day time, and at public vendue, 
 &c. The premises being struck off to the highest 
 bidder, the purchaser should sign an acknowledg- 
 ment, which is written under the conditions of sale, 
 to the effect that he has purchased the premises on 
 those conditions for the sum bid by him, and agree- 
 ing to conform to such conditions. 
 
 Deed to the purchaser.'] — Immediately upon the sale 
 being concluded, if the purchaser pays the amount 
 bid, the sheriff or referee who made the sale may 
 execute and deliver the deed ; and it is not neces- 
 sary to make a report of the sale, or have the report 
 confirmed, before the deed is executed. 
 
 Report of sale.] — After the sheriff or referee has 
 completed the sale, by executing and delivering the 
 deed, and paying the money arising from the sale, 
 as directed in the judgment, he must make a report 
 thereof, which must be filed in the office of the 
 clerk where the judgment is entered. To this re- 
 port the sheriff or referee who makes the sale must 
 annex the receipts for the money paid to the plain- 
 tiff or his attorney, which must be filed with the 
 report. 
 
 Confirming report of sale.] — After the report of sale 
 is made it must be filed in the office of the clerk, 
 where the judgment is entered, and an order enter- 
 ed that such report be confirmed. This is a com- 
 mon order, and is entered in the book which the 
 clerk is directed to keep in his office for such pur- 
 pose. Rule 4. 
 
 After the expiration of eight days from the enter- 
 ing of the order confirming the report of sale it be- 
 comes absolute.
 
 S32 EXECUTION FOR DEFIClENCV. 
 
 Upon production of the sheriff's or referees' deed 
 and a certified copy of the order confirming the re- 
 port of sale, after the same has become absolute, 
 the purchaser will be let into possession of the pre- 
 mises. 
 
 SKCTION III. 
 
 Execution for Deficiency. 
 
 As has been before stated, in an action to fore- 
 close a mortgage the court may not only direct the 
 sale of the mortgaged premises, and compel the de- 
 livery of the possession thereof to the purchaser, but 
 may also direct payment of the balance of the mort- 
 gaged debt, if any shall remain, after a sale of the 
 premises, and to issue the necessary execution, as 
 in other cases, against other property of the mort- 
 gagor. 
 
 In such case, if it appears by the report of sale 
 that the proceeds of the sale of the mortgaged pre- 
 mises are insufficient to satisfy the whole amount 
 due to the plaintiff for principal and interest, and 
 costs of suit, the plaintiff may issue an execution as 
 in other cases, to collect such deficiency or balance 
 out of the other property of the mortgagor. 
 
 But the sheriff's or referees' report must be filed 
 and confirmed before an execution can issue.
 
 CHAPTER II. 
 
 OF ACTIONS FOR THE PARTITION OF REAL 
 
 PROPERTY. 
 
 Under the Revised Statutes, authorising partition 
 to be made between tenants in common of lands^ 
 no action at law could be instituted, and the pro- 
 ceedings in such courts were conducted by petition. 
 But power was given to the Court of Chancery, to 
 proceed by petition or bill and decree the partition 
 or sale of lands, tenements or her ditaments, in the 
 same manner as courts of law. 2 Rev, Stat., 329, 
 §79. 
 
 The jurisdiction and powers of the Court of 
 Chancery being now vested in the Supreme Court, 
 and all distinctions between law and equity be- 
 ing abolished, the mode now prescribed for proceed- 
 ings for partition, is by action. The right, however^ 
 to proceed by petition as formerly, has not been 
 taken away, but power is given to the court to pro- 
 ceed by action, in the same manner that the late 
 Court of Chancery might have proceeded by bill. 
 
 The practice, therefore, in partition cases, is es- 
 sentially unchanged. An action being merely sub- 
 stituted for a bill. This being the case, the subject 
 will not be entered upon at much length, inasmuch 
 as the present treatises upon Chancery practice^ will 
 furnish ample information.
 
 334 PARTIES 
 
 Parties.] — The plaintiff who commences the action, 
 must be seized as tenant in common or joint tenant 
 with others of the lands sought to be partitiohed, 
 and must be of full age. The plaintiiT must have 
 an immediate and absolute interest in the premises, 
 and a mere future contingent interest will not en- 
 title him to maintain the action. 2 Paige, 387. So, 
 the estate of the plaintiff must be such as entitles 
 him to the immediate possession of the lands. 19 
 Wendell, 367. And if the legal title is disputed, it 
 seems, that it must be first settled by a separate 
 action. 4 John. Chy. Rep , 271. 
 
 The action must be brought against the other te- 
 nants in common or joint tenants, and against such 
 persons as have specific liens against the property. 
 And it is always well to make mere incumbrancers 
 parties, although it is not necessary. 
 
 The sufnmons.] — The summons is in the same form 
 required in an action for the foreclosure of a mort- 
 gage. See ante p. 318. 
 
 The complaint.] — It is necessary in the complaint 
 for the partition of lands, that the plaintiff state in as 
 concise a manner as possible, the rights and inter- 
 ests of the respective parties in the premises, and 
 the several specific Hens and incumbrances thereon, 
 5o far as the same are known to him; and if the 
 rights of any person are unknown to him, he shall 
 state the same according to his information and be- 
 lief 
 
 It is not necessary to aver in the complaint that 
 the plaintiiF is in possession of the premises; that 
 fact being presumed from the allegation that the 
 parties are seized as tenants in common. 3 Paige 
 242.
 
 VERIFYING COMPLAINT. 335 
 
 If there are several tracts or parcels of land lying 
 within this state, which are owned by the same per- 
 sons in common, they must all be included in the 
 same complaint, it being improper to institute se- 
 parate suits for the partition thereof, without the 
 consent of all the parties interested therein. Rule 11. 
 And if separate suits are brought without such con- 
 sent, the plaintiff may be subjected to the payment 
 of the costs. Ibid. 
 
 The same general rules in respect to stating the 
 cause of action that prevail in actions, are applica- 
 ble to partition suits. See ante p. 99. 
 
 The relief to which the plaintiff claims to be en- 
 titled must be stated in the complaint, which, in 
 general, will be for a partition of the lands among 
 the several tenants in common, or joint tenants, in 
 proportion to their respective rights and interests 
 therein ; or, for a sale thereof in case a partition 
 cannot be made without greatly prejudicing the 
 rights of the parties, and a distribution of the pro- 
 ceeds among the owners. 
 
 Verifying complaint.'] — In an action for the parti- 
 tion of lands, it is necessary for the plaintiff to ver- 
 ify the complaint. 2 Rev. Stat. 318, § 5, sub. 3. The 
 verification of the complaint is the same as is re- 
 quired in other actions, where a pleading is verified. 
 Code, § 157. See ante p. 
 
 Service of summons.] — The summons is served in the 
 same manner as in other actions, (see ante p. 106) 
 and as in other actions it is not necessary to serve 
 upon the defendants a copy of the complaint, unless 
 the same is demanded. See ante p. 110. 
 
 Notice of object of suit.] — In case any of the defend-
 
 336 NOTICE OF LIS PENDENS. 
 
 ants are persons having specific or general liens or 
 incumbrances upon the lands, and who are not 
 joint tenants, or tenants in common therein, and 
 against whom the plaintiff makes no personal claim, 
 the plaintiff may deliver to such defendants with 
 the summons, a notice of the object of the suit. 
 This notice must be subscribed by the plaintiff or 
 his attorney, and must set forth the general object 
 of the action, with a brief description of the lands 
 sought to be partitioned, and that the plaintiff makes 
 no personal claim against such defendants. In case 
 of the service of such summons, no copy of the 
 complaint need be served upon such defendants, 
 unless within tlie time for answering, they shall in 
 writing demand the same. Code, § 130. 
 
 If a defendant upon whom such notice shall have 
 been served, unreasonably defends the action, he 
 will be liable to pay costs to the plaintiff. Code, § 131. 
 And it seems, that if the plaintiff omits to serve 
 such notice upon a defendant against whom no per- 
 sonal claim is made, such defendant would have 
 the right to appear and claim costs to be paid by 
 the plaintiff personally, in the discretion of the 
 court. 9 Paige, 230. 
 
 Notice of lis pendens.'] — At the time of commencing 
 the action, the plaintiff must file in the office of the 
 clerk of each county where the lands are situated, 
 a notice of the pendency of the action. The object 
 of this notice is to apprize subsequent purchasers 
 and incumbrancers of the existence of the action; 
 and hence it is provided by statute {Code, § 132,) 
 that from the time of filing such notice, it shall be 
 constructive notice of the pendency of the action
 
 PROCEEDINGS IF ANSWER IS PUT IN. 337 
 
 to all purchasers or incumbrancers of the property- 
 affected thereby. 
 
 The notice must contain the names of all the 
 parties, the object of the action, and a description 
 of the premises sought to be partitioned. 
 
 Proceedi7igs if ansiuer is put m.] — If any of the de- 
 fendants ansAver the complaint, and deny any ma- 
 terial allegation of fact therein, or demur to the 
 complaint, the question of fact raised by the ans- 
 swer, or of law raised by the demurrer, is tried in 
 the same manner as in other actions, there being no 
 distinction between suits for partition and other suits. 
 And where the rights and interest of the parties are 
 truly and correctly stated in the complaint, if an 
 adult defendant unnecessarily puts in an answer, he 
 will not be allowed costs, either against the adverse 
 party or out of proceeds of the sale of the property, 
 but may, in the discretion of the court, be charged 
 with the extra costs, which the parties have been 
 subjected to by reason of the answer. 
 
 Proceedings where no answer has been put in ; or, where 
 the answer does not deny auy material fact set forth in the 
 complaint.] — If the rights and interests of the parties, 
 as stated in the complaint, are not denied or con- 
 troverted, if any of the defendants are infants, and 
 have put in the usual answer by their guardian, the 
 plaintiff may apply, on an affidavit of the fact and 
 notice to such of the parties as have appeared at a 
 special term, for an order of reference, to take proof 
 of the plaintiff's title and interest in the premises, 
 and of the several matters set forth in the complaint ; 
 and to ascertain and report the rights and interests 
 of the several parties in the premises, and an ab- 
 
 22
 
 338 ORDER OF REFERENCE. 
 
 stract of the conveyances by which the same are 
 held. Rule 78. 
 
 Order of reference.] — The order of reference, its con- 
 tents, and proceedings under it, are so fully laid 
 dow in {Rule 79) that it is unnecessary to do any- 
 thing more than simply to refer to it. 
 
 Application for judgment.] — Instead of a decree as 
 formerly, a judgment of the court, is now entered. 
 
 Upon the report of the referee being completed, an 
 application for judgment may be made at a special 
 term in the district embracing the county in which 
 the lards lie, or in a county adjoining the one where 
 the lands lie. If the referee reports that the lands 
 can be partitioned, the judgment will be for actual 
 partition and for the appointment of commissioners 
 to make the partition. If the report shows that a 
 partition cannot be made without great prejudice 
 to the rights and interests of the parties, the judg- 
 ment will be for a sale under the direction of the 
 sheriff or of a referee to be named in the judgment. 
 
 The proceedings for an actual partition or a sale,, 
 being so fully explained and defined in the valuable 
 treatise of Mr. Barbour upon the practice of the 
 Court of Chancery, (2 Bab. Ch. Pr. 292-304,) and as 
 the practice in these particulars is unchanued by the 
 Code, it would be a work of supererogation to embo- 
 dy it in this work. 
 
 Upon filing the report of partition or sale the pro- 
 ceedings are completed, and no further step is ne- 
 cessary except to have the costs of the parties ad- 
 justed by the clerk. 
 
 Costs.] — The costs in partition suits are in the dis- 
 cretion of the court. Code^ 306. The general rule 
 is to allow costs to the plaintiflf and such of the de-
 
 COSTS. 339 
 
 fendants as have necessarily appeared in the action, 
 to be paid by all the owners respectively in propor- 
 tion to their rights and interests in the premises ; 
 or to be paid out of the proceeds of the sale. The 
 question of costs should be settled by the court at 
 the time of the application for judgment, and provis- 
 ion made for them in the judgment directing the par- 
 tition or sale, and it is doubtful if they can after- 
 wards be allowed, there being hut one judgment, and 
 that being entered before the partition or sale is made 
 (the partition or sale being the execution of the 
 judgment) unless the costs are provided for in it, it 
 seems they cannot afterwards be allowed. 
 
 Under the former practice the directions for a par- 
 tition was contained in an interlocutory decree, and 
 upon the coming in of the report of the commis- 
 sioners, a final decree was made, w^hich contained a 
 provision for the costs. Now, however, there is but 
 one judgment, and that would seem to be before 
 the partition is made; hence it should contain every 
 provision and direction required in the final decree, 
 under the old practice. 
 
 It is the duty of the parties who. claim costs or 
 who are entitled to costs, to have them properly ad- 
 justed by the clerk and inserted in the entry of 
 judgment. The plaintiff may give notice to such of 
 the defendants as are entitled to costs, requiring 
 them to have their costs adjusted and settled, and 
 filed with the clerk, and in default the plaintiff may 
 have the judgment entered, without inserting therein 
 the costs of such defendants as have failed to file 
 their bills. Such notice should be at least/oizr days, 
 and is served like other notices. The defendants 
 must give i:otice of the adjustment of their costs, 
 in like manner as in other cases.
 
 CHAPTER III. 
 
 ACTIONS FOR DIVORCE. 
 
 The action for a divorce, a vinculo matrimonii^ 
 which heretofore could only he sustained in a court 
 of equity, is now made the subject of an action cog- 
 nizable in the Supreme Court. 
 
 As the practice in these actions is to a considera- 
 ble extent, sui generis, and is made the subject of 
 express rules, a special and particular detail of the 
 proceedings must seem to be unnecessary. In so 
 far, however, as the practice is assimilated to other 
 actions, a reference to the practice generally will 
 only be made. 
 
 Parties.^ — Of course in an action for divorce, the 
 husband and wife alone are parties. The suit is 
 instituted by the one against the other, to obtain a 
 judgment declaring void the marriage contract. 
 
 This action is an exception to the general rule 
 that Si feme covert cannot sue or be sued alone, for she. 
 is expressly authorized by statute {Code, § 114, sub. 
 2,) to sue or be sued alone where the action is be- 
 tween herself and husband. If the action be by the 
 wife, it is not necessary to join any person with her 
 as plaintiff; that part of the practice or rule which 
 required the suit to be prosecuted by a responsible 
 person, as her next friend, being now abrogated, so
 
 THE COMPLAINT. 341 
 
 that the action must necessarily be brought in her 
 name alone. 
 
 The summons.'] — The summons is in the same form, 
 as is required in cases where an application to the^ 
 court is necessary to obtain the relief demanded. 
 In such cases it is improper to take judgment with- 
 out applying to the court. See ante p, 96. 
 
 The complaint.] — In addition to the usual rules 
 appertaining to complaints generally, requiring the 
 cause of action to be stated in ordinary and concise 
 language, and which rules apply as well to the 
 action for a divorce as to other actions, it is re- 
 quired that, when the action is founded upon an 
 allegation of adultery, the plaintiff must positively 
 aver in the complaint that the adultery charged 
 therein was committed without his consent, con- 
 nivance, privity, or procurement; that five years 
 have not elapsed since he discovered the fact that 
 such adultery had been committed; and that he 
 has not voluntarily cohabited with the defendant 
 since the discovery of such adultery. Rule 68. If 
 such averment is not made, judgment for the relief 
 demanded will not be granted, without the plain- 
 tiff's affidavit of the facts. 
 
 If at the time of the commission of the adultery 
 the defendant was married to, or was living with 
 the adulterer, in open or notorious adultery, the 
 plaintiff must also aver, in his complaint, that five 
 years have not elapsed since the commencement of 
 such adulterous intercourse was discovered by him. 
 Ibid. 
 
 Ver if ling complaint.] — The complaint in an action 
 for a divorce, on the ground of adultery, should 
 always be verified by the oath of the plaintift^, in
 
 342 REFERENCE TO TAKE PROOF. 
 
 the usual manner of verifying pleadings, where by- 
 law they may be verified, {see ante, p. 106,) for other- 
 wise an affidavit of the fact will be required. Rule 
 
 68. 
 
 Reference to take poof.] — The statute directs that 
 no sentence of nullity of the marriage contract 
 shall be pronounced solely on the declarations or 
 confessions of the parties ; but the court shall, in 
 all cases, require other satisfactory proof of the ex- 
 istence of the facts on which the allegation of adul- 
 tery is founded. 2 Rev. Stat., 144, § 36. 
 
 For the purpose, therefore, of taking the neces- 
 sary evidence, a reference will be ordered in all 
 cases where no answer is put in to the complaint, 
 or where the answer admits the facts as charged. 
 Upon proof, by affidavit, that no answer has been 
 put in, or no answer denying any material fact 
 charged in the complaint, the plaintiff may apply 
 to the court, at a special term, for an order referring 
 it to some suitable person, as referee, to take proof 
 of all the material facts alleged in the complaint, 
 and to report such proof to the court, with his 
 opinion thereon. Rule 68. 
 
 Where the complaint seeks to annul the marriage,, 
 on the ground that the party was under the age of 
 legal consent, the order of reference cannot be ob- 
 tained, without an airidavit, showing that the parties 
 have not freely cohabited for any time, as husband 
 and wife, after the plaintiff attained the age of con- 
 sent. Rule 69. So, where the giound of the action 
 is that the plaintili's consent was obtained by force 
 or fraud, the plaintiff must shew by affidavit that 
 there has been no voluntary cohabitation between 
 the parties, as man and wife; or, where the com-
 
 ANSWER. 343 
 
 plaint seeks to annul the marriage, on the ground 
 that the plaintiff was a lunatic, an affidavit must be 
 produced showing that such lunancy continues; or, 
 the plaintiff must show by affidavit, that the parties 
 have not cohabited as husband and wife, after the 
 plaintiff was restored to reason. Ibid. 
 
 If the ground of the action is that the defendant 
 has another wife living, no other affidavit, than that 
 of regularity is required to obtain an order of refe- 
 rence. 1 Ediv. Ch. jR., 40. 
 
 On a reference to take proof of the facts alleged 
 in the complaint, in an action for a separation or 
 limited divorce, it is competent for the referee to 
 examine the plaintiff, on oath, as toanycrueror 
 inhuman treatment, alleged in the complaint, which 
 took place when no witnesses were present, who 
 are competent to testify to the facts on such refe- 
 rence. Bule 70. 
 
 Answer.] — The defendant may answer the com- 
 plaint as in other actions. He may deny the alle- 
 gation of adultery, (2 Paige, 108,) and he may in the 
 same answer set up the adultery of the plaintiff or 
 a condonation of the offence in bar of the suit. Id. 
 Rule 72. 
 
 In case of an issue formed by the pleadings, it is 
 to be tried in the same manner as other issues. Rule 
 74. 
 
 Where the action is instituted by the husband, 
 and he intends to question the legitimacy of any 
 of the children of his wife, he must distinctly aver 
 in the complaint that he believes them to be illegi- 
 timate. And if a reference is ordered, proof must be 
 taken upon the question of legitimacy, as well as
 
 344 JUDGMENT. 
 
 upon the other matters stated in the complaint. If, 
 however, an issue is formed by the pleadings, the 
 question of legitimacy of the children must then be 
 tried at the same time of the other issues. Rule 73. 
 Hearing and judgment.'] — No sentence or judgment 
 of nullity declaring void a marriage contract, or 
 judgment for a divorce, or for a separation or limi- 
 ted divorce, will be made of course by the defend- 
 ants failing to answer the complaint ; nor in conse- 
 quence of any neglect to appear at the hearing, or 
 by consent. Rule 75. But after the trial of the issues, 
 or upon the coming in of the report of the referee, 
 containing the proofs, the cause may be heard at a 
 special term of the court. Ibid. If no person ap- 
 pears on the part of the defendant, it is improper to 
 read in public the details of the evidence in adul- 
 tery cases. They should be submitted to the judge 
 in open court. Bid. 
 
 Judgmefit.] — Upon the decision of the court being 
 pronounced, the appropriate judgment is drawn up 
 and entered. In this respect the practice is the 
 same as in other cases. The judgment must be en- 
 tered in the office where the action is triable, and 
 all the papers should be filed there. 
 
 Costs.] — The costs in actions for a divorce, are 
 whol'y in the discretion of the court, and they are 
 regulated by the facts and circumstances of each 
 particular case. No rules can therefore be laid 
 down to govern the practice upon this subject. 
 Ordinarily, however, where the action is brought 
 by the wife, costs will be allowed her, if she is suc- 
 cessful. Besides, it is usual in such a case, where 
 the wife is dependent upon the husband, for the
 
 COSTS. 345 
 
 court to compel the husband to pay a stipulated sum 
 weekly, or monthly, or otherwise, for the support of 
 the wife, during the pendency of the suit, and a 
 further sum in gross to pay the expenses of the 
 litigation, and pay her attorneys' and counsel fees. 
 The application for this allowance may be made at 
 any time after the commencement of the action, 
 and it is usual to make the motion at the commence- 
 ment of the suit. The motion is made at the spe- 
 cial term, upon notice to the defendant, and upon 
 an affidavit of the facts, a copy of which must be 
 served upon the adverse party, with the notice of 
 the motion.
 
 CHAPTER IV. 
 
 PROCEEDINGS AGAINST A JUDGMENT DEBTOR AF- 
 TER A RETURN OF AN EXECUTION UNSATISFIED 
 IN WHOLE OR IN PART. 
 
 As the courts were constituted under the Consti- 
 tution of 1821, a judgment creditor after having ex- 
 hausted his remedy at law, against his debtor, was 
 compelled to go into the Court of Chancery to ob- 
 tain a discovery of the debtor's property, and com- 
 pel its application to the judgment. The Court of 
 Chancery was clothed with authority not only to 
 compel a discovery of such property, choses in ac- 
 tion and personal effects as were not the subject of 
 levy and sale under an execution, or were concealed 
 by the judgment debtor, but also by injunction, to 
 prevent a transfer thereof to other persons. 
 
 This proceeding was called a "creditors' bill," and 
 was founded upon the return of an execution, un- 
 satisfied in whole or in part, and the allegation on 
 the part of the creditor, that the debtor had proper- 
 ty or things in action, which could not be reached 
 by execution upon the judgment. 
 
 Subsequently, it was provided by statute, {Laws of 
 1831, Chop. 300,) that a creditor might proceed 
 against the debtor before judgment or after, by war- 
 rant, and compel an assignment of any property, 
 rights and choses in action, to be applied upon the 
 demand or judgment. Under this statute, however,
 
 CASES IN WHICH THE PROCEEDINGS MAY BE INSTITUTED. 347 
 
 it was necessary to shew to the officer wdio issued 
 the warrant, that the defendant had done or was 
 ahout to do one of the several acts mentioned in 
 the statute, before the officer was authorized to is- 
 sue the warrant. Under this statute, therefore, no 
 discovery from the debtor could be obtained upon 
 the mere belief that he had property which he 
 ought to apply in payment of his debt ; and hence, 
 the creditor had in general to resort to his "creditors' 
 bill" to obtain the satisfaction of his judgment. 
 
 The Legislature have now enacted provisions of 
 law which cover the jurisdiction and powers of the 
 late Court of Chancery- as exercised in judgment 
 creditors' bills, and also the provisions of the Statute 
 of 183 1, above referred to, and which, doubtless was 
 intended as a substitute for both. Code § 292. 
 
 SECTION I, 
 
 In WHAT CASES THE PROCEEDINGS MAY BE INSTITUTED. 
 
 Judgment.'] — The cases in which the proceeding to 
 obtain a discovery of the property of a judgment 
 debtor, can be instituted, are those in which a judg- 
 ment for the payment of money has been obtained. 
 Hence, if the judgment is other than for the pay- 
 ment of money; as, for the delivery of the possess- 
 ion of real or personal property only, without dama- 
 ges for the withholding; or, for the specific perform- 
 ance of a contract, without damages for the omission 
 to perform; or, for the partition of lands, except 
 where the judgment directs the payment of money 
 by one party or another, for owelty or equality of 
 partition or othe;wise; in these and like cases, the
 
 348 CASES IN WHICH THE PROCEEDINGS MAY BE INSTITUTED, 
 
 proceeding against the defendant cannot be institu- 
 ted. If, however, the judgment in such cases be for 
 the payment cf costs in addition, it is sufficient to 
 autliorize the institution of this proceeding. 
 
 The judgments are not confined to such as are 
 rendered in the Supreme Court; but the judgments 
 of a county court, the superior court, and court of 
 common pleas of the city and county of New- York, 
 and also of a justice's court, (a) are cases in which 
 
 (a) It has been decided by Judge Daley, of the New-York common pleas, that 
 the court has no power under the provisions of the Code to compel a defendant 
 to appear and answer, concerning his property, except where the judgment 
 was rendered in a court of record. The case before him was upon the return 
 of an*execution, issued upon a judgment rendered in a jutice^s court. It is 
 difficult to determine upon what principle the decision is based. There is cer- 
 tainly nothing in the language of the Code, that excludes justices' judgments; 
 on the contrary it is strongly inferrable, that the Legislature intended to ap- 
 ply the provisions of § 292 to any and every species of judgments; for they say, 
 that upon the return of an execution issued to the sheriflTof the county where 
 the debtor resides, or where the judgment roll or transcript of a justice's judg- 
 ment is filed, the creditor may apply for the order Nor, can it be argued that 
 the provisions of the Code, generally, apply only to courts of record, and 
 therefore, justices' judgments are excluded. True, they are mostly confined to 
 courts of record; yet, the whole of titles 6 and 7 of part one, are devoted to 
 justices' and other inferior courts, and the proceedings therein; and are their 
 judgments excluded from the provisions of § 292, because they are not expressly 
 named therein? An argument in favor of the decision may be diawn, from the 
 peculiar language of § 8, which says that the Code is divided into two parts, 
 the first relating to courts, and the second to civil actions; and which is dis- 
 tributed into fifteen, titles. Tlie first four relating to the courts of the state, 
 and the others to f' actions ^^ in the Supreme Court, &c., without naming a 
 justice's court. But it cannot, we think, be believed that none of the provisions 
 of the remaining eleven titles of the Code are in any way applicable to courts 
 of justices of the peace. If that were so, what power is there to review, up- 
 on appeal in the county court, the judgments rendered in justices' courts? 
 They are not " actions " in any of the courts mentioned in § 8. Again, what 
 power woulil there be to examine a party as a witness, as provided in chap. 6, 
 of title 12, or a wiiness who was interested in the action, as provided in chap. 
 7 of the same title? If, because the title of the Code which prescribes the pro- 
 ceedings supplementary to the execution is confined to " actions " in courts 
 other than of jusiices of the peace, therefore such proceedings upon a justice's 
 judgnient cannot be instituted, then titles 6 and 7, of part 2, are equally inap- 
 plicable. 
 
 It is conceded, that these proceedings supi)lementary to the execution, are 
 a substitution for a "creditor's bill" in the late court of chancery. In that
 
 RETURN OF EXECUTION. 3i9 
 
 the creditor may commence a proceeding to obtain 
 a discovery of the property of the debtor. And this 
 may also be done upon a judgment rendered in 
 a mayor's or recorder's court of cities. 
 
 Return of execution.] — In order to confer jurisdic- 
 tion upon the officer, an execution must have been 
 issued upon the judgment against the property of 
 the judgment debtor, and returned unsatisfied in 
 whole or in part. 
 
 The jurisdiction in these cases arises from the 
 fact that the creditor has been unable to obtain sat- 
 isfaction of his judgment, by seizing the property of 
 the defendant under the execution and selling the 
 same; n other words, that he has exhausted the 
 remedy given by execution for the collection of the 
 debt. An execution must, therefore, not only have 
 been issued, but must have been returned by the 
 sheriff or other officer to whom it was issued, unsat- 
 
 court the chancellor (Dix v. Eriggs, 9 Paige 595,) has decided that a cretlitor's 
 bill might be filed upon the return of an execution unsatisfied, issued upon a 
 justice'. ■< judgment where the judgment has been docketed in the eountj^ clerk's 
 oflBce, so as to make it a lien upon the defendant's real estate. The view, 
 therefore, that the learned judge has taken of this question, it seems to me, is 
 incorrect, and I think that it is clearly within the power of the cout to issue 
 the order where the execution has been issued upon a justice's judgment. The 
 decision is not reported, and the author has seen only a note of it published in 
 the daily papers. Hence he has not been able to review any of its positions^ 
 There is another section of the Code that helps to elucidate this question. The 
 13th subdivision of § 64, provides that <'if the judgment (rendered by a justice 
 of the peace) be docketed with the county clerk, the execution shall be issued 
 by him to she sheriff of the county, and have the same tffed and be executed in 
 the same manner as other executions and judgments of the county courts," 
 Besides, it is expressly provided in § 63, that from the time of entering and 
 docketing a transcript of a justice's judgment in the county clerk's office, "the 
 judgment shall be a judgment of tht: county court." If, therefore, such judgment 
 becomes a judgment of the county court, it is relieved from the difficulty pre- 
 sented in section 8, for it is then an "action" in the county court, for all the 
 purposes of enforcing it by execution, and the proceedings supplementary to 
 t he execution, if applicable to judgments of a county court mus also be to judg- 
 ments of justiccs^of the peace, which become the judgments of a county court.
 
 350 RETURN OF EXECUTION. 
 
 isfied in whole or in part. It is sufficient for the 
 purpose of giving jurisdiction to the officer, that the 
 execution is returned unsatisfied, and the judge will 
 not look into the case to see if the return is true. 
 
 And after the return of an execution unsatisfied, 
 the judge may issue the order at any time, it seems, 
 within ten years thereafter. 1 Barb. Ch. i?., 589. 
 
 It is not necessary, in order to give jurisdiction to 
 the officer, that the sheriff should retain the execu- 
 tion during the whole length of time authorized by 
 the statute ; but where the sheriff returned the exe- 
 cution unsatisfied within thirty days from its issu- 
 ing, it was held that it was enough to give jurisdic- 
 tion. Messenger Y. Fisk, 1 Code Rep., 106; Simpkins v. 
 Paige, Id., 107. (a.) (See contra Shenoood v. Little- 
 field, 1 Code Rep., 85. 
 
 To luhat county the execution must have been issued. 1 — 
 If the defendant or judgment debtor is a resident of 
 this state, the execution must have been issued to 
 the sheriff of the county where the defendant or 
 
 (a.) In addition to the reasons stated in the opinion of the judge in Messen- 
 ger V. Fisk, it may be mentioned that the direction to return the exeution is 
 no part of tlie execution. The formal part of the execution is contained in § 
 281), and tlie subdivision of that section. All that it is necessary to put in the 
 execution is contained in that section; then follows § 290, which is a direction 
 to the sheriff or other olTicer, to return the execution within sixty days after 
 its receipt. No part of such direction need be inserted in the execution, and 
 hence, it is merely ilircctory to the sheritT. lie may retain the execution the 
 whole length of the time, or he may return it the next day after he receives 
 it. The responsibility rests with the sheriff, and he is liable if he makes a 
 
 alse return; but if the sheriff has already had executions in his hands against 
 the same defendant, which he has been obliged to return unsatisfied, it would 
 be of little or no avail to retain subsequent executions in his hands, and in 
 such case he is authorized to return tiicm at any time within the sixty days. 
 The plaintiff cannot compel a return within that time; the sheriff may retain 
 the execution if he chooses, the object of the law being to give the officer suf- 
 ficient time to collect the execution out of the real property in default of per- 
 a I 1 . But if he does return it unsatisfied, immediately upon its receipt by 
 him, it will give the judge jurisdiction to issue an order for the debtor to 
 
 appear and answer concerning his property.
 
 WHO MAY GRANT THE ORDER. 351 
 
 judgment debtor resides ; or, if he do not reside in 
 this state, the execution must be issued to the sheriff 
 of the county where the judgment roll is filed ; or, 
 if the judgment be one rendered in a justice's court, 
 to the sheriff of the county where the transcript of 
 the justice's judgment is filed. And it would seem, 
 that where the judgment is one rendered by a jus- 
 tice of the peace, a transcript must be filed and the 
 execution issued out of the county court, as in no 
 other case, can it be issued to the sheriff. 
 
 If the judgment is against several defendants, the 
 execution must of course be issued against all; but 
 a return of the sheriff that the defendants have no 
 property in his county, is all that is required. It 
 is not necessary to issue an execution to the several 
 counties in which the defendants respectively reside, 
 if they reside in different counties, unless it is in- 
 tended to apply for an order against such defendants. 
 Under the Revised Statutes (2 R S.p. L73, § 3^) it was 
 necessary to issue an execution and have it returned 
 against all the defendants, before the bill could be 
 filed. The language of the Code is, where the ex- 
 ecution against the property of the judgment debtor, 
 or of any one of several debtors, &c., is returned, &c. 
 
 SECTION II. 
 
 Proceedings to Obtain the Order. 
 
 Who may grant the order.'] — The officers who are 
 authorised to grant an order requiring a judgment 
 debtor to appear and answer concerning his proper- 
 ty, are a justice of the Supreme Court, or a county 
 judge of the county to which the execution was
 
 352 AFFIDAVIT OF FACTS TO OBTAIN ORDER. 
 
 issued. Any justice of the Supreme Court has 
 power to grant the order in any case; though it is 
 presumed that a justice in the exercise of a sound 
 discretion will not require a judgment debtor to 
 appear at a distance from his residence, but will 
 either appoint a referee residing in the county where 
 the judgment debtor lives, to take and report the 
 facts, or require the creditor to make his application 
 to a county judge. Such should, and doubtless, 
 will be the practice, in analogy to that of the late 
 Court of Chancery, which required similar refe- 
 rences to be made to a master residing in the county 
 of the judgment debtor. 
 
 If the order be made by a county judge, other 
 than that to which the execution was issued, the 
 proceedings will be dismissed. 
 
 Affidavit of facts, to obtain order.] — For the purpose 
 of procuring the order an affidavit, of the plaintiff 
 or judgment creditor, or of his attorney, or of any 
 person who has knowledge of the facts, must be 
 made. The affidavit must state the entering of 
 judgment and the county where the defendant re- 
 sides, or if he is a non-resident, the county in which 
 the judgment roll is filed; this being necessary, 
 that the county judge, in case the application for 
 the order is made to him, may see that he has 
 power to make it. It must also shew that an ex- 
 ecution against the propertT/ of the judgment debtor, 
 or, of one of several debtors, in case the judgment 
 is against several defendants, has been issued to 
 the sheriff of the county where the defendant re- 
 sides; or, if he is a non-resident of this state, to the 
 sheriff of the county where the judgment roll, or
 
 THE 'ORDER TO APPEAR AND ANSWER. 353 
 
 transcript of a justice's judgment, is filed; and that 
 such execution has been returned by the sheriff, 
 imsatisfied in whole or in part. Code, § 292. 
 
 Upon such facts appearing, the justice or county- 
 judge to whom the application is made is authorized 
 to issue the order requiring the judgment debtor to 
 appear before him, and answer concerning his prop- 
 erty. 
 
 It is not necessary to state, in the affidavit, that 
 the debtor has property; nor need that fact appear 
 to the officer who makes the order: his jurisdiction 
 being complete upon being furnished with proof of 
 the issuing and return of the execu'.ioi unsatisfied 
 in whole or in part, {a.) 
 
 (a) It is understood to be the practice of some of the county judges to re- 
 quire the judgment creditor to shew by his affidavit previous to making the 
 order, that the debtor has property. There is nothing in the Code requiring 
 this, and the object of the proceeding is to discover property. In a creditors' 
 bill, an averment that the debtor had property was necessary to give the court 
 jurisdiction, the words of the statute being, "that the value of the defendant's 
 property exceeds one hundred dollars." 2 Paige, 62. But for no purpose of 
 giving jurisdiction is such an allegation necessary in an affidavit, to obtain the 
 order under the Code; the jurisdiction now being general and for any amount. 
 Such is the view expressed by Hurlbut J. cited in a note to 1 Code Rep. 107. 
 The error in this practice may have occurred in confounding the proceedings 
 before, with those auth Tized after the return of the execution. After the issu- 
 ing and before the return of an execution, upon its appearing that the judg- 
 ment debtor has property, &c., the judge may issue the order. In this case it 
 must be shewn that the debtor has property; but, afier the return of the exe- 
 cution, no such evidence is necessary to authorize the judge to grant the order. 
 The object in the one case being to con>pel the debtor to apply the property in 
 his possession, which is not subject to levy and sale by execution, and which 
 he unjustly refuses to apply to the satisfaction of the debt, at any time when 
 the plaintiff shews that he has such property and refuses to apply it; and the 
 other to make the defendant disclose under oath the property if any that he has. 
 The former is simply an additional remedy, but reqiires dififerent and further 
 proof than the latter; and the plaintiff must show affirmatively, that the debtor 
 has property, which must be specified in the affidavit, which he unjustly refuses 
 to apply towards satisfaction of the judgment. But in the latter case no such 
 allegation is necessary; for if the plaintiff fcwcw the defendant had property he 
 would not need the aid of the judge in reaching it, his execution being suffi- 
 (Cient for that jpurpose. 
 
 23
 
 354 THE ORDER TO APPEAR AND ANSWER, 
 
 And in this proceeding no particular amount is 
 necessary to be due on the judgment, in order to 
 give jurisdiction to the officer who grants the or- 
 der. There is no restriction in the Code ; and, if 
 any amount is due, it will be sufficient to authorize 
 the proceeding. 
 
 The order io appear and answer. 1 — Upon receiving the 
 affidavit of the facts, as before stated, the judge to 
 whom the application is made will make an order, 
 requiring the judgment debtor to appear and answer, 
 concerning his property. The order may require the 
 debtor to appear before the judge, or before a referee. 
 In case a referee is appointed, which may be done 
 upon the agreement of the parties, or by the appoint- 
 ment of the judge, it is his duty simply to take and 
 report the evidence or the facts to the judge. Code^ 
 § oOO. And he has no power to determine any 
 questions of law in the matter, not even to exclude 
 evidence or overrule a question. Where he is re- 
 quired to report the facts, and not the evidence, he 
 must, of course, determine the facts established by 
 the evidence, and report those alone, and not the 
 evidence of such facts. The order of reference, 
 therefore, may be to report the whole evidence, or 
 only the facts established by the evidence, as the 
 judge may direct. 
 
 Order forbidding a transfer of property. 1 — Ordinarily 
 it is proper, at the time of applying for an order 
 requiring the judgment debtor to appear and an- 
 swer, also to obtain from the judge an order for- 
 bidding the transfer or other disposition of the 
 property of the judgment debtor, not exempt from 
 execution, or any interference therewith. Code^ 
 § 298. The judge is authorized to make this order
 
 THE AFFIDAVIT. 355 
 
 at any time, and it should be made in the first in- 
 stance ; otherwise, upon the service of the order to 
 appear and answer concerning his property, the 
 judgment debtor can defeat its object by putting 
 his property out of his hands. And it is therefore 
 right that the debtor in such cases should be re- 
 strained and prevented, as far as the court has 
 pow^er to do so, from disposing of or interfering with 
 his property. If he has no property, the order 
 cannot injure him; and if he has any, the creditor 
 ought to be allowed to restrain him from disposing 
 of it, as one means of securing the payment of his 
 debt. 
 
 No additional affidavit is necessary to obtain this 
 order; but it is made of course, upon the facts 
 which authorize the making of the first order. 
 
 IVarrant.] — If there is danger of the judgment 
 debtor's absconding, the order, which is made in 
 ordinary cases, would be ineffectual to secure his 
 attendance before the judge or referee, to be ex- 
 amined concerning his property, as disobedience of 
 such order can only be punished, as for a contempt, 
 and the debtor in the mean time might get beyond 
 the reach of the process of the court or judge. 
 Where there is danger, therefore, that the debtor 
 will abscond, an application should be made to the 
 judge for a warrant to arrest him. 
 
 The affidavit.] — Before the judge will issue such 
 warrant, it must be shown to him by the affidavit of 
 the plaintiff" or judgment creditor, or of his attorney, 
 or of any person acquainted with the facts, that 
 there is necessity therefor. As respects the amount 
 and nature of the evidence required, it may, in gen- 
 eral be said, that it rests in the discretion of the
 
 356 ISSUING WARRANT. 
 
 judge ; he must be satisfied, that it is a proper case 
 to issue the warrant. The decisions, under the act 
 "of attachments against absconding, &c , debtors," 
 (2 Rev. Stat. p. 2,) will however be safe guides, for 
 the judges who are applied to, to issue the warrant. 
 Under that statute, it has been decided that the 
 party must state the facts and circumstances upon which 
 the application is founded; as, that the defendant 
 has declared his intention of absconding or going 
 abroad, or any other facts indicating such intent; 
 the mere belief of the plaintiff, is not sufficient. 14 
 Wendell 237, 21 Id. 672. 
 
 Issuing warrant.] — Upon receiving the necessary af- 
 fidavit of the facts and circumstances, proving that 
 'Ihe debtor is about to abscond, the judge, if he is 
 satisfied that there is danger of his absconding, will 
 issue a warrant under his hand, requiring the sheriff 
 of any county where such debtor may be, to arrest 
 him and bring him before such judge. Upon such 
 warrant being delivered to the sheriff, it is his duty 
 to arrest the debtor, and forthwith bring him before 
 the judge. Code { 292. 
 
 The undertaking.] — In order to be discharged from 
 such arrest, the debtor must enter into an underta- 
 king with one or more sureties, that he will attend 
 from time to time, before the judge or referee, as the 
 judge shall direct, during the pendency of the pro- 
 ceedings, and until the final determination thereof, 
 and will not in the mean time, dispose of any por- 
 tion of his property, not exempt from execution. 
 Upon giving such an undertaking to the judge, he 
 will order the sheriiTto discharge him from custody. 
 
 If, however, the debtor does not enter into the un-
 
 EXAMINATION OF THE DEBTOR, AND WITNESSES. 357 
 
 dertaking, the judge, by a warrant under his hand, 
 will commit the debtor to prison. Code § 292. 
 
 Service of orders.'] — Tiie order for the judgment debt- 
 or to appear and answer, and the order forbidding a 
 transfer or other disposition of his property, must be 
 served upon the judgment debtor, and not upon his 
 attorney. The order being in the nature of process 
 which must in all cases be served upon the party. 
 Code § 418. 
 
 The service is made by delivering to such debtor 
 personally, a copy of the orders and showing him the 
 originals subscribed by the judge. 
 
 If, after being served with the orders the debtor 
 disobeys them or any of them, he may be punished 
 by the judge as for a contempt. Code § 302. 
 
 SECTION III. 
 
 Of the EXAMINATION OF THE DeBTOR, AND WITNESSES. 
 
 Debtor.'] — When the debtor appears before the judge 
 or referee, the plaintiff or judgment creditor, or his 
 counsel may proceed to examine him. The object 
 of the proceeding, being to obtain a disclosure of the 
 property, effects, choses and things in action of the 
 judgment debtor which the plaintiff has been una- 
 ble to reach by execution, the mode of the examina- 
 tion and the extent to which it may be pursued, will, 
 in general, be controlled by the facts and circum- 
 stances of each case, and therefore no particular rules 
 can be stated to guide the investigation. The exam- 
 ination of the debtor, is conducted after the manner 
 of a cross examination of a witness, upon the princi- 
 ple that he is unwilling to testify to his own preju- 
 dice. Hence great latitude is given to the examin-
 
 358 EXAMINATION OF THE DEBTOR AND WITNESSES. 
 
 ing counsel. He may ask leading questions, inves- 
 tigate the transactions and affairs of the debtor for a 
 series of years; compel him to answer in relation to 
 the disposition of any property, and the application 
 of the avails thereof. In short, the creditor is enti- 
 tled to a full, stringent, scrutinizing examination 
 into the affairs business and property of the debtor, 
 in order to discover, if he can, any thing which ought 
 to be applied in satisfaction of his debt. And it 
 would seem, that where a debtor refuses to answer 
 questions which are relevant and proper to the sub- 
 ject matter of the inquiry, he may be punished as 
 for a contempt. Code, § 302. 7 Paige 278. Th& 
 debtor may have counsel, who may object to impro- 
 per questions and insist that the examination shall 
 be conducted according to the usual rules of evi- 
 dence, but he has no right to cross examine the 
 debtor. The examination being like that of a bank- 
 rupt or of a defendant upon interrogatories, under 
 the old chancery practice, or of a party at the trial, 
 the debtor cannot, as in those cases, be cross exam- 
 ined by his own counsel. He may correct any 
 statements made by him, and correct and explain 
 his own testimony, either at the time the examina- 
 tion is going on, or after it is closed, but he cannot 
 be examined in his own behalf 
 
 The examination must be taken down by the 
 judge or referee, and where it is taken by a referee, 
 it should be subscribed by the debtor, and in either 
 case the examination should be read over to the 
 debtor, to enable him to correct any part of the 
 evidence if he shall desire to do. 
 
 The examination must be on oath. 
 
 Examination of witnesses.] — In addition to the ex-
 
 CERTIFYING EXAMINATION. 359 
 
 "?imination of the debtor, the plaintiff or judgment 
 creditor may examine witnesses before the judge, 
 touching the properly of the judgment debtor. The 
 attendance of the witnesses is enforced by a sum- 
 mons, subscribed by the judge, and they are required 
 to testify in the same manner as upon the trial of an 
 issue. The examination of witnesses is conducted in 
 all respects as it is upon the trial of a cause, and 
 the counsel for the debtor may in like manner cross- 
 examine them. Their examination must be on 
 oath; it must be read to them, to enable them to 
 correct any part of it if they shall wish to do so; 
 and where the examination is taken by a referee, it 
 should be subscribed by the witnesses, although that 
 is not absolutely necessary. 
 
 The debtor may examine witnesses on his own 
 behalf, to disprove the evidence of the witnesses 
 examined on the part of the judgment creditor; and 
 for such purpose may enforce their attendance be- 
 fore the judge or referee, in like manner as other 
 witnesses. Code §5 295, 296. 
 
 Certifi/ing examination.] — If the examination of the 
 debtor and witnesses be taken before a referee, he 
 must certify it to the judge who granted the order. 
 
 If the referee is required by the order of reference 
 
 'to report the facts merely, (Code, § 300,) and not the 
 
 evidence, he must determine the facts established 
 
 by the evidence, and report such facts to the judge. 
 
 Upon receiving the report of the referee, the judge 
 will proceed to hear counsel upon the facts or the 
 evidence, as disclosed in the report of the referee, 
 and will assign a day for that purpose.
 
 360 PROCEEDINGS AFTER EXAMINATION CLOSEI>'. 
 
 SECTION IV. 
 
 Pj.oceedings after Examination is Closed. 
 
 Order to apply property towards satisfaction of the judg- 
 ment.^ — If tl e judgment debtor upon his examination 
 has disclosed that he has property in his possession 
 or under his control, that is not exempt from execu- 
 tion; or, if from the examination of witnesses it has 
 been proved that he has such property, the judge 
 will make an order that such debtor deliver over the 
 same, if in his own hands; or, if in the hands of an- 
 other person, or due to the judgment debtor, that 
 such person deliver the same or pay the sum due, 
 to be applied towards satisfaction of the judgment. 
 Code, § 297. 
 
 If however, it appears that a person, other than 
 the debtor, or a corporation, has property of the 
 judgment debtor, or is indebted to him, and claims 
 an interest in such property adverse to him, or de- 
 nies the debt, the judge cannot make an order for 
 the delivery of such property or the payment of such 
 debt; such property or debt being recoverable only 
 in an action against such person or corporation by 
 the receiver. Code, § 299. But in such case, the 
 judge may make an order forbidding a transfer or 
 other disposition of such property or interest, until 
 a sufficient opportunity is given to the receiver to 
 commence the action, and prosecute the same to 
 judgment and execution. Id. Such order may at 
 any time afterwards be modified or dissolved by the 
 judge granting the same, on giving such security as 
 he may direct. Id.
 
 RECEIVER. 361 
 
 The order for the judgment debtor to delirer over 
 property, can relate only to such property as is in 
 his actual possession, or so far under his control that 
 he can make delivery of it to the receiver. For, as 
 has been stated, if another person who has the pos- 
 session of it claims an interest in it, the receiver 
 must bring an action to recover it; and where the 
 judgment debtor is thus ordered to deliver property, or 
 where another person is ordered to deliver property 
 or pay a sum due to the judgment debtor, to be ap- 
 plied towards satisfaction of the judgment, they are 
 respectively obliged to obey the order, and may be 
 punished for their disobedience as for a contempt. 
 Code, § 302. The judge will not by order require the 
 delivery to the receiver, of property claimed by a 
 person other than the judgment debtor. It is of no 
 consequence upon what the claim arises, the judge 
 cannot in this proceeding determine the rights of 
 other persons, who claim to have an interest in the 
 property. Such right can only be tested in an action 
 by the receiver. 
 
 Receiver.] — The judge has the power to appoint a 
 receiver of the property and effects of the judgment 
 debtor, to take charge of, dispose and convert the 
 same into money, and apply it under the direction 
 of the court, towards the satisfaction of the judg- 
 ment. 
 
 Although there is no express statutory provision or 
 rule requiring the receiver to give securi y, (under 
 the old practice it was required by the 191st rule of 
 chancery,) yet the judge will, ordinarily, refuse to 
 appoint any person receiver unless security for the 
 faithful discharge of the trust is given. It may 
 therefore be laid down in practice that the receiver
 
 362 POWERS OF RECEIVER. 
 
 must give security. The amount of the secur ty 
 must be fixed by the judge, and will be regulated 
 by the amount or value of the property that is to 
 pass into the iiands of the receiver. 
 
 The security is a bond of the receiver, with suffi- 
 cient sureties to be approved of by the judge, in a 
 penalty fixed by the judge, conditioned to obey the 
 orders of the court in relation to the trust, and in 
 all respects faithfully to discharge the duties of the 
 trust. 
 
 It is made the duty of the judge who approves 
 the security, to require the sureties to justify, {Ride 
 76,) which is done by an affidavit endorsed upon 
 the bond. And in his certificate of approval, he 
 must state that each person ofFtred as security is 
 worth the requisite amount, over and above all 
 debts and responsibilities which he owes or has 
 incurred. 
 
 The bond of the receiver must be proved or ac- 
 knowledged in the same manner prescribed by law 
 for the proof or acknowledgment of deeds of re al 
 estate, before it shall be received or filed. Rule 76. 
 
 Powers of receiver.'] — The authority of a receiver, 
 appointed by a judge, is the same as if he were 
 appointed by the court, in pursuance of the power 
 contained in § 244 of the Code, which authorizes 
 the court to appoint receivers, according to the 
 (then) existing practice of the court. 
 
 The receiver of the property and effects of the 
 debtor, unless restricted by the special order of the 
 judge, has general power and authority to sue for 
 and collect all ihe debts, demands, and rents be- 
 longing to such debtor, and to compromise and 
 settle such as are unsafe and of a doubtful cha-
 
 DUTY OF RECEIVER. 363 
 
 racter. He may also sue in tlie name of the 
 debtor, where it is proper or necessary for him to 
 do so ; and he may apply for an order, of course, 
 that the tenants of any real estate belonging to the 
 debtor, or of which he is entitled to the rents and 
 profits, attorn to such receiver, and pay their rents 
 to him. He may also be permitted to make leases, 
 from time to time, as may be necessary, for terms 
 not exceeding one year. Rule 81. He may also 
 sell desperate debts, and all other doubtful claims 
 to personal property, at public auction, giving at 
 least ten days' public notice of the time and place 
 of such sale. Rule 81. 
 
 The receiver also has authority to bring an action 
 to recover property claimed to belong to the debtor, 
 and held by another person. Code § 299. And gen- 
 erally, to collect the property of the judgment debtor 
 and convert it into money. 
 
 Duty of receiver.] — It is the duty of the receiver, 
 without any unreasonable delay, to convert all the 
 personal estate and effects of the debtor into money; 
 he has power to sell any real estate of the debtor, 
 and convert the same into money {a). He has no 
 
 (o) The 81st rule is a copy of the i34th Equity rule of the Supreme Court. 
 The language is " but he (the receiver) shall not sell any real estate of the 
 debtor without the special order of the court, until after a judgment in the cause." 
 In the old rule, it was " until after a final decree in the cause." There is evi- 
 dently a mistake in that part of the new rule; the practice formerly in these 
 cases was to file a bill and obtain a decree. The receiver was appointed in 
 the first stages of the suit, and in all cases before the decree, except where the 
 consent was given under the 133d Equity rule. Hence, there was a propriety 
 in restricting the sale of the liebtor's real estate until a decree had been obtain- 
 ed against him, for the creditor might fail of getting a decree. Now, however, 
 there is no decree or judgment, but a simple order of the judge, requiring the 
 debtor to apply liis property towards satisfaction of the judgment. The recei- 
 ver is appointed after the examination is closed and after the order is made. 
 Hence there is no propriety in restricting the powers of the receiver, in sell- 
 ing the real property of the debtor, without the special order of the court, 
 ''until afier judgment in the cause." Doubtles the rule will receive such 
 construction.
 
 864 COSTS. 
 
 right to institute suits against persons known to be in- 
 solvent, and from whom he would be unable to col- 
 lect his cost, unless such suit is brought by order of the 
 court, or by the consent of all persons interested in 
 the funds in his hands. Rule 81. If such suits are 
 brought without such order or consent, the receiver 
 will not be allowed, for the costs of the suit, to be 
 paid out of the funds in his hands. Id. 
 
 No order is required now for the receiver to pay 
 over the money in his hands to the judgment credi- 
 tors; but after satisfying the judgment, the costs of 
 the proceedings, and his fees, commissions, and ex- 
 penses, the receiver must account to the j idgment 
 debtor for the balance, if any. 
 
 It is not necessary for the judgment debtor to ex- 
 ectite a formal assignment to the receiver; the or- 
 der directing the application of the property, together 
 with the appointment of the receiver, is sufficient to 
 vest in him all the rights of action, equitable inter- 
 terests, and properly of the debtor; and he is author- 
 ized, by Rule 81, to prosecute all suits in relation 
 thereto, unless expressly restricted in the order ap- 
 pointing him. Formerly, an assignment was neces- 
 sary, for the reason that it was the evidence of the 
 receiver's authority, as the order appointing him was 
 simply entered with the clerk. Now, however, the 
 appointment is made by the judge, and the order 
 conferring the authority is under the hand of the 
 judge, and is the only evidence required by the re- 
 ceiver of his right to take, collect, and sue for the 
 property of the judgment debtor. 
 
 Costs.'] — The costs are entirely at the discretion of 
 the judge. He may allow the creditor a sum not ex- 
 ceeding thirty dollars, besides his witnesses' fees and
 
 PROCEEDINGS AFTER THE ISSUE. 365 
 
 disbursements, to be paid out of the property of the 
 judgment debtor; and he may allow a like sum to 
 the judgment debtor, in case he discloses no prope;ty 
 upon the examination. But where the judgment 
 debtor is allowed costs, it will be directed to be de- 
 ducted from the judgment. 
 
 A witness, however, who is examined as such, is 
 not entitled to costs, the provision being confined to 
 parties who are brought before the judge by order to 
 appear and answer. Code, § 301. But a witness is 
 entitled to his fees for travel and attendance, in the 
 same manner and to the same extent as witnesses 
 who are subpoenaed to attend a trial at the circuit. 
 
 SECTION V. 
 
 Of Proceedings after the Issuing and before the Re- 
 turn OF an Execution. 
 
 In addition to the remedies given after an execu- 
 tion against the property of a judgment debtor has 
 been returned unsatisfied in whole or in part, it is 
 provided, that after the issuing of an execution 
 against the property of the debtor, the creditor may 
 procure an order from a justice of this court, or a 
 county judge, requiring the judgment debtor to ap- 
 pear at a specified time and place, to answer con- 
 cerning his property. Code § 292. 
 
 To obtain this order, the plaintiff or his attorney, 
 or other person, must make an affidavit showing that 
 the judgment debtor has property that he unjustly re- 
 fuses to apply towards the satisfaction of the judg- 
 ment. And it seems that the affidavit must show 
 positively, that the debtor has the property, which
 
 866 PROCEEDINGS AFTER THE ISSUE. 
 
 should be ilescribed, if the same can be, and which 
 he refuses to apply. It is not enough, that the party- 
 swears to a belief merely. The judge is to be satisfi- 
 ed, and the facts therefore must be stated. 
 
 Again. It is provided that after the issuing or re- 
 turn of an execution against property of the judg- 
 ment debtor, or any one of several debtors in the 
 same judgment, the creditor may procure an order 
 requiring any person or corporation having property 
 of the judgment debtor, or who is indebted to him 
 in an amount exceeding ten dollars, to appear at a 
 specified time and place, and answer concerning the 
 same. 
 
 The order, however, will not be granted except 
 upon an affidavit stating that such person, or corpo- 
 ration has property belonging to such judgment debt- 
 or, or is indebted to him in an amount exceeding 
 ten dollars. Code § 294. 
 
 The affidavit ] — The affidavit required to procure an 
 order for such person or corporation to appear and 
 answer, must be full and explicit upon the subject 
 of the property, or the debt which belongs or is due 
 to the judgment debtor. Hence, it should describe 
 the property; as, a promissory note, made by A. B., 
 for the sum of five hundred dollars; or, a bond and 
 mortgage, dated the ninth day of July, 1848, for the 
 sum of one thousand dollars, made by E. F. to one J. 
 K, and assigned to the judgment debtor; or, that C. 
 D. is indebted to the judgment debtor, in the sum 
 of two hundred dollars, or book account for goods 
 sold, or for work and labor performed, and the like. 
 It is not necessary to state in the affidavit, that such 
 person or corporation has refused to apply such pro- 
 perty or pay such debt, towards satisfying the judg-
 
 THE ORDER. 367 
 
 ment; such allegation being necessary only when the 
 order is obtained against the judgment debtor, be- 
 f)re the return of the execution 'Where property is 
 claimed to be in the hands of such person orvcorpo- 
 ration, belonging to the judgment debtor, its value 
 need not be stated in the affidavit. It is only when 
 there is a debt due from such person or corporation 
 to the judgment debtor, that its amount must be 
 stated in the affidavit, and it must appear to exceed 
 ten dollars. 
 
 The order.] — Upon receiving the affidavit, the 
 judge will make an order requiring the person or 
 corporation, alleged to have property of, or to be in- 
 debted to the judgment debtor, to appear before him 
 to answer concerning such property or indebtness. 
 A copy of the order must be served upon the person 
 or corporation named in it, and the original shown 
 to the person on whom the service is made. The 
 service of the order upon a corporation, is made by 
 delivering the copy order to the president or other 
 head of the corporation, secretary, cashier, or mana- 
 ging agent thereof Code § 134, sub. 1. The service 
 of the order must be personal. Code § 418. 
 
 Order forbidding transfer.] — At the time of granting 
 the order for such person or corporation to appear 
 and answer, concerning property belonging, or a 
 debt due to the judgment debtor, the judge may 
 also make an order forbidding such person or corpo- 
 tion making any transf.r or other disposition of the 
 property, or paying the debt, or in any way inter- 
 fering therewith. Code, § 298. Ordinarily, it is 
 proper to obtain this order in the first instance, and 
 serve it with the order to appear and answer. Oth- 
 erwise, the person or corporation may dispose of
 
 368 ORDER TO APPLY THE PROPERTY. 
 
 the property or pay the debt, before an order is ob- 
 tained for the application of it towards satisfaction 
 of the jiidgrnent. This order must be served in the 
 same manner that the order to appear and answer 
 is required to be served. 
 
 At the time of applying for the order, the judge 
 may require notice thereof to be given to the judg- 
 ment debtor, in such manner as he may deem 
 proper. 
 
 The proceedings before the judge or referee are 
 conducted in the same manner as in cases of orders 
 made after the return of an execution, as pre- 
 scribed in the previous sections of this chapter. 
 These being merely additional remedies, and the 
 practice, after the order to appear and answer, be- 
 ing in all respects the same as has been stated in 
 "respect to orders made upon the return of an execu- 
 tion unsatisfied in whole or in part, it will be suffi- 
 cient to refer to the four previous sections of this 
 chapter, for the practice in regard to conducting the 
 examination of witnesses and the other proceedings 
 upon the order. 
 
 Order to apphj the property or pay the debt ] — Upon 
 the determination of the examination of the person 
 or corporation alleged to have property of, or to be 
 indebted to the judgment debtor, the judge may 
 make an order requiring such property or debt to 
 be applied towards satisfaction of the judgment. If 
 however such person or corporation claims an in- 
 terest in the property, or denies the debt, the judge 
 cannot make an order for its application to the judg- 
 ment. In such case the only way in which it can 
 be recovered is by an action instituted by the re-
 
 COSTS. 369 
 
 ceiver, which he may do of course, and without a 
 special order. Code, § 299. Bat the judge may make 
 an order forbidding a transfer or other disposition of 
 such property or interest, until sufficient opportuni- 
 ty is given to the receiver to commence the action 
 and prosecute the same to judgment and execution. 
 Such order may at any time be modified or dissolv- 
 ed by the judge granting the same, on such security 
 as he shall direct. Code, § 29y. 
 
 Costs^ — Costs may be allowed to the person or 
 corporation who appears and is examined under the 
 order of the judge, in respect to property alleged to 
 belong to or a debt due to the judgment debtor. The 
 costs are in the discretion of the judge, and when 
 allowed, cannot exceed thirty doHars, besides wit- 
 nesses fees and disbursements. Ordinarilv, such 
 person or corporation will be entitled to costs, 
 as the creditor has no right to require third persons 
 to appear and answer concerning such property or 
 debt, but should let the receiver bring his suit to 
 recover it. And especially where no previous de- 
 mand is made to have the property or debt applied, 
 the person examined ought to be allowed costs. 
 
 AVitnesses are only allowed their fees for travel 
 and attendance. They are not parties. (See ante 
 p. 365.) 
 
 24
 
 CHAPTER V. 
 
 OF SPECIAL MOTIONS. 
 
 There is no branch of the practice that requires 
 more astuteness, quickness of thought, and care in 
 the preparation, than in making and resisting spe- 
 cial motions. Being made upon affidavits, and the 
 opposing party resisting upon affidavits, which are 
 not read until the argument of the motion, no op- 
 portunity is afforded for preparation or examination 
 of the facts of the opposing party. 
 
 The most ordinary special motions are the follow- 
 ing: 
 
 Motions to set aside summons. 
 
 Motions to strike out irrelevant or redundant 
 matter in a pleading. 
 
 Motions to st;ike out sham answers and defences. 
 
 Motions for judgment on account of the frivolous- 
 ness of demurrer, answer or reply. 
 
 Motions for leave to amend a pleading. 
 
 Motions to change place of trial. 
 
 Motions to set aside an inquest, for irregularity. 
 
 Motions for a reference. 
 
 IMotions to compel a report of referees. 
 
 Motions for security for costs. 
 
 Motions to set aside inquisition for irregularity. 
 
 Motions for a commission. 
 
 Motions to compel a ( iscovery of books, papers, &c.
 
 MOTIONS FOR JUDGMENT. 371 
 
 Motions for judgment of dismissal of complaint 
 for not proceeding to trial. 
 
 Motions for readjustment of costs. 
 
 Motions for leave to issue execution, after five 
 years. 
 
 Motions to set aside a non suit. 
 
 Motions to set aside a verdict. 
 
 Motions to set aside report of referees, whenonly 
 a part of the issue is reported on. 
 
 Motions to set aside judgment ; or, 
 
 Motions to set aside an execution, for irregularity. 
 
 Motions to vacate a rule of court or judge's order. 
 
 There are also many other motions, that it will 
 in practice, be necessary to make, but it is not ne- 
 cessary to enumerate them here. 
 
 Motions for judg?nent in cases reserved for further con- 
 sideration.'] — As all judgments are to be entered by 
 the direction of a single judge, and not by three 
 judges, as formerly, the practice of taking a verdict 
 at thc3 circuit, subject to the opinion of the Supreme 
 Court, upon a case to be made containing the testi- 
 mcny, is wholly abrogated by the Code. There 
 may, however, be cases in which the judge upon the 
 trial by a jury, is in doubt as to the judgment which 
 he should direct, to be entered upon the facts as 
 found by the jury. In such cases the judge may 
 reserve the case for argument or further considera- 
 tion, and may direct a case to be made and settled 
 in the same manner as cases to set aside a verdict. 
 It is directed by rule {Rule 31} that a case thus re- 
 served shall I e heard at the special term. It there- 
 fore becomes a motion for judgment upon the ver- 
 dict.
 
 372 JUDGMENT UPON SPECIAL VERDICTS. 
 
 Motions for judgment itpon spfcial verdicts.] — There are 
 cases, also, where the jury may, under the directiorj 
 of the judge, render a "special verdict;" and if the 
 judge has doubts whether upon the facts as found, 
 the plaintiff or the defendant is entitled to the 
 judgment, he may in like manner reserve the case 
 for argument or further consideration, and may hear 
 counsel, and direct that the special verdict be drawn 
 up and settled in the same manner as cases to set 
 aside a non-suit or verdict. 
 
 The argument upon a special verdict must be 
 heard at a special term; and this also becomes a 
 special motion, for judgment upon the verdict. 
 
 Motions to set aside report of referees when only part of 
 the issue is reported on] — There are also cases of the 
 reference of a part only of an issue, or of some dis- 
 tinct matter not involving the whole subject matter 
 of the controversy. In sufh case a motion to set 
 aside or correct or send back such report, can only 
 be made at the special term, and is therefore a spe- 
 cial motion. 
 
 The object of the motion in cases reserved for 
 argument or further consideration, and of special 
 verdicts, is to enable the judge to direct the proper 
 judgment to be entered. And hence it will not, 
 unless expressly directed by the judge, be necessary 
 to make a formal case or special verdict, inasmuch 
 as no appeal can be taken until the judgment is 
 entered. 
 
 In motions, however, for judgments upon special 
 verdicts, it seems the special verdict must be drawn 
 up in form, and settled in the same manner as a 
 case or bill of exceptions to set aside a verdict or 
 non-suit is required to be settled. See ante, p. 227»
 
 PREPARING PAPERS. 373 
 
 And in motions to set aside, modify, or send back 
 ^ report of referees, where only a part of the issue 
 is reported on, the questions are presented to the 
 court upon a case, which must be made and. settled 
 in the same manner as cases to set aside a report 
 of referees upon the whole issue are directed to be 
 made and settled. See ante, p, 244. 
 
 Preparing papers.] — It is the duty of the plaintiff, 
 in all cases where the motion is for judgment upon 
 a special verdict, to prepare the necessary pnpers 
 for the court. In cases reserved for argument or 
 further consideration, the party on whose motion 
 the case is reserved must furnish the papers ; and 
 in motions to set aside, modify, or send back a 
 report of referees, where the whole issue is not re- 
 ported on, the papers must be furnished by the moAdng 
 party. Rule 31. The papers to be furnished are a 
 copy of the ease, which of course includes the 
 pleadings; a copy of the special verdict; report of 
 referees ; and so much of the evidence as is neces- 
 sary to present the questions intended to be raised 
 upon the motion. Rule 31. 
 
 The case and papers need not be printed. 
 
 Serving papers.] — The party whose duty it is to 
 furnish the papers to the court, must serve a co- 
 py upon the opposite party at least eight days be- 
 fore the term at which the motion may be made. 
 If such papers are not served, the opposite party 
 may move on affidavit and notice of motion, that 
 the cause be struck from the calendar, (whichever 
 party may have noticed it for argument,) and that 
 judgment be rendered in his favor. Rule 31. 
 
 Notice of argument.] — Either party may notice the 
 motion for argument. It must be noticed for the
 
 374 MOTIONS WHERE MADE. 
 
 first day of the term, {Rule 31) and served eight days 
 before the term. The notice must state the time 
 and place of the motion, and the nature of the judg- 
 ment or relief which will be asked for. 
 
 Note of issue.\ — At least four days before the first 
 day of the term, at which it is intended to make the 
 motion, the party giving the notice of argument 
 must file with the clerk at the place where the court 
 is to be held, a note of the issue, containing the 
 names of the parties and of their respective attor- 
 neys, and the date of the issue and the nature of 
 the question. The date of the issue will be the time 
 the last pleading in the cause was served or re- 
 ceived. 
 
 With the exception of motions for judgment upon 
 a special verdict, or upon a case reserved or motion 
 to set aside, modify, or send back a report of re- 
 ferees, special or non-enumerated motions are made 
 upon petitions or affidavits. Rule 42. When made 
 upon petition, it must be duly verified, by the oath 
 of the part}^ to the elfect that he believes it to be 
 true. Id. The motions or questions need not be 
 put upon the calendar, nor need any papers be fur- 
 nished to the court. The affidavits or petitions upon 
 which the motion is made or resisted, are read to 
 the court, before the argument of counsel. 
 
 Molio7is, where made.] — All special motions must be 
 made at a special term, exo pt that in the city of 
 New- York, a motion may also be made to a justice 
 or judge at his chambers. Motions may also be 
 made at the general terms, on the first day of the 
 term, on Thursday of the first week, and on Friday 
 of the second week of the term, immediately after
 
 STAYING PROCEEDINGS. 375 
 
 the opening of the court on those days. Rule 3C. 
 Motions must be made within the district in which 
 the action is pending, or in a county adjoining that 
 in which it is pending, and cannot be made else- 
 where. In the city of New- York, if the action is 
 triable there, the motion must be made in that city, 
 and not elsewhere. 
 
 For the purpose of hearing special motions, the 
 court are authorised {Code, § 22) to designate the 
 times and places of holding special terms, and in 
 pursuance of that authority the judges in each dis- 
 trict have, and as often as required by law will, de- 
 signate in their respective districts the times and 
 places for holding the special terms. 
 
 Motions ivhefi made.] — As a general rule, the motion 
 must be made with all diligence and at the first op- 
 portunity that is afforded after the matter arose, on 
 which it is founded. And if not made at as early a 
 day as with due diligence it can be, an excuse must 
 be shown for the neglect, and such excuse must ap- 
 pear in the motion papers. This general rule, how- 
 ever, applies solely to motions for relief for irregida- 
 rity in the proceedings. Where the relief sought 
 affects the real and substantial rights of the parties, 
 the rule is less stringent and the right to the relief 
 will not be lost, notwithstanding there has been 
 mtuch delay in making the motion. 5 Wendell, 129. 
 6 Hill, 234. 
 
 Staying proceedings.] — If for any purpose it is 
 necessary to stay the proceedings of the opposite 
 party, in order to make the motion, an application 
 must be made to a justice of the court or to a county 
 judge, (Code, § 403) for an order staying proceedings 
 until the decision of the motion. This order is usu-
 
 376 AFFIDAVITS. 
 
 ally granted upon the affidavits and papers upon 
 which it is intended to make the motion, and is en- 
 dorsed upon them. 
 
 If the stay of proceedings is granted ofler verdict, 
 it must be made by a justice of the Supreme Court, 
 a county judge has no power to stay the proceed- 
 ings. Code § 401. 
 
 Nor can a justice of the Supreme Court or county 
 judge out of court, grant a stay of proceedings for 
 a longer period than tioenty days, except the opposite 
 party have previous notice of the application for the 
 stay. 
 
 Affidavits.'] — The party intending to make a spe- 
 cial motion must make and serve on the opposite 
 party an affidavit of the facts upon which the mo- 
 tion is founded. The opposite party may on his 
 part, make and read affidavits in opposition to the 
 motion. The affidavits of the moving party and all 
 papers upon which the motion is to be founded must 
 be served upon the opposite party the same length of 
 time that is required to serve the notice of motion. 
 
 The affidavit must show affirmatively that the 
 motion is made in the proper county. Schermerhom, 
 v. Develin, 1 Code Rep. 13. It therefore should state 
 the county in which the action is triable. 
 
 The motion may be founded upon a petition in- 
 stead of an affidavit {Rule 42,) in which case the 
 petition must be verified by the oath of the party, to 
 the effi3ct that he believes it to be true. Id. 
 
 Great care should be observed in preparing the af- 
 fidavit or the petition upon which to make a special 
 motion. They should contain all the facts necessa- 
 ry to succeed, and as far as possible should antici- 
 pate and controvert what may be sworn to on the
 
 NOTICE OF MOTION. 377 
 
 otluTside; for the court will not ordinarily allow- 
 any additional facts to be supplied, or even the mo- 
 tion to stand over to supply them, though they will 
 sometimes deny the motion without prejudice to the 
 right to move anew upon further and additional affi- 
 davits and papers. Thus, in a motion to set aside a 
 proceeding for irregularity, it should appear in the 
 affidavit or petition upon which the motion is foun- 
 ded, that diligence has been used in taking advan- 
 tage of the irregularity, and that the motion is made 
 at the earliest practicable day after the irregularity 
 was discovered; otherwise, the opp)sing affidavits 
 may show that the irregularity has been waived by 
 the laches of the party, or by taking some subsequent 
 step in the cause, after the defect was discovered by 
 him. And where one or more terms have elapsed 
 since the irregularity happened, an excuse for not 
 moving at an earlier day must be shown in the mo- 
 ving papers, otherwise the motion may be defeated 
 by showing that the motion is not made at the first 
 opportunity. 
 
 Notice of motion.'] — The motion must be noticed for 
 the first day of the special term, at which it is inten- 
 ded to make it, and if noticed for a later day, an ex- 
 cuse therefor must be contained in the affidavit. 
 Rule, 31. The notice must be in writing {Code, § 408) 
 and served eight days before the time appointed for 
 the hearing. Code, § 402. If the notice be short, 
 that is, less than eight days, the opposite party will 
 be entitled to the costs of opposing. 9 Wtndcll, 450. 
 An admission of due service of the notice will preclude 
 the party from objecting to it as being too short. 
 12 Id. 227. 
 
 The object of the motion, or the particular relief
 
 378 MOTION. 
 
 sought, must be stated in the notice, and it is al- 
 ways well to add at the conclusion of the notice, 
 "for such further or for such other order or relief as 
 the court may grant." 5 Hill, 518. But the paity 
 must not ask for more than he is entitled to ; other- 
 wise he will not only lose his costs though he suc- 
 ceeds in his motion, but may be compelled to pay 
 the costs of opposing. 1 Hovj. Pr.R. 41. 6 Hill, 268. 
 
 The court will not give costs to the moving party 
 unless they are asked for in the notice of motion. 
 
 Motion.'] — The motion is argued by counsel. Only 
 one counsel on each side will be heard ; (Rule 74) 
 the opening counsel has the right to close the argu- 
 ment. The practice of arguing special motion, is 
 this: The counsel for the moving party reads the 
 peition or affidavits and papers upon which the mo- 
 tion is founded. The counsel for the opposing par- 
 ty then reads the affidavits and papers in opposition 
 to the motion. The motion is then argued pro and 
 con, the counsel for the moving party closing the 
 argument. 
 
 If it is intended to take any objections to the mo- 
 tion of a merely technical character, they should be 
 raised before the merits of the motion are gone into; 
 otherwise they will be considered as waived 3 
 Caines R. 105. 
 
 Rule or order.'] — The court having decided the mo- 
 tion, the papers on both sides should be filed with 
 the clerk. The rule is either drawn up by the at- 
 torney or the clerk, and entered in the minutes. In 
 some instances where the rule is special, it should 
 be drawn up and submitted to the court before be- 
 ing entered.
 
 OBTAINING RULE BY DEFAULT. 379^ 
 
 Get a certiiied copy of the rule from the cleik and 
 serve it upon the opposite attorney. 
 
 Obtaining rule by default.'] — If the party upon whom 
 the notice of motion is served does not appear to 
 oppose, the moving party, upon furnishing to the 
 court, proof of thn due service of the notice of mo- 
 tion and papers upon which it is founded, may take 
 such rule as he asks for in his notice, by default. In 
 such case, however, the counsel who takes the mo- 
 tion by default, must endorse upon the papers his 
 name. Rule 29. In like manner, if the moving party 
 does not make his motion, the opposite party, at the 
 close of the term, may enter a rule denying the mo- 
 tion with costs. 
 
 Costs.1 — The costs on a motion are in the discre- 
 tion of the court. When allowed to either party^ 
 they cannot exceed ten dollars. Code § 315. The 
 general rule upon the subject is, that when a pro- 
 ceeding is set aside for irregularity, the party who 
 committed the irregularity must pay costs. But if 
 regular proceedings are set aside as a favor to the 
 other party ; or, where a party is permitted to amend 
 a pleading or proceeding, the ordinary rule is, that 
 such party must pay costs to the other. So if the 
 moving papers are defective ; or, the notice is too 
 short, the failing party must pay costs. 9 Wendell 
 450. If costs are not asked for, the moving party 
 will not be entitled to them, even though there be 
 no one to oppose. 10 Wendell 603. 
 
 Costs when payable.] — When tlie motion is granted 
 or denied with costs, or when it is granted upon 
 payment of costs, the rule or order requiring such 
 payment must be served upon the party. And where
 
 380 COSTS HOW COLLECTABLE. 
 
 costs to be adjusted by the clerk are to be paid, a 
 copy of the costs as adjusted must be served upon 
 the party required to pay them. In either case the 
 party has twenty days after serv'ce of the copy order 
 or copy costs to pay them in; and no process can 
 be issued for their collection until after the expiration 
 of such time. And so where the order requires the 
 performance of a condition, or of some act, the party 
 has twenty days to perform it in, after the service of 
 the order. And when it is intended to apply for an 
 attach n ent to punish, as for a contempt, the disobe- 
 dience of an order, to perfi;rm some condition or 
 other act, other than the payment of costs, the order 
 must be served personally on the party. 
 
 Cosfs Iwiv collectable. — If the costs of a motion are 
 not paid within the time limited for that purpose, 
 an execution may be issued to the sheriff, recit-ing the 
 motion and order, and commanding him to collect 
 the same out of the personal estate of the party liable 
 to pay the costs. Laivs 1847, chap. 390, ^S 3. For- 
 merly, a precept or attachment was isssued against 
 the person, and he might be imprisoned ; but im- 
 prisonment for costs was abolished in 1 8A7{Sess. Laws, 
 1847, chap. 390,;?. 491, § 2), since which time inter- 
 locutory costs can only be collected by an execution 
 against the personal property of the person liable to 
 pay the costs. 
 
 The execution to collect the costs of a motion 
 may be issued at any time after the expiration of 
 the time within which the pavty has to comply 
 with the order. If, however, it is not issued within 
 five years, a motion for leave to issue it must be 
 made to the court. The execution can only be 
 collected out of the personal estate of the party,
 
 OKDERS GRANTED AT CHAMBERS. 3B1 
 
 and it is not a lien upon, nor can it be collected out of 
 the real property, nor can they be included in the 
 judgment. 
 
 The execution may be issued to the sime coun- 
 ties, is subject to the same rules, and js returnable 
 within the same time, and in the same manner, as 
 executions issued upon judgments See ante, p. 221. 
 
 The court will sometimes require the payment of 
 costs as a condition of granting relief, as tliat the 
 party be allowed to amend a pleading or proceed- 
 ing, upon payment of costs; or, that the defndant 
 be permitted to serve his answer, upon payment 
 of the costs; or, that a regular inquest be set aside, 
 upon payment of costs; or, that relief of any kind 
 be granted a party, upon condition that he pay the 
 costs of the other party. In such cases, the party 
 obtaining the order or relief must perform the con- 
 dition, that is, pay the costs, upon their being made 
 out and taxed, when they are to be taxed, or the 
 amount specified in the order. And he must seek 
 out the opposite party, and pay or tender the 
 amount, and cannot wait until they are demanded ; 
 and in the mean time proceed by serving his an- 
 swer, or amending his pleading or proceeding, as 
 the case may be ; and if the costs are not paid 
 within the time allowed, the opposite party may 
 proceed to obtain judgment or a dismissal of the 
 complaint, as the case may be, and is not driven to 
 issue execution to collect the costs. He may 
 waive the costs, and proceed as if no motion had 
 been made. 
 
 Orders gronfcd at chatnbers.] — A large number of 
 orders are usually required to be made, in the pro- 
 gress of a cause, by a judge out of court. Some
 
 382 ORDERS GRANTED AT CHAMBERS. 
 
 are made upon notice to the opposite party, and 
 others ex parte, and without notice ; such as appli- 
 cations for attachments, orders to arrest defendants, 
 for injunctions, for stay of proceedings, for further 
 bill of particulars, and the like. 
 
 It is provided by rule that if an application for 
 an order is made to a justice of the court, and such 
 order is refused in whole or in part, or be granted 
 conditionally, or on terms, no subsequent applica- 
 tion upon the same state of facts can be made to 
 any other justice. Rule 87. 
 
 If a subsequent application is made to another 
 justice upon the same state of facts, and he makes 
 an order, such order will be revoked. Id. 
 
 The mode of procuring a revocation of the se- 
 cond order, is by an application to the justice who 
 made it, or by a special motion to the court. In 
 case the application is made to the same justice, no 
 notice need be given to the opposite party, unless 
 directed by the judge, he having power to revoke 
 his own orders, without notice. Ordinarily, notice 
 to the opposite party will be required, before the order 
 will be revoked, or a special motion can be made 
 to procure such revocation. Notice of the motion 
 and copies of the papers upon which the motion is 
 founded, must be served as in other special motions. 
 
 When a notice of motion is given, or an order to 
 show canse is returnable, before a judge out of court, 
 and at the time fixed for the motion he is absent, or 
 unable to hear it, the same may be transferred by 
 his order to some other judge, before whom the mo- 
 tion might originally have been made. Code, § 404.
 
 CHAPTER VI. 
 
 OF APPEALS TO THE GENERAL TERM FROM ORDERS 
 MADE AT THE SPECIAL TERM OR BY A SINGLE 
 JUDGE. 
 
 The decisions made at the special term, and or- 
 ders made by a single judge, can be reviewed at 
 the general term, only in certain specified cases. 
 
 It is therefore provided {Code, §349,) that an ap- 
 peal may be taken from an order made by a single 
 judge of the same court, and also from orders made 
 by a county judge, in actions in (he Supreme Court 
 {Code, § 403,) to the general term of the Supreme 
 Court, in the following cases : 
 
 1. Where the order grants or refuses a provisional 
 remedy ; 
 
 2. When it involves the merits of the action, or 
 some part thereof; 
 
 3. When the order decides a question of practice, 
 which in effect determines the action without a 
 trial, or precludes an appeal. 
 
 4. When the order is made upon a summary ap- 
 plication in an action after judgment, and affects a 
 substantia] right. 
 
 The orders appealed from must be such as are 
 made at the special term, or by a judge out of court, 
 and includes such as are made upon notice. Orders 
 granted ex parte are not appealable. Where the or- 
 der is made out of court, it must be entered with
 
 384 APPEAL WHEN TAKEN. 
 
 the clerk before an appeal can be taken. For this 
 purpose the party desiring to appeal may require the 
 order to be entered with the clerk. Code, § 350. 
 
 No orders made at a special term or by a judge 
 other than those above specified, can be reviewed on 
 appeal. And as there is no other way provided for 
 reviewing orders, it seems that unless the order is 
 embraced among those mentioned, they cannot be 
 reviewed at all. Hence the decisions and orders 
 made at the special term luid by the judges out of 
 court, in a great variety of cases, are final and con- 
 clusive, and cannot be reviewed. 
 
 This is confined to orders, strictly such, for there 
 are a number of cases which may be heard and de- 
 cided at the special term, which are afterwards ap- 
 pealable to the general term, such as motions to set 
 aside or modify a report of referees, where the re- 
 port hi upon only a part of the issue. So, in cases 
 of motions for judgment upon special verdicts, or 
 cases reserved on the trial for argument or further 
 consideration ; issues of law as provided by the 
 Code ; demurrers to pleadings and the like, which 
 must all be heard at the special term. In them an 
 appeal may be taken to the general term. For in 
 these cases a judgfne?it is entered, and is not therefore 
 an order But where a report of referees is sent 
 back for review by the referees, no judgment is en- 
 tered, but an ordtr made sending the report back. 
 No appeal, however, can be taken from the order, un- 
 less it involves the merits of the action. 
 
 Appeal when taken ] — An appeal from an order made 
 by a single judge, either at special term or out of 
 court, must be taken within thijii/ days after written 
 notice of the order shall have been received by the
 
 NOTICE OF APPEAL. 385 
 
 party intending to appeal. Code, §332. The only- 
 way therefore of lirnitino^ the appeal is by giving 
 written notice of the order to the opposite party 
 
 If the appeal is not brought within the thirty days 
 the right will be lost, and the court have no power 
 to extend or enlarge the time. Code, § 405. 
 
 Notice of appeal.] — The party wishing to appeal 
 from an order must prepare a notice stating that he 
 appeals from the order or from some specified part 
 thereof to the general term. The order appealed 
 from must be described with accuracy, in respect to 
 its date, names of parties and purport; and where 
 the appeal is from a part of the order only, the no- 
 tice must specify particularly the part appealed 
 from. 
 
 Serving of notice,] — The notice of appeal must be 
 served upon the attorney of the adverse party, and 
 must also be served on the clerk with whom the 
 order was entered. The notice is served like other 
 notices in the cause. See post. It need not be a 
 personal service, but may be by mail or otherwise, 
 as in the case of other notices. It must, however, 
 be within the time allowed for appealing. 
 
 No security is required upon an appeal from an 
 order, to the general term. Hence it is not neces- 
 sary to execute any undertaking as in cases of ap- 
 peals from judgments. Nicholson v. Dunham and others^ 
 1 Code Rep., 119. (a.) 
 
 (o) An opinion has prevailed among the profession to a considerable extent, 
 that security is necessary in appeals from orders; and it is understood that some 
 of the judges have so decided. I have not found any case reported, holding 
 such to be the construction to be given to tiie Code. The contrary has been 
 
 25
 
 386 PAPERS TO BE USED. 
 
 Papers to be used.'] — The appeal from an order, is 
 heard upon the same papers that were used upon 
 the argument, before the special term or judge who 
 made the order. No other or additional papers cai^ 
 be used. As has been before stated the papers on 
 both sides upon a special motion, must be filed with 
 the clerk where the order is entered. At least eight 
 days before the time for hearing the appeal, a cer- 
 tified copy of the papers, order appealed from, and 
 notice of appeal, should be procured by the appel- 
 lant from the clerk and a copy thereof served upon 
 the respondent or opposite party, {a) 
 
 held by Mr. Justice Oakley iy the case cited in the text- It is true the opinion 
 in that case is mere dictum, inasmuch as no reasons are given. Nevertheless, as 
 Vi dictum, coming from so learned and able a judge, it is entitled to great weight 
 and respect. But I think that upon a careful and scrutinizing examination of 
 the Code, it will be manifest that it was not the intention of the Legislature 
 to require security in such cases. 
 
 The language is ( § 348,) " In the Supreme Court, &c. an appeal upon the 
 law may be taken to the general term, from a judgment,. &e." but to make the- 
 appeal effectual, security must be given. Then follows § 349, "^an appeal may 
 in like manner, and within the same time be taken from an order," &c. Now the 
 words "in like manner," refer to the subjict matter of the appeal, that is, that 
 it may be taken " upon the law" and has no reference to the security to be 
 given upon appeals from judgments. The security to be given in appeals from 
 judgments, is an undertaking in the sum of two hundred and fifty dollars, and 
 it can scarcely be supposed that security in that amount would be required in 
 appeals from interlocutory orders. The entire spirit and intent of the Code in 
 requiring security in appeal from judgments, is at war with the idea that it is 
 required in appeals from oitlers. The object of the security is to stay the pro- 
 ceedings and wherever the undertaking is spoken of, it is in reference to 
 the juds^inent. Appeals from orders are heard as motions, upon the same papers 
 used before the juilge ; no copies are required for the judges and they are usually 
 speedily disposed of, taken up on the motion days, in term, and heard as inter- 
 locutory motions are heard ; and there is therefore, nothing in the nature of 
 the appeal or the manner of conducting it, that would seem to require security. 
 It has been ilecUletl that ihe costs upon ajjpeals from orders cannot exceed ten 
 dollars, {Savage v. Darrov, 4 How. Pr. R 74,) and are in the discretion of the 
 court, hence security in the sum, of two hundred and fifty dollars, with sure- 
 ties to justify in double the amount, would be excessive. In short, as security 
 upon such appeals is not, by the terms of the statute required, and can only be 
 by implication or inference,, the court will not require it, it being contrary ta 
 the spirit of the law and the intent of the Legislature. 
 
 (a.) There does not seem, to be aay other moile of getting the facts properly
 
 NOTICE OF HE.\RING. 387 
 
 It is not necessary to make copies of the papers 
 for the court, as in appeals from judgments, for the 
 appeal from an order is heard as a motion. 
 
 Nor is it necessary to prepare points. 
 
 Notice of hearing.] — Either party may notice the 
 appeal for argument. It must be noticed for the 
 first day of a general term, by a written notice of at 
 least eight days. The notice must specify the time 
 and place, when and where, the appeal will be heard. 
 And it must be heard in the district embracing the 
 county where the order was entered, or in a county 
 adjoining the one where it was entered. Code, § 346. 
 
 No note of issue is necessary, as the appeal is not 
 put upon the calendar. 
 
 Argument.] — The argument of the appeal is heard 
 on a motion day in term, when it is called up by 
 either party having noticed it. 
 
 The motion days in the general term are, the^r^^ 
 day of the term ; Thursday of the first week of the 
 term, and Friday of the second week of the term, 
 
 before the court. Formerly, appeals from orders made by a judge at cham- 
 bers, came up in the shape of a motion to vacate, modify or discharge the or- 
 der. The motion was founded upon affidavits of what transpired before the 
 judge who made the order. Such orders were seldom or never entered, and 
 the motion was made at the special term. The practice of appealing from 
 orders as provided by the Code, seems to be essentially different from that 
 which heretofore existed to obtain similar relief. Now, the appeal carries the 
 question from the special term directly to the general term. If the order is 
 made by a judge out of court it must first be entered with the clerk. The ap- 
 peal is limited to specified cases and can only be heard upon the papers used at 
 the special term, or before the judge. And for the purpose of enabling the 
 parties to get the papers or copies of them, they are required to be filed. 
 Hence, the practice would seem to be, to require the appeal to be heard upon 
 a certified copy of the papers on file with the clerk as the best evidence of 
 what transpired before the special term, or the judge who made the order, and 
 not upon affidavits, which is the most uncertain and unsatisfactory mode of 
 presenting any question to a court, as there will always be more or less con- 
 flict in the statements of the respective attorneys as to what papers were read,, 
 and what took place before the judge or special term.
 
 388 DECISION — COSTS. 
 
 iaimediately after the opening of the court on such 
 days. Rule 36. The appeal may be heard on either 
 of these days, and it need not be brought on the first 
 d .y : ncr can a default be taken for not bringing it 
 on, until Friday of the second week of term, unless 
 the respondent has noticed the appeal himself. 
 
 The appellant's counsel reads the papers and opens 
 the argument ; the respondenf s counsel replies, and 
 the appellanf s counsel closes the argument. Only 
 one counsel on each side is allowed to argue. Rule 14. 
 
 Either party having noticed the appeal for hearing, 
 may, if the other party does not appear to argue, 
 move for and take, on furnishing proof of the service 
 of notice of the hearing, such order as he claims to 
 be entitled to, either of affirmance or reversal of the 
 order appealed from, as the c jse may be. Rule 28. 
 
 Where a default is thus taken, it is the duty of the 
 counsel who moves to endorse his name upon the 
 papers. Rule 29. This is done usually upon the back 
 of the notice of hearing. 
 
 Decision^ — Upon the decision being pronounced 
 by the court, the proper rule should be drawn up, 
 and entered with the clerk. If the rule is special, it 
 should be submitted to the opposite attorney or 
 counsel, and, in case of disagreement, must be set- 
 tled by the court. 
 
 Get a certified copy of the rule and serve it upon, 
 the opposite attorney. 
 
 Costs^ — The costs upon an appeal are in the dis- 
 cretion of the court. When awarded to either party 
 they are the same as upon a motion, viz : ten dol- 
 lars. Savage and Cowen v. Darrow, 4 How. Pr. R., 74. 
 As a general rule, when the order appealed from 
 is reversed, costs will be given to the prevailing
 
 COSTS HOW COLLECTABLE. 389 
 
 party; and, when it is affirmed, the respondent will 
 be entitled to costs. But when the order is modi- 
 fied merely, no costs will be given to either party. 
 The same general rules, in respect to costs upon 
 special motions, are applicable to the question of 
 costs upon appeals from orders (vSee ante p. 379.) 
 
 Costs ivhen payable.] — The party who is required by 
 the rule or order to pay costs or perform any condi- 
 tion, has twenty days for that purpose after the or- 
 der has been served upon him. And if costs are to 
 be taxed, he has twenty days after they have been 
 taxed to pay them, (Rule 38,) and no proceeding can 
 be instituted to enforce the order or process issued 
 to collect the costs until the twenty days have 
 elapsed. (See ante p, .379) 
 
 Costs how collectable.] — If the costs are not paid 
 within the time limited for that purpose, they may 
 be collected by execution, issued to the sheriff, reci- 
 ting the appeal and order for costs, and command- 
 ing him to collect the amount out of the personal 
 property of the person liable to pay the same. (Laws 
 1847, Chap 390, § 3, and see ante p. 380 ) 
 
 The same rules which are applicable to execu- 
 tions for costs of motions are equally so to the pro- 
 cess to collect the costs granted upon an appeal from 
 an order, (as to which see ante p. 380.) it can only 
 be collected out of the personal property of the party 
 and is not a lien upon the real estate. Nor can the 
 costs, on failure to collect out of the personal proper- 
 ty be afterwards included in the judgment for the 
 purpose of making them a lien upon the real estate 
 of the party. 
 
 The execution may be issued to the same coun-
 
 390 COSTS HOW COLLECTABLE. 
 
 ties, and is subject to the same rules, and is return- 
 able within the same time, and in the same manner, 
 as executions issued upon judgments, (as to which 
 see ante p. 221.)
 
 CHAPTER VI. 
 
 T)F THE SERVICE OF NOTICES AND OTHER PAPERS 
 
 IN A SUIT, 
 
 The manner in which notices and other papers 
 after a suit was commenced, were served, was form- 
 erly regulated by the rules of the different courts. 
 It is now regulated and fixed by statute. 
 
 Except in respect to the summons or other pro- 
 ■cess by which the suit is commenced, or any paper 
 to bring a party into contempt, in which cases the 
 service must be personal on the party. Code, § 418. 
 All papers in the progress of the cause may be 
 served upon the attorney, in one of the several ways 
 prescribed by statute. 
 
 Where the notice or paper is served upon the 
 •attornei/, it may be made upon him personally or by 
 delivery to him ; if he is absent from his office, by 
 leaving the paper with his clerk therein, or with a 
 person having charge thereof; .or, where there is no 
 person in the office, by leaving it, between the hours 
 of six in the morning, and nine in the evening, in 
 a conspicuous place in the ^office, or if it be not 
 open, so as to admit of such service, then by leav- 
 ing it at the attorney's residence, with some person 
 of suitable age and discretion. 
 
 If no attorney is employed, the papers and notices 
 must be served upon the party. Code, §417. In
 
 392 SERVICE OF NOTICES AND OTHER PAPtRS. 
 
 such case the service may be made personally upon 
 the party, or by leaving the paper at his residence, 
 between the hours of six in the morning and nine 
 in the evening, with some person of suitable age 
 and discretion. Code, § 409, svb. 2. 
 
 Service of papers may also be made by mail, 
 where the person making the service and the per- 
 son on whom it is to be made reside in different 
 places between which there is a regular communi- 
 cation by mail. § 410. 
 
 A service by mail must be double the time required 
 in cases of personal services. § 412. The service 
 by mail is made by depositing the paper in the post 
 office, addressed to the person on whom it is to be 
 served, at his place of residence, and paying the 
 postage. § 41 J. 
 
 Service of a paper by mail, will be in time if it is 
 mailed on the last day of service, though it is not 
 received by the opposite party until after the time of 
 service has expired. Gibson v. Murdoch, 1 Code Rep., 
 
 103. 
 
 Upon papers served, it is the duty of the attorney, 
 besides subscribing or endorsing his name, to add 
 thereto, his place of residence; if he neglect to do 
 so, the opposite party may serve on him through the 
 mail, by directing them according to the best in- 
 formation which can conveniently be obtained con- 
 cerning his residence. Rule 5. 
 
 This rule appl-ies to a party who prosecutes or 
 defends in person, whether he be an attorney or 
 
 not. Id. 
 
 The service of a notice of appearance or retainer 
 generally, by an attorney, for the defendant, is in
 
 SERVICE OF NOTICES AND OTHER PAPERS. 393 
 
 all cases deemed an appearance, {Rule 7,) and the 
 plaintiff on filing such notice at any time afterwards, 
 may have the appearance of the defendant entered, 
 as of the time when such notice was served. Id. 
 
 A notice of trial, whether of an issue of law or of 
 fact, must be served at least ten days before the first 
 day of the court. 
 
 A notice of argument of an appeal from a judgment 
 or an order, or of a motion, must be served at least 
 eight days before the first day of the term. 
 
 A notice of motion for judgment on account of 
 irrelevant or redundant matter in a pleading and in 
 case of sham answers, must be eight days. 
 
 A notice of motion for judgment on account of 
 the frivolousness of a demurrer, must he five days. 
 
 In all other cases it must be eight days. 
 
 A note of issue for the general term, must be 
 filed with the clerk eight days before the term. 
 
 A note of issue for the trial of an issue either at 
 the circuit or special term, must be filed four days 
 before the court.
 
 CHAPTER VII. 
 
 OF PROCURING THE APPOINTMENT OF A GUARDI- 
 AN AD LITEM FOR AN INFANT PARTY. 
 
 As has been stated, in an early part of this work, 
 if one of the parties to the action is an infant, he 
 must appear by guardian. No suit can either be 
 prosecuted or defended by an infant in person. (Code 
 § 115.) And where the plaintiff is an infant, the 
 guardian must be appointed before the commence- 
 ment of the suit; where the defendant is an infant, 
 no proceedings after service of the summons can be 
 taken in the action, until a guardian ad litem for 
 su( h infant has been appointed 
 
 Plaintiff.\ — A guardian ad litem for an infant, sole 
 plaintiff, is appointed upon the petition of the infant 
 if he be of the age of fourteen years, or if under that 
 age, upon the petition of a relative or friend of the 
 infant. Where one of several plaintiffs is an infant 
 and is under fourteen years, the appointment may 
 be made upon the petition of one of the co-plaintiffs. 
 
 Defendant.]— 1^ \\\e defendant is an infant, the ap- 
 pointment of a guardian ad litem is made ujion the 
 petition of the infant, if of the age of fourteen years, 
 if under the age of fourteen years, upon the petition 
 of a relative or friend of the infant. 
 
 If an infant defendant or some one in his behalf 
 neglects to apply for the appointment of a guardian 
 ad litem for the space of twenty days after the ser-
 
 APPOINTMENT OF GUARDIAN AD LITEM. 395 
 
 vice of the summons on such infant, the plaintiff 
 may himself apply to have the appointment made, 
 and the court will appoint some suitable and proper 
 person, guardian ad litem of such infant. 
 
 Who may he appointed guardian ad litem.'] — It is pro- 
 vided that no person shall be appointed the guar- 
 dian ad litem of an infant defendant, either on the 
 application of the infant or otherwise, unless he be 
 the general guardian of such infant, or an attorney 
 or other officer of this court, who is fully competent 
 to understand and protect the rights of the infant, 
 and who has no interest adverse to that of the in- 
 fant, and is not connected in business with the at- 
 torney or counsel of the adverse party. And no per- 
 son shall be appointed such guardian ad litem, who 
 is not of sufficient ability to answer to the infant for 
 any damage which may be sustained by his negli- 
 gence or misconduct in the defence of the suit. 
 Rule 56. 
 
 And it is made the duty of every attorney or other 
 officer of the court, to act as guardian ad litem of 
 any infant defendant in any suit or proceeding 
 against him, whenever appointed for that purpose 
 by an order of the court. Rule 55. And it is the 
 duty of such guardian ad litem to examine into the 
 circumstances of the case, so far as to enable him 
 to make the proper defence when necessary for the 
 protection of the rights of the infant. Id. 
 
 Appointment how made.] — The appointment of a guar- 
 dian ad litem for an infant, whether plaintiff or de- 
 fendant, may be made by the court in which the 
 action is prosecuted, or by a judge thereof, or by a 
 county judge. 
 
 For the purpose of procuring the appointment, a
 
 396 APPOINTMENT OF GUARDIAN AD LITEM. 
 
 petition must be prepared, setting forth that the 
 plai:itifF, who is an infant, is about to prosecute the 
 suit, or that the defendant has been served with a 
 summons, and praying for the appointment of the 
 person nominated, as the guardian ad litem of such 
 party. It should appear from the petition that the 
 person proposed is either the general guardian of the 
 infant, or an attorney or other officer of the court. 
 
 The consent of the person proposed should be en- 
 dorsed on the petition, and in case the proposed 
 guardian ad litem is an attorney or other officer of 
 the court, his affidavit must be annexed to the pe- 
 tition, showing that he has no interest in the action 
 adverse to that of the infant, and that he is not con- 
 nected in business with the attorney or counsel of 
 the adverse party. 
 
 Order.] — The order for the appointment of a 
 guardian ad litem, for an infant, either plaintiff or 
 defendant, (except in an action for the partition of 
 real property,) may be entered, of course, on filing 
 the petition, consent and affidavit annexed, and 
 also the certificate of the justice of this court, or 
 county judge, endorsed upon the petition, that he 
 has examined into the circumstances, and that the 
 guardian ad litem, proposed is a suitable and proper 
 person for such guardian, and has no interest in the 
 suit in opposition to the interests of the infant. 
 Rule 57. 
 
 No security need be given by the guardian ad 
 litem; but it is provided that unless he has given 
 security to the infant, according to law, he shall 
 not, as such guardian, receive any money or pro- 
 perty belonging to such infant, or which may be 
 awarded to him in the suit, except such costs and
 
 APPOINTMENT OF GUARDIAN AD LITEM. 397 
 
 expenses as may be allowed by the court to the 
 guardian oat of the fund, or recovered by the infant 
 in the suit. Rule 58. 
 
 Upon entering the order appointing the guardian 
 ad litem get a certified copy and serve it upon the 
 attorney of the opposite party. The petition and pa- 
 pers upon which the appointment is made, should 
 be filed, and the orde • entered in the county where 
 the action is triable. 
 
 In case the application is made by the plaintiff 
 for the appointment of a guardian ad litem for an 
 infant defendant, it would seem that the application 
 must be made to the court, or to a judge thereof or 
 to a county judge, and the order cannot be entered 
 of course. The motion however is n\?idie ex parte ; 
 no notice thereof being required. 
 
 The order for the appointment of a guardian ad 
 litem when entered, of course is entered in the book 
 of proceedings and orders, kept by the clerk of the 
 county where the action is pending. Rule 4.
 
 CHAPTER YIll. 
 
 Of Judgment on Confession. 
 
 The old practice of entering up judgment upon a 
 bond and warrant of attorney, is abrogated by the 
 Code, and a new provision made for obtaining a 
 judgment by the confession of the party. Code § 382. 
 
 For this purpose a statement or instrument in 
 writing must be made, specifying the amount for 
 which the judgment may be entered. If it be for 
 money already due to the party in whose favor the 
 judgment is to be entered, it must state the exact 
 amount that is due, and must show distinctly and 
 affirmatively that the amount is justly due to such 
 party ; and where the object of the judgment is to 
 secure the payment of an indebtedness not yet due, 
 the statement must in like manner show accuratelv 
 the sum or amount that will become due to the 
 party, and that such sum will justly become due to 
 such party. And in both cases, whether of money 
 that is actually due, or to become due, the statement 
 or instrument must state the facts out of which the 
 indebtedness arose. 
 
 A judgment by confession may also be entered to 
 secure a party against a contingent liability on be- 
 half of the defendant. Thus, the endorser of a pro- 
 missory note, or acceptor or endorser of a bill of ex- 
 change ; a person who becomes security for another
 
 JUDGMENT ON CONFESSION. 399 
 
 for any purpose, upon a bond or undertaking, or a 
 person who may become liable for the debt, or may 
 be made to pay money for another, may take from 
 such person, or from the maker or drawer of the note 
 or bill, a judgment by confession. A statement 
 must in like manner be drawn up, which must state 
 vthe sum for which the judgment is confessed, and 
 the facts constituting the liability. It must show 
 that the sum confessed does not exceed the liability. 
 
 The statement having been drawn, must be sign- 
 ed by the defendant, and must be verified by his 
 oath, to the effect that he believes it to be true. 
 
 Entering judgment.] — The written statement signed 
 and sworn to by the defendant, must then be filed 
 with the clerk of the county where it is intended 
 to have the judgment entered. The clerk will then 
 endorse upon the statement a judgment of the Su- 
 preme Court, for the amount confessed, with five 
 dollars costs. If the judgment is designed to be 
 entered in the Superior Court of New- York city, the 
 statement must be filed with the clerk of that court, 
 and the judgment of that court entered thereupon. 
 
 The statement and the judgment endorsed, forms 
 the judgment roll. 
 
 A transcript from such judgment may be taken 
 from the clerk with whom the judgment is entered, 
 and filed with the clerk of any other county, and 
 the judgment docketed therein in like manner as 
 upon other judgments. Such judgment is a lien on 
 real property in the county, from the time of dock- 
 eting the judgment therein. Code, § 232.
 
 "\ 
 
 CHAPTER IX. 
 
 PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, DE- 
 VISEES, LEGATEES, AND TENANTS, HOLDING UN- 
 DER A JUDGMENT DEBTOR. 
 
 Under the former statutes and practice, as they 
 existed before the Code, if the declaration or pro- 
 cess, by which the suit was commenced, was serv- 
 ed upon some but not upon all of two or more joint 
 debtors, the plaintiff could enter judgment, which 
 was inform against all, but the record contained a 
 suggestion that some had not been served with the 
 declaration or process. In enforcing such judgment 
 the statute required a special direction on the exe- 
 cutioh, requiring the sheriff to collect the judgment 
 from the joint propertj^ of all the defendants own- 
 ed by them as co-partners, and from the individual 
 property of such as had been served, but not from 
 the sole property of the defendants not served. In 
 such case the plaintiilif he wished to pursue the in- 
 dividual property of the defendant not previously 
 served, was obliged to bring an action of debt upon 
 the judgment. 6 Wendell, 206. In such action, the 
 persons not previously served, might contest their 
 joint liability, (23 Wendell 293 ) and the judgment was 
 only evidence of the ^or/ezi^ of the plaintifi's demand, 
 and the liability of the defendants had to be estab- 
 lished by other proof 2 Rev. Stat. 377, § 2. 14 Wendell 
 221. So under the former practice, wiiere a judg- 
 
 J
 
 PROCEEDINGS AGAINST JOINT DEBTORS. 401 
 
 ment debtor died after judgment, the heirs devisees, 
 or legatees of the judgment debtor, or the tenants of 
 the real estate owned by him, could only be reach- 
 ed by reviving the judgment against such heirs, de- 
 visees, legatees or terre tenants, which was done by a 
 writ oi scire facias issued to revive the judgment and 
 charge the estate of the deceased in the hands of 
 his heirs &c. or tenants. This writ was served upon 
 the persons in whose hands the estate of the deceased 
 judgment debtor was transferred, and upon judg- 
 ment being obtained upon the scire facias, an exe- 
 cution was issued to enforce the judgment against 
 such estate. 
 
 A different proceeding is now provided by the 
 Code, §376. 
 
 Proceedings against joint debtors.] — Instead of bring- 
 ing an action of debt upon the judgment, as here- 
 tofore, provision is made {Code, § 375,) for continu- 
 ing the proceedings against such as were not served, 
 to the end that a judgment against their individual 
 property may be obtained. The cases in which 
 this proceeding may be instituted, are such as arise 
 upon a contract, either express or implied, but not 
 for torts or other personal wrongs. Code § 136. The 
 defendants who have not been served with the 
 summons in the original action, may now be sum- 
 moned to show cause why they should not be bound 
 by the judgment in the same manner as if they had 
 been originally summoned. 
 
 Proceedings against heirs, devisees, or legatees or terre 
 tenants of a deceased judgment debtor.] — In lieu of the 
 old practice of bringing a scire facias to revive the 
 judgment against the persons who have succeeded 
 
 2Q
 
 402 THE SUMMONS. 
 
 to the estate of the judgment debtor, it is now pro- 
 vided that such persons, whether heirs, devisees, or 
 legatees of the judgment debtor, or the tenants 
 of real property owned by him and aflected by 
 the judgment, may be summoned to show cause 
 why the judgment should not be enforced against 
 the estate of the judgment debtor in their hands. 
 So the personal representatives of a deceased judg- 
 ment debtor may in like manner be summoned. 
 
 Where the heirs, devisees, or legatees, or tenants 
 of the real estate are summoned, it cannot be done 
 until after the expiration of three years from the time 
 of granting letters testamentary, or of administration 
 upon the estate of the judgment debtor; but where 
 the personal representatives, tuch as the executors 
 or administrators, are summoned, it must be done 
 within one year after their appointment as such. 
 
 As the practice in both cases, whether against a 
 defendant who has not been served with the sum- 
 mons in the original action, or against the heirsy 
 devisees, legatees, tenants, or personal representa- 
 tives of a deceased judgment debtor is to be served^ 
 the subject will be treated in connexion with each- 
 other. 
 
 The symmons.] — The pioceeding is commenced byr 
 summons. It must describe the judgment, and 
 must require the persons summoned, if a defendant 
 not before served, to show cause why he should not 
 be bound by the judgment ; and if an heir, devisee, 
 legatee, or tenant, or personal representative of a 
 deceased judgment debtor, to show cause why the 
 judgment should not be enforced against the estate 
 of the judgment debtor, in their hands; and in either 
 case it must require the person summoned to show
 
 THE AFFIDAVIT. 403 
 
 cause, within twenty days after service of the sum- 
 mons. It must be subscribed by the judgment cred- 
 itor, his personal representatives, or attorney, and 
 must be addressed to the person summoned. 
 
 The summons is served in the same manner as in 
 actions. See ante, p. 110. 
 
 The affidavit.] — The summons must be accompa- 
 nied by an affidavit, that the judgment has not been 
 satisfied, to the knowledge or information and belief 
 of the person making the affidavit. The affidavit 
 must specify the amount due on the judgment. 
 
 As the affidavit is necessarily the foundation of 
 the proceeding, it would seem that it should state 
 enough to give the court jurisdiction. Hence, when 
 the proceeding is against heirs, devisees, legatees, 
 or tenants of real property, it should state that 
 three years have elapsed since the granting of 
 letters testamentary or of administration upon the 
 estate of the testator or intestate ; and when it is 
 against the personal representatives, the affidavit 
 should state that one year has not elapsed since 
 their appointment. The affidavit must be sworn 
 to by the judgment creditor or his personal repre- 
 sentatives, or it may be by the attorney who sub- 
 scribes the summons. If the affidavit contains 
 more than two folios, the party or attorney must 
 distinctly number and mark each folio in the mar- 
 gin; and all copies, either for the court or the 
 parties, must be numbered and marked in the mar- 
 gin, so as to conform to the original draft and to 
 each other. Rule 44. 
 
 The affidavit must be served upon the person 
 summoned, at the same time and in the same man- 
 ner that the summons is served ; and it seems that
 
 404 THE ANSWER, 
 
 the original affidavit, and not a copy, should be 
 served. Code, § 378. The affidavit is not demurrable. 
 
 The ansiocr-l — The party on v^hora the summons 
 and affidavit is served may answer the facts alleged 
 in the affidavit, and thus shew cause against the 
 relief demanded in the summons. He may deny 
 the judgment, or set up any defence that may have 
 arisen since the judgment was entered. Thus he 
 may answer payment, accord and satisfaction, 
 statute of limitations, or any other defence which 
 has subsequently arisen Or where the proceeding 
 is against a person not originally served with pro- 
 cess, such person may interpose the same defence 
 which he might have originally made to the action, 
 except that he cannot set up the statute of limita- 
 tions. 
 
 The answer must be drawn in the same manner 
 as answers to a complaint in an action, and in like 
 manner must be verified, (as which, see ante, p. 149,) 
 and folioed, (see a?ite, p. 150,) and is subject to the 
 same rules as an answer in an action, {Code, § 381, 
 and see ante, p. 144,) and must be served upon the 
 person by whom the summons is subscribed, within 
 twenty days after it is received. 
 
 Demurrer to ansiver.'] — A demurrer to the affidavit 
 is not allowed, but the party Avho issued the sum- 
 mons may demur to the answer. Such answer can 
 only be demurred to for insufficiency, there being no 
 other ground of objection to the answer that can 
 be made by demurrer. The demurrer is drawn in 
 the same manner, served within the same time, and 
 is subject to the same rules as prevail in respect to 
 demurrers to answers in actions. See ante, p. 152. 
 
 Reply] — If the answer is not demurrable, and
 
 DEMURRER TO REPLY. 405 
 
 sets up a defence that arose subsequent to the en- 
 tering of the judgment, the party who issued the 
 summons may reply thereto, either taking .issue 
 upon the allegations contained in the answer, that 
 is simply denying them, or he may aver any new 
 matter in avoidance of such defence. 
 
 The reply must be drawn in the same manner as 
 replies to answers in an action, and in like manner 
 must be verified, (see ante p. 154.) and folioed, (see 
 ante p. 156,) and is subject to the same rules as a re- 
 ply in an action, {Code, § 381, and see ante p. 153,) 
 and must be served within twenty days after the 
 receipt of the answer. 
 
 Demurrer to reply.] — If the reply to the answer con- 
 tains any new matter in avoidance of the allega- 
 tions contained in the answer, the party on whom 
 the summons is served may demur But a demur- 
 rer to a reply can only be for insyfficiency, that being 
 the only ground of objection that can be raised by a 
 demurrer to a reply. 
 
 The demurrer is drawn in th:^ same manner, 
 served within the same time, and is subject to the 
 sane rules as prevail in respect to demurrers to a 
 reply in an action. See ante p. 158. 
 
 Issue.'] — Upon an issue being formed either of law 
 or fact, it is to be tried in the same manner as issues 
 in an action are disposed of If the issue be one of 
 law, that is, arising upon a demurrer to the answer 
 or the reply, it is to be heard at a special term ; (see 
 ante p. 195,) if it be one of fact it is to be tried by the 
 court without a jury, or by a jury, or by a reference. 
 See ante p. 169. 
 
 Judgment.] — The judgment upon the issue is en- 
 tered in the same manner as judgments in an ac-
 
 406 COSTS EXECUTION. 
 
 tion. See ante p. 197. A brief statement of the re- 
 lief granted is drawn up and entered by the clerk. 
 The judgment roll is made up of the summons, af- 
 fidavit, answer, reply and demurrers, if any have 
 been put in, or copies of such papers, a copy of the 
 entry of judgment, the verdict of the jury, report of 
 referees, or decision of the court, and the like. See 
 ante p. 201. 
 
 The judgment may be excepted to and reviewed 
 in like manner as judgments in actions. 
 
 Costs.] — The prevailing party may recover costs, 
 and have the same entered in the judgment, in the 
 same manner as in actions. The costs recoverable 
 are the same at those allowed in actions, and must 
 be adjusted by the clerk upon the same notice, and 
 is subject to review in the same manner as in ac- 
 tions. See ante p. 203. 
 
 Execution.] — The judgment entered in this pro- 
 ceeding may be enforced by execution in the same 
 manner as judgments in actions. See a?ife p. 221. 
 An execution however, can only be issued against 
 the property. It cannot be issued against the per- 
 son of the defendant. And where the proceeding is 
 instituted against heirs, devisees, legatees or tenants 
 of real property, or the representatives of the judg- 
 ment debtor, the application of the property in their 
 hands charged with the payment of the judgment, 
 may be compelled by attachment. Code, § 380.
 
 CHAPTER X. 
 
 OF COURTS OF JUSTICES OF THE PEACE. 
 
 Thk practice in courts of justices of the peace hav- 
 ing been so materially changed by the Code of Pro- 
 cedure, and in most particulars assimilated to the 
 proceedings in courts of record, that a familiarity 
 with the practice in the latter courts, will enable a 
 person to conduct a suit before a justice of the peace 
 with little difficulty. A brief notice of the juris- 
 diction, practice and proceedings in the courts of 
 justices of the peace, as regulated by the Code, will 
 not, however, be inappropriate in this treatise. 
 
 SECTION I. 
 
 Of Jurisdiction of Courts of Justices of the Peace. 
 
 These courts have no common law, or original 
 jurisdiction, but derive all their powers from statutes. 
 They are created by statute, and can exercise no 
 jurisdiction or power that is not specifically confer- 
 red by law. Hence, we must look to the statutes 
 for the causes of action in which they have power 
 to act, and any proceeding or judgment, not^within 
 the scope of their powers, would be nugatory and 
 void. 
 
 It is provided by section fifcy-4hree of the Code of
 
 408 JURISDICTION OF JUSTICES' COURTS. 
 
 Procedure, that justices of the peace shall have civil 
 jurisdiction in the folloAving actions, and no other: 
 
 1. An action arising on contract for the recovery 
 of money only, if the sum claimed do not exceed 
 one hundred dollars. 
 
 This action embraces suits on promissory notes, 
 bills of exchange, bonds, leases, and every kind of 
 contract, as well such as are under seal, as those 
 that are not under seal. Also, suits upon implied 
 contracts, such as for goods, wares and merchandise 
 sold and delivered ; work and labor done and per- 
 formed ; money lent and advanced, and similar 
 cases, where theie is no express contract, but where 
 one can be implied by law. The contract, whether 
 express or implied, must be for the payment of mo- 
 ney, and the amount claimed by the plaintiff can in j 
 no case exceed one hundred dollars. 
 
 2. An action for damages for an injury to the per- 
 son, or to real property; or for taking, detaining, or 
 injuring personal property, if the damages claimed 
 do not exceed one hundred dollars. 
 
 There are but few cases of " injury to the person" 
 where a justice of the peace has jurisdiction; the 
 common ones being assault and battery, false im- 
 prisonment, slander, and the like, over which he 
 is prohibited by law from taking an/ cognizance. 
 See post p. 410. A justice may, however, entertain 
 an action against a physician, for mal-practice in 
 his profession, whereby the plaintiff has sustained 
 a personal injury ; or for negligently running over 
 a person, whereby he is injured ; or for any injuries 
 to the person, resulting from the negligence, want 
 of skill, or wilful act of another. Actions for tres- 
 pass to lands, or injuries of any description to real
 
 JURISDiCTIOxN OF JUSTICES* COURTS. 409 
 
 or personal property, may be tried before a justice. 
 So he may entertain an action for unlawfully takino" 
 personal property from the possession of the plain- 
 tiff, or having taken it lawfully, for detaining it un- 
 lawfully. And generally, a justice has jurisdiction 
 over all those cases in which trespass or trover was 
 formerly the appropriate action. 
 
 3. An action for a penalty not exceeding one hun- 
 dred dollars, given by statute. 
 
 4. An action commenced by attachment against 
 property, as now provided by statute, if the debt or 
 damages claimed do not exceed one hundred dol- 
 lars. 
 
 The cases in which a justice can issue an attach- 
 ment, will be found in 2 R. S. 230, § 26; Scss. Laws 
 of 1842,;?. 74, chap 107, §34. 
 
 5. An action upon a bond, conditioned for the 
 payment of money, not exceeding one hundred dol- 
 lars, though the penalty exceed that sum, the judg- 
 ment to be given for the sum actually due. . Where 
 the payments are to be made in instalments, an ac- 
 tion may be brought for each instalment, as it shall 
 become due : 
 
 A justice cannot render a judgment for a sum ex- 
 ceeding one hundred dollars, and the amount, there- 
 fore, which the plaintiff claims to recover, must not 
 exceed that sum. Formerly, in suits upon bonds 
 for the payment of money only, the plaintiff took 
 judgment for the penalty which was usually double 
 the amount intended to be secured, and issued his 
 execution to collect the sum which was actually 
 due. The judgment now to be rendered, is for da- 
 mages and not for debt, and therefore the plaintiff 
 recovers the amount actually due by the condition
 
 410 JURISDICTION OF JUSTICES' COURTS. 
 
 of the bond and not the penalty. Hence where the 
 condition of a bond is to pay one hundred dollars, 
 the justice has jurisdiction, though the penalty be 
 two hundred dollars And so, where an instalment 
 due upon a bond, does not exceed one hundred dol- 
 lars, the action for its recovery, may be tried by a 
 justice. 
 
 6. An action upon a surety bond taken by them, 
 though the penalty or amount claimed exceed one 
 hundred dollars. 
 
 There are a variety of cases where a justice is 
 authorized to take a surety bond, such as upon is- 
 suing an attachment, or upon the adjournment of a 
 suit, and the like. In such cases, the justice has 
 jurisdiction though the amount claimed exceed on^ 
 hundred dollars, and he may render judgment for 
 
 any sum. 
 
 7. An action upon 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, as hereafter stated, (see post.) 
 
 8. To take and enter judgment on the confession 
 of a defendant, where the amount confessed shall 
 not exceed two hundred and fifty dollars. 
 
 The manner of confessing a judgment before a 
 justice, is prescribed by 2 Rev. Stat. p. 245, §§113, 
 114, 115, 116. 
 
 Having seen the cases and causes of action in 
 which justices of the peace have jurisdiction, it re- 
 mains to be seen in what cases they have not juris- 
 diction. 
 
 It is provided by section 54 of the Code, that no 
 justice of the peace shall have cognizance of a civil
 
 JURISDICTION OF JUSTICES* COURTS. 411 
 
 action in which the people of this State are a party, 
 except for penalties not exceeding one hundred dol- 
 lar's. 
 
 There are many penalties given by statute, for 
 which an action may be maintained in the name of 
 the people, which if they do not exceed one hun- 
 dred dollars, may be sued for before a justice of the 
 peace. Thus, a penalty of twenty-five dollars is 
 imposed by statute upon the captain of a canal 
 boat for omitting to deliver a clearance of his boat to 
 the canal collector. And all such penalties as are 
 not specifically granted by law to the party aggriev- 
 ed, or to any officer, or to or for the use of any 
 county, town or other body politic, or for the use of 
 the poor of any place, or to any person who will 
 prosecute, or which is not otherwise specially appro- 
 priated, must be sued for in the name of the people 
 of the State. For any such penalties a suit may be 
 brought before a justice of the peace, provided the 
 penalty do not exceed one hundred dollars. 
 
 A justice cannot entertain a civil action where 
 the title to lands or real property comes in question, 
 (as to which see post) nor for an assault and battery, 
 false imprisonment, libel, slander, malicious prose- 
 cution, criminal conversation or seduction, {Code, § 
 54, sub. 2, 3,) nor of a matter of account where the 
 sum total of the account of both parties proved to 
 tbe satisfaction of the justice, exceeds four hundred 
 dollars, {ibid., sub. 4,) nor of an action against an 
 executor or administrator, as such. Ibid , sub. 5. In 
 all these actions, a justice can have no jurisdiction, 
 and it cannot be conferred upon him by the consent 
 of the parties.
 
 412 THE COMPLAINT. 
 
 SECTION II. 
 
 Of the Manner of Commencing the Action. 
 
 The suit is commenced by the issuing and service 
 of a summons. No change is made by the Code, 
 as respects the manner of commencing the action, 
 and the mode now prescribed by statute, continues 
 in force. As respects the parties to the action, the 
 same rules prevail as in courts of record. As to 
 which see ante p. 9. The real parties in interest 
 must be made parties plaintiff and defendant, and 
 a suit cannot be brought in the name of or against 
 a fictitious person. 
 
 SECTION III. 
 
 Of the Pleadings. 
 
 There are but two pleadings allowed in courts of 
 justices of the peace. 
 
 L. The complaint by the plaintiff: 
 
 2. The answer by the defendant. Code, § 64, suh 1. 
 
 The pleadings may be oral or in writing, as the 
 parties may elect. If oral, the substance of them 
 must be entered by the justice in his docket; if in 
 writing, they must be filed by him, and a reference 
 to them must be made by the justice in his docket. 
 
 If the complaint is in writing, the answer maybe 
 oral or in writing; so, if the complaint is oral, the 
 answer may be in writing or oral. 
 
 The complaint.] — No particular form is required in 
 stating the cause of action in the complaint. It is 
 
 i
 
 THE ANSWER. 413 
 
 sufficient, if it state in a plain and direct manner, 
 the facts constituting the cause of action. It is not 
 necessary to set out in the complaint the proof of 
 the facts, but the facts themselves, leaving the proof 
 for the trial. Thus, it will be sufficient, to state in 
 the complaint, that the defendant took and carried 
 away, and converted to his own use, twenty bushels 
 of wheat, the propertij of the plaintiff, without stating 
 how the plaintiff acquired the property, or how the 
 defendant took or converted the same. The general 
 rules, appertaining to complaints in courts of record, 
 (as to which see ante p. 99,) are applicable to com- 
 plaints in courts of justices of the peace, and they 
 are required in all cases, to be such "as to enable a 
 person of common understanding to know what is 
 intended," and they must be explicit, plain and 
 direct. If they fail of being explicit, the defendant 
 may, for that cause, demur, as well as because it 
 contains no sufficient cause of action. 
 
 As pleadings are, for the most part, oral in these 
 courts, less skill and particularity is required, than 
 in courts of record ; and liberal indulgence will al- 
 ways be allowed, by way of amendments, for the 
 promotion of substantial justice between the parties. 
 The complaint need not be verified. 
 
 The ansiver.] — The answer, like the complaint, need 
 not be in any particular form ; it must, however, 
 contain a denial of the complaint or of some material 
 part of it, or notice of the facts constituting the de- 
 fence. It sometimes occurs, that the defendant can- 
 not deny the whole or any part of the complaint; in 
 such a case, the defendant may give notice of any 
 facts which go to avoid the cause of action. Thus, 
 in an action on a promissory note, the defendant
 
 414 THE DEMURRER. 
 
 mav give rotice that the cause of action upon the 
 note did not accrue within six years next before the 
 commencement of the action; or, that it has been 
 paid ; or, that the defendant was an infant when he 
 made the note, and the like. In such cases, the de- 
 fendant does not deny the facts set forth in the com- 
 plaint, but set up something in avoidance of them. 
 
 The denial must be general or specific, and the no- 
 tice of new matter, must be plain and direct, and so 
 stated that a person of common understanding may 
 know what is intended The same consequences 
 ensue, from its not being explicit, nunely, the plain- 
 tiff may demur. The same general rales, in respect 
 to answers in courts of record (as to which see ante 
 p. 145,) prevail injustices' courts, except that less par- 
 ticularity is required, and greater indulgence is grant- 
 ed. The answer need not be verified. 
 
 The demurrer.] — Any pleading may be demurred to 
 by the opposite party, that is, the defendant may de- 
 mur to the complaint, or the plaintiff may demur to 
 the answer. There are but /w;o grounds of demurrer 
 allowed in courts of justices of the jcace. 
 
 1. Where a pleading is not sufficiently explicit to 
 enable the party to understand it. 
 
 2. Where it contains no cause of action or de- 
 fence. 
 
 As has been before stated, it is required in every 
 pleading that it should be plain, direct and explicit. 
 No particular form is necessary, but the opposite 
 party must be able to understand from it the nature 
 of the action or the defence. If, therefore, the com- 
 plaint or answer be inexplicit or unintelligible, or 
 obscure, so that the adverse party cannot understand 
 what is meant, the only way in which he can com-
 
 THE DEMURRER. 415 
 
 pel it to be made plain and easy of comprehension, 
 is by demurring to it for that cause. It then be- 
 comes a question for the justice to decide, and if he 
 deem the objection well founded, he will require the 
 pleading to be amended. 
 
 Tile second ground of demurrer is that the com- 
 plaint does not contain a cause of action, or that the 
 facts set up in the answer do not, in law, constitute 
 a defence; for no other reason can a demurrer be 
 put in, in a justice's court. A defect of parties, 
 plaintiff or defendant, is no ground of demurrer, 
 although it appear on the face of the complaint. 
 The objection can only be taken advantage of by 
 answer, upon the trial. So, a want of jurisdiction 
 in the justice, over the person of the defendant or 
 tlie subject of the action; or where the plaintiff has 
 not legal capacity to sue ; or where there is another 
 action pending for the same cause, between the 
 same parties; or where there are several causes of 
 action improperly united. These are not grounds 
 of objection by demurrer, even if they appear by the 
 complaint. The defendant must set up the objec- 
 tion in his answer, and it will be ground of non-suit 
 or verdict on the trial. 
 
 By demurring, the pleading demurred to is ad- 
 mitted to be true, and the sole question to be deter- 
 mined is, whether the objection is or not well taken. 
 
 How put m.]— A demurrer may be oral or in w^rit- 
 ing. It need uDt be in any particular form, nor need 
 it state particularly the grounds of objection any 
 farther than that the complaint or answer is not 
 sufficiently explicit to enable him to understand it,, 
 or that it contains no cause of action or defence. 
 It is not necessary to point out, in the demurrer^
 
 416 THE DEMURRER. 
 
 any more specifically the particular objections relied 
 on. As demurrers in justice courts are put in before 
 the justice, and usually immediately argued and de- 
 cided, the opposite party will be apprized, by the 
 argument of the demurrer, what the objection is. 
 
 Judgment upon demurrer.] — If the justice is of opinion 
 that the objection taken to the pleading is well 
 founded, he must order the pleading demurred to, 
 to be amended, and the party has the right to amend 
 it, accordingly j and this may be done without the 
 payment of any costs. The justice has no right to 
 impose the payment of costs ae a condition of the 
 amendment: nor has the justice any discretion, 
 whether to allow the amendment or not. He ?nust 
 order it to be made. 
 
 If the justice decide the objection to be well 
 founded, and order the pleading to be amended, and 
 tlie party whose duty it is to amend, omit or reluse 
 to amend, the justice will disregard the defective 
 pleading. Thus, if the demurrer be to the com- 
 plaint, and the plaintiff refuse to amend, the justice 
 must render judgment of discontinuance with costs 
 to the defendant; or if the answer be demurred to, 
 and the defendant refuse to amend, the justice must 
 proceed, as if there was no answer, and render judg- 
 ment for the plaintiff. 
 
 If judgment upon the demurrer be against the de- 
 murrer, the justice, if the demurring party be a de- 
 fendant, may permit him to answer the complaint, 
 and the issue formed is thus tried as in other cases. 
 If the plaintiff demur to the answer, and judgment 
 be against the demurrer, the answer is deemed to be 
 sufficient, and the justice proceeds to try the cause, 
 as if no demurrer had been put in.
 
 ACTION OR DEFENCE UPON AN ACCOUNT. 417 
 
 WTiere defendant does not appear and answer.] — In case 
 the defendant does not appear and answer the com- 
 plaint, the justice cannot render judgment without 
 proof of the cause of action. The defendant by- 
 omitting to appear and answer, does^zoHhereby ad- 
 mit the allegations contained in the comphiint, but 
 the plaintiff must, notwithstanding, prove his case 
 in the same manner, and to the same extent as if 
 the defendant had by answer, denied the alleged 
 cause of action, and a judgment without such proof 
 would be irregular, and might be reversed on appeal. 
 
 If, however, the defendant appears, that is, answers 
 to the suit, when called by the justice, but does not an- 
 swer the complaint, the justice may render judgment 
 without proof on the part of the plaintiff. In such a 
 case, the appearance of the defendant and his refu- 
 sal or omission to answer, will be deemed an ad- 
 mission by him of the truth of the matters alleged in 
 the complaint, and the justice will require no fur- 
 ther or other evidence. 
 
 Action or defence founded upon an account, Sfc] — If the 
 cause of the plaintiff's action or of the defendant's 
 defence, consists of an account or an instrument for 
 the payment of money only, it is not necessary to 
 set it out in the complaint or answer, but it will be 
 sufficient, if the party delivers the account or instru- 
 ment to the justice and state to him that the party 
 claims that there is due to him upon such account 
 or instrument, a specified sum which he claims to 
 recover or set off in the action. The justice must 
 retain the account or instrument in his possession 
 and enter in his docket the fact of its delivery to 
 him, and the statement of the amount claimed to 
 
 be due thereon. 
 
 27
 
 418 TITLE TO REAL PROPERTY COMING IN QUESTION. 
 
 Justice to enter or file pleadings,'] — The justice is re- 
 quired to keep a docket of his proceedings in every 
 action commenced or tried before h m. In this, he 
 must enter the pleadings of the parties. He need 
 not write out the complaint and answer in full, but 
 when the pleadings are oral, it is sufficient to enter 
 in his docket the substance thereof, and if they are 
 in writing, the justice may file them, noting the fact 
 in his docket. 
 
 SECTION IV. 
 
 Of title to Real Property coming in Question. 
 
 A justice of the peace cannot try any action, in 
 which the title to real property is involved, rnd 
 whenever the defence of title is interposed or arises 
 on the trial, the justice is ousted of jurisdiction and 
 must dismiss the action. It is necessary, however, 
 that the title, where it arises on the trial should be 
 disputed by the adverse party, otherwise there is no 
 question of title to try, and the justice would have 
 jurisdiction. 
 
 There are but two ways in which the question of 
 title can arise in a justice's court. First, by the an- 
 swer of the defendant, and second, when it appears 
 on the trial by the plaintiff's own showing. 
 
 Answer of title.] — The defendant may, either with 
 or without other matter of defence, set forth in 
 his answer any matter shewing that the title to 
 real property will come in question in the action. 
 Thus, in an action of trespass to lands, the de- 
 fendant may answer that the lands upon which the 
 alleged trespass was committed were his ; or where 
 the trespass consists of passing over lands claimed
 
 THE UNDERTAKING. 419 
 
 by the plaintiff, the defendant may, in his answer, 
 claim a right of way ; and he may also, in any 
 case, deny the plaintiff's cause of action, or set up 
 any other defence thereto, and aver any matter 
 shewing that the title to lands will come in ques- 
 tion, all in the same answer. - Each defence, how- 
 ever, must be stated separately. 
 
 Where the answer alleges that title will com.e in 
 question, it must in all cases he in writing. An oral 
 answer of title is not allowed. It must be signed 
 by the defendant or his attorney, and delivered to 
 the justice. The justice, upon receiving the answer, 
 must countersign it, and deliver it to the plaintiff in 
 the action. Code, § 55. 
 
 The undertaking.'] — The answer of title is inopera- 
 tive, unless an undertaking is delivered to the 
 justice. At the time the answer of the defendant 
 is delivered to the justice, the defendant must also 
 deliver to the justice a written undertaking, executed 
 by at least one sufficient surety, to the effect that if 
 the plaintiff shall, within thirty days thereafter, 
 deposite with the justice a summons and complaint 
 in an action in the Supreme Court for the same 
 cause, the defendant will, within ten days after 
 such deposite, give an admission in writing of the 
 service thereof. If the defendant shall have been 
 arrested in the action before the justice, the under- 
 taking must further provide that the defendant 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. (For form of undertaking, see Appendix.) 
 
 The undertaking, and the sufficiency of the- 
 surety or sureties, must be approved by the justice.
 
 420 DISCONTINUANCE OF ACTION. 
 
 His approval should be endorsed upon the under- 
 taking. The justice may require more than one 
 surety, if in his judgment one be not sufficient. 
 
 Discontinuance of action] — Upon receiving the un- 
 dertaking, duly executed and approved, the justice 
 must discontinue the action ; for which purpose 
 he must enter upon his docket a judgment of discon- 
 tinuance. Each party, upon the discontinuance, 
 must pay his own costs, and the judgment may 
 include the costs ; and the justice is authorized to 
 enforce the payment of the costs by execution 
 upon the judgment of discontinuance. The costs 
 paid by either party, upon the discontinuance of 
 the action, will be allowed to him, if he recover 
 costs in the action to be brought for the same cause 
 in the Supreme Court. If the defendant does not 
 give the undertaking in the form and to the effect 
 as required, the justice may go on and try the cause, 
 notwithstanding the answer of title, and upon the 
 trial the defendant will be precluded from drawing 
 title in question. Code, § 58. 
 
 When title comes in question on the trial.] — The second 
 case in which title may come in question, as above 
 stated, is where it shall appear on the trial by the 
 plaintiff's own shewing. It sometimes occurs that 
 the plaintiff in order to sustain his action, must 
 shew his title. Thus, in actions for trespass to lands 
 where the plaintiff has a constructive and not the 
 actual possession, he cannot sustain the action with- 
 out showing his title, which gives him the construc- 
 tive possession. In such and similar cases, the jus- 
 tice cannot continue the trial, and must dismiss the 
 iBuit, and render judgment against the plaintiff for 
 the costs. There is no way in which a justice can
 
 PROSECUTING SUIT IN SUPREME COURT. 421 
 
 try a disputed question of title, and the consent of the 
 parties will not confer jurisdiction. The title, how- 
 ever, sought to be proved by the plaintiff, must be 
 disputed by the defendant, before the justice is de- 
 prived of jurisdiction, and an admitted title, though 
 it be essential to the recovery, does not take from 
 the justice, jurisdiction over the action. 
 
 Prosecuti?ig suit in Supreme Court.] — The suit having 
 been discontinued by reason of the answer and un- 
 dertaking on the part of the defendant, or dismiss- 
 ed by reason of the plaintiff's drawing title in ques- 
 tion on the trial, the plaintiff's only remedy is to 
 prosecute an action for the same cause in the Su- 
 preme Court. 
 
 A summons and complaint must be drawn as in 
 ordinary actions in courts of record. The complaint 
 however, must be for the same cause of action on 
 which the plaintiff relied before the justice, and it 
 cannot be for any other or further cause of action. 
 A copy of the summons and complaint, 'within thirti/ 
 days after the discontinuance of the action, by the 
 justice, must be delivered by the plaintiff to the jus- 
 tice before whom the suit was pending. The de- 
 fendant is then bound, within ten days after such de- 
 livery to the justice, to give to the plaintiff or his 
 attorney, an admission in writing of the service of 
 the copy of the summons and complaint upon him. 
 The copy delivered to the justice by the plaintiff is 
 taken from the justice by the defendant. 
 
 Within the time required or specified in the sum- 
 mons, the defendant must serve his answer upon 
 the plaintiff's attorney. The answer must be the 
 same as that which the defendant made before the 
 justice, and no new defence can be interposed, nor
 
 422 COSTS. 
 
 can the defendant leave out any defence he made 
 before the justice. 
 
 The action is then proceeded with, and tried like 
 actions originally commenced in the Supreme Court. 
 
 If the defendant omit to give the admission of 
 service, as above stated, the surety will be liable to 
 the amount of one hundred dollars, but not beyond 
 that sum. 
 
 If in the action, before the justice, the plaintiiF 
 complains for several causes of action, and the de- 
 fendant interposes a defence of title to real property 
 as to one of such causes of action, and takes issue 
 as to the rest, and gives the undertaking as required, 
 the justice shall discontinue the proceedings as to the 
 cause of action to which the defence of title is made, 
 ^nd continue the proceedings as to the other causes 
 of action. For the cause of action discontinued, the 
 plaintiff may commence a new suit in the Supreme 
 Court, as in other cases where the defence of title 
 goes to the whole cause of action. 
 
 Costs.] — If the judgment in the Supreme Court be 
 for the plaintiff, he will recover the costs of that 
 court ; and it makes no difference whether the 
 question of title came in issue or not. Tl^e defend- 
 aat having prevented a trial before the justice, and 
 compelled the plaintiff to prosecute his action in the 
 Supreme Court, he must pay the costs if the plain- 
 tiff recovers anything. If the judgment be for the 
 defendant in the Supreme Court, he will be entitled 
 to costs, except that where a verdict is in his favor, 
 the judge who tried the cause must certify that the 
 title to real property came in question on the trial, for 
 unless such was the case, the defendant will not be 
 entitled to costs, though he get a verdict in his favor.
 
 OBTAINING THE PARTICULARS OF AN ACCOUNT. 423 
 
 SECTION V. 
 
 Of Obtaining the Particulars of an Account. 
 
 A party in suing upon an accoant, or in setting it off 
 against the plaintiff's demand, is not bound in the 
 first instance to set out in his complaint or notice 
 the items of his account. But at the time of join- 
 ing issue, the justice may, npon the request of either 
 party, require the items of the account or a specifi- 
 cation of the demand, to be exhibited to the adverse 
 party. He may require the account or demand to 
 be exhibited at the time of the joining of the issue, 
 or at some other stated time. The application for 
 the items of an account, or of the nature of the de- 
 mand, can only be made at the joining of the 
 issue. 
 
 If the party refuse or neglect to exhibit his ac- 
 count or to state the nature of his demand, when 
 required by the justice to do so, he will be precluded 
 from giving any evidence in respect thereto. 
 
 SECTION VI. 
 
 Of Variances and herein of Amendments. 
 
 It is not necessary that every allegation in a 
 pleading should be exactly supported by the proof 
 on. the trial, and any variance which has not actual- 
 ly misled the adverse party to his prejudice, will 
 not affect the judgment. The variance must be 
 mater iul, and it must appear that the adverse party 
 has been prejudiced in prej aring to maintain his
 
 424 AMENDMENTS. 
 
 action or defence. The court must be satisfied that 
 the party has been misled. And where it is alleged 
 that a party has been prejudiced by a variance be- 
 tween the allegations in the pleadings and the proof 
 on the trial, he must satisfy the justice in what re- 
 spect and to what extent he has been misled, or the 
 court will disregard it. 
 
 Notwithstanding the variance may be material 
 and the adverse party may have actually been mis- 
 led by it, the justice may allow an amendment of 
 the pleading, so as to make it conform to the proof 
 (As to amendments, see post) 
 
 Where, however, the allegations of the cause of 
 action or of the defence to which the proof is direct- 
 ed, is wholhj unproved, not in some particular or 
 particulars only, but in its entire scope and mean- 
 ing, it is not deemed 2t variance; still, the justice, 
 though he may not be allowed to disregard it, may 
 permit the pleading to be amended. 
 
 Amendments.'] — In courts of justices of the peace, 
 where no regard is paid to the forms of pleadings, 
 and where for the most part, they are orally put in, 
 ample power is given for amendments. Therefore, 
 any pleading may be amended, and at any time, 
 either before the trial, or during the trial, or even 
 upon appeal, when, by such amendment, substantial 
 justice will be promoted. Code, § C4, suh. 11, 
 
 The power here conferred upon the justice, covers 
 every case of mistake or omission in a pleading. 
 The right to amend rests, however, in the discretion 
 of the court. But it would be difhcnlt to conceive 
 of a case, where a justice, in the exercise of a sound 
 and legal discretion, would be authorised to refuse 
 an amendment.
 
 TERMS. 425 
 
 The main question, therefore, for the justice to 
 determine is, upon what terms, the amendment 
 should be allowed. 
 
 Terras.'] — Ordinarily, amendments in justices' courts 
 are allowed without imposing as a condition the pay- 
 ment of costs to the adverse party. Where, howev- 
 er, the amendment, so changes the cause of action 
 or defence, as will require from the adverse party 
 further and additional proof, and he is put to expense 
 in obtaining other witnesses, the justice may require 
 as a condition of granting leave to amend, that the 
 costs, to be fixed by him, be paid, so where, in con- 
 sequence of an amendment, an adjournment be- 
 comes necessary, the costs of the attendance of wit- 
 nesses may be imposed, and the party amending be 
 required to pay them. 
 
 In addition to imposing^ costs as a condition of 
 granting an amendment, if the justice is satisfied, 
 (and he can only be satisfied by oath) that an ad- 
 journment is necessary to the adverse party in con- 
 sequence of such amendment, the justice must ad- 
 journ the cause. 
 
 If, however, the party wishing an amendment, 
 omits to apply to the justice for leave, until after a 
 witness has been sworn upon the trial, it will be too 
 late, if, in consequence of the amendment, an ad- 
 journment becomes necessary. The party must 
 therefore apply for his amendment before the trial 
 has progressed to the examination of a witness, un- 
 less the amendment be of a nature not to require 
 an adjournment of the trial.
 
 426 TRANSCRIPTS EXECUTION. 
 
 SECTION VII. 
 Of Transcripts. 
 
 If a party obtaining a judgment in a justice's 
 court, wishes to make it a lien upon real property, 
 he must obtain from the justice a transcript of the 
 judgment, which may be filed in any county where 
 the defendant has real property. The transcript 
 must be filed and docketed in the office of the clerk 
 of the county, from which time it becomes a judg- 
 ment of the county court. 
 
 No judgment for a less sum than twenty-five dol- 
 lars, exclusive of costs, can be made a lien upon 
 real property ; nor can any judgment for a less sum 
 be enforced against reaL property in any way. 
 
 SECTION VIII. . 
 
 Of the Execution. 
 
 Executions upon judgments in justices' courts, 
 may be issued immediately upon entering the judg- 
 ment, or at any time afterwards, within five years. 
 It is not necessary to wait any time after the rendi- 
 tion of the judgment, or to furnish any proof to the 
 justice, but the execution may go out immediately. 
 
 The execution must be returnable sixty days from 
 its date.
 
 APPENDIX 
 
 OK 
 
 PRACTICAL FORMS.
 
 PRACTICAL FORMS. 
 
 [ No. I. ] 
 Notice of demand of copy complainL 
 
 [T^tle of cause.] 
 
 To E. F., pltff's Att'y. 
 
 Sir : 
 
 Take notice, that I demand a copy of the coraplftint in this 
 
 action, and the same may be served on me, at my office in the [city 
 
 of Albany.] 
 
 Dated, &c. 
 
 Yours, &c., 
 
 G. H., def'ts Att'y. 
 
 [ No. 2. ] 
 
 Notice of demand to have the action tried in the proper county. 
 
 [Title of cause.] 
 
 To A. B., pltfl^'s Att'y. 
 Sir: 
 
 Take notice, that I demand that the trial of this action be had 
 in the county of Ulster, instead of the county of Orange, as desig- 
 nated in the complaint. 
 
 Dated, &c. 
 
 Yours, &c., 
 
 C. D., deft's Att'v.
 
 430 
 
 PRACTICAL FORMS. 
 
 [ No. 3. ] 
 
 Notice of offer to compromise. 
 
 [Title of ca2/se.] 
 
 To E. F., pltff's Att'y. 
 Sir: 
 
 Take notice, that the defendant hereby offers to let judgment 
 be entered against him, in favor of the plaintiff in this action, for 
 the sum of one hundred and seventy-five dollars ; [or for the de- 
 livery to him of the following described property, being part of the 
 property mentioned in the complaint in this action, viz : (here de- 
 scribe the property the defendant is willing to let j udgment be entered 
 for;) ] or, [for the following described real property, being part of 
 the property mentioned in the complaint in this action, viz : (de- 
 scribe same,) and the like.] 
 
 Dated, &c. 
 
 Yours, &c., 
 
 G. H., Deft's Atfy. 
 
 [ No. 4. ] 
 Notice oj acceptance of offer. 
 
 [Title of cause.] 
 
 To G. H., deft's Att'y. 
 Sir: 
 
 Take notice, that the plaintiff' hereby accepts the offer of the 
 defendant to let judgment be entered against him, for the sum of 
 one hundred and seventy-five dollars, [or as the case may be.] 
 
 Dated, &c. 
 
 Yours, &c. 
 
 E. F., Pltff"'s Att'y.
 
 PBJI^TICAL FORMS. 431 
 
 [ No. 5. ] 
 Demand of copy of an account. 
 
 [Title of cause.] 
 
 To E. F., pltff's Att'y. 
 Sir: 
 
 I hereby demand a copy of the items of the account alleged 
 
 in the complaint in this action. 
 
 Dated, &c. 
 
 Yours, &c. 
 
 G. H., Deft's Att'y. 
 
 [ No. 6. ] 
 
 Copy account furnished. 
 
 [Title of cause.] 
 
 To G. H., Def'ts Att'y. 
 Sir: 
 
 Take notice that the' following are the items of the account al- 
 leged in the complaint in this action, viz : [here copy the items, 
 with dates and amounts,] 
 
 Yours, &c., 
 
 E. F., Pltf's Att'y. 
 
 [ No. 7. ] 
 
 Affidavit annexed. 
 
 [Title of cause.] 
 
 Cayuga county. — A, B., plaintiff in this action, [or C. D., 
 agent of the plaintiff, or E. F., attorney for the plaintiff,] being 
 sworn, says that he believes the foregoing copy account to be true. 
 Sworn, &c. 
 
 A. B.
 
 432 PRACTICAL FORMS. 
 
 [ No. 8. 1 
 
 j^ffidavit to move to change place of trial. 
 
 [Title of cause.] 
 
 County of Oneida. — C. D., defendant in this action, being 
 sworn, says, that the place designated in the complaint for the trial 
 of this action is the county of Rensselaer : that deponent has fully 
 and fairly stated the case in this action to E. F., his counsel there- 
 in, who resides in, &c., and that he has a good and substantial de- 
 fence on the merits, as he is advised by his said counsel, after such 
 statement as aforesaid, and verily believes to be true. 
 
 And deponent further says, that he has fully and fairly stated to 
 his said counsel the facts he expects to prove by N, J., of &c., and 
 J. K, of &c., and R. S., of &c., and that the testimony of each 
 and every one of said witnesses is material and necessary for this 
 deponent on the trial of said action, as he is advised by his said 
 counsel, and as he verily believes to be true, and that without the 
 testimony of each and every one of said witnesses, he cannot safely 
 proceed to the trial of this action, as he is also advised by his said 
 counsel and verily believes to be true. 
 
 And this deponent further says, that this action is brought to 
 recover damages upon a contract for the erection of a block of eight 
 stores in the city of Utica, and that it is alleged in the complaint 
 that the same are not done according to the contract in a good and 
 workmanlike manner, but are unskilfully and improperly built ; 
 and ihat the defence thereto is that said buildings are skilfully and 
 properly built, and according to the terms of the said contract. 
 And deponent says, that the said contract was made in the said 
 city of Utica, and that the before named witnesses assisted depo- 
 nent in the erection thereof as workmen, and that the said N. J. was 
 deponent's foreman, and took the principal charge of said buildings 
 during the construction thereof. [State any other facts showing 
 ho7o the witnesses may be material and necessary, and why the place 
 of trial should he changed.] 
 
 Sworn, &c. 
 
 C. D.
 
 PRACTICAL FORMS. 433 
 
 I No. 9. I 
 
 Notice of motion to change place of trial. 
 
 [Title of cause J] 
 
 ToE. F., Pltff's Atfy,. 
 
 Sir: 
 
 Take notice that upon the affidavit (with a copy of which you 
 are herewith served), I shall move this court at a special term thereof 
 to be held at the city hall, in the city of Albany, on the last Tues- 
 day of November next, at the opening of the court, or as soon there- 
 after as counsel can be heard, for an order changing the place of 
 trial of this action from the county of Rensselaer to the county of 
 Oneida, and for such further or for such other order as the court 
 may grant. 
 
 Dated, &c. 
 
 G. H., Deft's Att'y. 
 
 I No. 10. ] • 
 Order changing place oftriaL 
 
 \ Title of cflMse.] 
 
 On reading and filing an affidavit and notice of motion, with, 
 proof of due service thereof, on the plaintiff's attorney, and after hear- 
 ing Mr. G. H., of counsel for the defendant, and Mr. E. F., of counsel 
 for the plaintiff [or no one appearing to oppose], it is ordered that 
 the place of trial of this action be, and the same hereby is, changed 
 from the county of Rensselaer to the county of Oneida. 
 
 [ No. 11. ] 
 Notice of trial and inquests 
 
 {Title of cause.] 
 
 Take notice that the above cause will be brought to trial, and 
 an inquest taken therein, at a circuit court appointed to be held in 
 and for the county of Erie^ at the court house in the city of Buffalo, 
 
 28
 
 434 PRACTICAL FORMS. 
 
 on the first Monday in April next, at the opening of the court, or as 
 
 soon thereafter as counsel can be heard. 
 
 Dated, &c. 
 
 Yours, &c.. 
 
 To 
 
 A. B., Pltfl^s Att'y. 
 
 [ No. 12. ] 
 Affidavit of merits. 
 
 [Title of cause.] 
 
 County of Albany. — C. D., the defendant in the above entitled 
 action, being duly sworn, doth depose and say, that he has fully and 
 fairly stated the case in the above action to E. F., his counsel in 
 this action, who resides in the city of Albany, in the said county 'y 
 and that he has a good and substantial defence upon the merits 
 thereof, as he is advised by his said counsel, after such statement 
 made as aforesaid, and verily believes to be true. 
 Sworn, &c, 
 
 C. B. 
 
 [ No. 13. ] 
 Notice to produce papers on trial.- 
 
 {Title of cause.] 
 
 Take notice, that you are hereby required to produce, on the 
 
 trial of this case, a certain promissory note (or receipt), made (or 
 
 signed) by E. F. (here describe the paper) ; or in default thereof, 
 
 parol (or " secondary") evidenc-e will be given of its contents. 
 
 Yours, &c. 
 
 G. H.» Att'y for Deft. 
 To 
 
 J.R., Pltflf's Att'y.
 
 PRACTICAL FORMS. 435 
 
 [ No 14. ] 
 
 Notice of application for judgment, defendant having appeared. 
 
 [Title of cause.^ 
 
 Take notice that I shall apply to the special term of this court 
 at the city of Albany on the first Monday of September next at ten 
 o'clock A. M., or as soon thereafter as counsel can be heard, for the 
 relief demanded in the complaint in this action. 
 
 Dated &c. 
 
 Yours, &c., 
 
 A. B., Pltff's Att'y. 
 ToC. D., Deft AttV. 
 
 [ No. 15. ] 
 
 Notice of motion for judgment, frivolous demurrer. 
 
 [Title of cause.] 
 
 Take notice that I shall apply to the special term of this court 
 
 to be held at the court house in the city tf Rochester on the first 
 
 Monday of October next, at ten o'clock A. M., or as soon thereafter 
 
 as counsel can be heard for judgment in the above entitled action, 
 
 on account of the frivolousness of the demurrer. 
 
 Dated &c., 
 
 Yours &c., 
 
 To C. D., Deft's Att'y. 
 
 A. B., Pltfl!''s Att'y. 
 
 [ No. 16. ] 
 
 Notice of examination of party as a witness. 
 
 [Title of cause.] 
 
 Take notice that I will examine C. D. the defendant in this 
 action, before E. F., a Justice of this court (or county judge of the 
 county of Greene) at his office in the village of Catskiil on the 
 tenth day of June inst. ^t 10 o'clock, A. M. 
 
 Dated &c. 
 
 Yours, &c. 
 
 A. B., Pltfl^s Att'y. 
 
 To A. R., Deft's Att'y. 
 
 (and) C. D., defendant.
 
 436 PRACTICAL FORMS. 
 
 [ No. 17. ] 
 Notice of application to have costs inserted in entry of judgment. 
 
 [Title of cause.} 
 
 To A. B., Esq., Deft's Ati'y. 
 Sir: 
 
 Please to take notice,* that I shall apply to C. D., clerk of the 
 
 county of , at his office in , on the 
 
 day of next, to insert in the entry of judgment, in this 
 
 action, the within [or above] sum of the charges for costs therein. 
 Dated, &c. 
 
 Yours, &c., 
 
 E. F., Pliff's Att'y. 
 
 [ No. 18. ] 
 Another form, 
 
 [Like the above to the (*) then add] that the costs, of which the 
 
 within is a copy, will be adjusted by C. D., clerk of Dutchess 
 
 county, at his office in the village of Poughkeepsie, on the first 
 
 day of September next, at nine o'clock in the forenoon. 
 
 Dated, &c. 
 
 Yours, &c., 
 
 E. F., PltfT's. Att'y. 
 
 [ No. 19. ] 
 Summo?is against absent or concealed defendant. 
 
 [Title of cause.} 
 
 To the defendant : 
 You are hereby summoned and required to answer the complaint 
 in this action, which is filed in the office of the clerk of the county 
 of Greene, and serve a copy of your answer on me, at my office in 
 the village (f Catskill, within twenty days after the service of this 
 summons on you, exclusive of the day of such service. And if 
 you fail to answer the said complaint within the time aforesaid, the
 
 PRACTICAL FORMS. 437 
 
 plaintiff will take judgment against you for the sum of o?ie hic7idred 
 dollars, with interest from the Jirst day of January, 1849, besides 
 costs 
 
 Dated, &c. 
 
 E. F.,PItff's Att'y. 
 
 [ No. 20. ] 
 
 Sumvions. — {for relief.) 
 
 [l^tle of cause.] 
 
 To C. D., defendant. 
 Sir: 
 
 You are hereby summoned and required to answer the com- 
 plaint in this action, of which a copy is herewith served upon you, 
 and serve a copy of your answer upon me, at my office in the vil- 
 lage of Poughkeepsie, within twenty days after the service hereof, 
 exclusive of the day of such service ; and if you fail to answer the 
 complaint as aforesaid, the plaintiff will apply to the court for the 
 relief demanded in the complaint. 
 
 Dated, &c. 
 
 E. F., PltfT's Att'y. 
 
 [ No. 21. ] 
 
 Summons for ynoney demand on contract. 
 
 [Tittle of cause.'] 
 To 
 You are hereby summoned and required to answer the com- 
 plaint in this action, and to serve a copy of your answer to the said 
 complaint on the subscriber at his office, No. 80 State-street, Al' 
 bany, within twenty days after the service of this summons on you, 
 exclusive of the day of such service ; and if you fail to answer the 
 said complaint within the time aforesaid, the Plaintiff in this ac- 
 tion will take judgment against you for the sum of one hundred 
 and tAventy-five dollars with interest from the fifth day of January, 
 one thousand eight hundred andforty-nine, besides costs of suit. 
 Dated &c. 
 
 C. A. D. Plaintiff 's Attorney..
 
 438 PRACTICAL FORMS. 
 
 [ No. 22. ] 
 
 Summons, in an action arising on contract for the recovery of money 
 
 only, complaint not served. 
 
 [Title of cause-l 
 
 To C. D., defendant. 
 
 You are summoned to answer the complaint of A. B., plaintiff, 
 a copy of which is hereto annexed, [or,] which will be filed in the 
 office of the clerk of the county of [Dutchess] and serve a copy 
 thereof on me at [my office in the village of Poughkeepsie] within 
 twenty days after service hereof, exclusive of the day of service, or 
 the plaintiff* will take judgment against you for the sum of [five 
 hundred dollars] with interest thereon from the day of 1S4 
 
 Dated &c. 
 
 E. F. Plaintiff's Att'y. 
 
 [ 23. ] 
 
 Affidavit to 'procure order for pullication against a defendant who 
 
 cannot he personally served. 
 
 [Title of cause.] 
 
 County of Schoharie. E. G., attorney for the plaintiff in this 
 action being sworn, says that a summons has heen issued against 
 the defendant in this action, and that the plaintiff has a cause of 
 action against the defendant upon an account for merchandise sold 
 and delivered by the plaintiff to the defendant, amounting to the 
 sum cf two hundred and forty-one dollars, [or, upon a promissory 
 note, briefly describing it, or any other cause of action embraced in 
 ^ 125 of the Code, briefly describiJtg it,] [or, that the action is for the 
 foreclosure of a mortgage upon real properly, and that E. F., one 
 of the defendants, has a lien upon the mortgaged premises by judg- 
 ment^ and deponent further says that the said defendant is a resi- 
 dent of this State, and has property therein ; that as he is informed 
 by the annexed affidavit of G. H., sheriff of Schoharie county, the 
 said defendant cannot, after due diligence, be found within this 
 
 s 
 State. 
 
 Sworn, &c 
 
 E. G.
 
 PRACTICAL FORMS. 439 
 
 [ No. 24. ] 
 
 Affidavit of sheriff, or other person, who has had the summons to 
 
 'Serve. 
 
 [Title of caifse.] 
 
 Schoharie County. G. H., sheriff of said county, being sworn, 
 says that the summons in this action, addressed to the above named 
 defendant, was delivered to deponent by E. F., the plaintiff's 
 attorney, to be served on the said defendant. That ascertaining 
 that said defendant resided in the town of Gilboa, in said county, 
 he went to his residence, in said town, and found the dwelling 
 house closed, with a padlock upon the outside door ; that he exam- 
 ined the interior of the house, as far as he was able, through the 
 windows, and discovered that there was no furniture therein, but 
 the premises appeared as if they had recently been occupied. That 
 deponent being unable to discover any person in or about the pre- 
 mises, proceeded to a Mr. A., who resided about half a mile from 
 said premises, and who was the nearest neighbor thereto, and was 
 told by the said A. that the said defendant was seen by him at his 
 hcuse on the evening of the Friday preceding, and that the next 
 morning he had left with his family and furniture, since which 
 time he had not returned. Deponent has since been informed by 
 several persons, and particularly by Mr. B. and Mr. C, that said 
 defendant had left in the night, and had gone into the State of 
 Connecticut with his fanily. And deponent believes that the said 
 defendant has departed from this State, with intent to defraud his 
 creditors (or to avoid the service of the summons in this suit). 
 
 Sworn, &c. 
 
 G. H. 
 
 [ No. 25. ] 
 
 Order for publication of the summons against a defendant who 
 
 cannot he personally served. 
 
 [Title of action.^ 
 
 It appearing to my satisfaction, by the affidavit of A. B., that a 
 cause of action exists against the above named defendant, [or, 
 that the action relates to real property in this state, and that he is
 
 440 PRACTICAL FORMS. 
 
 a necessary or proper party to this action,] and that such defendant 
 cannot be found in this state, I do order that the summons in this 
 action be served on such defendant by the publication thereof, once 
 in each week for [six] weeks in the newspaper printed in the coun- 
 ty of [Oneida,] called the [ ,] and also in the newspaper 
 printed in the county of [Erie,] called the [ ,] [or in the 
 state paper.] And I direct that a copy of the summons and com- 
 plaint in this action be forthwith deposited in the post office, di- 
 rected to the said defendant, at his place of residence. [This may 
 be omitted where the defendant's residence is not known, or can- 
 not with reasonable diligence be ascertained.] 
 Dated, &c. 
 
 E. F., Justice of Sup. Ct. 
 
 [ No. 26. ] 
 Affidavit of service of stC7nmo?is. 
 
 [Title of cause.] 
 
 Rensselaer county. — A. B., of the city of Troy, in said county, 
 being sworn, says, that on the first day of July, 1849, he served a 
 copy of the summons issued in this cause, and which is hereto an- 
 nexed, upon CD., the defendant therein, and to whom the same 
 is addressed, and whom deponent knew to be the person men- 
 tioned and described in the said summons as defendant therein, 
 by delivering such copy to, and leaving the same with said de- 
 fendant, at [his dwelling house,] [or at his blacksmith's shop,] [or 
 at his store,] in the tcwn of Sandlake in said county. 
 
 Sworn before me, &c. 
 
 A. B. 
 
 [ No. 27. ] 
 Affidavit for attachment. 
 
 [Title of cause.] 
 
 County of Essex. A. B.. plaintiff in this action, [or C. £>., the 
 agent for the plaintiff in this action] being sworn, says, that the
 
 PRACTICAL FORMS. 441 
 
 above named defendant is indebted unto this deponent \orthe above 
 named plaintiff] in the sum of [Jive hundred dollars,] upon a pro- 
 missory note, for five hnndred and seventy-one dollars, dated May 
 1, 1849, payable to the plaintifTor order, sixty days after date, [or 
 for goods ^c. sold, or ivork and labor done ^c, as the case may be;] 
 that a summons in the said action has been issued [or is about to be 
 issued] to be served on the said defendant in the said action. 
 
 And deponent further says, that the said defendant is a [foreign 
 corporation, having its office and place of business at Burlington in 
 the state of Vermont,] [or that the said defendant is not a resident 
 of this state, but a resident of Amherst in the state of Massachu- 
 setts,] [or that the said defendant has departed from this state with 
 intent to defraud his creditors, (or to avoid the service of a summons 
 upon him.) [Here state the facts and circumstances upon which the 
 allegation that the defendant has departed ^c. is founded, as that he 
 has lately beeii engaged in converting his property into vioney, or has 
 sold the goods in his store, or his stock and farmiiig utensils, for a 
 less price than their real value, or has sold off his hotisehold furniture 
 and has been busily engaged in collecting in all debts a7id money oiv- 
 ing to him, and that he left his family on Friday last, stating to de- 
 ponent and others that he was going to the city of New- Fork to pur- 
 chase goods; that since that timt he has not returned to his said res- 
 idence; that deponent has inquired of his wife where said defendant 
 had gone to, a)id when he would return, and was told that he had 
 gone to New- York city, and would be back in a day or two; that de- 
 po}i€?it has been informed by J. K. of SfC. that he saw said defendant 
 on Monday last at Buffalo, and that said defendant informed said J, 
 R. that he was then going to the state of Wisconsin, and intended to 
 picrchase a tract of land in that slate, and after he was located, he 
 should send for his Jamily. {Annex the affidavit of the informant.) 
 State a?iy other facts or circumstances indicatiyig an intention to ab- 
 scond,] or that the said defendant keeps himself concealed within 
 this state to defraud his creditors or avoid the service of a summons 
 upon him. [State the facts a7id circumstances upon which the alle- 
 gatiofi is founded.] 
 Sworn, &c.
 
 442 PRACTICAL FORMS. 
 
 [ No. 28. ] 
 Undertaking fo?- attachment. 
 
 [Title of cause.] 
 
 Whereas, an application has been made by the above named 
 plaintiff, to the Honorable Seward Barculo, one of the justices of 
 the Supreme Court, for a warrant of attachment against the pro- 
 perty of the above named defendant, as [a non-resident of this state, 
 or a foreign corporation, or, an absconding or concealed debtor.] 
 Now therefore we, N. P. of &c., machinist, and R. S. of &c., cabi- 
 net maker, undertake, that if the said defendant recovers judgment 
 in this action, the plaintiff shall pay all costs that may be awarded 
 to the said defendant, and all damages which he may sustain by 
 reason of the said attachment, not exceeding the sum of [two hun- 
 dred and fifty dollars.] 
 
 Dated, &c., 
 
 R. S. 
 [Add affidavit of justification and proof or acknowledgment as in 
 Nos. 33, 34.] 
 
 [ No. 29. ] 
 Warrant of attachment. 
 
 The people of the State of New-York, to the sheriff of the coun- 
 ty of Ulster greeting : 
 
 Whereas, an application has been made to the officer signing 
 this warrant, by A. B., for an attachment against the property of C. 
 D., setting forth by affidavit, that a cause of action exists against the 
 said C. D., and the grounds thereof, and that the said C. D. is [a non- 
 resident of the State of New-York,] or is [a foreign corporation,] 
 or [has departed from this State, with intent to defraud his credi- 
 tors, or to avoid the service of a summons,] or keeps himself con- 
 cealed within this State, with intent to defraud his creditors, or to 
 avoid the service of a summons on him,] and the said plaintiff 
 having also given the undertaking required by law : 
 
 Now you are hereby commanded to attach and safely keep all 
 the property of the said C. D., within your county, and that you 
 proceed hereon in the manner required of you by law.
 
 PRACTICAL FORMS. 443 
 
 Given under my hand, at the city of Albany, this tenth day of 
 August, in the year one thousand eight hundred and forty-nine. 
 
 A. J. PARKER, Just. Sup. Court. 
 
 [ No. 30. ] 
 
 Notice of application to discharge attachment. 
 
 [Title of cause.] 
 
 To E. F., Plff's Att'y., 
 Sir, 
 
 Take notice that I shall apply to the Hon. Ira Harris, [or to G. 
 H. county judge of, &c.,] at &c., on &c., for an order discharging 
 the attachment in this action. 
 Dated, &c. 
 
 Yours, &c., 
 
 J. K., Def'ts Att'y. 
 
 [ No. 31. ] 
 Undertaking thereon. 
 
 [Title of cause.] 
 
 Whereas, a warrant of attachment, has been granted against the 
 property of the above defendant, now therefore, we E. F., of &c., 
 farmer, and G. H. of &c., tanner, both freeholders, will on demand 
 pay to the plaintiff, the amount of the judgment that may be re- 
 covered against the defendant in the said action, not exceeding 
 however the sum of five hundred dollars, [double the sum claimed 
 by the plaintiff in the complaint.] 
 
 Dated, &c. _ ^ 
 
 E. F 
 
 G. H.
 
 444 PRACTICAL FORMS. 
 
 \ 
 I 
 
 [ No. 32. ] . 
 
 Undertaking on granting injunction. 
 
 [Title of cause.'] 
 
 The above named plaintiff having applied to the Hon. John W. 
 
 Edmonds, a justice of this court, [or to the Hon. Lyman Tremain, 
 
 county judge of Greene county,] for an injunction restraining the 
 
 defendant from cutting, destroying or disposing of any wood or 
 
 timber growing or standing upon the premises described in the 
 
 complaint in this action, as therein particularly mentioned, we, 
 
 E. F., of, &c., grocer, and G. H., of, &c., merchant, undertake that 
 
 the plaintiff shall pay to the defendant so enjoined such damages 
 
 not exceeding the sum of [five hundred dollars] as he may sustain 
 
 by reason of such injunction, if the court shall finally decide that 
 
 the said plaintiff is not entitled thereto. 
 
 Dated, &c. 
 
 E. F. 
 
 G. H. 
 
 [ No. 33. ] 
 Affidavit of justification. 
 
 [City and] county of New York. — E. F. of the city of New York, 
 and G. H. of the same place, being each duly sworn, doth each for 
 himself depose and say, that he is a resident and [freeholder or 
 householder] within this state, and is worth the sum of five hun- 
 dred dollars over and above all his debts and responsibilities which 
 he owes or has incurred. 
 
 Sworn, &c. 
 
 [ No. 34. ] 
 
 Proof or acknowledgement annexed. 
 
 City and county of New York. — On this first day of August, 
 1849, personally appeared before me E. F. and G. H., to me well 
 known to be the individuals described in and who executed the
 
 PRACTICAL FORMS. 445 
 
 foregoing undertaking, and severally acknowledged that they ex- 
 ecuted the same. 
 
 R. P., Commissioner of Deeds. 
 
 [ No. 35. ] 
 
 Injunction by order. 
 
 It appearing satisfactorily to me by the affidavit of A, B., the 
 plaintiff, [or of G. H., agent for the plaintiff,] that sufficient grounds 
 therefor exist : I do hereby order that the defendant [naming him 
 or them, if any particular one or more] do refrain from cutting, 
 destroying, or in any way disposing of any wood or timber now 
 standing or growing upon that certain farm of land lying and being 
 in the town of White Plains, and county of Westchester, [describe 
 premises,'] [or from committing any destruction or waste upon said 
 premises,] [or from the building and erection of any house, store or 
 other building against the premises of the plaintiff, or in any man- 
 ner, obstructing the windows and light of the said plaintiff,] until 
 the further order of this court, and in case of disobedience to this 
 order, you will be liable to the punishment therefor prescribed by 
 law. 
 
 Dated, &c. 
 
 J. K., Justice, or 
 
 L. M., County Judge. 
 
 [ No. 36. ] 
 Undertaking, for injunction against a corporation. 
 
 \Title of the cause."] 
 
 Whereas, A. B. has applied for an injunction to suspend the 
 general and ordinary business of the defendant, which is a corpo- 
 ration. Now, therefore, we, I. N., of, &c., merchant, and L. P., 
 of, &c., farmer, undertake that the plaintiff shall pay all damages, 
 not exceeding the sum of [one thouband dollars], which such cor- 
 poration shall sustain, by reason of the injunction, if the court shall 
 finally decide that the plaintiff was not entitled to such injunction. 
 
 Dated, &c. ^ ,^ 
 
 I. N. 
 
 L. P.
 
 446 PRACTICAL FORMS. ; 
 
 [ No. 37. ] 
 
 Affidavit of sureties annexed. 
 
 [Title of cause.} 
 
 Wayne county.— I. N., of, &c., and L. P., of, &c., being each 
 
 duly sworn, doth each for himself depose and say, that he is a 
 
 householder for freeholder] of the state of New-York, and is worth 
 
 the sum of [one thousand dollars] over and above all debts and 
 
 responsibilities he owes or has incurred. 
 
 Sworn, &c. 
 
 I. N. 
 
 L. P. 
 
 [ No. 38. ] 
 
 Approval of judge endorsed. 
 
 I approve of the within undertaking, as to its form and manner 
 
 of execution, and do certify that each of the persons named therein 
 
 as sureties, is worth the sum of [one thousand dollars,] over and 
 
 above all debts and responsibilities he owes or has incurred. 
 
 Dated, &;c. 
 
 J. R., Justice Sup. Ct. 
 
 [Add proof of acknowledgement as in No. 34.] 
 
 [ No. 39. ] 
 Notice of motion to dissolve injicnction. 
 
 [Title of cause.] 
 
 To E. F. PltfT's Att'y. 
 
 Sir: 
 
 Take notice, that I shall move this court, at a special term 
 thereof, to be held at the City Hall, in the city of Albany, on the 
 last Tuesday of October next, at the opening of the court, for an 
 order dissolving [or modifying] the injunction granted and served 
 in this action, or for such other relief as the court may grant, which
 
 PRACTICAL FORMS. 447 
 
 motion will be founded upon the complaint and answer in this 
 cause. 
 
 Dated &c. 
 
 Yours, &c. 
 
 G. H. Deft's Att'y. 
 
 [ No. 40. ] 
 
 Affidavit on claim of delivery of personal property. 
 
 County of Yates: — A. B. (or E. F. the agent or clerk of the) 
 Plaintiff in this action, being duly sworn, says, that (he is the 
 owner) or (that the said A. B. is the owner,) or (entitled to the pos- 
 session) of the following personal property claimed in this action, 
 that is to say : (one span of grey mares,) (or one mahogany sofa, 
 with tufted hair-cloth cushion and back, and ten French mahogany 
 chairs, with tufted hair-cloth seats,) or (one single buggy waggon, 
 with leather top and painted black,) that the said property is wrong- 
 fully detained from the plaintiff by (E. F. the agent, or servant, 
 orsonof)the defendant herein. That the alleged cause of the 
 detention thereof according to this deponent's best knowledge, infor- 
 mation and belief, is as follows : (a pretended sale of the said pro- 
 perty to said defendant by one G. H.) or (that the same is held by 
 virtue of a levy, under an execution in favor of J. K. against L. 
 M.) that the said property has not been taken for a tax, assessment 
 or fine, pursuant to a statue, or seized under an execution or attach- 
 ment against the property of the plaintiff, and that the actual value 
 of said property, according to the best knowledge and belief of this 
 deponent, is (one hundred dollars.) 
 
 [ No, 41. ] 
 
 Undertakiyig on the part of the plaintiff to obtain the delivery of 
 
 personal property. 
 
 [THtle of cause.] 
 
 Whereas, the above named plaintiff has commenced [or is about 
 to commence] an action against the above named defendant for the 
 recovery of certain personal property mentioned and described in,
 
 448 PRACTICAL FORMS. 
 
 the affidavit of said plaintiff, made for such purpose, to witt one 
 
 mahogany sofa and twelve mahogany chairs. Now therefore, we, 
 
 A. B., of the town of Little Falls, in the county of Herkimer, and 
 
 C. D., of the same place, do acknowledge ourselves to be bound in 
 
 the sum of one hundred and twenty-five dollars for the prosecution 
 
 of the said action for a return of the said property to the defendant, 
 
 if return thereof be adjudged, and for the payment to him of such 
 
 sum as may, for any cause, be recovered against the plaintiff. 
 
 Dated, &c. 
 
 (Signed) A. B. 
 
 CD. 
 
 [ No. 42. ] 
 Endorsement of approval by sheriff. 
 
 I approve of th-e sureties named in the within undertaking. 
 
 Dated, &c. 
 
 A. B., sheriff. 
 
 [Add justification of sureties, as in No. 33, and acknowledgment, 
 
 as in No. 34.] 
 
 [ No. 43. ] 
 
 Notice to sheriff, reqiiiri7ig deliver?/ of personal property. 
 
 To the sheriff of the county of Ulster. 
 Take notice, that I hereby require you to take the personal pro- 
 perty mentioned and described in the within affidavit, and deliver 
 the same to A. B., the plaintiff. 
 Dated, &c. 
 
 Yours, &€,, 
 
 E. F., Pltff's Att'v. 
 
 [ No. 44. ] 
 
 Notice to sheriff of claim to personal property by third person. 
 
 To J. K., sheriff of Ulster county. 
 Take notice, that I claim the personal property mentioned and
 
 PRACTICAL FORMS. 449 
 
 aescribed in the within [or annexed] affidavit, and require the de- 
 livery thereof to me. 
 
 Dated, &c. 
 
 Yours, &a., 
 
 R, S., claimant. 
 
 [ No. 45. ] 
 Affidavit of claim by third person, 
 
 County of Ulster : — R. S. being sworn, says that he is the owner 
 of (here describe property), taken by the sheriff of said county; 
 that he purchased the same from one J. P., of the town of Kings- 
 ton, in said county, on the first day of May last, and paid therefor 
 the sum of one hundred dollars in cash. 
 
 Sworn, &C. 
 
 { No. 46. ] 
 Notice^ by sheriff, of claim by third person, 
 
 [Title of ca^ise.] 
 
 To C. D., Ptff's Att'y. 
 Sir: 
 
 Take notice, that A. B. claims tlie property taken by me in 
 this cause, and that I require to be indemnified by the plaintiflf 
 against such claim ; and in default of such indemnity, I shall not 
 deliver such property to the plaintiff, or keep the same in my pos- 
 session. 
 
 Dated, &c. 
 
 J. N., sheriff. 
 
 [ No. 47. ] 
 
 Vudertaking to indemnify sheriff, on claim of property by third 
 
 person. 
 
 f Title of cause."] 
 
 Whereas G. H. claims to be the owner of, and have the right 
 
 29
 
 450 PRACTICAL FORMS. 
 
 to the possession of certain personal property, to wit [here describe 
 it], which has been taken by J. R., sheriff of the county of Greene. 
 Now, therefore, we, A. M., of Catskill, grocer, and P. S., of same 
 place, farmer, do undertake and agree to indemnify the said J. K., 
 against such claim. 
 Dated, 6rc. 
 
 A.M. 
 
 P. S. 
 
 [^Add justification of sureties, as in No. 33, and acknowledgement. 
 as in No. 34.] 
 
 [ No. 48. ] 
 
 Notice of excepti7ig to sureties in action for delivery of -personal 
 
 property. 
 
 [ Title of cause."] 
 
 To J. K., Sheriff of, &c. 
 
 Take notice that I except to the sufficiency of the sureties, to the 
 
 undertaking of the plaintiff in this action. 
 
 Dated, &c^ 
 
 Yours, &c. 
 
 E. F., DefVs Atty 
 
 [ No 49. ] 
 Notice to sheriff requiring return of property to defendant.. 
 
 [Title of cause.] 
 
 To E. H., sheriff, &c. 
 I hereby require the return to me of property taken by you in. 
 
 this action. 
 
 Yours, &c. 
 
 e..D., Def-t. 
 
 \
 
 PRACTICAL FORMS. 45 I 
 
 [ No. 50. ] 
 
 UndertaPing thereupon. 
 
 [Title of cause.] 
 
 Whereas C. D., the defendant, requires the return to him of 
 certain personal property, taken by E. H., sheriff of, &c., in this 
 action, to wit [here describe property]. Now, therefore, we, E. F., 
 of, &c., farmer, and G. H., of, &c., merchant, are bound in the sum 
 of five hundred dollars [double value of the property as stated in 
 plaintiff's affidavit] for the delivery thereof to the plaintiff, if deliv- 
 ery thereof be adjudged, and for the payment to him of such sum 
 as may, for any cause, be recovered against the defendant. 
 
 Dated, &c. 
 
 Yours, &c. 
 
 E. F. 
 G. H. 
 
 [Add affidavit of justification of sureties, as iri No, 33, and proof, 
 or acknoioledgnient, as in No. 34.] 
 
 [ No. 51. ] 
 
 Affidavit to hold to bail for wrongs. 
 
 [Title of cause.] 
 
 County of Rensselaer: — A. B., plaintiff in this suit, being duly 
 sworn, says, that he has good cause of action therein against the de- 
 fendant, arising upon the following facts, viz: that on the tenth 
 day of May last, at the town of Nassau, in said county, the said 
 defendant, without any cause or provocation from deponent, com- 
 mitted a violent assault upon deponent, whereby deponent was 
 much bruised and injured ; [or that the defendent wrongfully took 
 from the possession of the plaintiff the following personal property, 
 (here describe it) and converted it to his own use ;] or, that the de- 
 fendant, being in the possession of the following personal property, 
 (here describe it) wrongfully detained the same from the plaintiff, 
 who is entitled to the possession thereof;] or any other cause of 
 action mentioned in ^ 179 of the Code, and this deponent believes he 
 is justly entitled to recover damages for the grievance above men- 
 tioned, to the sum of one thousand dollars. And this deponent
 
 452 PRACTICAL FOKMS. 
 
 further sa3's, that he has commenced [or is about to commence] an 
 action for the recovery of the said damages, in the Supreme Court, 
 And further this deponent says not, &c. 
 
 Sworn, &c. A. B. 
 
 [ No. 52. ] 
 
 Undertaking for order of arrest. 
 
 [Title of cause.'] 
 
 Whereas, A. B. the plaintiff in the above entitled action, has 
 made application to the honorable William T. M'Coun, one of the 
 Justices of the Supreme Court [or to J. N,, county judge of Queens 
 county] for an order to arrest C. D. the defendant in said action. 
 Now, therefore we, E. F. of &c., farmer, and G. H., of &c., gentle- 
 man, undertake that if the said defendant recover judgment, the 
 plaintiff shall pay all costs that may be awarded to the defendant, 
 and all damages which he may sustain by reason of the arrest, not 
 exceeding the sum of [one hundred dollars.] 
 
 Dated &c. 
 
 E. F. 
 G. H. 
 
 {Add afidavit of justification as in No. 33, a7id proof or acknoto- 
 
 ledgmejit as iii No. 34.] 
 
 [ No. 53. ] 
 
 Order of Arrest. 
 
 [Title of cause.] 
 
 To the sheriff of the county of Rensselaer : 
 
 You are required forthwith to arrest the defendant in this ac- 
 tion and hold him to bnil in the sum of five hundred dollars, and 
 to return this order to E. F., plaintiff's attorney at the city of Troy 
 on the first day of September, one thousand eight hundred and for- 
 ty-nine. 
 Dated &c. 
 
 IRA HARRIS, 
 
 _ Justice Sup. Ct.
 
 PRACTICAL FORMS. 453 
 
 [ No. 54. 1 
 
 Undertaking of bail. 
 
 {Title of cause.'] 
 
 Whereas, C. D. the above named defendant, has been arrested in 
 this action. Now, therefore, we E. F. of the &c. grocer, and G. H. 
 of the &c. blacksmith, do undertake, that the said defendant shall 
 at all times render himself amenable to the process of the court, du- 
 ring the pendency of the said action, and to such as may be issued 
 to enforce the judgment therein. 
 
 Dated &c. 
 
 E. F. 
 G. H. 
 
 [^Add justification of sureties, as in No. 33, and proof or acknou?- 
 
 ledgment as in No. 34.] 
 
 [ No. 55. ] 
 
 The like where the defendant has been arrested in an action to recootr 
 the possession of personal property. 
 
 [Title of cause.) 
 
 Whereas, the above entitled action has been brought to recover the 
 possession of personal property, which is alleged to be unjustly de- 
 tained, and which is as follows : (here describe the property,) and 
 whereas C. D. the defendant in such action has been arrested there- 
 in. Now, therefore, we, E. F., of &c. farmer, and G, H. of &c., 
 innkeeper, do acknowledge ourselves to be bound in the sum of 
 [^double the value of the property as stated in the affidavit] for the de- 
 livery of the said personal property to the plaintiff, if such delivery 
 be adjudged, and for the payment to him, of such sum as may, for 
 any cause be recovered against the defendant. 
 
 Dated &c. 
 
 E. F. 
 
 G. H.
 
 454 PRACTICAL FORMS. 
 
 [ No. 56. ] 
 
 Notice of excepting to hail. 
 
 [Title of cause.'] 
 
 To E. F., Defts Att'y. 
 Sir: 
 
 Take notice that I do not accept the bail put in by the? de- 
 fendant, in this action. 
 Dated, &c., 
 
 Yours, &c., 
 
 J. K, Ph'f Att'y. 
 
 [ No. 57. ] 
 
 Certificate of deposite of money in lieu of bail. 
 
 [Title of cause.] 
 
 This is to certify that I have received from the defendant the i 
 sum of one thousand dollars, as a deposit, being the amount men- 
 tioned in the order of arrest in this action. 
 Dated, &c. 
 
 J. K., Sheriff of 
 
 Albany county. 
 
 I 
 
 [ No. 58. ] 
 Certificate by clerk. 
 
 [Title of cause.] 
 
 I certify that J. K., sheriff of Albany county, has this day paid 
 into court the sum of one thousand dollars, being the amount men- 
 tioned in the order of arrest in this action. 
 Dated, &c. 
 
 {^Duplicate.) 
 
 O. P., Clerk of 
 
 Albany county. 
 
 I
 
 5>11ACTICAL FORMS. 
 
 455 
 
 [ No. 59. ] 
 Notice of motion to vacate or modify order of arrest. 
 
 [Title of cause-l 
 
 To E. F., Pltfs Att'y. 
 Sir: 
 
 . Take notice, that I shall move this court, at the special term 
 thereof, to be held at the court house in the city of Utica, on the 
 first Monday of October next, at the opening of the court, to vacate 
 [or modify] the order of arrest in this action, [or to mitigate the 
 amount of the bail,] and for such other or for such further relief 
 as the court may grant, which motion will be founded upon the 
 affidavit, upon which the order of arrest was granted, [or upon the 
 affidavits, copies of which are herewith served on you.] 
 Dated, &c. 
 
 Yours, 
 
 A. M.,def'ts Att'y. 
 
 [ No. 60. ] 
 
 Notice of bail justifying. 
 
 [Title of cause.] 
 
 ToE. F., Pltfs Att'y. 
 Sir: 
 
 Take notice, that the bail-in this action will justify before J. 
 K., a justice of this court, [or county judge of Albany county,] or 
 L. M., [a justice of the peace of Albany county,] at &c., on the 
 tenth day of August next at ten o'clock in the forenoon. 
 Dated, &;c. 
 
 Yours, &c., 
 . N. P., Def'ts Att'y, or 
 
 ' ' R. S., Sheriff- of 
 
 ' Albany county.
 
 456 PRACTICAL FORMS. 
 
 [ No. 61. ] 
 Notice of other bail. 
 
 [Title of cause.] 
 
 To E. F,, Pltfs Atty. 
 Sir: 
 
 Take notice, that John Stiles, hatter, of the city of Albany^ 
 and Peter Nokes, merchant, of the same place, who are proposed 
 as bail in the places of James Jackson and John Doe, the bail al- 
 ready put in, will justify, (same as in last form.) 
 
 [ No. 62. ] 
 
 Certificate of surrender. 
 
 [Title of cause.] 
 
 I, certify that C. D., the defendant in this action has this day sur- 
 rendered himself to me [or been surrendered to me by his bail,], 
 and is now in my custody. 
 
 Dated, &c. 
 
 Yours &c., 
 
 A. K. 
 Sheriff of Monroe co. 
 
 [ No. 63. ] 
 Notice to plaintiff that hail will be exonerated, 
 
 [Title of cause.] 
 
 To J. K. Pltff's Att'y. 
 Sir : 
 
 Take notice, that upon the certificate, a copy whereof is hereto 
 
 annexed, we shall apply to the Hon. M. Watson, a Justice of thi» 
 Court, at his chambers in the village of Catskill, for an order exon- 
 erating us from all liability as bail for the defendant in this 
 
 action. 
 Dated &c. 
 
 Yours, &c. 
 
 A. P. and 
 C. L. bail.
 
 PRACTICAL FORMS. 457 
 
 [ No. 64. ] 
 
 Order exonerating bail. 
 
 [Title of cause.] 
 
 Proof of due service of notice of an application to me to exone- 
 rate the bail in this action, on the plaintiff's attorney, having been 
 furnished to me, I do hereby order that the bail of the defendant 
 in this action be exonerated. 
 
 Dated &c. 
 
 J. K., Justice Sup. Ct. 
 
 [ No. 65. ] 
 Complaint for moneys generally. 
 
 StrPREME Court. — County of Ulster. 
 A. B., Plai7itiff, 
 
 agt. 
 
 C. D., Defendant. 
 
 The complaint of the above named plaintiff respectfully shows 
 to this Court, that the defendant is indebted to the plaintiff for 
 moneys by the plaintiff, paid for the defendant in the sums at or 
 about the dates to the persons and under the circumstances follow- 
 ing, that is to say; the sum of one hundred dollars paid to one 
 James Jackson, on the first day of May, 1849, for a school bill 
 against said defendant : the sum of ten dollars to one Peter Nokes, 
 on the first day of February, 1849, for taxes due from the defend- 
 ant, which several sums the plaintiff paid at the request of the de- 
 fendant. The plaintiff claims the sum of one hundred and ten 
 dollars, with interest from the above dates respectively, for which 
 
 the plaintiff demand judgment. 
 
 J. K., Plff's Att'y. 
 
 [ No. m. 1 
 Complaint on Promissory Note, against all the parties. 
 
 [Title of cause, same as in No. 65.] 
 
 The complaint of the above named plaintiff respectively show to 
 this court, that on the first day of July, one thousand eight hun-
 
 458 PRACTICAL FORMS. 
 
 dred and forty-nine, the defendant C. D., at the city of Buffalo, 
 made his certain promissory note in writing, whereby he promised 
 to pay to E. F., or order, the sum of one thousand dollars, sixty 
 days after the date thereof, and that the payee thereof endorsed 
 the said note to the defendant G. H., who endorsed the same to the 
 plaintiff that when the said note became due, it was duly pre- 
 sented for payment to the defendant C. D., and payment thereof 
 was duly demanded, but the same was not paid ^ whereof due 
 notice was given to the defendants E. F. and G. H. And the 
 plaintiff further says that he is still the owner and holder of th« 
 said note, and that the defendants are indebted to him upon the 
 same, in the sum of one thousand dollars principal, together with 
 interest thereon, from the fourth day of August, one thousand eight 
 hundred and forty-nine, for which, principal sum and interest, 
 the plaintiff demands judgment against the said maker and en- 
 dorsers of the said note respectively. 
 
 J, R., plff's Att'y. 
 
 [ No. 67. ] 
 
 Complaint en a 'promissory note against endorser. 
 
 \Tllle of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that on the first day of May one thousand eight hun- 
 dred and forty-nine, one E. H. made his promissory note in writing, 
 whereby he promised to pay the defendant C. D. or order, the sum 
 of one hundred dollars, six months after date, with interest, and 
 the defendant afterwards endorsed the said promissory note, and 
 transferred the same to the plaintiff. And the pi intiff further says 
 that when the said promissory note became due and payable, the 
 same was duly presented to the maker thereof for payment, and 
 payment thereof was demanded of the said maker who neglected 
 to pay the same ; whereof the defendant was duly notified. Yet 
 the riainliff says that the said defendant has not paid the said 
 promissory note, but remains indebted to the plaintiff thereupon in 
 the sum of one hundred dollars, besides interest, for which sum 
 with interest from the first day of May one thousand eight hundred 
 and forty-nine, the plaintiff demands judgment. 
 
 E. G. plff's Att'y.
 
 PRACTICAL FORMS. 459 
 
 [ No. 68. ] 
 Compltzint on a promissory note, endorsee against maker. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that the defendant on the eighth day of January one 
 thousand eight hundred and forty-nine, made his promissory note 
 in writing, whereby four months after the date thereof he promised 
 to pay one E. F., or order, the sum of five hundred dollars, with in- 
 terest, and the said payee thereof endorsed the said note to the 
 plaintiff; that the plaintiff is the lawful holder of the said promis- 
 sory note, and the defendant is justly indebted to him therefor in 
 the sum of five hundred dollars, principal, together with interest 
 thereon from the eighth day of May one thousand eight hundred 
 and forty-nine, for which principal sum and interest the plaintiff 
 demands judgment. 
 
 C. K. Plff's Att'y. 
 
 [ No. 69. ] 
 Complaint on promissory note, payee or bearer against maker. 
 
 [Title of cause as in No. 65.] / 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court that the defendant heretofore at Ballston, made his pro- 
 missory note in writing, bearing date on the first day of January, 
 one thousand eight hundred and forty-eight, whereby he promised 
 to pay the plaintiff (or E. F. or bearer) the sum of one hundred 
 dollars with interest, and although the said note became due and 
 payable before the commencement of this action, yet the defendant 
 has not paid the same. And the plaintiff further says that he is 
 now the lawful owner and holder of said note, and that the defend- 
 ant is justly indebted to him thereupon in the sum of one hundred 
 dollars principal, together with interest from the first day of January, 
 1848. 
 
 Wherefore the plaintiff demands judgment against the defend- 
 ant for the said principal sum and interest. 
 
 G. H. Plff's Att'y.
 
 460 PRACTICAL FORMS. 
 
 [ No. 70. ] 
 
 Complaint for moiieypaid, S/'C. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that on or about the first day of January one thousand 
 eight hundred and forty eight, the plaintiff paid, laid out and ex- 
 pended for the defendant under the following circumstances, that is 
 to say, an account owing by the defendant to E. F , or (taxes owing 
 by the defendant), or (a school bill owing by the defendant), the 
 sum of one hundred dollars, which the defendant was and is legally 
 bound to pay to the plaintiff. Yet the plaintiff says that the defend- 
 ant has not paid the same, but remains indebted to the plaintiff 
 thereupon in the sum of one hundred dollars principal, together 
 with interest thereon from the first day of January, one thousand 
 eight hundred and forty-eight, for which principal sum and interest 
 
 the plaintiff demands judgment. 
 
 G. H., Plt'ff's Att'y- 
 
 [ No. 71. ] 
 
 Complaint on bill of Exchayige against acceptor. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that on the first day of July, one thousand eight hun- 
 dred and forty-seven, C. D., at the city of Utica, made his bill of 
 exchange in writing, and directed the same to E. F., at the city of 
 New-York, and thereby required the said E. F., to pay to G. H., or 
 order, the sum of five hundred dollars, at sight, and then and there 
 delivered the said bill to the said G. H. (who transferred the same 
 by endorsement thereon to the plaintiff) ; and the said plaintiff 
 further says, that on the tenth day of July, one thousand eight hun- 
 dred and forty-seven, the said bill was duly presented to the defend- 
 ant for acceptance, and that the defendant thereupon duly accepted 
 the same. And the plaintiff further says that he is now the lawful 
 ownrr and holder of the said bill, and the defendant is justly in- 
 debted to him therefor in the sum of five hundred dollars principal, 
 together with interest thereon, from the tenth day of July one thou-
 
 PRACTICAL FORMS. 461 
 
 sand eight hundred and forty-seven, for which principal sum and 
 
 interest the plaintiff demands judgment. 
 
 J. K., Plt'ff's Att'y. 
 
 [ No. 72. ] 
 
 Complaint on inland hill of exchange agai7i$t drawer and eyidorsers 
 
 for non-accepta?ice. 
 
 [Title of cause us in No. 65.] 
 
 The CQMiplaint of the above named plaintiff respectfully shows 
 to this court, that on the first day of March, one thousand eight hun- 
 dred and forty-nine, the defendant, C. D., at the city of Albany, 
 made his bill of exchange in writing, and directed the same to one 
 J. K., at the village of Little Falls, and thereby required the said 
 J. K., sixty days after the date thereof, to pay to the defendant, E. 
 F., the sum of one thousand dollars; and then and there delivered 
 the said bill to the defendant E. F., who endorsed the same to the 
 defendant, G. H., who endorsed the same to the plaintiff; and the 
 said plaintiff further says that the said bill was, on the third day of 
 March, one thousand eight hundred and furty-nine, duly presented 
 to the said J. K. for acceptance, and that the said J. K. then de- 
 clined and refused to accept the same, whereof the defendants re- 
 spectively had due notice. And the plaintiff further says that he is 
 now the lawful owner and holder of the said bill, and the defend- 
 ants are justly indebted to him therefor in the sum of one thousand 
 dollars principal, together with interest thereon from the first day 
 of May, one thousand eight hundred and forty-nine, for which prin- 
 cipal sum and interest the plaintiff demands judgment against the 
 said drawer and endorsers of the said bill respectively. 
 
 G. 0., Plt'ff's Att'y. 
 
 [ No. 73. ] 
 
 Complaint on i?iland bill of exchange agairist eiidorser for non- 
 acceptance. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectful!)'' shows 
 to this court, that on the first day of January, one thousand eight*
 
 462 PRACTICAL FORMS. 
 
 hundred and forty-eight, E. F., at the city of Buffalo, made his 
 bill of exchange in writing, and directed the same to G. H., at the 
 city of Albany, and thereby required the said G. H. to pay to J. K. 
 the sum of five hundred dollars at sight, and then and there 
 delivered the said bill to the said J. K., who endorsed the same to 
 the plaintiff', (or to L. M., who endorsed the same to the plaintiff';) 
 and the said plaintiff' further says, that the said bill was duly pre- 
 sented to the said G. H. on the tenth day of January, 1848, for 
 acceptance, and that the said G. H. declined and refused to accept 
 the same, whereof the defendant, J. K., had due notice. And the 
 plaintiff' further says that he is now the lawful owner and holder 
 of the said bill, and the defendant is justly indebted to him therefor 
 in the sum of five hundred dollars principal, together with interest 
 thereon from the tenth day of January, one thousand eight hundred 
 and forty-eight, for which principal sum and interest, the plaintiff 
 
 demands judgment. 
 
 N. O., Pltfi'-s Att'y. 
 
 [ No. 74. ] 
 
 Complaint on inland hill of exchange against endorser for rwU' 
 
 'payment. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff", respectfully show*s 
 to this Court, that on the first day of January one thousand eight 
 hundred and forty eight, E. F., at Penn Yan, in said county, made 
 his bill of exchange in writing, and directed the same to C. D. at 
 the city of Albany, and thereby required the said C. D. to pay to 
 the plaintiff' the sum of five hundred dollars, at sight, and then and 
 there delivered the said bill to the said C. D. who endorsed the 
 same to the plaintiff", [or to G. N. or order, who endorsed the 
 same to the plaintiff"] and tht said paintiff" further says that the said 
 bill was duly presented to and accepted by the said C. D. and that 
 when the said bill became due and payable according to the tenor 
 and eff'ect thereof, the same was duly presented to the said accept- 
 or at the city of Albany, on the tenth day of January 1849, for pay- 
 ment, and payment thereof was then and there duly demanded, but 
 the said acceptor then and there wholly declined and refused to pay 
 the same, whereof the defendant C. D. had due notice. And the 
 plaintiff' further says that he is now the lawful owner and holder of
 
 PRACTICAL FORMS. 463 
 
 the said bill, and the defendant is justly indebted to him therefor 
 
 in the sum of five hundred dollars principal, together with interest 
 
 thereon from the tenth day of January one thousand eight hundred 
 
 and forty-eight, for which principal sum and interest, the plaintiff 
 
 demands judgment. 
 
 J. K., Pltff's Att'y. 
 
 [ No. 75. 1 
 
 Complaint on inland, hill of exchange by payee against drawer on 
 
 non-payment. 
 
 [Title of caiise as in No. 66.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to th:s court, that on the first day of January, one thousand eight 
 hundred and forty-eight, the defendant, at Goshen in said county, 
 made his bill of exchange in writing and directed the same to E. 
 F. at the city of New- York, and thereby required the said E. F. ta 
 pay to the plaintiff the sum of five hundred dollars, sixty days after 
 date, and the said plaintiff further says that afterwards when the 
 said bill became due and payable according to the tenor and effect 
 thereof, the same was duly presented to the said E. F. for payment, 
 at his office in the city of New-York, and payment thereof was then 
 and there duly demanded, but the said E. F. then and there wholly 
 declined and refused to pay the same, Avhereof the defendant had 
 due notice. And the plaintiff further says that he is now the law- 
 ful owner and holder of the said bill, and the defendant is justly 
 indebted to him therefor in the sum of five hundred dollars princi- 
 pal, together with interest thereon from the first day of January, 
 one thousand eight hundred and forty-eight, for which principal 
 sum and interest, the plaintiff demands judgment. 
 
 G. H., Plff's Att'y. 
 
 [ No. 76. ] 
 
 Complaint on foreign hill of exchavge against endorser for non- 
 
 acceptance. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows
 
 464 PRACTICAL FORMS. 
 
 to this court, that on the first day of January, one thousand eight 
 hundred and forty-eight, E. F., at the city of Troy, made his bill of 
 exchange in writing and directed the same to G. H. at the city of 
 New York, and thereby required the said G. H. to pay to J. K. of 
 the city of New-York, the sum of five hundred dollars, ten days 
 after sight or [at sight,] and then and there delivered the said bill 
 to the said J. K. who endorsed the same to the plaintiff, or [to L. 
 M. who endorsed the same to the plaintiff,] and the said plaintiff 
 further says that the said bill was, on the tenth day of January, one 
 thousand eight hundred and forty-eight, duly presented to the said 
 G. H. for acceptance, and that the said G. H. then declined and 
 refused to accept the same, whereupon the said bill was then duly 
 protested for non-acceptance thereof, of all which the defendant J. 
 K. had due notice. And the plaintiff further says that he is now 
 the lawful owner and holder of the said bill, and the defendant is 
 justly indebted to him therefor in the sum of five hundred dollars 
 principal, together with interest thereon from the tenth day of Jan- 
 uary, one thousand eight hundred and forty-eight, for which princi- 
 pal sum and interest, the plaintiff demands judgment. 
 
 N. O., Plff's Att'y. 
 
 [ No. 77. ] 
 
 Complaint for work and labor. 
 
 [Title of catise as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that the above named defendant is indebted to him 
 for the work, labor and services, of the plaintiff and his servants, 
 for the defendant at brick making, at or about the following days 
 and times to wit: from the tenth day of August, 1848, to the tenth day 
 of August, 1849, at the sum of twentj^-five dollars per month, 
 amounting in the whole to the sum of three hundred dollars, for 
 which sum the plaintiff demands judgment. 
 
 E. F., Plff's Att'y.
 
 PRACTICAL FORMS. 4C5 
 
 [ No. 78. ] 
 
 Complaint for talcing personal property. 
 
 [Title of cause as in No. QS.] 
 
 The complaint of the above named plaintiff respectfully shows to 
 this court, that on or about the first day of January, one thousand 
 eight hundred and forty-nine, at the county of Tioga, the defendant 
 forcibly and wrongfully took from the possession of the plaintiff and 
 carried away the following goods and chattels, that is to say, one 
 grey mare, one set harness, six sheep, and five cows, which goods 
 and chattels were of the value of two hundred dollars. Wherefore 
 the plaintiff demands that the defendant may be adjudged to pay 
 the plaintiff damages to the sum of two hundred dollars, wiih in- 
 terest from the first day of January, one thousand eight hundred 
 and forty-nine. 
 
 E. F.,Pllff's Att'y. 
 
 [ No. 79. ] 
 
 Complaint on attorney's bill. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that the above named defendant is indebted to him in 
 the sum of one hundred dollars for the work, labor, and attendance 
 of the plaintiff, by him done and bestowed as the attorney and 
 solicitor of the defendant, and at his request, and for money laid 
 out and paid by the plaintiff for the defendant at his request; and 
 the plaintiff says that the items of his account are as follow : At- 
 torney's costs and disbursements in an action in favor of E. F., against 
 the defendant, on a promissory note, twenty-five dollars; counsel 
 fee on trial of cause in favor of defendant, against G. H., twenty- 
 five dollars; costs and disbursements, and counsel fee, in cause of 
 defendant against J. K., fifty dollars. Wherefore, the plaintiff de- 
 mands judgment against the defendant for the sum of one hundred 
 
 dollars. 
 
 L. M., Pltff's Att'y. 
 
 30
 
 466 PRACTICAL FORMS. 
 
 [ No. 80. ] 
 
 Complaint to recover possession of personal property. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows to 
 this court, that the defendant has become possessed of, and wrong- 
 fully detains from the plaintiff the following goods and chattels of 
 the plaintiff that is to say, one bay horse, with a star in his forehead, 
 one single wagon, with leather top, painted black, one set single 
 harness, brass mountings. Wherefore the plaintiff demands that 
 the defendant may be adjudged to deliver to the plaintiff the said 
 goods and chattels, and to pay the plaintiff damages for the de- 
 tention thereof, to the sum of one hundred dollars and that the 
 same may be forthwith delivered to the plaintiff. 
 
 J. K., Pltff's Att'y. 
 
 1 
 
 [ No. 81. ] 
 
 Complai7it for detainiiig personal property. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to the court, that the above named defendant became possessed of 
 the following goods and chattels of the plaintiff, that is to say ; one 
 pair of red cattle, six milch cows, one heifer, of the value of two 
 hunderd dollars, and being so possessed thereof, the defendant 
 on or about the first day of August, one thousand eight hundred 
 and forty-nine, converted the said goods and chattels to his own 
 use ; wherefore the plaintiff demands that the defendant may be 
 adjudged to pay the plaintiff damages to the sum of two hundred 
 dollars, with interest from the first day of August, one thousand 
 
 eight hundred and forty-nine. 
 
 J. K., Pltf's Att'y. 
 
 [ No. 82. ] 
 
 Complaiyit to recover possession of real estate. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court that he has lawful title as the owner in fee simple to
 
 PRACTICAL FORMS. 467 
 
 the following described real estate situate in the town of Bern, in the 
 county of Albany, (here describe premises, with sufficient certainty 
 to enable an officer to deliver possession ;) and that the defendant is 
 in possession of the said real estate and unlawfully withholds pos- 
 session of the same from the plaintiff. 
 
 Wherefore the plaintiff demands that the defendant may be ad- 
 judged to surrender the possession of the said real estate to the 
 plaintiff, and to pay to the plaintiff damages for the unlawful with- 
 holding of the same, to the sum of three hundred dollars. 
 
 E. F., Pltf's Att'y. 
 
 [ No. 83. ] 
 
 Complaint for an account. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that the above named defendant is indebted to him 
 in the sum of one hundred dollars, together with interest thereon, 
 on an account for goods, wares and merchandizes sold and deliver- 
 ed to the defendant, or (for law books, law blanks and other sta- 
 tionery.) 
 
 Wherefore the plaintiff demands judgment for the said sum of 
 one hundred dollars, with interest from the first day of January^ 
 one thousand eight hundred and forty-eight. 
 
 E. F., Pltf's Att'y. 
 
 [ No. 84. ] 
 Complaint for goods sold at different times. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that the plaintiff sold and delivered to the defendant 
 the following described goods and chattels, at the times and for the 
 prices below specified as to each article, that is to say : five yards 
 of broad cloth on the first day of January, 1848, for the price of 
 twenty-five dollars; one horse on the tenth day of January, 1848,
 
 468 PRACTICAL FORMS. 
 
 for the price of one hundred dollars; and one covered one-horse 
 wagon, on the last mentioned day, for the price of one hundred and 
 fifteen dollars ; amounting, in the whole, to the sum of two hun- 
 dred and forty dollars, upon account of which said goods and 
 chattels the defendant remains indebted to the plaintiff in the sum 
 of one hundred dollars, together with interest thereon. Where- 
 fore, the plaintiff demands judgment for the said sum of one 
 hundred dollars, with interest from the tenth day of January, 1848. 
 
 E. F., PltfT's Ati'y. 
 
 [ No. 85.] 
 
 Complaint for worky labor, and materials furnished. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 
 to this court, that the above named defendant is indebted to him 
 
 for the work, labor, and services of the plaintifT and his servants, 
 
 for the defendant at sundry times, and also for materials and other 
 
 necessary things supplied by the plaintiff in and about such work, 
 
 labor, and services for the defendant, as follows : The building of 
 
 a barn by the plaintiff for the defendant, and the materials used in 
 
 such building; and the plaintiff claims therefor the sum of one 
 
 hundred and fifty dollars, for which sum the plaintiff demands 
 
 judgment. 
 
 E. F., Phff's att'y. 
 
 [ No. 86. ] 
 
 Complaint for goods sold, where the price is agreed upon. 
 
 [Title of cause as in No. 65.] 
 
 The complaint of the above named plaintiff respectfully shows 
 to this court, that on or about the first day of January, one thousand 
 eio-ht hundred and forty-eight, he sold and delivered to the above 
 named defendant the following described goods and chattels, at the 
 respective prices below specified for each article of the same, that 
 is to say : Five yards of broad cloth, at the price of five dollars 
 per yard ; one piece, containing thirty yards, of satinett cloth, for 
 ihe price of six shillings per yard ; one barrel of pork, for the price
 
 PRACTICAL FORMS. 469 
 
 of twelve dollars ; the prices of which said goods and chattels, 
 together amounted to the sum of fifty-nine dollars and fifty cents, 
 which the defendant promised to pay the plaintiff as follows, to wit, 
 on the first day of July, one thousand eight hundred and forty-eight ; 
 yet the plaintiff says that the defendant has not complied with his 
 said promise, but, on the contrary thereof, remains indebted there- 
 upon in the sum of fifty-nine dollars and fifty cents, for which sum, 
 with interest from the first day of July, one thousand eight hundred 
 and forty-eight, the plaintiflf demands judgment. 
 
 E. F., ptff's Att'y. 
 
 [ No. 87. ] 
 Complaint for the foreclosure of a mortgage.. 
 
 Supreme Court. — County of Suffolk. 
 
 A. B., plaintiff 
 agH 
 C. D., E. F., G. H., and oth's, dfts. 
 
 The complaint of the above named plaintiff respectfully show 
 to this court, that the defendant C. D. being indebted to the 
 plaintiff in the sum of five thousand dollars for the purpose of se- 
 curing the payment of the same, with interest thereon, on the first 
 day of May, one thousand eight hundred and forty-eight, executed 
 and delivered to the plaintiff his bond, sealed with his seal, where- 
 by he bound himself in the penalty of ten thousand dollars, upon 
 condition that the same should be void if the said defendant should 
 pay to the plaintiff the said sum of money first above mentioned 
 as follows : On the first day of May, one thousand eight hundred 
 and forty-nine, with interest, and as collateral security for the pav- 
 ment of the said indebtedness, the said defendant on the same day 
 executed, duly acknowledged and delivered to the plaintiff a mort- 
 gage, whereby he granted, bargained and sold to the plaintiff the 
 following described premises with the appurtenances thereto, that 
 is to say, [here take in description of mortgaged premises] with the 
 same condition as the said bond, and in case of default in the pay- 
 ment of the said sum of money or any part thereof, the plaintiff was. 
 empowered to sell the said mortgaged premises in due form of law, 
 and out of the moneys arising from the sale to pay the said sum of 
 money and interest, with the costs and expenses of the proceedings, 
 thereupon, the surplus to be returned to the mor'gagor.
 
 470 PRACTICAL FORMS. 
 
 And the plaintiff further shows that the said mortgage was duly 
 recorded in the office of the clerk of the county of Dutchess, on 
 the first day of May, one thousand eight hundred and forty-eight. 
 
 And the said plaintiff further shows that the said defendant 
 has failed to comply with the condition of the said bond and 
 mortgage by omitting to pay the sum of five thousand dollars which 
 became due on the first day of May, one thousand eight hundred 
 and forty-nine, and there is now justly due to the plaintiff upon 
 the said bond and mortgage the sum of five thousand dollars with 
 interest thereon from the first day of May, one thousand eight hun- 
 dred and forty-eight. 
 
 And the plaintiff further shows that E. F. and G. H have or 
 claim to have some interest in, or lien upon, the said mortgaged 
 premises, or some part thereof, which interest or lien, if any, has 
 accrued subsequently to the lien of the said mortgage. 
 
 The plaintiff therefore demands that the defendants and all 
 persons claiming under them subsequent to the commencement of 
 this suit, may be barred and foreclosed of all right, claim, lien and 
 equity of redemption in the said mortgaged premises, that the said 
 premises may be decreed to be sold according to law ; that the 
 moneys arising from the sale may be brought into court ; that the 
 plaintiff may be paid the amount due on the said bond and mort- 
 gage with interest, to the time of such payment, and the costs and 
 expenses of this suit so far as the amount of such moneys properly 
 applicable thereto will pay the same ; and that the defendant C. 
 D., may be adjudged to pay any deficiency which may remain 
 after applying all of said moneys so applicable thereto ; and that 
 the plaintiff may have such other or further relief, or both, in the 
 
 premises, as shall be just and equitable. 
 
 * J. K., Pllff's Att'y. 
 
 [ No. S8. ] 
 Notice of object of action where complaint is not served in mortgage 
 
 cases. 
 
 {Title of cause as in No. 87.] 
 To John Doe. 
 Sir: 
 
 The object of the above action, in which a summons is here- 
 with served upon you, is to foreclose a mortgage executed by C. D.,
 
 PRACTICAL FORMS. 471 
 
 of the town of Cairo, in the county of Greene, to A. B., or (or to 
 
 E. F.,) on the tenth day of June, 1848, for the sum of one thousand 
 
 dollars (and which was duly assigned by the said E. F. to the said 
 
 A. B.,) with interest from the tenth day of June, 1848, upon the 
 
 following described premises (here insert a brief description of the 
 
 property described in the mortgage), and no personal claim is made 
 
 against you. 
 
 Dated, &c. 
 
 G. H., Plt'ff's Att'y. 
 
 [ No 89. ] 
 
 Notice of pendericy of action. 
 
 \_Tille of cause as in No. 87.] 
 
 Notice is hereby given, that an action has been commenced in 
 this court upon a complaint of the above named plaintiff, against the 
 above named defendant, for the foreclosure of a mortgage, bearing 
 date the tenth day of June, one thousand eight hundred and forty- 
 eight, executed by C. D., of the town of Cairo, in the county of 
 Greene, to the said A. B., [or to E. F., who duly assigned the same 
 to the said A. B.,] and recorded in the office of the clerk of the county 
 of Greene, on the tenth day of June, one thousand eight hundred 
 and forty-eight, at three o'clock in the afternoon: and that the mort- 
 gaged premises in the last mentioned county, affected by the said 
 foreclosure, were, at the time of the commencement of this action, 
 and at the time of filing this notice, situated in the town of Cairo, 
 ^ in the last mentioned county, and are described in the said mortgage 
 as follows, to wit : (here insert description of property as contained 
 in the mortgage.) 
 
 Dated, &c. 
 
 Yours, &:c. 
 
 G. H., Plt'ff's Atty. 
 
 [ No. 90. ] 
 
 Affidavit on which to apply for an order of reference, in a foreclosure. 
 
 suit. 
 
 [Title of cause as in No. 87.] 
 
 Albany county. E. F., of the city of Albany, being duly sworn, 
 says, that the summons in this action was personally served on all
 
 472 PRACTICAL FORMS. 
 
 of the defendants, on the first day of August, 1849 [as appears by 
 the certificate of G. H., sheriff of said county, or by the affidavit of J. 
 K., hereto annexed], [that L. M., who is an infant defendant, has 
 put in a general answer by his guardian] [that N. O. and R. S., 
 two of said defendants, are absentees, and have not answered the q 
 complaint in this action], and that no answer has been put into the 
 complaint in this action [or no answer denying any material allega- 
 tion contained m the said complaint so as to require a reply thereto] 
 by any of the said defendants. 
 
 Sworn, &c. _ 
 
 E. F. 
 
 [ No. 91. ] 
 
 Order of reference in foreclosure suit, all due, no infants or absent 
 
 defendavits. 
 
 At, &c. (as in No. 92.) 
 
 [Tide of cause as in No 87.]. 
 
 On filing proof of the personal service of the summons in this 
 action upon all of the defendants therein, and that no answer to 
 the complaint has been put in by any of said defendants, on motion 
 of E. F., attorney for the plaintiff', it is ordered, that it be referred 
 to J. K., of the village of Catskill, to compute and ascertain the 
 amount due to the plaintiff' for principal and interest on the bond 
 and mortgage set forth in said complaint, and report the same lo 
 this court. |^ 
 
 [ No. 92. ] 
 
 Order of referencein a foreclosure suit, all due, and absent defendants. 
 
 At a special term of the Supreme Court, held for the State of New- 
 York, in the [third] judicial district, at '.he city of Albany, on the 
 first Monday of September, one thousand eight hundred and 
 forty-nine. 
 
 Present — Amasa J. Parker, Justice. 
 
 [Title of cause as in No. 87.] 
 
 It appearing that the summons in this action has been personally 
 served upon the defendant, C. D., and that the same has been
 
 PRACTICAL FORMS. 473 
 
 served on the defendant E. F., who is a non-resident of this State, 
 (or who cannot be found therein,) by the publication thereof as 
 required by law and the order of this court, and no answer to the 
 complaint in this action having been put in by any of said defend- 
 ants ; and the period for said defendants to answer having expired, 
 on filing proof of such service, and that no answer has been put 
 in, on motion of J. K., attorney for the plaintiff, it is ordered, that 
 it be referred to L. M., residing in the city of Troy, to compute and 
 ascertain the amount due to the plaintiff on the bond and mortgage 
 mentioned in the complaint in this action, and to examine the plain- 
 tiff on oath, as to any payments that may have been made to him, 
 or to any person for his use on account of the demand mentioned 
 in said complaint, and which ought to be credited thereon ; and to 
 take proof of the facts and circumstances stated in said complaint, 
 and to report the amount due, and also such proofs and examina- 
 tions to this court with all convenient speed. 
 
 [ No. 93. ] 
 
 Order of reference in a foreclosure suit, all due, infant defendants, 
 
 but no absentees. 
 
 At, &c., (as in No. 92.) 
 
 [Title of cause as in No. 87.] 
 
 . On filing proof of the personal service of the summons in this 
 action, upon all the adult defendants, and that no answer to the 
 complaint has been put in by any of such defendants, and th'fe infant 
 defendants having put in a general answer, by their guardian, on 
 motion of J. K., plaintiff's attorney, it is ordered that it be referred 
 to E. F., of the city of Utica, to take proof of the material facts 
 stated in the said complaint, and report the same to this court ; and 
 also to compute and ascertain the amount due to the plaintiff for 
 principal and interest on the bond and mortgage set forth in said 
 complaint, and report the same to this court.
 
 474 PRACTICAL FORMS. 
 
 [ No. 94. ] 
 
 Order of reference inforedvsure suit, part not due. 
 
 At, &c., (as in No. 92.) 
 
 [Title of cause as in No. 87.] 
 
 (Like in all respects the usual order in cases where all is due, 
 
 then add,) 
 
 And it appearing by the complaint that the action was brought 
 to procure the foreclosure of a mortgage and a sale of the mort- 
 gaged premises, therein described, and that a part of the debt 
 secured by the said mortgage, and the bond accompanying the 
 same, is not yet due ; it is farther ordered, that the said referee 
 ascertain and report the amount actually due to the plaintiff for 
 principal and interest on said bond and mortgage, and also the 
 amount secured to be paid thereby, and which remains unpaid, in- 
 cluding interest thereon to the date of his report ; and also to 
 ascertain and report the situation of the mortgaged premises, and 
 whether in his opinion the same can be sold in parcels without 
 injury to the interests of the parties ; and if he shall be of opinion 
 that a pale of said premises, in one parcel, will be most beneficial 
 to the parties, then that he report his reasons for such opinion. 
 
 1 
 
 i 
 
 [ No. 95- 3 
 
 Affidavit of filing notice of pendency of suit, in action for foreclosure^ 
 
 of a mortgage. 
 m 
 [Title of suit as in No. 87.] 
 
 Saratoga county. — E. F. of, &c., being sworn says, that he is 
 [the clerk of, or law partner of,] the attorney for the plaintiff in the 
 above entitled action ; that this action was commenced for the fore- 
 closure and satisfaction of a mortgage ; and that none of the de- 
 fendants are infants or absentees, [or that E. F. one of said defend- 
 ants is an absentee, or that G. H. who is an infant defendant has 
 put in a general answer by his guardian,] and that none of said 
 defendants have answered the complaint in this cause [except the 
 said infant defendant,] 
 
 And this deponent further says, that on the first day of July, one
 
 PRACTICAL FORMS. 475 
 
 thousand eight hundred and forty-nine, a notice of the pendency of 
 this suit, in the form prescribed by section 132 of the Code of Pro- 
 cedure, as amended by act of April 11, 1819, and containing, as 
 this defendant believes, correctly and truly all the particulars re- 
 quired to be stated in such notice, by said act, was filed in the 
 office of the clerk of the count}'^ of Saratoga, that being the county 
 where the said mortgaged premises are situated. 
 
 Sworn, (Sec. 
 
 E. F. 
 
 [ No. 96. ] 
 
 Judgment of foreclosure and sale. 
 
 [Title of cmise as i7i No. 87.] 
 
 On reading and filing the [certificate of the sherifl!* of Delaware 
 county,] [or affidavit of George Jones, attorney for the plaintiff,] 
 proving the service of the summons and complaint in this action ; 
 that no answer has been put in ; and that due notice of the penden- 
 cy of the action was duly filed in the office of the clerk of the 
 county of Delaware, on the first day of June, one thousand eight 
 hundred and forty-nine, and an order of reference having been 
 made to compute the amount due to the plaintiff upon the bond and 
 mortgage set forth in the complaint; and on reading and filing the 
 report of the referee named in the order of reference, by which 
 report, bearing date the tenth day of August, 1849, it appears that 
 five thousand eight hundred and seventy-five dollars and sixty-four 
 cents was due thereon at the date of said report ; and on motion of 
 George Jones, attorney for the plaintiff, it is adjudged that the 
 mortgaged premises described in the complaint in this action, as 
 hereinafter set forth ; or so much thereof as may be necessary, and 
 as may be sold separately without prejudice to the interest of the 
 owner thereof, be sold at public auction, in the county of Delaware, 
 by the sheriff [or referee] of said county j that the said sheriff [or 
 referee] give public notice of the time and place of such sale ac- 
 cording to law, and the practice of this court; that either or any of 
 the parlies to this action may purchase at such sale ; that the said 
 sheriff [or referee] execute to the purchaser or purchasers, a deed 
 or deeds of the premises sold ; that out of the moneys arising from 
 such sale, after deducting the amount of his fees and expenses on
 
 476 PRACTICAL FORMS. 
 
 such sale, and any lien or liens upon said premises so sold, at the 
 time of such sale, for taxes or assessments, the said sheriff [or re- 
 feree] pay to the plaintiff or his attorney the sum of sixty dollars 
 and seventy-five cents, adj udged to the plaintiff for costs and charges 
 in this action, with interest from the date hereof, and also the 
 amount so reported due as aforesaid, together with the legal inte- 
 rest thereon, from the date of the said report, or so much thereof 
 as the purchase money of the mortgaged premises will pay of the 
 same, and take a receipt therefor, and file it with his report of sale; 
 that he deposit the surplus money (if any,) in [a bank to be named,] 
 to the credit of the clerk of this court, to be drawn only on the 
 order of the court, signed by said clerk and a judge of the court; 
 that he make a report of such sale and file it with the clerk of this 
 court with all convenient speed ; that if the proceeds of such sale 
 be insufficient to pay the amount so reported due to the plaintiff, 
 with the interest and costs as aforesaid, the said sheriff [or referee] 
 specify the amount of such deficiency in his report of sale, and that 
 the defendant C. D. pay the same to the plaintiff, and that the pur- 
 chaser or purchasers at such sale be let into possession on produc- 
 tion of the sheriff's [or referee's] deed, and a certified copy of the 
 order confirming the report of sale. 
 
 And it is further adjudged, that the defendants and all persons 
 claiming under them , or any or either of them, after the filing of such 
 notice of pendency of this action, be forever barred and foreclosed 
 of all right, title, interest and equity of redemption in the said 
 mortgaged premises so sold, or any part thereof. 
 
 The following is a description of the mortgaged premises herein- 
 before mentioned [here insert description.] 
 
 [ No. 97. ] 
 
 Judgment of foreclosure and sale, part only due^ premises can be sold 
 
 in parcels. 
 
 [Title of cause as in No. 87.] 
 
 On reading and filing the certificate of J. K., sheriff of the county 
 of Greene, [or affidavit of L. M., attorney for the plaintiff] proving 
 the services of the summons and complaint in this action; that no 
 answer has been put in ; and that due notice of the pendency of the
 
 PRACTICAL FORMS. 477 
 
 action was duly filed in the office of the clerk of the county of 
 Greene, on the first day of July one thousand eight hundred and 
 forty-nine, and an order of reference having been made to compute 
 the amount actually due to the plaintiff upon the bond and mort- 
 gage set forth in the complaint ; and also the amount secured by 
 and unpaid upon said bond and mortgage wi'h interest thereon to the 
 date of such report, and also to ascertain the situation of the mort- 
 gaged premises, and whether the same can be sold in pai'cels with- 
 out injury to the interests of the parties, then that he report his rea- 
 son for such opinion ; and on reading and filing the report of the 
 referee named in the order of reference, bearing date the first day 
 of August 1849, by which it appears that there was actually due to 
 the said plaintiff, at the date of the said report, for principal and 
 interest, the sum of two hundred and forty dollars, and fifteen cents, 
 and that the amount secured by, and unpaid upon said bond and 
 mortgage with interest thereon to the date of said report, is the sum 
 of three thousand and forty dollars, and that said premises can be 
 sold in parcels without injury to the interests of the parties. And 
 on motion of J. K., attorney for the plaintiff, it is adjudged that so 
 much of the mortgaged premises described in the complaint in this 
 action, as may be necessary to raise the amount so reported actual- 
 ly due to the plaintiff, and the costs of this case, and which may be 
 sold separately without prejudice to the interest of the owners there- 
 of, be sold at public auction in the county of Greene, by the sheriff 
 of said county, [or by A. B., a referee, who is hereby appointed for 
 such purpose] ; that the said sheriff [or referee] give public notice of 
 the time and place of such sale according to law, and the practice of 
 this court; that either or any of the parties to this action may pur- 
 chase at such sale; that the said sheriff execute to the purchaser or 
 purchasers, a deed or deeds of the premises sold ; that out of the 
 moneys arising from such sale, after deducting the amount of his 
 fees and expenses on such sale, and any lien or liens upon said pre- 
 mises so sold, at the time of such sale, for taxes or assessments, the 
 said sheriff pay to the plaintiff or his attorney, the sum af fifty-five 
 dollars snd ten cents adjudged to the plaintiff for costs and charges 
 in this action with interest from the date hereof, and also the amount 
 so reported as actually due as aforesaid, together with the legal in- 
 terest thereon, from the date of the said report, or so much thereof 
 as the purchase money of the mortgaged premises will pay of the 
 same, take a receipt therefor, and file it with his report of sale ;
 
 478 PRACTIAL FORMS. 
 
 that he deposite the surplus money ([[ any), in [a bank to he named] 
 to the credit of the clerk of this court, to be drawn only on the or- 
 der of the court, signed by said clerk and a judge of the court ; that 
 he make a report of such sale and file it with the clerk of this court 
 with all convenient speed; that if the proceeds of such sale be in- 
 sufficient to pay the amount so reported as actually due to the plain- 
 tiff with the interest and costs as aforesaid, the said sheriff specify 
 the amount of such deficiency in his report of sale, and that the de- 
 fendant C. D. pay the same to the plaintiff and that the purchaser 
 or purchasers at such sale, be let into possession on production of 
 the sheriff's deed, and a certified copy of the order confirming the 
 report of sale. 
 
 And it is further adjudged, that the defendant and all persons 
 claiming under them, or any or either of them, after the filing of 
 such notice of pendency of this action, be forever barred and fore- 
 closed of all right, title, interest and equity of redemption in the 
 said mortgaged premises so sold, or any part thereof. 
 
 The following is a description of the mortgaged premises herein- 
 before mentioned: [here insert description.] 
 
 [ No. 9S. ] 
 Decision, cause tried by the court. 
 
 [Title of cause.] 
 
 A trial by jury in this action having been waived by the parties, 
 
 by the written consent of the attorneys for the respective parties, 
 
 filed with the clerk of this court, (or by the oral consent of the 
 
 attorneys for the respective parties, in open court, and entered m 
 
 the minutes of the court, or by the defendant's failing to appear,) 
 
 and the testimony having been taken and duly considered, the 
 
 court do decide that the plaintiff recover from the defendant the 
 
 sum of one hundred dollars, besides costs. 
 
 Dated, &c. 
 
 A. B., justice.
 
 PRACTICAL FORMS. ' 479 
 
 [ No. 99. ] 
 
 Judgment on trial of issue of fact. 
 
 [Title of cause.l 
 
 April 10, 1849. 
 
 This cause having been tried on the issue of fact, and the jury 
 therein having found a verdict for the plaintiff for the sum of one 
 hundred dollars; now, on motion of E. F., attorney for the plain- 
 tiff, it is adjudged by the said court that the plaintiff recover of the 
 defendant the said sum, with forty-nine dollars and forty-five cents 
 costs and disbursements, making the sum of one hundred and 
 
 forty-nine dollars and forty-fi/e cents. 
 
 G.H., clerk. 
 
 [ No. 100. ] 
 
 Extra allowance of costs. 
 
 [Title of cause.'] 
 
 The plaintiff in this action having recovered the sum of five 
 hundred dollars, and the same being a difficult (or " extraordinary") 
 case, (or, the defence having been unreasonably [or, unfairly] con- 
 ducted,) the plaintiff is allowed ten per cent on the amount of such 
 recovery by way of costs. 
 
 Justice Sup. C't. 
 
 [ No. 101. ] 
 
 Judgment on verdict of a jury. 
 
 [Title of cause,'] 
 
 The verdict of the jury in this cause having been entered, 
 whereby they find for the plaintiff, and assess his damages at one 
 thousand dollars ; on motion * of E. G., plaintiff's attorney, it is ad- 
 judged that the plaintiff recover of the defendant the said sum, 
 with fifty-five dollars and ten cents costs and disbursements, 
 amounting in the whole to one thousand and fifty-five dollars and 
 
 ten cents. 
 
 A. N., 
 
 Clerk of Columbia county.
 
 480 PRACTICAL FORMS. 
 
 [ No. 102. ] 
 
 Judgment on decision of the court, jury trial waived. 
 
 {Title of cause.'\ 
 
 A jury trial having been waived in this cause, and the decision 
 of the judge having been filed, whereby he finds for the plaintiflf 
 for five hundred dollars damages ; on motion (as in last form, from*.) 
 
 [ No. 103. ] 
 
 Judgment on report of referees. 
 [Title of cause."] 
 
 This cause having been duly referred to A. B., C. D., and E. F., 
 to hear and determine the same, and their report having been filed, 
 whereby they find to be due from the defendant to the plaintiff the 
 sum of one hundred dollars; on motion (same as in No. 101, from 
 the *.) 
 
 [ No. 104. ] 
 
 Judgment of affirmance in Supreme Court, upon an appeal fom a 
 judgment of an inferior court. 
 
 {Title of cause.] 
 
 This cause having been brought into this court upon an ap- 
 peal from a judgment entered in the county court of Delaware 
 county, [or mayor's court of the city of Syracuse,] on the first day 
 of May, 1849, in favor of the above named plaintiff against the 
 above named defendant for seventy-eight dollars damages and 
 costs ; and the said appeal having been heard, and the decision of 
 the court thereupon having been filed, whereby the aforesaid judg- 
 ment is in all things * affirmed, on motit)n of H. J., attorney for the 
 plaintiff, it is adjudged that the said judgment be and the same is 
 hereby in all things affirmed, and that the plaintiff recover of the 
 defendant the said sum of seventy-eight dollars, with fifty-four dol- 
 lars costs, disbursements and interest, amounting in the whole to 
 one hundred and thirty-two dollars. 
 
 Dated, &c. P. S., Clerk of 
 
 Erie county.
 
 PRACTICAL FORMS. 481 
 
 [ No. 105. ] 
 
 Like on reversal. 
 
 [Same as above to the *, then add] reversed. On motion of 
 A. C, defendant's attorney, it is adjudged that the said judgment 
 be and the same hereby is in all things reversed, and that the said 
 defendant recover of the plaintiff the sum of sixty-five dollars for 
 his costs and disbursements, upon said appeal. 
 
 P. S., Clerk, &c. 
 
 [ No. 106. ] 
 
 Judgment in the Suprefne Court upon bill of exceptions and appeal 
 from a judgment of a single judge, and neio trial denied. 
 
 yritle of causeJ] 
 
 The judgment in this cause, entered under the direction of a 
 single judge, on the ninth day of August, 1849, in favor of the 
 plaintiff and against the defendant, for nine hundred and seven- 
 teen dollars damages, with sixty-three dollars and fifteen cents 
 costs and disbursements, having been appealed to the general term 
 of the Supreme Court ; and the same having been heard, and the 
 decision of the court thereupon having been filed, whereby a new 
 trial in said cause is denied ; on motion of J. N., plaintiff's [or de- 
 fendant's] attorney, it is adjudged that the plaintiff [or defendant] 
 recover of the defendant [or plaintiff] the sum of 'eighty-five dol- 
 lars and ten cents for his costs and disbursements upon the said 
 appeal. 
 
 Dated, &c. 
 
 R. 0., Clerk, &c. 
 
 [ No. 107. ] 
 
 Judgment in Supreme Court, upon case made to set aside report of 
 referees, and appeal from the judgment entered upon such report, 
 and report not set aside. 
 
 [Title of cause.] 
 
 The judgment in this cause, entered upon the report of refer- 
 ees, on the tenth day of July, 1819, in favor of the plaintiff and 
 
 31
 
 482 PRACTICAL FORMS. 
 
 against the defendant, for seven hiui:^red and five dollars and fifty- 
 four cents damages, with forty-eight dollars and sixteen cents 
 costs, having been appealed to the general term of the Supreme 
 Court ; and the same having been heard, and the decision of the 
 court thereupon having been filed, whereby the said judgment is 
 in all things affirmed ; on motion of A. B., attorney for plaintiff, it 
 is adjudged that the said plaintiff recover of the defendant, the sum 
 of seventy-four dollars and twenty-two cents for his costs and dis- 
 bursements upon the said appeal. 
 Dated, &c., 
 
 J. R., Clerk, &c. 
 
 [ No. 103. 
 
 Judgment, or failure to answer. 
 
 [Title of cause.] 
 
 The summons, with a copy of the complaint in this action, hav- 
 ing been duly served on the defendant, on the first day of July, 1849, 
 and no copy of an answer to the complaint having been served on 
 the plaintiff's attorney, as required by the summons. Now on mo- 
 tion of E. F., plaintiff's attorney, it is hereby adjudged that the 
 plaintiff recover of the defendant the sum of five hundred dollars, 
 the amount claimed and interest, with ten dollars costs and disburse- 
 ments, amounting in the whole to $5'J4.41. 
 
 Statement for Judgment and Costs. 
 
 Amount claimed in summons $500 00 
 
 Interest 25 00 
 
 $525 00 
 
 Costs by statute $7 
 
 Clerk's entering judgment 50 
 
 Affidavits 25 
 
 Transcripts 06 
 
 Postage 10 
 
 Sheriff's fees 150 9 41 
 
 $534 41
 
 PRACTICAL FORMS. 483 
 
 County of Herkimer. E. F., plaintiff's attorney, in the above 
 action, being duly sworn, says that the disbursements above men- 
 tioned have been made in this action. 
 
 Sworn, &c. „ „ 
 
 E. F. 
 
 [ No. 109. ] 
 Statement and confession of judgment without action. 
 
 [Title of cause.] 
 
 Judgment is hereby confessed in this cause for the sum of one 
 
 hundred dollars. This confession is for a debt justly (to become) 
 
 due to the plaintiff, arising upon the following facts : (a promissory 
 
 note payable to the plaintiff for the sum of fifty-dollars, dated June 
 
 5th, 1849, and payable six months from date, with interest), or (a 
 
 liability incurred by the plaintiff, by endorsing my note, payable to 
 
 the order of E. F., for the sum of one hundred dollars, dated June 
 
 5th, 1849, and payable six months from date with interest). 
 
 County of Erie. C. D., the defendant above named, being duly 
 
 sworn, says, that the facts stated in the above confession are true ; 
 
 and further he says not. 
 
 Sworn, &:c. 
 
 CD. 
 
 [ No. 110.] 
 
 Judgment for plaintiff in an action to recover real property. 
 
 [Title of cause..] 
 
 The verdict of the jury in this cause having been entered, 
 whereby they find in favor of the plaintiff, and assess his damages 
 for withholding the possession of the premises, at five hundred dol- 
 lars, on motion of E. F., plaintiff's attorney, it is adjudged that the 
 plaintiff recover the possession of the real property described in the 
 complaint, and, also the sum of five hundred and eighty-four dollars, 
 
 damages, costs, and disbursements. 
 
 A. K., Clerk, &c. 
 
 :^-
 
 484 PRACTICAL FORMS. 
 
 [ No. 111. ] 
 The like on verdict for defendant. 
 
 {Title of cause.'] 
 
 The verdict of the jury in this cause having been entered, 
 whereby they find in favor of the defendant, on motion of E. F., 
 defendant's attorney, it is adjudged that the defendant recover of 
 the plaintifTthe sum of sixty-four dollars and twenty-one cents, costs 
 and disbursements. 
 
 A. R., Clerk, &c. 
 
 [ No. 112. ] 
 
 Judgment for plaintiff in an action to recover personal property with 
 
 damages for withholding. 
 
 [Title of cause.] 
 
 The verdict of the jury in this cause, having been entered, where- 
 by they find in favor of the plaintiff, and assess his damages for 
 withholding the possession of the property, at twenty-five dollars,* 
 on motion of E. G. plaintiff's attorney, it is adjudged that the 
 plaintiff recover the possession of the personal property described 
 in the complaint, and also the sum of one hundred and five dollars* 
 damages, costs, and disbursements. 
 
 E. K., Clerk, &c. 
 
 [ No. 113. ] 
 
 The like where the property has not been delivered. 
 
 [The same as in No. 112 to the *, then add] and also the value 
 thereof at seventy-six dollars, on motion of R. S., plaintiff's attor- 
 ney, it is adjudged that the plaintiff recover the possession of the 
 personal property described in the complaint, or in case a delivery 
 thereof cannot be had, that the plaintiff recover of the defendant 
 the said sum of seventy-six dollars, and also the sum of ninety- 
 one dollars, damages costs and disbursements. 
 
 J. N., Clerk, &c.
 
 PRACTICAL FORMS. 485 
 
 [ No. 114. ] 
 
 The like on verdict for defendant, property not having been delivered. 
 
 [Title of cause.] 
 
 The verdict of the jury in this cause having been entered, whereby 
 they find in favor of the defendant, * on motion of R. S., defend- 
 ant's attorney, it is adjudged that the defendant recover of the 
 plaintiff the sum of forty-nine dollars and twenty-one cents, costs 
 
 and disbursements. 
 
 J. N., Clerk, &c. 
 
 [ No. 115. ] 
 
 The like where property has been delivered to plaintiff, and damages. 
 
 [The same as in No. \\^tothe*,then add]^ndLa.sses% his damages 
 for taking and withholding the possession of the property, at ten 
 dollars, and the value thereof at one hundred and seventy-four 
 dollars,* on motion of J. N., defendant's attorney, it is adjudged 
 that the defendant have a return to him of the personal property 
 described in the complaint, or in case a return thereof cannot be 
 had, that the defendant recover of the plaintiff the said sum of 
 one hundred and seventy-four dollars, and also sixty-three dollars 
 and nineteen cents, damages, costs and disbursements. 
 
 R. S., Clerk, &c. 
 
 [ No. 116. ] 
 
 The like, where property has been delivered to the plaintiff a?id the 
 
 defendant waives a return. 
 
 [The same as in No. 1 14 to *, then add] and a return of the pro- 
 perty having been waived by the defendant, on motion of E. F., 
 defendant's attorney, it is adjudged, that the defendant recover of 
 the plaintiff the said sum of one hundred and seventy-four dollars, 
 and also the sum of fifty-six dollars and forty-two cents, damages, 
 costs and disbursements, amounting together to the sum of two- 
 hundred and thirty dollars and forty-two cents. 
 
 J. N., Clerk, &c.
 
 486 PRACTICAL FORMS 
 
 [ No. 117. ] 
 
 Entry in Supreme Court of remittitur from the Court of Appeals 
 on affirmance of a judgment. 
 
 [Title of cause.] 
 
 This cause having been brought into the Court of Appeals, upon 
 an appeal from the judgment entered therein, in the Supreme Court, 
 on the ninth day of August, 1849, in favor of the plaintiff against 
 the defendant, for one thousand dollars damages and ninety-five 
 dollars costs ; and the said appeal having been heard, and by the 
 said Court of Appeals duly considered, it vi^as by the said court ad- 
 judged that the judgment aforesaid, be in all things* affirmed. And 
 it was further adjudged by the said court, that the said plaintiff 
 should recover from the said defendant, the sum of one hundred 
 and ten dollars for his costs, (damages) and disbursements upon 
 such appeal. ^ 
 
 And thereupon the judgment roll and proceedings thereupon in 
 the said Court of Appeals, were by the said court, remitted into the 
 said Supreme Court, according to the statute in such case made and 
 provided. 
 
 Dated, &c. 
 
 J. L. Clerk of Broome county. 
 
 [ No. 118. ] 
 The like upon reversal of judgment. 
 
 [Same as No. 117, down to the*, then add,] reversed. And it 
 was further adjudged by the said court, that the said defendant 
 should recover from the said plaintiff, the sum of ninety-five dol- 
 lars for his costs (damages) and disbursements, upon such- appeal. 
 
 And thereupon, the judgment roll and proceedings thereupon, in 
 
 the said Court of Appeals, were by the said court remitted into the 
 
 said Supreme Court, according to the statute in such case made and 
 
 provided. 
 
 Dated, &c. 
 
 R. S. Clerk of Essex county.
 
 PRACTICAL FORMS. 4S7 
 
 [ No. 119. ] 
 Exeaction against the person. 
 
 The -^eople of the State of New-York: To the sherifl' of the 
 county of Schoharie, greeting : 
 
 Whereas judgment was rendered on the tenth day of June, one 
 thousand eight hundred and forty-nine, in an action in the Supreme 
 Court, between A. B., plaintiff, and C. D., defendant, in favor of 
 the said A. B., against the said C. D., for the sum of one hundred 
 and sixty dollars, as appears to us by the judgment roll, filed in the 
 office of the clerk of the county of Schoharie : And whereas the 
 said judgment was docketed in your county on the said tenth day 
 of June, in the year one thousand eight hundred and forty-nine, 
 and the sum of one hundred and sixty dollars is now actually due 
 thereon : and whereas an execution against the property of the 
 judgment debtor has been duly issued to the sheriff of the proper 
 county and returned unsatisfied : Therefore we command you, that 
 you arrest the said judgment debtor and commit him to the jail of 
 your county until he shall pay the said judgment, or be discharged 
 according to law. 
 
 Witness, Mai bone Watson, one of our justices, at the court house 
 
 in the town of Schoharie, the tenth day of July, one thousand eight 
 
 hundred and forty-nine. 
 
 £. F., PItff's Att'y. 
 
 •[ No, 120. ] 
 Execution against the property. 
 
 The People of the State of New-York : To the sheriff of the 
 county of Greene, greeting: 
 
 Whereas judgment was rendered on the second day of July, one 
 thousand eight hundred and forty-nine, in an action in the Supreme 
 Court, between A. B., plaintiff, and C. D., defendant, in favor of 
 the said A. B., against ihe said C. D., for the sum of five hundred 
 and thirty-one dollars and sixty cents, as appears to us by the judg- 
 ment roll, filed in the office of the clerk of the county of Albany: 
 And whereas the said judgment was docketed in your county on 
 the third day of July, in the year one thousand eight hundred and 
 forty-nine, and the sum of five hundred and thirty-one dollars and
 
 488 PRACTICAL FORMS. 
 
 sixty cents is now actually due thereon : Therefore we command you, 
 that you satisfy the said j udgment out of the personal property of the 
 said judgment debtor within your county; or if sufficient personal 
 properly cannot be found, then out of the real property in your 
 county belonging to such judgment debtor on the day when the said 
 judgment was so docketted in your county, or at any time thereaf- 
 ter, in whose hands soever the same may be and return this execu- 
 (fon within sixty days after its receipt by you, to the clerk of the 
 county of Greene. 
 
 Witness, Ira Harris, one of our Justices at the Court house in the 
 village of Catskill, the fourth day of July, one thousand eight hun- 
 dred and forty-nine. 
 
 & E. F. 
 
 Pltff's Att'y. 
 
 [ No. 121. ] 
 
 Execution for the delivery of the possession of real property with 
 
 damages and costs. 
 
 The People of the State of New-York, 
 
 r"To the sheriff of the county of Franklin : 
 
 Whereas judgment was rendered on the first day of November, 
 one thousand eight hundred and forty-nine, in an action in the Su- 
 preme Court, between A. B. plaintiff, and C. D. defendant, in favor 
 of the said A. B. against the said C. D. for the delivery to the said 
 A. B. of the possession of certain real 'property, to wit : [here de- 
 scribe premises] and also for three hundred and nine dollars dam- 
 ages and costs therein, as appears to us by the judgment roll, filed 
 in the office of the clerk of the county of Franklin; and whereas 
 the said judgment was docketted in your county on the first day of 
 Novem.ber one thousand eight hundred and forty-nine, and the sum 
 of three hundred and nine dollars, is now actually due thereon. 
 Therefore we command you, that you deliver to the said A. B. the 
 possession of the said real property herein before particularly de- 
 scribed and that you-satisfy the said damages and costs out of the 
 personal property of the said C. D. within your county ; or if suffi- 
 aient personal property cannot be found, then out of the real j ropcr- 
 ty in your county belonging to the said C. D. on the day Avhcn the 
 gaid judgment was docketted in your county, or at any time there-
 
 PRACTICAL FORMS. 489 
 
 after in whose hands soever the same may be, and return this exe- 
 cutian. within sixty days after its receipt by you, to the clerk of 
 the county of Franklin. 
 
 A. N., Pltff's Atty 
 Witness, John Willabd, &c. 
 
 [ No. 122. ] 
 
 Execution for the delivery of the possession of personal property, 
 ■ without damages or costs. 
 
 The people of the state of New- York, to the sheriff of the county 
 of Hamilton. 
 
 Whereas judgment was rendered on the first day of September, 
 one thousand eight hundred and forty-nine, in an action in the 
 Supreme Court, between A. B. plaintiff, and C. D. defendant, in 
 favor of the said A. B. against the said C. D., for the delivery to 
 the said A. B. of the possession of certain personal property, to wit, 
 [here describe property]* as appears to us by the judgment roll, 
 filed in the office of the clerk of the county of Hamilton ; and 
 whereas, the said judgment was docketed in your county on the 
 third day of September, one thousaud eight hundred and forty- 
 nine :t therefore we command you, that you deliver to the said A. 
 B. the possession of the said personal property hereinbefore particu- 
 larly described, and return this execution within sixty days after 
 its receipt by you, to the clerk of the county of Hamilton. 
 
 Witness, &c. 
 
 E. J., Plff's Att'y. 
 
 [ No. 123. ] 
 
 The like with damages and costs. 
 
 [Like No. 122 doiv7i to the * then add,"] and also for sixty-nine 
 dollars, costs and damages therein, [then same as in No. 122 to the 
 t then add,] and the sum of sixty-nine dollars is now actually due 
 thereon : therefore we command you, that you deliver to the said 
 A. B. the possession of the said personal property, hereinbefore 
 particularly described, and that you satisfy the said costs and
 
 490 PRACTICAL FORMS. ^ 
 
 damages out of the personal property of the said C. D., &c. {Con- 
 clude in the usual form.) 
 
 [ No. 124. ] 
 
 The like and for the value of the property^ if a delivery cannot he 
 
 had, 
 
 [Like No. 122 doW7i to * then add,] and also for sixty-nine dollars, 
 costs and damages therein, as appears to us by the judgment roll 
 filed in the office of the clerk of the county of Hamilton ; and 
 whereas, the said judgment was docketed in your county on the 
 third day of September, one thousand eight hundred and forty-nine, 
 and the sum of sixty-nine dollars is now actually due thereon: 
 therefore we command you, that you deliver to the said A. B. the 
 possession of the said personal property, hereinbefore particularly 
 described, and that you satisfy the said costs and damages out of 
 the personal property of the said C. D. in your county, and in case 
 a delivery of said property cannot be had, that you also satisfy the 
 sum of four hundred dollars, being the value of the property for 
 which the said judgment was recovered, and if sufficient personal 
 property cannot be found, then out of the real property, &c. {Con- 
 clude in usual form.) 
 
 Note. — Executio7is for defenda?it can be easily framed from the 
 foregoing forms, substituting " return " /or "delivery" where it 
 occurs. 
 
 [ No. 125. ] 
 
 Execution against the property, after affirmafice in the Court of 
 
 Appeals, 
 
 The People of the State of New York, 
 
 To the Sheriff of the county of Fulton : 
 
 V/hereas judgment was rendered on the third day of July, 
 
 one thou>and eight hundred and forty-nine, in an action in the 
 
 Supreme Court between A. B., plaintiff", and C. D., defendant, in 
 
 favor of the said plaintiff against the said defendant for the sum of
 
 PRACTICAL FORMS. 491 
 
 two thousand dollars, as appears to us by the judgment roll filed in 
 the office of the clerk of the county of Yates ; and whereas said 
 judgment was docketed in your county on the tenth day of July, 
 one thousand eight hundred and forty-nine, and whereas the said 
 defendant did appeal from the said judgment to the Court of Ap- 
 peals, and the said judgment being by the said Court of Appeals 
 in all things affirmed, it was adjudged by the said court that the 
 eaid plaintiff recover from the said defendant the sum of ninety-five 
 dollars, for his costs, [damages] and disbursements upon such ap- 
 peal, as appears to us by the judgment roll and proceedings there- 
 upon in the said Court of Appeals, remitted into and now remain- 
 ing in the said Supreme Court, upon which said judgment there is 
 now actually due the sum of two thousand four hundred dollars. 
 Therefore we command you, that you satisfy the said judgments out 
 of the personal property of the said judgment debtor, within your 
 county; or if sufficient personal property cannot be found, then out 
 of the real property in your county belonging to such judgment 
 debtor on the day when the said judgments were docketed in your 
 county or at any time thereafter, in whose hands soever the same 
 may be, and return this execution within sixty days after its receipt 
 by you to the clerk of the county of Yates. 
 
 Witness, John Maynard, Justice of the Supreme Court, at the 
 court house in the village of Penn Yan, the first day of October, 
 one thousand eight hundred and forty-nine. 
 
 E. F. Pltf's Att'y. 
 
 [ No. 126. ] 
 
 The like on reversal. 
 
 The People of the State of New York, 
 
 To the Sheriff' of the county of Ulster : 
 Whereas C. D. did appeal to the Court of Appeals from a 
 judgment rendered on the fourth day of May, one thousand eight 
 hundred and forty-nine, in an action in the Supreme Court, be- 
 tween A. B., plaintiff, and the said C. D., defendant, in favor of the 
 said plaintiff' against the said defendant for nine hundred dollars; 
 and whereas the said judgment being by the said Court of Appeals 
 in all things reversed, it was adjudged by the said court that the
 
 492 PRACTICAL FORMS. 
 
 said defendant recover from the said plaintiff the sum of ninety-one 
 dollars, for his costs, [damages] and disbursements upon such ap- 
 peal, as appears to us by the judgment roll and proceedings in the 
 said Court of Appeals, remitted to and now remaining in the said 
 Supreme Court, And whereas the said judgment was docketed in 
 your county on the first day of September, one thousand eight hun- 
 dred and forty-nine, and the sum of ninety-one dollars is now aclu* 
 ally due thereon; therefore we command you, &c., (^conclude as in 
 usual form.) 
 
 [ No. 127. ] 
 Execution for costs of motion. 
 
 The People of the State of New York, 
 
 To the Sheriff of the county of Richmond, greeting : 
 Whereas, an order was made and entered on the tenth day 
 of August, one thousand eight hundred and forty-nine, in an action 
 in the Supreme Court, between A. B., plaintiff, and C. D., de- 
 fendant, requiring the said C, D. to pay to the said A. B. the sum 
 of [ten dollars] for his costs of making [or opposing] a motion in 
 6aid action, [or for his costs upon an appeal from an order in said 
 action,] as appears to us by the said order entered in the office of 
 the clerk of the county of Richmond. Therefore, we command 
 you, that you satisfy the said sum of [ten dollars] out of the per- 
 sonal property of the said C. D., within your county, and return 
 this execution within sixty days after its receipt by you to the clerk 
 of the county of Richmond. 
 
 Witness William T. McCoun, one of our justices, at, &c., the 
 first day of September, one thousand eight hundred and forty-nine. 
 
 J. K., Pltf's Att'y.
 
 PARCTICAL FORMS. 493 
 
 [ No. 128. ] 
 
 Notice of appeal to the general term of the Supreme Court, from a 
 judgment entered upon the direction of a single judge of the sums 
 court. 
 
 Supreme Court. 
 
 A. B. 
 
 ag't 
 
 CD. 
 
 To E. F., Clerk, of Greene county, and 
 G. H., Att'y for Plt'ff. 
 
 Sir: 
 Take notice that the [defendant] appeals from the judgment 
 entered in this cause, to the general term of this court. Said judg- 
 ment was entered upon the direction of a single judge of said court, 
 on the 8th day of August, 1849. 
 
 Dated, &c. 
 
 Yours, &c. 
 
 J. K., Att^'y for Plt'ff and 
 
 Appellant. 
 
 [ No. 129. ] 
 
 Notice of appeal to the Supreme Court, from a judgment of an 
 
 inferior court. 
 
 County Court of Franklin county 
 [or Mayor's Court of the city of 
 Utica. 
 
 A. B., plaintiff, 
 
 ag't 
 CD., defenda7it. 
 
 To E. F., Plaintiff's Attorney, and J. N., 
 Clerk of Franklin county jor clerk of 
 Mayor's Court of Utica]. 
 
 Sir: 
 
 Take notice that the [defendant] appeals to the Supreme 
 Court, from the judgment entered in this action on the ninth day of
 
 494 pra(;tical forms. 
 
 October, 1849, in favor of the plaintiff against the defendant for 
 [one hundred] dollars damages, costs, and disbursements. 
 
 Dated, &c. 
 
 Yours, &c. 
 
 G. H., Def 't's Att'y. 
 
 [ No. 130. ] 
 
 Notice of appeal to the general term from a judgment entered upon, 
 the direction of a single judge, or upon report of referees. 
 
 [Title of cause I] 
 
 To E. F., Plt'ff's Att'y, and 
 
 G. H., Clerk of Wyoming county. 
 Sir: 
 
 Take notice that the [defendant] appeals to the general term 
 of this court, from the judgment entered in this action, on the first 
 day of September, 1849, in favor of the plaintiff against the defend- 
 ant, for [one thousund] dollars, damages, costs, and disbursements. 
 Dated, &c. 
 
 J. N., 
 Def t's Att'y. 
 
 r No. 131. ] 
 
 Notice of appeal to the Court of Appeals, from a judgment of the 
 
 Supreme Court. 
 
 Supreme Court. 
 
 A. B., Plaintiff, 
 
 agt. 
 CD., Defendant. 
 
 To E. F., ptff's Att'y, and 
 
 G. H., clerk of Monroe county. 
 Sir: 
 
 Take notice, that the (defendant) appeals to the Court of Ap- 
 peals, from the judgment entered in this action on the twenty-first 
 day of October, 1849, in favor of the plaintiff against the defendant,
 
 PRACTICAL FORMS. 495 
 
 for (two thousand five hundred) dollars damages, costs, and dis- 
 bursements. 
 
 Dated, &c. 
 
 [J. N., Deft's Att'y. 
 
 [ No. 132. ] 
 
 Notice of appeal to the general term from an order made at the special 
 term, or by a judge out of court. 
 
 [Title of cause.] 
 
 To E. F., ptff's Att'y, and 
 
 G. H., clerk of Livingston county. 
 
 Sir: 
 
 Take notice, that the (defendant) appeals to the general term, 
 
 from the order entered in this action with the clerk of Livingston 
 
 county on the first day of October, 1849, directing (or allowing) an 
 
 injunction, (or attachment,) or (to arrest the defendant,) or (from 
 
 so much of said order as directs the appointment of a receiver in 
 
 said action) [specify the part of the order appealed from.] 
 
 Date, &c. 
 
 Yours, &., 
 
 J. N., Deft's Att'y. 
 
 [ No. 133. ] 
 Undertaking to pay costs on appeal. 
 
 [Title of cause.l 
 
 Whereas, the above named C. D. has appealed (to the Supreme 
 Court, from a judgment entered in the county court of Suffolk 
 county, on the first day of September, one thousand eight hundred 
 and forty nine,) or (to the general term of the Supreme Court, from 
 a judgment entered upon the direction of a single judge of that 
 court, on, &c.) or (to the Court of Appeals, from a judgment 
 entered in the Supreme Court, on, Sec.) in favor of the above 
 named plaintiff and against the above named defendant, for thet 
 sum of (four hundred and seventy-five dollars and ninety-four 
 cents) damages and costs.
 
 496 PRACTICAL FORMS. 
 
 Now therefore, we, J. N., of &c., gentleman, and R. S., of &c., 
 
 merchant, do undertake that the said appellant will pay all costs 
 
 and damages which may be awarded against him on the said 
 
 appeal, not exceeding the sum of two hundred and fifty dollars.* 
 
 Dated, &c. 
 
 J.N. 
 R. S. 
 
 [ No. 134. ] 
 Affidavit of sureties annexed. 
 
 [Title of cause.] 
 
 County of Wayne. — J. N., of &c., and R. S., of &c., being each 
 duly sworn, doth each for himself depose and say, that he is a 
 (householder) or (freeholder) of this State, and is worth the sum 
 of (five hundred) dollars over and above all debts and responsibili- 
 ties which he owes or has incurred. 
 
 Sworn, &c. 
 
 J. N. 
 
 R. S. 
 
 [ No. 135. ] 
 
 Acknowledgment annexed. 
 
 County of Wayne. On the first day of November 1849, before 
 me personally appeared I. N. and R. S. to me, known to be the in- 
 dividuals described in and who executed the foregoing undertaking 
 and severally acknowledged that they executed the same. 
 
 P. R. 
 Justice of the Peace, 
 or Com'r of Deeds,
 
 PRACTICAL FORMS. 497 
 
 [ No. 136. ] 
 
 Undertaking to stay execution on appeal from, judgment for the pay- 
 ment of money. 
 
 [The same as in No. 133 to the * then add] And if the judgment 
 
 appealed from or any part thereof be affirmed, the said appellant 
 
 will pay the amount directed to be paid by the said judgment, 
 
 or the part of such amount as to which the said judgment shall 
 
 be affirmed, if it be affirmed only in part, and all damages which 
 
 shall be awarded against the said appellant upon the said appeal. 
 
 Dated &c. 
 
 J.N. 
 
 R. S. 
 
 [jidd to ike affidavit of justification of sureties {which should be in 
 double the amoiint of the judgment and of the costs of the appeal,} 
 as in No. 134. Also acknowledgment as in No. 135.] 
 
 [ No. 137. ] 
 
 Undertaking to stay execution on appeal from judgment, directing 
 the assi gnment or delivery of documents, or personal property, where 
 the same are not brought into court, or placed in the custody of an 
 officer or receiver appointed by the Court. 
 
 [The same as in No. 133 to the X, then add^ delivery to the said 
 plaintiff, of certain documents [here describe documents as a certain 
 last will and testament of one A. B. dated SfC. or of a certain deed or 
 conveyance of real property, made by A. B. of the first part and C. 
 D. of the second part, dated ^c. conveying the following described 
 premises] or [delivery of certain personal property viz: {here describe 
 them) and for the sum of [four hundred dollars damages for with- 
 holding the possession thereof,] and [fifty-five dollars] costs and 
 disbursements. 
 
 Now, therefore, we I. N. of &c., produce merchant, and R. S. of 
 &c. farmer, do undertake in the sum of [one thousand] dollars that 
 the said appellant will obey the order of the [Supreme Court] or 
 [of the general term of the Supreme Court] or [of the Court of Ap- 
 peals] upon the said appeal ; and will in addition pay all costs and 
 
 32
 
 498 PRACTICAL FORMS. 
 
 damages which may be awarded against him on the said appeal, 
 
 not exceeding the sum of two hundred and fifty dollars. 
 
 Dated &c. I. N. 
 
 R. S. 
 
 [Add affidavit of justification of sureties {which must be in double 
 the amount specified in the undertaking, and of the costs on the ap' 
 peal) as in No. 134. Also acknowledgment, as in No. 135.] 
 
 [ No. 138. ] 
 
 Undertaking to stay execution on appeal from judgment, directing 
 the sale or delivery of real property. 
 
 [The same as in No. 133, to the t, then add] sale [or delivery of 
 the possession of to the said plaintiff] of certain real property which 
 is bounded and described as follows [here insert description] and [for 
 the sum of eight hundred dollars damages for withholding the pos- 
 session thereof] and [seventy-four dollars] costs and disbursements. 
 
 Now therefore, we, I. N. of &c. farmer, and R. S. of &c. inn- 
 keeper, do undertake that during the possession of such property by 
 the said appellant, he will not commit or suffer to be committed, 
 any waste thereon, and that if the said judgment be affirmed, he 
 will pay the value of the use and occupation of the property, from 
 this time until the delivery of the possession thereof, pursuant to 
 said judgment, not exceeding the sum of [one thousand] dollars ; 
 and will in addition pay all costs and damages which may be awar- 
 ded against him, on said appeal, not exceeding the sum of two 
 hundred and fifty dollars. 
 
 Dated &c. I- N. 
 
 R. S. 
 
 [Add affidavit of justification of sureties {which must he in double 
 the amount specified in the undertaking and of the costs on the appeal) 
 as in No. 134. j^lso acknowledgment as in No. 135.] 
 
 [ No. 139. ] 
 
 Undertaking to stay execution on appeal from judgment, directing 
 the sale of inort gaged premises arid paijment of the deficiency. 
 
 [The same as in No. 133 to the t, then add] sale of certain mort-
 
 PRACTICAL FORMS. 499 
 
 gaged premises which are bounded and described as follows, {here 
 describe premises) and for the payment by the said C. D., of any 
 deficiency that may remain upon a sale of said mortgaged premises, 
 and also the sum of (ninety-four dollars) costs and disbursements. 
 
 Now therefore, we, J. N., of, &c., farmer, and R. S., of, &c., 
 innkeeper, do undertake that during the possession of said property 
 by the said appellant, he will not commit, or suffer to be committed, 
 any waste thereon, and that if the said judgment be affirmed, he 
 will pay the value of the use and occnpation of the property from 
 this time until the delivery of possession thereof, pursuant to said 
 judgment, and the deficiency (if any) that shall remain after the 
 application of the proceeds of the sale thereof, pursuant to said 
 judgment, not exceeding the sum of (two thousand) dollars, and 
 will in addition pay all costs and damages which may be awarded 
 against him on said appeal, not exceeding the sum of two hundred 
 and fifty dollars. 
 
 Dated, &c. 
 
 J. N. 
 E. S. 
 
 [Add affidavit of JKStiJication of sureties {which must he in double 
 theamount specified in the undertaki?jg, and of the costs on the appeal) 
 as in No. 134 ; also, acknowledgmement as in No. 135.] 
 
 [ No. 140. ] 
 
 Affidavit to obtain order for judgment debtor to make discovery after 
 return of an execution unsatisfied. 
 
 Supreme Court. 
 
 A. B., plaintiff", 
 
 ag'st. 
 C. D., defendant. 
 
 County of Orange. — A. B., the above named plaintiflf being 
 duly sworn, says that judgment was recovered in this action against 
 the above named defendant, C. D., on the first day of August, one 
 thousand eight hundred and forty-nine, for five hundred dollars and 
 costs ; and the judgment roll filed in the office of the clerk of the 
 county of Orange ; that an execution against the property of the 
 judgment debtor has been duly issued to the sheriff* of the said
 
 500 PRACTICAL FORMS, 
 
 county of Orange ; that the judgment debtor resided in the said 
 
 county at the time of issuing such execution, and still so resides ; and 
 
 that the said sheriff has returned the said execution unsatisfied. 
 
 Sworn, &c. 4 
 
 A. B. ^ 
 
 [ No. 141. ] 
 
 Order for judgment debtor to make discovery on return of an execu- 
 tion unsatisfied. 
 
 A. B., plaintiff, 
 
 ag''st. 
 C. D., defendant. 
 
 It appearing to me by the affidavit of the plaintiff, that an exe- 
 cution against the property of C. D., the defendant in this action, 
 has been duly issued to the sheriff of the proper county upon the 
 judgment herein, and returned unsatisfied; I do hereby require the 
 said C. D. to appear before me, at my office in the city of Albany, 
 on the tenth day of September, one thousand eight hundred and 
 forty-nine, at ten o'clock in the forenoon, to make discovery on oath 
 
 concerning his property. 
 
 A. J. Parker, 
 Justice Supreme Court. 
 Dated, &c. 
 
 [ No. 142. ] 
 
 j^ffidavit to procure order to examine third person as to property, 
 
 fyc, of judgment debtor. 
 
 A. B. plaintiff, 
 
 ag'st. 
 C. D., defendant. 
 
 County of Putnam. — A. B., the above named plaintiff, being duly 
 sworn, says that judgment was rcovered herein on the tenth day of 
 July, one thousand eight hundred and forty-nine, for two hundred 
 dollars and twenty-five cents, and the record thereof filed in the 
 office of the clerk of the county of Putnam ; that an execution
 
 PRACTICAL FORMS. 601 
 
 against the property of the said C. D., has been dulj' issued to the 
 sheriff of the county of Putnam, and has been returned by said 
 sheriff, unsatisfied, and that E. F., of the town of Cannel, in said 
 county, has property of the said C. D., [or is indebted to such 
 defendant, C. D., in an amount exceeding the sum of ten dollars,] 
 and further he says not. 
 
 Subscribed and sworn, &c. 
 
 [ No 143. ] 
 Order to examine third person as to property (f judg7m7it dehto.r. 
 
 Supreme Court. 
 
 A. B., plaintiff, 
 
 ag^st. 
 C. D,, defendant. 
 
 It appearing to me that an execution against the property of C. 
 D., the defendant in this action, has been duly issued to the sheriff 
 of the proper county upon the judgment herein, and returned un- 
 satisfied, and that E. F., of the town of Hunter, in the county of 
 Greene, has property of the judgment debtor, or is indebted to 
 him ; I do hereby require the said E. F, to appear before me, at 
 my chambers in the town of Durham, on the first day of Septem- 
 ber, one thousand eight hundred and forty-nine, and be examined 
 
 concerning the same. 
 
 L. Tremain, 
 County judge of Greene county. 
 Dated, &c. 
 
 [ No. 144. ] 
 
 Affidavit, to ohtai7i order for judgment debtor, to make discovery, 
 after execiUion ibsue and before return. 
 
 [Title of cause.'] 
 
 County of Erie. — A. B. the above named plaintiff, being duly 
 sworn says, that judgment was recovered in this action, against the 
 above named defendant, on the first day of July, one thousand 
 eight hundred and forty-nine, for five hundred dollars, and costs:
 
 502 PRACTICAL FORMS. 
 
 that the judgment roll was filed in the office of the clerk of the 
 county of Erie, and that an execution against the property of the 
 judgment debtor, has been duly issued to the sheriff of the said 
 county of Erie, that the judgment debtor resided in said county at 
 the time of issuing said execution, and now resides therein. And 
 deponent further says that said judgment debtor has property, to 
 wit, a promissory note for five hundred dollars, made by one A. K. 
 which he unjustly refuses to apply towards the satisfaction of the 
 said judgment. 
 
 Sworn, &c. 
 
 A. B. 
 
 [ No. 145. ] 
 Order thereupon. 
 
 [THtle of cause.] 
 
 It appearing to me by the affidavit of the plaintiff, that an exe- 
 cution against the property of C. D., the defendant in this action, 
 has been duly issued to the sheriff of the proper county, upon the 
 judgment in this cause, and that said defendant has property, to 
 wit, a promissory note for five hundred dollars, made by one A. K., 
 which he unjustly refuses to apply towards the satisfaction of the 
 said judgment : I do hereby require the said C. D. to appear before 
 me, at my office in the city of Troy, on the eighteenth day of No- 
 vember next, at ten o'clock in the forenoon, to answer concerning 
 such property. 
 
 Dated, &;c. 
 
 A. R., County Judge of Rensselaer Co. 
 
 [ No. 146. ] 
 
 Affidavit to procure warrant. 
 
 [Title of cause] 
 
 Broome county. — A. B. plaintiff in this cause, being duly sworn 
 savs, that judgment was recovered in this action against the above 
 named defendant, on the tenth day of August, one thousand eight
 
 PRACTICAL FORMS. 503 
 
 hundred and forty-nine, for one thousand dollars and costs: that 
 the judgment roll was filed in the office of the clerk of the county 
 of Broome, and that an execution has been issued against the pro- 
 perty of the judgment debtor, to the sheriff of the said county of 
 Broome, that being the county in which the said judgment debtor 
 resided at the time of issuing said execution and now resides, [and 
 that the said sheriff has returned the said execution unsatisfied,] 
 [or that the said judgment debtor has property [describing it] which 
 he unjustly refuses to apply towards the satisfaction of said judg- 
 ment.] And defendant further says that he has reason to believe 
 and does believe, that there is danger of said debtor's absconding 
 and going beyond the reach of the process of any court or officer of 
 this state, and that such belief is founded upon the following facts 
 and circumstances: [here state particularly the facts and circum- 
 stances.] 
 Sworn, &c. 
 
 A. B. 
 
 [ No. 147. ] 
 n arrant against judgment debtor. 
 
 [Title of cause.] 
 
 To the sheriff of the county of Monroe. 
 
 It appearing to me by the affidavit of the plaintiff, that an ex- 
 ecution against the property of C. D., the defendant in this action,, 
 has been duly issued to the sheriff of the proper county, upon the 
 judgment herein, [and returned unsatisfied,] [or that the judgment 
 debtor has property which he unjustly refuses to apply towards the 
 satisfaction of the said judgment,] and it also appearing to me by 
 the said affidavit, that there is danger of the said debtor's abscond- 
 ing, I do hereby require you forthwith to arrest the said C. D. and 
 bring him before me, to be dealt with according to law. 
 
 Given under my hand at the city of Rochester, this first day of 
 October, one thousand eight hundred and forty-nine. 
 
 A. N., County Judge of Monroe Co.
 
 504 PRACTICAL FORMS. 
 
 [ No. 148. ] 
 
 Undertaking by debtor arrested upon a warrant. 
 
 [Title of causeJ] 
 
 Whereas the defendant C. D. has been arrested by the sheriff of 
 the county of Onondaga, upon a warrant issued by the Hon. A. L., 
 county judge of said county, and has been brought before said 
 judge, now, therefore, we the said C. D. and E. F., as surety, do 
 hereby undertake, that the said C. D. will attend from time to time 
 before the said judge [or referee, in case one is appointed,] as he 
 shall direct, during the pendency of the proceedings and until the 
 final determination thereof, and will not in the mean time dispose 
 of any portion of his property exempt from execution. 
 
 Dated, &c. 
 
 C. D. 
 
 E. F. 
 
 [Add affidavit of justification of sureties, as in No. 134, also aC' 
 knoioledgment, as in No. 135.] 
 
 [ No. 149. ] 
 
 Order forbidding transfer of property. 
 
 [Title of cause.] 
 
 It appearing to me by the affidavit of the plaintiff, that an ex- 
 ecution against the property of C. D., the defendant in this action, 
 has been duly issued to the sheriff of the proper county, upon the 
 judgment herein, and returned unsatisfied. I do hereby forbid the 
 transfer or other disposition of the property of the said judgment 
 debtor, and do order that you, the said C. D., do absolutely desist 
 and refrain from any interference therewith, until a further order 
 shall be made. 
 Dated, &c. 
 
 A. N., County Judge.
 
 PRACTICAL FORMS. 505 
 
 - [ No. 150. ] 
 
 Order directing property of judgmeiit debtor to he applied. 
 
 [Title of caiise.] 
 
 It appearing to my satisfaction, that CD., the judgment debtor, 
 has property not exempt from execution [or that E. F. has property 
 belono-ino- to such debtor, or that G. H. is indebted to such debtor 
 in the sum of one hundred dollars] : I do hereby order, that all such 
 property of the judgment debtor not exempt from execution, in the 
 hands either of himself or of any other person, or due to such judg- 
 ment debtor, be applied towards the satisfaction of the judgment in 
 this cause. 
 
 Dated, &c., 
 
 N. S., County Judge. 
 
 [ No. 151. ] 
 
 Order for appointment of receiver of judgment debtor s property. 
 
 [Title of cause.'\ 
 
 CD., the judgment debtor in the above entitled action, having 
 been examined before me concerning his property, in pursuance of 
 an order heretofore made by me, 1 do hereby order that L. M., of 
 the town of New Scotland, in the county of Albany, be, and he 
 hereby is, appointed receiver of all the debts, property, equitable in- 
 terests, rights, and things in action of the said judgment debtor ; 
 that such receiver, before he enter upon the execution of his trust, 
 execute to the clerk of this court a bond, with sufficient sureties, 
 to be approved by me, in a penalty of one thousand dollars, condi- 
 tioned, that he will faithfully discharge the duties ai such trust, 
 and file the same with the clerk of the county of Albany ; and that 
 the said receiver, upon filing such bond, be invested with all rights 
 and powers, as receiver, according to law. 
 
 Dated. ^ ^ ^ 
 
 A. R., County Judge.
 
 506 PRACTICAL FORMS. 
 
 [ No. 152. ] 
 
 Receiver^ Bond 
 
 Know all men by these presents, That we, L. M., of the town 
 of New Scotland, in the county of Albany, and A. R., of the said 
 place, are held and firmly bound unto the clerk of the Supreme 
 Court of the State of New-York, in the sum of one thousand dol- 
 lars, lawful money of the United States of America, to be paid to 
 the said clerk, his successor in office, or assigns : For which pay- 
 ment well and truly to be made, we bind ourselves, our heirs, ex- 
 ecutors, and administrators, jointly and severally, firmly by these 
 presents, sealed with our seals, dated the first day of September, 
 one thousand eight hundred and forty-nine. 
 
 Whereas, by an order made by the honorable A. R., county judge 
 of Albany county, on the tenth day of August, 1849, the above 
 bounden L. M. was appointed receiver of all the debts, property, 
 equitable interests, rights, and things in action of C. D., a judgment 
 debtor. Now the condition of this obligation is such, that, if the 
 said L. M. shall faithfully discharge the duties of his trust, as such 
 receiver, then this obligation to be void, otherwise to be in full force 
 and effect. Sealed and delivered in presence of 
 
 L. M. [L. S] 
 A. K. [L. S.] 
 
 yAdd affidavit of justification of sureties, as in No. 134. Also, 
 
 acknowledgment, as in No. 135.] 
 
 [Endorsement.] 
 
 I approve of the within bond, and of the sufficiency of the 
 
 sureties. 
 
 A. R., County Judge. 
 
 [ No. 153. ] 
 
 Report of referees. 
 
 [Title of cause.] 
 
 The undersigned, referees, (ox sole referee,) appointed in this 
 cause, having heard the proofs and allegations of the parties, and 
 heard the arguments of their counsel, and duly considered the 
 same and deliberated thereon, do certify and report, that there ia
 
 PRACTICAL FORMS. 507 
 
 due from the defendant to the plaintiff the sum of five hundred 
 dollars. 
 
 A. B. ) 
 C. D. i 
 
 Referees. 
 
 [ No. 154. ] 
 
 Petition to continue action against representatives of deceased 
 
 defendants. 
 
 [Title of causeJ] 
 
 To the Supreme Court of the State of New-York : 
 The petition of A. B., of &c., plaintiff in this suit, respectfully 
 shows that this action was commenced against the above named 
 defendant to recover the sum of five hundred dollars and interest, 
 upon the promissory note of the defendant for that amount, dated 
 on the first day of July, one thousand eight hundred and foriy-nine, 
 payable to the plaintiff or order sixty days after date, \or the cause 
 of the action as it w.] That an issue of fact has been joined in 
 said action by a reply to the answ^er of the defendant, [or that an 
 issue of law has been joined in said action, by a demurrer to the 
 complaint or answer.] Your petitioner further shows that, as he 
 has been informed and believes true, the said defendant departed 
 this life on or about the eighth day of November last, intestate, 
 and that on or about the twenty-fifth day of November last, E. F., 
 of the town of Esopus, in the county of Ulster, was duly appointed 
 by the surrogate of said county of Ulster, the administrator of all 
 and singular, the goods, chattels, right and credits of said CD. 
 
 Your petitioner therefore pra3's, that the said action may be con- 
 tinued against the said E. F., administrator as aforesaid. 
 
 Dated, dec. 
 
 A. B. 
 G. H., Pltff's Att'y.
 
 508 PRACTICAL FORMS. 
 
 [ No. 155. ] 
 
 Affidamt of verification annexed. 
 
 County of Ulster.— A. B., in the foregoing petition named, be- 
 ing sworn, says, that he has read [or heard read] the foregoing pe- 
 tition, and that he believes the same to be true. 
 
 Sworn, &c. 
 
 A. B. 
 
 [ No. 156. ] 
 Notice of motion on above petition. 
 
 [Title of cause.] 
 
 To J. K., Def'ts Att'y, and 
 E, F., Adm'r, &c. 
 
 Sir: 
 
 Take notice that I shall present the petition (a copy whereof 
 is hereto annexed,) to this court, at a special term thereof to be 
 held at the city hall in the city of Albany, on the last Tuesday of 
 December next, at the opening of the court, and move the said 
 court for an order granting the prayer thereof, or for such further, 
 or for such other order or relief as the court may grant. 
 
 Yours, &c., 
 
 G. H., Pltf's Att'y. 
 
 [ No. 157. ] 
 
 Order therevpon. 
 
 At a special term of the Supreme Court, held at the city hall in 
 the city of Albany, on the last Tuesday of December, one thou- 
 sand eight hundred and forty-nine. 
 Present: William B. Wright, Justice. 
 A. B. 
 
 vs. 
 C. D. 
 
 On reading and filing a petition in this cause, duly verified 
 and dated on the 20th day of November, 1S49, * and after hear-
 
 PRACTICAL FORMS. 509 
 
 ing Mr. J. N., of counsel for the petitioner, and Mr. R. S., of coun- 
 sel for E. F., administrator of C D., deceased, it is ordered that 
 this action be and the same is hereby continued against the said 
 E. F., administrator, &c., of CD., the defendant therein, deceased. 
 
 [ No. 158. ] 
 The. like where no one apyexis to oppose. 
 
 [Like No. 157 to the *, then add,] and also proof of the due ser- 
 vice of a copy of said petition and notice of motion thereon, upon 
 the defendant's attorney, and also upon E. F., administrator of 
 said C. D., on motion of Mr. J. N., of counsel for the plaintiff, no 
 one appearing to oppose, it is ordered, &c., [same as in last form.] 
 
 Note, — A ■petition, SfC.y by defefidant, upon death of the plaintiff 
 or by representatives of plaintiffs to continue the action can easily be 
 framed from the above forms. 
 
 [ No. 159. ] 
 Petitio?i for the appoint7nent of a guardian of an infant plaintiff. 
 
 To the Supreme Court of the State of New York. 
 
 The petition of A. B., an infant of the age of fourteen years and 
 upwards, {if the infant be under 14, then the petition must be by 
 some relative,) respectfully shows, that your petitioner is about to 
 commence a suit in the Supreme Court against C. D., for {here 
 state cause of action.) 
 
 But as your petitioner is an infant, as above stated, he prays that 
 J. N., of &c., (who is the general guardian of your petitioner, or, 
 who is an attorney of this court,) a competent and responsible per- 
 son, may be appointed to prosecute the said suit for your petitioner, 
 as his guardian, according to the statute in such case made and 
 provided. 
 
 Dated this first day of August, 1849. 
 
 A. B. 
 
 Witness, W. S.
 
 510 PRACTICAL FORMS. 
 
 [ No. 160. ] 
 
 Consent of guardian annexed. 
 
 I consent to become the guardian of A. B., in the suit mentioned 
 
 in the above petition. 
 
 Dated, &c. 
 
 J. N. 
 
 Witness, W. S. 
 
 [ No. 161. ] 
 
 Affidavit annexed. 
 
 County of Ulster.— P. N., of &c., being duly swcrn, says that 
 
 A. B., in the annexed petition named, did, on the first day of 
 
 August instant, duly sign the said petition in the presence of this 
 
 deponent ; and that J. N , in the prayer of the said petition named, 
 
 did at the same time sign the consent thereunder written, as the 
 
 guardian of the said A. B , in the presence of this deponent. 
 
 Sworn, &c. 
 
 P.N. 
 
 [ No. 162. ] 
 
 Certificate of the judge endorsed. 
 
 I certify that I have examined into the circumstances of the 
 
 within petition, and am of opinion that J. N., who is proposed in 
 
 such petition as guardian of the petitioner, is a suitable and proper 
 
 person to be such guardian ; and that he has no interest in the suit 
 
 in opposition to the interest of the petitioner. 
 
 Dated, &Ce 
 
 O. R., county judge, &c.
 
 PRACTICAL FORMS. 511 
 
 [ No. 163. ] 
 Order thereon. 
 
 At, &c., (as in No. 157). 
 
 [Title of cause."] 
 
 Supreme Court. — On filing the petition of A. B., an infant of the 
 age of fourteen years and upwards, praying for the appointment 
 of J. N., as his guardian, to prosecute a suit in the Supreme Court 
 against C. D., and also the papers thereto annexed, it is ordered 
 that the said J. N. be, and he hereby is, appointed such guardian. 
 
 [ No. 164. ] 
 Petition for the appointment of a guardian for an infant defendant. 
 
 To the Supreme Court of the State of New-York : 
 
 The petition of C. D., an infant of the age of fourteen years, and 
 upwards, to wit of the age of sixteen years, respectfully shows: 
 
 That an action has been commenced against your petitioner in 
 the Supreme Court, by A. B., for {here state cause of action,] and 
 that the summons therein was served on him on the first day of 
 October, 1849. 
 
 But as your petitioner is an infant, as above stated, he prays that 
 E. G., of, &c., [general guardian of your petitioner, or an attorney 
 of the Supreme Court,] may be appointed guardian of your peti- 
 tioner in the defence of the said suit, according to the statute in 
 such case made and provided. 
 
 Dated, &c. 
 
 CD. 
 
 Witness, R. S. 
 
 [ No. 165. ] 
 
 CoTtsent of guardian annexed. 
 
 I consent to become the guardian of C. D. in the defence of the 
 suit mentioned in the above petition. 
 Dated, &c. 
 Witness, R. S.
 
 512 PRACTICAL FORMS. 
 
 [The affidavit of the signatures and the certificate of the judge is 
 the same as that appended to the last form., and the order will be the 
 same, substituting the word " defe?id"for " prosecute."] 
 
 [ No. 166. ] 
 
 Petition by plaintiff for appointment of guardian for infant defend- 
 ant who has neglected to apply. 
 
 [Title of cause.] 
 
 To the Supreme Court of the State of New-York : 
 
 The petition of A. B., of, &c., respectfully shows : That an ac- 
 tion has been commenced by your petitioner in the Supreme Court 
 against C, D., who is an infant under the age of twenty-one years, 
 for [here state cause of action.] that the summons in the said action 
 was served upon the said C. D. more than twenty days since, and 
 that said C. D. has not, nor has any relative or friend of said C. D. 
 applied for the appointment of a guardian of said C. D. to defend 
 said action. 
 
 Your petitioner therefore prays that some suitable and proper 
 
 person may be appointed the guardian of said C. D. to defend said 
 
 action. 
 
 A. B. 
 
 Dated, &c. 
 
 [ No. 167. ] 
 Order to be e?itered thereon. 
 
 At,&c., (a3 in No. 157). 
 
 [Title of cause] 
 
 On reading and filing the petition of A. B., plaintiff in this ac- 
 tion, praying for the appointment of some suitable and proper per- 
 son as the guardian of C. D., defendant in said action, who is an 
 infant under the age of twenty-one years. On motion of E. G., 
 attorney for plaintiff, I do hereby appoint I. N., of, &c., an attorney 
 of this court, the guardian of said C. D. to defend this action.
 
 PRACTICAL FORMS. 513 
 
 [ No. 168. ] 
 
 Demand to have action tried in proper county. 
 
 [Title of cause.'] 
 
 To E. F., plaintiff's attorney. 
 
 Sir — The defendant hereby demands that the trial of this action 
 
 be had in the county of Ulster instead of the county of Orange, as 
 
 designated in the complaint. 
 
 G.H., Def'ts Atty. 
 Dated, &c. 
 
 [ No. 169. ] 
 
 Undertaking by plaintiff to prosecute suits, concerning attached 
 
 property. 
 
 [ Title of cause?^ 
 
 Whereas, A. B. sheriff of the county of Wayne, has attached and 
 taken into his custody, certain property and effects of C. D. the above 
 named defendant, concerning which it is intended to commence one 
 or more actions. And whereas the said sheriff has consented that 
 such actions may be prosecuted by the above named plaintiff or un- 
 der his direction. Now therefore we, E. F. of &c. wagon maker, 
 and G. H. of &c. tanner, undertake that the plaintiff will indemnify 
 the said A. B., sheriff as aforesaid, from all damages, costs and ex- 
 penses on account of said actions or either of them, not exceeding 
 however the sum of two hundred and fifty dollars in any one action. 
 
 Dated &c. 
 
 E. F. 
 G.H. 
 
 \Add affidavit of justification as in JS'b. 134, and proof or acknow- 
 ledgment as in No. 135.] 
 
 [ No. 170. ] 
 
 Bond to indemnify sheriff upon claim nf third person of property ta- 
 ken upon attachment. 
 
 Know all men by these presents, that we, A. B. of &c. and C. D. 
 
 33
 
 514 PRACTICAL FORMS. 
 
 of &:c. are held and firmly bound unto J. K., sheriff of the county of 
 Genesee, in the sum of five hundred dollars, lawful money of the 
 United States, to be paid to the said J. K., sheriff as aforesaid, his 
 executors, administrators and assigns, for which payment well and 
 truly to be made, we bind ourselves our heirs, executors and ad- 
 ministrators, jointly and severally firmly by these presents, sealed 
 with our seals and dated the first day of August, one thousand eight 
 hundred and forty-nine. 
 
 Whereas an attachment has been issued in an action in the Su- 
 pseme Court in favor of the above named A. B., against one E. F., 
 upon which the above named J. K. sheriffof the said county of Gen- 
 esee, has attached and taken into his custody, certain goods and 
 chattels, viz : [here describe them) ; and whereas G. H. of &c. claims 
 the said goods and chattels as his : Now therefore the condition of 
 this oblicration is such that if the above bounden A. B. shall and 
 does well and sufficiently indemnify, save and keep harmless the 
 said J. K., sheriff as aforesaid, of, from and against the said claim, 
 and shall pay all costs and damages that the said J. K. may incur 
 or be put to in consequence of such claim, then this obligation to 
 be void, otherwise to be and remain in full force and virtue. 
 
 Sealed and delivered in presence of 
 
 \Add affidavit of justification as in No. 134, and proof or acknow- 
 ledi^ment as in No. 135.] 
 
 [ No. 171. ] 
 
 Order staying proceedings to make a case or hill of exceptions to Set 
 
 aside a verdict. 
 
 [Title of cfflHse.] 
 
 On motion of E. F., attorney for the plaintiff, (or defendant,) 
 ordered, that all proceedings upon the verdict entered in this cause 
 \}C stayed, until a bill of exceptions (or case) is made and filed. 
 
 [This order is to be entered in the minutes of the court at the trial, 
 a?id a copy served upon the opposite attorney.)
 
 PRACTICAL FORMS. &15 
 
 [ No. 172. ] 
 The like upon trial by a judge, without a jury. 
 
 [Title of cause.] 
 
 On motion of E. F., attorney for the plaintiff, (or defendant,) 
 ordered, that all proceedings upon the judgment entered in this 
 cause be stayed, until a case (or bill of exceptions) is made and 
 filed. 
 
 {To he entered and served same as last order.) 
 
 [ No. 173. ] 
 
 The like upon trial by referees. 
 
 [Title of cause.] 
 
 Let all proceedings upon the judgment entered upon the report 
 of referees in this cause be stayed, until a case is made and filed. 
 
 Dated, &c. 
 
 J. N., Justice Sup. C't. 
 
 {This order is obtained from a judge at chambers, and a copy 
 served upon the opposite attorney.) 
 
 [ No. 174. ] 
 Affidavit to procure order to file complaint. 
 
 [Title of cause.] 
 
 County of Yates. — C. D., defendant in this action, (or E. F., the 
 attorney for the defendant,) being sworn, says that he was (or that 
 the defendant was) served with a copy summons in this action, on 
 the tenth day of September last, (or instant,) and that the com- 
 plaint in said action has not been filed with the clerk of this court. 
 
 Sworn, &c. 
 
 CD.
 
 516 PRACTICAL FORMS. 
 
 [ No. 175. ] 
 
 Certificate of clerk of county where action is triable, annexed. 
 
 [Title of cause.] 
 
 I certify that no complaint in this action has been filed in my 
 office. 
 
 Dated, &c. 
 
 J. N., Clerk of Yates county. 
 
 [ No. 176. ] 
 Order to file complaint. 
 
 [Title of cause.] 
 
 It satisfactorily appearing that the complaint in this action has 
 not been filed, I do hereby order that the plaintiff file the same in 
 the office of the clerk of this court, in the county of Yates, within 
 (ten) days from the service of this order, or he will be deemed to 
 have abandoned the same. 
 
 Dated, &c. 
 
 R. P., Justice Sup. C't. 
 
 {An affidavit, Sfc, and order for filing any other pleading, can 
 easily be framed from the above. 
 
 [ No. 177. ] 
 
 Undertaking upon answer of title in Justices^ Court. 
 
 In Justices' Court. 
 
 A. B., Plaintiff, ) 
 
 agt. > Before James Jackson, justice of the peace. 
 
 C. D., Defe7idant. ) 
 
 Whereas, the defendant in this action has put in an answer 
 thereto, by reason whereof the title to real property will come in 
 question on the trial thereof. Now therefore, we, E. F., of the 
 town of Greene, in the county of Chenango, farmer, and G. H., of 
 the town of Oxford, in said county, grocer, undertake that if the 
 plaintiff in said action shall, within thirty days hereafter, deposite 
 
 I
 
 PRACTICAL FORMS. 517 
 
 with the justice before whom said action is pending (or with James 
 Jackson, the justice,) a summons and complaint in an action in the 
 Supreme Court for the same cause, the defendant will, within ten 
 days after such deposite, give to the said plaintiff an admission 
 in writing of the service thereof.* 
 
 Dated, &c. 
 
 E. F. 
 
 G. H. 
 
 [ No. 178. ] 
 
 Approval by justice endorsed. 
 
 I hereby approve of the within undertaking, and of the sufficiency 
 of the sureties therein. 
 
 J. J. justice. 
 
 [ No. 179. ] 
 
 The like in an action in which the defendant is arrested. 
 
 (Like No. 177 to the * j then add) and that the said defendant 
 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. 
 Dated, Sec. 
 
 E. F. 
 G. H.
 
 I 
 
 INDEX TO THE PRACTICE. 
 
 I 
 
 ABATEMENT, 
 
 What it is, 21. 
 
 Effect of on the action, 21. 
 
 Death of sole plaintiff, 21. 
 
 Death of part}' after verdict, no, 21. 
 
 Death of sole defendant, 22. 
 
 Death of one of several plaintiffs, 22. 
 
 Death of one of several defendants, 22. 
 
 Affidavit to revive, 23, 
 
 Motion to revive, 23. 
 
 Motion, who may make, 23. 
 
 Motion when made, 23. 
 
 Motion how made, 23. 
 
 Death of party after judgment, who may bring appeal, 295. 
 
 ABSENT, NON-RESIDENT AND CONCEALED DEF'TS. 
 Attachments against, 89. 
 When it may be applied .'"or, 90, 
 
 and see title "Attachment." 
 How served with summons, 113. 
 Affidavit to obtain order, 113. 
 Order for publication, 114. 
 Summons how long published, 115. 
 In what papers, 114. 
 
 Service of summons, notwithstanding publication, 115. 
 Proof of publication of summons, 115. 
 Form of summons against, 115. 
 Demand of copy complaint by, 116. 
 Obtaining copy complaint by, 116. 
 Proof ot service of suaiinoas against, 118.
 
 520 INDEX TO PRACTICE. 
 
 ABSENT &c., DEFENDANTS, 
 
 Application for judgment against, 121. 
 
 Proof to be furnished, 122. 
 ACKNOWLEDGMENT, 
 
 Of undertaking, 257. 
 ACCOUNT, 
 
 Not necessary to be set out in pleading, 38. 
 
 Items of, how obtained, 130. 
 ACTIONS, 
 
 Local where triable, 25. 
 
 Which must be tried where the subject is, 25. 
 
 Where the cause of action arose, 27. 
 
 Where parties or some of them reside, 29. 
 ACTION, 
 
 Civil, what are, 4. 
 
 Criminal what are, 5. 
 
 Parties to, 9, 16. 
 
 Abated, how continued, 21. 
 
 How continued after lapse of one year, 24. 
 
 Joinder of actions, 45. 
 
 Actions that may be joined, 46. 
 
 Actions that may not be joined, 47. 
 
 Commencement of, 49. 
 
 Insufficient cause of ground of demurrer, 138. 
 
 Trial of, and subsequent proceedings, 160. 
 
 Costs in, 203. 
 
 For foreclosure of mortgage, 315. 
 
 Action for partition of lands, 333. 
 
 For divorce, 340. 
 ADDITIONAL 
 
 Allowance of costs, 216. 
 ADJOURNMENT 
 
 Of reference, 192. 
 ADJUSTING, 
 
 Costs, 219, 
 
 Motion for re-adjustment, 220. 
 ADMINISTRATOR, 
 
 When may be plaintiff, 10. 
 
 When should be defendant, 16. 
 
 Action abated, should be continued by, 21.
 
 I 
 
 INDEX TO PRACTICE. 521 
 
 ADMINISTRATOR 
 
 Costs in actions by and against, 207. 
 
 Motion for costs against, 211. 
 ADULTERY, 
 
 Action for divorce on account of, 340. 
 ADVERTISEMENT, 
 
 Of summons against non-resident or concealed deft, 115. 
 
 Of sale of mortgaged premises, 329. 
 AFFIDAVIT. 
 
 To obtain order for publication against absent deft, 13- 
 
 To obtain order for arrest, 57. 
 
 To obtain delivery of personal property, 72. 
 
 To obtain injunction, 84. 
 
 To obtain attachment against non-resident or concealed 
 defendant, 90. 
 
 Of service of summons, 118. 
 
 Of publication of summons, 118. 
 
 For motion for judgment in sham answers, 150. 
 
 Of merits, to prevent inquest, 172. 
 
 For reference, 188. 
 
 To oppose motion, 188. 
 
 Annexed to undertaking, 278. 
 
 For order of reference in foreclosure suit, 324. 
 
 Of no absent defendants, 324. 
 
 Of no answer, 324. 
 
 Of filing lis pendens, 326. 
 
 Of facts to obtain order for judgment debtor to appear and 
 answer, 352. 
 
 To obtain warrant to arrest judgment debtor, 355, 
 
 For special motions, 376. 
 AGENT, 
 
 When may sue, 9. 
 
 Or be sued, 16. 
 
 When may verify complaint, 107. 
 ALIMONY, 
 
 Application for, 344. 
 ALLOWANCE, 
 
 Of additional costs, 216. 
 
 How computed, 217. 
 
 How ascertained, 213.
 
 522 INDEX TO PRACTICE. 
 
 AMENDMENT, 
 
 Of pleading, 39. 
 
 Upon what terms, 39. 
 
 In genera], 39. 
 
 Before judgment, 41. 
 
 In what cases, 41. 
 
 How allowed, 41. 
 
 Motion for leave to amend, 41. 
 
 Of course, 42. 
 
 Upon the trial, 42. 
 
 By adding a party, 42. 
 
 Must pay costs, 42. 
 
 Of summons, 43. 
 
 Of complaint, 108. 
 
 Plaintiff has 20 days after answer, 103. 
 
 After demurrer, 103. 
 
 OF ANSWER, 
 
 Defendant has 20 days after reply, 152. 
 After demurrer, 152. 
 
 AMOUNT, 
 
 Of damages recoverable, 199. 
 Of costs recoverable, 213. 
 
 ANSWER, 
 
 What it is, 145. 
 
 General rules in regard to, 145. 
 
 What it should contain, 145. 
 
 General or specific denial, 146. 
 
 Setting up new matter, 147. 
 
 Allegations in complaint not controverted are admitted, 148. 
 
 When it should be verified, 149. 
 
 Form of verification of, 149. 
 
 Effect of verifying, 150. 
 
 Sham answers, 150. 
 
 Motion for judgment on account of, 150. 
 
 Affidavit for motion, 150. 
 
 Must be folioed, 150. 
 
 Amendment of, see title "amendments," 
 
 Motion to strike out irrelevant or redundant matter in, 151. 
 
 ]\lolion, when made. 150. 
 
 Motion to strike out sham, 150.
 
 ^ 
 
 INDEX TO PRACTICE. 523 
 
 ANSWER. 
 
 Enlarging time to answer, 151. 
 Must be served in 20 days, 151. 
 Answer after demurrer overruled, 152. 
 Answer in foreclosure suits, 323. 
 Answer in partition suits, 337. 
 Answer in divorce suits, 343. 
 
 APPEAL, 
 
 To Supreme Court from an Inferior Court, 251. 
 
 What it is, 251. 
 
 Substitution for writ of error, 252. 
 
 When taken, 252. 
 
 In two years from entering of judgment, 252. 
 
 By whom taken, 252. 
 L From what judgments, 253. 
 
 I Cases arising in a justices' court, 253. 
 
 ' Parties, how called, 254. 
 
 Notice of appeal, 254. 
 
 Service of notice, 255. 
 
 The undertaking-, or deposite, 255-261. 
 
 May be waived by consent, 255. 
 
 Undertaking necessary to stay execution, 256. 
 
 Undertaking must be proved or acknowledged, 257. 
 
 Undertaking need not be executed by appellant, 257. 
 
 Undertaking need not be approved, 257. 
 
 Excepting to sureties, 559. 
 
 Affidavit annexed to undertaking, 259. 
 
 Serving copy undertaking, ki59. 
 
 Sureties justifying, 260. 
 
 Other sureties, 260, 
 
 Manner of justifying, 261. 
 
 Examination to be in writing, and annexed, 261. 
 
 To allownnce of sufficiency, 261. 
 
 Qualifications of sureties, 261. 
 \ Perfected, stays proceedings in the court below, 258. 
 
 ;; Filing undertaking, 261. 
 
 ' Transmitting judgment roll, 262. 
 
 ;■ When to be transmitted, 262. 
 
 Return where filed, 263.
 
 524 INDEX TO PRACTICE. 
 
 APPEAL 
 
 Obtaining further return, 264. 
 Preparing case, 264. 
 Printing case, 265. 
 Points, 265. 
 Serving case, 265. 
 
 Enlarging time to serve do, 266. '1 
 
 Notice of argument of do, 266. 
 Where appeal must be heard, 266. 
 Note of issue, 266. 
 When filed, 267. 
 Making up calendar, 267. 
 Argument, 267. 
 Taking default, 268. 
 
 Counsel must endorse name on papers, 268. 
 Decision, 263. 
 Costs, 270. 
 
 Entering judgment, 270. 
 Serving copy rule, 270. 
 Rule where entered, 270. 
 Interest on judgment of court below, 270. 
 APPEAL 
 
 From judgment of single judge oe repobt of befesees, 
 
 to general term, 27l 
 In what case, 271, 
 Practice changed, 27L 
 Appeal when taken, 272. 
 Within what time, 272. 
 Who may appeal, 272. 
 Parties how called, 272. 
 From what judgment, 273. 
 From what orders, 273. 
 Orders made out of court, 274. 
 Notice of appeal, 274. 
 What to contain, 274. 
 Service of notice, 274. 
 Undertaking, 275. 
 Deposite, 275-28L 
 May be waived by consent, 275. 
 When necessary to stay execution, 275. 
 Must be proved or acknowledged, 277.
 
 INDEX TO PRACTICE. 525 
 
 Need not be executed by appellant, 277. 
 
 Need not be approved, 277. 
 
 Affidavit annexed, 278. 
 
 Serving copy, 279. 
 
 Excepting to sureties, 279, 
 
 Sureties justifying, 279. 
 
 Other sureties, 280. 
 
 Manner of justifying, 280. 
 
 Examination to be in writing, and annexed to allowance 
 
 of sufficiency. 281. 
 Qualifications of sureties, 281. 
 Filing undertaking, 281. 
 Not necessary to transmit judgment roll, 282. 
 Preparing case, 282. 
 Printing case and points, 283. 
 Serving case, 283. 
 Enlarging time to serve, 283. 
 Notice of argument, 284. 
 Where appeal mus^be heard, 284. 
 Note of issue, 284. 
 Where filed, 284. 
 Calendar, 284. 
 Argument, 285. 
 Taking default, 285. 
 
 Counsel must endorse name on papers, 285. 
 Decision, 286. 
 Costs, 286. 
 
 Entering judgment, 286. 
 Serving rule, 286. 
 Rule when entered, 286. 
 Where entered, 286. 
 APPEAL TO THE COURT OF APPEALS. 
 Jurisdiction of court of, 289. 
 From judgments, 289. 
 From orders, 291. 
 
 Within what time appeal must be made, 293. 
 Who may bring appeal, 294. 
 In case of death, 295. 
 la actions concerning real property, 295. 
 \ By attorney-general, 295. 
 
 By husband and wife, 295. 
 
 ^
 
 520 INDEX TO PRACTICE. 
 
 APPEAL TO THE COURT OF APPEALS. 
 
 By survivors, 295. 
 
 Joinder of parties in, 295. 
 
 Excuse for not joining, 295. 
 
 Rule and service, 296. 
 
 Default, 297. 
 
 Misjoinder, 297. 
 
 Against whom brought, 297. 
 
 Attorney, 298. 
 
 Notice of appeal, 298. 
 
 Service, 298. 
 
 Undertaking, 298. 
 
 Deposite,299. 
 
 Must be at least two sureties, 299. 
 
 Security may be waived, 299. 
 
 Undertaking necessary to stay execution, 299. 
 
 Need not be approved, 301. 
 
 Must be proved or acknowledged, 301. 
 
 Affidavit to be annexed, 302. 
 
 Serving copy undertaking, 302. 
 
 Excepting to sureties, 303. 
 
 Sureties justifying, 303. 
 
 Other sureties, 304. 
 
 Manner of justifying, 304. 
 
 Examination to be annexed to allowance, 305. 
 
 Qualifications of sureties, 305. 
 
 Filing undertaking, 305. 
 
 Transmitting judgment roll, 305. 
 
 When to be transmitted, 306. 
 
 Obtaining further return, 306. 
 
 Making case, 307. 
 
 Printing case and points, 307. 
 
 Serving case, 308. 
 
 Notice of argument, 308. 
 
 Note of issue, 308, 
 
 Calendar how made up, 309. 
 
 Argument of appeal, 309. 
 
 Extended discussion of facts will not be heard, 309. 
 
 No ex parte argument, 309. 
 
 May take judgment by default, 310. 
 
 Remittitur to be retained 10 days incase of default, 310,
 
 INDEX TO PRACTICE. 527 
 
 APPEAL TO THE COURT OF APPEALS. 
 
 Default may be set aside, 810. 
 
 Submitting case on printed arguments, J310. 
 
 Decision, 311. 
 
 Remittitur, 311. 
 
 Costs, 312. 
 
 Execution, 313. 
 APPEAL, 
 
 From ordek, to general term of Suprebie Coitrv, 383. 
 
 From what orders may be taken, 3S3. 
 
 Must have been made at special term or single judge, 383. 
 
 Ex parte orders not appealable, 383. 
 
 Order must be entered, 384. 
 
 Entry of, may be compelled, 384. 
 
 When to be taken, 384. 
 
 Notice of must specify what part appealed from if not the 
 whole, 385. 
 
 Service of notice, 385. 
 
 No security required, 385. 
 
 Papers to be used on, 386. 
 
 Notice of hearing, 387. 
 
 Argument of, 387. 
 
 Default, 388. 
 
 Decision, 388. 
 
 Rule and service, 3SS. 
 
 Costs, 388. , 
 
 When payable, 389. 
 
 How collected, 389. 
 APPELLANT. 
 
 To make case, appeal from inferior courts, 264, 
 
 In Supreme Court, 282. 
 
 In Court of Appeals, 307. 
 APPZARANCE, 
 
 Notice of retainer shall be, 392. 
 
 At trial failure of, 176. 
 AUG U:\iENT, * 
 
 Notice of, 206. 
 
 Of appeal from inferior courts, 267. ' 
 
 In Supreme court, 284. 
 
 In Court of Appeals, 309. 
 
 On appeals from orders, 387.
 
 528 INDEX TO PRACTICE. 
 
 APPLICATION, 
 
 For judgment, where made, 121. 
 
 In foreclosure suit, 826. 
 
 In partition suit, 338. 
 
 In divorce cases. 344. 
 ASSIGNEES, 
 
 Actions b}'-, 10. 
 
 Costs against, 212. 
 ATTACHMENT, 
 
 Against foreign corporations, non-resident, absconding 
 and concealed defendant, 89. 
 
 When applied for, 89. 
 
 Who may grant, 90. r 
 
 Affidavit for, 90. 
 
 Security upon, 91. 
 
 How executed, 92. 
 
 Perishable property, 93. 
 
 Property claimed by another, 93. 
 
 Suits by sheriff, 93. 
 
 Satisfying judgments on, 94. 
 
 On judgment for defendant, 95. 
 
 Motion to discharge, 95. 
 
 Security on, 95. 
 
 Filing warrant, 95. 
 ARREST AND BAIL, 
 
 See title "Bail." 
 ASSESSMENT, 
 
 By clerk, 120. 
 
 Report of, 123. 
 ATTORNEY, \ 
 
 When may verify pleadings, 106. 
 
 What, may bring appeal, 298. 
 ATTORNEY GENERAL, 
 
 Appeal by, 295. 
 AWARDING, 
 
 Judgment, 197. 
 BAIL, 53. 
 
 In actions e.r delicto, 54. 
 
 In actions for fines and penalties, 54. 
 
 In actions to recover personal property, 65, 
 
 \
 
 INDEX TO PRACTICE. 
 
 529 
 
 BAIL, 
 
 BILL, 
 
 For fraud, 55. 
 
 When defendant has removed property, 56. 
 
 Obtaining order for arrest, 57. 
 
 Affidavit for, 57. 
 
 Must state cause of action, 57. 
 
 By whom sworn to, 58. 
 
 Order when made, 58. 
 
 Contents of order, 58. 
 
 The undertaking, 59. 
 
 Amount of bail to be fixed, 60. 
 
 Arresting defendant, 60. 
 
 Plaintiff may limit time for arresting defendant, 6L 
 
 Giving bail, 6L 
 
 Undertaking upon, 61. 
 
 Qualifications of bail, 62. 
 
 Exception to bail, 62. 
 
 Justifying bail, 63. 
 
 Other bail, 64. 
 
 Manner of justifying, 65. 
 
 Filing undertaking, 66. 
 
 Liability of, 67. 
 
 Surrender of, 68. 
 
 Vacating order of arrest, 70. 
 
 Particulars of, how obtained, 130. 
 
 Of exceptions, see " Exceptions bill of." 
 
 Of receiver, 361. 
 
 BOND, 
 
 BOOKS, 
 
 Obtaining inspection of, 128. 
 CALENDAR, 
 
 For trial of issues of fact, 172. 
 
 Of law, 172. 
 
 Appeals from inferior courts, 267. 
 
 In Supreme court, 284. 
 
 How made up, in Court of Appeals, 309. 
 
 CASE, 
 
 Opening of to the jury, 179. 
 Summing up of, 182. 
 To move to set aside verdict, 234. 
 34
 
 580 INDEX TO PRACTICE. 
 
 CASE, 
 
 Staying proceedings to make, 235. 
 
 Preparing case, 235. 
 
 Amendments to, settling and filing, 235. 
 
 Turning into bill of exceptions, 236. 
 
 Reserved for argument or further consideration, 240. 
 
 To set aside report of referees, 241. 
 
 Appeals from inferior courts, 265. 
 
 In Supreme, court, 283. 
 
 Service of, 283. 
 
 Turning into special verdict or bill of exceptions, 287. 
 
 Dismissing appeal for non-service of, 303. 
 
 For appeal, in Court of Appeals, 308. 
 
 Submitting on printed arguments in Court of Appeals, 310. 
 CERTIFICATE, 
 
 Of clerk on deposite, in lieu of bail, 69. 
 
 Of judge that title came in question on trial, 206. 
 
 Of probable cause for appealing, in cases arising in justi- 
 ces courts, 253. 
 CHARGE, 
 
 Of judge to jury, 182. 
 CHANGE, 
 
 Of parties, 21. 
 
 Of place of trial in local actions, 27. 
 
 In transitory, 30. 
 
 In what cases, 31. 
 
 How obtained, 32. 
 
 Ground for, 32. 
 
 "When made, 34. 
 CLERKS OF COURTS, 
 
 To receive deposit, 70. 
 
 To enter judgments, 200. 
 
 To adjust costs, 219. 
 
 Fees of, 219. 
 COMMENCEMENT, 
 
 Of suit, 49. 
 
 What is, 51. 
 
 To save statute of limitations, 52. 
 COMMISSION, 
 
 To examine witnesses, 162. J 
 
 J
 
 INDEX TO PKACTICE. 531 
 
 CAUSE OF ACTION, 
 
 How stated in complaint, 103. 
 
 CLAIM, 
 
 And delivery of personal property, see title " Personal 
 
 Property." 
 CIRCUIT, 
 
 Costs of, on putting off cause, 213, 
 CIVIL ACTIONS, 
 
 What are, 4. 
 COMPELLING 
 
 Entry of order, 373. 
 COMPLAINT, 
 
 Designating im,proper county for trial, 30. 
 
 What it is, 99. 
 
 "General rules concerning, 99. 
 
 Contents of, 103. 
 
 Subscribing, 106. 
 
 Verifying, 106. 
 
 Who may verify, 107. 
 
 Amending, 108. 
 
 Supplemental complaint, 103. 
 
 Filing, 109. 
 
 Serving, 110. 
 
 When proper, 110. 
 
 Obtaining copy of, 125. 
 
 Motion to strike out irrelevant matter in, 132. 
 
 In foreclosure suit, 318^ 
 
 For partition, 335. 
 
 In action for divorce, 341. 
 COMPROMISE, 
 
 Offer of defendant to, 125. 
 
 Notice of, 125. 
 
 Acceptance of offer, 128. 
 
 Non-acceptance, 128. 
 CONCEALED DEFENDANT. 
 
 To save statute limitations, 52. 
 
 Service of summons on, 115. 
 CONFIRMING 
 
 Report of sale in foreclosure suit, 331. 
 CONSTRUCTION 
 Of pleadings, 40.
 
 532 INDEX TO practice; 
 
 CORPORATION, 
 
 Foreign, attachments against, 89. 
 
 see title " Attachments." 
 
 Service of summons on, 112. 
 COPY PLEADINGS 
 
 To be furnished court, 171. 
 COPY ACCOUNT, 
 
 Procuring of, 130. 
 
 see " PARTICtJLARS, BILL OF," 
 
 CRIMINAL ACTIONS, 
 What are, 4. 
 
 COSTS. 
 
 Notice of adjustment to be given, when, 199. 
 
 Items must be served, 199. 
 
 Disbursements to be verified, 200. 
 
 Right to oppose, 200. 
 
 Duty of clerk upon adjustment, 200. 
 
 Fee bill abolished, 203. 
 
 Plaintiff's costs, 204. 
 
 In real actions, entitled to cost if plaintiff recovers any 
 
 thing, 204. 
 Where title comes in question, 204. 
 Certificate of judge necessary, 206. 
 As to actions to recover personal property* 206. 
 In actions by people, 207. 
 In actions commenced in justice's court, and answer of 
 
 title put in, 207, 
 In actions upon accounts over four hundred dollars, 207. 
 In actions for assault, battery, &c., 207.. 
 Against executors, 207. 
 Actions on promissory notes, 208. 
 Defendant's costs, 20S, 
 Costs in discretion of court, 209. 
 Against infant plaintiff, 209. 
 Actions by people, 211. 
 Against assignee of plaintiff, 212. 
 On review in special proceedings, 212. 
 Of putting off trial, 213. 
 Of motions, 213. 
 Amount recoverable, 213. 
 To the plaintiff, 213.
 
 INDEX TO PRACTICE. 533 
 
 COSTS, 
 
 To the defendant, 214. 
 
 On appeal, 214. 
 
 Costs on appeals fron\ inferior courts, 214. 
 
 In Supreme Court, 214. 
 
 In Court of Appeals, 214. 
 
 Additional allowance, 216, 
 
 Per cenlage, how computed, 217. 
 
 How ascertained, 218. 
 
 Interest on verdict may be allowed as costs, 218. 
 
 On settlement of action, 219. 
 
 Entering in judgment, 219. 
 
 Adjusting costs, 219, 
 
 Motion to re-adjust, 220. 
 
 In foreclosure suit, 326. 
 
 In partition suit, 338. 
 
 In actions for divorce, 344. 
 
 In proceedings against judgment debtor, 364. 
 
 COURT, 
 
 Trial by, 175, 
 
 Costs in discretion of, 209. 
 COURT OF APPEALS, 
 
 See " appeals to Court of Appeals." 
 COURTS OF JUSTICES OF THE PEACE, 
 
 See "Justices of the Peace." 
 
 COUNSEL, 
 
 Taking default to endorse his name on papers, 268, 285. 
 
 DAMAGES, 
 
 Amount of recoverable, 199. 
 DEATH, 
 
 Of one of several parties, 13. 
 
 Of sole plaintifT, 13, 21. 
 
 Of sole defendant, 21. 
 
 Effect of, on the action, 21. 
 DEFAULT, 
 
 Party noticing may take judgment by, in appeals from in- 
 ferior courts, 268. 
 
 In Supreme Court, 285. 
 
 In Court of Appeals, 310. 
 
 Setting aside in Court of Appeals, 310. 
 
 In appeals from orders. 388, 
 
 On motions, 379.
 
 1 
 
 C2 1 INDEX TO PRACTICE, 
 
 DEFENDANT, 
 
 Who must be, IG. 
 
 Several defendants, 16, 22. 
 
 Married women, 17, I 
 
 Corporators need not be joined, 17. 
 
 Dormant partners need not be joined, 17. 
 
 Persons severally liable, 17. 
 
 Infant defendant, 17. 
 
 In actions, ex delicto, 18. 
 
 Parties to bills of exchange and promissory notes, 18, 
 
 Misjoinder of, 19. 
 
 Nonjoinder of, 19. 
 
 Effect of nonjoinder of, 19. 
 
 Misjoinder and nonjoinder, how taken advantage of, 19. 
 
 Effect of misjoinder of, 20. 
 
 Death of sole, 21. 
 
 Death of one of several, 22. 
 
 Transfer of interest by, 22. 
 
 Proceedings on part of, before answer, 125. 
 
 Costs receivable by, 210. 
 
 In action for foreclosure of mortgage, 316. 
 
 DEBTOR, 
 
 Judgment, proceedings against, on return of execution un- 
 satisfied, 346. 
 
 Proceedings upon issuing and before return, see title 
 " Judgment Debtor." 
 DECISION, 
 
 Of court, trial by, 177. 
 
 On appeal, 2S6. 
 
 In Court of Appeals, 311. 
 
 On appeals from inferior courts, 268. 
 
 On appeals from orders, 388. 
 
 DEED, 
 
 Topurchaser on foreclosure sale, 331. 
 DEFENCE TO SUIT, 
 
 Proceedings by defendant previous to putting in, 125, 
 
 Joinder of defences, 145. 
 
 Opening of to jury, 181. 
 DEMAND, 
 
 Of copy of complaint, 125.
 
 INDEX TO PRACTICE. 535 
 
 DEMAND, 
 
 Of bill of particulars, 130. 
 
 That trial be had in proper county, 30. 
 DEMURRER, 
 
 Its nature and uses, 134. 
 
 Grounds of, 136. 
 
 Want of jurisdiction, 136. 
 
 Want of legal capacity to sue, 137. 
 
 Another action pending, 137. 
 
 Defect of parties, 138. 
 
 Misjoinder of parties, 13S. 
 
 Insufficient cause of action, 133. 
 
 Drawing demurrer, 139. 
 
 Filing, 141. 
 
 Serving, 141. 
 
 Enlarging time to demur, 142. 
 
 Frivolous demurrer, 143. 
 
 To answer, 152. 
 
 To reply, 158. 
 
 To evidence, 246. 
 
 How drawn up, 246. 
 DEPOSIT 
 
 In lieu of bail, 69. 
 
 In lieu of undertaking, 275-281. 
 DETERMINING 
 
 Controversy as to parties, 20. 
 DISMISSING COMPLAINT, 198. 
 
 For not bringing cause to trial, 184. 
 
 The like before referees, 191. 
 
 Appeal in Court of Appeals, 306-308. 
 
 DIVISION 
 
 Of executions, 221. 
 
 DOCKETING 
 
 Judgment, 201, 202. 
 DOCUMENTS, 
 
 Production of, 128. 
 DIVORCE, 
 
 Action for, 340. 
 
 How commenced, 340. 
 
 Parties to, 340. 
 
 Summons and complaint, 341.
 
 536 INDEX TO PRACTICE. 
 
 DIVORCE 
 
 What to allege, 341. 
 
 Must be verified, 341. 
 
 Reference to take proofs, 342. 
 
 Answer, 343. 
 
 Issue how formed, 343. 
 
 Answer, what may contain, 343 
 
 Hearing and judgment, 344. 
 
 Costs in, 344. 
 EJECTMENT, 
 
 Place of trial in, 26. 
 
 How changed, 32. 
 
 Ground for, 32. 
 ENDORSING 
 
 On papers on taking default in appeals from inferio? 
 courts, 26S. 
 
 In Supreme Court, 285. 
 
 On motions by default, 379. 
 
 Attorneys' residence on papers^, 392. 
 ENTERING COSTS 
 
 Verdict, 184. 
 
 In judgment, 200. 
 
 Judgment in appeals from inferior courts, 270. 
 
 In Supreme Court, 286. 
 
 Upon remittitur from court of appeals, 311. 
 ENTITLING 
 
 Bill of exceptions, see title " Exceptions, bill of." 
 ERROR WRIT OF, 
 
 Appeal substituted for, 252. 
 
 ERROR 
 
 In pleading when to be disregarded, 43. 
 
 When in summons, 43. 
 EVIDENCE, 
 
 Motion to produce documents, 172, 
 
 Mode of obtaining, 173. 
 
 SubpcEna, 173. 
 
 Demurrer to, 246. 
 EXAMINATION 
 
 Of writings, 162
 
 INDEX TO PRACTICE. 
 
 537 
 
 EXAMINATION OF WITNESSES, 
 Upon commission, 162. 
 De bene esse, 163. 
 Of parties, 164. 
 At the trial, 16S. 
 
 Upon order of judge before trial, 166. 
 On the trial, 16S, 180. 
 Of judgment debtor, 357. 
 Of witnesses, 358. 
 Certifying same, 359. 
 EXCEPTING 
 
 To bail on arrest, 62. 
 
 To sureties on appeal from inferior court, 257. 
 To Supreme Court, 297. 
 In Court of Appeals, 303. 
 EXCEPTIONS, 
 
 Bill of, 227. 
 
 Mode of taking, 227. 
 
 Grounds of, 227. 
 
 Staying proceedings, 229. 
 
 When and how made up, 231. 
 
 Amendments to, 232. 
 
 How settled, 232. 
 
 When and where filed, 233. 
 
 Setting aside bill, 233. 
 EXECUTION, 
 
 Division of, 221. 
 
 Against property, 221. 
 
 Against person, 222. 
 
 For delivery af property, 223. 
 
 When may issue, 223. 
 
 After five years how to issue, 224, 
 
 How directed, 224. 
 
 When returnable, 225. 
 
 Where judgment does not require payment of money or 
 delivery of property, 225. 
 
 On judgment upon remittitur from Court of Appeals, 313. 
 
 For deficiency in foreclosure suit, 332. 
 Report must be filed before execution for deficiency 
 issues, 332.
 
 538 INDEX TO PRACTICE. 
 
 EXECUTION, 
 
 Must be returned before order for debtor to appear and 
 answer, 349. 
 EX PARTE, 
 
 Not heard in appeals from inferior courts, 268. 
 
 Orders not appealable, 383. 
 
 Nor in Court of Appeals, 309. 
 
 Nor in appeals from judgments in Supreme Court, 285, 
 EX DELICTO, 
 
 Plaintiffs in actions of, 14. 
 
 Defendants, 18. 
 
 Bail in, 54. 
 EXECUTORS, 
 
 When may sue in their own name, 10. 
 
 When may be sued as such, 16. 
 
 Costs in action by and against, 207. 
 
 Motion for costs against, 211. 
 
 Of clerk, 219. 
 
 FEES, 
 
 FACT, 
 
 Issue of, how tried, 170. 
 
 FAILURE TO ANSWER, 
 
 Judgment on, 120. 
 
 FOLIO, 
 
 Complaint to be, 109. 
 ■ Answer, 150. 
 To be printed on case, 282. 
 FILING 
 
 Complaint, 109. 
 
 Demurrer, 141. 
 FORECLOSURE OF MORTGAGE. 
 Place of trial in, 26. 
 Action for, 315. 
 Object of, 316. 
 How commenced, 316. 
 Parties to, 316. 
 Plaintiff, 316. 
 Defendants, 317. 
 Summons in, 318. 
 Complaint in, 318. 
 
 Must state whole relief claimed, 319. 
 Service of, 321.
 
 INDEX TO PRACTICE. 539 
 
 FORECLOSURE OF MORTGAGE. 
 Notice of object of suit, 321. 
 Lis pendens, 322. 
 
 Proceedings on receipt of answer, 323. 
 Where no answer is put in, 323. 
 Reference, 324. 
 Affidavit for, 324. 
 Order for, 325. 
 Judgment for, 325. 
 Affidavit for, 326. 
 
 Application for judgment where to be made, 326. 
 The judgment, 323. 
 What to contain, 327. 
 Judgment roll, 328. i^ 
 
 Sale, 328. 
 
 Time and place of, 329. 
 Notice of, 329. 
 How published, 329, 
 Conditions of, 330. 
 How conducted, 330. 
 Deed, 331, 
 Report of sale, 331. 
 Confirming report, 331. 
 Execution for deficiency, 332. 
 Report must first be filed, 332. 
 
 FRIVOLOUS 
 
 Demurrer, see title " Demurrer." 
 FRAUD, 
 
 Defendent may be arrested for, 55. 
 
 FURTHER RETURN 
 
 May be procured, on appeal, from inferior court, 264. 
 
 On appeal to Court of Appeals, 306. 
 GENERAL RULES 
 
 Of pleading, 35. 
 
 In respect to answer, 145. 
 GUARDIAN 
 
 For infant plaintiff, how appointed, 394. 
 
 For infant defendant, 894. 
 
 Who may apply, 394. 
 
 Who may be, 395.
 
 540 INDEX TO PRACTICE. 
 
 GUARDIAN. 
 
 General guardian, or officer of the court, 395. 
 
 Appointment how made, 395. 
 
 Petition, 396. 
 
 What to contain, 396. 
 
 Order, 396. 
 
 Filing, 396. 
 
 Security, 396. 
 
 Serving copy order, 397. 
 GENERAL VERDICT, 
 
 What, 182. 
 GROUNDS 
 
 Of demurrer, 136. 
 HABITUAL DRUNKARDS 
 
 Service of summons on, 112. 
 HEARING. See " Appeal," 
 
 Before referees, 19G. 
 
 In divorce cases, 344. 
 HUSBAND, 
 
 Actions by, 11. 
 
 When must join with wife, 11. 
 
 When may sue for injuries to child or servant, 11. 
 
 Action for divorce by, 340. 
 
 May question legitimacy of children, 344. 
 
 IDIOT, 
 
 Suits for must be in name of committee, 11. 
 
 Service of summons on, 112. 
 INFANT, 
 
 See " parties," 12. 
 
 Appointment of guardian for, see title "Guardian." 
 
 Infant defendant, 17. 
 
 When may be sued, 17. 
 
 Service of summons on, 112. 
 INFERIOR COURTS, 
 
 Review of judgments in by appeal, see title "appeals to 
 the Supreme Court from an inferior court." 
 INTEREST, 
 
 How recovered on verdict, 218. 
 
 When allowed on appeal by way of damages, 270. 
 IRRELEVANT MATTER IN PLEADING. 
 
 Motion to c;trike out in complaint, 132. 
 
 In answer, 151.
 
 INDEX TO PRACTICE. 541 
 
 IRRELEVANT MATTER IN PLEADING. 
 
 In a reply, 154. 
 INJUNCTION BY ORDER, 
 
 Cases in whicli allowed, 81. 
 
 When applied for, 82. 
 
 Upon what granted, S3. 
 
 Affidavit, 84. 
 
 Security upon, 85. 
 
 Filing undertaking, 86. 
 
 Against corporations, 86. 
 
 Security upon, 87. 
 
 Motion to dissolve, 88. 
 INQUEST, 
 
 How prevented, 171. 
 
 Affidavit of merits, 172. 
 
 When may he taken, 174. 
 
 Judgment on how perfected, 175. 
 
 Defendant may cross-examine plaintiff's witnesses, 175. 
 
 Cannot make out defence, 175. 
 
 Plaintiff may be non-suited on, 175. 
 
 Plaintiff not bound to wai^'e, 175. 
 
 May put defendant to his motion, 175. 
 INQUIRY, 
 
 Writ of, when, 123. 
 ISSUE, 
 
 Note of on trial, 172. 
 
 On appeal from inferior courts, 266. 
 In Supreme Court, 284. 
 In Court of Appeals, 303. 
 ISSUES, 
 
 How tried, 169. 
 
 Preparation for trial of, see "Trial of Issues.'* 
 
 Of law, 161. 
 
 Of fact, 161. 
 
 Of fact how tried, 170. 
 
 Of law 195. 
 
 Note of on trial of issue of law, 196. 
 
 Furnishing papers, 196. 
 
 Argument, 196. 
 
 Decision, 196. 
 
 In divorce cases how made up and tried, 343.
 
 542 INDEX TO PRACTICE. 
 
 JOINDER OF ACTIONS, see " Actions." 
 
 Of defences, see " Defence of suit." 
 JOINDER, 
 
 Of plaintiffs, 13. 
 
 Consequence of not jofning, 15. 
 
 How taken advantage of, 15. 
 
 Of defendants, 19. 
 
 Consequence of not joining, 20. 
 
 How taken advantage of, 20. 
 JUDGMENTS, 
 
 What necessary in pleading, 38. 
 
 What appealable from county courts, 253. 
 
 From Supreme court to Court of Appeals, 289. 
 JUDGMENT, 
 
 On failure to answer, 120. 
 
 Application for, 121. 
 
 Manner of entering, 123. 
 
 Where made, 121. 
 
 In foreclosure suit, 326. 
 
 Partition suit, 338. 
 
 Divorce case, 344. 
 
 In Court of Appeals, 311. 
 
 On appeal from inferior courts, 270. 
 
 In Supreme Court, 286. 
 
 How executed when does not require payment of money 
 or delivery of property, 225. 
 
 Generally, what, 197. 
 
 Awarding judgment, 197. 
 
 On verdict, 184. 
 
 Report of referees, 194. 
 
 Trial by court, 197. 
 
 May be for or against one of several plaintiffs' or de- 
 fendants, 198. 
 
 Dismissing complaint, 198. 
 
 Must be for the relief demanded if complaint is not an- 
 swered, 199. 
 
 Otherwise if answer is put in, 199. 
 
 In actions for recovery of property, 199. 
 
 For return and damages, 199. 
 
 Costs, 199.
 
 INDEX TO PRACTICE. 543 
 
 JUDGMENT, 
 
 How adjusted, 200. 
 
 Notice to be given, 200. 
 
 Eight to oppose, 200. 
 
 Items must be given, 200. 
 
 Disbursements to be verified, 200, 
 
 Duty of clerk upon adjustment, 200. 
 
 Must be inserted in entry of judgment, 200. 
 
 Manner of entering judgment, 200. 
 
 Judgment roll, 201. 
 
 What to contain, 201. 
 
 Where filed, 201. 
 
 Who must make up, 201. 
 
 Transcript, 202. 
 
 Where may be filed, 202. 
 
 Judgment lien from time of filing, 202. 
 JUDGES, 
 
 Charge to jury, 182. 
 JURY, 
 
 Trial by, 178. 
 
 How drawn, 179. 
 
 Challenges of, 179. 
 JUDGMENT ROLL, 
 
 How made up, on judgment or failure to answer, 124. 
 
 On judgment after trial or reference, 201. 
 
 Who made up by, 201. 
 
 To be transmitted, on appeal from inferior court, 262. 
 
 In Court of Appeals, 305. 
 
 When to be transmitted, 306. 
 
 In foreclos'ire suit, 328. 
 JUDGMENT DEBTOR, 
 
 Proceedings against after return of execution unsatis- 
 iied, 346. 
 
 Upon what judgments, 347. 
 
 In what cases, 347. 
 
 Must be judgments for payment of money only, 347. 
 
 May be upon justices' judgments, after transcripts fil- 
 ed, 348. 
 
 Execution must be returned, 349. 
 
 Proceedings upon issuing and before return, 365. 

 
 544 INDEX TO PRACTICE. 
 
 JUDGMENT DEBTOR. 
 
 Jurisdiction in cases of, 349. 
 
 When execution may be returned, 349. 
 
 To what county execution must have been issued, 350. 
 
 Need not be returned as to all defendants, 351. 
 
 Proceedings to obtain order, 351. 
 
 Affidavit of facts, 352. 
 
 Need not state defendant has property, 353. 
 
 Order to appear and ansvv^er, 354. 
 
 May be before judge or referee, 354. 
 
 Referee to report evidence or facts, 354. 
 
 Duty of referee, 354. 
 
 Order forbidding transfer of property, 354. 
 
 When should be made, 354. 
 
 No further affidavit necessary to obtain order, 355. 
 
 Warrant, when may be issued, 355. 
 
 Affidavit for, 355. 
 
 Issuing warrant, 356. J 
 
 Undertaking on arrest, 356. 
 
 Service of orders, 357. 
 
 Examination of debtor, 357. 
 
 Of witnesses, 358. 
 
 Certifying examination by referee, 359. 
 
 Report of referee, 359. 5 
 
 Order to apply property, 360. 
 
 Receiver, 361. I 
 
 Security of, 361. 
 
 Authority of receiver, 362. 
 
 No assignment necessary, 364. 
 
 Costs, 364. 
 JUSTICE OF THE PEACE, 
 
 Practice in courts of, 407. 
 
 Jurisdiction of, 407. 
 
 In actions on contract, 408. 
 
 For injuries, 408. 
 
 For penalties, 409. 
 
 Actions commenced by attachments, 409. 
 
 On bonds, 409. 
 
 On surety bonds, 410. 
 
 On judgments, 410.
 
 INDEX TO PRACTICE. 545 
 
 JUSTICE OF THE PEACE, 
 
 May enter judgment on confession, 410. 
 
 Cannot sue where people are parties, except for penalties, 
 
 411. 
 Nor where title to lands come in question, 411. 
 Nor for assault and battery, 411. 
 False imprisonment, 411. 
 Libel, slander, &c., 411. 
 Manner of commencing suits in, 412. 
 Pleadings in, 412. 
 Complaint and answer, 412. 
 Demurrer, 414. 
 Grounds of, 414. 
 How put in, 415. 
 Judgment on demurrer, 416. 
 Proceedings where defendant does not appear and answer, 
 
 417. 
 Action on defence founded on an account, 417. 
 Pleadings to be entered and filed, 418. 
 Title coming in question, 418. 
 May arise on pleadings, 418. 
 On trial, 418. 
 Answer of title, 418. 
 What and when put in, 419. 
 Undertaking, 419. 
 Must have one surety, 420. 
 Condition of, 420. 
 Must be approved, 420. 
 Approval to be endorsed, 420. 
 Action to be discontinued, 420. 
 Each party to pay his own costs, 420. 
 May be collected by execution, 420. 
 If answer of title not put in, defendant cannot afterwards 
 
 draw title in question, 420. 
 When title comes in question on the trial, 420. 
 Suit in Supreme Court, 421. 
 Within what time, 421. 
 How prosecuted, 422. 
 Costs, 422. 
 
 Obtaining particulars of an account, 423. 
 35
 
 546 INDEX TO PRACTICE. 
 
 JUSTICE OF THE PEACE, 
 
 When and how obtained, 423. 
 
 Of variances in pleadings, 423. 
 
 Of amendments of pleadings, 424. 
 
 Terms of amendments, 425. 
 
 Transcripts, 426. 
 
 Executions, 426. 
 JUSTICES' COURTS, 
 
 Appeals from county courts in cases arising in, 253. 
 JURISDICTION, 
 
 Want of, ground of demurrer to complaint, 136. 
 
 In proceedings supplemental to execution, 349. 
 
 LAW, 
 
 Issue of, how tried, 178, 195. 
 
 Note of issue on, 196. 
 Furnishing papers, 196. 
 Argument, 196. 
 Decision, 197. 
 LUNATIC, 
 
 Service of summons on, 112. 
 
 Suits for, must be in name of committee, 11. 
 
 LIBEL, 
 
 What necessary in pleading, 39. 
 
 LOCAL ACTIONS, 
 
 Where triable, 29. 
 
 MANNER, 
 
 Of entering judgment, 200. ^' 
 
 MARRIED WOMEN, 
 
 See Parties, 9. 
 
 When must be joined as plaintiff with husband, 11. 
 
 When may be sued alone, 16. 
 
 When not, 17. 
 MERITS, AFFIDAVITS OF, 
 
 When necessary to prevent inquest, 171. 
 
 What to contain, 172. 
 MISJOINDER, 
 
 Of plaintiffs, 15. 
 
 How taken advantage of, 15. 
 
 Of actions, 47. 
 
 Of defendants, 19. 
 
 Of parties in appeals, to Court of Appeals, 297. 
 Of actions, 47.
 
 INDEX TO PRACTICE. 547 
 
 MORTGAGE, 
 
 Foreclosure of, see title "Foreclosure of Mortgage." 
 
 MOTION, 
 
 To revive, when made, 23. 
 
 Affidavit for, 23. 
 
 How made, 23. 
 
 Who may make, 23. 
 
 When to be made, 24. 
 
 To vacate order of arrest, 70. 
 
 To dissolve injunction, 88. 
 
 Motion to re-adjust costs, 220. 
 
 To issue execution after five years, 224. 
 
 To change place of trial, 32. 
 
 Ground for, 32. 
 
 To discharge attachment, 95. 
 
 To strike out irrelevant matter in complaint 132. 
 
 In answer, 150. 
 
 For judgment in sham answers, 150. 
 MOTIONS IN GENERAL, 
 
 Special motions, what are, 370. 
 
 Where made, 374. 
 
 When made, 375. 
 
 For irregularity, 375. 
 
 For relief, 375. 
 
 Staying proceedings, 375. 
 
 Who may stay proceedings, 376. 
 
 County Judge cannot after verdict, 376. 
 
 No stay for more than 20 d's can be granted out of court, 376- 
 
 Affidavits, 376. 
 
 Notice, 377. 
 
 What to contain, 377. 
 
 Costs on, not given unless asked for in notice, 37S. 
 
 Motion, argument of, 378. 
 
 Rule or order, 378. 
 
 Rule by default, 379. 
 
 Default for not moving, 379. 
 
 Counsel cannot endorse name on papers, 379. 
 
 Costs of, 379. 
 
 When payable, 379. 
 
 Sum collected, 380. 
 
 Orders granted at chambers, 381. 
 
 I 
 
 k
 
 548 INDEX TO PRACTICE. 
 
 MOTION DAYS, 
 
 In Supreme Court, 374. 
 
 In Court of Appeals, 310. 
 NEW MATTER, 
 
 How stated in answer, 147. 
 
 In reply, 153. 
 NEW TRIAL, 
 
 Motion for, (see title "Exceptions, bill of,") may be 
 granted on appeal, 286. 
 NONJOINDER, 
 
 Of actions, 47. | 
 
 Of plaintiff, 14. ^ 
 
 How taken advantage of, 15. 
 
 Of defendants, 19. 
 
 How taken advantage of, 19. 
 
 Of party in appeals to Court of Appeals, 295. 
 NON-SUIT, 
 
 Before referees, 192. 
 
 At trial, 181. 
 
 Plaintiff may submit to, 192. 
 
 Not after case is closed, 192. 
 NOTE OF ISSUE. 
 
 For trial of issue, 172. ^ 
 
 What must contain, 172. 
 
 When filed, 172. 
 
 In Court of Appeals, 308. 
 
 Appeals from inferior courts, 266. 
 
 In Supreme Court, 284. 
 NOTICE OF OBJECT OF SUIT, 
 
 In foreclosure suit, 321. 
 
 In partition suit, 335. 
 NOTICE, IN GENERAL, 
 
 Must be in writing, 391 
 
 How served, 391. 
 
 When by mail, 392. 
 
 On attorney, 391. 
 
 When on party, 391. ' 
 
 NOTICE, i 
 
 Of offer to compromise, 127. 
 NOTICE OF RETAINER, 
 
 Sufiicient for appearance, 392.
 
 INDEX TO PRACTICE. 549 
 
 NOTICE, 
 
 Of bail, 61. 
 
 Of exception to bail, 62, 
 
 Of justification of bail, 63. 
 
 Of new bail, and justifying same, 64. 
 NOTICE 
 
 To produce papers on trial, 172. 
 NOTICE 
 
 Of trial, 170. 
 
 Defendant may notice, 170. 
 
 Consequences of plaintiff's omitting to, 184. 
 
 Of motion for reference, 188. 
 
 Of argument, in appeal from inferior court, 266. 
 
 In Supreme Court, 284. 
 
 In Court of Appeals, 308. 
 
 Of appeal from order, 385, 
 
 Of appeal from inferior courts, 254. 
 
 In Supreme Court, 274. 
 
 In Court of Appeals, 298. 
 
 From orders, 385. 
 
 Of motions, generally, 377. 
 
 NOTICE OF LIS PENDENS 
 In foreclosure suit, 322. 
 In partition suit, 336. 
 
 OBTAINING 
 
 Copy complaint, 125. 
 OFFER 
 
 Of defendant to compromise, 125. 
 
 OPENING 
 
 Case to jury, 179. 
 Of defence, 181. ' 
 ORDERS, 
 
 To hold to bail, 57. 
 
 How obtained, see " Bail." 
 
 Of reference, 189. 
 
 Appeals from, made at special term, or by single judge, 373. 
 
 Must be entered, 373. 
 
 Appeals from to Court of Appeals, 291. 
 
 Within what time appeal must be made, 293. 
 
 For reference in foreclosure suit, 325.
 
 550 INDEX TO PRACTICE. 
 
 ORDERS 
 
 For publication of summons against absent defendant, 1 14. 
 
 In partition suit, 338. 
 
 In divorce suits, 342. 
 
 For judgment debtor to appear and answer, 354. 
 
 Order forbidding transfer of property, 354. 
 
 Service of in proceedings against judgment debtors, 357. 
 
 To apply property, 360. 
 
 For appointment of receiver, 360. 
 
 PAPERS, 
 
 Compelling production of, 128. 
 
 Notice to produce, 172. 
 
 Service of, 391. 
 
 Preparing, on appeal from inferior court, 264. 4 
 
 In Supreme Court, 282. 
 
 On appeal to be furnished, 285. 
 
 In Court of Appeals, 307. 
 
 On appeals from orders, 386. 
 PARTICULARS, BILL OF, 
 
 See title " Account, items of how oltained.'''' 
 PARTITION, 
 
 Place of trial in, 26. 
 
 Suits for, 333. 
 
 Practice in, 333. 
 
 Parties, 334. 
 
 Summons, 334. 
 
 Complaint, 334. 
 
 Verifying complaint, 335. 
 
 Serving summons, 335. 
 
 Notice of object of suit, 335. 
 
 Lis pendens, 336. 
 
 Proceedings if answer is put in, 337. 
 
 Where no answer is put in, 337. 
 
 Reference, 338. 
 
 Application for judgment, 338. 
 
 Filing report, 338. 
 
 Costs in, 338. 
 PARTIES, 
 
 How called upon appeal, 254, 272. 
 
 Nonjoinder of in appeal to Court of Appeals, 295.
 
 INDEX TO PRACTICE. 551 
 
 PARTIES, 
 
 Party plaintiff, 10. 
 Party defendant, 16. 
 Change of, 21. 
 
 Defect of ground of demurer, 138. 
 Misjoinder, 297. 
 PERSONAL PROPERTY, 
 
 Actions to recover possession of when triable, 26. 
 
 How changed, 32. 
 
 Bail in, 55. 
 
 Actions for, 72. 
 
 Affidavit for, 72. 
 
 What to contain, 73. 
 
 No'ice to sheriff, 76. 
 
 Undertaking upon, 76. 
 
 Defendant requiring return, 77, 
 
 Delivery to plaintiff, 78. 
 
 Sureties justifying, 79. 
 
 Claiming property, 79. 
 
 Sheriff's return, 80. 
 PENALTY, 
 
 Action to recover, where triable, 27. 
 PARTICULARS 
 
 Of account how procured, 130. 
 
 Consequences of not furnishing, 131. 
 
 Further bill, 131. 
 
 Examination of, 164. 
 PARTIES TO AN ACTION, 
 
 The party plaintiff, 9. 
 
 For foreclosure of mortgage, 316. 
 
 Who must be plaintiff, 10. 
 
 In partition suits, 334. 
 
 Persons acting in 2l fiduciary capacity, 10. 
 
 In divorce suit?, 340. 
 
 Executors and administrators, 10. 
 
 Trustees of express trusts, 10. 
 
 Persons expressly authorised by statute, 10. 
 
 Married women, 11. 
 
 Infant, 12. 
 
 Misjoinder, 13.
 
 552 INDEX TO PRACTICE. 
 
 PARTIES TO AN ACTION, 
 
 Actions, ex delicto^ 14. 
 
 Party defendant, 16. 
 
 Determining controversy as to, 20. 
 
 Change of, 21. 
 
 Must be subpoenaed for trial, 168. 
 PEOPLE, 
 
 Actions by, 9. 
 
 Costs against, 211. 
 PEKSON, 
 
 Execution against, 222. 
 PLAINTIFF, 
 
 Who must be, 10. 
 
 In actions, ex contractu, 10. 
 
 Married women, 11. 
 
 Several plaintiffs^ 12. 
 
 Misjoinder of, l.S. 
 
 How taken advantage of, 13. 
 
 Death of sole, 13. 
 
 Death of one of several, 13. 
 
 In actions, ex delicto, 14. 
 
 Effect of nonjoinder of, 14. 
 
 Effect of misjoinder of, 15. 
 
 Transfer of interest by, 22. 
 
 Failing to appear at trial, 184. 
 
 Failing to notice, 185. 
 
 Plaintiff's costs, 213. 
 
 Plaintiff in foreclosure suits, 316. 
 
 Plaintiff in partition suits, 334. 
 PLACE OF TRIAL, 25. 
 PLEADINGS, 
 
 General rules of, 37. • 
 
 What they are, 37. 
 
 What will be sufficient in, 38, 
 
 Construction and effect of, 41. 
 
 Mistakes in, 41. 
 
 Amendment of^ 41. 
 
 Variance, 42. 
 
 Error in, when to be disregarded, 46. 
 
 Copy to be furnished for trial, 171. 
 
 I
 
 INDEX TO PRACTICE. 553 
 
 POINTS, 
 
 In appeal from inferior courts, to be printed, 265. 
 
 In Supreme Court, 283. 
 In Court of Appeals, 307. 
 POSTAGE, 
 
 On papers served by mail, to be paid, 392. 
 PRACTICE, 
 
 What, 1. 
 Sources of, 1. 
 PREPARING 
 
 Appeal from inferior court for argument, 264. 
 From Supreme Court, 282. 
 In Court of Appeals, 307. 
 PROCEEDINGS, SPECIAL, 
 What are, 6. 
 
 What excepted from -the Code^ 7. 
 How brought, 8. 
 PROCEEDINGS, 
 
 On part of defendant before answer, 125. 
 To perfect appeal from inferior courts, 254. 
 In Supreme Court, 274. 
 In Court of Appeals, 298. 
 PROMISSORY NOTES, 
 
 Parties in actions on, 18. 
 Costs in actions on, 208. 
 PRINTING, 
 
 Case and points on appeal from inferior court, 265. 
 In Supreme Court, 283. 
 In Court of Appeals, 307. 
 PROPERTY, 
 
 Real ; actions for, when triable, 26. 
 Personal, where, 26. 
 PREPARING 
 
 Issues for trial, 169. 
 Papers for appeal, 274. 
 For argument of appeal, 284. 
 PRODUCTION 
 
 Of papers, how compelled, 128. 
 PROPERTY, 
 
 Claim for delivery of, 72, 
 Execution against, 221.
 
 554 INDEX TO PRACTICE. 
 
 PUTTING 
 
 Off trial, costs of, 213. 
 QUALIFCATiONS 
 
 Of bail, see title " Bail." 
 REAL PROPERTY, 
 
 Place of trial in, 26. 
 
 How changed, 32. 
 
 Ground for, 32. 
 RECEIVER, 
 
 Of judgment debtor, when, 361. 
 
 Powers of, 362. 
 
 Duty of, 362. 
 
 Must give security 362. 
 REFEREES, 
 
 Trial by, 186. 
 
 Appointment of, 189. 
 
 Order appointing, 189. 
 
 In proceedings against judgment debtor, 354. 
 
 Duties of, 354. 
 REFERENCE, 186. 
 
 In what cases, 186. 
 
 When taking account is necessary, 187. 
 
 Of question of fact on motions, 187. 
 
 Motion for, 188. 
 
 Affidavit, 188. 
 
 Notice and service, 188. 
 
 Affidavit to oppose, 188. 
 
 Appointing referees, 189. 
 
 Order of, 189. 
 
 Reference at circuit, 190. 
 
 Notice of reference, 190. 
 
 Appointment of time by referees, 190. 
 
 Proceedings on reference, 190. 
 
 Adjournment, 192. 
 
 Report, 193. 
 
 Must be signed by at least two, 194. 
 
 May be excepted to, 194. 
 
 Received in same manner as decision of court, 194 
 
 Fees of referees, 194. 
 
 Judgment on report, 194. 
 
 Case to set aside report, 241.
 
 INDEX TO PRACTICE. 555 
 
 REFERENCE, 
 
 In foreclosure suit, 324. 
 
 In partition suits, 338. 
 
 In divorce suits, 342. 
 RELIEF, 
 
 Demanded to be stated in complaint, 104. 
 REPLY, 
 
 To what plaintiff may reply, 153. 
 
 What to contain, 153. 
 
 Verifying, 154. 
 
 Irrelevant matter in, how struck out, 154. 
 
 Enlarging time to reply, 155. 
 
 Filing and serving, 156. 
 
 Effect of 156. 
 
 Effect of not, 157. 
 
 Reply to amended answer, 157. 
 REMITTITUR 
 
 From Court of Appeals, 310, 3 11. 
 
 Will not be sent in cases of default until after 10 days, 310. 
 
 REPORT 
 
 Of clerk on assessment, 123. 
 
 Of referees, 193. 
 
 Of referee in proceedings against judgment debtor, 359, 
 
 Judgment on, of referees, 194. 
 
 Of sale in foreclosure suit, 331. 
 
 Confirming same, 331. 
 RESPONDENT 
 
 May dismiss appeal, 165-306-30S. 
 RETAINER, 
 
 Notice of, is an appearance, 392. 
 RETURN 
 
 Of sheriff upon delivering of personal property, 80. 
 
 Of clerk on appeal from judgment of inferior court, 262. 
 
 On appeal to Court of Appeals, 305. 
 
 See title "Appeals from judgments of inferior courts," and 
 "Appeals to Court of Appeals," 
 REVOKING ORDERS 
 
 Judge making may, 382. 
 RULE 
 
 For drawing pleadings, 37. 
 
 For writ of inquiry, when, 123.
 
 556 
 
 INDEX TO PRACTICE. 
 
 RULE 
 
 On decision of a motion, 878. 
 On decision of an appeal, 270. 
 By default on motions, counsel must endorse name on 
 
 papers, 379. 
 On appeals from orders, 38S. 
 
 I 
 
 SALE, 
 
 Under judgment of foreclosure. 
 
 See " Foreclosure of Mortgage." 
 Report of, 331. 
 Time and place of, 329. 
 Condition of, 330. 
 Conducting, 330. 
 SECURITY 
 
 Of receiver, 361. 
 
 Not required in appeals from orders, 385. 
 
 Upon injunction, 85. 
 
 Upon injunction against corporations, 86. 
 
 SERVING CASE. 
 
 On appeal from inferior court, 265. 
 In Supreme Court, 283. 
 In Court of Appeals, 308. 
 
 SERVICE OF PAPERS. 
 
 How made in general, 39L 
 
 On the attorney, 39L 
 
 On the party, 391. 
 
 Of summons or process, by which a'suit is commenced, 110. 
 
 Of paper to bring party into contempt, 391. 
 
 When may be by mail, 392. 
 
 Postage must be paid, 392. 
 
 Of subpoena, 173. 
 
 Of notice of motion for reference, 188. 
 
 Of notice of appeal, 274. 
 
 Of orders in proceedings against judgment debtors, 357. 
 
 Of rules on motions, 378. 
 
 Of complaint, 110. 
 SETTING 
 
 Aside adjustment of costs, motion for, 220. 
 
 Default in Court of Appeals, 310.
 
 INDEX TO PRACTICE. 557 
 
 SETTLEMENT 
 
 Of suit, costs in, 219. 
 
 Of case, 235. 
 
 Of bill of exceptions, 232. 
 
 Of demurrer to evidence, 246. 
 
 Of Special verdict, 239. 
 SHAM ANSWER, 
 
 And pleadings may be stricken out on motion, 150. 
 
 SHERIFF. 
 
 Actions against where triable, 27, 28. 
 
 Duty of on order for arrest of defendant, 60. 
 
 Must put in bail, 61. 
 
 Liability of as bail, 66. 
 
 Duty of in action to recover personal property, 76. 
 
 In serving summons, llS. 
 
 Proceedings to compel service by, 118. 
 
 Sale under judgment of foreclosure, 328. 
 
 SLANDER, 
 
 What necessary in pleading, 39. 
 
 SPECIAL PROCEEDINGS, 
 
 What are, 6. 
 
 What excepted from code, 7. 
 
 How brought, 8. 
 
 Costs on review of, 212, 
 SPECIAL MOTIONS. See title " Motions in general." 
 SPECIAL VERDICT, 
 
 What, 183. 
 
 Drawing, 238. 
 
 Staying proceedings on judgment, 237. 
 
 Amendments to settling and filing, 239. 
 STAYING PROCEEDINGS, 
 
 To move for change of place of trial, 35. 
 STATING 
 
 Cause of action, in complaint, 103. 
 
 Defence in an answer, 147. 
 STRIKING 
 
 Cause from calendar for non-service of appeal papers, 
 
 265, 283, 373. 
 SUBMITTING 
 
 Controversy without action, 248. 
 
 I 
 
 I
 
 558 INDZX TO PRACTICE. 
 
 SUBMITTING, 
 
 Drawing case, 24S. 
 
 Submission, 249. 
 
 Judgment on, 249. 
 
 Case on printed arguments in Court of Appeals, 310. 
 SUBPCENA, 
 
 For witness, 173. 
 
 Subpoena ticket, 173. 
 
 Serving, 173. 
 
 Duces tecum, 174. ^ 
 
 SUIT, 
 
 How commenced, 49. 
 
 For foreclosure of mortgage, see title "Foreclosure of 
 Mortgage ;" for partition see title '* Partition ;" for 
 divorce, see title " Divorce." 
 SUMMING UP, 
 
 On trial, 182. 
 SUMMONS, 
 
 When amendable, 43. 
 
 When errors in disregarded, 43. 
 
 What it must contain, 96. 
 
 Limiting time of service of, 98. 
 
 Service, how made, 112. 
 
 Upon corporators, 112. 
 
 Upon minors, 112. 
 
 Upon idiots, insane persons and habitual drunkards, 112. 
 
 Upon absent or concealed defendant, 113. . 
 
 Service of out of the state, 115. " 
 
 Who may serve summons, 118. 
 
 Proof of service of, 118. _ J 
 
 In foreclosure suit, 318. j| 
 
 In partition suit, 335. 
 
 In divorce suits, 341. 
 SUPPLEMENTAL 
 
 Complaint, 108. 
 
 Proceedings on execution returned, 346. 
 SURRENDER 
 
 By bail, 68. 
 SURETIES 
 
 To undertaking, on appeal from inferior court, excepting 
 to, 257.
 
 INDEX TO PRACTICE. 559 
 
 SURETIES, 
 
 How to justify, 260. 
 
 Giving other sureties, 260. 
 
 Allowance of 261. 
 
 Qualifications of, 261. 
 
 On appeal from judgment of Supreme Court, 275. 
 
 To stay execution of judgment, 275. 
 
 Must be proved or acknowledged, 277. 
 
 Sum to be fixed bygudge, 276. 
 
 Excepting to, 279. 
 
 How to justify, 280. 
 
 Giving other sureties, 280. 
 
 Allowance of, 281. 
 
 Qualifications of, 281. 
 
 On appeals to Court of Appeals, excepting to, 303. 
 
 How to justify, 303. 
 
 Giving other sureties, 304. 
 
 Allowance of, 305. 
 
 Qualifications of, 305. 
 
 Upon claim for delivery of personal property, 76. 
 
 How to justify, 79. 
 
 TICKET, 
 
 Subpoena, 173. 
 
 TIME, 
 
 To answer how enlarged, 151. 
 
 To demurrer, 141. 
 
 Enlarging time to, 142. 
 
 To reply, enlarging, 155. 
 
 To justify bail, 63. 
 
 To amend, 108. 
 
 Of service of notices and papers by mail, 392. 
 
 TRANSCRIPTS, 
 
 From dockets of judgments, 202. 
 Of justices' judgments, 426. 
 
 TRANSITORY 
 
 Actions, where triable, 29. 
 TRANSMITTING 
 
 Judgment roll, on appeal from inferior court, 262. 
 In Court of Appeals, 305. 
 
 I
 
 560 INDEX TO rUACTICE. 
 
 TRESPASS 
 
 To lands, place of trial in, 26. 
 TRIAL 
 
 Of issues, 160. 
 Preparation for, 169. 
 By a jury, 169, 178. 
 By the court, 175. 
 By relerees, 186. 
 
 Consequences of not proceeding to, IS'. 
 How conducted, 178. 
 Notice of, 170. 
 
 Notice to produce papers on, 172. 
 Copy pleadings for, 171. 
 By jury, how waived, 176. 
 Place of, 25. 
 In local action, 25. 
 How changed in, 27. 
 
 In transitory, 29. ^ 
 
 How changed, 30. 
 In what cases, 31. 
 How obtained, 32. 
 Ground for, 32. 
 ' When made, 34. 
 
 TRUSTEE, 
 
 Action by, 10. 
 
 Costs in actions by and against, 203. ■ 
 
 UNDERTAKING 
 
 To obtain order of arrest, 59. 
 
 By defendant upon arrest, 61. j 
 
 By plaintiff to obtain delivery of personal property, 76. 'J 
 
 Of defendant requiring return of property, 77. 
 
 Indemnifying sheriff against claim to, 80. j 
 
 For injunction, 85. * 
 
 Against corporations, 86. 
 
 For attachment, 91. ^ 
 
 For discharge of attachment, 95. 
 
 Not required in appeals from orders, 385. 
 
 Upon appeals from Inferior Courts, 255, 261. 
 
 To stay execution of judgment, 256. 
 
 Must be proved or acknowledged, 257.
 
 ) 
 
 INDEX TO PRACTICE. 661 
 
 UNDERTAKING, 
 
 Amount to be fixed by judge, 256. 
 
 Copy must be served, 259. 
 
 Affidavit annexed, 259. 
 
 Excepting to sureties of, 257. 
 
 How sureties to justify, 260. 
 
 Other sureties, 260. 
 
 Filing, 261. 
 
 Upon appeal from judgment of Supreme Court, 275. 
 
 To stay execution, 275. 
 
 Must be proved or acknowledged, 277. 
 
 Amount to be fixed by the judge, 276. 
 
 Copy must be served, 279. 
 
 Affidavit annexed, 273. 
 
 Excepting to sureties, 279. 
 
 How to justify, 260. 
 
 Other sureties, 280. 
 
 Filing, 281. 
 
 Upon appeals to Court of Appeals, 298. 
 
 To stay execution of judgment, 299. 
 
 Sum to be fixed, 299. 
 
 Copy must be served, 302. 
 
 Affidavit to be annexed, 302. 
 
 Excepting to sureties, 303. 
 
 How to justify, 303. 
 
 Other sureties, 304. 
 
 Filing, 305. 
 
 On arrest of Judgment Debtor, 356. 
 
 On answer of title in justice's court. 
 VARIANCE, 
 
 What, 40. 
 
 When disregarded in pleading, 41. 
 VENUE, 
 
 See " Place of TRIAL," 25. 
 VERDICT, 
 
 General, what, 182. 
 
 Special, what, 183. 
 
 In what actions, 183. 
 
 Assessing damages, 183. 
 
 Filing and entering, 184. 
 36
 
 562 INDEX TO PRACTICE. 
 
 VERDICT, 
 
 Interest on, 218. 
 
 Special mode of making up, to be heard in appeal, 237. 
 
 Staying proceedings, 237. 
 
 Drawing, 238. 
 
 Amendments to, settling and filing, 239. 
 VERIFICATION, 
 
 Of complaint, when, 106. 
 
 In partition suits, actions for service, 335. 
 
 Subsequent pleadings, answer, when, 149. 
 
 Reply when, 154. 
 WARRANT, 
 
 Attachment of, see title " Attachment." 
 
 To arrest judgment debtor, 355. 
 WITNESS, 
 
 Examination of on a commission, 162. 
 
 De bene esse, 163. 
 
 Party as, 164. 
 
 Examination of before trial, 166. 
 
 At the trial, 168. 
 
 Subpoenaing, 173. 
 WRIT OF ERROR, 
 
 Appeal substituted for, 252. 
 WRIT OF INQUIRY, 
 
 When, 123. 
 WRITINGS, 
 
 Procuring inspection of, 123,
 
 INDEX TO PRACTICAL FORMS. 
 
 ABSENT 
 
 Defendant, affidavit for order of publication against, 438. 
 Order for publication against, 439. 
 
 ATTACHMENT, 
 
 Affidavit for, 440. 
 
 Undertaking for, 442. 
 
 Warrant of, 442. 
 
 Notice of motion to discharge, 443. 
 
 Undertaking to discharge, 443. 
 
 ACCOUNT, 
 
 Notice of demand for copy of, 431. 
 Complaint in action upon, 467. 
 
 ACKNOWLEDGMENT 
 
 Of undertaking for injunction, 444. 
 Of undertaking on appeal, 496. 
 
 AFFIRMANCE OF JUDGMENT. 
 Entry of judgment on, 480. 
 
 ACTION. 
 
 Petition to continue, on death of party, 507. 
 
 Affidavit annexed, 508. 
 
 Notice of motion on, 508. 
 
 Order thereupon, 508. 
 
 Demand to have, tried in proper county, 513.
 
 564 INDEX TO FORMS, 
 
 AFFIDAVIT, 
 
 Annexed to copy account furnished, 431. 
 
 To move to change place of trial, 432. 
 
 Of merits, 433. 
 
 To procure order for publication against a defendant who 
 cannot be personally saved, 438. 
 
 OtsherifT, of failure to serve, 439. 
 
 Of service of summons, 440. 
 
 For attachment, 440. 
 
 Annexed to undertaking for injunction, 444. 
 
 Annexed to undertaking for injunction against a corpora- 
 tion, 446. 
 
 On claim of delivery of personal property, 447. 
 
 Of claim by third person to personal property, 449. 
 
 To hold to bail, 451. 
 
 For order of reference in foreclosure suit, 471. 
 
 Of filing notice of lis pendens, 474. 
 
 Annexed to undertaking on appeal, 496. 
 
 To procure order for judgment debtor to appear and an- 
 swer, 499. 
 
 To procure order for third person to appear and answer, 
 500. 
 
 To procure order to examine judgment debtor before re- 
 turn of execution, 501. 
 
 To procure warrant against judgment debtor, 502. 
 
 To petition to continue action, 508. 
 
 To petition for appointment of guardian for infant, 510. 
 
 To procure order to file complaint, 515. 
 
 APPEAL, ^ 
 
 Judgments upon, see title "Judgments." 
 
 Notice of, to Supreme Court, from judgment of same 
 
 court, 493. j 
 
 The like from judgment of an inferior court, 493. * 
 
 The like on judgment entered on report of referees, 494. 
 The like to the Court of Appeals, 494. 
 The like from an order, 495. 
 Undertaking to pay costs on, 495. 
 Affidavit annexed to, 496. 
 Acknowledgment annexed, 496.
 
 INDEX TO FORMS. 565 
 
 APPROVAL 
 
 Of judge to undertaking, 446. 
 
 ARREST, 
 
 Affidavit for order to, 451. 
 
 Order for, 452, and see title *' Bail." 
 
 ATTORNEY'S BILL, 
 
 Complaint for, 465. 
 
 BAIL, 
 
 Affidavit to hold to, 451. 
 Undertaking to procure order to hold to, 452. 
 Order to hold to 452. 
 Undertaking of 453. 
 
 Undertaking in action to recover personal propert}-, 45'.'. 
 Notice of accepting to, 454. 
 Certificate of sheriff of deposit in lieu of, 454. 
 Certificate of clerk thereupon, 454. 
 Notice of motion to vacate or mitigate, 456. 
 Notice of justification of, 455. 
 Notice of other bail, 456. 
 Certificate of surrender by, 456. 
 Notice to plaintiff that bail will be exonerated, 546. 
 Order exonerating bail, 457. 
 BILLS OF EXCHANGE, 
 
 Complaints on, see title " Complaint." 
 
 BILL OF EXCEPTIONS, 
 
 Order to stay proceedings to make, 514. 
 
 BOND, 
 
 Of receiver, 506. 
 
 Of indemnity to sheriff upon claim to third person to pro- 
 perty taken on attachment, 513. 
 
 CERTIFICATE, 
 
 Of sheriff, of deposite in lieu of bail, 454. 
 Of clerk thereupon, 454. 
 Of surrender of principal by bail, 456. 
 Of clerk that complaint is not filed, 516.
 
 566 INDEX TO FORMS. 
 
 CASE, 
 
 Order to stay proceedings to make, 514. 
 
 CHANGING, 
 
 Place of trial, affidavit for, 432. 
 Place of trial, notice for, 433. 
 
 COPY ACCOUNT, 
 
 Demand for, 431. 
 Furnished, 431. 
 Affidavit annexed, 431. 
 
 COSTS, 
 
 Notice of adjustment, 436. 
 Order for extra allowance of, 479. 
 
 COMPLAINT, 
 
 For monies generally, 457. 
 
 On promissory notes, against all parties, 457. 
 
 On promissory note, against endorser, 458. 
 
 On promissory note, endorsee against maker, 459. 
 
 On promissory note payee or bearer, against maker, 459. 
 
 For money paid, &c., 460. 
 
 On bill of exchange, against acceptor, 460. 
 
 On inland bill of exchange, against drawers and endorsers 
 for non-acceptance, 461. 
 
 On inland bill of exchange, against endorser for non- 
 acceptance, 461. 
 
 The like for non-payment, 462. 
 
 On inland bill of exchange, payee against drawer, for 
 non-payment, 463. 
 
 On foreign bill, against endorser, for non-acceptance, 463. 
 
 For work and labor, 464. 
 
 For taking personal property, 465. 
 
 On attorney's bill, 465. 
 
 To recover possession of personal property, 466. 
 
 For detaining personal property, 466. 
 
 To recover possession of real property, 466. 
 
 For an account, 467. 
 
 For goods sold at different times, 467. 
 
 For work, labor, and materials furnished, 468. 
 
 For goods sold, where the price is agreed upon, 468.
 
 INDEX TO FORMS. 567 
 
 COMPLAINT, 
 
 For the foreclosure of a mortgage, 469. 
 
 Affidavit to procure order to file, 415. 
 Certificate annexed, 516. 
 Order to file complaint, 516. 
 
 CONFESSION, 
 
 Judgment by, 483. 
 
 COMPROMISE, 
 
 Notice of offer to, 420. 
 
 Notice of acceptance of offer to, 430. 
 
 DECISION, 
 
 Of cause, tried by the court without a jury, 478. 
 
 DEMAND, 
 
 To have action tried in proper county, 513. 
 
 EXAMINATION, 
 
 Of party as a witness, notice of, 435. 
 
 EXECUTION, 
 
 Against the person, 487. 
 
 Against the property, 487. 
 
 For delivery of the possession of real property with dam- 
 aces, 488. 
 
 For delivery of personal property, without damages or 
 costs, 489. 
 
 The like with damages, 489. 
 
 The like, and for value of the property, if delivery cannot 
 be had, 490. 
 
 Upon judgment of affirmance in Court of Appeals, 490. 
 
 The like on reversal, 491. 
 
 For costs of motion, 492. 
 
 FAILURE TO ANSWER, 
 
 Judgment on, 482. 
 
 FORECLOSURE OF MORTGAGE, 
 
 Complaint for, 469. 
 
 Notice of object of suit, 470. 
 
 Notice of lis pendens, 471.
 
 5C8 INDEX TO FORMS. 
 
 FORECLOSUE OF MORTGAGE, 
 
 Affidavit, for order of reference, 471. 
 
 Order of reference, all due, no infants or absent defend- 
 ants, 472. 
 
 Order of reference, all due, and absent defendants, 472. 
 
 Order of reference, all due, infant defendants but no ab- 
 sentees, 473. 
 
 Order of reference, part not due, 474. 
 
 Affidavit of filing notice of lis pendens, 474. 
 
 Judgment of and sale, 475. 
 
 Judgment, part only due, premises can be sold in par- 
 cels, 476. 
 
 GOODS SOLD, 
 
 Complaint for, 468. 
 
 INFANT, 
 
 Petition for appointment of guardian of, plaintiff, 509. 
 
 Consent endorsed, 510. 
 
 Affidavit annexed, 510. 
 
 Certificate of judge endorsed, 510. 
 
 Order thereupon, 51 K 
 
 Petition for appointment of guardian of infant defend- 
 ant, 511. 
 
 Consent endorsed, 511. 
 
 Petition by plaintiff for appointment of guardian for in- 
 fant defendant, 512. 
 
 Order to be entered thereon, 512. 
 
 INJUNCTION, 
 
 Undertaking on granting, 444. 
 
 By order, 445. 
 
 Undertaking for against a corporation, 445. 
 
 Notice of motion to dissolve, 446. 
 
 JUDGMENT DEBTOR, 
 
 Affidavit to obtain order for, to appear and answer, 499. 
 Order for, to appear and answer, 500. 
 Affidavit for order, for third person tD appear and an- 
 swer, 500, 
 Order to examine third person, 501.
 
 INDEX TO FORMS. 569 
 
 JUDGMENT DEBTOR. 
 
 Affidavit to obtain order to examine before return of exe- 
 cution, 501. 
 Order thereupon, 502. 
 Affidavit to procure warrant against, 502. 
 Warrant against, 503. 
 Undertaking by, on being arrested, 504. 
 Order forbidding transfer of property, 504. 
 Order to apply property of, 505. 
 Order for appointment of receiver, 505. 
 Receiver's bond, 506. 
 
 JUDGMENT, 
 
 Notice of application for, 435. 
 
 Notice for on frivolous demurrer, 435. 
 
 In action to foreclosure a mortgage, see title "Foreclosure 
 of mortgage." 
 
 On trial of issue of fact, 479. 
 
 On verdict of a jury, 479. 
 
 On decision of court, jury trial waived, 480. 
 
 On report of referees, 480. 
 
 Of affirmance in Supreme Court, upon an appeal from a 
 judgment of an inferior court, 480. 
 
 The like on reversal, 481. 
 
 In Supreme Court, upon bill of exceptions, and appeal 
 from a judgment of a single judge, and new trial de- 
 nied, 481. 
 
 In Supreme Court, upon case made to set aside report 
 of referees, and appeal therefrom, and report not set 
 aside, 481. 
 
 On failure to answer, 482. 
 
 Statement for, by confession, 483. 
 
 For plaintiff in an action to recover real property, 483. 
 
 The like on verdict for defendant, 484. 
 
 For plaintiff in action to recover personal property, with 
 damages for withholding, 484. 
 
 The like when property has not been delivered, 484. 
 
 The like on verdict for defendant, property not deliver- 
 ed, 485.
 
 570 INDEX TO FORMS. 
 
 JUDGMENT. 
 
 The like where property has been delivered^ and dam- 
 ages, 485. 
 
 The like when property has been delivered and defendant 
 waives a return, 485. 
 
 Entry of in Supreme Court, upon remittitur from Court 
 of Appeals, on affirmance, 486. 
 
 The like on reversal, 486. 
 
 JUSTICE'S COURT, 
 
 Undertaking upon answer of title, 516. 1 
 
 Approval of justice endorsed, 517. 
 
 The like in action where defendant is arrested, 517. 
 
 
 MERITS, 
 
 Affidavit of, 433. 
 
 MONEY, 
 
 Complaint to recover, 457, 
 For money paid, &c., 460. 
 
 MORTGAGE, 
 
 See title " Foreclosure of Mortgage." 
 
 MOTION, 
 
 Execution for cost of, 492. 
 
 Notice of, see title " Notice." 
 
 To change place of trial, notice of, 433. 
 
 Affidavit for, 432. 
 
 For judgment, frivolous demurrer, notice of, 435. 
 
 To discharge attachment, notice of, 443. 
 
 To dissolve injunction, notice of, 446. 
 
 To vacate order of arrest, notice of, 455. 
 
 NOTICE 
 
 Of demand of copy complaint, 429. 
 
 Of demand to have action tried in proper county, 429. 
 
 Of offer to compromise, 430. 
 
 Of acceptance of offer, 430. 
 
 Of demand of a copy of an account, 431. "^ 
 
 Of motion to change place of trial, 433* ;i 
 
 Of trial and inquest, 433. '| 
 
 To produce papers on trial, 434. | 
 
 ii
 
 INDEX TO FORMS. 571 
 
 NOTICE 
 
 Of application for judgment, defendant having appeared, 
 
 435. 
 Of motion for judgment, frivilous demurrer, 435. 
 Of examination of party as a witness, 435. 
 Of application to have costs inserted in entry of judg- 
 ment, 436. 
 Another form, 436. 
 
 Of motion to discharge attachment, 443. 
 Of motion to dissolve injunction, 446. 
 To sheriff requiring delivery of personal property, 448. 
 Of claim to personal property by third person, 448. 
 By sheriff of claim to personal property by third person, 
 
 449. 
 Of excepting to sureties in action for delivery of personal 
 
 property, 450. 
 Requiring return of personal property to defendant, 450. 
 Of excepting to bail, 454. 
 
 Of motion to vacate or modify order of arrest, 455. 
 Of justification of bail, 455. 
 Of other bail, 456. 
 
 To plaintiffthat bail will be exonerated, 456. 
 Of object of suit, in action for foreclosure of mortgage, 
 
 470. 
 Of lis pendens, 471. 
 
 Of appeal to general term of Supreme Court from a judg- 
 ment of the same court, 493. 
 Of appeal to Supreme Court from a judgment of an infe- 
 rior court, 493. 
 Of appeal from judgment entered on report of referees, 
 
 494. 
 Of appeal to Court of Appeals, 494. 
 Of appeal to general term from an order, 495. 
 Of motion to continue action, 508. 
 
 ORDER, 
 
 Changing place of trial, 533. 
 
 For publication against absent defendant, 439. 
 
 Injunction, by, 445. 
 
 For arrest of defendant, 452. 
 
 Exonerating bail, 457.
 
 572 INDEX TO FORMS. 
 
 ORDER, 
 
 Of reference in foreclosure suit, see title "Foreclosure of 
 Mortgage." 
 
 For extra allowance of costs, 479. 
 
 For judgment debtor to appear and answer, 500. 
 
 To examine third person, 501. 
 
 To examine judgment debtor, before return of execu- 
 tion 501. 
 
 Forbidding transfer of property, 504. M 
 
 To apply property of judgment debtor, 505. 
 
 For appointment of receiver of judgment debtor, 505. 
 
 To continue action, 508. , 
 
 For appointment of guardian, 511, 512. J 
 
 Staying proceedings, to make a case of bill of excep- V 
 
 tions, 514. 
 
 The like on trial by a judge without a jury, 515. 
 
 The like on trial by referees, 515. 
 
 PAPERS, 
 
 Notice to produce a trial, 434. 
 
 PERSONAL PROPERTY, 
 
 Affidavit on claim of delivery of, 447. 
 
 Undertaking on, 447. 
 
 Approval by sheriff of, 448. 
 
 Notice to sheriff, requiring deliver}- of, 448. 
 
 Of claim by third person, 448. 
 
 Affidavit of claim by third person, 449. 
 
 Notice by sheriff of claim by third person, 449. 
 
 Undertaking to indemnify sheriff against claim by third 
 
 person, 449. 
 Notice of excepting to sureties in action for, 450. 
 Notice to sheriff requiring return of to defendant, 450. 
 Undertaking thereupon, 451. 
 Complaint in action for taking, 465. 
 
 " " to recover possession of 466. 
 
 « " for detaining, 466. 
 
 Judgments in actions for, see title "Judgments." 
 Executions in actions for, see title "Executions." 
 
 i 
 
 i 
 
 J
 
 INDEX TO FORMS. 573 
 
 PETITION 
 
 To continue action against representatives of deceased 
 
 defendant, 507. 
 Affidavit annexed, 50S. See title "Actions." 
 For appointment of guardian of infant plaintiff, see title 
 " Infant." 
 
 PLACE OF TRIAL, 
 
 Affidavit for motion to change, 432. 
 Notice of motion to chanofe, 433. 
 
 PROMISSORY NOTES, 
 
 Complaints on, see title " Complaint." 
 
 REAL PROPERTY, 
 
 Complaint in action to recover possession of, 466. 
 
 Judgments in actions for, 483. 
 
 Executions upon judgment for delivery of, 48S. 
 
 REFERENCE, 
 
 Judgment on report of referees, 480. 
 
 REFEREES, 
 
 Report of, 506. 
 
 Order to stay proceedings to make case to set aside, 515. 
 
 RECEIVER, 
 
 Order for appointment of, 505. 
 Bond of, 506. 
 
 REMITTITUR, 
 
 Judgment on, 486. 
 
 REVERSAL, 
 
 Entry of judgment on, 481. 
 
 SUMMONS 
 
 Against absent or concealed defendant, 436. 
 For relief, 437. 
 
 For money demand on contract, 437. 
 For like, complaint not served, 433. 
 Affidavit of service of, 440.
 
 574 INDEX TO FORMS. 
 
 SHERIFF, 
 
 Bond to indemnify upon claim of third person of property 
 taken upon attachment, 513. 
 
 TRIAL. 
 
 Affidavit for motion to change place of, 432. 
 
 Notice of motion to change place of, 433. 
 
 Notice of, 433. 
 
 By court, decision on, 478. 
 
 By court, judgment on, 480. 
 
 By referees, judgment on, 480. 
 
 UNDERTAKING, 
 
 On procuring attachment, 442. 
 
 On discharging attachment, 443. 
 
 On granting injunction, 444. 
 
 For injunction against a corporation, 445. 
 
 On claim of delivery of personal property, 447. 
 
 Approval by sheriff", 448. 
 
 To indemnify sheriff against claim of third person to per- 
 sonal property, 449. 
 
 By defendant requiring return of personal property, 351, 
 
 Of bail, 453. 
 
 Of bail in action to recover personal property, 453. 
 
 On appeal to pay costs, 496. 
 
 To stay execution on appeal, 497. 
 
 On appeal from judgment directing delivery of property, 
 497. 
 
 On appeal from judgment directing delivery of real pro- 
 perty, 498. 
 
 On appeal from judgment for sale of mortgaged premises, 
 498. 
 
 Of judgment debtor, on being arrested, 504. 
 
 By plaintiff to prosecute suits concerning attached pro- 
 perty, 513. 
 
 On answer of title in justices' court, 516.
 
 INDEX TO FORMS. 575 
 
 WARRANT 
 
 Of attachment, 442. 
 
 To arrest judgment debtor, 503. 
 
 WORK AND LABOR, 
 
 Complaint for, 464. 
 
 The like, and materials furnished, 468.
 
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